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2021 DIGILAW 159 (HP)

Mohan Singh v. State of Himachal Pradesh

2021-03-19

CHANDER BHUSAN BAROWALIA

body2021
JUDGMENT : CHANDER BHUSAN BAROWALIA, J. 1. The present revision petition is maintained by the petitioner/accused (hereinafter referred to as “the accused”) under Sections 401 read with Section 397 Cr.P.C and Rule 1 of Part H Chapter 5, of High Court of HP (Appellate Side) Rules, 1997, against judgment dated 01.10.2011, passed by learned Sessions Judge, Sirmaur, District at Nahan, in Criminal Appeal No. 45-Cr.A./10 of 2009, upholding the judgment of conviction dated 28.08.2009 and sentence dated 31.08.2009, passed by learned Judicial Magistrate 1st Class, Paonta Sahib, District Sirmaur, in Criminal Case No. 127/2 of 2006/04. 2. Tersely, the facts giving rise to the present petition can be summarized as under: On 10.09.2004, around 09:05 a.m., police of Police Station Paonta Sahib were telephonically informed from Civil Hospital, Paonta Sahib, about an accident case, so the police team rushed to the hospital. Police recorded the statement of Ms. Om Lata (injured/complainant) under Section 154 Cr.P.C., who divulged that at about 08:45 a.m., when she alongwith her niece Bharti Sharma (injured) were on their feet to Devi Nagar and reached near Chandel Clinic at Devi Nagar, a white Sumo car, which was being driven rashly and negligently, came from Vishwa Karma side and hit against her from behind. As a result of the impact, she fell down and sustained injuries. Many people thronged the spot of accident and she was shifted to hospital by her niece. As a sequel of the statement of the injured, police registered a case under the apt Sections of IPC and the injured was medically examined. Police prepared the spot map, seized the vehicle involved in the accident alongwith its documents and got the same mechanically examined. Police, after completion of investigation, presented the challan in the learned Trial Court and the learned Trial Court, through its judgment dated 28.08.2009, convicted the accused under Sections 279 and 337 IPC and sentenced him to undergo simple imprisonment for one month and to pay fine of Rs. 500/- under Section 279 IPC and in default of payment of fine to undergo simple imprisonment for 15 days. The accused was further sentenced to undergo simple imprisonment for one month and to pay fine of Rs. 500/- under Section 337 IPC and in default of payment of fine to undergo simple imprisonment of 15 days. 500/- under Section 279 IPC and in default of payment of fine to undergo simple imprisonment for 15 days. The accused was further sentenced to undergo simple imprisonment for one month and to pay fine of Rs. 500/- under Section 337 IPC and in default of payment of fine to undergo simple imprisonment of 15 days. The accused laid challenge against the judgment of the learned Trial Court, by filing an appeal, before the learned Lower Appellate Court. The learned Lower Appellate Court, vide its judgment dated 01.10.2011, dismissed the appeal and upheld the verdict of the learned Trial Court, hence the present revision petition. 3. It is averred in the petition that the impugned judgment rendered by the learned Lower Appellate Court is against law and facts and the same is liable to be set aside. It is further averred that the learned Courts below have not appreciated the evidence in its right and true perspective. It is further contended that the statement of PW-1 has been wrongly appreciated. Lastly, it is prayed that the accused be acquitted by setting aside the impugned judgments. 4. I have heard the learned Senior Counsel for the accused, learned Additional Advocate General for the respondent/State and gone through the relevant records. 5. Learned Senior Counsel for the accused has argued that the statement of PW-1, Ms. Om Lata, is unworthy of credence, as she deposed that she does not know the accused, whereas PW-3, Ms. Bharti Sharma, while being cross-examined, deposed that PW-1 complained to her that accused used to tease the girls, when they cross the road. The learned Senior Counsel further argued that the identity of the accused was not established and to convict him on the basis of unreliable hearsay evidence is not only improper, but against the settled principles of criminal jurisprudence. He has argued that under these circumstances the judgments of the learned Courts below be set-aside and the accused be acquitted. On the contrary, the learned Additional Advocate General has argued that PW-3 has unambiguously narrated the registration number of the vehicle involved in the accident, which is sufficient to prove the guilt of the accused beyond the shadow of reasonable doubt, so the judgments of the learned Courts below require interference. He has argued that the learned Courts below have rightly appreciated the evidence and convicted and sentenced the accused. He has argued that the learned Courts below have rightly appreciated the evidence and convicted and sentenced the accused. The petition, being devoid of merits, be dismissed. 6. In rebuttal, the learned Senior Counsel for the accused highlighted the statement of PW-2, Shri Hakam Chand, who unequivocally deposed that he came to know about the accident from the persons thronged on the spot of accident. He has further argued that even PW-3 did not identify the accused and she is also a hearsay witness. He has argued that the impugned judgments are result of wrong and mis-appreciation of evidence, so the same deserve to be set-aside by allowing the extant petition and the accused be acquitted. 7. Indeed the reversionary jurisdiction is very wide and the Court can interfere to test the correctness, legality or even the propriety of any findings, sentence or order. The Hon’ble Supreme Court in Dulichand v. Delhi Admn., AIR 1975 SC 1960 , held that “the jurisdiction of the High Court in a criminal revision application is severely restricted and it cannot embark upon re-appreciation of the evidence. Thus, the interference of the High Court in criminal revisions is limited and it is called for only in exceptional cases of gross miscarriage of justice, manifest illegality or perversity and not merely because another view was possible. However, keeping in view atypical nature of the case, it would be apt to examine the evidence. 8. PW-1, Ms. Om Lata (complainant/injured) deposed that on 10.09.2004, around 08:45 a.m., she, alongwith her niece Ms. Bharti Sharma (PW-3), was walking on road side and suddenly a white Sumo car struck her from behind, resultantly she fell down and ultimately shifted to the hospital. She sustained injuries due to the impact of the vehicle. This witness clearly deposed that she was walking on katcha road when the accident occurred. She was not aware about the registration number of the vehicle in question and the person driving the same. She further stated that name of the accused and the vehicle number, have not been incorporated by her in her statement. Thus, the statement of the complainant, fails to lift the veil over the identity of the accused, so the statement of PW- 3, Ms. Bharti Sharma, alleged eye-witness, assumes pivotal significance. She further stated that name of the accused and the vehicle number, have not been incorporated by her in her statement. Thus, the statement of the complainant, fails to lift the veil over the identity of the accused, so the statement of PW- 3, Ms. Bharti Sharma, alleged eye-witness, assumes pivotal significance. Now, PW-3, niece of the complainant, deposed that on the relevant day, when she was walking with the complainant, a white Sumo car hit the complainant from behind and resultantly she fell down and sustained injuries. This witness identified the accused, being the driver of the vehicle involved in the accident and mentioned vehicle number, i.e., UA-07G-1493. As per this witness, the accused after striking the complainant, tried to flee and only stopped when she raised alarm. She shifted the complainant to the hospital, where the accused visited. Undeniably, the statement of PW-3 is free from the stains of improvements, contradictions, so the same is credible. However, the only thing, which this Court cannot ignore, is the interestedness of this witness, as PW-3 is niece of the complainant, so her narration of events, which undoubtedly remain unstained, needs similar lateral support from either PW-1 (complainant) or PW-2 Shri Hakam Chand. Painstaking examination of PW-1 reflects that she neither mentioned the name of the accused, being the driver of the vehicle, and the vehicle, which hit her, so this extent she is hearsay witness. PW-1 clearly deposed that name of the accused and the vehicle involved in the accident were not incorporated by her in her statement, so, unfortunately, the statement of this witness fails to provide lateral support to the version of PW-3. 9. Now, the hands of the clock, completely turns towards PW-2, Shri Hakam Chand, seeking lateral support to the deposition of PW-3, whose version remains unstained. On scrupulous examination of PW-2, it appears that he is a hearsay witness. PW-2 deposed that on 10.09.2004, around 08:45 p.m., when he heard noise, he rushed to the spot and found a girl, who sustained injuries, on being struck by a Sumo car. He further deposed that a Sumo car was standing at a distance of 15/20 feet ahead and its number was UP-07G-1493. This witness categorically stated that he did not see the accident and not aware about the facts and circumstances. Thus, in fact, nothing came on record, which even remotely support the version of PW-3. He further deposed that a Sumo car was standing at a distance of 15/20 feet ahead and its number was UP-07G-1493. This witness categorically stated that he did not see the accident and not aware about the facts and circumstances. Thus, in fact, nothing came on record, which even remotely support the version of PW-3. This witness neither identified the accused to be the driver of the vehicle hitting the complainant nor identified the vehicle involved in the accident. He simply deposed that he saw a Sumo car standing nearby and when he heard noise, he rushed to the spot. So, the deposition of this witness, instead of providing lateral support to the deposition of PW-3, leaves the same in isolation. 10. The other prosecution witnesses, being official in nature and more importantly having insignificant roles, need no discussion, as their depositions would only be looked into in case the identity of the accused and his causing the accident is proved through the versions of PWs 1 to 3. 11. After threadbare scrutiny of the testimonies of PWs 1 to 3, it can be safely held that PW-2 is a hearsay witness, PW-1 (injured) did not see the accused driving the vehicle, which struck her, and she also did not notice the number of the vehicle. PW-3, whose statement inspires confidence and remains unstained from contradictions and improvements, is niece of the complaint, so there is probability that she is an interested witness and her version is an upshot of her’s being relatives to the complainant. 12. PW-3, while appearing in the witness-box deposed that the accident occurred opposite to Chandel Clinic, when she, alongwith her Massi PW-1, Ms. Om Lata, was walking. She further deposed that in the hospital, she saw a person, Mohan Lal, and she was told that he was driving the vehicle, which struck against the complainant. Thus, even this witness did not disclose the name of the accused on her own identification. As far as identity of the accused is concerned, the statement of PW-3, whose testimony inspires confidence, to this extent, seems slippery, shaky and shabby, rendering it incredible. On the other hand, PW-2, Shri Hakam Chand, deposed that when the accident occurred, he was opening his clinic. He has clearly deposed that he did not see the vehicle and the driver of the same. 13. On the other hand, PW-2, Shri Hakam Chand, deposed that when the accident occurred, he was opening his clinic. He has clearly deposed that he did not see the vehicle and the driver of the same. 13. The testimony of PW-1 (complainant) also seems doubtful as she deposed that she does not know the accused, but PW-3 deposed that PW-1 complained to her that the accused used to tease the girls, so this contradiction cannot at all be ignored. One more contradiction in the statement of PW-1 is that she deposed that the vehicle hit her leg, whereas as PW-4, Dr. K.L. Bhagat, stated that the complainant (PW-1) sustained simple injury on her head and there was no bleeding, swelling etc. PW-4 has further deposed that other than the injury mentioned above, there was no other injury. Thus, there is clear departure amongst the statements of PW-1 and PW-4. 14. After careful and meticulous examination of the records, this Court finds that the identity of the accused is not established and it cannot be said that it was the accused who was driving the vehicle, which struck against the complainant and resultantly she sustained injuries. So, it is more than safe to hold that the learned Courts below have not appreciated the evidence in its right and true perspective. 15. In the light of what has been discussed hereinabove, the conviction of the accused and consequent sentence cannot be upheld, as the prosecution has failed to prove its case beyond the scope of reasonable doubts. The petition is allowed and the judgments and sentence of the learned Courts below are set-aside.