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2017 DIGILAW 713 (HP)

State of H. P. v. Mehar Chand

2017-06-23

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal is directed against the impugned verdict pronounced by the learned Judicial Magistrate 1st Class, Court No. III, Hamirpur, H.P. whereby the learned Judicial Magistrate hence acquitted the accused/respondent for his allegedly committing offences punishable under the relevant penal provisions in respect where of charges stood framed against him. 2. The brief facts of the case are that on 15.8.2003 at about 11.30 a.m. at place Jhaniari Bridge, near Bhota, accused Mehar Chand, was driving vehicle bearing registration No. HP-21-0385 on a public highway. Due to the rash and negligent driving of the accused, he hit his vehicle against a bicycle, due to which the complainant Arvind Kumar and Rajiv Kumar sustained injuries. The injured were moved to the hospital and the matter was reported to the police by the complainant and on completion of the investigation, into the offences, allegedly committed by the accused, the Investigating Officer concerned prepared a challan besides filed a report under Section 173 Cr.P.C. before the Court concerned. 3. There upon, the accused stood charged by the learned trial Court for his allegedly committing offences punishable under Sections 279, 337 and 338 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 11 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he pleaded innocence and claimed false implication. He chose not to lead any defence evidence. 5. On an appraisal of the evidence on record, the learned trial Court returned findings of acquittal in favour of the accused. 6. The State of H.P. is aggrieved by the judgment of acquittal recorded upon the accused/respondent by the learned Trial Court. The learned Additional Advocate General, has concertedly and vigorously contended that the findings of acquittal recorded by the learned trial Court below being not harbored upon a proper appreciation “by it” of the evidence on record rather theirs standing sequelled by gross misappreciation “by it" of the material evidence on record. Hence, he, contends that the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction besides concomitantly, appropriate sentences being imposed upon the accused/respondent. 7. Hence, he, contends that the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction besides concomitantly, appropriate sentences being imposed upon the accused/respondent. 7. On the other hand, the learned defence counsel has with considerable force and vigour, contended that the findings of acquittal recorded by the Court below being based on a mature and balanced appreciation “by it” of the evidence on record, hence theirs not warranting any interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side, has with studied care and incision, evaluated the entire evidence on record. 9. The accused-respondent “is alleged to” by his rashly and negligently driving the offending vehicle concerned, hence beget its collision with a bicycle whereon complainant Arvind Kumar was atop as its pillion rider whereas one Rajiv Kumar was plying it. In sequel to the collision which occurred inter se the aforesaid vehicles both the aforesaid sustained injuries on their respective persons. In respect of the injuries sustained by them, their apposite MLCS stood prepared, MLCS where of are respectively comprised in Ext.PW-5/A and in Ext.PW-7/A, MLCS where of stood respectively proven by their respective authors who deposed as PW-5 and as PW-7. The prosecution for proving the charge, had led into the witness box, both the injured/victims also had led into the witness box, a purported independent eye witness thereto, who testified as PW-6. The learned trial Court had pronounced, an order of acquittal upon the accused by its assigning a reason rested upon intra se contradictions occurring in the testimonies of PW-1 and of PW-3, with respect to the occurrence of each of the respective vehicles on the lower side or on the higher side of the relevant road. The learned trial Court had pronounced, an order of acquittal upon the accused by its assigning a reason rested upon intra se contradictions occurring in the testimonies of PW-1 and of PW-3, with respect to the occurrence of each of the respective vehicles on the lower side or on the higher side of the relevant road. The learned Additional Advocate General submits, that the aforesaid minimal contradiction with respect to occurrence of each of the vehicles “either” on the lower side or on the higher side “of” the place of occurrence “is not” a sufficient reason for dispelling the worth of the testimonies of both PW- 1 and PW-3 also he submits that the learned defence counsel while holding the prosecution witnesses to cross-examination his not making any concerted efforts for belying the relevant depictions displayed in the site plan wherein the relevant place of occurrence is shown to be holding a width of 24 feet, hence given its adequate width “for hence its” simultaneously thereon holding both the vehicles concerned “despite” their arrival from apposite directions at the relevant site, rendered the aforesaid minimal contradictions occurring respectively in the testifications of Pw-1 and of PW-3, to hence stand subsumed, thereupon the prosecution proving the charge to the hilt. However, the strength of the aforesaid submission “gets” weakened “given” the independent witness to the occurrence in his examination in chief making a communication that his arrival at the site of occurrence standing aroused by his hearing a sound of collision emanating there from, whereupon the factum of his eye witnessing the occurrence is dispelled besides his testimony is not construable to render an ocular account thereof, rather is construable to be rendering an hearsay account thereof, whereupon his testimony in corroboration of the testification of the victims, is discardable. Even though the aforesaid testification borne in the examination in chief of PW-6 hence empathetically conveys that hence he did not eye witness the occurrence rather he visited the site of occurrence after its standing completed thereat “whereas” in his cross-examination his making an echoing that he had eye witnessed the occurrence and that thereupon he had seen the bicycle striking the offending stationary trolla, hence therein he obviously exculpates the guilt of the accused “yet” for imputing credence to the testification aforesaid occurring in the cross-examination of PW-6 “it” would be sagacious to not read it piecemeal rather to read it in conjunction with the earlier therewith apposite communication echoed by him in his examination in chief wherein he has rendered a discardable hearsay version qua the incident, where upon his eye witnessing it is rendered incredible. In reading his testimony in a wholesome manner rather in a fragmentary manner, especially when in the last portion of his cross-examination he contradicts the testification occurring in his examination in chief “where in” he makes a disclosure with respect to his not eye witnessing the occurrence “galvanizes” an inference that his testification in exculpation of the guilt of the accused “as exists” in his cross-examination standing cursorily made nor there from any capitalization being drawable by the defence “moreso” when no suggestion stood put to both PW-1 and to Pw-3 “by” the learned defence counsel while holding each to cross-examination, for succoring its defence cursorily/perfunctorily unveiled in the last portion of the cross-examination of PW-6, “especially” with respect to the bicycle whereon Rajiv was astride as its rider, proceeding to strike a stationary trolla. Contrarily, with the learned defence counsel “during” the course of holding PW-1 to cross-examination, putting a suggestion to him, suggestion where of is couched in an affirmative phraseology, comprised in its holding an echoing therein that the accused/respondent while driving the offending vehicle at the site of occurrence, his positioning “it” on the inappropriate side of the road, suggestion whereof evinced a response in the affirmative rather gives impetus to a conclusion that hence the defence acquiesces to the fact that the respondent/accused at the relevant time was driving the offending vehicle on the inappropriate side of the road, acquiescence whereof “of” the defence also galvanizes a conclusion that it also admits the factum of the accused hence breaching the standards of due care and caution, whereupon the charge stands proven. 10. Lastly, the learned counsel for the accused submits that with an admission occurring in the cross-examination of PW-1 with respect to availability of sufficient space, for hence the bicycle being plied there on “without” begetting its collision with the offending vehicle, there upon constraining a conclusion that with one Rajiv Kumar omitting to manoeuvre the bicycle upon that portion of the road whereat space was available for its being plied thereon, thereupon his hence not adhering to the canons of due care and caution. However, the aforesaid contention is lacking in vigour, as the learned defence counsel while evincing the aforesaid response from PW-1 while holding him to cross-examination, has precedingly There to put an affirmative suggestion to him with respect to the accused driving the offending vehicle, upon the inappropriate side of the road, suggestion whereof evinced an alike affirmative response from PW-1, whereupon with the defence precedingly acquiescing to the factum of the accused/respondent, hence driving the offending vehicle upon the inappropriate side of the road, thereupon his obviously breaching the standards of due care and caution, consequently renders unworthwhile any admission made by PW-1 in his cross-examination, that there was yet sufficient space left upon the road for one Rajiv for his plying his bicycle there on, whereas his omitting to ply it thereon hence renders him to be a tortfeasor, nor hence the relevant liability is attracted upon him “significantly” also when the occurrence of a collision inter se both was abrupt “given” no evidence in negation thereof standing adduced, thereupon given the evident abruptness of occurrence of the relevant “collision” where upon with Rajiv Kumar hence standing precluded to ply the relevant bicycle upon the residual width of the road “a” substantial portion whereof stood inappropriately occupied by the offending vehicle also “cannot” hence exculpate the guilt of the accused. 11. For the reasons which have been recorded here in above, this Court holds that the learned trial Magistrate has not appraised the entire evidence on record in a whole some and harmonious manner apart there from the analysis of the material on record by the learned Magistrate suffers from a gross perversity or absurdity of misappreciation and non appreciation of evidence on record. In sequel thereto, I find merit in this appeal, which is accordingly allowed and the judgment of acquittal rendered by the learned trial Magistrate is quashed and set-aside. Accordingly, the accused is held guilty for his committing offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. 12. Let the accused/respondent be produced before this Court on 25th July, 2017 for his being heard on the quantum of sentence.