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2021 DIGILAW 353 (HP)

State Of H. P. v. Simant Jaswal

2021-06-23

SURESHWAR THAKUR

body2021
JUDGMENT Sureshwar Thakur, J. - The accused became charged for commission of offences punishable under Sections 279, 337, and, under Section 338 of the IPC. The learned trial Magistrate, through its verdict made on 19.03.2008, upon, Case No. 105/2 of 2005/2002, recorded an order of acquittal, vis-a-vis, the aforestated charges, as became drawn against the accused. 2. The State of Himachal Pradesh, becomes aggrieved from the afore made verdict of acquittal. Consequently, for constituting an onslaught thereon, it has cast the extant appeal before this Court. 3. Briefly stated the facts of the prosecution case are that on 1.3.2002, complainant Kaudu Ram recorded his statement under Section 154 of the Cr.P.C., before the Police, to the effect that on 1.3.2002 at about 11.15 a.m, he was standing near the road at Baddu village along with other people. At that time a scooter driven by the accused, bearing No. HP-23- 3012 came from Ghumarwin side. It was being driven by the accused in a rash and negligent manner, and, resultantly it struck against the complainant, owing to which he sustained injuries on his person. The complainant was taken to CHC, Ghumarwin. On the basis of the statement of the complainant, an FIR was lodged at the police station concerned, and, thereafter the investigation formalities were completed. 4. The son of the victim one Brij Lal stepped into the witness box as PW-1. In his examination-in- chief, he has completely supported the prosecution version, as, is embodied in the FIR, lodged vis-a-vis the occurrence. The FIR lodged vis-a-vis the occurrence is assigned Ex.PW12/A. As aforestated a closest reading, of the examination-in-chief of PW-1, does unfold, that he has made therein communications, which are fully supportive of his previous statement recorded in writing. He also corroborates the version qua the occurrence as spelt out in Ex.PW12/A. 5. However, merely upon a closest scrutiny of his examination-in-chief, no firm inference, can be drawn, that hence he has lent a credible version, vis-a-vis, the fateful occurrence. Consequently, a closest scrutiny of his cross-examination is also imperative. A reading of the opening lines of his cross examination, unveils that an affirmative suggestion became meted to him, by the learned defence counsel, hence containing echoings, that at the relevant time of departure of Barat, about 100 people were standing by or on the side of the road. Consequently, a closest scrutiny of his cross-examination is also imperative. A reading of the opening lines of his cross examination, unveils that an affirmative suggestion became meted to him, by the learned defence counsel, hence containing echoings, that at the relevant time of departure of Barat, about 100 people were standing by or on the side of the road. To the afore affirmative suggestion an answer in the affirmative was made by PW-1. The apt sequitur thereof, is that, the defence admits the happening of the occurrence, and, also admits, that the occurrence happened at or on the side of the road. Furthermore, there is also a denial by PW-2, to a suggestion meted to him, during the course of his cross-examination, that the victim one Kodu Ram, was occupying the middle of the road. Importantly there is a further denial by PW-1, qua a suggestion meted to him, that the victim one Kodu Ram, was intentionally occupying the middle of the road, with a further intention to cause the happening of injuries on his person. Consequently, the defence, as, meted to PW-1, during the course of his cross-examination, is confined, to the victim Kodu Ram occupying the middle of the road, which otherwise is in conflict to the afore affirmative suggestion meted to him, in the opening of his cross-examination, wherein he has acquiesced to a suggestion, that about 100 people were occupying the side of the road. Consequently, the effect, if any, of any contrary thereto suggestion, becoming meted to him, in the latter part of his cross-examination, is completely meaningless, and, also is of no avail to the defence, moreso when it becomes negated by PW-1. 6. The victim Kodu Ram stepped into the witness box as PW-3, and, in his examination-in-chief, he completely supported the version as spelt out in the FIR embodied in Ex.PW12/A. During the course of his cross-examination, he communicates that at the relevant time, he was standing at or on the side of the road. However, to him, the defence omitted to mete any suggestion, as became meted to PW-1, that he was intentionally occupying the middle of the road, and, that hence the mishap occurred owing to his breaching the standards of due care and caution. However, to him, the defence omitted to mete any suggestion, as became meted to PW-1, that he was intentionally occupying the middle of the road, and, that hence the mishap occurred owing to his breaching the standards of due care and caution. Consequently, the afore omission also blunts the effect, if any, of the afore mechanical suggestion meted to PW-1, during the course of his cross-examination, which otherwise became denied by him and, is even in conflict with the suggestion meted to him in the opening of his cross-examination, wherein to an affirmative suggestion meted to him, that 100 people were occupying the side of the road, he rendered an acquiescing answer. Furthermore, PW-4, one Smt. Tara Devi, an eye witness to the occurrence has also supported the prosecution version. Consequently, this Court can make a candid or firm conclusion that at the relevant time, the relevant road was occupied by Baratis. However, the occupation of the relevant road by the Baratis, and, by the victim, was not at or on the middle of the road, rather was at or on the side of the road. Therefore, if otherwise sufficient space was available to the respondent/accused, for his plying the offending vehicle, thereupon, his navigating the offending vehicle onto the side of the road, and, colliding it with the person of the victim, does obviously make him penally liable. 7. The above conclusion is fortified by the Investigating Officer, who while upon stepping into witness box as PW-11, has in his examination-in-chief rather proven the site plan Ex.PW11/A. Since, thereafter the learned defence counsel though had, during the course of his subjecting him to cross- examination, an opportunity to impeach the validity of the recitals borne in Ex.PW 11/A, yet no suggestion for overcoming the effect of PW-11, rather in his examination-in-chief proving Ex.PW11/A, became put to him, during the course of his cross-examination. Therefore, this Court concludes that all the recitals borne in Ex.PW11/A inclusive of theirs disclosing that the fateful occurrence happened on or by the side of the road, assume(s) immense probative sanctity. Moreover, also the uneroded testifications of PW-1, PW-3 and of P-W-4 when make alike bespeakings, thereupon, they acquire vigour, as, they also gather firmest corroboration from the afore omission(s) of the learned defence counsel, in repudiating an alike thereto communications made in Ex.PW11/A, and, as became proven by PW-11. 8. Moreover, also the uneroded testifications of PW-1, PW-3 and of P-W-4 when make alike bespeakings, thereupon, they acquire vigour, as, they also gather firmest corroboration from the afore omission(s) of the learned defence counsel, in repudiating an alike thereto communications made in Ex.PW11/A, and, as became proven by PW-11. 8. An immense vigour to the afore inference is marshalled from the testification of PW-6, who medically examined the victim, and, proved the apposite MLC borne in Ex.PW6/F, X-ray films borne in Ex.PW6/A to Ex.PW6/C, and, x-ray report borne in Ex.PW6/D. The hereinafter extracted injuries were testified by PW-6 to be found occurring on the person of the victim, one Kodu Ram:- " 1. Swelling and restriction of movement of neck. 2. Lacerated wound at forehead. 3. Swelling inflammation at the nose. 4. Abrasion on the left side of the face and right thigh." He has also disclosed in his examination-in-chief, that after perusing the x-ray films, borne in Ex.PW6/A to Ex.PW6/C, and, report Ex.PW6/D, he found that injury No.3 was grievous , whereas, injuries No. 2 and 4 were simple in nature. Furthermore, in his examination-in-chief, he has disclosed that the afore injuries were causable by user of blunt weapon, and, their occurrence(s) was within 24 hours, since the examination of the victim one Kodu Ram. Therefore, the injuries as were found on the person of the victim become related to the time of occurrence. Since, he has also in his examination-in-chief voiced that the injuries are possible upon collision with a scooter, thereupon he corroborates the version qua the occurrence, as, mutually spelt out by PW-1, PW-3 and PW-4. 9. Since, PW-9, has in his examination-in-chief rather unerodingly voiced, that the offending vehicle as disclosed, by the report of Mechanical Expert, borne in Ex.PW9/A, was free from any mechanical defect, either latent or patent, hence the learned defence counsel, is barred from taking any plea before this Court, that any purported latent or patent defect, in the offending vehicle, caused the fateful occurrence. Contrarily, since there are candid testifications of the aforestated witnesses, rather supported by credible medical evidence, and with all making clear attribution(s) of incriminatory participation, of the offending vehicle, as, driven by the accused, hence, in the fateful occurrence. Contrarily, since there are candid testifications of the aforestated witnesses, rather supported by credible medical evidence, and with all making clear attribution(s) of incriminatory participation, of the offending vehicle, as, driven by the accused, hence, in the fateful occurrence. Therefore, this Court concludes that the charges drawn against the accused are proven, and, that the verdict of acquittal pronounced by the learned trial Court, does warrant interference, being made by this Court. 10. However, the learned defence counsel appearing for the respondent/accused, has contended with vigour, that since the prosecution witnesses i.e. PW-1, PW-3 and PW-4 are all related to each other hence their testifications, are interested versions, qua the occurrence. He further argues that no reliance can be placed on their testifications. To the contrary, he submits that since the independent witnesses to the occurrence one Amarnath and one Soma Devi, who respectively, deposed as PW-5 and PW-7, hence reneged from their respectively recorded previous statements in writing, and, also when each of the afore, upon, becoming subjected to the ordeal of exacting cross-examination by the learned APP, upon, permission being granted by the learned trial Court, , upon, their becoming declared hostile, rather remained unshattered. Consequently he argues that the charge against the accused, does founder and, that the order of acquittal does not merit any interference. 11. However, the afore submission, cannot be accepted, as, merely on the ground of interestedness of PW-1, PW-3 and PW-4, and, as arising from theirs being related to each other, cannot becomes a valid ground for scoring of their testificatings, especially when their respectively recorded testifications in Court, are otherwise free from any blemish, of any improvements or embellishments, vis-a-vis, their respectively recorded previous statements in writing, and, are also free from any inter se contradictions. Even otherwise, the testifications of PW-5 and PW-7, who reneged from their respectively recorded previous statements in writing, on their incisive scrutiny, do make displays, that to each of them a failed defence, was put that the victim Kodu Ram, at the relevant time, rather attempting to cross the road, and, that he was wearing a shawl, and, further that during the course of his lifting his shawl, it striking against the handle of the scooter and hence his falling onto the road. The afore defence, is contrived, and, an after thought, as, it did not became put to either PW-1, PW-3 and PW-4, during the course of their respective cross-examination(s). Moreover, as aforestated, since the site plan borne in Ex.PW11/A, for the aforestated reasons, is of immense probative sanctity, and, also when as aforestated, to each of them, during their respective cross-examinations, the acquiesced defence, is embodied in the occurrence taking place at the side of the road, and, furthermore, when there is a complete corroboration inter se the site plan borne in Ex.PW11/A and, testification(s) of PW-1, PW-3 and PW-4, rather rendered with the completest inter se corroboration, vis-a-vis, the happening of the fateful occurrence at the side or on the side of the road. Consequently also the afore PW-5 and PW-7, who stepped into the witness box rather subsequent to the recording of the testification(s) of PW-1, PW-3 and PW-4, are to be concluded to mete tutored versions qua the occurrence, and, this Court cannot accept the afore contrived version, as, lent by each of them to the occurrence. Preponderantly, also the afore version, as, made by PW-5 and PW-7 qua the occurrence is a sheer contrivance, as the defence, upon, completely failing to elicit any appropriate responses from PW-1, PW-3 and PW-4, during their respective cross-examinations, obviously proceeded to contrive exculpatory echoings from PW-5 and PW-7. 12. For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court, has not appraised the entire evidence, on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned trial court, hence, suffers from a gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record. 13. Consequently, there is merit in the extant appeal, and, it is allowed accordingly. The judgment impugned before this Court is set aside. The accused is convicted for his committing offences punishable under Sections 279, 337 and 338 of the IPC. The accused be produced before this Court on 12.07.2021 for his being heard on quantum of sentence.