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2019 DIGILAW 1039 (HP)

State of Himachal Pradesh v. Jitender Kumar

2019-07-25

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant/State, laying challenge to judgment dated 26.07.2008, passed by learned Judicial Magistrate 1st Class, Joginder Nagar, District Mandi, H.P., in Police Challan No. 342-2 of 2003, whereby the accused/respondent (hereinafter referred to as “the accused”) was acquitted for the commission of the offences punishable under Sections 279 and 337 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”). 2. The key facts necessary for adjudication of this appeal can tersely be summarized as under: As per the prosecution story, on 07.09.2003, Shri Puran Chand (complainant), was coming to Joginder Nagar from Padhar in his vehicle, i.e., Alto Car having registration No. HP29-1100 and three more occupants were sitting in the said vehicle. At place Himgallu, near Urla on Mandi-Pathankot Highway, Jitender Kumar (accused) was driving Mahindra Pickup, having registration No. HP02M-3514, on the wrong side and in a rash and negligent manner. The accused rammed his vehicle with the vehicle of the complainant and in the said accident both complainant and the accused sustained injuries and the vehicle of the complainant was damaged. On the telephonic information by the complainant, police entered a rapat and proceeded to the spot. Subsequently, FIR was registered and Investigating Officer drew the spot map and also recorded the statements of the witnesses. Police also got clicked the photographs of the spot of accident and both the vehicles were impounded. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as eleven witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. In defence, the accused examined only witness. 4. The learned Trial Court, vide its judgment dated 26.07.2008 acquitted the accused under Sections 279 and 337 IPC, hence the present appeal is preferred by the appellant/State. 5. I have heard the learned Additional Advocate General for the State, learned counsel for the respondent and carefully gone through the records in detail. 6. Mr. Shiv Pal Manhans, learned Additional Advocate General, has argued that the learned Trial Court acquitted the accused without appreciating the evidence and law correctly and just on the basis of surmises and conjectures. 5. I have heard the learned Additional Advocate General for the State, learned counsel for the respondent and carefully gone through the records in detail. 6. Mr. Shiv Pal Manhans, learned Additional Advocate General, has argued that the learned Trial Court acquitted the accused without appreciating the evidence and law correctly and just on the basis of surmises and conjectures. He has further argued that the learned Trial Court did not appreciate the fact that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has argued that due to the rash and negligent driving of the accused the accident occurred, so the appeal be allowed, and the judgment of the learned Trial Court be set aside and the accused be convicted. On the other hand, Mr. Nimish Gupta, learned Counsel for the respondent/accused argued that the learned Trial Court rightly acquitted the accused, as the prosecution has miserably failed to prove the guilt of the accused. He has further argued that thee is no merit in the instant appeal and the same may kindly be dismissed, as the learned Trial Court rightly appreciated the facts and law. 7. In rebuttal, the learned Additional Advocate General, has argued that the evidence, which has come on record, clearly show that due to the rash and negligent driving of the accused the accident occurred. He has argued that after re-appreciating the evidence, which has come on record, the appeal be allowed and the accused be convicted. 8. In the instant case, the complainant and the occupants of the vehicle of the complainant, who were examined as PWs-1, 3, 5 and 10, respectively, supported the prosecution case and as per them the sole reason of the accident was the rash and negligent driving of the accused. PWs 3, 5 and 10, who were occupants sitting in the complainant’s vehicle, were well known to the complainant and the complainant had affable relations with them. So, it is safe to hold that PWs 3, 5 and 10, being friendly with the complainant Rest of the prosecution witnesses are official witnesses. 9. The complainant, in his statement recorded under Section 154 Cr.P.C., specifically stated that he and all other occupants of his vehicle got injured in the alleged accident. So, it is safe to hold that PWs 3, 5 and 10, being friendly with the complainant Rest of the prosecution witnesses are official witnesses. 9. The complainant, in his statement recorded under Section 154 Cr.P.C., specifically stated that he and all other occupants of his vehicle got injured in the alleged accident. PWs 3, 5 and 10, who were the occupants of the vehicle of the complainant, also deposed that they received injuries in the said accident, but surprisingly, except complainant none of the occupants of the vehicle of the complainant were medically examined. The prosecution has, in fact, failed to give any plausible explanation for not getting medical examination conducted on the alleged injured occupants of the vehicle of the complainant. This makes the prosecution story doubtful, as the accused took the defence of faulty and partial investigation. The accused further took the defence that all the occupants of the complainant’s vehicle, including the complainant, were drunk and due to the rash and negligent driving of the complainant the accident took place. Thus, it can be safely said that Investigating Officer did not deliberately get the occupants of the vehicles of the complainant medically examined. Further, as per the prosecution story, the alleged accident occurred at 3:45 p.m., but the complainant reached the hospital at 08:00 p.m. The distance between the spot of occurrence and the hospital is only 19 kms, so the complainant could have reached the hospital by 04:30 p.m. Therefore, this delay in reaching the hospital also seems deliberately, so as to cause disappearance of elements and symptoms of alcohol. In the wake of the above, the statement of the Medical Officer, who conducted the medical examination of the complainant assumes more significance. PW-9, Dr. Raj Kumar, could satisfactorily answer that whether the complainant was inebriated. PW-9 simply deposed that police did not ask him to opine whether the complaint was drunk or not. PW-9 also conducted the medical examination of the accused and he specifically deposed that he did not notice any smell of alcohol. From the statement of PW-9 and medical records, it is not discernible that what prevented PW-9, Dr. Raj Kumar, to make general observations qua the fact whether the complainant was drunk or not. 10. PW-9 also conducted the medical examination of the accused and he specifically deposed that he did not notice any smell of alcohol. From the statement of PW-9 and medical records, it is not discernible that what prevented PW-9, Dr. Raj Kumar, to make general observations qua the fact whether the complainant was drunk or not. 10. The accused also took the defence that after the accidence the complainant and his friends (occupants of the car) made to station his vehicle on the road as per their choice and also assaulted him. Understandably, the prosecution witnesses, including the Investigating Officer, in one voice denied that the accused was assaulted or he complained that he had been assaulted by the complainant and the occupants of the car. Admittedly, there was head on collision and the car was badly damaged, whereas the bumper of the vehicle of the accused was slightly pressed. The driver of the vehicle, in head on collision, bashes against the dashboard or windscreen of the vehicle and right driver’s side of his body often received injures, as the driver sits on the right side of the vehicle. In the instant case, the complainant sustained injures on his right side, but the accused sustained injures on his left side. This aspect has to be seen with the alleged fact that there was head on collision of the vehicles and in that collision the accused should have sustained injures on his right side of the body, but the accused sustained injuries on his left side. So, this fortifies the defence of the accused that he was assaulted by the complainant and other occupants of his car after the accident. Be that as it may. The overall material, which has come on record, creates a doubt about the veracity of the prosecution story and makes it unbelievable. 11. PW-4, Shri Rajinder (Photogapher), deposed in the Court that he clicked some photographs depicting skid mark of the tires of the vehicles. This witness, also saw the photographs in the Court and specifically stated that no tire marks are shown in these photographs. No doubt, the tire marks would have clearly shown the position of the vehicles and the manner they collided, but for the reasons best known to the prosecution, the photographs showing the tire marks were withheld. Investigating Officer (PW-11) feigned ignorance to the photographs showing the tire marks. No doubt, the tire marks would have clearly shown the position of the vehicles and the manner they collided, but for the reasons best known to the prosecution, the photographs showing the tire marks were withheld. Investigating Officer (PW-11) feigned ignorance to the photographs showing the tire marks. Thus, depositions of Photographer and Investigating Officer qua the photographs having tire marks also create a doubt qua the genuineness of the prosecution story. In fact, this Court could easily hold that that present is a case of partial investigation and it seems that police deliberately roped in the accused in the instant case. Further the available photographs clearly show that there was dent on the right side of the car, so there was no head on collision. Thus, it also seems that the vehicles had not collided in the manner as portrayed by the prosecution. The vehicles seem to have been intentionally parked in to take photographs and show the rash and negligent act of the accused. The photographs show that after the accident the jeep went 24 feet ahead and the accident occurred in a sliding manner. Had the jeep hit the car head on, the accident could have resulted in major injuries to the occupants of the car and the jeep could not have travelled 24 feet more after the head on collision. Thus, all the above facts, only point out that in order to rope in the accused the police cooked the evidence and deliberately tried to portray that the accident was due to the rash and negligent driving of the accused. 12. The accused took the defence that the police did not conduct fair and impartial investigation and deliberately made him accused, whereas due to the fault of the complainant the accident took place. The complainant received serious injuries in the accident and despite that he remained on the spot for long and after four hours he went to the hospital. The complainant took active part in the investigation. The Investigating Officer called the photographer from Mandi, which is a distant place, and did not bother to call a photographer from Jogindernagar, which was near to the spot of accident. Photographer deposed that he was called on the same day from Mandi and he came on the request of National Insurance Company. So, it is not clear that who called the photographer on the spot. 13. Photographer deposed that he was called on the same day from Mandi and he came on the request of National Insurance Company. So, it is not clear that who called the photographer on the spot. 13. The story of the prosecution further gets stained from the deposition of PW-7, HC Daya Ram, who mechanically examined both the vehicles, as the complainant specifically deposed that on the same day when the accident occurred he brought his vehicle, but PW-7, deposed that on 08.09.2003, i.e., on the subsequent day, he conducted mechanical examination of both the vehicles on the spot. Thus, the depositions of complainant and PW-7 further create doubt in the prosecution story. 14. As noticed above, there are many lacunae in the prosecution story and it seems that police tried hard to wrongfully rope in the accused in the instant case. No doubt the vehicle of the accused was involved in the alleged accident and the accused was driving the same, but in order to hold him guilty this Court has to see whether the accused was driving the vehicles in rash and negligent manner. The prosecution has failed to prove that it was the accused who caused the accident and he driving his vehicle rashly and negligently. So, after re-appreciating the evidence and law this Court finds that the prosecution could not establish the guilt of the accused and merely the accused could not be held guilty as there are possibly two views qua the guilt of the accused. 15. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 16. In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 , the Hon’ble Supreme Court has culled out the following principles qua powers of the appellate Courts while dealing with an appeal against an order of acquittal: “42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: 1. An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. 2. The Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. 3. Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. 4. An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. 5. If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court.” 17. In view of the settled position of the law as discussed hereinabove and also the testimonies of the key prosecution witnesses, which are marred with contradictions and discrepancies, it would be more than safe to hold that the prosecution story is full of lacunae and doubts, so the prosecution could not cogently and convincingly establish the guilt of the accused. Thus, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Therefore, the findings of acquittal, as recorded by the learned Lower Appellate Court do not suffer from any infirmity. Thus, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Therefore, the findings of acquittal, as recorded by the learned Lower Appellate Court do not suffer from any infirmity. This Court sees no ground to overturn the findings of acquittal of the learned Trial Court. 18. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending miscellaneous applications, if any, shall stands disposed of.