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2018 DIGILAW 1 (HP)

State of Himachal Pradesh v. Santosh Kumar

2018-01-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal, under Section 378 of the Code of Criminal Procedure, has been maintained by the appellant-State of Himachal Pradesh, assailing the judgment of acquittal, dated 20.08.2008, passed by the learned Judicial Magistrate 1st Class (II), Dharamshala, District Kangra, H.P, in criminal case No. 83-1I/2005, under Sections 279, 337 and 338 of the Indian Penal Code and Section 187 of Motor Vehicles Act. 2. Briefly the facts giving rise to the present appeal as per the prosecution story are that on 28.08.2005, at about 07:30 p.m., Rahul Katoch/complainant (hereinafter to be called as “the complainant”) was going home, in the meantime, a private bus came there and the conductor side of the bus hit the complainant from back side, due to which he sustained injuries on his left leg and on the fingers of his left hand. As per the prosecution case, the accident took place due to rash and negligent driving by the driver of the bus and further instead of stopping the bus there, the driver of the bus fled away from the spot. However, the complainant managed to note down the name of the bus to be ‘Naresh Coach’. After the said accident, the complainant was taken to the Zonal Hospital, Dharamshala, where his statement, under Section 154 Cr. PC was got recorded. Thereafter Rukka was sent to Police Station, Dharamshala, on the basis of which, formal F.I.R. No. 220/05, under Sections 279, 337, 338 of IPC and 187 of Motor Vehicles Act was registered against the driver/accused (hereinafter to be called as “the accused”). During investigation spot map was prepared and MLC and Xray of the complainant were procured, the Medical Officer opined the injuries to be grievous in nature and, therefore, Section 338 IPC was added. Statements of the witnesses under section 161 Cr. PC were recorded and the bus was seized along with its documents. After completion of investigation, challan was presented before the Court. 3. Prosecution, in order to prove its case, examined as many as eight witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. After completion of investigation, challan was presented before the Court. 3. Prosecution, in order to prove its case, examined as many as eight witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. The learned trial Court, vide impugned judgment dated 20.08.2008, acquitted the accused for the commission of offences, punishable under Sections 279, 337 & 338 of IPC and Section 187 of the Motor Vehicles Act, hence the present appeal. 4. Learned Deputy Advocate General, appearing on behalf of the appellant/State has argued that the judgment of acquittal, passed by the learned trial Court is without appreciating the evidence to its true perspective and after re-appreciating the evidence correctly, the accused be convicted, as the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. On the other hand, learned counsel appearing on behalf of the accused/respondent has argued that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and, therefore, the well reasoned judgment of acquittal, passed by the learned trial Court needs no interference. 5. To appreciate the arguments of learned Law Officer and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 6. The prosecution in order to prove its case has examined Dr. Sushil Kumar and Dr. Arpana Sharma, as PWs 1 and 3, who have proved X-ray, Ext. PW-1/B and MLC, Ext. PW-3/A and opined the injuries to be grievous in nature. PW- 2, Lokesh Kumar, has proved seizure memo, Ext. PW-2/A. As per his version, the bus reached at Dharamshala at 7:05 p.m. and remains there for night. He has stated that on 28.08.2005 at 7:30 p.m. the bus was parked in the Bus Stand, Dharamshala. 7. PW-4, Pardeep Kumar, who witnessed the accident, has deposed that when the bus hit the complainant, he was present on the starting point of the bridge. As per this witness, there were two buses of Naresh Coach and the complainant was hit by first bus from the back. He has admitted that it was 7:30 p.m. and it was dark outside. As per this witness, there were two buses of Naresh Coach and the complainant was hit by first bus from the back. He has admitted that it was 7:30 p.m. and it was dark outside. He has further admitted that after hitting the complainant, the bus did not stop there, however he has deposed that when the bus hit the complainant, he saw the face of the driver. In his cross-examination, he has admitted that it was quite dark at that time and headlights of the vehicle were on. He has stated that the bus which hit the complainant was being followed by another bus and both the buses were at the distance of 2-2 ½ meters. He has admitted that at that time, the person could not be identified from a distance of 2-3 meters, due to darkness. 8. PW-5, Sohan Lal, who is stated to be another eye witness of the accident, has deposed that he runs a tea-stall near PWD Workshop and on 28.08.2005, at about 7:30 p.m., when he was outside his tea-stall, he saw two buses of Naresh Coach coming at a high speed and first bus hit the complainant in the middle of the road and went towards Dari. He has further deposed that the registration number of the bus was HP-39-6181. In his cross-examination, he admitted that his tea-stall is at a distance of 30 meters from PWD Workshop and Charan Khad Bridge. He has further admitted that it was quite dark at that time and there is no street light on the bridge. He has also admitted that due to darkness, the person could not be identified from a distance of 5 to 6 meters. However, he denied that due to darkness, he could not see the registration number of the bus. 9. PW-6, complainant Rahul Katoch, has deposed that on 28.05.2005, at about 7:30 p.m. he was going home and when he reached in the middle of old Charan Khad bridge, one bus, on which, Naresh Coach was written, came from backside and hit him on right shoulder, due to which he fell down on the railing and sustained injuries on his left hand and leg. Though, driver of the bus applied slight brakes on the curve and saw him from window, however he fled away from the spot. In his cross-examination, he denied that it was dark outside. Though, driver of the bus applied slight brakes on the curve and saw him from window, however he fled away from the spot. In his cross-examination, he denied that it was dark outside. He has admitted that when the bus hit him his face was towards Palampur and bus was also going towards the same direction. He has deposed that gate of PWD Workshop is at a distance of 12 meters from the bridge. 10. PW-8, S.I. Jasbir Singh, has conducted the investigation of the case and deposed regarding investigation proceedings. In his cross-examination, he denied that the spot map, Ext. PW-8/E is not according to factual position on the spot. He has further denied that the alleged bus was seized after three days on the basis of suspicion. Statement of another witness, PW-7, HHC Shyam Lal is formal in nature, hence not required to be discussed. 11. After analyzing the evidence which has come on record, it is clear that at the place of accident, there were two buses of Naresh Coach and as per the statement of complainant, he was hit by first bus from backside. Now coming to the statement of PW-4 that after hitting the complainant, the bus did not stop, but he stated that he saw the face of the driver, this statement does not appear to be true, as he was standing on the beginning of the bridge and the complainant was hit in the middle of the bridge and, therefore, it was not possible for him to see the face of the driver. Further the bus, which hit the complainant, was being followed by another bus and both the buses were at a distance of 2-2 ½ meters from each other, thus his statement that he noted down the registration number of the bus, also does not appear to be convincing, as there was another bus behind the first bus. PW-4 and PW-5 have also admitted that it was quite dark outside and person could not be identified from the distance of even 2 to 3 meters, so it is difficult to believe that these witnesses noted down the registration number of the bus and saw the face of the driver. PW-4 and PW-5 have also admitted that it was quite dark outside and person could not be identified from the distance of even 2 to 3 meters, so it is difficult to believe that these witnesses noted down the registration number of the bus and saw the face of the driver. The complainant in his cross-examination has admitted that Naresh Coach was written on the front window of the bus, but as the bus hit him from the backside, as admitted by him, it was impossible for him to read the name of the bus from the backside of the bus, when it was dark outside. 12. After taking into consideration the evidence, which has come on record and testimonies of the witnesses, even after re-appreciating the evidence, this Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and the well reasoned judgment of acquittal, passed by the learned trial Court, needs no interference. 13. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. 14. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 15. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal : “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 16. In view of the aforesaid decisions of the Hon’ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same deserves dismissal and is accordingly dismissed. Pending applications, if any, shall also stands disposed of.