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2019 DIGILAW 1174 (HP)

State Of Himachal Pradesh v. Surinder Singh

2019-08-14

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 01.07.2009, passed by learned Sub Divisional Judicial Magistrate, Rampur, District Shimla, H.P., in Case No. 169-2 of 2003, whereby the accused/respondent (hereinafter referred to as "the accused") was acquitted for the commission of the offences punishable under Sections 279, 337 and 338 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 12.06.2003, at about 07:15 a.m., Shri Kehar Singh (complainant) was standing at Jeori Chowk and when bus, having registration No. HP02-1525, came passengers started boarding the same. During boarding, a girl, namely Neelam, who was also trying to board the bus, fell down and was crushed under the rear tire of the vehicle. She was rushed to the hospital. It is alleged that due to the rash and negligent act of the accused the injured was crushed under the rear tire of the vehicle and she sustained injury. Complainant, Shri Kehar Singh, got his statement recorded under Section 154 Cr.P.C. and thereafter the police investigation ensued. Police prepared the site plan and recorded the statements of the witnesses. The vehicle was taken into possession and got mechanically examined. The injured was medically examined. Spot was photographed and after completion of investigation challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as nine witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. The accused did not lead any evidence in his defence. 4. The learned Trial Court, vide its judgment dated 01.07.2009 acquitted the accused under Sections 279, 337 and 338 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. 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 evidence in its right and true perspective. 6. 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 evidence in its right and true perspective. He has argued that due to the rash and negligent act of the accused the accident occurred and the injured was crushed under the rear tire of the vehicle. He has further argued that after re-appreciating the evidence and law, the present appeal be allowed and the accused be convicted. Conversely, the learned Counsel for the respondent has argued that the learned Trial Court has rightly acquitted the respondent, as there is nothing on record which could cogently and convincingly establish the fault of the respondent. He has further argued that the learned Trial Court has appreciated the material, which has come on record, correctly and properly, so the judgment of the learned Trial Court needs no interference, so the appeal, which sans merits, be dismissed. 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 act of the accused the accident occurred and the injured sustained injury. 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 police registered the case against the accused on the basis of the statement of the complainant, Shri Kehar Singh, which was recorded under Section 154 Cr.P.C. Thus, the statement of the complainant is very important. The complainant deposed in the Court as PW-1 and as per his version in the month of June, 2013, at about 07:15 a.m., when he was standing at Jeori Chowk, a bus, having registration No. HP02-1525 came and passengers started boarding it. He has further deposed that Ms. Neelu (injured Neelam) also tried to board the bus and when she put her right feet in the bus, the bus started moving forward. The injured fell and the rear tire of the bus touched the left leg of the injured. Consequently, the injured raised hue and cry, so the driver reversed the vehicle. He has further deposed that they dragged the injured from under the vehicle. The injured fell and the rear tire of the bus touched the left leg of the injured. Consequently, the injured raised hue and cry, so the driver reversed the vehicle. He has further deposed that they dragged the injured from under the vehicle. The injured disclosed to him that she sustained injury in her knee, so he took her to Rampur Hospital in his vehicle and was accompanied by Shri Sudershan Sehgal, a boy and the sister of the injured. The injured was administered first aid and referred to Shimla. He has further deposed that police came in the hospital and he got his statement recorded. As per this witness, the accident took place due to the rash and negligent act of the driver and conductor of the bus. He has further deposed that he came to know that accused was driving the vehicle. This witness, in his cross-examination, deposed that he is acquainted with the injured and they are neighbours. As per this witness, a tire fully came on the leg of the injured. He has further deposed that bus was stopped there for 2- 3 minutes and passengers boarded the bus. 9. Another vital witness in the array of prosecution witnesses is PW-2, Ms. Neelam (injured). She has deposed that on 12.06.2003, at about 07.15 a.m., she was going to Rampur College for her examination of Master of Arts. At Jeori Chowk there was a private bus and she was boarding the bus, the driver drove the bus, so she fell down and the rear tire of the bus struck against her left leg. Resultantly, she sustained injuries on her left leg and was shifted by Shri Sudershan, Shri Kehar etc. to Rampur, Hospital. From Rampur Hospital she was referred to IGMC, Shimla. As per this witness, the accident occurred due to the negligence of the driver. This witness, in her crossexamination, has deposed that she was at the Chowk and the bus was also there for 2-3 minutes. 10. Pw-3, Shri Sudershan Sehgal, is also important witness. As per this witness, in the month of June, 2003, in between 07:00 to 07:30 a.m., he heard the noise that an accident took place. He has further deposed that bus, having registration No. HP02-1525, was there at Jeori Chowk and leg of girl was crushed under its tire. Shri Kehar Singh and other shifted the injured to Rampur hospital. As per this witness, in the month of June, 2003, in between 07:00 to 07:30 a.m., he heard the noise that an accident took place. He has further deposed that bus, having registration No. HP02-1525, was there at Jeori Chowk and leg of girl was crushed under its tire. Shri Kehar Singh and other shifted the injured to Rampur hospital. Later on, he came to know that driver of the said bus was the accused. The rear tire of the bus was stained with blood. He also came to know that the accident occurred when the girl tried to board the bus. This witness, in his cross-examination, deposed that the accident did not take place in his presence. 11. Rest of the prosecution witnesses are the official witnesses, who performed their duties and deposed accordingly, so their testimonies do not have any effect qua the fact that due to whose fault the accident occurred, as firstly, the prosecution has to establish the fact that due to the rash and negligent act of the accused, the accident occurred and the injured sustained injury. So, in the wake of the above, the testimonies of official prosecution witnesses are deliberately left. 12. Principally, a rash act is an over-hasty act and is thus opposed to a conscious act, but it also includes an act which, though it may be said to be conscious, is yet done without due care and caution. In rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. The prosecution has to prove in the instant case that due to rash or negligent act of the accused the alleged accident took place, but what emerges from the material on record is that on 12.06.2003 the accused was driving bus, having registration No. HP02-1525, and when the said bus reached at Jeori Chowk the driver stopped the bus for the passengers to alight and board the bus. The victim tried to board the bus from the front door and in the meanwhile the accused drove the bus without caring about the safety of the injured, and the injured fell down and sustained injuries. Avowedly, the injured sustained simple as well as grievous injuries and those injuries were caused to her from the rear tire of the bus. The victim tried to board the bus from the front door and in the meanwhile the accused drove the bus without caring about the safety of the injured, and the injured fell down and sustained injuries. Avowedly, the injured sustained simple as well as grievous injuries and those injuries were caused to her from the rear tire of the bus. Later on, she was shifted for medical treatment to MGMHC, Khaneri and subsequently referred for further treatment to IGMC, Shimla. In the instant case, the rash and negligent act, as alleged by the prosecution, is to be seen from different angles, viz., the bus was stopped and passengers were alighting and boarding the bus, the duty of the driver is to concentrate on the road and not on the passengers, who are alighting and boarding the bus and it is not possible to keep an eye on the passengers who are boarding and alighting the vehicle, especially when the vehicle is long and big. Indisputably, the primary duty to keep an eye on the passengers, who are boarding and alighting the vehicle, is of the conductor of the bus, but surprisingly he has not been indicted in the instant case for the reasons best known to the prosecution. It is discernible from the testimonies of the prosecution witnesses that bus stopped at Jeori Chowk for 2-3 minutes and many passengers lighted and boarded the vehicle and in the process of boarding the moving bus the injured fell down from the front door and sustained injuries from the rear tire. In this backdrop, it is highly improbable that the driver could have kept an eye on the injured right from the front door upto the rear tire. 13. After carefully analyzing the evidence, which has come on record, it is clear that it was not possible for the accused to keep a vigil on each and every part of the bus, in fact, it was the duty of the conductor whether the all the passengers have alighted and boarded the vehicle safely. The prosecution did not make the conductor as accused and no reason has been assigned for this. The prosecution did not make the conductor as accused and no reason has been assigned for this. The prosecution's case is not of high speed driving and the only allegation against the accused that the he was not watchful about the safety of the injured, but, as held above, it was the duty of the conductor to be watchful about the safety of the passengers. Thus, after meticulously examining the evidence, the prosecution has failed to prove the rash and negligent act of the accused. No doubt, the injured sustained injury in the accident with the bus in question, but for that accident it would be unfair to hold the accused guilty, as the accident could have been averted if the conductor of the bus was vigilant about his duty and the safety of the passengers. 14. It is safe to hold that prosecution has failed to prove the rash and negligent act of the accused, so there cannot be any other view, except the view that the accused cannot be held liable for the alleged accident. Even if, by any stretch of imagination, there could be other view, then also this Court cannot adhere to that view, as the Hon'ble Supreme Court in Arun vs. State, (2008) 15 SCC 501 , has held that if there are two reasonable views, then the view favouring the accused be adhered to. 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, reappreciate 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, reappreciate 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 what has been discussed hereinabove, the prosecution has failed to prove the guilt of the accused cogently and convincingly. 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 Trial 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 application(s), if any, shall stand(s) disposed of.