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Himachal Pradesh High Court · body

2017 DIGILAW 690 (HP)

State of Himachal Pradesh v. Parvesh Kumar

2017-06-20

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Instant Criminal Miscellaneous petition filed under Section 378(3) of the Code of Criminal Procedure, is directed against the judgment dated 12.08.2016, passed by learned Additional Chief Judicial Magistrate, Dehra, District Kangra, H.P., in Criminal case No.81-II/2011, whereby the respondent-accused (hereinafter referred to as the accused) has been acquitted of the notice of accusation put up against him under Sections 279, 337 and 338 of IPC. 2. Briefly stated facts as emerge from the record are that complainant namely, Yog Raj reported to the police that on 22.3.2011 he was going to his house at Jambal from Baddal Thore in Jarial bus bearing No.HP-55-5751 enroute from Nadaun to Dadasiba. He further reported that at about 7:15 P.M., when he reached at Chakki in Jambal, he saw that bus driver i.e. accused had struck his bus against a pedestrian, as a result of which, he fell down. He specifically reported that at the relevant time bus was being driven by the accused in rash and negligent manner. In complaint, he reported to the police that when he saw the pedestrian after alighting from the bus, he was with his elder brother Karnail Singh, who sustained multiple injuries and blood was oozing out. He further stated that immediately his brother was shifted to Govt. Hospital, Dadasiba and the said accident was witnessed by his brother Ashok Kumar, nephew Rajesh Kumar and other persons and thereafter he was referred to Tanda hospital. On the basis of the aforesaid complaint, formal FIR Ex.PW1/A came to be registered against the accused. Police after completion of the investigation, presented the challan in the competent Court of law against the accused for the offences punishable under Sections 279, 337 and 338 of IPC. 3. Learned trial Court after satisfying itself that a prima-facie case exists against the accused, put notice of accusation under Sections 279, 337 and 338 of IPC, to which he pleaded not guilty and claimed trial. 4. In the instant case, prosecution with a view to prove its case examined as many as 11 witnesses in totality, whereas statement of the accused under Section 313 Cr.P.C was recorded, wherein he denied all incriminating evidence led against him and claimed to be innocent. Accused in his defence examined two witnesses. 5. 4. In the instant case, prosecution with a view to prove its case examined as many as 11 witnesses in totality, whereas statement of the accused under Section 313 Cr.P.C was recorded, wherein he denied all incriminating evidence led against him and claimed to be innocent. Accused in his defence examined two witnesses. 5. Learned trial Court on the basis of the evidence adduced on record by the prosecution, acquitted the accused of the offences punishable under Sections 279, 337 and 338 of IPC. In the aforesaid background, appellant-State has filed the instant criminal appeal seeking therein conviction of the respondent-accused after setting aside the judgment of acquittal recorded by the learned trial Court. 6. Mr. M.L.Chauhan, learned Additional Advocate General, while referring to the impugned judgment of acquittal passed by the learned trial Court, vehemently argued that same is not sustainable in the eyes of law as the same is not based upon the correct appreciation of the evidence adduced on record and as such, same deserve to be quashed and set-aside. While referring to the impugned judgment, Mr. Chauhan, contended that bare perusal of the same suggests that the learned trial Court has failed to appreciate the evidence in its right perspective, as a result of which, erroneous findings have come on record and the respondent-accused, who is guilty of having committed the offences punishable under Sections 279, 337 and 338 of IPC has been acquitted on very flimsy grounds. 7. With a view to substantiate his aforesaid argument, Mr. Chauhan, invited attention of this Court to the evidence led on record by the prosecution to demonstrate that prosecution successfully proved on record beyond reasonable doubt that vehicle at the relevant time was being driven rashly and negligently by the accused, as a result of which, injured namely, Karnail Singh suffered grievous injuries, which has been further proved by leading convincing and cogent medical evidence on record. While inviting attention of this Court to the statements of PW-1, Yog Raj, PW-2, Rajesh and PW-4, injured Karnail Singh, Mr. While inviting attention of this Court to the statements of PW-1, Yog Raj, PW-2, Rajesh and PW-4, injured Karnail Singh, Mr. Chauhan, strenuously contended that all the material prosecution witnesses unequivocally stated that vehicle being driven by the respondent-accused struck against PW-4, Karnail Singh, as a result of which, he suffered injuries and as such, there was no occasion for the court below to reject the version put forth by these prosecution witnesses merely on the ground that none of the independent witness was associated by the Investigating officer at the time of the investigation of the case. Mr. Chauhan, while concluding his arguments contended that it is well settled law that version put forth by the interesting witnesses cannot be rejected by the Court solely on the ground of non-association of the independent witnesses, especially if version put forth by such interested witnesses appears to be trustworthy and is in conformity with the stand taken by each other. With the aforesaid submissions, Mr. Chauhan, prayed that respondent-accused may be convicted for the offence punishable under Sections 279, 337 and 338 of IPC after setting aside the judgment of acquittal recorded by the learned trial Court. 8. I have heard learned Additional Advocate General and have carefully gone through the record made available. 9. It may be noticed at this stage that after condoning the delay in filing leave to appeal, this Court had called for the record of the court below, which has been perused by this Court before proceeding to decide the instant leave to appeal preferred on behalf of the appellant- State. 10. 9. It may be noticed at this stage that after condoning the delay in filing leave to appeal, this Court had called for the record of the court below, which has been perused by this Court before proceeding to decide the instant leave to appeal preferred on behalf of the appellant- State. 10. During arguments having been advanced by learned Additional Advocate General, this Court had an occasion to peruse the impugned judgment as well as evidence led on record by the prosecution, perusal whereof, has certainly not persuaded this Court to agree with the contentions raised by the learned Additional Advocate General that learned court below while acquitting the respondent-accused of the offences punishable under Sections 279, 337 and 338 of IPC misread, misinterpreted and misconstrued the evidence, rather this Court after having carefully perused the evidence led on record by the prosecution, has no hesitation to conclude that the prosecution was not able to prove beyond reasonable doubt that the vehicle in question was being driven rashly and negligently that too in high speed at the relevant time by the accused, as a result of which, victim Karnail Singh suffered injuries. In the instant case, there is no dispute with regard to the vehicle in question being driven by the respondent-accused, who allegedly hit the victim namely Karnail Singh (PW-4). Respondent-accused in his statement recorded under Section 313 Cr.P.C., has nowhere denied the accident, rather he has stated that accident occurred due to the negligence of PW-4, Karnail Singh, who at that relevant time was under the influence of liquor. He in support of his version also examined DW-1, Ajay Kumar, conductor of the bus bearing No.HP-55—5751 and DW-2 Rajindere Pal. DW-1 in his statement stated that when bus reached at Jambal, a person whose name he came to know lateron as Karnail Singh started crossing the road at once and on seeing the bus, he turned back suddenly and struck with the bus and fell down. It has specifically come in his statement that the speed of the bus was normal and there were many pits on the road. 11. It has specifically come in his statement that the speed of the bus was normal and there were many pits on the road. 11. PW-1, complainant Yog Raj, reiterated the version put forth by him in his complaint that on 22.3.2011, at 7:15, he was going to his house in the Jarial bus bearing No.HP-55-A-5751 and at about 7:15 P.M., when bus reached at Jambal, at that time his brother Karnail Singh was walking on the road side and the bus hit against his brother. It has also come in his statement that at the relevant time bus was being driven in a high speed and negligent manner by the accused, who is present in the Court. It has also come in his statement that he was sitting two seats behind the driver seat. He also admitted in his cross-examination that the police visited the spot on the next day and had seen the spot. 12. PW-2, Rajesh Kumar deposed before the Court that the accident occurred at 7:15 PM on 22.3.2011 when he, his father Karnail and his uncle Ashok Kumar were going to their house. He further stated that at about 7:15 P.M., when they reached near their house at Jambal and were standing at the road side, bus bearing No.HP-55-5751 was coming from Dehra to Dada being driven by the accused present in the court came in a high speed and struck against his father namely, Karnail Singh, who was standing on the road side, as a result of which, he sustained injuries on his both legs. He further stated that the accident took place due to rash and negligent driving of the accused. In his cross-examination, he specifically admitted that there is liquor and fish shop near the spot of occurrence. He further stated that his Uncle and father were standing together at the time of the accident and he was 5 to 7 feet away from them. Interestingly, this witness has stated that his father had already crossed the road while denying that the bus was in slow speed. He further stated that speed of the bus was 70-80 Kms per hour. However, he feigned his ignorance with regard to the number of passengers sitting in the ill-fated bus, whereas, he self stated that he got busy when his father sustained injuries. He further stated that speed of the bus was 70-80 Kms per hour. However, he feigned his ignorance with regard to the number of passengers sitting in the ill-fated bus, whereas, he self stated that he got busy when his father sustained injuries. He also admitted that it was dark at the time of the accident and light of the bus was already switched on. 13. PW-4, Sh. Karnail Singh (injured) stated that on 22.3.2011 at about 7:15 P.M., when he was coming back from shop at Jambal and was standing on the side of the road near his house, firstly Jayanti bus crossed from there, thereafter, Jarial bus bearing No. HP-55-5751 being driven by the accused present in Court came in a high speed and struck against him, as a result of which, he fell down 50 feet ahead from the bus and his both legs have broken and he also sustained head injury. He also stated that accident took place due to high speed and negligent driving of the ill-fated bus. In his cross-examination, he admitted that there is a liquor shop adjacent to the place where the accident had taken place. He denied the suggestion put to him that he just exit from the liquor shop, however he admitted that he had crossed the road. He further denied that he turned back on the road while crossing the road. He further denied that he struck with the bus himself in the middle of the road. 14. Version put forth by the aforesaid prosecution witness, if read in its entirety, certainly compels this Court to conclude that the version put forth by these prosecution witnesses was rightly not considered to be trustworthy by the learned trial Court because there are material contradictions in their statements. PW-1 and PW-4 in their statements have not stated something specific with regard to the presence of PW-2 alongwith his Uncle Sh. Ashok Kumar at the spot of occurrence at the time of the accident. None of these witnesses, especially PW-1 has stated that at that relevant time Ashok Kumar and Rajesh Kumar were present at the site of the accident, whereas PW-2 in his statement stated that at the time of occurrence he along with his father Karnail Singh and uncle Ashok Kumar were going to their house. None of these witnesses, especially PW-1 has stated that at that relevant time Ashok Kumar and Rajesh Kumar were present at the site of the accident, whereas PW-2 in his statement stated that at the time of occurrence he along with his father Karnail Singh and uncle Ashok Kumar were going to their house. Though, prosecution has cited PW-2, as prosecution witness, but there is no explanation worth the name that why another person namely Ashok Kumar was not cited as witness to give more strength to the version put forth by the prosecution witnesses. PW-2 and PW-4 have specifically admitted in their cross-examination that PW-4 had already crossed the road. 15. Perusal of spot map Ex.PW11/A, further strengthen the version put forth by the respondent accused in his statement recorded under Section 313 Cr.P.C. as well as version put forth by DW-1, Ajay Kumar that the accident in question took place due to the negligence of the injured Karnail Singh. Perusal of spot map, as referred above, certainly suggests that the bus in question was heading towards Dadasiba from Dhaliara, whereby in the spot map bus in question has been shown on its own side and as such, no negligence on the part of the respondent-accused can be inferred from the perusal of the spot map. Moreover, it is an admitted case of the prosecution, as has been admitted by PW-1, that police came on the spot next day after the accident. 16. Interestingly, in the instant case all the material witnesses, as have been discussed above, are family members of one family and no independent witness has been examined by the prosecution. True, it is that version put forth by the related witnesses cannot be rejected solely on the ground of non association of the independent witnesses, but in such like cases courts are required to exercise more caution while placing reliance upon their version, especially while holding someone guilty of the offences, he/she is charged with. In the instant case, all the prosecution witnesses, as have been discussed above, have admitted that there was liquor and fish shop at the spot of occurrence. It has also come in the statement of PW-2 that after the accident, owner of the liquor shop came out but for the reason best known to the prosecution, none of the independent witnesses were associated by the prosecution. 17. It has also come in the statement of PW-2 that after the accident, owner of the liquor shop came out but for the reason best known to the prosecution, none of the independent witnesses were associated by the prosecution. 17. PW-11, ASI Narsh Kumar, Investigating Officer has categorically admitted that there is liquor shop, flour mill and fish shop on the spot. He further admitted that he got recorded the statement of the complainant at his house when he got discharged from the hospital. Prior to this, he neither saw the complainant nor met him. Though, he denied that on the day of occurrence, complainant had consumed liquor, but same is contrary to the MLC as well as statement of Dr. Samir Jamwal ( PW-6). 18. PW-6, Dr. Samir Jamwal, who medically examined the injured Karnail Singh, has categorically stated that at the time of medical examination injured Karnail Singh was found having consumed alcohol. Similarly, PW-11 feigned ignorance with regard to presence of Ashok Kumar and Rajesh Kumar on the spot, as claimed by PW-2, Rajesh Kumar in his statement. It has come in his statement that he has not inquired from Ajay son of Sh. Dharam Chand resident of Khabil, who was conductor of the accidental bus. In the instant case, investigating officer never bothered to investigate the conductor of the alleged ill-fated bus. PW-11, in his cross-examination has categorically admitted that he has not cited the owner of the flour mill and owner of the fish shop as witnesses in this case as the shops were closed at that time, which part of his statement is also contrary to the version put forth by other prosecution witnesses that owner of liquor shop had come on the spot after alleged accident. 19. This court, after having carefully perused the evidence led on record by the prosecution, sees no reason to differ with the findings returned by the learned trial Court and this Court is persuaded to be in agreement with the stand taken by the accused in his statement under Section 313 Cr.P.C. that the accident in question occurred due to the negligence of Karnail Singh, who admittedly at that relevant time was under the influence of the liquor. 20. 20. DW-1, Ajay Kumar while admitting that at the relevant time vehicle was being driven by the respondent accused, specifically stated that there is no negligence or fault on the part of the accused, who happened to be driver of the ill-fated bus. DW-2, Rajinder Pal also stated like DW-1 that when bus reached at Jambal, a person namely Karnail Singh started crossing the road all at once and on seeing the bus he turned back suddenly and struck with the bus, as a result of which, he suffered injuries. Interestingly, prosecution was not able to shatter their testimonies in the cross-examination because perusal of cross-examination conducted on these witnesses, nowhere suggest that prosecution was able to extract anything contrary to what they stated in their examination-in-chief. 21. Leaving everything aside, this Court finds from the record that there is no specific evidence led on record by the prosecution with regard to the rash and negligent driving, if any, on the part of the respondent-accused. None of the prosecution witnesses stated something specific with the high speed of the vehicle save and except Rajesh Kumar, who stated that vehicle in question was being driven 70-80 kms per hour, but version put forth by Rajesh Kumar cannot be relied upon because his presence on the spot is doubtful as none of the prosecution witnesses except him stated something specific with regard to his presence on the spot. 22. The Hon’ble Apex Court in case titled “State of Karnataka v. Satish,” 1998 (8) SCC 493 . The relevant paras of which are being reproduced herein below:- “1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and heard learned counsel for the parties. 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 23. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur. 24. The Hon’ble Apex Court in case titled Ravi Kapur versus State of Rajasthan (2012) 9 SCC 285 have held as under: “15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of ‘culpable rashness’ and ‘culpable negligence’ into consideration in cases of road accidents. ‘Culpable rashness’ is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). ‘Culpable negligence’ is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person’s negligent conduct. [Ref. Justice Rajesh Tandon’s ‘An Exhaustive Commentary on Motor Vehicles Act, 1988’ (First Edition, 2010]. 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as : The event would not have occurred but for someone’s negligence. The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. Accused was negligent and owed a duty of care towards the victim.” 25. This Court in State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538, have held as under: “4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn and he (deceased) stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on haring the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial.” 26. Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the impugned judgment passed by the learned trial Court, which appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld. Accordingly, the leave to appeal is rejected.