Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1925 (HP)

State Of Himachal Pradesh v. Naresh

2018-11-02

VIVEK SINGH THAKUR

body2018
JUDGMENT Vivek Singh Thakur, J. - This appeal has been preferred against acquittal of the respondent pronounced vide judgment dated 21.6.2011 in criminal case No.16-II/2006 by learned Judicial Magistrate 1st Class, Kangra (hereinafter referred to as the trial Court) in case FIR No. 348 of 2005 dated 18.9.2005 under Sections 279 and 304-A IPC read with Section 187 of Motor Vehicles Act registered in P.S. Kangra (H.P.) 2. I have heard learned counsel for the parties and I have also gone through the record. 3. Brief case of the prosecution is that on 18.9.2005, at about 6/7 PM, deceased Lucky was hit by respondent Naresh by driving jeep No. HP-68-1072 rash and negligent manner, causing injuries to Lucky resulting into his death in Civil Hospital, Dharamshala. 4. Investigation was set in motion on the basis of statement of PW1 Hari Chand, recorded under Section 154 Cr.P.C., wherein he had stated that on 18.9.2005 at about 7 PM when he was present in his house, he heard a noise of collusion of some vehicle, whereupon he rushed to the road and saw a boy aged about 12-14 years, namely Lucky son of Joginder Singh, lying in injured condition on the road and blood was oozing out from his mouth. A white coloured jeep typed vehicle, but without registration number, had also dropped at a some distance from the injured boy, whose driver, after noticing the people coming on the spot, drove it towards Sheela Chowk Dharamshala with high speed and despite chasing by him along with other villagers on motor cycle, he could not be traced and on reaching back on the spot, he found that villagers and parents of boy had shifted him to Dharamshala hospital in a taxi for treatment and later on, he came to know that the said boy had expired. 5. During investigation, postmortem of deceased was obtained, spot map Ext.PW9/B was prepared, statements of witnesses were recorded, jeep No. HP-68- 1072 along with its documents i.e. RC and insurance was seized and on completion of investigation and on finding prima facie complicity of accused in commission of offence, challan was presented in Court. On conclusion of trial, the trial Court has acquitted the respondent, hence appeal. 6. Prosecution examined nine witnesses to prove its case. After recording statement under Section 313 Cr.P.C., respondent did not lead any evidence in defence. 7. On conclusion of trial, the trial Court has acquitted the respondent, hence appeal. 6. Prosecution examined nine witnesses to prove its case. After recording statement under Section 313 Cr.P.C., respondent did not lead any evidence in defence. 7. Pw1 Hari Chand, in his deposition in Court, has endorsed his statement Ext.PW1/A recorded under Section 154 Cr.P.C., on the basis of which, FIR Ext.PW9/A was registered. However, he is silent about identification of the driver of vehicle involved in accident. In his statement Ext.PW1/A, he had stated that after hearing the sound of collusion of vehicle, he had come out and had seen the deceased Lucky lying on the road and had noticed a without registration number jeep like vehicle stopped there at some distance from injured. Whereas, in the Court, he has deposed that at the time of accident, a jeep coming in high speed had hit a boy standing in front of his house causing the fall of boy on the road resulting into injuries on his person. As per Ext.PW1/A, he had not witness the occurrence, whereas as per his deposition in Court, he had seen the accident. There is material improvement in examination-in-chief. In his cross examination, he has stated that at that time, he was coming from work place and in later part of cross examination, he has stated that at the time of accident, he was inside the house and had arrived on the spot after 10 minutes of incident. He has admitted that what he had stated in Court was tutored by the Advocate to him outside the Court with instruction that he had to depose like that only. Therefore, this witness is not reliable. More so this witness has never stated that accident had taken place on account of rash and negligent driving of vehicle involved in accident and also he is silent about identity of driver. As per deposition of PW1, the driver of jeep had run from spot and could not be noticed by him. 8. Pw2, as a spot witness, has deposed that jeep involved in accident was being driven by accused person. He is father of the victim and by profession he is running his tailor shop in village Gagli. He has not clarified that where was he at the time of accident and from where he had noticed the accident. 8. Pw2, as a spot witness, has deposed that jeep involved in accident was being driven by accused person. He is father of the victim and by profession he is running his tailor shop in village Gagli. He has not clarified that where was he at the time of accident and from where he had noticed the accident. Prosecution evidence is completely silent about location of shop of this witness and circumstance to establish his presence on the spot or at such a location where from accident was visible. Though, he is father of deceased and according to him, he was present on spot and had taken his injured son to hospital, but his statement was not recorded till 31.10.2005 despite the fact that this witness is claiming himself as a prime spot witness. 9. Further, PW3 Parveen Kumar is also claiming himself to be present on spot. He, in his deposition in Court, has stated that he had taken injured boy from spot to the hospital. He is completely silent about presence of PW2, father of deceased Lucky, rather he has claimed that it was he who had taken the boy to hospital. He is also resident of the same village, but his statement was also recorded after a sufficient gap from the date of accident i.e. on 31.10.2005. He has also stated that accused present in Court was driving the vehicle in question in rash and negligent manner causing the accident. There is discrepancy in the statements of PW2 and PW3. Each one in both has asserted his individual presence on the spot without acknowledging the presence of another. PW3 has claimed that he had taken the boy to hospital, whereas PW2 has claimed that he had taken the boy to hospital. PW3 has stated that vehicle involved in accident was bearing No. HP68-1072, whereas PW1 in FIR has stated that jeep like vehicle stopped near the spot was without registration number. 10. It has come in evidence of PW6 Khera Ram (owner of vehicle) as well as PW9 HC Ramesh Kumar that registration number HP-68-1072 was allotted for the vehicle on 27.4.2005, whereas the accident had taken place on 18.9.2005. The said jeep, by which accident was alleged to have taken place, was not a vehicle without number i.e. a vehicle for which registration number had been applied. 11. The said jeep, by which accident was alleged to have taken place, was not a vehicle without number i.e. a vehicle for which registration number had been applied. 11. One of the facts required to be proved for establishing guilt of respondent is about identity of vehicle and its driver. At the time of accident either jeep involved was bearing No. HP-68-1072 or it was without number. PW1 in his statement, Ext.PW1/A, has claimed that it was without number whereas other spot witnesses have claimed that it was bearing registration number. In his deposition in Court, PW1 is silent about it. PW2, father of victim, is also silent about it. Therefore, veracity of prosecution claim on this count is also under cloud. 12. Pw4 Kuldeep is a formal witness in whose presence vehicle No. HP-68-1072 along with documents was taken in possession vide memo Ext.PW4/A is also resident of village Gagli. He is also a neighbourer of PW2 Joginder. In his cross examination, while denying the suggestion that accident had not taken place, he has claimed himself as an eye witness. However in examination in chief he is completely silent about witnessing the occurrence. Prosecution has also not cited him as a spot witness. Therefore deposition of this witness also creates further doubt that witnesses hailing village of victim i.e. Gagli were inclined to support prosecution out of the way which again renders prosecution case under suspicion. 13. Pw5 Dr. D.P. Swami has conducted the postmortem of deceased. Death of deceased in an accident has not been disputed. PW7, on receiving the information about accident, had recorded rapat No. 10 dated 18.9.2005 in P.P. Gagal, copy whereof Ext.PW7/A, has been proved through this witness. These witnesses have proved the documents corroborating the accident causing death of victim, but not involvement or commission of offence by respondent. 14. Pw6, owner of jeep, has admitted ownership of jeep No. HP-68-1072, but he has further stated that he had three jeeps and he had deployed 3-4 drivers thereon and jeep bearing No. HP-68-1072 was registered well before 18.9.2005. He has expressed his ignorance about driver who was driving the vehicle No. HP-68-1072 on the date of accident. 15. Pw8 Jagdish Chand, a photographer, had taken the photographs of spot. He is not an eye witness nor he has deposed anything adverse to the respondent. 16. He has expressed his ignorance about driver who was driving the vehicle No. HP-68-1072 on the date of accident. 15. Pw8 Jagdish Chand, a photographer, had taken the photographs of spot. He is not an eye witness nor he has deposed anything adverse to the respondent. 16. Pw9 HC Ramesh Kumar, who is Investigating Officer, has simply stated that he recorded the statement of Hari Chand Ext.PW1/A as deposed by him and on the basis of which, FIR Ext.PW9/A was registered and he prepared spot map Ext.PW9/B and received the postmortem Ext.PA and seized the Bolero HP-68-1072 along with documents vide memo Ext.PW4/A. In cross examination, he has admitted that in FIR, there is reference of vehicle without registration number but he has further stated that witnesses had identified the vehicle HP-68-1072 in Police Chowki and had disclosed the number of vehicle. He is totally silent about the evidence and from which involvement of vehicle No. HP-68-1072 came in his knowledge and/or respondent was driver of the said vehicle and was found to have involved in accident. 17. As evident from statements of spot witnesses as well as Investigating Officer, the respondent has been prosecuted on the basis of suspicion only. There is no link evidence available on record so as to connect the vehicle with accident and also to establish identity of respondent and his involvement in the accident in question. Further, statement of PW1 that he was tutored, outside the Court, by Advocate has created serious doubt about veracity of prosecution witnesses. Therefore, evidence on record is not sufficient to convict the respondent/accused. 18. Respondent is also having advantage of being acquitted by the trial Court fortifying the presumption of innocence in his favour, which was required to be rebutted by prosecution by pointing out cogent and reliable evidence for proving the prosecution story beyond reasonable doubt. On scrutiny of evidence, prosecution is not found to be able to rebut the presumption of innocence of respondent. Learned trial Court has appreciated the evidence completely and correctly and it cannot be said that acquittal of respondent has caused travesty of justice and resulted into miscarriage of justice. There is no perversity in findings returned by the trial Court. 19. As no ground for interference is made out, present appeal is dismissed. Bail/surety bonds furnished by respondent/accused and surety are discharged. Record of the Courts below be sent back.