Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 956 (HP)

State Of Himachal Pradesh v. Ramesh Chand

2019-07-15

CHANDER BHUSAN BAROWALIA

body2019
JUDGMENT : Chander Bhusan Barowalia, J. The present appeal is maintained by the appellant/State, laying challenge to judgment dated 10.09.2008, passed by learned Additional Sessions Judge, Fast Track Court, Una, District Una, H.P., in Criminal Appeal No. 8 of 2006, whereby the accused/respondent (hereinafter referred to as "the accused") was acquitted for the commission of the offences punishable under Sections 279, 337 and 304A of Indian Penal Code, 1860 (hereinafter referred to as "IPC"). 2. The key facts necessary for adjudication of this appeal can tersely be summarized as under: As per the prosecution story, on 25.06.2004 police of Police Station, Amb, was informed by Medical Officer, that an injured person has been brought to the hospital. Police reached the spot and recorded the statement of Shri Jitender Kumar (complainant), son of Shri Gian Chand (hereinafter referred to "the deceased") under Section 154 Cr.P.C. The complainant in his statement portrayed that on 25.06.2004 he was standing at Panjoa bazaar and a tube well was being installed there. On the same morning the deceased alongwith Ramesh Chand (accused) went to Una for bringing compressor and at about 03:30 p.m. the accused was driving the tractor and compressor was trussed with the tractor. The accused was driving the tractor and the deceased alongwith one more person was sitting on the tractor. The tractor rolled down the hill and fell about 15 feet down. So, the complainant and other persons ran towards the spot of accident and found that the deceased and other person sustained minor injuries. Soon, the injured were shifted to PHC, Amb, where the deceased was declared dead. As per the complainant, the accused was found to have sustained no injury in the accident and due to his rash and negligent act the accident took place. On the statement of the complainant, police registered a case against the accused and the investigation ensued. It has come in the police investigation that one Surjit Kumar was also brought to PHC, Amb, at about 03:30 p.m., on 25.06.2004, with the alleged history of road accident. As per the post mortem report, the deceased died due to acute haemorrhage shock, as a result of fracture multiple and damage to the base of heart. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as ten witnesses. As per the post mortem report, the deceased died due to acute haemorrhage shock, as a result of fracture multiple and damage to the base of heart. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as ten witnesses. Statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded not guilty. The accused did not lead any evidence in his defence. 4. The learned Trial Court, vide its judgment dated 31.07.2006/04.08.2006 convicted the accused under Sections 279, 337 and 304A IPC and sentenced him to undergo simple imprisonment for three month under Section 279 IPC, rigorous imprisonment for two years and fine of Rs. 5,000/- and in default of payment of fine he was ordered to further undergo simple imprisonment for three months under Section 304A IPC and under Section 337 IPC the accused was sentenced to undergo simple imprisonment for three months. The accused preferred an appeal, laying challenge to the judgment of the learned Trial Court and the learned Lower Appellate Court, vide its judgment dated 10.09.2008 (impugned judgment), acquitted the accused for all the offences, hence the present appeal is preferred by the appellant/State. 5. I have heard the learned Deputy Advocate General for the State, learned counsel for the respondent and carefully gone through the records in detail. 6. Mr. Raju Ram Rahi, learned Deputy Advocate General, has argued that the learned Lower Appellate Court acquitted the accused without appreciating the evidence and law correctly and just on the basis of surmises and conjectures. He has further argued that the learned Lower Appellate Court did not appreciate the fact that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt. He has referred to the statement of PW-1, Shri Jatinder Kumar, who is son of the deceased and also the complainant in the instant case. As per the learned Deputy Advocate General, PW-1 has categorically stated that he has seen that the accused was looking here and there, so he could not negotiate the curve and resultantly the tractor fell down. He has argued that due to the rash and negligent driving of the accused the accident occurred and the deceased lost his life. On the other hand, Mr. He has argued that due to the rash and negligent driving of the accused the accident occurred and the deceased lost his life. On the other hand, Mr. Ajit Sharma, learned Counsel for the respondent/accused argued that in the instant case the statement of PW-7, Shri Surjit Singh, who was sitting alongwith the deceased on the tractor, is very vital. He has argued that PW-7 gave portrayal of the accident to the police, through his statement, which was recorded under Section 161 Cr.P.C. after 6-7 days of the accident. Learned Counsel for the accused has highlighted the statements of Shri Surjit Singh given to the police and before the Court. He has argued that PW-7, Shri Surjit Singh, made major improvements in his statement before the Court, so his testimony is not reliable. He has further argued that the statement of PW-1, Shri Jatinder Kumar (complainant), son of the deceased, is otherwise also not reliable. PW-1 made improvements in his statement before the Court. He has argued that the appeal sans merits, so the same be dismissed and the accused be acquitted. 7. In rebuttal, the learned Deputy Advocate General, has argued that the evidence, which has come on record, clearly show that due to the rash and negligent driving of the accused the accident occurred and the deceased lost his life. He has argued that after re-appreciating the evidence, which has come on record, the appeal be allowed and the accused be convicted. 8. The edifice of the prosecution case mainly rests upon the testimonies of PW-1, Shri Jatinder Kumar (complainant) and PW-7, Shri Surjit Singh (injured). PW-1, Shri Jatinder Kumar, deposed that on 25.06.2004, at about 03:15 p.m., a tractor was going towards Guga, which was being driven by the accused. He has further deposed that the deceased and Shri Surjit Kumar (PW-7) were sitting on the tractor. The tractor was going on downslope and rolled down the road. The accident took place due to the negligence of the accused, as he was looking here and there. The deceased died in the accident and Shri Surjit Singh sustained injuries. He has further deposed that he reported the matter to the police and his statement is Ex. PW-1/A. This witness, in his cross-examination, deposed that the site of work was visible from the site of accident and at that time five persons were working on the site of work. He has further deposed that he reported the matter to the police and his statement is Ex. PW-1/A. This witness, in his cross-examination, deposed that the site of work was visible from the site of accident and at that time five persons were working on the site of work. However, these witnesses were not examined by the prosecution for the reasons known to the prosecution. This witness tried to prove that accident took place due to the negligence of the accused, as he was looking here and there. This witness, in his cross-examination, admitted that he did not mention to the police that the accused was looking here and there and due to this the accident took place. So, it would not be inapt to say that this witness made improvements while deposing in the Court. 9. Pw-7, Shri Surjit Singh (injured), another key prosecution witness, feigned ignorance qua the time, date and month of the alleged accident. As per this witness, the accused was driving the tractor on high speed and due to this reason he lost control over the tractor and the tractor rolled down from the road. This deposition of PW-7 is complete mismatch to the testimony of PW-1. PW-1 attributed the cause of accident that the accused was looking here and there, whereas, as per PW-7, the accident took place as the accused was driving the tractor on a very high speed. Now, the key prosecution witnesses have given different causes of accident. Indisputably, at the time of the alleged accident a compressor was trussed with the tractor, so it seems highly improbable that the tractor was going on a high speed. PW-1 and PW-7 have given different causes for the alleged accident and both these witnesses, as per the prosecution case, are the eye witnesses of the accident. However, the depositions of these witnesses are distinct, as they attributed different reason for the alleged accident. 10. Dr. R.K. Garg (PW-6) noticed the following injuries on the person of the deceased: "1. Multiple abrasions on the right fore arm; 2. Multiple abrasions on the right eye; and 3. Blunt trauma to the back and left shoulder." This witness issued medico legal certificate, Ex. PW-6/A. As per this witness, the injuries sustained by the deceased could be caused to a person sitting on the tractor and the tractor rolls down. 11. Multiple abrasions on the right fore arm; 2. Multiple abrasions on the right eye; and 3. Blunt trauma to the back and left shoulder." This witness issued medico legal certificate, Ex. PW-6/A. As per this witness, the injuries sustained by the deceased could be caused to a person sitting on the tractor and the tractor rolls down. 11. Even if it is taken that the deceased died in the alleged accident, then also the prosecution has to establish that due to the rash or negligent driving of the accused the alleged accident took place. Firstly, PW-1 attributed the cause of accident that accused was looking here and there and secondly PW-7 attributed the cause of accident that accused was driving the tractor on a high speed, even when a compressor was trussed with the tractor. Principally, a rash act is an over-hasty act and is thus opposed to a conscious act, but it also includes an act which, though it may be said to be conscious, is yet done without due care and caution. In rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. The prosecution has to prove in the instant case that due to rash or negligent act of the accused the alleged accident took place, but the key prosecution witnesses give divergent portrayal qua the cause of the accident. Thus, it cannot be said that the accused was rash or negligent in driving the tractor. 12. As noted above, the testimonies of PW-1 and PW-7, the key prosecution witnesses, make the prosecution story doubtful. There are other auxiliary contradictions which render the prosecution story tainted with doubts. The first portrayal of the accident was given by PW-1, through his statement, Ex. PW-1/A, under Section 154 Cr.P.C. However, this statement nowhere mentions the name of PW-7, especially when PW-7 was known to PW-1. This Court cannot shut its eyes to the fact that accident took place on 25.06.2004 and the police recorded the statement of PW-7 on 01.07.2004. This unexplained delay of 6-7 days further makes the prosecution story doubtful. As per the prosecution story, the accused, who was driving the tractor, had not sustained any injury, especially when the tractor alongwith the accused, the deceased and PW-7, Shri Surjit Singh (injured) rolled down for 10-15 feet. This unexplained delay of 6-7 days further makes the prosecution story doubtful. As per the prosecution story, the accused, who was driving the tractor, had not sustained any injury, especially when the tractor alongwith the accused, the deceased and PW-7, Shri Surjit Singh (injured) rolled down for 10-15 feet. Thus, the fact that the accused had not sustained any injury in the accident also seems improbable and the prosecution could not offer any explanation why the accused had not sustained any injury in the alleged accident. So, all these facts clearly create doubt qua the veracity of the prosecution story and makes it unbelievable. 13. Though, prosecution has also examined other witnesses, but their depositions are not worth discussing, as the prosecution case fails after examining the key prosecution witnesses, i.e., PW-1 and PW-7, who are also alleged eye witnesses of the accident. 14. After exhaustively discussing the testimonies of key prosecution witnesses, it is safe to hold that prosecution witnesses have not given true version about the accident and, in fact, they tried to exaggerate the things and in their attempt to do so, they created a doubt in the mind of this Court qua the veracity of the prosecutions story. The Hon'ble Supreme Court in Arun vs. State, (2008) 15 SCC 501 , has held that if there are two reasonable views, then the view favouring the accused be adhered to. In the present case also there are two views and the available material on record compels this Court to tilt towards the view favouring the accused. 15. 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. 16. 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, reappreciate and reconsider the evidence upon which the order of acquittal is founded. 2. 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, reappreciate 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." 17. In view of the settled position of the law as discussed hereinabove and also the testimonies of the key prosecution witnesses, which are marred with contradictions and discrepancies, it would be more than safe to hold that the prosecution story is full of doubts and the prosecution could not cogently and convincingly establish the guilt of the accused. Thus, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Therefore, the findings of acquittal, as recorded by the learned Lower Appellate Court do not suffer from any infirmity. Thus, it is more than safe to hold that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Therefore, the findings of acquittal, as recorded by the learned Lower Appellate Court do not suffer from any infirmity. This Court sees no ground to overturn the findings of acquittal of the learned Lower Appellate Court. 18. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending miscellaneous applications, if any, shall stands disposed of.