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Himachal Pradesh High Court · body

2018 DIGILAW 2092 (HP)

State Of H P v. Sneh Kumar

2018-11-27

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Instant criminal appeal filed under Section 378 of the Cr.PC., is directed against the impugned judgment of acquittal dated 18.3.2015, passed by the learned Additional Chief Judicial Magistrate, Kangra, District Kangra, H.P., in Cr. Case No. 101-II/2009, whereby the respondent-accused came to be acquitted of the notice of accusation under Sections 279 and 304-A of the IPC. 2. Briefly stated facts, as emerge from the record are that complainant Pritam Chand (PW1), in his statement recorded under Section 154 Cr.PC., alleged that on 20.2.2008, at about 11:30 a.m. when he was standing on the side of the road in front of the shop of Rasila Ram, at a place called Badai, a bus bearing No. HR-55C-8018, came in high speed and hit Salig Ram, as a consequence of which, he fell down and sustained injuries. Complainant specifically alleged that incident happened due to rash and negligent driving of the accused. Injured was referred to RPGMC, Tanda, but unfortunately he expired on his way to the hospital. On the basis of aforesaid statement, made by the complainant, FIR bearing No. 23 of 2008 dated 20.2.2008 (Ext.PW9/A) came to be registered against the accused. Police after completion of investigation presented challan in the competent court of law, who on being satisfied that prima-facie case exists against the respondent-accused, put notice of accusation to him under Sections 279 and 304-A, IPC, to which he pleaded not guilty and claimed trial. Prosecution with a view to prove its case examined as many as nine witnesses, whereas accused in his statement recorded under Section 311 Cr.PC denied the case of the prosecution in toto, however, he did not lead any evidence in his defence. 3. Learned trial Court on the basis of evidence adduced on record by the prosecution held the accused not guilty of having committed offences punishable under aforesaid provisions of law and accordingly, acquitted him vide judgment dated 18.3.2015. In the aforesaid background, being aggrieved and dis-satisfied with the aforesaid judgment of acquittal recorded by the court below, appellant-State has approached this Court by way of instant proceedings, seeking therein conviction of the respondentaccused after setting aside the judgment of acquittal recorded by the court below. 4. Having heard learned counsel for the parties and perused material available on record, this Court is not persuaded to agree with the contention of Mr. 4. Having heard learned counsel for the parties and perused material available on record, this Court is not persuaded to agree with the contention of Mr. Amit Dhumal, learned Deputy Advocate General that judgment of acquittal recorded by the court below is not based upon proper appreciation of evidence and law, rather this Court is fully convinced and satisfied that judgment passed by the court below is based upon proper appreciation of evidence and court below has dealt with each and every aspect of the matter meticulously and there is no scope of interference. Similarly, this Court is not inclined to agree with the contention of learned Deputy Advocate General that prosecution successfully proved beyond reasonable doubt that on the date of alleged incident, ill fated vehicle was being driven in high speed and in rash and negligent manner by the accused, rather evidence led on record by the proseuciton suggests that Victim Salig Ram after having seen the bus coming towards his side got panicked and jumped into the ravine/gorge, as a consequence of which, he sustained injuries. 5. In the case at hand both the material prosecution witnesses PW1 and PW2 have turned hostile. PW1 Pritam Singh, who is also a complainant, deposed that on the relevant day, deceased Salig Ram upon seeing a bus panicked and jumped beneath the road. Though, this witness was declared hostile, but in his cross-examination at length by the learned APP, prosecution was unable to extract something contrary to what he stated in his examination-in-chief. This witness specifically denied that bus had hit the deceased. He also denied his statement having given to the police as recorded. He also denied the suggestion put to him that he is deposing falsely to save the accused. In his cross-examination by the learned defence counsel, he admitted that the deceased would not have injured if he had not jumped beneath the road. He categorically admitted that there is no fault of the accused. 6. Pw2 Rangeela Ram stated that on the relevant day, the deceased Salig Ram got panicked after seeing the bus and jumped into the ravine/gorge. He was also declared hostile, but even cross-examination conducted at length on this witness by learned APP, nowhere reveals that prosecution was able to extract something contrary to what he stated in examination-in-chief. 6. Pw2 Rangeela Ram stated that on the relevant day, the deceased Salig Ram got panicked after seeing the bus and jumped into the ravine/gorge. He was also declared hostile, but even cross-examination conducted at length on this witness by learned APP, nowhere reveals that prosecution was able to extract something contrary to what he stated in examination-in-chief. He specifically denied the suggestion put to him that he is deposing falsely to save the accused. He also denied that bus had hit the deceased. He also denied that the accused was driving the bus rashly and negligently. In his cross-examination, this witness admitted that there was no fault of the accused. 7. Pw1 and PW2 are the only eye witnesses to the alleged incident but as has been taken note herein above, both of them have not supported the case of the prosecution. Other witnesses i.e. PW3, 4, 5 6 and 7 are not the witnesses of the spot, rather they reached the spot after having received the information from the complainant PW1 Pritam Singh. 8. Pw7 Dr. Ruby Bhardwaj, who had conducted medical examination of the injured Salig Ram and issued MLC Ext.PW7/A, admitted in her cross-examination that injury sustained by the deceased was possible by fall. 9. Pw8 Dr. Dinesh Mehta, conducted the postmortem of the deceased and submitted his post mortem report (Ext.PW8/A). He also admitted in his cross-examination that injures sustained by the deceasedinjured were possible by fall. 10. Pw9, HC Pritam Chand, who was the I.O. admitted that he had visited the spot and carried out investigation. but as has been taken note herein above, his statement may not be very relevant in view of the specific statements having been made by PW1 and PW2, because admittedly, he had no occasion to see the alleged incident with his eyes. In his crossexamination, PW9 admitted that there were number of shops at the spot, but he denied that accused was not at fault. 11. Needless to say, prosecution with a view to prove guilt, if any, of the accused, is required to prove its case beyond reasonable doubt but in the instant case, both the material prosecution witnesses, who allegedly had an occasion to see the incident through their eyes, have not supported the case of the prosecution. 11. Needless to say, prosecution with a view to prove guilt, if any, of the accused, is required to prove its case beyond reasonable doubt but in the instant case, both the material prosecution witnesses, who allegedly had an occasion to see the incident through their eyes, have not supported the case of the prosecution. Complainant Pritam Chand (PW1) has categorically stated that deceased with a view to save himself, jumped beneath the road resulting into fatal injuries to him, which statement of him, has been also corroborated by PW2 i.e. another eye witness. It has specifically come in the statement of aforesaid witnesses that there was no fault of the driver of the bus. Though there is medical evidence brought on record by the I.O. to prove that in the alleged incident, deceased had suffered injuries but there is no direct evidence to connect the accused with the alleged incident and as such, medical evidence has no relevance. 12. Since there were number of shops at the spot, as has been admitted by PW9 HC Pritam, it is not understood that why an attempt was not made by the Investigating Officer, to associate local witnesses at the spot, who could be material for determining the correctness and genuineness of the story put forth by the prosecution. 13. Leaving everything aside, there is no cogent and convincing evidence led on record by the prosecution to prove rashness and negligence of the accused while driving the vehicle. Nexus between alleged rashness and the injuries caused to the deceased has been not proved on record. Complainant Pritam Chand (PW1) has categorically deposed that deceased with a view to save himself, jumped into the gorge and due to fall on the stones, suffered fatal injuries. If so, by no stretch of imagination, rashness and negligence can be attributed to the accused. 14. Be that as it may, in the instant case, this Court was unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently that too at high speed, which led to the death of deceased Salig Ram. In this regard, reliance is placed on judgment rendered by the Hon''ble Apex Court in Braham Dass v. State of Himachal Pradesh , (2009) 3 SCC(Cri) 406, which reads as under:- "6. In this regard, reliance is placed on judgment rendered by the Hon''ble Apex Court in Braham Dass v. State of Himachal Pradesh , (2009) 3 SCC(Cri) 406, which reads as under:- "6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved." 15. The Hon''ble Apex Court in case titled " State of Karnataka v. Satish , (1998) 8 SCC 493 ", has also observed as under:- "1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and heard learned counsel for the parties. 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed." 16. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur. 17. The Hon''ble Apex Court in case titled Ravi Kapur versus State of Rajasthan , (2012) 9 SCC 284 , has held as under: "15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. 17. The Hon''ble Apex Court in case titled Ravi Kapur versus State of Rajasthan , (2012) 9 SCC 284 , has held as under: "15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of ''culpable rashness'' and ''culpable negligence'' into consideration in cases of road accidents. ''Culpable rashness'' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). ''Culpable negligence'' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person''s negligent conduct. [Ref. Justice Rajesh Tandon''s ''An Exhaustive Commentary on Motor Vehicles Act, 1988'' (First Edition, 2010]. 20. [Ref. Justice Rajesh Tandon''s ''An Exhaustive Commentary on Motor Vehicles Act, 1988'' (First Edition, 2010]. 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone''s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as : - The event would not have occurred but for someone''s negligence. - The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. - Accused was negligent and owed a duty of care towards the victim." 18. Reliance is also placed on judgment rendered by this Court in State of H.P. Vs. Manpreet Singh , (2008) 1 LatestHLJ 538, relevant para whereof is as under: "4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. Manpreet Singh , (2008) 1 LatestHLJ 538, relevant para whereof is as under: "4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn and he (deceased) stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on hearing the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial." 19. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon''ble Apex Court, this Court sees no reason to differ with the well reasoned judgment passed by the learned court below which appears to be based upon the proper appreciation of evidence adduced on record and the same is accordingly upheld. Consequently, the appeal is dismissed being devoid of any merits.