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2018 DIGILAW 372 (HP)

State Of Himachal Pradesh v. Gautam Singh

2018-03-16

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Being aggrieved and dissatisfied with the judgment of acquittal dated 30.04.2016, recorded by the learned Additional Chief Judicial Magistrate Kangra, District Kangra, Himachal Pradesh, in Criminal Case No. 50-II/2010, whereby respondent-accused (hereinafter referred to ''accused'') came to be acquitted of the notice of accusation put to him for having committed offences punishable under Sections 279 and 337 of the Indian Penal Code and Section 181 of the Motor Vehicles Act, appellant-State has approached this Court by way of instant appeal, seeking therein conviction of accused for having committed aforesaid offences under aforesaid provisions of law, after setting aside the judgment of acquittal. 2. Necessary facts, as emerge from the record are that complainant namely Paras Ram(PW-1) in his statement recorded under Section 154 of Code of Criminal Procedure, alleged that at about 6:35 PM, when he was driving bus bearing No.HP-68-1522, Motorcycle bearing No. HP-39-A-9059 being driven by the accused collided with back bumper of the bus, thereafter motorcycle struck against a tree standing on the side of the road, as a consequence of which, accused and pillion rider suffered injuries. Since the respondent-accused and pillion rider had suffered injuries due to the collision, he alongwith conductor (PW-2) took them to the hospital for medical aid. The complainant specifically alleged that the accident took place due to rash and negligent driving on the part of the respondentaccused, who at the relevant time was driving the motorcycle mentioned hereinabove. On the basis of aforesaid report, a formal FIR, exhibit PW-1/B came to be registered against the respondent-accused. After completion of investigation, police presented the challan in the competent Court of law. 3. Learned trial Court after satisfying itself that prima facie case exists against the accused, put notice of accusation under Sections 279 and 337 of IPC and Section 181 of the Motor Vehicles Act, 1988, against the accused, to which he pleaded not guilty and claimed trial. 4. Subsequently, learned trial Court on the basis of evidence collected on record by the prosecution, held accused not guilty of having committed offences punishable under Sections 279 and 337 of IPC and Section 181 of the Motor Vehicles Act, 1988, and accordingly acquitted him. In the aforesaid background, appellant-State has approached this Court by way of instant appeal, praying therein for conviction of accused, after setting aside judgment of acquittal recorded by the learned trial Court. 5. Mr. In the aforesaid background, appellant-State has approached this Court by way of instant appeal, praying therein for conviction of accused, after setting aside judgment of acquittal recorded by the learned trial Court. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while referring to the judgment of acquittal recorded by the learned Court below, vehemently argued that the impugned judgment is not sustainable in the eye of law as the same is not based upon the proper appreciation of the evidence and as such, same deserves to be quashed and set aside. Learned Additional Advocate General, further contended that close scrutiny of the evidence adduced on record by the prosecution would go to show that the prosecution successfully proved its case beyond reasonable doubt. Learned Additional Advocate General further contended that bare perusal of the impugned judgment, clearly suggests that the learned Court below has not appreciated the evidence in its right perspective, as a consequence of which, erroneous findings have come on record. 6. With a view to substantiate the aforesaid arguments, learned Additional Advocate General made this Court to go through the statements of the prosecution witnesses i.e. PW-1 and PW-2, to demonstrate that prosecution proved its case beyond reasonable doubt that motorcycle No. HP39-A-9059, was being driven rashly and negligently by the respondent-accused, who after having lost control of the motorcycle, struck the same with the back bumper of the bus and as such, there was no scope left for the Court below to acquit the respondent-accused. He further contended that perusal of photographs placed on record as Exs. PW-4/A-1 to PW-4/A-5 further corroborate the version put forth by material prosecution witnesses PW-1 and PW-2 and as such, judgment of acquittal recorded by the learned Court below deserves to be quashed and set aside being contrary to the evidence led on record by the prosecution. Lastly, learned Additional Advocate General, contented that if statements having been made by the prosecution witnesses are read in their entirety, same clearly suggests that there is mis-reading, mis-appreciation and mis-construction of evidence by the learned court below while ascertaining guilt of respondent-accused. With the aforesaid submissions, learned Additional Advocate General prayed for conviction of the respondent-accused, after setting aside judgment of acquittal passed by the learned court below. 7. With the aforesaid submissions, learned Additional Advocate General prayed for conviction of the respondent-accused, after setting aside judgment of acquittal passed by the learned court below. 7. Per contra, Shri H.S. Rangra, learned counsel for respondent-accused supported the impugned judgment passed by the learned Court below and vehemently argued that there is no illegality and perversity in the judgment passed by learned trial Court and as such, same deserves to be upheld. While refuting aforesaid contentions having been made by the learned Additional Advocate General, Mr. Rangra, contended that bare perusal of the statements having been made by the prosecution witnesses, nowhere suggest that the prosecution proved its case beyond reasonable doubt, rather, no much reliance could be placed upon the version put forth by the prosecution witnesses, who have nowhere supported the prosecution story. Learned counsel for respondent-accused further stated that there are material contradictions and inconsistencies in the statements of PW-1 and PW-2, with regard to collision of the offending vehicle with the bus being driven by PW-1, i.e. Complainant Paras Ram, as such learned Court below rightly acquitted respondent-accused of the charges framed against him. While referring to the statement of PW-8 Shiv Charan, learned counsel for respondent-accused contended that he has totally demolished the case of the prosecution by stating that front indicator of the bus got damaged in the accident because as per prosecution story, offending motorcycle driven by the respondent-accused was dashed against the back bumper of HRTC bus. Lastly, Mr. Rangra contended that even otherwise perusal of evidence adduced on record by the prosecution, nowhere suggests that any specific evidence was led on record to prove rash and negligent driving on the part of the respondent-accused and as such, there is no illegality or perversity in the judgment recorded by the learned Court below, which is liable to be upheld. 8. I have heard the learned counsel for the parties and have gone through the record carefully. 9. Having carefully perused evidence adduced on record by the prosecution, this court is not inclined to agree with the contention of Mr. Dinesh Tahkur, learned Additional Advocate General that there is misreading, mis-appreciation and mis-construction of evidence, rather, this court is convinced and satisfied that prosecution has been not able to prove its case beyond reasonable doubt that on the alleged date of incident, offending vehicle was being driven rashly and negligently by the respondent-accused. Dinesh Tahkur, learned Additional Advocate General that there is misreading, mis-appreciation and mis-construction of evidence, rather, this court is convinced and satisfied that prosecution has been not able to prove its case beyond reasonable doubt that on the alleged date of incident, offending vehicle was being driven rashly and negligently by the respondent-accused. PW-1 Paras Ram complainant, in his statement stated that on 12.06.2002 at about 6.35 PM, near Mastpur Pipe Factory, motorcycle being driven by the respondent-accused, came from Chetru side and hit the back bumper of the bus driven by him. He also stated that thereafter motorcycle hit a tree, as a consequence of which respondent-accused and the pillion rider suffered injuries. Interestingly, in his cross examination, he admitted that he had stopped the bus in the centre of road. PW-2 Yashpal, conductor of HRTC bus, also stated that on the relevant day, motorcycle being driven rashly and negligently by the respondent-accused collided with a tree, resulting in injuries being caused to him and pillion rider. Interestingly, this witness nowhere supported the version of PW-1 stated that at the first instance, motorcycle being driven by the respondent-accused hit the HRTC bus. In his cross examination, he admitted the suggestions put to him that there were number of houses and shops near the spot of the accident. 10. By now it is well settled that in a criminal trial evidence of eyewitness requires careful assessment and needs to be evaluated for its creditability. Hon''ble Apex Court has repeatedly held that since fundamental aspect of criminal jurisprudence rests upon well established principle that "no man is guilty until proved so", utmost caution is required to be exercised in dealing with the situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. Most importantly, Hon''ble Apex Court has held that there must be a string that should join the evidence of all the witnesses thereby satisfying the test of consistency in evidence amongst all the witnesses. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon''ble Apex Court in C. Magesh and others versus State of Karnataka , (2010) 5 SCC 645 , wherein it has been held as under:- "45. In nutshell, it can be said that evidence in criminal cases needs to be evaluated on touchstone of consistency. In this regard, reliance is placed upon the judgment passed by Hon''ble Apex Court in C. Magesh and others versus State of Karnataka , (2010) 5 SCC 645 , wherein it has been held as under:- "45. It may be mentioned herein that in criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Needless to emphasis, consistency is the keyword for upholding the conviction of an accused. In this regard it is to be noted that this Court in the case titled Surja Singh v. State of U. P. , (2008) 16 SCC 686 :-( SCC p.704, para 14) "14. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witness is held to be creditworthy; ..the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation." In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that " no man is guilty until proven so, " hence utmost caution is required to be exercised in dealing with situation where there are multiple testimonies and equally large number of witnesses testifying before the Court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistence in evidence amongst all the witnesses." 11. Conjoint reading of statements of aforesaid material prosecution witnesses render story of prosecution unbelievable and unreliable as there are material contradictions and inconsistencies as has been taken note hereinabove. Statement of PW-1, who in his statement stated that the motorcycle being driven by the respondent-accused at the first instance struck against the bumper of HRTC bus, which was standing in the centre of the road is totally contrary to the statement of PW-2 conductor of HRTC bus, who nowhere supported the aforesaid version put forth by PW1. He categorically stated that accused lost control of the motorcycle and hit the same with a tree, as a consequence of which, he alongwith pillion rider suffered injuries. He categorically stated that accused lost control of the motorcycle and hit the same with a tree, as a consequence of which, he alongwith pillion rider suffered injuries. PW-5 Nishant pillion rider stated that he alongwith accused had parked the motorcycle on the side of the road at the relevant time due to mechanical defect and bus had hit the stationary motorcycle at the relevant point of time. However, the aforesaid witness, who turned hostile, was cross-examined by the Assistant Public Prosecutor, but even at the time of crossexamination by learned APP, nothing could be elicited contrary to what he stated in examination-in-chief. In crossexamination by the learned APP, aforesaid witness denied that motorcycle hit the bumper of the bus. PW-8, Shiv Charan, a retired constable, deposed before Court that the vehicle in question was got mechanically examined and he also submitted mechanical report Ex. PW-8/A and Ex. PW-8/B, respectively. In his cross-examination, he admitted that mechanical examination of the bus was conducted in a private workshop that the front indicator of the bus had been damaged in the accident. If the version put forth by PW-5 and PW-8 are read juxtaposing statements of PW-1 and PW-2, there appears to be considerable variance in their versions and as such, no much reliance could be placed on the version put forth by these witnesses. There are material contradictions and inconsistencies in the statements of aforesaid four prosecution witnesses, especially with regard to alleged striking of offending motorcycle with the back bumper of HRTC bus. Similarly, this Court finds from the record that prosecution has failed to prove rash and negligent driving, if any, on the part of accused and as such, learned Court below rightly acquitted the accused under Sections 279 and 337 IPC. 12. Needless to say, for the purpose of criminal law, a high degree of evidence is required before felony is established. Merely because accident took place, it can not be presumed that there was negligence on the part of driver. Act of driving must be grossly rash and negligent to such an extent that reasonable inference can be drawn about the same likely to endanger human life or cause hurt or injury to another person. 13. Merely because accident took place, it can not be presumed that there was negligence on the part of driver. Act of driving must be grossly rash and negligent to such an extent that reasonable inference can be drawn about the same likely to endanger human life or cause hurt or injury to another person. 13. By now, it is well settled that specific evidence is required to be adduced on record by prosecution to prove rash and negligent driving, if any, on the part of the accused. Mere allegations are not sufficient to hold accused guilty of having committed offence punishable under Section 279 IPC. 14. At this stage, reliance is placed on judgment rendered by our own High Court in case titled Akshay Kumar v. State of HP , (2009) 1 LatestHLJ 72 (HP) , relevant para of which reads as under:- "8. In fact, an injury shall be deemed to be negligently caused whomsoever it is willfully caused, but results from want of reasonable caution, in the undertaking and doing of any act either without such skill, knowledge or ability as is suitable to consequences of such act, or when it results from the not exercising reasonable manner of using them or from the doing of any act without using reasonable caution for the prevention of mischief, of from the omitting to do any act which is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without an intention to cause injury or knowledge that it will be probably caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Rash and negligent act may be described as criminal rashness negligence. It must be more than mere carelessness or error of judgment." The courts below did not appreciate the above facts that there was debris on the side of the road on the curve due to the slip, while negotiating the curve, as stated above, some witnesses have admitted that the danga gave way to the bus which caused the accident and the rash and negligent driving by the petitioner is also denied, therefore, it find that the findings of quilt arrived at against the petitioner by both the courts below were not based upon legal and proper appreciation of evidence. In the circumstances aforesaid, the petitioner cannot be said to have criminal rashness or negligence, thus he is entitled for the benefit of doubt as two views were deducible from the evidence on record." 15. Reliance is placed upon judgment of this Court in Gurcharan Singh versus State of Himachal Pradesh , (1990) ACJ 598, relevant paragraphs of which are reproduced here-in-below:- "14. Adverting to the facts of this case, it is in evidence that the truck in question was loaded with fertilizer weighing 90 quintals. Obviously, it cannot be said that the speed of the vehicle was very fast. Secondly, it is a State Highway and not a National Highway. Therefore, the speed on this account as well cannot be considered to be high. "15. Coming to the statements of witnesses on this aspect, it has been stated that the truck was moving in high speed but it has not been said as to what that speed actually was. To say that a vehicle was moving in a high speed is neither a proper and legal evidence on high speed nor in any way indicates thereby the rashness on the part of the driver. The prosecution should have been exact on this aspect as speed of the vehicle is an essential point to be seen and proved in a case under Section 304-A of the Indian Penal Code. Further, there are no skid marks which eliminate the evidence of high speed of the vehicle. In addition to this, it has been stated by the witnesses that the vehicle stopped at a distance of 50 feet from the place of accident. This appears to be exaggerated. However, it is not a long distance looking to the two points; viz, the first impact of the accident and the last tyres of the vehicle and the total length of the body of the truck in question. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. The version of the petitioner that he blew the horn near about the place of curve which frightened the child, cannot be considered to be without substance. If seen from these angles, the distance stated by the witnesses cannot be considered to be very long and thus an indication of high speed. The version of the petitioner that he blew the horn near about the place of curve which frightened the child, cannot be considered to be without substance. This can otherwise be reasonably inferred that the petitioner would have blown the horn on seeing the child on the road as it is in evidence that the child had come on the pucca portion of the road while there is no evidence as to whether the witnesses, more particularly, Ghanshyam, PW7, Chander Kanta, PW8, mother, and a few other witnesses were there at that particular time. Rather the depositions of these witnesses indicate that they were coming from some village lane which was joining the main road in question. Children of this age, usually crafty by temperament, move faster than the parents and are in advance of them while walking. This appears to have happened in the present case. Minute examination of the circumstances of this case and the evidence brought on the record, discloses that the deceased had reached the pucca portion of the road much before the arrival of his parents and the witnesses. That is why in their deposition they have said that the child had been run over by the truck. On the other hand, the petitioner has stated that horn by him and started crossing the road which could not be seen by him and the result was the accident and the death of the child. In case some pedestrians suddenly cross a road, the driver of the vehicle cannot save the pedestrian, however slow he may be driving the vehicle. In such a situation he cannot be held negligent; rather it appears that the parents of the child were negligent in not taking proper care of the child and allowed him to come alone to the road while they were somewhere behind and they could have rushed to pull back the child before the approaching vehicle came in contact with him as it is in their depositions that the truck driver was at a distance coming at a high speed and in case the child wanted to cross the road, it could do so within the time it reached at the place of the accident. How the accident has actually taken place, has not been clearly and comprehensively stated by any of the witnesses. They appear to have been prejudiced by the act of the driver. Their versions are, therefore, coloured by the ultimate act of the petitioner and the fact that the child had been finished." 16. Consequently, in view of detailed discussion made hereinabove as well as law laid down by the Hon''ble Apex Court, this Court sees no valid reason to interfere with the judgment of acquittal recorded by the learned Court below, which otherwise appears to be based upon the proper appreciation of the evidence and as such, same is upheld. Accordingly, the present appeal is dismissed alongwith pending application(s) , if any.