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2018 DIGILAW 1188 (HP)

State Of Himachal Pradesh v. Dhan Prakash

2018-06-29

AJAY MOHAN GOEL

body2018
JUDGMENT Ajay Mohan Goel, J. - By way of this appeal, State has challenged judgment, dated 11.03.2008, passed by the Court of learned Sessions Judge, Shimla in Criminal Appeal No. 48S/10 of 2007, vide which, learned Appellate Court, while allowing the appeal so filed by the present respondent, set aside the judgment dated 22.09.2007, passed by the learned Trial Court in Case No. 701 of 2005, whereby learned Trial Court had convicted the present respondent for commission of offences punishable under Sections 279,337,338 and 304A of the Indian Penal Code and sentenced him to undergo the following imprisonments: In case of failure to pay the fine, to further undergo simple imprisonment for one month. 2. The case of the prosecution was that on 14.11.2004 at around 12:05 pm., Medical Officer, Community Health Centre, Kotkhai, telephonically informed that four persons had been admitted, who had sustained injuries in an accident. On the basis of the said information, Rapat Ex. PW10/A was recorded. ASI Sukhdev Raj alongwith other police officers went to Community Health Centre, Kotkhai and there they recorded the statement of one Shri Udesh Chauhan under Section 154 of the Code of Criminal Procedure, on the basis of which, FIR Ex. PW10/B was registered against the accused. As per the complainant, on 14.11.2004, while he was proceedings in his vehicle bearing registration No. HP01A329 to his village Sheelghat at around 11:30 a.m., when his vehicle reached at place known as "Badvi Dhank" near Salyana, a Bolaro Camper bearing registration No. HP630137 coming from Rohru side collided with his vehicle, as a result of which, the vehicle of the complainant went off the road. The complainant was in the car alongwith his wife and children and the car went off the road alongwith all its occupants, as a result of which, the occupants sustained simple and grievous injuries. Pursuant to the lodging of the FIR, investigation was carried out, spot map was prepared, the offending vehicle was taken into consideration and the statements of the witnesses were recorded. Master Lakshay Kumar, who was injured in the course of the accident, died later on. His age was 5 years. Mechanical report of both the vehicles was obtained. Photographs of the spot were taken and the statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. 3. Master Lakshay Kumar, who was injured in the course of the accident, died later on. His age was 5 years. Mechanical report of both the vehicles was obtained. Photographs of the spot were taken and the statements of the witnesses were recorded under Section 161 of the Code of Criminal Procedure. 3. After completion of investigation, challan was filed and as a prima facie case was found against the accused, accordingly, Notice of Accusation was put to the accused under Sections 279,337,338 and 304 A of the Indian Penal Code, to which he pleaded not guilty and claimed trial. 4. Learned Trial Court vide judgment dated 22.09.2007 held that the prosecution had proved that it was rashness and over haste on the part of the accused, which resulted in the accident. Learned Trial Court also held that the vehicle of the accused was loaded and the speed of the vehicle was high. It further held that when the complainant stopped his vehicle on his side, the accused who was driving the offending vehicle should have had also applied the brakes well in time, but as a result of his not doing so in time, gross negligence stood committed by him, which caused the accident as also the death of young boy, besides causing grievous and simple injuries to the other occupants. On these basis, it was held by the learned Trial Court that the prosecution had established its case beyond reasonable doubt that the accused was driving his vehicle on the aforesaid date, time and place in a rash and negligent manner and he collided his vehicle with the vehicle of the complainant, due to which, vehicle of the complainant went off the road and caused death of young Lakshay and grievous injuries to the complainant and simple injuries to his wife. 5. Feeling aggrieved, accused filed an appeal before the learned Appellate Court. 6. Learned Appellate Court while allowing the appeal, set aside the judgment of conviction so passed by the learned Trial Court. Learned Appellate Court held that evidence including photographs of the spot demonstrated that the vehicle of the accused was on extreme left side, whereas the entire road on the right side was available to PW2, Udesh Chauhan to drive his vehicle. Learned Appellate Court held that evidence including photographs of the spot demonstrated that the vehicle of the accused was on extreme left side, whereas the entire road on the right side was available to PW2, Udesh Chauhan to drive his vehicle. It further held that it appeared that the complainant was driving the vehicle on the wrong side, which was apparent from evidence on record and it was on account of this reason that the vehicle of the complainant was hit by the vehicle being driven by the accused, which thereafter went off the road. While arriving at the said conclusion, learned Appellate Court relied upon site plan Ex. PW10/C. On the basis of the said site plan, learned appellate Court held that the same demonstrated that when the accident took place, the vehicle of the accused was on the extreme left side of the road. It was also held by the learned Appellate Court that it could not be said that it was the accused who was driving the vehicle rashly and negligently and he caused the accident. On these basis, learned Appellate Court set aside the judgment of conviction so passed against the accused by the learned Trial Court. 7. Feeling aggrieved, State has filed this appeal. 8. I have heard the learned counsel for the parties and have also gone through the judgments passed by the learned Appellate Court and learned Trial Court, as also the records of the case. 9. While arriving at the conclusion that the judgment of conviction passed by the learned Trial Court was not sustainable, learned Appellate Court has relied upon the photographs of the spot as also the site plan. Photograph of the offending vehicle is on record as Ex.P3. A perusal of the same indeed demonstrates that the offending vehicle was being driven on its left side. Site plan which is Ex. PW10/C also demonstrates that Bolero Camper was on its left side at the spot where the accident took place. A perusal of the evidence also demonstrates that independent witness PW5 Pradeep Kumar, who was in fact occupying the offending vehicle has not supported the case of the prosecution. Site plan which is Ex. PW10/C also demonstrates that Bolero Camper was on its left side at the spot where the accident took place. A perusal of the evidence also demonstrates that independent witness PW5 Pradeep Kumar, who was in fact occupying the offending vehicle has not supported the case of the prosecution. He was declared as a hostile witness and though he was subjected to crossexamination by the learned Public Prosecutor, however, nothing could elicited from the statement of the said witness to corroborate the case of the prosecution that the accident in fact took place on account of rash and negligent driving of the accused. 10. Pw2 Sh. Udesh Chauhan (complainant) has narrated the occurrence of the accident by stating that when the complainant saw the vehicle being driven by the accused in a rash manner, he, i.e., the complainant had stopped his car and despite this, the vehicle being driven by the accused was being driven so rashly and negligently that it hit the vehicle of the complainant, as a result of which, the vehicle of the complainant rolled down. 11. Incidentally, wife of the complainant, who deposed in the Court as PW3 also did not corroborate the case of the prosecution and she was declared as a hostile witness. She deposed in her examinationinchief that she though knew as to who was driving the offending vehicle, however, she could not say that accident took place on account of whose negligence. This witness was also, after being declared as hostile witness, was subjected to crossexamination by the learned Public Prosecutor, but nothing could be elicited from her statement to support the case of the prosecution. 12. A perusal of the judgment passed by the learned Appellate Court demonstrates that all these aspects of the matter were taken into consideration by the learned Appellate Court while setting aside the judgment passed by the learned Trial Court and holding that the accused was not guilty of the offences alleged against him. In my considered view, findings so returned by the learned Appellate Court are duly borne out from the records of the case and there is no infirmity in the same. The evidence so produced on record by the prosecution did not prove beyond any reasonable doubt that the accident in fact took place only on account of the rash and negligent driving on the part of the accused. The evidence so produced on record by the prosecution did not prove beyond any reasonable doubt that the accident in fact took place only on account of the rash and negligent driving on the part of the accused. It is settled principle of law that the prosecution has to be prove its case against the accused beyond reasonable doubt and if there is any doubt in the case of the prosecution, then the benefit has to go to the accused. 13. Coming to the facts of the present case, after holding on the basis of appreciation of the material on record that the prosecution had not been able to prove its case against the accused beyond reasonable doubt, learned Appellate Court set aside the judgment of conviction passed against the accused by the learned Trial Court. As I have already held above, the findings so returned by the learned Appellate Court are duly borne out from the records of the case. On the other hand, a perusal of the judgment dated 22.09.2007 passed by the learned Trial Court demonstrates that while holding that the accused was guilty of the offences alleged against him, learned Trial Court has not correctly appreciated the evidence on record and it has not construed the statements of the prosecution witnesses in its correct perspective. 14. Therefore, while concurring with the findings returned by the learned Appellate Court that on the basis of evidence on record, it could not be said that the prosecution had proved the case against the accused/respondent beyond reasonable doubt, this Court dismisses this appeal being devoid of any merit. The appeal stands disposed of.