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2017 DIGILAW 968 (HP)

State of H. P. v. Prem Kumar @ Shegalu Ram

2017-08-28

SANDEEP SHARMA

body2017
JUDGMENT : Sandeep Sharma, J. 1. Instant criminal appeal filed under Section 378 of the Cr.PC., is directed against the impugned judgment dated 11.12.2007, passed by the learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, H.P., in Cr. Case No. 338-I of 2003/44-II of 2007, whereby respondent accused came to be acquitted of offences punishable under Sections 279 and 304-A of the IPC. 2. Briefly stated facts as emerge from the record are that on 14.6.2003, at about 8:30 a.m., one Kaule Ram, R/o Bajaura, was going towards Bhunter on National High Way-21. As per prosecution story, aforesaid person (Kaule Ram) was carrying bicycle with him at that relevant time and when he was just in front of house of Hem Raj at Village Kalehali, a jeep bearing No. HP- 34-A-0978, being driven rashly and negligently by the respondent-accused came from Bajaura side and hit Kaule Ram, as a result of which, he fell down on the road and received injuries on head and arm. Injured though was taken to the R.H. Hospital for medical checkup but unfortunately, he was declared brought dead. Police after completion of investigation presented challan in the competent court of law. 3. Learned Chief Judicial Magistrate, Lahaul-Spiti at Kullu, H.P., after being satisfied that prima-facie case exists against the respondent-accused put notice of accusation for having committed offence punishable under Sections 279 and 304-A of the IPC, to which the accused pleaded not guilty and claimed trial. Learned trial Court on the basis of evidence adduced on record by the prosecution acquitted the respondent-accused of offences punishable under Section 279 and 304-A of the IPC. 4. Being aggrieved and dis-satisfied with the aforesaid judgment of acquittal recorded by the court below, appellant-State has approached this Court by way of instant proceedings, seeking therein conviction of the respondent-accused after setting aside judgment of conviction recorded by the court below. 5. Mr. M.L. Chauhan, learned Additional Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the court below, strenuously argued that the impugned judgment is not sustainable in the eye of law as the same is not based upon the proper appreciation of evidence and as such, same deserves to be quashed and set-aside. Mr. M.L. Chauhan, learned Additional Advocate General, while inviting attention of this Court to the impugned judgment of acquittal recorded by the court below, strenuously argued that the impugned judgment is not sustainable in the eye of law as the same is not based upon the proper appreciation of evidence and as such, same deserves to be quashed and set-aside. Mr. Chauhan, further contended that bare perusal of evidence led on record, clearly suggests that prosecution successfully proved beyond reasonable doubt that at that relevant time, offending vehicle was being driven rashly and negligently by the respondent-accused and as such, there was no occasion for the court below to record acquittal of respondent accused. With a view to substantiate his aforesaid argument, Mr. Chauhan, invited attention of this Court to the statements of prosecution witnesses, to demonstrate that PW1 Shri Chet Singh & PW2 Shri Rajesh Kumar, who fully supported the case of the prosecution, also disclosed the number of vehicle involved in the accident. While inviting attention of this Court to the site plan Ext.PW4/F, learned Additional Advocate General, contended that it is apparently clear from the site plan that bicycle at point mark C-1, was just in front of jeep at about 15 feet, whereas width of the road was 24 feet. He also stated that there were skid marks on the road, which were upto 90 feet making it abundantly clear that at the time of accident, jeep was being driven rashly and negligently by the respondent-accused, who was unable to control the vehicle in question. With the aforesaid submissions, Mr. Chauhan, contended that respondent-accused deserves to be convicted after setting aside the judgment of acquittal recorded by the court below. 6. Per contra, Mr. Maan Singh, learned counsel representing the respondent-accused supported the impugned judgment of acquittal recorded by the court below. While refuting the aforesaid submissions having been made by the learned Additional Advocate General, Mr. Maan Singh contended that bare reading of impugned judgment of acquittal recorded by the court below clearly suggests that there is proper appreciation of evidence adduced on record by the prosecution and court below has dealt with each and every aspect of the matter very meticulously and there is no scope of interference, whatsoever, of this Court. While refuting the submissions having been made by the learned Additional Advocate General, that prosecution successfully proved its case beyond reasonable doubt, Mr. While refuting the submissions having been made by the learned Additional Advocate General, that prosecution successfully proved its case beyond reasonable doubt, Mr. Maan Singh contended that there is no evidence worth the name available on record suggestive of the fact that vehicle in question was being driven rashly and negligently, rather perusal of statement having been made by PW2 Rajesh Kumar, itself belies spot map Ext.PW4/F prepared by the police after the alleged incident. While referring to the statement of PW2 Rajesh Kumar, learned counsel for the respondent-accused contended that as per statement of PW2, vehicle being driven by the respondent accused came from opposite side and hit the deceased, whereas case of prosecution is that both (deceased and accused) were proceedings towards one direction. Mr. Singh further contended that no version, if any, could be placed on the statement of PW1 Chet Singh, who is brother of the deceased, because he reached at the spot after hearing the news of the accident. Similarly, there was no one to prove the contents of the complaint/statement made under Section 154 of the Cr.PC., as the complainant-Shri Kamal Kishore, had expired before his statement could be recorded. With the aforesaid submissions, learned counsel prayed for dismissal of the present appeal being devoid of any merits. 7. I have heard the learned counsel for the parties and carefully gone through the record. 8. This Court after having carefully perused evidence adduced on record by the respective parties vis-à-vis impugned judgment of acquittal recorded by the court below, is not persuaded to agree with the contention of the learned Additional Advocate General that there is mis-reading, misapprehension and mis-construction of evidence adduced on record by the prosecution, rather this Court is fully convinced and satisfied that the court below while acquitting respondent-accused of notice of accusation under Sections 279 and 304-A of the IPC, dealt with each and every aspect of the matter very meticulously and there appears to be no illegality and infirmity in the judgment of acquittal recorded by the court below. 9. In the case at hand, prosecution with a view to prove its case beyond reasonable doubt examined as many as four witnesses. Respondent-accused in his statement recorded under Section 313 of the Cr.PC, denied the case of the prosecution in toto and claimed that he has been falsely implicated. 9. In the case at hand, prosecution with a view to prove its case beyond reasonable doubt examined as many as four witnesses. Respondent-accused in his statement recorded under Section 313 of the Cr.PC, denied the case of the prosecution in toto and claimed that he has been falsely implicated. However, fact remains that he did not lead any evidence in his defence. 10. It is undisputed that PW1 Mr. Chet Singh, who is brother of the deceased, was in his house when he heard of accident and thereafter, he went to Kullu, Hospital. As per his statement, he was told with regard to the accident by Kamal Kishore, and he had no occasion to see the accident with his eyes and as such, statement made by this witness is not at all material for determining rashness and negligence, if any, on the part of the accused. 11. PW2 Rajesh Kumar, in his statement stated that he and his friend Rajesh Kumar were going towards Bajaura, which is North to South in the site plan Ext.PW4/F on their scooter and were exactly at that point, where the accident occurred. Aforesaid witness in his statement recorded under Section 161 of the Cr.PC stated that vehicle being driven by accused in high speed came from Bajaura side and hit Kaule Ram while going ahead of him and accident happened because of rash and negligent driving on his part. Aforesaid witness in his statement recorded by the court below on 6.6.2006, also stated that he was going on a scooter for collection of amount due from other shopkeepers and when he reached Kalehali, at about 8:30 am, one person coming from Bajaura side with a bicycle on his own side of the road (left side) was hit by jeep coming from Bajaura side, as a result of which he fell down. 12. Careful perusal of aforesaid deposition having been made by PW2, runs contrary to the recitals made in the site plan Ext.PW4/F. Perusal of site plan suggests that accused went to the extreme right side of the road and then struck against the injured Kaule Ram, as a result of which, he suffered injuries. 12. Careful perusal of aforesaid deposition having been made by PW2, runs contrary to the recitals made in the site plan Ext.PW4/F. Perusal of site plan suggests that accused went to the extreme right side of the road and then struck against the injured Kaule Ram, as a result of which, he suffered injuries. But if position as depicted in site plan is taken into consideration, deceased was on his side of the road (left side), then position as depicted in site plan that he was hit by jeep at point ‘C’, who was coming from the right side of the road towards Kullu-Bhunter, appears to be totally incorrect. Though, PW4 HC Upinder Singh, in his statement stated that he had prepared site plan Ext.PW4/F and road was very wide and there was no obstruction of any type on it but perusal of statement having been made by PW2 Rajesh Kumar totally belies the position as depicted in the spot map prepared by the HC Upinder Singh. Similarly Photographs as placed on record Exts.P1 to P4 are totally contradictory to the statement of PW2 Rajesh Kumar, who happened to be the sole eye witness of the alleged incident. 13. In the instant case, complaint at the first instance, came to be registered at the behest of informant ( Shri Kamal Kishore), who in his statement recorded under Section 154 Cr.PC, stated that deceased Kaule Ram was going towards Bhunter on his foot carrying bicycle with him. As per version made by Kamal Kishore in his statement recorded under Section 154 Cr.PC, accused was driving his vehicle from Bhunter towards Bajaura side. Even if his version recorded under Section 154 of the Cr.PC is examined/analyzed juxtaposing site plan Ext.PW4/A, it clearly emerge that deceased as well as accused, both were proceeding towards South to North side. Even as per prosecution case, deceased as well as the accused were on the right side, meaning there by, both were on the wrong side at the time of the alleged accident. 14. After having carefully perused evidence led on record by the prosecution, this Court has no hesitation to conclude that no reliance, if any, could be placed upon the version put forth by the prosecution witnesses, which are otherwise contradictory. 14. After having carefully perused evidence led on record by the prosecution, this Court has no hesitation to conclude that no reliance, if any, could be placed upon the version put forth by the prosecution witnesses, which are otherwise contradictory. There are material contradictions in the statements of prosecution witnesses with regard to the direction of vehicle as well as injured, who at that relevant time, was carrying bicycle with him. As has been taken note above, version put forth by prosecution witnesses is totally contrary to the position depicted in the spot map Ext.PW4/A and as such, learned court below rightly did not place reliance upon the contrary evidence led on record by the prosecution. 15. Reliance is also placed on Judgment passed by the Hon’ble Apex Court in C. Magesh and Ors. v. State of Karnataka (2010) 5 SCC 645 , where in it has been held as under:- “45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasise, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Suraj Singh v. State of U.P., 2008 (11) SCR 286 has held:- (SCC p. 704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy. The probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." 46. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that "no man is guilty until proven so", hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and equally large number of witnesses testifying before the court. There must be a string that should join the evidence of all the witnesses and there by satisfying the test of consistency in evidence amongst all the witnesses.” 16. There must be a string that should join the evidence of all the witnesses and there by satisfying the test of consistency in evidence amongst all the witnesses.” 16. Be that as it may, in the instant case, this Court was unable to lay its hand to 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 at high speed. In this regard, 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.” 17. The Hon’ble Apex Court in case titled “State of Karnataka v. Satish,” 1998 (8) SCC 493 , has also observed as under:- “1. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.” 17. 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. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. 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.” 18. 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.” 18. 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. 19. 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.” 20. 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 Where of 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. 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 hearing 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.” 21. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court sees no reason to differ with the well reasoned judgment passed by the learned court below which appears to be based upon the proper appreciation of evidence adduced on record and the same is accordingly upheld. Accordingly, the appeal is dismissed being devoid of any merits.