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2019 DIGILAW 1195 (HP)

Rajvinder Sharma v. State Of H. P.

2019-08-21

VIVEK SINGH THAKUR

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JUDGMENT : Vivek Singh Thakur, J. Present petition has been preferred under Section 482 Cr.P.C. for quashing of FIR No. 146 of 2018 dated 14.6.2018, registered at P.S. Sadar Chamba, District Chamba under Sections 279, 337 and 304-A IPC on the grounds that accident has not taken place on account of rash and negligent act of petitioner and the complainant has been lodged on the basis of statement of a witness, who is not an eye witness, and none of statements, recorded by police under Section 161 Cr.P.C., discloses the rash and negligent act on the part of petitioner in driving the car at the time when accident had taken place and, therefore, there was no evidence before the Magistrate for taking cognizance against the petitioner and in the light of evidence trial is likely to culminate into acquittal of petitioner and thus, for want of evidence, the FIR as well as consequential proceedings arising thereto deserve to be quashed. 2. Petition has been opposed by respondent/State on the grounds that in the present case wife of petitioner has expired in accident and therefore, petitioner has committed a grave offence, as made out prima facie on the basis of evidence collected by Investigating Officer and thus, petition deserves to be dismissed. 3. Copy of challan along with evidence collected by Investigating Officer, presented in Court, has also been produced by the respondent/State. 4. Scrutiny of challan and evidence relied upon by Investigating Officer against the petitioner reveals that FIR has been registered on the basis of statement of one Pawan Kumar, recorded under Section 154 Cr.P.C., wherein he has stated that on the day of incident, at about 5.30 PM, when he was driving his vehicle on Chamba-Khajjiar road and had reached near Hanuman temple Bhatalwan, he had seen a white coloured car falling from cliff, whereupon, he parked his vehicle on the side of road and went in gorge along with his brother Kewal Krishan, who was accompanying him in his car, and found that a damaged white coloured Swift car was lying there and a lady and one gentleman were in the car, whereas two children were lying outside of said vehicle. He along with others had taken the injured to hospital. According to him, the lady had already succumbed to her injuries on the spot. He along with others had taken the injured to hospital. According to him, the lady had already succumbed to her injuries on the spot. In the last, he has stated that accident had taken place on account of rash and negligent driving of driver Rajvinder. 5. Other witnesses relied upon by prosecution are Kewal Krishan and Paras whose statements were recorded by Investigating Officer under Section 161 Cr.P.C. Kewal Krishan is brother of witness Pawan Kumar and he has deposed in identical manner as has been stated by witness Pawan Kumar in his statement under Section 154 Cr.P.C., whereas Paras is 13 years old son of petitioner. In his statement as recorded by Investigating Officer under Section 161 Cr.P.C.. in relevant portion thereof with respect to accident, he has stated that he along with his brother was sitting on the back seat, whereas his mother Asha Rani was sitting on front seat and she had used seat belt when they reached near Bhatalwan temple, name of which place came to his knowledge later on, there was a curve where speed of car was increased suddenly and at that time, the car firstly struck with inner side of road but could not be controlled and with the same speed, it fell down in gorge and later on he came to know that local people had rescued them in unconscious state and in the last, he has stated that he did not know the cause of accident. 6. Remaining evidence relied upon by Investigating Agency is statement of other witnesses, who were associated during investigation for completing the investigation, such as taking photographs of vehicle and dead body of Asha Rani and obtaining of MLCs of injured, postmortem of deceased and taking in possession the damaged vehicle or documents thereof including driving licence of petitioner etc. and their statements will be relevant only if there is prima facie evidence available on record for taking cognizance of case for establishing the allegation or even to suspect that petitioner is involved in commission of offence as reported in challan presented in Court. 7. and their statements will be relevant only if there is prima facie evidence available on record for taking cognizance of case for establishing the allegation or even to suspect that petitioner is involved in commission of offence as reported in challan presented in Court. 7. Perusal of statements of witnesses Pawan Kumar and Kewal Krishan, as have been recorded by police and presented along with challan, clearly indicates that both of them are not eye witnesses to the initial stage of occurrence and they had seen the car falling from cliff in gorge and their versions in the last that accident had taken place on account of rash and negligent driving of driver of car is not based upon the knowledge which was gained by them witnessing the accident, but it appears to be their assumption based on nature of accident, as in the beginning of their statements, they have clearly stated that when they were going towards Mangla from Chamba they had seen a car falling down from cliff, but nothing more or nothing less than that. 8. Another witness is Paras who has clearly stated that he did not know the cause of accident. In his statement, he has referred about increase of speed of car while he was sitting on the rear seat of car, but cause of increase of speed is not known to him. In absence of evidence of actual speed of vehicle, statement of this witness with respect to increase in speed as experienced or noticed by him while sitting in the rear seat of car, is of no relevance. There is no other oral or documentary evidence on record to indicate rash and negligent driving on the part of petitioner. Therefore, in fact, it is case of no evidence with regard to alleged rash and negligent driving of petitioner. 9. There is no other oral or documentary evidence on record to indicate rash and negligent driving on the part of petitioner. Therefore, in fact, it is case of no evidence with regard to alleged rash and negligent driving of petitioner. 9. It is settled that at the time of taking the cognizance of offence, it is not necessary for the Magistrate, to find out as to whether the trial is clearly going to culminate into conviction of accused or not, but the Magistrate has only to see whether there is prima facie evidence on record so as to construe that there is possibility of commission of offence by the accused and even if there is evidence raising the suspicion of commission of offence by accused, the cognizance can be taken by the Magistrate and thereafter the accused has a right to put his version before the Court, on the basis of evidence on record at the time of framing of charge. (See Rakhi Mishra vs. State of Bihar and others, (2017) 16 SCC 772 ). 10. No doubt, the evidence or materials placed before the Magistrate, at the time of taking cognizance, is not to be evaluated on merit, but definitely it is duty of the Court to see as to whether some evidence is available on record or not. In case, there is no evidence on record to indicate commission of alleged offence(s), the Magistrate is not supposed to act as a Post Office, but is expected to apply his judicial mind according to facts and circumstances of the case for accepting or rejecting the challan/report filed before him under Section 173 Cr.P.C. 11. But in the present case, as discussed supra, it is a case where no evidence with respect to rash and negligent driving is available. But learned Magistrate appears to have acted in mechanical manner without application of mind much less judicial mind. Hence the present petition is allowed and FIR No. 146 of 2018 dated 14.6.2018, under Section 279, 337 and 304-A IPC registered at P.S. Sadar Chamba is quashed and consequential proceedings arising thereto pending before the concerned Court are also quashed. All pending miscellaneous application(s), if any, also stand disposed of.