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2019 DIGILAW 1848 (HP)

State Of Himachal Pradesh v. Sushil Kumar

2019-12-04

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. - By way of instant appeal filed under S.378 CrPC, challenge has been laid to judgment of acquittal dated 9.10.2007 passed by learned Chief Judicial Magistrate, Shimla, Himachal Pradesh in Cr. Case No. 39/2 of 2006/2000, whereby respondents-accused (hereinafter, ''accused'') came to be acquitted of the charges framed against them under Ss. 279 and 304A IPC. 2. Briefly stated the facts of the case as emerge from the record are that FIR No. 151, dated 9.8.2000 (Ext. PW9/B) came to be registered against the accused, on the basis of a statement made by Madan Kumar (PW-12), under S.154 CrPC, wherein he alleged that on 9.8.2000, at about 10.30 am, when he alongwith another person namely Som Pal (PW8) was present near a dustbin placed on Cart Road, a lady fell down from the front window of a moving bus and sustained injuries. Above named complainant alleged that the bus was being driven by accused Sushil Kumar in a high speed whereas, co-accused Rajiv Sharma, who was Conductor in the bus also failed to take sufficient measures to stop the bus. As per complainant, he alongwith his companion, Som Pal (PW-8) signaled the accused Sushil Kumar to stop the bus, whereafter many persons gathered on the spot. Lady was identified as Suman Sood, an employee of HPSIDC, who had suffered injuries on her head. Though above named lady was shifted to the Hospital but she succumbed to her injuries on the way to the Hospital. After completion of investigation, Police presented Challan in the competent Court of law i.e. Chief Judicial Magistrate, Shimla, who being satisfied that a prima facie case exists against the accused, framed charge against the accused for the commission of offences punishable under Ss. 279 and 304A IPC, to which accused pleaded not guilty and claimed trial. 3. Prosecution with a view to prove its case against the accused, examined as many as 12 witnesses, whereas, accused in their statements under S.313 CrPC, denied the case of prosecution in toto and claimed that they were not present on the spot, however they did not lead any evidence in their defence. 4. Learned trial Court, on the basis of the evidence adduced on record by the prosecution, held the accused not guilty of having committed offences punishable under Ss. 279 and 304A IPC and accordingly acquitted them of the charges framed against them. 4. Learned trial Court, on the basis of the evidence adduced on record by the prosecution, held the accused not guilty of having committed offences punishable under Ss. 279 and 304A IPC and accordingly acquitted them of the charges framed against them. In the aforesaid background, appellantState has approached this Court in the instant proceedings, praying therein to convict the accused, after setting aside impugned judgment of acquittal recorded by learned trial Court. 5. I have heard learned counsel for the parties and perused the material available on record. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds no force in the argument of Mr. Anil Jaswal, learned Additional Advocate General that learned Court below has failed to appreciate the evidence in its right perspective and as such, erroneous findings have come to the fore, rather, this Court finds from the record that the prosecution failed to prove beyond reasonable doubt that on the date of alleged incident, vehicle in question was being driven by accused-Sushil Kumar, and co-accused Rajiv Sharma was employed as Conductor in the ill-fated bus. Leaving everything aside, no cogent and convincing evidence ever came to be led on record by the prosecution, suggestive of the fact that the vehicle in question was being driven rashly and negligently. It has been repeatedly held by Hon''ble Apex Court and this Court in a catena of judgments that high speed cannot be the sole criteria to determine guilt, if any, of an accused under S.279 IPC, rather, prosecution, with a view to prove the case, if any, under S.279 IPC, is required to prove rash and negligent driving, if any, of the accused. In the case at hand, though the prosecution has examined 12 witnesses but the statements of only two prosecution witnesses are material to determine the correctness and genuineness of story put forth by the prosecution i.e. PW-12 Madan Kumar and PW-8 Som Pal. 7. Pw-12 Madan Kumar, at whose behest FIR in question came to be lodged, deposed that at the time of alleged accident, he was going to throw litter in the dustbin and was accompanied by another person namely Som Pal (PW-8). He deposed that bus bearing registration No. HP-14- 3949 came towards Bus Stand from Chhota Shimla side and a lady fell down from moving bus from its front window. He deposed that bus bearing registration No. HP-14- 3949 came towards Bus Stand from Chhota Shimla side and a lady fell down from moving bus from its front window. This witness deposed that he signaled the bus driver to stop the bus, whereafter, many persons gathered on the spot. He also deposed that a lady had sustained injuries on her head and was shifted to the Hospital in a jeep. This witness further deposed that the accident occurred on account of rash and negligent driving of the accused. If statement of this witness is read in its entirety, it suggests that Constable Roshan Lal No. 1217 was present near the spot i.e. St. Edwards Bus Stop and had seen the incident. As per this witness, Constable Roshan Lal informed the Police Station with regard to alleged accident in his presence. He also deposed that he went to Hotel after the incident. He has nowhere stated that he apprised the owner or Manager of the Hotel, with regard to the aforesaid accident. No phone call was ever made to the Police from the Hotel. In his cross-examination, he has stated that he is not aware whether or not, accused were present when Police visited the spot. He stated that the police officials visited him in the hotel but there is no explanation that how the Police came to know that he works in a Hotel. Most importantly, this witness in his deposition before learned Court below claimed that at the time of accident, he was near the dustbin, which as per spot map was on the hill side, whereas, window from where allegedly the lady fell down, was on the opposite side, as such, there appears to be considerable force in the submission made by learned counsel representing the accused that once this witness was on hill side, version put forth by him that he saw the lady falling from the bus from front window, which was on the opposite side, cannot be believed. 8. Similarly, perusal of spot map Ext. PW-9/D nowhere suggests that at the spot, there was any bus stop rather, accident took place at a curve, where otherwise bus could not stop. 9. Another witness namely Som Pal (PW-8) nowhere supported the version put forth by PW-12 Madan Kumar. 8. Similarly, perusal of spot map Ext. PW-9/D nowhere suggests that at the spot, there was any bus stop rather, accident took place at a curve, where otherwise bus could not stop. 9. Another witness namely Som Pal (PW-8) nowhere supported the version put forth by PW-12 Madan Kumar. This witness deposed that he alongwith PW-12 Madan Kumar had gone to throw litter in the dustbin and woman was already lying there on the road and he had not seen the accident taking place. If the version put forth by this witness is read juxtaposing statement of PW-12, Madan Kumar, story put forth by prosecution becomes highly doubtful. Both these witnesses have though claimed that both had gone to throw litter in the dustbin, but one witness i.e. PW-12 Madan Kumar claimed that he saw the lady falling from the window of bus whereas, PW-8 Som Pal, in his deposition claimed that the lady was already lying on the road. 10. Though the aforesaid witness was declared hostile, but even perusal of the cross-examination conducted upon this witness, nowhere suggests that the prosecution was able to extract anything contrary to what he stated in his examination-in-chief. 11. Pw-9, Baldev Singh, Investigating Officer, has corroborated the version put forth by PW-12 Madan Kumar that he had seen Sushil Kumar, driving the bus but PW-8 Som Pal, who claimed that he was with Madan Kumar PW-12 at the time of alleged accident, nowhere stated that the accident took place in his presence, rather, he stated that the victim was already lying on the road. 12. Investigating agency, neither made an attempt to associate the owner nor the Manager of the Hotel so as to ascertain the genuineness and correctness of the statement made by PW-12 Madan Kumar. As per prosecution story, Constable Rajinder had sent the message to the Police Station but, interestingly, he never came to be cited as a prosecution witness. Though PW-12 Madan Kumar claimed himself to be an employee of a Hotel situate near the spot of alleged accident, but investigating agency neither procured wage slip or register of the hotel to ascertain the factum with regard to the employment, if any, of PW-12 Madan Kumar with the Hotel concerned. Leaving everything aside, record clearly reveals that the accused were not subjected to test identification parade hence, identity of the accused is highly doubtful. Leaving everything aside, record clearly reveals that the accused were not subjected to test identification parade hence, identity of the accused is highly doubtful. Besides this, the bus involved in the accident, was never got mechanically examined. 13. Pw-8 Som Pal also failed to state that whether or not, there were other passengers in the vehicle. Leaving everything aside, it has come in the evidence that at the time of alleged incident, many persons had gathered on the spot but there is no explanation on record by PW-9, that why he did not make any efforts to associate the persons, present on the spot, especially when it has come in the statement of PW12 Madan Kumar that he immediately after the accident had gone back to hotel. As has been already noticed herein above, here is no explanation on record that how the Police came to know with regard to the presence of PW-12 Madan Kumar on the spot at the time of alleged accident. Besides this, Constable Roshan Lal, who is stated to have been present near the spot, was also not examined by the prosecution for the reasons best known to it. 14. Though, the presence of accused on the spot is highly doubtful, but otherwise also no prosecution witness, save and except, PW-12, has stated anything specific with regard to the rash and negligent driving of the accused Sushil Kumar at the time of alleged accident. Since presence of PW12 Madan Kumar and his witnessing the accident are doubtful, not much reliance could be placed upon the statement of this witness, while determining, guilt, if any, of the accused under Ss. 279 and 304A IPC. 15. It has come on record that the office of deceased lady was near to the spot of accident and it has also come on record that there was only one passenger in the bus, as has been stated by PW-12, meaning thereby that it cannot be said that the deceased fell from the bus on account of heavy rush in the bus, rather, it appears that she, with a view to approach her office, which was near the spot of alleged accident, must have made an attempt to alight from the moving bus. 16. 16. True it is that PW-12 Madan Kumar stated that the offending vehicle was moving in high speed but that is not sufficient to conclude rash and negligent driving, if any, on the part of accused. High speed itself is not a criteria to conclude rashness and negligence, rather, it is/was incumbent upon the prosecution to prove that the offending vehicle was being driven in such rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any other person. 17. 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. 18. 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. 19. At this stage, reliance is placed on judgment rendered by our own High Court in case titled Akshay Kumar v. State of HP,2009 LatestHLJ 72 , 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. 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." 20. Reliance is placed upon judgment of this Court in Gurcharan Singh versus State of Himachal Pradesh,1990 2 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. 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. 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. 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." 21. This Court is also fully conscious of judgment of Hon''ble Apex Court in State of Punjab versus Saurabh Bakshi, (2015) 5 SCC 182 , wherein it has been held that no leniency should be shown to reckless drivers. The Hon''ble Apex Court has observed as follows:- "25. Before parting with the case we are compelled to observe that India has a disreputable record of road accidents. There is a nonchalant attitude among the drivers. They feel that they are the "Emperors of all they survey". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". Drunkenness contributes to careless driving where the other people become their prey. The poor feel that their lives are not safe, the pedestrians think of uncertainty and the civilized persons drive in constant fear but still apprehensive about the obnoxious attitude of the people who project themselves as "larger than life". In such obtaining circumstances, we are bound to observe that the law-makers should scrutinize, relook and revisit the sentencing policy in Section 304-A IPC, so with immense anguish." 22. There can not be any disagreement with the concern expressed by the Hon''ble Apex Court in the aforesaid judgment with regard to carelessness /recklessness of the drivers, especially under the influence of alcohol. But in the instant case, as has been discussed above, prosecution was not able to prove beyond reasonable doubt that the ill-fated vehicle was being driven by the accused-Sushil Kumar rashly and negligently, rather, version put forth by prosecution appears to be untrustworthy in view of material contradictions in the statements of the prosecution witnesses, and as such, this Court sees no application of aforesaid law laid down by the Apex Court in the instant case. 23. Besides this, there are material contradictions and inconsistencies in the statements of star prosecution witnesses i.e. PW-12 Madan Kumar and PW-8 Som Pal, who are witnesses of the spot. On one hand, PW-12 Madan Kumar stated that he had seen the accident, and, on the other hand, PW-8 Som Pal stated that the lady was already lying on the road. 24. 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. 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. 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 : 2008(11) SCR 286 has held:-( 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." 25. Consequently, in view of detailed discussion made herein above, instant appeal is dismissed being devoid of merit. Judgment of acquittal passed by learned Court below is upheld. Bail bonds, if any, furnished by accused are also discharged. All pending applications, if any, are disposed of.