Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1448 (HP)

State of Himachal Pradesh v. Kalyan Chand

2019-09-26

ANOOP CHITKARA

body2019
JUDGMENT : Anoop Chitkara, J. Challenging the judgment of acquittal passed by Judicial Magistrate 1st Class, Palampur, District Kangra, HP, acquitting the driver of Maruti Van, who was driving at a high speed on a hilly road, could not maneuver the turn and lost control of his vehicle, which went down the road, killing two of its occupants on the spot and injuring other three, the State has come up before this Court in Appeal, seeking conviction of the driver of the Van for the commission of offences punishable under Sections, 279, 337 and 304A of IPC. 2. The facts apposite to adjudicate the present appeal trace their origin to the statement under Section 154 of CrPC of Sh. Ram Kumar (PW-1), recorded by the police of Police Station, Palampur, District Kangra, HP. In the said statement of Ram Kumar, who at that time was Vice President (Up-Pradhan) of Gram Panchayat, Giya was present at a place known as 'TIKA DAYALA' and he noticed the aforesaid Van in which there were five occupants and they were going towards Gopalpur side. The time was 8:00 p.m. and the moment the Van crossed the turn/curve of the road, then he heard a huge noise, apparently which was coming because of the impact of rolling of some object down the hill. On this, he along with his companions, went there and found the Van lying in the shrubs around 90 meters below the road. Then they went downhill and rescued three occupants of the Van, whose names were later on revealed as Anoop, Sonu Kumar (PW-7) and Himanshu Awasthy (PW-6). However, in the Van there were two more persons, who were succumbed to their injuries. These people took the injured to PHC, Gopalpur. These people also heard that the driver of the Van had run away from the spot. 3. On this information, FIR No. 146 of 2000, dated 5.6.2000 under Sections 279,337 and 304A IPC was registered in the file of Police Station, Palampur, District Kangra, HP. The police got conducted post mortem examination of both the deceased, namely, Raj Kumar and Sanjeev Dogra, through Doctor Vinay Mahajan, who opined the cause of death of both these persons relating to 'shock' and 'head injuries'. Thus the cause of death of both these persons was due to the accident. The police also took photographs of the accidental van. 4. Thus the cause of death of both these persons was due to the accident. The police also took photographs of the accidental van. 4. The police conducted the investigation from the occupants of the vehicle and it transpired that overall there were six occupants in the Van, one of whom was driver, Kalyan Chand, and others were injured, namely, Anoop Kumar (not examined) Himanshu Awasthy (PW6) and Sonu Kumar (PW7) and two were deceased, namely, Raj Kumar (deceased) and Sanjeev Dogra. It further transpired that five persons had hired the Van, which was being driven by accused Kalyan Chand and they had gone to visit Power House during the day time. While returning, at around 8:00 p.m., the accident took place. 5. After completion of investigation, the SHO of the concerned Police Station filed a report under Section 73 of CrPC in the Court of Additional Chief Judicial Magistrate, Palampur. 6. Vide order dated 25th February, 2005, Judicial Magistrate 1st Class, Palampur to whom the case was assigned by Chief Judicial Magistrate, issued notice of accusation to the accused-respondent for commission of offence punishable under Sections 279,337 and 304-A IPC, to which accused pleaded not guilty and claimed to be tried. 7. The prosecution examined two occupants of the car, namely, Himanshu Awasthy (PW-6) and Sonu Kumar (PW-7) and the prosecution also examined Vice President, Ram Kumar, who appeared as PW1. Apart from these, the prosecution examined mechanic, who had inspected the Van after its accident, the Doctor to prove the death by accident, and the Investigating Officer. 8. In the statement recorded under Section 313 of CrPC, the accused took a specific stand that he was not driving the vehicle and before the accident one of the occupant, namely, Raj Kumar had forcibly taken the vehicle from him and had started driving the same, and it was he who had met the vehicle with an accident. However, the accused did not testify the witness under Section 315 of CrPC nor examined anyone as his witness. 9. I have heard M/s. Narinder Guleria, Ashwani K. Sharma and Nand Lal Thakur, learned Additional Advocate Generals for the appellant and Mr. R.K. Gautam, Sr. Advocate, assisted by Mr. Atul Verma and Ms. Megha Kapoor Gautam, Advocates for the respondent and have also waded through the evidence file of the Trial Court. REASONING 10. 9. I have heard M/s. Narinder Guleria, Ashwani K. Sharma and Nand Lal Thakur, learned Additional Advocate Generals for the appellant and Mr. R.K. Gautam, Sr. Advocate, assisted by Mr. Atul Verma and Ms. Megha Kapoor Gautam, Advocates for the respondent and have also waded through the evidence file of the Trial Court. REASONING 10. The first burden to prove the offence under Section 304-A IPC is on the prosecution to establish that the death was due to an accident and nothing else. The prosecution has successfully discharged this burden by examining PW-11, Dr. Vinay Mahajan, who had conducted the post-mortem of the deceased. He testified that the cause of death was due to 'shock' and 'head injuries'. The police had recovered the dead bodies from the accidental Van and the dead bodies are also noticed by the Vice President (PW-1), who was the first to reach the site of the accident, as such the prosecution has successfully proved that the cause of death was result of an accident. 11. To prove the offence under Section 337 IPC, the prosecution is again under an obligation to prove that the hurt was caused by doing an act so rashly or negligently that it endangers human life or personal safety of others. To prove this fact, the injured themselves testified two of the injured, namely, Himanshu Awasthy (PW-6) and Sonu Kumar (PW-7), who testified that they had received injuries due to accident. The prosecution has also examined Dr. S.K. Sood, (PW-10), who had given them first aid and noticed the injuries on these persons, and opined those as a result of the accident. Resultantly, the prosecution also discharges this initial burden. 12. Thirdly to prove the offence under Section 279 IPC, the prosecution is again under an initial burden to prove that the driver of the vehicle was driving the vehicle on public way in a manner so rashly and negligently that it endangered human life or cause hurt or injuries to any other person. The answer to this burden is only possible by appreciating the entire evidence, because the findings would be interlinked and interconnected with the findings of other two offences. 13. There are two sets of evidences in this case. The first set is the statement of Vice President (PW-1) Ram Kumar. The answer to this burden is only possible by appreciating the entire evidence, because the findings would be interlinked and interconnected with the findings of other two offences. 13. There are two sets of evidences in this case. The first set is the statement of Vice President (PW-1) Ram Kumar. Although he had seen the Maruti Van crossing the place where he was standing, but he did not notice the Maruti Van going down the hill, because the Van had gone down the hill beyond the curve, which was not visible to this witness. He reached the spot only after hearing the sound due to impact of falling vehicle. 14. The second set of evidence is the occupants of the vehicle, who had also rolled down along with the Van and fortunately survived. All these three injured persons namely, Anoop, Sonu Kumar and Himanshu Awasthy, were rescued by PW-1 and his companions. To prove that the deaths and injuries were due to rash or negligent act of the driver of the vehicle, the prosecution had examined Vice President, Ram Kumar as PW-1 and two other occupants of the Van, who were also injured in the said accident. 15. Pw-6, Himanshu Awasthy, in his examination-in-chief stated that the accident took place when the accused was driving the vehicle and the accident had taken place because the driver had lost his control over the vehicle. He also stated that at the time of accident, the vehicle was being driven in a high speed, because of which, the driver could not control the same and it fell downhill. He further stated that the accident took place because of the carelessness and negligence on the part of the driver. 16. The other occupant of the Van was examined as PW-7 Sonu Kumar. He did not corroborate the statement of PW-6 Himanshu Awasthy, and rather contradicted the same. He was declared hostile and even when the leading questions were put to him by the Public Prosecutor, he did not budge and stuck to his stand that the accused was not driving the vehicle at the time when it rolled down the road. 17. The defence set up by accused is very specific. According to the accused he had taken all these passengers to Power House, where they had also taken alcohol as well as other intoxication i.e. "BHANG". 17. The defence set up by accused is very specific. According to the accused he had taken all these passengers to Power House, where they had also taken alcohol as well as other intoxication i.e. "BHANG". On return the occupants of the Van had forcibly taken away the van by snatching the keys and Raju (deceased) drove it away and after driving for some distance, they had met with an accident. 18. The defence of the accused is very simple that at the time of accident he was not driving the Van because the Van had already been snatched by the passengers and in fact he was outside the Van. This stand has been supported by one of the occupant of the car, namely, PW-7 Sonu Kumar, who categorically stated that Raju had snatched the Van from accused-Kalyan Chand and when the accident took place, accused-Kalyan Chand was not driving the vehicle. 19. Learned Additional Advocate General submits that this witness is telling lie, because the possibility of his being won over cannot be ruled out. Therefore, this Court has ventured into the other evidence to look for corroboration to the statement of hostile witness i.e. PW-7 Sonu Kumar and to find the truthfulness of the prosecution. 20. The earliest version of the incident finds mention in the statement recorded under Section 154 CrPC which is exhibited as PW13/C. This statement was recorded by PW-1 Ram Kumar. He stated that he had come to know from people that after the accident the driver of the Van had run away. This statement is clear that the driver had not run away in his presence nor he did notice him running away. Such information comes under the mischief of hearsay, and is not admissible in these facts and circumstances. The most important aspect of the statement under Section 154 CrPC is that Ram Kumar had specifically stated that when he was present on the road, then at that time the Van had crossed him and it was going towards Gopalpur side. He further stated at that time five persons were sitting in the Van. At that point of time, there was a least possibility of this witness intentionally mentioning five persons instead of six, because there was neither any opportunity nor the time to do so. 21. He further stated at that time five persons were sitting in the Van. At that point of time, there was a least possibility of this witness intentionally mentioning five persons instead of six, because there was neither any opportunity nor the time to do so. 21. Now this witness states that when he reached near the Van there were five occupants and out of them three were injured and two were dead. So impliedly the 6th person is the driver Kalyan Chand. This proved fact corroborates the stand of the defence that Kalyan Chand was not in the Van when it had met with an accident. The five occupants whom PW1 Ram Kumar had noticed were all found present in the Van, out of whom two were dead and three were injured. 22. Pw-6 Himanshu Awasthy who had rolled down with the Van stated that the front portion of the Van had collapsed and caved in and was fully damaged. He further admitted that the door towards driver side got locked and even the handle etc. were totally damaged and were pressed with the metal. This witness had supported the case of the prosecution on material particulars regarding the accused being driver of the Van and in cross-examination admitted that the door of the driver side got jammed because of the impact of the accident. A look at the photographs of the Van also corroborate the statement of PW6 Himanshu Awasthy, wherein it is visible that the door of the driver side is in an unopenable condition, fully damaged, and appears to have been pressed with the body. Even the hinges of the door appears to have been damaged, which would make it immovable. Now it leads to an inference that if accused-Kalyan Chand was the driver of the Van, then where was the occasion for him to escape from the accidental Van, because the front portion of the Van had badly damaged due to impact of accident. It leads to an inference that Accused Kalyan Singh was not the driver of the Van. 23. Surprisingly, all the five occupants of the Van had received injuries. There is no evidence that accused Kalyan Chand also sustained any injury. It leads to an inference that Accused Kalyan Singh was not the driver of the Van. 23. Surprisingly, all the five occupants of the Van had received injuries. There is no evidence that accused Kalyan Chand also sustained any injury. If he was present in the van, then it was quite possible that when all five occupants have received injuries, two of whom died and the driver on whose side the impact of the accident was maximum, then the accused would have received injuries and shock and in such a state it would be extremely difficult to climb 300 feet and run away. This is highly improbable. 24. Even an independent appreciation of evidence, irrespective of the findings given by Trial Court, leads to the same conclusion that the prosecution has failed to connect the accused as the driver of the ill-fated Van, at the time it met with the accident. 25. Consequently, there is no merit in this appeal, and the same is dismissed, along with the pending applications, if any. Bail bonds are discharged. Registry to return the records to the concerned Court.