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Himachal Pradesh High Court · body

2019 DIGILAW 643 (HP)

State of Himachal Pradesh v. Dharmender

2019-05-29

SANDEEP SHARMA

body2019
JUDGMENT : SANDEEP SHARMA, J. 1. Instant Criminal Appeal having been filed by the appellant-State, is directed against the judgment of acquittal dated 26.7.2008, passed by learned Judicial Magistrate, Court No.4, Mandi, District Mandi, Himachal Pradesh in police Challan No.67-II/01, whereby learned trial Court held respondent (hereinafter referred to as the accused) not guilty of having committed of offences punishable under Sections 279 and 337 of IPC and accordingly acquitted him. 2. Briefly stated facts, as emerge from the record are that on 2.6.2001 complainant, namely, Pawan Kumar (PW-1) got his statement recorded under Section 154 Cr.P.C. Ex.PW1/A, alleging therein that on 2.6.2001, he alongwith his family members and friends was going from Dharamshala to Manikaran in his car bearing registration No. HP-39-7261 and when they reached at place called as Tandu, a Tata Sumo bearing registration No. HR-26-L-0827 came from opposite direction in a high speed and struck against his car, as a consequence of which, he alongwith other occupants of the car suffered injuries. Complainant specifically alleged in the complaint that accused was driving Tata Sumo in a rash and negligent manner and accident occurred on account of his fault. On the basis of aforesaid statement given by the complainant, formal FIR Ex.PW4/A, came to be registered against the accused at police Station, Balh, District Mandi, H.P. After completion of the investigation, police presented the challan in the competent Court of law, who being satisfied that a prima-facie case exist against the accused, put notice of accusation to him for the commission of offence punishable under Sections 279 and 337 IPC, to which he pleaded not guilty and claimed trial. 3. With a view to prove its case prosecution examined as many as eight witnesses, whereas accused in his statement recorded under Section 313 Cr.P.C. denied the case of the prosecution in toto. However, he did not lead any evidence in his defence. 4. Having heard learned counsel representing the parties and perused the evidence led on record by the prosecution vis-a-vis reasoning assigned by the learned court below while passing the impugned judgment of acquittal, this court is not inclined to agree with Mr. However, he did not lead any evidence in his defence. 4. Having heard learned counsel representing the parties and perused the evidence led on record by the prosecution vis-a-vis reasoning assigned by the learned court below while passing the impugned judgment of acquittal, this court is not inclined to agree with Mr. Manoj Bagga, learned Assistant Advocate General that impugned judgment of acquittal is not based upon the proper appreciation of the facts as well as law, rather this Court finds from the record that prosecution has miserably failed to prove its case beyond reasonable doubt and there is no cogent and convincing evidence available on record to conclude that ill-fated accident occurred on account of the rash and negligent driving of the accused. 5. Pawan Kumar (PW-1) in his deposition made before the learned court below stated that he alongwith other family members and friends was going from Dharamshala to Manikaran driving his car bearing No. HP-39-7261 and at about 6:00 PM when they reached near Tandu, a Tata Sumo bearing No. HR-26-L-0827 came from opposite side at a very high speed and hit them, as a consequence of which, all the occupants of the car sustained injuries. In his cross-examination, while admitting that he alongwith other occupants of the car started their Journey from Dharamshala at about 2:30 PM, fairly admitted that there was a sharp turn. Though, he denied that at the time of accident, white Maruti Car was going in front of their car or any cattle was sitting by the side of the road or any person was present there, but he specifically admitted that after the accident 15-20 people reached on the spot. He also admitted that there were many shops adjoining to the spot. He also admitted that 5-6 people were sitting in the said Tata Sumo and they also sustained injuries due to the accident. In his cross-examination, he further admitted that on the date of alleged accident, it was raining and his car was going downhill, whereas Tata sumo being driven by the accused was going uphill. 6. He also admitted that 5-6 people were sitting in the said Tata Sumo and they also sustained injuries due to the accident. In his cross-examination, he further admitted that on the date of alleged accident, it was raining and his car was going downhill, whereas Tata sumo being driven by the accused was going uphill. 6. Ashok Kumar (PW-2), who was also sitting in the car at the time of accident supported the aforesaid version put forth by PW-1, Pawan Kumar, but in his cross-examination, he while denying that any cattle was sitting on the side of the road specifically admitted that 15-20 people had gathered on the spot after the alleged accident. Though, in his cross-examination this witness categorically denied that maruti car was being driven in a rash and negligent manner by the complainant, but careful perusal of the statement made by this witness nowhere suggests that he stated something specific with regard to rash and negligent driving, if any, by the accused. 7. Asi Partap Singh (PW-4) stated that he after having received the telephonic information reached the spot of accident alongwith HHC Ishwar Singh(PW-6), who recorded the statement of the complainant Ex.PW1/A, on the basis of which, formal FIR Ex.PW4/A came to be registered against the accused. In his cross-examination, he denied that when he reached at the spot of accident, it was raining and there were 4-5 shops on the spot. In his cross-examination, he stated that no shop keeper was associated as witness since they did not see the accident happening. He also denied that car was going downhill and Tata Sumo was coming uphill. He admitted that 5-7 people were present on the spot, but denied that any passenger was present in the Tata Sumo. If the statements having been made by the aforesaid prosecution witnesses are read in conjunction juxtaposing each other, there appears to be consideration force in the arguments of Mr. L.S. Mehta, learned counsel representing the accused that there are material contradictions with regard to direction of the vehicles involved in the accident as well as existence of shops near the site of the accident. Though, PW-1 and another eye witness PW-2 admitted in their cross-examination that there were shops near the site of the accident, but PW-4 in his cross-examination categorically denied the factum with regard to existence of the shops at the site of the accident. Though, PW-1 and another eye witness PW-2 admitted in their cross-examination that there were shops near the site of the accident, but PW-4 in his cross-examination categorically denied the factum with regard to existence of the shops at the site of the accident. Similarly, ASI Partap Singh (PW-4) contradicted the version put forth by PW-1 and PW-2 that their car was going downhill, whereas offending vehicle being driven by the accused was going uphill because this witness categorically denied in his cross-examination that car being driven by the complainant was going downhill. Similarly, there is contradiction with regard to occupants travelling in the offending vehicle i.e. Tata Sumo at the time of the alleged accident because as per the version given by PW-1 and PW-2, 5 -6 person were sitting in the said Tata Sumo being driven by the accused, whereas PW-4 has denied this fact. 8. Leaving everything aside, there is no specific evidence led on record by the prosecution to prove rash and negligent driving by the accused. Merely bald statement, if any, of the complainant, which was otherwise not supported by PW-2 is not sufficient to conclude rash and negligent driving, if any, by the accused. 9. In the instant case, this Court was unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently that too at high speed. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC(Cri) 406, which reads as under:- "6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accused- appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus. 8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved." 10. The Hon'ble Apex Court in case titled "State of Karnataka v. Satish, (1998) 8 SCC 493 ", has also observed as under:- "1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and heard learned counsel for the parties. 3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty. 4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case. 5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed." 11. Careful perusal of aforesaid judgment clearly suggests that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur. 12. Reliance is also placed on judgment rendered by this Court in State of H.P. Vs. Manpreet Singh, 2008 LatestHLJ 538 (HP), relevant para whereof is as under: "4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. Manpreet Singh, 2008 LatestHLJ 538 (HP), relevant para whereof is as under: "4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn and he (deceased) stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on hearing the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial." 13. There is another aspect of the matter that independent witnesses were available in abundance at the time of the accident, but there is no explanation rendered on record by the Investigating Officer (PW-4) that why he did not associate independent witness despite there availability. It is true that version put forth by the interested/ official witnesses cannot be brushed aside merely on account of non-association of independent witness, but in the case at hand there are material contradictions and inconsistencies in the statements of the prosecution witnesses, who are closely related to each other and as such, depositions made by said witnesses are required to be dealt with carefully and hence this court finds no force in the arguments of learned Assistant Advocate General that court below erred in discarding the statement of PW-2, which as per him is in conformity with the statement of the complainant PW-1. In the case at hand though prosecution by examining PW-3 Dr. M.K. Parasar, who issued MLC Ex.PW3/A1 to Ex.PW3/A4 made an endeavour to prove injuries allegedly sustained by the complainant and the occupants of the ill-fated vehicle, but that may not be sufficient to prove the guilt of the accused, especially when there is no cogent and convincing evidence adduced on record by the prosecution to prove the rash and negligent driving by the accused. Moreover, PW-3 in his cross-examination categorically admitted that injuries as mentioned in the MLCs were possible as a result of scuffle also. 14. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Moreover, PW-3 in his cross-examination categorically admitted that injuries as mentioned in the MLCs were possible as a result of scuffle also. 14. By now it is well settled that in a criminal trial evidence of the eye witness requires a careful assessment and needs to be evaluated for its creditability. Hon'ble Apex Court has repeatedly held that since the fundamental aspect of criminal jurisprudence rests upon the 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 and 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." 46. 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. 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. 15. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction could be based upon the same. 16. Consequently, in view of the detailed discussion made hereinabove as well as law referred hereinabove, this Court sees no illegality and infirmity in the impugned judgment of acquittal passed by the learned court below, which otherwise appears to be based upon the proper appreciation of the evidence adduced on record and as such, same is upheld. Accordingly, the present appeal is dismissed being devoid of any merit alongwith pending applications, if any.