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2021 DIGILAW 515 (HP)

State of H. P. v. Jaswinder Singh

2021-08-06

SURESHWAR THAKUR

body2021
JUDGMENT : Sureshwar Thakur, J. The learned Addl. Chief Judicial Magistrate 1st Class, Kasauli, District Solan, H.P., through, its verdict drawn upon Criminal Case No. 104/2 of 2002, made a verdict of conviction against the accused, for, charges drawn under Sections 279, 304-A of the IPC and, under Section 181 of the Motor Vehicles Act. He also proceeded to impose consequent therewith sentences of imprisonment and of fine, upon, the accused. 2. The convict/accused, upon, becoming aggrieved, proceeded to prefer Criminal Appeal/Case No.30FTC/10 of 2007, before the learned First Appellate Court, and, the latter made thereon a verdict of acquittal. 3. The state of Himachal Pradesh becomes aggrieved, and, has proceed to strive, to, annul the verdict of acquittal recorded by the learned First Appellate Court, through its casting the extant appeal before this Court. 4. Briefly stated the facts giving rise to the extant appeal are that the complainant PW-4 Meena Kumari made a statement on 4.5.2002 with the Investigating Officer alleging that on that day she was moving to her uncle, father-in-law Bharat Bahadur to Village Kamli, Tehsil Kasauli, and, at about 4.00 p.m. when she was moving on foot in village Kamli, she found her uncle along with Jabar Singh and Om parkash etc., working thereat, whereafter she sat under shade with her daughter Monika, aged about 4 years, and, Neha, aged about one and a half years. Her daughter Monika proceeded to drink water and while crossing the road a tractor came at a fast speed, and, her daughter collided with the tyre and fell down. Though, the tractor driver had seen her crossing the road yet he did not stop the tractor. On her cries the driver stopped the tractor and her daughter was taken in the same tractor to ESI hospital Parwanoo from where she was referred to PGI Chandigarh, but she died on the way. The name of the truck driver who caused the accident on account of rash and negligent driving of the offending tractor was disclosed to be one Jaswinder Singh. On the afore statement, the FIR was registered in the police station concerned, and, the investigations into the alleged offences were conducted and concluded. 5. The name of the truck driver who caused the accident on account of rash and negligent driving of the offending tractor was disclosed to be one Jaswinder Singh. On the afore statement, the FIR was registered in the police station concerned, and, the investigations into the alleged offences were conducted and concluded. 5. The child victim is reported in the apposite FIR, borne in Ex.PW7/A to receive injuries on her person, in sequel to hers being struck by the offending tractor, driven at the relevant time, by accused Jaswinder Singh. Ex.PW7/A is recorded at the instance of the mother of the victim. The mother of the victim, stepped into the witness box as PW-4, and, in her testification, borne in her examination-in-chief she proved the contents carried therein. However, in her cross-examination, she has made an echoing that at the relevant time, her minor child was attempting to cross the road. The afore made deposition by PW-4, is, as aforestated, rather in complete tandem with the FIR lodged by her in the police station concerned, FIR whereof, is embodied in Ex.PW7/A. The site plan appended with the FIR, is Ex.PW8/A, and, narrates that the relevant site of occurrence is very close to the edge of the road. Consequently, the learned Additional Advocate General, has contended with much vigour before this Court, that since the child victim was not occupying the middle of the road, hence, the accused was enjoined to adhere to the standards of due care and caution, in his driving the offending vehicle, inasmuch, as, he was required to yet avoid the colliding of the offending vehicle with the person of the victim. Since, he omitted to do so, therefore, the learned Additional Advocate General, contended that the findings of conviction recorded by the learned trial Court are meritworthy, and, that the findings of acquittal recorded by the learned first Appellate Court are unmeritworthy. 6. Since, he omitted to do so, therefore, the learned Additional Advocate General, contended that the findings of conviction recorded by the learned trial Court are meritworthy, and, that the findings of acquittal recorded by the learned first Appellate Court are unmeritworthy. 6. As afore stated, PW-4, does not, with specificity voice in her examination-in-chief, the distance inter se the edge of the road, and, the site of occurrence, whereas, in case the afore became voiced with specificity, and, with candour, this Court would be facilitated, to draw a conclusion whether the minor child had only to a limited extent trudged onto the road from edge thereof or whether she had trudged onto the middle of the road, (i) inasmuch, as, upon hers evidently trudging upto the middle of the road, rather concomitantly therefrom, this Court would become facilitated to draw an inference that the minor child had been negligent, and, that the accused was not inculpably liable, (ii) or hence, upon hers evidently walking upto a minimal distance onto the road from edge thereof, thereupon, the accused would be inferred to be inculpably liable. However, for want of the evidence (supra), none of the afore inference can become unflinchingly drawn. 7. Dehors the above, the only evidence for facilitating this Court to make a firm conclusion, vis-a-vis, the afore facet is comprised in the site plan, as, became prepared by the investigating officer concerned. The site plan is borne in Ex.PW8/A. Ex.PW8/A, and, is proven by PW-8. If it depicts a truthful positioning of the vehicle, and, of the child, at the relevant site of occurrence, thereupon, the enumerations borne therein, that the minor child had walked onto the road, only upto a minimal distance from the edge thereof, hence would constrain this Court to draw a conclusion that the impugned order of acquittal, as, made by the learned First Appellate Court, rather deserves invalidation. 8. For determining whether Ex.PW8/A carries the afore depiction or it hence became validly drawn by PW-8, it becomes incumbent, upon, this Court to decipher, from the record, whether PW-8 arrived at the site of occurrence, immediately or in quick spontaneity to an information, being purveyed to him qua the happening of the accident, and, upon his prompt arrival at the site of occurrence, the position of the offending vehicle had not been disturbed. However, upon a reading of the testification of PW-8, it becomes apparent that he had suo motto prepared Ex.PW8/A. Moreover, he has also in his testification made an echoing, that when he had arrived at the site of occurrence, the offending vehicle was not positioned thereat. Therefore, the suo motto preparation of site plan Ex.PW8/A by PW-8 can hence be construed to be purely surmisal. In addition, since he has not mentioned in his site plan and, nor in his testification that in its drawing he had received any credible information about the positioning of the vehicle, at the site of occurrence, hence from any named witness, nor when the witness concerned, has stepped into the witness box, to prove all the recitals borne in Ex.PW8/A. Therefore, the narrations carried in Ex.PW8/A, and, appertaining to the minor child trudging only upto a minimal distance onto the metalled portion of the road, from the edge thereof, hence cannot be construed to either trustworthy or credible. 9. The inevitable sequel thereof, is that the prosecution cannot be concluded to have unfilinchingly proven the genesis of its case, and, as appertains to the afore factum. Contrarily the benefit of doubt has to be bestowed, upon, the accused/respondent. 10. For the reasons which have been recorded hereinabove, this Court holds that the learned Addl. Sessions Judge concerned, has appraised the entire evidence, on record, in a wholesome and harmonious manner, apart therefrom, the analysis of the material, on record, by the learned Addl. Sessions Judge concerned, hence, also does not suffer from any gross perversity or absurdity of mis-appreciation, and, non appreciation of germane thereto evidence, on record. 11. Consequently, there is no merit in the extant appeal, and, it is dismissed accordingly. The judgment impugned before this Court is affirmed. All pending applications also stand disposed of. Records be sent back forthwith.