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Himachal Pradesh High Court · body

2018 DIGILAW 1633 (HP)

State of H. P. v. Hari Chand

2018-09-12

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed, against, the verdict, recorded, on, 17.2.2006, by the learned Chief Judicial Magistrate, Kinnaur District, Camp at Rampur Bushahr, H.P., upon, Criminal Case No. 442 of 2003, whereby the learned trial Court, hence, acquitted the respondent (for short “accused”), for, the offences charged. 2. Brief facts of the case are that complainant is a resident of village Seri, P.O. Sungri. She is studying in 10+1 and residing with her maternal uncle Sh. Pawan Thakur at Jagat Khana. Her nephew aged five years is studying in Kamla Memorial School, Shish Mehal. At about 9 A.M. she was going to leave her nephew to school. Two other children from the neighbour were also with her. When she was trying to cross the road near old post office alongwith the children a Bus No. HP062839 being driven by the accused came from the side of Busstand Rampur in a very high speed and hit a boy named Sahil and dragged him upto a distance of about 10-15 feet causing injuries to him. Thereafter the injured was brought to hospital by some one and she herself went towards Jagat Khana to inform the accident in question to her natural uncle. Thereafter, she reported the matter to the police through FIR Ext. PW1/A. Thereafter the injured was referred to IGMC Shimla where he succumbed to his injuries. After investigation, the accused was sent upto trial before the learned trial Court for the offences punishable under Sections 279, 337 and under Section 304A of IPC. 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 304A of the Indian Penal Code, whereto, he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 11 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 examined two witnesses in support of his defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of acquittal qua the accused. 6. 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 examined two witnesses in support of his 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. PW1, in her testification, borne in her examination-in-chief, has therein, made disclosures, bearing concurrence, with, her previous statement, recorded in writing, and, during the course of her cross-examination, by the learned defence counsel, she denied suggestions, (i) qua the offending vehicle being driven by the accused, at, a slow speed, (b) qua the minor deceased child, after, freeing himself from the clutches of his aunt, his, abruptly arriving at the middle of the road, (c) qua the driver, of, the offending vehicle being disabled, to sight, the abrupt arrival of the deceased minor child, at, the site of occurrence. Consequently, with the afore referred ocular witness to the occurrence, rather giving credence, vis-a-vis, her testifications borne, in, her examination-in-chief, thereupon, implicit reliance, is, enjoined to be meted thereto. 10. Consequently, with the afore referred ocular witness to the occurrence, rather giving credence, vis-a-vis, her testifications borne, in, her examination-in-chief, thereupon, implicit reliance, is, enjoined to be meted thereto. 10. Even, though, another ocular witness PW2, reneged, from his previous statement, recorded in writing, yet, after, an, apt opportunity, being granted to the learned APP concerned, for subjecting PW2 to cross-examination, (i) the learned APP concerned, during, the course of his holding him to cross-examination, succeded in eliciting from him, acquiescences qua the site of occurrence rather being visible from his shop, (b) the road whereat the occurrence took place or the site of occurrence hence being visible from both sides, (c) qua skid marks, upto, a distance of 10-15 feet, being available at the site of occurrence, (d) qua existence of skid marks, upto, a distance of 10-15 feet, being a sequel of the respondent/accused, suddenly applying, the, brakes hence upon the offending vehicle. The effect of the aforesaid acquiescences meted by PW2, during, the course of his being held, to, cross-examination, by the learned APP concerned, after, his being declared hostile is qua, the, respondent/accused, acquiescing qua (i) his driving the offending vehicle, at, a brazen speed (ii) and despite his holding, the, capacity, to, sight the sudden arrival, of, the minor deceased child, at the site of occurrence, his, apparent negligence, arising, from his driving the offending vehicle, at, a brazen speed, rather begetting, the, sequel of, the, minor child, being pulverized under the tyres, of, the offending bus. An immense impetus, vis-a-vis, the afore inference, qua his, apt capacity, to, sight the minor child, is, mobilized, from, the factum of existence, of, apt skid marks, upto a distance of 10-15 feet, rather standing concurrently testified, by PW1, and, by PW2 (a) AND, from, the site plan borne in Ext. PW7/B, and, from the photographs borne, in, Ext. PW5/1, to, Ext. PW5/6. PW7/B, and, from the photographs borne, in, Ext. PW5/1, to, Ext. PW5/6. The effect of the afore reared inferences is bolstered, (b) by the learned defence counsel, while, his holding, the, apt cross-examinations’, of, the Investigating Officer, and, of the photographer concerned, his thereat omitting to put apt suggestions, vis-a-vis, both (i) devolving, upon, no reliance being visited, upon the afore exhibits, (ii) given, theirs being fictitiously drawn, importantly, qua time of drawing(s) thereof, hence occurring at a stage, when the position of the offending vehicle stood disturbed or the vehicle rather being not available at the site of occurrence. 11. The learned counsel appearing, for the accused has depended, upon, occurrence, in, the cross-examination, of, PW2, apt, acquiescences, (i) qua, the minor deceased child, suddenly freeing himself, from, the clutches of his aunt, and, also, from, acquiescing, qua, the deceased minor child hence suddenly arriving at the site of occurrence, and, (b) hence he proceeds to contend, that, the respondent/accused rather held no capacity to sight, the, sudden arrival of the minor deceased child, at the site of occurrence. However, the aforesaid submission is not founded, upon, a, wholesome reading, of, the evidence, existing on record, and, it is also addressed by the learned counsel, for, the respondent/accused, his being unmindful, (c) qua the hereinabove inference, drawn, from the uneroded testification, of, PW1, and, of, PW2, (d) besides his being grossly unmindful, of, the fact qua, the, learned defence counsel, while, cross-examining, the, photographer, and, the investigating officer concerned, his omitting to put apt suggestions to both, qua, preparation of the site plan, and, clicking of photographs, not enjoying, the, apt vigor, (e) given theirs’ being fictitiously drawn, given, the position of the offending vehicle being disturbed. Contrarily, hence, with, the accused/respondent rather accepting, the, veracity, of, apt depictions’, borne in, the site plan, and, in the photographs, respectively, borne in Ext. PW7/B, and, in Ext. PW5/1, to, Ext. Contrarily, hence, with, the accused/respondent rather accepting, the, veracity, of, apt depictions’, borne in, the site plan, and, in the photographs, respectively, borne in Ext. PW7/B, and, in Ext. PW5/1, to, Ext. PW5/6, and, wherein, the, apt existence, of, skid marks, are, rather disclosed to occur at the relevant site, (f) thereupon, this court is constrained to conclude qua the existence of skid marks, being a sequel, of, unsuccessful application of brakes, by, the respondent/accused, (g) given his driving the offending vehicle, in a negligent manner, and, also, of, his despite sighting, the, abrupt arrival of the minor deceased child, at, the site of occurrence, his, yet negligently and brazenly hence driving the offending vehicle. 12. The fatal injuries sustained by the minor deceased child upon his body, in sequel to his being pulverized, under, the tyre(s) of the offending bus, stand, disclosed in the apt postmortem report, borne in Ext. PC, to, rather bear, the, apt concurrence, vis-a-vis the testifications of PW1, and, of, PW2 and, of, the Investigating Officer concerned, thereupon it is proven qua his committing, an, offence punishable under Section 304 of the Indian Penal Code. 13. The appreciation of the evidence as done by the learned trial Court, suffers, from, a, gross infirmity, as well as, a gross 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 304A, of, the Indian Penal Code. Let the accused/convict be produced on 31.10.2018, before, this Court for his being heard, on, the quantum of sentence. Records of the learned trial Court be sent back forthwith.