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2018 DIGILAW 1151 (HP)

State of H. P. v. Rajinder Kumar

2018-06-25

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed, against, the verdict, recorded, by the learned Judicial Magistrate, Court No. 4, Mandi, District Mandi, H.P. in Police Challan No. 224-1/04, of, 14.7.2008 whereby the learned trial Court hence acquitted the respondent (for short “accused”), for the offences charged. 2. Brief facts of the case are that 24.3.2004 at about 8.00 PM at NH near Banala, the accused was driving the Maruti Car bearing registration No. HP-58-0545 and was going towards Aut from Kullu and was also carrying one child with him. The Accused was driving the aforesaid Car in a rash and negligent manner and he came on the wrong side and hit jeep bearing registration No. HP-32-1823, as a result of which, he got stuck in the car and sustained injuries along with the child namely Paras. Thereafter, both of them were sent to RH Kullu for treatment and information was given telephonically to the police station on which HC Jaspan Singh and Constable Chander Mani reached on the spot and recorded the statement of the complainant Parveen Kumar under Section 154 Cr.P.C. Ext. PW1/A, on the basis of which FIR Ext. PW9/A was registered and endorsement of which is Ext. PW9/B. After inspection spot map Ext. PW9/C was prepared, photographs of spot Ext. PW9/D was taken, negatives of which is Ext. PW9/E. The jeep and the car were taken into possession vide memos Ext. PW2/A and and Ext. PW3/A and these were also got mechanically examined and reports Ext. PW5/A and Ext. PW5/B were obtained. MLC Ext. PW6/A and Ext. PW6/B were also obtained and it was found that the accused and the child who was sitting with him sustained simple as well as grievous injuries on their person. Statement of witnesses were recorded as per their versions. The accused was challaned accordingly. 3. Notice of accusation stood put to the accused, by the learned trial Court qua his committing offences punishable under Sections 279, 337, and, under Section 338 of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 10 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, he claimed false implication. However, he did not choose to lead any evidence in defence. 5. 4. In order to prove its case, the prosecution examined 10 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, he claimed false implication. However, he did not choose to lead any evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of acquittal qua the accused. 6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal, recorded by the learned trial Court, standing not based, on a proper appreciation of evidence on record, rather, theirs standing sequelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction, and, theirs being replaced by findings of conviction. 7. The learned counsel appearing for the respondent/accused has with considerable force and vigor contended qua the findings of acquittal recorded by the Court below, standing based, on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record. 9. The prosecution case is squarely anvilled, on, the testifications rendered, respectively by PWs 1, 2 and 4. The aforesaid ocular witnesses to the occurrence, in their respectively rendered testifications, deposed, with utmost inter-se corroborations, and, also in their respectively rendered testifications, borne, in their respective examinations-in-chief, and, in their respective crossexaminations each rendered, a, version qua the genesis, of the prosecution case, bereft of, any, gross embellishments or improvements, vis-à-vis, their previously recorded statements in writing. 10. Be that as it may, the learned trial Magistrate had contrarily not meted credence, vis-à-vis, their respectively rendered testifications, qua, the genesis of the occurrence, (i) merely on the ground, of, the learned defence counsel rather succeeding, in, establishing his apt espousal qua the flashing of light, at the relevant site, by the driver of jeep bearing No. HP-32-1823, hence deterring the accused to maneuver his vehicle, (ii) thereupon the collision interse the jeep, and, the car driven by the accused, being construable to not arise, from, any negligent manner, of, driving, of, the offending vehicle by the accused. However, in making the aforesaid conclusion, the learned trial Magistrate, has committed a gross mis-appreciation, of the evidence, on record, mis-appreciation whereof, is, constituted, by (a) the aforesaid suggestion meted, to, the PWs concerned rather standing negated by each of the prosecution witnesses, (b) the site plan borne in Ext. PW9/C, being proven by the Investigating Officer, who, stepped into the witness box, as PW-9, and, for shattering his credibility, the, learned defence counsel, omitting, to, mete any suggestions, for hence belying, all the recitals borne, in Ext. PW-9/C, (c) thereupon with the recitals borne, in Ext. PW- 9/C, unveiling qua the vehicle driven by the accused, hence occupying the inappropriate side of the road, hence the mere factum, of flashing light, by the complainant while his driving the jeep, and, hence its purportedly blinding the accused, and, concomitantly precluding him, to maneuver his vehicle, is rendered wholly unworthy. Furthermore, when PW-9 also remained rather unmeted any apposite suggestions, vis-à-vis, the portrayals, borne in site plan Ext. PW9/C, being a sequel, of, sheer concoction or the depiction(s), borne therein being incredible, arising from its preparation, occurring, even with the vehicles standing removed, from, the relevant site, thereupon the non meteing of the aforestated apposite suggestions, to PW-4, by the learned defence counsel, while holding him to crossexamination, rather reenforcingly bolster an inference, qua, the vehicle driven, by the accused hence occupying the inappropriate side of road, and, thereupon, the accused being negligent in driving, the, offending vehicle. 11. At this stage, the learned counsel appearing, for the accused contended with vigor, that with an echoing hence occurring in the cross-examination, of, PW-4 qua a steep gradient occurring on either side (i) of the relevant site, hence per-se, thereupon an inference being spurred, of, there being no penal negligence on the part of the accused. However, the aforesaid acquiesce(s), hence occurring, in the cross-examination, of PW-4, also cannot be capitalized by the counsel for the respondent, given, even if, on, either side, of, the site of occurrence, there visibly existing, a, steep gradient, yet with this Court, meteing credence to Ext. However, the aforesaid acquiesce(s), hence occurring, in the cross-examination, of PW-4, also cannot be capitalized by the counsel for the respondent, given, even if, on, either side, of, the site of occurrence, there visibly existing, a, steep gradient, yet with this Court, meteing credence to Ext. PW- 9/C, and, with the aforesaid site plan, vividly depicting, of, the vehicle driven by the accused, occurring, on, the inappropriate site of the road hence, (ii) thereupon with his being negligent, hence the factum, of existence of, a, steep gradient on either side, of, the site, of, occurrence, is, reiteratedly unworthy. Furthermore, the learned counsel for the accused has also contended with vigor, that with accused, and, his son alone suffering injuries, as borne, in the apt MLC(s), thereupon it being per-se inferable, qua, the driver of the offending vehicle, being not negligent in driving it. However, the, suffering of injuries by the accused, and, by his son, is likewise also rendered insignificant, and, also with no damage being caused to the vehicle driven by the complainant, is also insignificant, given, with the vehicle driven by the complainant, being bigger in size, than the vehicle driven by the accused, thereupon with there being every likelihood, of, upon their inter-se collision, rather damage hence being singularly caused, to, the vehicle driven by the accused. 12. The appreciation of the evidence as done by the learned trial Court, suffers, from an infirmity as well as perversity. Consequently, reinforcingly, it can be formidably concluded that the findings of the learned trial Court hence merit interference. Accordingly, the respondent/ accused stands convicted for the offence(s) punishable under Sections 279, 337 and 338 of the Indian Penal Code. Let the accused/convict be produced on 10.7.2018 before this Court for his being heard on the quantum of sentence. Records of the learned trial Court be sent back forthwith.