State of Himachal Pradesh vs Ashok Kumar

The present appeal is maintained by the appellant-State of Himachal Pradesh assailing the judgment of acquittal of the accused-respondent (hereinafter to be called as "the accused") in case under Sections 279 & 337 of the Indian Penal Code, passed by the learned Judicial Magistrate 1st Class, Court No. III, Una, District Una, H.P, dated 20.12.2007, in Criminal Case No.189-II-06/01.

Briefly stating the facts giving rise to the present appeal are that on 25.02.2001, Parkash Chand (hereinafter to be called as "the complainant") accompanied with Ashok Kumar, Pritam Chand, Jeet Ram, Sodhi Ram, Sanjay, Bablu Sharma and Hem Raj were going from Swarghat to Una for attending a marriage ceremony in a Utility vehicle, bearing registration No. HP-24A-3202. At about 7.30 pm, when they reached at Mehatpur Market, their vehicle collided with the Tempo of the accused, bearing registration No. HP-21-2451, which was coming from the other side in a rash a negligent manner. As a result, the abovementioned passengers sitting with the complainant sustained injuries. The statement of the complainant under Section 154 Cr.P.C was recorded, on the basis of which FIR, Ex. PW-10/B, was registered. HC Sunil Mohamad, investigated the matter and prepared spot map, Ex. PW-13/A. Tempo, bearing registration No. HP-21-2451, was taken into possession through recovery memo, Ex. PW-1/A and Utility, bearing registration No. HP-24A-3202, alongwith its documents was taken into possession through recovery memo, Ex. PW-1/B. Injured Sanjay, Pritam Chand, Hem Raj and Bablu were medically examined and MLCs, Ex. P-1 to P-4, were prepared. Both vehicles were mechanically examined and mechanical reports Ex. PW-9/A and Ex. PW-9/B, were obtained. Photographs of the spot, Ex. PW-3/A1 to Ex. PW-3/A4, were also taken.

Prosecution, in order to prove its case, examined as many as 12 witnesses. Statement of the accused was recorded under Section 313 Cr.P.C, wherein he denied the prosecution case and claimed innocence. Accused did not lead any defence evidence. The learned trial Court acquitted the accused, vide impugned judgment dated 20.12.2007, hence the present appeal.

Learned Deputy Advocate General appearing on behalf of the appellant/State has argued that the prosecution has proved the guilt of the accused beyond the shadow of reasonable doubt and learned Court below has committed illegality in acquitting the accused. The impugned judgment of acquittal passed by the learned Court below is perverse, hence the present appeal is required to be allowed and accused is liable to be convicted of the offence he was charged with.

On the other hand, learned counsel appearing on behalf of the accused argued that the accused is innocent and no case against him is made out from the prosecution evidence. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt and the learned Court below has rightly acquitted the accused.

In rebuttal, the learned counsel for the appellant has argued that the evidence clearly connects the accused with the Commission of offence, thus the accused may be convicted.

To appreciate the arguments of learned Deputy Advocate General and learned defence counsel, this Court has gone through the record in detail and minutely scrutinized the statements of the witnesses.

The prosecution has examined PW-2, complainant Parkash Chand, PW-1, Ashok Kumar (brother of the complainant), who were sitting in the utility vehicle at the time of said accident. Though, these witnesses have duly supported the prosecution story regarding rash and negligent driving of the accused, but the statement of PW-2, Parkash Chand, is contradictory about the date of the accident. The accident took place on 25.02.2001, whereas PW-2, Parkash Chand states that the accident took place on 22.02.2001. In cross-examination, PW-1, Ashok Kumar has admitted that all the witnesses in the present case are from the same family. He further deposed that there are several shops at the spot of accident and the I.O. had sufficient opportunity to join any of the witnesses, but he only picked the witnesses from the same family. However, on the other hand, PW-1, Ashok Kumar in his examination-in-chief specifically stated that he alongwith Jit Ram was sitting with the driver on the front seat of utility vehicle, but in his cross-examination he deposed that he was sitting on the back seat of the utility vehicle, thus it can be inferred that he was not travelling in the utility vehicle at the time of accident. PW-2, Parkash Chand, in his cross-examination deposed that it was not dark outside, at the time of said accident, however on the other hand PW-3, Gurmeet Singh, as well as PW-4 JIt Ram deposed that when accident took place, it was quite dark.

PW-3, Gurmeet Singh has deposed that he has come to Mehatpur for attending a marriage and when he reached at Mehatpur, one tempo bearing registration No. HP-21- 2451, coming in a rash and negligent manner collided with another vehicle, bearing registration No. HP-24A-3202. He admitted that photographs on the spot, Ex. PW-3/A to PW-3/A-4 were taken by him. He stated that accident had occurred due to the rash and negligent driving of the accused, however in his cross-examination he deposed that he did not see the accident himself. He feigned ignorance about the fact that from whose negligence accident took place. He further deposed that he took photographs, on being asked by Ramdhan and Police. He took photographs from the same angle as he was directed to do by Ramdhan and Police.

PW-4, Jit Ram, who was sitting in the utility at the time of accident, did not support the case of the prosecution regarding rash and negligent driving of the accused. He deposed that on the day of accident, when they reached at Mehatpur, one tempo coming from the side of Una collided with their utility vehicle, but he specifically stated that he is not aware due to whose mistake, the accident took place. In his cross-examination he denied that he had given any statement to Police regarding rash and negligent driving of the accused.

PW-7, Sanjay, also did not support the case of the prosecution. In his cross-examination he admitted that at the time of accident, he was sitting in the utility vehicle, he denied that the accident had occurred due to the rash and negligent driving of the accused.

PW-12, Pritam Chand, who was also sitting in the vehicle at the time of accident did not support the case of the prosecution. He has stated that the utility vehicle was hit from backside by another vehicle, however in his cross-examination he denied that the accident has occurred due to the rash and negligent driving of the accused.

PW-9, HHC Shakti Kumar, who conducted the mechanical examination of vehicles and submitted mechanical reports Ex. PW-9/A and Ex. PW-9/B. PW-9, in his cross-examination deposed that when he mechanically examined the utility vehicle, one of its tyre was already burst. He also deposed that if the tyre of any vehicle got burst, the vehicle shall move on one side. Hence, it cannot be ruled out that the accident took place as the tyre of the utility vehicle got burst and the vehicle moved on one side.

PW-5, Bablu Sharma, who was also got injured in the said accident deposed that he was sitting in the backside of the utility vehicle, when they reached Mehatpur, they heard the heavy sound, as something got struck with their vehicle, due to which they fell outside the vehicle and got unconscious. However, he deposed that the accident had occurred due to the negligence of the accused, but in his cross-examination he feigned ignorance about the reasons of the accident, as he was sitting in the backside.

Thus, in the absence of any reasonable and plausible explanation, an adverse inference has to be drawn against the prosecution story and the contradictory statements of the witnesses create suspicion.

It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non consideration/misappreciation of evidence on record, reversal thereof by High Court was not justified.

The Hon''ble Supreme Court in T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401, has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.

So, in the opinion of this Court, when the identity of the accused is not established, the findings of the learned Court below cannot be said to be perverse and against the law, as the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt.

In view of the aforesaid decisions of the Hon''ble Supreme Court and the discussion made hereinabove, I find no merit in this appeal and the same is deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stands disposed of.