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2019 DIGILAW 824 (HP)

State of Himachal Pradesh v. Kuldeep Chand

2019-07-01

CHANDER BHUSAN BAROWALIA

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JUDGMENT : Chander Bhusan Barowalia, J. 1. 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 Judicial Magistrate 1st Class, Nalagarh, District Solan (H.P.) dated 12.11.2008 in Criminal Case No. 63/2 of 2004. 2. Briefly stating facts giving rise to the present appeal are that on 5.12.2003, Police of Police Station, Nalagarh, received a telephonic message from Civil Hospital, Nalagarh, that two injured have been brought in the hospital with the alleged history of roadside accident. HC Sunil Kumar, has recorded the statement of complainant, under Section 154 of the Code of Criminal Procedure, in which, he has stated that he is working as a worker in "Laxmi Brick Kiln" Baglehan alongwith his wife. According to him, at about 3:00 p.m. he had sent his son Ankit to purchase "biri bundle" from the nearby shop when he was coming back after purchasing the aforesaid articles and when he was crossing the road, Maruti van came from Nalagarh side in a rash and negligent manner so as to endanger human life and personal safety of others struck against the legs of child. Thereafter, the injured child was lifted in the same vehicle bearing registration No. HP-01-3116 for medical treatment to Civil Hospital, Nalgarh. This accident has taken place due to the rash and negligent act on the part of the accused. On the basis of aforesaid statement, HC Sunil Kumar, sent rukka through Constable Ram Pyara to Police Station, Nalagarh. The matter was reported to the police, on the basis of which, FIR Ex.PW5/B was registered. Statement of the witnesses was also 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 eleven witnesses. Statement of the accused was recorded under Section 313 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. 3. The prosecution, in order to prove its case, examined as many as eleven witnesses. Statement of the accused was recorded under Section 313 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 has argued that the prosecution has proved the guilt of accused beyond the shadow of reasonable doubt, but the learned Court below on the basis of surmises and conjectures has acquitted the accused and the present is a fit case, where the accused is liable to be convicted after setting aside the judgment of acquittal. 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 all reasonable doubt and there is no occasion to interfere with the well reasoned judgment passed by the learned trial Court. 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, father of the injured, Pratap Singh. He has deposed that he has sent his son to purchase "biri bundle" from the nearby shop of "brick kiln" and when his son was coming back, then, a vehicle came from the Nalagarh side and crushed the foot of his son. He has nowhere stated that the Maruti van was in high speed. PW-2 Chanan Singh, has also supported the same and similar version given by PW-1. In his cross-examination, he has admitted that at the time of occurrence, he was sitting in his office and someone has come from Ranjeet Singh's shop to disclose that the accident has taken place. Thereafter, he went to the spot and the father of the injured, Pratap Singh, was also called. Meaning thereby, at the time of occurrence, neither PW-1 Pratap Singh nor PW-2 Chanan Singh, was present there and they are only the hearsay witness. He has also denied that the injured was crossing the road in a running condition. He has further denied that the occurrence has taken place due to the rash and negligent act on the part of injured. He has also denied that the injured was crossing the road in a running condition. He has further denied that the occurrence has taken place due to the rash and negligent act on the part of injured. PW-3, Kushal Kumar, owner of the vehicle has proved the certificate Ex.PW3/A, which was issued by him with regard to the employment of the accused. PW-4, Rajinder Singh, proved the mechanical report Ex.PW4/A. PW-6, Jagdish Chand, prepared the spot map Ex.PW6/A and recorded the statement of witnesses as per their version. PW-8, Jagdish Ram, prepared the challan after completion of the investigation. PW-11, ASI Harjeet Singh, has taken into possession the vehicle alongwith its documents and medico legal case summary from PGI, Chandigarh. 8. In the present case, it is admitted fact that injured Ankit is not cited as prosecution witness. His age in the Medico Legal Certificate is mentioned as five years and he was sent by his father to purchase "biri bundle" all alone after crossing the road. In these circumstances, it is clear that the father of the injured himself was negligent by sending his child to purchase "biri bundle" after crossing the National Highway. PW-2, Charan Singh, the matter was initially reported to him by a person from the shop of shopkeeper Ranjeet Singh. Meaning thereby, the alleged eye witnesses of the occurrence were not present at the time of occurrence. It is admitted fact that the injured was aged about five years and he was all alone allowed to cross the road to purchase a "biri bundle." There is nothing on record with respect to the rash and negligent act on the part of the driver of the vehicle in the absence of any evidence to that effect, it is difficult to convict a person, as no conviction can be based upon the presumption of surmises and conjectures. 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. 9. 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. So, this Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. 9. 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/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 10. 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. 11. 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. (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." 12. 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. 13. 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.