Mahinder Singh vs State of Himachal Pradesh

Kuldip Singh, Judge

This revision is directed against the judgment dated 09.12.2005 passed by learned Additional Sessions Judge, Solan, Camp at Nalagarh, in Criminal Appeal No. 32-NL/10 of 2003, affirming judgment dated 09.12.2003/15.12.3003 passed by learned Sub Divisional Judicial Magistrate, Nalagarh, in Criminal Case No. 122/2 of 1999 convicting the petitioner for offences punishable under Sections 279, 337 IPC and sentencing him to undergo simple imprisonment for a term of six months and fine of Rs. 1,000/- u/s 279 IPC, simple imprisonment of three months and fine of Rs. 500/- u/s 337 IPC, with default clause. The prosecution case, in brief, is that on 19.05.1999 information was given to the police on telephone regarding accident. PW-9 H.C. Ved Prakash and constable Jeet Singh proceeded to the spot. The statement Ex. P-1 of Kamal Nain was recorded u/s 154 Cr.P.C. and thereupon FIR Ex. P-27 was registered.

The prosecution case is that on 19.05.1999 complainant was driving Jeep bearing No. HPG-999 and was coming from Nalagarh to Ratyor. At about 6.30 a.m., near Hotel River View at Chikanipul, three trucks were coming from Sawarghat side. One truck bearing registration No. HP-28-0375 was parked on the roadside. The truck bearing registration No. HIU-4636 overtook the trucks and came on wrong side. The complainant applied the brakes of the jeep, but since there was no space, the truck hit the jeep. On the bridge, the jeep was dragged by the truck about 76 feet. The driver and conductor of the truck ran away from the spot. The complainant sustained injuries on his person on account of accident. It has been alleged that accident took place due to rash and negligent driving of petitioner.

On completion of investigation, challan was submitted in the Court. The notice of accusation was put to the petitioner for commission of offences punishable under Sections 279, 337 IPC. The petitioner did not plead guilty and claimed trial. The prosecution has examined 12 witnesses and produced some documents. The statement of petitioner was recorded u/s 313 Cr.P.C., he denied the prosecution case. In the beginning, the petitioner took time to lead defence evidence, but later on, opted not to examine any witness in defence. On conclusion of trial, the learned trial Court convicted the petitioner on 09.12.2003 and sentenced the petitioner on 15.12.2003, as noticed above. The learned Additional Sessions Judge dismissed the appeal on 09.12.2005, hence revision.

I have heard Mr. N.S. Chandel learned counsel for the petitioner and Mr. J.S. Rana, learned Assistant Advocate General, representing the respondent. I have also gone through the record. It has been submitted on behalf of the petitioner that prosecution has miserably failed to connect the petitioner with the accident. There is no legal evidence on record to show that in fact petitioner was driving the truck when accident took place. It has also been submitted that it emerges from the evidence that accident took place due to deflating/bursting of front tyres of the truck. The two Courts below have misconstrued and misinterpreted the evidence on record and have erred in convicting and sentencing the petitioner. The sentence imposed is excessive. The prayer has been made for acceptance of revision and acquittal of the petitioner.

The learned Assistant Advocate General has submitted that petitioner has taken the plea of alibi but the prosecution has proved the case by leading cogent, trustworthy and unimpeachable evidence. PW-3 owner of the truck, who is father of the petitioner, has proved the case of the prosecution. The two Courts below have recorded concurrent findings of facts while convicting and sentencing the petitioner. The reappreciation of the evidence is not permissible in revision. The impugned judgment has not been shown to be perverse. The prayer has been made for dismissal of the revision.

In order to appreciate the contentions raised on either side, it is necessary to refer to evidence. PW-1 Kamal Nain, the complainant, has stated that near Hotel River View, Chiknipul, at about 6.30 a.m., three trucks were coming from opposite side, he was driving jeep HPG-999. The truck HIU-4636 overtook the three vehicles and hit his jeep which was dragged to about 76 feet. The truck driver and cleaner ran away from the spot. He suffered injuries in the accident. The accident took place due to rash and negligent driving of the truck driver. He gave statement Ex. P-1. He could not identify the truck driver. He was declared hostile and was cross-examined by the Prosecutor. In the cross-examination conducted by the defence, he has stated that in Hotel River View there are 5-7 workers. He did not see the driver of the truck. He denied that accident took place due to bursting of both front tyres of the truck.

PW-2 Rajesh Kumar is a witness for taking into possession truck HIU-4636 vide Ex. P-2 and jeep HPG-999 vide Ex. P-3. He has stated that jeep was handed over to Kamal Nain vide Ex. P-4. The documents of the truck were taken into possession vide Ex. P-5.

PW-3 Karchan Singh is the owner of the truck. He is the father of the petitioner. He has stated that he had engaged a driver, his son was also with the truck. He denied that there was no separate driver and his son was driving the truck. He was declared hostile and cross-examined by the Prosecutor. He has stated that Ex. P-6 is the logbook of the truck. He is illiterate. He had engaged Harbhajan Singh as driver. He had not verified the particulars of Harbhajan Singh, who had driven the truck on two trips only. He has stated that his son had been accompanying the truck and was driving the truck HPU-4636 since 03.04.1999. He has shown his ignorance that entry in Ex. P-7 is in the handwriting of his son. On 19.05.1999 the truck had gone from Barmana to Panchkula. He denied that petitioner was driving the truck on that date. In cross-examination conducted by defence he has stated that entry in Ex. P-6 is in the handwriting of Harbhajan Singh. Harbhajan Singh was driver and petitioner used to accompany him for supervision.

PW-4 Shyama Nand, mechanic, has proved mechanical report Ex. P-6 of truck HIU-4636 and HPG-999. PW-7 Virender Kumar has proved photographs Ex. P-7 to P-10 and negatives Ex. P-11 to P14. PW-8 S.I. Nutan Prasad has prepared the challan.

PW-9 H.C. Ved Prakash is the Investigating Officer. He has stated that he prepared site plan Ex. P-15. The petitioner was driving the truck as per logbook. The supplementary statement Ex. P-21 of Kamal Nain was recorded. He did not join owner, Manager, Hotel River View, in investigation. The logbook was recovered on 20.05.1999. The complainant had told who was driving the vehicle at the time of the accident. He denied that he got the logbook filled-in from Harbhajan, volunteered the logbook has been written by petitioner. PW-10 doctor B.S. Dhiman has proved MLC Ex. P-24. PW-11 Mahender Pal Bam has proved the FIR Ex. P-27.

PW-12 Amar Singh has stated that he was driver on truck No. HP-28-0375. He had been driving the said truck, about three years ago he was carrying cement from Barmana to Chandigarh. On a bridge near Nalagarh there was a blockade of vehicles. He stopped his truck. He was declared hostile and cross-examined by the Public Prosecutor. He had not seen the jeep coming from the Nalagarh side. The accident took place due to negligence of the truck driver. The accident had taken place about half an hour earlier he reached the spot. He does not know who was driving the truck. The petitioner in his statement u/s 313 Cr.P.C. has denied that he was driving the truck at the relevant time. He has denied that accident took place due to his negligence.

The second submission of learned counsel for the petitioner is taken first. It is contended that accident has taken place not due to the negligence or fault of the driver of the truck, but due to the bursting, deflating of both the front tyres of the truck. There is no merit in this contention. PW-1 complainant has clearly stated that the offending truck driver overtook three trucks and in doing so truck HIU-4636 hit the jeep of the complainant which he was driving. The statement of PW-1 on this aspect is corroborated by the photographs Ex.P-7 to P-10. In Photographs offending truck is on its extreme wrong side at the time of the accident. It is nobody''s case that the position of the vehicles was changed after the accident. The photographs also indicate that there is no bursting of front tyres of the truck. PW-9 Ved Prakash, Investigating Officer, no doubt, has stated that when he reached the spot, both the tyres were deflated. He has not stated that tyres deflated immediately before the accident. The petitioner cannot take benefit from statement of PW-9 inasmuch as the defence did not project the case to PW-1 complainant that both the front tyres of the truck had deflated at the time of accident. It was suggested to PW-1 that both the front tyres of the truck got burst. Therefore, the contention of learned counsel for the petitioner is rejected that accident took place due to bursting, deflating of front tyres of the truck and not due to any other reason.

PW-1 complainant in his statement u/s 154 Cr.P.C. Ex. P-1 has not named the petitioner to be the person who was driving the truck at the time of accident. Mark-C which was later on exhibited as Ex.P-21 is the supplementary statement of complainant which was recorded on 20.05.1999 in which he has stated that he has identified the driver of the truck HIU-4636 which met with an accident with jeep HPG-999. He named Mohinder Singh driver of the truck. PW-1 in the Court has stated that the driver and cleaner of the offending truck had run away. He does not know that petitioner was driving the truck as he had not seen the driver. The statement of complainant in the Court on oath has completely demolished his supplementary statement Ex. P-21 wherein he allegedly identified and named petitioner as driver of the truck. The petitioner was arrested on 20.05.1999. In Ex. P-1 the complainant has not identified the driver nor named him but still no identification parade was got conducted whether in fact petitioner was the person, who was driving the truck at the time of the accident. There is no direct evidence that on 19.05.1999 at the time of accident, the petitioner was actually driving the truck.

It appears the two Courts below were swayed by logbook Ex.P-6 and entry dated 18.05.1999 Ex. P-7 in the logbook showing one Mahinder as driver of the truck. It has been contended on behalf of the respondent that petitioner was driving the truck in question and his name is recorded as driver in Ex. P-6 from 03.04.1999 onwards. The petitioner has denied that he was driving the truck at the time of accident on 19.05.1999, even PW-1 complainant has not deposed that at the time of accident petitioner was driving the truck. PW-3 owner of the truck has denied that entries in logbook Ex. P-6 were made by petitioner. In fact, entries in logbook Ex. P-6 have not been proved by legal evidence. There is no entry dated 19.05.1999 in the logbook Ex. P-6. Once there is no entry dated 19.05.1999 in the logbook showing petitioner to be the driver of the offending truck, then even if it is assumed that petitioner had been driving the truck from 03.04.1999 to 18.05.1999, it cannot be assumed that on 19.05.1999 also he was driving the offending truck. PW-3 has deposed that Harbhajan Singh was the driver on the truck. PW-9 Investigating Officer has not stated that he made any effort to trace out Harbhajan Singh. The prosecution has not examined cleaner of the truck who was accompanying the truck at the time of accident.

The prosecution case is that truck was carrying cement from Barmana to Panchkula. In normal course the truck must be carrying goods receipt some documents indicating driver''s name, but those documents were not recovered and produced. The Investigating Officer did not investigate whether at the place of loading of the truck at Barmana the particulars of the truck and driver were recorded. The prosecution is required to lead cogent evidence. The conclusion cannot be drawn on the basis of suspicion and hypothetical reasoning. There is difference between suspicion and proof. In the facts and circumstances, there is no sufficient evidence to record a finding that, in fact, petitioner was driving the truck at the time of accident. The two Courts below assumed too much from scanty evidence that petitioner was driving the truck at the time of accident. The view taken by two Courts below is based upon misconstruction and misappreciation of the evidence and is not sustainable. The prosecution has failed to prove that petitioner was driving the truck at the time of accident beyond reasonable doubt. The impugned judgment is not sustainable. In view of above, the revision is allowed. The judgment dated 09.12.2005 passed by learned Additional Sessions Judge, Solan, Camp at Nalagarh, in Criminal Appeal No. 32-NL/10 of 2003, affirming judgment dated 09.12.2003/15.12.3003 passed by learned Sub Divisional Judicial Magistrate, Nalagarh, in Criminal Case No. 122/2 of 1999 are set aside. The petitioner is acquitted of the accusation, his bail bonds are discharged. The fine amount, if any, be refunded to the petitioner.