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2017 DIGILAW 778 (HP)

State of Himachal Pradesh v. Ghanshyam

2017-07-07

SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed by the State of Himachal Pradesh against the judgment of acquittal rendered on 23.4.2008 by the learned Additional Sessions Judge, Mandi upon criminal appeal No. 6 of 2005, whereby he set aside the judgment of conviction and sentence recorded upon the accused/respondents herein, by the learned trial Court. 2. The facts relevant to decide the instant case are that on 10.7.1996 HRTC bus No. HP-33-1376 was enroute from Kullu to Chandigarh. PW-1 Ashok Kumar and PW-4, Prakash Chand were driver and conductor respectively of the H.R.T.C., bus No. HP-33-1376. At about 8 a.m., when the HRTC bus reached near SSB-A.O. Office Sundernagar, the speeding in-coming bus No. HP-31-1260 collided against rear portion of H.R.T.C. bus No. HP-33-1376 in bus No. HP-31-1260 being driven by the accused on wrong side of the road in a rash and negligent manner. Passenger Ram Dass, who was sitting on rear portion of H.R.T.C. bus, sustained injuries and he died on the spot, whereas other passengers sustained injuries in the accident. After the accident, the accused ran away from the spot. The information on telephone about the accident was given to police station, Sundernagar and ASI Mast Ram alongwith other police officials went to the spot. The ASI recorded statement of bus driver Ashok Kumar under Section 154 Cr.P.C. Consequently, FIR was registered against the accused person. The case was investigated by A.S.I. Mast Ram. The dead body of Ram Dass was sent to Civil Hospital, Sundernagar for postmortem examination. On completion of investigation, the SHO of Police Station, Sundernagar prepared the charge-sheet against the accused person and sent up the same to the trial Court. The learned Additional Chief Judicial Magistrate conducted the trial after framing charges and on conclusion of the trial, accused was convicted and sentenced. 3. On conclusion of the investigations, into the offences, allegedly committed by the accused, a report under Section 173 of the Code of Criminal Procedure was prepared and filed before the learned trial Court. 4. The accused stood charged by the learned trial Court, for his committing offences punishable under Sections 279, 337, 338 and 304-A of the IPC. In proof of the prosecution case, the prosecution examined 9 witnesses. 4. The accused stood charged by the learned trial Court, for his committing offences punishable under Sections 279, 337, 338 and 304-A of the IPC. In proof of the prosecution case, the prosecution examined 9 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, in which the accused claimed innocence and pleaded false implication in the case. 5. On an appraisal of the evidence on record, the learned trial Court, returned findings of acquittal upon the accused/respondent herein for his committing offences punishable under Sections 279, 337, 338 and 304-A of the IPC. In an appeal preferred therefrom by the accused/respondent herein before the learned Additional Sessions Judge, Mandi, the latter reversed the apposite findings of conviction and sentence recorded in the judgment pronounced by the learned trial Court also he acquitted the accused of the offences charged. 6. The State of H.P. stands aggrieved by the judgment of acquittal recorded upon the accused/respondent. The learned Additional Advocate General appearing for the State has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation “by it” of the evidence on record, rather, theirs standing sequelled by gross-mis-appreciation “by it” of the material on record. Hence, he contends qua the findings of acquittal warranting reversal by this Court in the exercise of its appellate jurisdiction and theirs standing replaced by findings of conviction. 7. On the other hand, the learned counsel appearing for the accused/ respondent herein has with considerable force and vigour, contended qua the findings of acquittal recorded by the learned Additional Sessions Judge, Mandi standing based on a mature and balanced appreciation by him of the evidence on record and theirs not necessitating any interference, rather theirs meriting vindication. 8. This Court with the able assistant of the learned counsel on either side, has, with studied care and incision, evaluated the entire evidence on record. 9. In sequel to occurrence of a collision interse buses bearing No. HP-31-1260 and No. HP-33-1376 one Ram Dass, a passenger on board the offending vehicle, suffered his demise in sequel to injuries standing therein entailed on his person. 9. In sequel to occurrence of a collision interse buses bearing No. HP-31-1260 and No. HP-33-1376 one Ram Dass, a passenger on board the offending vehicle, suffered his demise in sequel to injuries standing therein entailed on his person. The accused/ respondent is alleged to while driving the offending vehicle in a rash and negligent manner, hence beget its collision with the rear of bus bearing No. HP-33-1376. The prosecution concerted to prove the charge, by leading into the witness box two ocular witnesses to the occurrence, who respectively testified as PW1 and PW-4. Both ocular witnesses to the aforesaid occurrence are respectively the driver and the conductor of bus bearing No. HP-33-1376, bus whereof stood struck on its rear by the offending vehicle, driven by the accused/respondent. However, the aforesaid fact of theirs’ hence being interested witnesses would not perse dispel the efficacy of their respective testifications, if they evidently testify with absolute intrase harmony in respect of the occurrence, also in case the Investigating Officer, evidently for well explained pressing circumstances was disabled to associate independent witnesses in the relevant investigations carried by him. Though the testifications, rendered qua the occurrence, by both PW-1 and PW-4 unveil that they in respect thereof make echoings with utmost intrase harmony, yet thereupon it would be unbefitting to impute sanctity to their respective depositions. Also, the fact of their respective depositions occurring in their respective cross-examinations not holding any echoing of theirs on material particulars hence contradicting their respective testifications qua the occurrence borne in their respective examinations-in-chief, also would not constrain this Court to pronounce an order of conviction upon accused/ respondent, conspicuously when the hereafter alluded crucial facts, contrarily constrain this Court to conclude that the respective testifications qua the occurrence, rendered by interested witnesses thereto, are not befitting for imputation of sanctity thereon. (a) The Investigating Officer concerned had associated a purported independent ocular witness to the occurrence, namely Ashok Kumar. The Investigating Officer concerned had also recorded his previous statement in writing. However, the aforesaid Ashok Kumar, an independent ocular witness to the occurrence remained never examined by the prosecution, rather the prosecution thought it fit to examine the aforesaid interested witnesses to the occurrence for sustaining the charge against the accused. The Investigating Officer concerned had also recorded his previous statement in writing. However, the aforesaid Ashok Kumar, an independent ocular witness to the occurrence remained never examined by the prosecution, rather the prosecution thought it fit to examine the aforesaid interested witnesses to the occurrence for sustaining the charge against the accused. The omission on the part of the prosecution to lead into the witness box, the aforesaid Ashok Kumar who evidently is an independent witness to the occurrence, fosters an inference that thereupon the prosecution had concerted to smother the truth qua the occurrence, also hence the genesis of the occurrence embodied in the testifications of interested witnesses to the occurrence, cannot acquire any solemnity. It appears that the Investigating Officer concerned, in collusion with the aforesaid interested witnesses to the occurrence, given the vehicle whereon they stood respectively borne as its driver and conductor, being also involved in the ill-fated collision which occurred intrase it with the offending vehicle, obviously for exculpating their purported liability therein also for falsely implicating the accused/respondent, his hence choosing to cite them as witnesses, besides the prosecution also for aiding the aforesaid concert, choosing to exclude the aforesaid independent witness to the occurrence, from his testifying in Court. (b) Further leverage to the aforesaid inference is derived from the factum of the Investigating Officer concerned preparing, with respect to the site of occurrence, two spot maps on the same day, spot maps whereof are borne respectively in Ext. PW9/A and in Ext.PW-D1. In both the aforesaid spot maps, contradictory recitals occur with respect to the actual place, whereat the relevant collision occurred. The contradictinctivities occurring therein when stand construed with the fact of the accused/respondent being not available at the site of occurrence given his fleeing therefrom, whereas with both PW-1 and PW-4 being available thereat, hence begets a firm conclusion that the Investigating Officer in collusion with the aforesaid, engineering besides manipulating the depictions occurring in both Ext. PW9/A and Ext. PW-D1 with respect to the purported occupation, at the site of occurrence, of both the vehicles, whereupon both the aforesaid site plans are rendered incredible. A corollary of the aforesaid deduction, is that the Investigating Officer concerned, hence concerting to smother the crucial fact with respect to the offending vehicle or bus bearing No. HP-33-1376 at the relevant time respectively occupying the appropriate or the inappropriate sides of the road. A corollary of the aforesaid deduction, is that the Investigating Officer concerned, hence concerting to smother the crucial fact with respect to the offending vehicle or bus bearing No. HP-33-1376 at the relevant time respectively occupying the appropriate or the inappropriate sides of the road. Suppression of the aforesaid significant evidence by the Investigating Officer, begets an inference that may be, the offending vehicle was occupying the appropriate side of the road, whereas bus No. HP-33-1376 was occupying the inappropriate side of the road, wherefrom a further inference, is derived that may be the driver of bus No. HP-33-1376 was negligent in driving the aforesaid vehicle. The rearing of the aforesaid inference earns a conclusion that the charge standing hence not proven to the hilt. 10. For the reasons which have been recorded hereinabove, this Court holds that the learned appellate Court has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned appellate Court does not suffer from perversity or absurdity of mis-appreciation and non-appreciation of evidence on record. 11. Consequently, there is no merit in the instant appeal which is accordingly dismissed. The Judgment impugned before this Court is maintained and affirmed. Records be sent back forthwith.