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2017 DIGILAW 831 (JK)

State of J&K v. Mulkh Raj

2017-09-12

ALOK ARADHE, B.S.WALIA

body2017
JUDGMENT : Alok Aradhe, J. Condl (Cr) No. 30/2013 Heard. After hearing learned counsel for the appellant and for the reasons assigned in the application, which is duly supported by an affidavit, we find that sufficient cause for condonation of delay of 140 days in filing the criminal acquittal appeal is made out. In the result, delay is condoned. Accordingly, the application for condonation of delay is disposed of. SLAA No.38/2013 After hearing the learned counsel for the appellant, we deem it appropriate to grant leave to file Criminal Acquittal Appeal. Accordingly, leave is granted. SLAA is disposed of. Criminal Acquittal Appeal is taken up on board. Cr. Acquittal Appeal No. 46/2013 This Criminal Acquittal Appeal has been preferred against the judgment dated 06.08.2012 passed by the trial court, by which the respondent has been acquitted of offence under sections 279/337/304-A RPC. 2. The prosecution story in nutshell is that on 20.01.2006, the police authorities of Police Station, Kathua learnt from reliable source that a Tipper driven rashly and negligently by the respondent, knocked down two persons, namely Pappi and Babu Din near the CTM factory while reversing, as a result of which both of them sustained injuries. The Police authorities took cognizance of the matter and registered a case for offence under sections 279 & 337 RPC. On account of the death of injured, Babu Din, an offence under section 304-A RPC was added to the case during course of investigation. After completion of the investigation, charge sheet was presented in the Court against the respondent for the offences as aforesaid. 3. The prosecution in order to prove its case has examined as many as six witnesses, namely, Som Raj, Hasham Ali, Mohan Lal Ram Milan Pappy, Balbir Singh. The trial court vide impugned judgment has acquitted the respondent of the aforesaid offences. 4. Learned Additional Advocate General for the appellant submitted that the Tipper was being reversed by the respondent in a rash and negligent manner as a result of which one person died and another was injured. It is further submitted that there was no conductor in the Tipper to give signal to respondent (driver), as such, principle of res ipsa loquitur would apply in the case. It is submitted that there was enough material available on record to convict the respondent for the aforesaid offences. It is further submitted that there was no conductor in the Tipper to give signal to respondent (driver), as such, principle of res ipsa loquitur would apply in the case. It is submitted that there was enough material available on record to convict the respondent for the aforesaid offences. It is also submitted that the trial Court has failed to appreciate the evidence available on record in its correct perspective, which has resulted in erroneous findings and consequent judgment 5. We have considered the submissions made by the learned counsel for the parties and have perused the record. From the cross-examination of prosecution witnesses, namely, Som Raj, Hasham Ali, Mohan Lal and Balbir Singh, it is evident that the Tipper collided with the cart. The Investigating Officer in his cross-examination has specifically stated that he could not conclude as to in which direction the tipper and the cart were moving. Pappy Ram, the injured has, however, stated that the tipper hit them behind their backs and rammed into them. The evidence on record is to the effect that the tipper hit the cart which the accused and the deceased were pushing, suggests that the cart was moving towards the direction in which the tipper was reversing, which means that the deceased and the injured had an eye over the movement of the tipper but they did not leave the cart to save themselves. This fact is also corroborated by the statement of Balbir Singh, prosecution witness, who has stated that if the deceased retreated back a little, they could have been saved. Merely because an accident has taken place negligence or rashness cannot be inferred. The statement of Balbir Singh to the effect that had the deceased and the injured retreated back they could have saved themselves knocks the bottom out of the prosecution case. 6. The witnesses examined by the prosecution appear not to have seen the occurrence and are only planted witnesses. Ram Milan has stated in his statement that he and others were engaged in repairing the wall and he does not know anything about the movement of the tipper. PW Mohan Lal cuts at the very root of the prosecution case. He has introduced a different version in his statement that is wholly inconsistent with the prosecution version. Ram Milan has stated in his statement that he and others were engaged in repairing the wall and he does not know anything about the movement of the tipper. PW Mohan Lal cuts at the very root of the prosecution case. He has introduced a different version in his statement that is wholly inconsistent with the prosecution version. He has stated in his cross-examination that Pappy Ram, the injured and Babu Din, the deceased were preparing the construction material and he too assisted them in doing so. By this statement of his it has to be presumed that they were not pulling the cart as alleged in the prosecution case. Thus, the entire prosecution case is based on incorrect facts. From the statement of PW Balbir Singh it is evident that death of the deceased and the injuries to the injured were not the immediate consequences of the negligence of the respondent. All the prosecution witnesses are of different opinion to the incident, which has rightly not been believed by the appellate Court. 7. The trial court has recorded the findings, which are based on meticulous appreciation of evidence available on record. It is well settled in law that this Court while hearing an acquittal appeal can re-appreciate the evidence, however, it should not interfere with the order of acquittal if the view taken by the trial court is also a reasonable view of the evidence on record and the findings recorded by the trial court are not manifestly erroneous, contrary to the evidence on record or perverse. See: Ram Swaroop and others vs. State of Rajasthan, (2002) 13 SCC 134, Vijay Kumar v. State by Inspector General, (2009) 12 SCC 629 and Upendra Pradhan vs. State of Orissa, (2015) 11 SCC 124 . 8. From perusal of the judgment of the trial court, we find that the findings recorded by the trial court can neither be termed as perverse, contrary to the evidence or erroneous, therefore, no case for interference in this acquittal appeal is made out. In the result, the appeal fails and is hereby dismissed.