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2019 DIGILAW 374 (HP)

STATE OF HIMACHAL PRADESH v. AJAY SHARMA

2019-04-04

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant-State of Himachal Pradesh against the judgment of acquittal of accused in a case, under Sections 279, 337 and 338 of the Indian Penal Code, passed by the learned Chief Judicial Magistrate, Hamirpur (H.P) dated 01.01.2009, in Criminal Case No.3-I of 2008/47- II of 2008. 2. Briefly stating facts giving rise to the present appeal are that on 29.6.2007, complainant-Mukesh Anand was driving the vehicle bearing registration No.HP-09A-1602, when the vehicle reached near Dugha, at about 12:20 pm, truck bearing registration No.HP-51B-0394, came with high speed and hit the vehicle bearing registration No.HP-09A-1602. The accident had taken place due to rash and negligent driving of the truck driver. The matter was reported to the police, on the basis of which, FIR was registered. During the course of investigation, statement of witnesses recorded and site plan was prepared. Thereafter, codal formalities were completed and challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as sixteen witnesses. Statement of accused was recorded, under of the Code of Criminal Procedure, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused. 4. Learned Additional Advocate General appearing on behalf of the appellant has argued that the judgment of acquittal passed by the learned Court below is without appreciating the evidence correctly. He has argued that the learned Court below without appreciating the law and facts correctly on the basis of conjectures and surmises acquitted the accused. He has further argued that the learned Court below has failed to take into consideration the fact that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. 5. On the other hand, learned counsel appearing on behalf of the accused has argued that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt, the case of the prosecution was without any basis and the findings recorded by the learned Court below are as per law. 6. To appreciate the arguments of learned Additional Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. 6. To appreciate the arguments of learned Additional Advocate General and learned counsel for the accused, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses. 7. In order to prove its case, the prosecution has examined PW-1, Manohar Singh, deposed that the accident had taken place due to the high speed, wrong side and negligence of the truck driver. In his cross-examination, he has stated that the accident had taken place due to the wrong side of the truck. Similarly, PW-2, Rajnish Anand, deposed that the accident had taken place due to the high speed, negligence and wrong side of the driver of the truck. In his cross-examination, he has stated that the accident had taken place due to the wrong side of the driver of the truck. PW-3, Dr. D.R. Sharma, conducted medical examination and found grievous injury on his the person of Manohar Singh as well simple injuries on the person of Savitri and Sumesh Kumar. PW-4, Mohinder Kumar, conducted mechanical examination of the vehicle bearing registration No.HP-09A-1602. He further deposed that there was no mechanical defect in the vehicle, but damage was caused to the vehicle due to the accident. He issued mechanical report, Ex.PW4/A. PW-7, Ramesh Chand, conducted mechanical examination of the vehicle bearing registration No.HP-51B-0394 and found that mounting bracket of pull and push rod of right side front steering system was loose. PW-15, SI Fauza Singh, who visited the spot and prepared site plan Ex.PW15/A. He deposed that truck bearing registration No.HP-51B-0394 was seized alongwith the documents, vide seizure memo Ex.PW5/A. He further deposed that vehicle bearing registration No.HP-09A-1602 was seized alongwith the documents vide seizure memo, Ex.PW6/A. 8. Beside the aforesaid material prosecution witnesses, PWs-5, Satish Kumar, PW6, Sunil Dutt, PW-8, Dr. P.K. Soni, PW-9, Suresh Kumar, PW-10, Ramesh Chand, PW-11, SI Guler Chand, PW12, HC Vijay Parkash, PW-13, Mukesh Anand, PW-14, Constable Suresh Kumar and PW-16, Brij Lal, who are formal witnesses. 9. From the perusal of aforesaid evidence, the main witness PW-7, Ramesh Chand, who conducted the mechanical examination of the vehicle bearing registration No.HP-51B-0394 and found that mounting bracket of pull and push rod of right side front steering system was loose. Right side bumper was bent and right side rod spring center bold was broken. 9. From the perusal of aforesaid evidence, the main witness PW-7, Ramesh Chand, who conducted the mechanical examination of the vehicle bearing registration No.HP-51B-0394 and found that mounting bracket of pull and push rod of right side front steering system was loose. Right side bumper was bent and right side rod spring center bold was broken. In his cross-examination, he has stated that central bolt could have been broken due to the impact. The alignment of the vehicle would be disturbed due to breaking of the central bolt. He has further stated that steering wheel would become free after the breaking of central bolt. Similarly, PW-2, Rajnish Anand, deposed that the central bolt of the truck was broken suddenly, but volunteered stated that some part of the truck was hanging beneath the truck. It is also proved on record that the steering wheel was free. Hence, a reasonable doubt would arise in the present case regarding the fact that accident might have taken place due to the mechanical failure. Further, it has come on record that there was sufficient space towards the right side and left side of the truck. In these circumstances, it cannot be said that the accident was caused due to rash and negligent driving of the accused. So, this Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. 10. It has been held in K. Prakashan vs. P.K. Surenderan, (2008) 1 SCC 258 , that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified. 11. 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. 12. 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. 12. 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) 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." 13. The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court. 14. Accordingly, in view of the observations and analysis, made hereinabove, there is no merit in the appeal and the same is dismissed. Record of the learned trial Court be sent back forthwith.