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2019 DIGILAW 773 (HP)

State of Himachal Pradesh v. Kamal Kumar

2019-06-25

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, Judge (oral): Instant Criminal Appeal having been filed by the appellant-State, is directed against the judgment of acquittal dated 24.4.2009, passed by learned Additional Chief Judicial Magistrate, Dehra, District Kangra, Himachal Pradesh in Criminal case No. 391- I/2003/164-II/2004, whereby learned trial Court held respondent (hereinafter referred to as the 'accused?) not guilty of having committed of offences punishable under Sections 279 and 338 of IPC and accordingly acquitted him. 2. In nutshell, the case of the prosecution as emerge from the record is that on 14.8.2003, at around 10:20 A.M, Nitin Sharma was riding on cycle and complainant namely, Shruti Vaid was going on foot and when they reached near =Robin Cinema Chowk', at Nehran Rukhar, one Maruti car bearing registration No. HP-19-8298 being driven by the accused came from Dhaliara side in a high speed and hit cycle of Nitin Sharma from the back side, as a consequence of which, he fell down on the road and sustained serious injuries. The driver of the offending car stopped the vehicle at a distance of 50-60 feet and many people came on the spot. The accident in question allegedly occurred on account of the rash and negligent driving of the accused. The matter was reported to the police by the complainant, Shruti Vaid vide her statement made under Section 154 Cr.P.C., Ex.PW11/B, on the basis of which, formal FIR Ex.PW11/C came to be registered against the accused. After completion of the investigation, police presented the challan in the Court of learned Additional Chief Judicial Magistrate, Dehra, District Kangra, Himachal Pradesh, who being satisfied that a prima-facie case exists 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. Prosecution with a view to prove its case examined as many as thirteen 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. Learned trial Court on the basis of the evidence collected on record by the prosecution, held accused not guilty and accordingly acquitted him vide judgment dated 24.4.2009. However, he did not lead any evidence in his defence. 4. Learned trial Court on the basis of the evidence collected on record by the prosecution, held accused not guilty and accordingly acquitted him vide judgment dated 24.4.2009. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, seeking conviction of the accused after setting aside the impugned judgment of acquittal recorded by the learned trial Court. 5. Having heard learned counsel representing the parties and perused the evidence adduced 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 in agreement with Mr. Sudhir Bhatnagar, learned Additional Advocate General that learned trial Court while ascertaining the guilt, if any, of the accused failed to appreciate the evidence in its right perspective, as a consequence of which, erroneous findings have come to the fore, rather this Court having carefully perused the evidence led on record by the prosecution has no hesitation to conclude that prosecution has failed to prove beyond reasonable doubt that on the date of alleged accident, vehicle in question was being driven rashly and negligently by the accused, so as to endanger human life. Interestingly, in the case at hand, most of the independent witnesses have turned hostile and they have not supported the case of the prosecution. 6. Complainant, Shruti Vaid (PW-13) deposed that on 14.8.2003, at around 10:30 AM, she was coming to Bus stand Nehran Pukhar on foot and Nitin Sharma, who suffered injuries was coming on his cycle. She further deposed that Nitin Sharma was riding on the cycle on his left side and in the meanwhile, one car bearing registration No. HP-19- 8298 being driven by the accused came there and hit the cycle, as a consequence of which, Nitin fell down on the road. She further stated that accident in question occurred due to the fault of the driver of the car, but interestingly she nowhere specifically stated that accident in question occurred on account of the rash and negligent driving of the accused. In her cross-examination, she admitted that the place where accident took place was on the ascend. Though, she denied that Nitin was riding on the cycle by negotiating it to left and right side, but she admitted that she did not disclose the name of the accused to the police. In her cross-examination, she admitted that the place where accident took place was on the ascend. Though, she denied that Nitin was riding on the cycle by negotiating it to left and right side, but she admitted that she did not disclose the name of the accused to the police. She admitted the suggestion put to her that if the car had hit the cycle from back side then she would have also received injuries. 7. Nitin Sharma injured also deposed as PW-7 and stated that on 14.8.2003, at around 10:00 AM, while he was going to drop the daughter of his aunt, namely Shruti Vaid on the cycle, one car hit him from the back side, as a consequence of which, he received injuries. He stated that accident in question occurred on account of the fault of the car driver, but he also like complainant(PW-13), nowhere stated that at the tine of alleged accident, offending vehicle was being driven rashly and negligently by the accused. In his cross-examination, he also admitted that the accident took place on the ascend. He feigned his ignorance that he was moving the cycle by standing on the paddles due to which, cycle was moving here and there. He also feigned his ignorance with regard to direction from where vehicle hit his cycle. He also feigned his ignorance with regard to particular/ identification of the driver and type of vehicle, which allegedly hit his cycle. 8. PW-2, Jeewan Singh, PW-4, Ashish Sharma, PW-8, Kundan Dogra and PW- 12, Bhupinder Singh, so called independent witnesses, nowhere supported the case of the prosecution and turned hostile. Cross-examination conducted upon these witnesses, nowhere suggests that prosecution was able to extract something from them advantageous to its case. Rather, careful perusal of the cross-examination conducted on these witnesses, clearly suggests that accident occurred on account of the negligence on the part of the injured Nitin Sharma, who at that relevant time was riding on the cycle and accident took place on the ascend. PW-2, Jeewan Singh, in his cross-examination admitted that the accident took place on the ascend and sister of the cyclist was coming on foot. He also admitted that Nitin was moving the cycle by standing on the paddles and cycle was going left and right side. PW-2, Jeewan Singh, in his cross-examination admitted that the accident took place on the ascend and sister of the cyclist was coming on foot. He also admitted that Nitin was moving the cycle by standing on the paddles and cycle was going left and right side. This witness further stated in his cross-examination that Nitin Sharma all of a sudden turned the cycle towards the right side and hit the car, which was on its right direction. This witness in his cross-examination further deposed that maruti car being driven by the accused was in slow speed and driver of the car was not at fault. 9. Similarly, Ashish Sharma (PW-4) in his cross-examination stated that cousin of Nitin Sharma was going on foot behind the cycle. He admitted that had car hit the cycle from back side then cousin of Nitin must have received injuries during the accident. He admitted that cycle had not been damaged from back side and there is ascend on the spot. 10. PW-8, Kundan Dogra was unable to tell the date of the alleged accident, however he deposed that at 10:00/11:00 A.M, he was present in his shop and Nitin Sharma was coming on the cycle, whereas his sister was coming on foot. He deposed that one Maruti car was coming from the back side, however he refused to identify the accused in the Court. 11. Bhupinder Singh (PW-12) also not supported the case of the prosecution. Careful perusal of the cross-examination conducted upon this witness, clearly reveals that he did not depose even a single word against the accused. He denied that Nitin Sharma was going towards Nehran Pukhar Chowk on the cycle and one girl was also going on foot behind the cycle. He denied that one maruti car hit the cycle of Nitin, as a consequence of which, he received injuries. He specifically denied the suggestion put to him that accident in question occurred on account of the rash and negligent driving of the vehicle by the accused. In his cross-examination, he admitted that no accident took place in his presence. 12. Careful perusal of the statements having been made by the aforesaid witnesses, nowhere proves the case of the prosecution, rather create serious doubt with regard to correctness of the story put forth by the prosecution. 13. In his cross-examination, he admitted that no accident took place in his presence. 12. Careful perusal of the statements having been made by the aforesaid witnesses, nowhere proves the case of the prosecution, rather create serious doubt with regard to correctness of the story put forth by the prosecution. 13. Apart from above, version put forth by these witnesses cannot be accepted without there being corroboration, if any, of the independent witnesses. True, it is that version put forth by the interested witnesses cannot be brushed aside. In the case at hand, prosecution itself cited four independent witnesses, but version put forth by them in their cross-examination completely demolishes the case of the prosecution because version put forth by them, clearly creates suspicion with regard to identity of the accused as well as cause of the accident. 14. Leaving everything aside, there is no specific evidence led on record by the prosecution to prove rash and negligent driving by the accused. To prove guilt, if any, of the accused under Section 279 and 337 IPC, it is incumbent upon the prosecution to prove rashness and negligence on the part of the accused and there cannot be any presumption of rashness and negligence. Onus to prove rashness and negligence is always on the prosecution, which in the present case prosecution has failed to discharge. 15. 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 accusedappellant 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.” 16. 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.” 17. 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. 18. Reliance is also placed on judgment rendered by this Court in State of H.P. Vs. Manpreet Singh, Latest HLJ 2008 (HP) 538, 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, Latest HLJ 2008 (HP) 538, 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.” 19. 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 Supreme Court Cases 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. 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. 20. In the case at hand, there are material contradictions and inconsistencies in the statements of the prosecution witnesses and as such, no conviction can be based upon the same. 21. 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.