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2024 DIGILAW 118 (HP)

State of H. P. v. Lekh Raj

2024-02-26

RAKESH KAINTHLA

body2024
JUDGMENT : Rakesh Kainthla , J. The present appeal is directed against the judgment dated 29.04.2010 passed by learned Chief Judicial Magistrate, Solan, vide which the respondent (accused before learned Trial Court) was acquitted of the commission of offences punishable under Sections 279 and 337 of the Indian Penal Code (IPC) and Section 187 of Motor Vehicles Act (in short ‘MV Act’). (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience). 2. Briefly stated, the facts giving rise to the present appeal are that the police presented a challan against the accused for the commission of offences punishable under Sections 279 and 337 of IPC. It was asserted that Puran Chand (PW6) was driving the bus bearing registration no. HP-25-0793 on 07.04.2005, which was going from Kalka to Kafnu. The bus reached Galog near Nagli Bridge at about 7:00 am. A truck bearing registration No.HR-37A-1426 came at a high speed from the opposite side and hit the bus on the wrong side. 15 to 20 passengers were present on the bus; however, none sustained injuries. The driver sustained injuries and the bus was damaged towards the driver's side. The truck driver stopped the truck on the roadside and ran away from the spot. An intimation was given to the police. An entry No.20 (Ext. PW7/A) was registered in the police station. HC-Ram Rattan (PW11) was sent to the spot for verification. He recorded the statement of Puran Chand (PW6/A), which was sent to the police station for the registration of the FIR. FIR (Ext. PW8/A) was registered in the police station. ASI-Ram Rattan conducted the investigation. He prepared the site plan (Ext. PW11/A). He seized the truck bearing registration No. HR-37A-1426 along with documents vide memo (Ext. PW9/A). The bus bearing registration No. HP-25-0793 was seized vide memo Ext. PW1/B. Karam Chand (PW2) conducted the mechanical examination of the truck and the bus and found that there was no mechanical defect in them, which could have led to the accident. He issued the reports (Ext. PW2/A and PW2/B). The photographs of the spot (Ext. P1 to P7) and negatives (Ext. P8 to P12) were taken. The duty rosters of the driver and conductor were taken into possession. He issued the reports (Ext. PW2/A and PW2/B). The photographs of the spot (Ext. P1 to P7) and negatives (Ext. P8 to P12) were taken. The duty rosters of the driver and conductor were taken into possession. The statements of witnesses were recorded as per their version and after the completion of the investigation, the challan was prepared and presented before the Court. 3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Sections 279 & 337 of IPC and Section 187 of the MV Act. The accused pleaded not guilty and claimed to be tried. 4. The prosecution examined 13 witnesses to prove its case. Paras Ram (PW1) did not support the prosecution case. Karam Chand (PW2) conducted the mechanical examination of the vehicles. Gurbachan Singh (PW3) proved that the bus bearing registration No.HP-25-0793 was going from Kalka to Kafnu. Dr. Sandeep (PW4) conducted the radiological examination and found that there was no fracture. Dr Mukta (PW5) conducted the medical examination of Puran Chand and found that he had sustained injuries, which could have been caused by a motor vehicle accident. Puran Chand (PW6) was driving the bus and sustained injuries. Rajesh Kumar (PW7) proved the entry in the daily diary. Babita Rana (PW8) signed the FIR. HHC Ramesh Chand (PW9) is the witness to the recovery. Shiv Prasad (PW10) is the owner of the truck. ASI-Ram Rattan (PW11) conducted the investigations. Ghanshyam Sharma (PW12) produced the record. Jitender Singh (PW13) was the conductor of the bus. 5. The accused in his statement recorded under Section 313 of Cr.P.C. admitted that he was driving the truck at the time of the accident. He denied the rest of the prosecution case. He stated that the accident occurred due to the negligence of the driver of the bus. No defence was sought to be adduced by him. 6. Learned Trial Court held that the bus was moving downhill and the truck was moving uphill. The bus was running behind the scheduled time. The place of the accident was wide enough to enable the two vehicles to pass. The truck was loaded. It was going uphill. Hence, an inference could be drawn that it was moving slowly, whereas, the bus was late and was going downhill. The bus was running behind the scheduled time. The place of the accident was wide enough to enable the two vehicles to pass. The truck was loaded. It was going uphill. Hence, an inference could be drawn that it was moving slowly, whereas, the bus was late and was going downhill. The possibility of the bus being driven at a high speed could not be ruled out. The Investigating Officer admitted that the accused was present at the spot after the accident, and the version that the accused had absconded from the spot after the accident was not proved; hence, the learned Trial Court acquitted the accused. 7. Being aggrieved from the judgment passed by the learned Trial Court, the present appeal has been filed asserting that the learned Trial Court did not appreciate the evidence properly. The reasoning of the learned Trial Court is unsustainable. The testimonies of Puran Chand and Jitender Kumar were ignored. The Court has to see the quality of evidence rather than the quantity. It was categorically stated by the driver and the conductor of the bus that the truck was being driven at a high speed. There was no justification for discarding their testimonies. Learned Trial Court erred in rejecting these testimonies without any sufficient reason. Therefore, it was prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 8. I have heard Mr. Jitender Sharma, learned Additional Advocate General for the appellant/State and Ms. Salochana Kaundal, learned counsel for the respondent/accused. 9. Mr Jitender Sharma, learned Additional Advocate General for the appellant/State submitted that the learned Trial Court erred in acquitting the accused. The testimony of Puran Chand, driver of the bus, was natural and he had categorically deposed about the negligence of the accused. His testimony was duly corroborated by Jitender, conductor of the bus. Learned Trial Court erred in rejecting their testimonies based on the hypothesis and conjectures. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Ms. Salochana Kaundal, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court and submitted that no interference is required with the same. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Trial Court be set aside. 10. Ms. Salochana Kaundal, learned counsel for the respondent/accused supported the judgment passed by the learned Trial Court and submitted that no interference is required with the same. She further submitted that the truck was going uphill and the bus was going downhill and learned Trial Court had rightly held that the speed of the truck could not be high, whereas the speed of the bus could be high. The vehicles were found on different sides of the road after the accident, which means that they were moved after the accident. The bus was carrying passengers at the time of the accident, but no passenger was examined; hence, she prayed that the present appeal be dismissed. 11. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 12. The present appeal has been filed against a judgment of acquittal. The Hon’ble Supreme Court laid down the parameters of deciding an appeal against acquittal in Jafarudheen v. State of Kerala, (2022) 8 SCC 440 , as under:- “Scope of Appeal filed against the Acquittal: 25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." 13. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:- “15. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters." 13. This position was reiterated in Siju Kurian versus State of Karnataka 2023 online SCC 429, wherein it was held:- “15. One of the main contentions raised by the learned counsel appearing for the appellant is to the effect that the High Court ought not to have interdicted with the judgment of the acquittal passed by the Trial Court and only in the event of the judgment of the Trial court was riddled with perversity and the view taken by the Trial Court was not a possible view, same could have been reversed by relying upon the judgment of this Court in case of Murugesan V. State through the Inspector of police (2012) 10 SCC 383 whereunder it came to be held as follows: “33. The expressions “erroneous”, “wrong” and “possible” are defined in the Oxford English Dictionary in the following terms: “erroneous.— wrong; incorrect. wrong.—(1) not correct or true, mistaken. (2) unjust, dishonest, or immoral. possible.—(1) capable of existing, happening, or being achieved. (2) that may exist or happen, but that is not certain or probable.” 34. It will be necessary for us to emphasize that a possible view denotes an opinion, which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctness or otherwise of any conclusion reached by a court has to be tested on the basis of what the superior judicial authority perceives to be the correct conclusion. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. A possible view, on the other hand, denotes a conclusion, which can reasonably be arrived at regardless of the fact where it is agreed upon or not by the higher court. The fundamental distinction between the two situations has to be kept in mind. So long as the view taken by the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, the view taken by the trial court cannot be interdicted and that of the High Court supplanted over and above the view of the trial court.” 16. It need not be restated that it would be open for the High Court to re-apprise the evidence and conclusions drawn by the Trial Court and in the case of the judgment of the trial court being perverse that is contrary to the evidence on record, then in such circumstances the High Court would be justified in interfering with the findings of the Trial Court and/or reversing the finding of the Trial Court. In Gamini Bala Koteswara Rao v. State of Andhra Pradesh (2009) 10 SCC 636 : AIR 2010 SC 589 it has been held by this Court as under: “14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word “perverse” in terms as understood in law has been defined to mean “against the weight of evidence”. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. 17. The Appellate Court may reverse the order of acquittal in the exercise of its powers and there is no indication in the Code of any limitation or restriction having been placed on the High Court in the exercise of its power as an Appellate court. No distinction can be drawn as regards the power of the High Court in dealing with an appeal, between an appeal from an order of acquittal and an appeal from a conviction. The Code of Criminal Procedure does not place any fetter on the exercise of the power to review at large the evidence upon which the order of acquittal was founded and to conclude that upon that evidence the order of acquittal should be reversed. 18. In the case of Sheo Swarup v. King Emperor AIR 1934 PC 227 , it has been held by the Privy Council as under: But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as: 1) The views/opinion of the trial judge as to the credibility of the witnesses; 2) The presumption of innocence in favour of the accused; 3) The right of the accused to the benefit of any doubt; and 4) The slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 19. This Court has time and again reiterated the powers of the Appellate Court while dealing with the appeal against an order of acquittal and laid down the general principles in the matter of Chandrappa v. State of Karnataka (2007) 4 SCC 415 to the following effect: “42. From the above decisions, in our considered view, the following general principles regarding the 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 Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and law. (2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on the exercise of such power and an Appellate court on the evidence before it may reach its own conclusion, both on questions of fact and 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 a 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.” 14. The present appeal has to be adjudicated in the light of the judgments of the Hon'ble Supreme Court. 15. Puran Chand (PW6) stated that he was driving the bus bearing registration no. HP-25-0793 from Kalka to Kafnu on 07.04.2005. When the bus reached near Nagali Bridge, a truck bearing registration No. HR-37A-1426 came at a high speed towards the wrong side of the road. He (Puran Chand) stopped the bus on its side; however, the truck hit the bus towards its side. He sustained a fracture on his leg. The passengers and the conductor did not sustain any injury. The accident occurred due to the negligence of the driver of the truck. The truck driver sped away from the spot. He stated in his cross-examination that the road is downhill from Barog to Solan. He volunteered to say that the road was straight at the place of the accident. He denied that the truck was loaded. 15-20 passengers were sitting in the bus. The truck driver sped away from the spot. He stated in his cross-examination that the road is downhill from Barog to Solan. He volunteered to say that the road was straight at the place of the accident. He denied that the truck was loaded. 15-20 passengers were sitting in the bus. The scheduled time of arrival at Solan was 7:00 am and it took about 15 minutes to cover the distance from Nagali Bridge to Solan. He admitted that there was a curve towards the left side of the road. He denied that the bus went towards the right side of the road while negotiating the curve. He admitted that the speed of the vehicle is high when it is going downhill. 16. Jitender Kumar (PW13) stated that he was posted as a conductor in the bus bearing registration No. HP-25-0793. When the bus reached a distance of about three kilometres from Barog, a truck bearing registration No. HR-37A-1426 came from the opposite side towards the wrong side of the road and hit the bus. The truck driver did not stop on the spot. The bus driver sustained an injury on his leg. No other person sustained injury in the accident. He denied in his cross -examination that the bus was late on the date of the accident. He admitted that the bus was going downhill and had reached Nagali Bridge at 7:00 am. He admitted that no passenger was associated as a witness. He volunteered to say that the passengers had already left the spot. The truck was going uphill. He did not know whether the truck was loaded or not. He denied that the bus was late and the driver was driving the bus at a high speed to cover the time. He admitted that the road was wide enough at the place of the accident. 17. Paras Ram (PW1) stated that he saw a truck going towards Barog and a bus going towards Deonghat. They hit each other at a curve. He did not remember whether any person had sustained injuries or not. He did not remember the registration number of the bus and the truck. He was permitted to be cross-examined. He admitted in his cross-examination by learned APP that the bus was coming from Chandigarh and the truck was going towards Chandigarh. They hit each other at a curve. He did not remember whether any person had sustained injuries or not. He did not remember the registration number of the bus and the truck. He was permitted to be cross-examined. He admitted in his cross-examination by learned APP that the bus was coming from Chandigarh and the truck was going towards Chandigarh. He denied that the accident occurred due to the negligence of the truck driver. He admitted that the truck stopped after negotiating the curve. He was contradicted with his previous statement and he denied the same. He stated in his cross-examination by learned counsel for the defence that the truck was loaded and was moving at a slow speed. The road was going downhill from Barog to Solan. There is a sharp curve at the place of the accident but the road is wide. Had the bus been at a slow speed, it could have negotiated the curve easily. The accident occurred due to the negligence of the bus driver. 18. The statement of this witness does not support the prosecution case. He categorically denied that the accident occurred due to the negligence of the accused. He stated that the accident occurred due to the negligence of the bus driver. 19. Both the driver and conductor of the bus stated that the truck was being driven at a high speed; however, none of these witnesses stated anything about the speed of the vehicle. It was laid down by the Hon'ble Supreme Court in Mohanta Lal vs. State of West Bengal 1968 ACJ 124 that the use of the term ‘high speed’ by a witness amounts to nothing unless it was elicited from the witness what is understood by the term 'high speed'. It was observed: “Further, no attempt was made to find out what this witness understood by high speed. To one man speed of even 10 or 20 miles per hour may appear to be high, while to another even a speed of 25 or 30 miles per hour may appear to be reasonable speed. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently. On the evidence in this case, therefore, it could not be held that the appellant was driving the bus at a speed which would justify holding that he was driving the bus rashly and negligently. The evidence of the two conductors indicates that he tried to stop the bus by applying the brakes; yet, Gopinath dey was struck by the bus, though not: from the front side of the bus as he did not fall in front of the bus but fell sideways near the corner of the two roads. It is quite possible that he carelessly tried to run across the road, dashed into the bus and was thrown back by the moving bus, with the result that he received the injuries that resulted in his death.” 20. This position was reiterated in State of Karnataka vs. Satish 1998 (8) SCC 493 wherein it was held: “Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur".” 21. This Court also held in State of H.P. Vs. Madan Lal 2003 Latest H.L.J. (2) 925 that speed alone is not a criterion for judging rashness or negligence. It was observed:- “It may be pointed out that speed alone is not a criterion to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs.” 22. This position was reiterated in State of H.P. Vs. It was observed:- “It may be pointed out that speed alone is not a criterion to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs.” 22. This position was reiterated in State of H.P. Vs. Parmodh Singh 2008 Latest HLJ(2) 1360 wherein it was held:- “Thus negligent or rash driving of the vehicle has to be proved by the prosecution during the trial which cannot be automatically presumed even on the basis of the doctrine of res-ipsa-loquitur. Mere driving of a vehicle at a high speed or slow speed does not lead to an inference that negligent or rash driving had caused the accident resulting in injuries to the complainant. In fact, speed is no criterion to establish the fact of rash and negligent driving of a vehicle. It is only rash and negligent act as its ingredients, to which the prosecution has failed to prove in the instant case.” 23. In the present case, there is no evidence of the approximate speed of the truck; therefore, the mere use of the term ‘high speed’ is not sufficient to infer the rashness or negligence of the accused. 24. The witnesses asserted that the accident occurred towards the wrong side of the road. The bus and the truck are shown to be parked towards their respective sides in the site plan, as well as, photographs. There is no material on record to pinpoint the exact place, where the accident had taken place. Some parts of the bus appeared to be lying on the road in the photographs (Ext. P3 and P4) but that is towards the rear side of the bus, which means that the bus had moved after the accident. The site plan does not show the location of these parts and the distance towards the left side and the right side, to ascertain, whether the truck was being driven towards the left side of the road or not. Therefore, there is insufficient material to corroborate the testimonies of eyewitnesses. 25. The investigating officer admitted that the accused was present on the spot when he reached the spot. This falsifies the prosecution's version that the accused had left the spot after the accident. 26. Therefore, there is insufficient material to corroborate the testimonies of eyewitnesses. 25. The investigating officer admitted that the accused was present on the spot when he reached the spot. This falsifies the prosecution's version that the accused had left the spot after the accident. 26. Therefore, the view taken by the learned Trial Court that there was insufficient evidence on record to show the rashness or negligence of the accused was a reasonable one, which could be taken based on the material on record. This Court will not interfere with the same while deciding an appeal against an order of acquittal. 27. No other point was urged. Final Order: 28. In view of the above, the present appeal fails and the same is dismissed.