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2017 DIGILAW 994 (HP)

State Of Himachal Pradesh v. Besaria Ram

2017-08-30

AJAY MOHAN GOEL

body2017
JUDGMENT Ajay Mohan Goel, J. (Oral) - By way of this Appeal, the State has challenged the judgment passed by the Court of learned Chief Judicial Magistrate, Mandi in Criminal Case No. 205-II/2004, dated 17.10.2008, vide which, learned trial Court has acquitted the present respondent for commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code. 2. In brief, the case of the prosecution was that on 07.06.2004 at around 12:30 noon, complainant Tara Chand was outside his Dhabha, which was being run in the name and style of M/s. Lucky Bhojnalaya at Basta in Tehsil Sadar, District Mandi and at that very time, children were returning from Government Primary School Shambal towards Basta, who were walking on the side of the road, when suddenly two trucks came in a very high speed and crossed the road in front of the Dhabha of the complainant towards Mandi. After the trucks had moved ahead, the children started crying. The registration number of the trucks were HP-11-2207 and HP-11-2100. Though truck No. HP-11-2207 was driven ahead of truck bearing registration No. HP-11-2100, however, immediately driver of truck bearing registration No. HP-11-2100 over took the truck ahead of him and fled away towards Mandi side. On hearing the cries of kids, complainant Tara Chand and his brother Gopal as well as one Keshav Ram rushed to the spot and they found Parwati, a six and half years old child having been crushed by the first truck. On the basis of the statement of Tara Chand so recorded under Section 154 of the Code of Criminal Procedure, an FIR was lodged at Police Station Sadar, District Mandi. Pursuant thereof, investigation was conducted by SI Mast Ram, who prepared inquest as well as site plan. Statements of the witnesses were recorded and truck bearing registration number HP-112207 was impounded, which was being driven by the Accused at the relevant time. Autopsy report of the deceased was obtained. 3. After completion of the investigation, charge-sheet was filed in the Court and as a prima facie case was found against the Accused for commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code, accordingly Notice of Accusation was put to him, to which he pleaded not guilty and claimed trial. 4. 3. After completion of the investigation, charge-sheet was filed in the Court and as a prima facie case was found against the Accused for commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code, accordingly Notice of Accusation was put to him, to which he pleaded not guilty and claimed trial. 4. Learned trial Court vide its judgment under challenge, acquitted the Accused for commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code by holding that there was no material placed by the prosecution on record to demonstrate that it was vehicle bearing registration number HP-11-2207 involved in the accident at Basta, which led to the death of Kumari Parwati. While coming to the said conclusion, after discussing the testimonies of prosecution witnesses, it was held by the learned trial Court that testimony of PW-1 Tara Chand demonstrated that he was not an eye witness, as he had not actually seen the occurrence of the accident, which was evident from his statement, as he had in his cross-examination deposed that he rushed to the spot after about five minutes after hearing the cries and when he reached the spot, he came to know that the accident had occurred. Learned trial Court also took note of the fact that in his cross-examination, this witness had stated that the persons at the spot were shocked and perplexed and no one told him the number of the vehicle which had hit the child. Learned trial Court also took note of the fact that this witness had deposed that children who were with the deceased child had stated that she had been hit by a truck, which thereafter had moved towards Mandi side. Learned trial Court also held that the testimony of PW-2 Poonam Devi, sister of the deceased, demonstrated that she was a tutored witness. Learned trial Court also held that the testimony of PW-2 Poonam Devi, sister of the deceased, demonstrated that she was a tutored witness. It was further held by the learned trial Court that statement of PW-4 Gopal to the effect that he had actually seen the occurrence of the accident was unbelievable, because in his cross-examination, this witness had stated that he rushed to the spot, which was at a distance of two hundred yards away on hearing the cries and when he reached the spot, PW-2 Poonam told him that the first truck which had gone ahead, had crushed her sister, though she had not disclosed the truck number and further, it was Naganu Ram who told him that he suspected that the child was crushed by truck bearing registration number HP-11-2207. A perusal of the judgment passed by the learned trial Court further demonstrates that it disbelieved the version of PW-7 Naganu Ram by holding that the description of the accident as well as trucks involved in the accident, including their registration numbers given by the said witness could not be believed as it stood proved on record that this witness was totally illiterate, who barely managed to put his signatures and he could neither write or read Hindi or English or could count beyond 50. Learned trial Court also held that in these circumstances, it was difficult to believe that this witness would have read the registration numbers of the trucks going towards Mandi side. Learned trial Court also took note of the fact that this witness had produced a slip Ex. D-3 at the time of his examination, on which registration number of the vehicle, i.e., HP-11-2207 was written and he had deposed that this number on the slip Ex. D-3 was written by complainant Tara Chand, who had told him that it was the first truck which was going towards Mandi. On these bases, learned trial Court disbelieved the version of this witness. It was also held by the learned trial Court that as the case in issue was a hit and run case, therefore, the Investigating Officer was required to be more vigilant and careful in conducting the investigation. On these bases, learned trial Court disbelieved the version of this witness. It was also held by the learned trial Court that as the case in issue was a hit and run case, therefore, the Investigating Officer was required to be more vigilant and careful in conducting the investigation. Learned trial Court held that as child was run over by a truck and was totally crushed and mutilated under the tyre(s) of the vehicle, it was possible that pieces of flesh, hair, clothes and stains of blood must have stuck on the tyre(s) of the offending vehicle, but the prosecution had failed to place any such material on record as, though the offending vehicle was impounded shortly, but seizure memo Ex. PW7/A of the vehicle in issue did not contain anything in this regard nor was there any observation of the Investigating Officer to this effect. On these bases, it was held by the learned trial Court that the prosecution had not produced any material on record to demonstrate that the vehicle which was being driven by the Accused was driven at Basta on the fateful day, which led to the death of Kumari Parwati. 5. Feeling aggrieved, the State has filed this Appeal. 6. I have heard the learned Deputy Advocate General and learned counsel for the Accused. I havealso carefully gone through the records of the case as well as the judgment passed by the learned trial Court. 7. It is indeed an unfortunate accident in which a six and half years old girl lost her life on account of road rage. Records demonstrate that in order to prove its case, the prosecution, in all, examined 10 witnesses. Two witnesses were examined by the defence. 8. Complainant Tara Chand entered the witness box as PW-1 and he deposed that on the fateful date, he was standing at his Dhabha, when two trucks came in high speed from Pandoh side and crushed a girl and drove away. He further deposed in the Court that the registration number of the truck which was in front was HP-11-2207. He further stated that the deceased was accompanied by two three small girls, who when he reached at the spot, informed him that the deceased was crushed by the truck which was in front. He further deposed in the Court that the registration number of the truck which was in front was HP-11-2207. He further stated that the deceased was accompanied by two three small girls, who when he reached at the spot, informed him that the deceased was crushed by the truck which was in front. In his cross-examination, he admitted that he reached the spot on hearing the noise and when he reached the place, the accident had already taken place. He further stated that it was only after he had given his statement that he came to know that the registration number of the vehicle which was in front was HP-11-2207. He also admitted it to be correct that the body of the deceased was lying in the middle of the road. In his crossexamination, he further deposed that he in fact reached the spot after about five minutes after hearing the noise. 9. PW-2 Poonam Devi, sister of the deceased, who was aged about 9 years, in her examination-in-chief stated that on the fateful date, she and deceased were going together when two trucks, which were racing with each other crushed the deceased and fled away. She further stated that number of the offending vehicle was HP-11-2207. In her cross-examination, this witness though admitted it to be correct that at the time of the accident, because of the speed of the offending vehicle, she could not note down the number of the truck, however, she further stated that number of the truck was disclosed to her by Tara Chand (PW-1). She also stated that on the day when she was deposing in the Court, the number of the truck was told to her by PW-1. 10. PW-3 Atma Ram deposed in the Court that on 07.06.2004, he was working in his house and when he heard noise, he came out and found that people were bringing his daughter Poonam to his house and on his asking, he was informed that his other daughter had been crushed to death by a truck. In his cross-examination, he stated that the accident had not occurred in his presence. 11. In his cross-examination, he stated that the accident had not occurred in his presence. 11. PW-4 Gopal stated that he used to run a hotel and on the fateful day, at around 12:30 noon, he was standing outside his hotel, when he saw a truck coming in high speed from Kullu side and in front of his Dhabha, the driver of the truck crushed a young girl, who died at the spot. He further deposed that the number of the vehicle was HP-112207, which was being driven by the Accused. In his cross-examination, he stated that the spot where the accident took place was 200 yards away from his house. He further stated that he did not remember the number of the offending vehicle, but the same was disclosed to him by Nagnu Ram. He also stated that when he reached the spot, Poonam told him that the truck which was in front had crushed the deceased. He also admitted it to be correct that when he reached the spot, Poonam had not disclosed to him the number of the offending vehicle. 12. Dr. K.S. Malhotra entered the witness box as PW-6 and he had proved on record the post mortem report of the deceased. 13. Nagnu Ram, who entered the witness box as PW-7, deposed that on the fateful day, at around 12:30 noon, truck bearing registration number HP-11-2207 came in high speed towards Mandi side and behind the said truck, there was one more truck. One small girl, who was a student of Class-1, was pressed under truck bearing registration number HP-11-2207, which crushed her. There was one more girl with the deceased, who disclosed nothing. The accident took place on account of rash and negligent driving of the driver of the truck bearing registration number HP-11-2207. He also stated that he had seen the truck driver and he identified him as the Accused. In his cross-examination, he stated that before him Tara Chand had reached the spot of accident. he further stated that truck bearing registration number HP-11-2207 was behind, i.e., about one curve behind. He also stated that he reached the spot five minutes after Tara Chand reached the spot. In his cross-examination, he also deposed that he was not aware that Tara Chand was running a Dhabha in the name and style of Lucky Dhabha. he further stated that truck bearing registration number HP-11-2207 was behind, i.e., about one curve behind. He also stated that he reached the spot five minutes after Tara Chand reached the spot. In his cross-examination, he also deposed that he was not aware that Tara Chand was running a Dhabha in the name and style of Lucky Dhabha. He also stated that he had himself noted down the number of the truck in his diary. He thereafter in his crossexamination stated that the number of the truck was disclosed to him by Tara Chand, who had reached the spot before him. He also stated that he was illiterate and it was with difficulty the he appended his signatures. He also stated that he has not written anything in his diary in his own handwriting, either in English or in Hindi. He also stated that he can count only up to 50. He also stated that on Ex.D-3, number of the truck was written by Tara Chand. 14. Investigating Officer entered the witness box as PW-10 and he deposed that on 07.06.2004, he was serving as Additional SHO in Police Station Sadar, Mandi, when at around 12:30 noon, a telephonic information was received about the occurrence of accident on National Highway 21, whereafter he alongwith Constable Param Dev, left for the spot. He further stated that at the spot, statement of Tara Chand was recorded under Section 154 of the Code of Criminal Procedure, on the basis of which, the FIR was lodged. He also stated that he took photographs of the spot and also sent the body of the deceased for post mortem. He also stated that thereafter, he impounded the truck in issue and the Accused was taken into custody. 15. In his defence, Accused examined DW-1 Roshan Lal and DW-2 Kuldeep Singh. 16. A perusal of the statements of the prosecution witnesses demonstrates that the prosecution has not placed on record any cogent evidence, from which it can be inferred that the deceased child was actually crushed under the tyre(s) of the truck, which was being driven by the Accused on account of his rash and negligent driving. Statements of the prosecution witnesses, including the minor sister of the deceased are not trustworthy. Statements of the prosecution witnesses, including the minor sister of the deceased are not trustworthy. The complainant through his deposition wants the Court to believe that he had witnessed the occurrence of the accident, but in the same breath, he has stated in the Court that he reached the spot after five minutes of the occurrence of the accident. This witness has also stated that it was only after he reached the spot that he came to know that the truck involved in the accident was HP-11-2207. Now, who informed him at the spot that it was truck bearing registration number HP-11-2207, which had crushed the child, has not been explained by him. PW-2 Poonam Devi, the sister of the deceased, in her crossexamination has stated that she did not take note of the number which crushed her young sister and further that the number of the truck was told to her by PW-1. 17. As far as the testimony of PW-4 Gopal is concerned, the same is also neither cogent nor trustworthy, because on one hand he has deposed in his examination-in-chief that he was an eye witness to the accident, whereas in his cross-examination, he has stated that the spot where the accident took place was about 200 yards away from his house and there was a 45curve in between and he did not remember the number of the truck and the number of the same was told to him by Nagnu Ram. Now, Nagnu Ram incidentally in his cross-examination has stated that PW-1 Tara Chand had reached the spot before him and he had reached five minutes after Tara Chand had reached there. Tara Chand himself has stated in the Court that he reached the spot after five minutes of the occurrence of the accident. In other words, this means that Nagnu Ram reached the spot after about 10 minutes of the occurrence of the accident. Now if Nagnu Ram reached the spot after about 10 minutes of the occurrence of the accident, then it is but obvious that PW-4 Gopal reached the spot thereafter only, because as per this witness because the number of the truck was disclosed to him by Nagnu Ram, therefore, obviously Nagnu Ram had reached the spot before him. 18. Now if Nagnu Ram reached the spot after about 10 minutes of the occurrence of the accident, then it is but obvious that PW-4 Gopal reached the spot thereafter only, because as per this witness because the number of the truck was disclosed to him by Nagnu Ram, therefore, obviously Nagnu Ram had reached the spot before him. 18. Now, if we peruse the statement of Nagnu Ram, who has entered the witness box as PW-7, his testimony is also not worth relying upon, because it has come in his statement that he is totally illiterate, who cannot count above 50 and who is neither conversant with Hindi language nor English language. His testimony in the Court that he had himself noted down the number of the vehicle in his diary is belied from the fact that further he has deposed in the Court that all the entries made in the diary were in the hand of his son and none of the entries were in his own handwriting. Not only this, he has stated in the Court that in Ex. D-3, number of the truck was written by Tara Chand. 19. As I have already mentioned above, this is a case where a young life was lost on account of rash and negligent driving on a National Highway, yet the Investigating Officer after impounding the truck, took no steps to collect evidence from the offending vehicle to connect the Accused with the offence. Learned trial Court has also taken note of the fact that as the child who died in the accident was crushed under the tyre(s) of the truck and her body was badly mutilated, Investigating Officer could have had easily collected evidence from the tyre(s) of the vehicle concerned to link the Accused with the commission of the offence, which unfortunately was not done. Findings so recorded by the learned trial Court are borne out from the records of the case. This Court fails to understand as to why no cogent effort in this regard was taken by the Investigating Officer after the truck was impounded. Result of the same is that material evidence, which could have linked the Accused with the commission of offence, has not been placed on record by the prosecution. This Court fails to understand as to why no cogent effort in this regard was taken by the Investigating Officer after the truck was impounded. Result of the same is that material evidence, which could have linked the Accused with the commission of offence, has not been placed on record by the prosecution. Therefore, in this background, when neither the statements of the prosecution witnesses prove beyond reasonable doubt that the unfortunate accident took place on account of rash and negligent driving of the Accused nor there is any material on record placed by the prosecution from which it can be inferred that the young child lost her life on account of rash and negligent driving of the Accused, no infirmity can be found with the judgment so passed by the learned trial Court which has acquitted the Accused for commission of offences punishable under Sections 279 and 304-A of the Indian Penal Code. 20. In view of the above, as there is no merit in this Appeal, the same is accordingly dismissed.