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Himachal Pradesh High Court · body

2017 DIGILAW 721 (HP)

State of H. P. v. Ashok Kumar

2017-06-27

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. Sequel to order dated 29.5.2017, record of the court below has been received. 2. Instant Criminal Miscellaneous petition has been filed under Section 378 (3) of the Cr.PC, seeking therein leave to appeal against the impugned judgment of acquittal dated 23.1.2017, passed by the learned Judicial Magistrate, Ist Class-I, Dharamshala, District Kangra, H.P., in RBT Crl. Case No.:72-II2012 under Sections 279 & 337 of the IPC, whereby the respondent-accused has been acquitted of notice of accusation put to him under Sections 279 & 337 of IPC. 3. Briefly stated facts as emerge from the record are that on the basis of statement having been made by the injured/complainant namely Bhagmal (PW1), under section 154 of the Cr.PC, police registered FIR bearing No. 166 of 2011 dated 7.8.2011, under Sections 279 and 337 of the IPC against the respondent-accused, alleging therein that at around 1:30 pm, the complainant Bhagmal, along with his wife and son were going towards the Yol bus stand, when they reached near Gurudwara Yol Market, a bus bearing registration No. HP-68-5555, driven by the respondent-accused hit him and dragged him, as a result of which, he suffered injuries on his person. Police got injured medically examined and procured MLC Ext.PW6/A, wherein all the injuries suffered by the victim were termed to be simple in nature. Police after completion of the investigation presented challan in the competent Court of law i.e. learned Judicial Magistrate, Ist Class-I, Dharamshala, District Kangra, H.P, which on being satisfied that prima-facie case exists against the accused, put notice of accusation to the accused under Sections 279 and 337 of the IPC, to which he pleaded not guilty and claimed trial. However, fact remains that he did not lead any evidence in his defence. 4. The learned trial Court on the basis of material adduced on record acquitted the accused-respondent of the offence, punishable under Sections 279 and 337 of the IPC. In the aforesaid background, present criminal appeal has been filed by the State against the acquittal of the respondent-accused before this Court. 5. Mr. 4. The learned trial Court on the basis of material adduced on record acquitted the accused-respondent of the offence, punishable under Sections 279 and 337 of the IPC. In the aforesaid background, present criminal appeal has been filed by the State against the acquittal of the respondent-accused before this Court. 5. Mr. M.L. Chauhan, learned Additional Advocate General, representing the appellant-State, while inviting attention of this Court to the impugned judgment passed by the court below, vehemently argued that the same is not sustainable in the eye of law as the same is not based upon the correct appreciation of evidence adduced on record by the prosecution and as such, same deserves to be quashed and set-aside. Mr. Chauhan, further contended that bare perusal of the impugned judgment suggests that the court below has not read the evidence in its right perspective, as a result of which erroneous findings have come on record, whereby a person who has caused the accident has been let out on very flimsy grounds. With a view to substantiate his aforesaid argument, Mr. Chauhan, made this Court to travel through the statements of PWs 1, 5 and 6, to demonstrate that it was proved beyond reasonable doubt by the prosecution that the accident occurred due to sheer negligence of the respondent-accused and at that relevant time, accused was driving the offending vehicle. Mr. Chauhan, further contended that the aforesaid factum of having received injuries by the victim/complainant, was duly proved by the prosecution by leading cogent and convincing evidence in the shape of MLC Ext.PW6/A, which was further proved by PW6 Dr. Harshwardhan Singh. While concluding his arguments, Mr. Chauhan, prayed that present appeal may be allowed after granting leave to appeal and the respondent accused may be convicted of the offences punishable under Sections 279 & 337 of IPC. 6. I have heard the learned Additional Advocate General representing the State and carefully gone through the record. 7. Before adverting to the merits of the submissions having been made by the learned Additional Advocate General vis-à-vis impugned judgment of acquittal recorded by the court below, this Court carefully perused the record, perusal whereof certainly not persuade this Court to agree with the contention of Mr. 7. Before adverting to the merits of the submissions having been made by the learned Additional Advocate General vis-à-vis impugned judgment of acquittal recorded by the court below, this Court carefully perused the record, perusal whereof certainly not persuade this Court to agree with the contention of Mr. M.L. Chauhan, learned Additional Advocate General that there is mis-representation, mis-interpretation and misconstruction of the evidence led on record by the prosecution, by the court below while acquitting accused of notice of accusation put to him. Rather, this Court after having carefully perused the impugned judgment vis-à-vis evidence adduced on record by the prosecution, has no hesitation to conclude that the prosecution miserably failed to prove beyond reasonable doubt that accident occurred due to rash and negligent driving of the respondent-accused because there is no specific evidence, if any, led on record, by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently that too on high speed by the respondent-accused. Rather PW5 himself admitted in his cross examinations that at that relevant time, vehicle was being driven in slow speed. PWs 1, 5 and 6 in their statements have categorically admitted that the offending vehicle was taking pass from another vehicle and at that particular point, road was very narrow and as such, learned court below rightly came to conclusion that it can be safely presumed that vehicle at that relevant time was in slow speed. Apart from above, there is no explanation worth the name rendered on record by the prosecution that why independent witnesses were not associated, especially when it has come on record that there were number of shops at the spot of occurrence. Moreover, alleged incident occurred in day time i.e. 1:30 p.m. and as such, it cannot be said that at that relevant time, independent witnesses were not available. 8. PW1 Bhagmal, while proving the contents of his statement recorded under Section 154 of the Cr.PC, on the basis of which, formal FIR came to be registered, stated that when he along with his wife and son reached near Gurudwara, Yol Market, a bus bearing No. HP-68-5555, hit him and dragged him. In his statement, it has come that his wife and son, were approximately 8 to 10 feet behind him, whereas both the witnesses PW5 and PW6 stated that they were approximately 30 feet behind the victim/injured. In his statement, it has come that his wife and son, were approximately 8 to 10 feet behind him, whereas both the witnesses PW5 and PW6 stated that they were approximately 30 feet behind the victim/injured. It has also specifically come in the statement of PW6 Ranglo Devi that she had not seen the accident and after hearing noise, she ran towards the spot. Similarly, if statement of PW5 is read in its entirety, it cannot be inferred that he had first occasion to see the alleged accident from his eyes because he himself stated that at that relevant time, he was approximately, 30 feet behind his father. The aforesaid prosecution witnesses, who are closely related to each others, have categorically stated/admitted that at the time of accident bus driver was giving pass to a small vehicle. These witnesses also stated that speed of the vehicle was slow at that relevant time. True, it is that perusal of MLC Ext.PW6/A, suggests that injuries, which were termed to be simple in nature, were sustained by the complainant in the alleged accident and same were further proved by the PW6, who had medically examined the injured/victim after the accident but same may not be sufficient to conclude that the accident in question occurred due to rash and negligent driving of the respondent-accused, who at that relevant time was driving the offending vehicle. Since no specific evidence worth the name has been led on record by the prosecution suggestive of the fact that vehicle in question was being driven rashly and negligently, that too in high speed by the respondent – accused, no much credence could be lent to the versions put forth by PWs 1, 5 and 6, who admittedly are closely related to each other. It has specifically come in the statement of PW7, H.C. Rajinder Kumar that on both sides of the road, there were shops but interestingly, none of the independent witnesses were associated in the investigation. It has also come in his statement that statement of injured was recorded at Tanda Hospital and no blood stains were found on the retaining wall. Like PW1, PW7 also admitted that road is narrow near Gurudwara. It has also come in his statement that statement of injured was recorded at Tanda Hospital and no blood stains were found on the retaining wall. Like PW1, PW7 also admitted that road is narrow near Gurudwara. If the statements having been made by the aforesaid prosecution witnesses are read in conjunction, it can be safely inferred that at the spot of occurrence road was narrow and at the time of alleged incident, offending vehicle was giving pass to the small vehicle, meaning thereby, speed at that relevant time was not high as claimed by the prosecution. 9. Reliance is placed on judgment rendered by the Hon’ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri) 406, which reads as under:- “6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.” 10. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.” 10. The Hon’ble Apex Court in case titled “State of Karnataka v. Satish,” 1998 (8) SCC 493 , has also observed as under:- “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. 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. 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. 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. 5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed.” 10. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed.” 10. 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. 11. The Hon’ble Apex Court in case titled Ravi Kapur versus State of Rajasthan (2012) 9 SCC 285, has 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 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 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. 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. 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.” 12. Reliance is also placed on judgment rendered by this Court in State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538, relevant para whereof is 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. 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. 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.” 13. Consequently, in view of the detailed discussion as well as law cited herein above, this court sees no illegality and infirmity in the judgment passed by the learned court below, which appears to be based upon the proper appreciation of evidence adduced on record and as such, same is upheld. Accordingly, the leave to appeal is rejected.