State of Himachal Pradesh vs Madan Singh

Chander Bhusan Barowalia, J.

1.The present appeal, under Section 378 of the Code of Criminal Procedure, has been maintained by the appellant-State of Himachal Pradesh,

assailing the judgment of acquittal, dated 29.06.2005, passed by the learned Judicial Magistrate 1st Class, Nahan, District Sirmaur, H.P, in criminal

case No. 36/2 of 2004, under Sections 279 and 338 of the Indian Penal Code.

Briefly the facts giving rise to the present appeal as per the prosecution story are that on 04.12.2003 Smt.Rita Devi alongwith her son Rahul, had

come to buy household articles at Nahan Bazar and after purchasing the articles, they boarded Bus No. HP-18-3601, in order to reach their home at

Vikram Castle. Around 6.00 p.m., the bus reached at Vikram Castle and the driver/accused (hereinafter to be called as “the accusedâ€) stopped

the bus to drop the passengers there, though Smt. Rita Devi alighted the bus safely, however when her son Rahul alighting the bus, the accused

without waiting for the whistle of the conductor, started the bus, as a result of which, he fell down and received injury on his right foot under the rear

tyre of the bus. Naresh Kumar/complainant (hereinafter to be called as “the complainantâ€) and his brother Sanjeev Kumar were also occupying

the aforesaid bus, who took the injured to the Zonal Hospital, Nahan for treatment and telephonically informed the Police about the said accident. The

Police recorded the statement of the complainant, on the basis of which, FIR No. 243/03 was registered against the accused at Police Station, Nahan.

The Investigating Officer visited the spot and prepared site plan as per the position of the spot. The bus was taken into possession alongwith its

documents and memo in this regard was prepared. The photographs of the place including the offending bus were obtained and vehicle was

mechanically examined, which was found without any mechanical defect. After completing the investigation, challan was presented in the Court.

Prosecution, in order to prove its case, examined as many as eleven 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, vide impugned

judgment dated 29.06.2005, acquitted the accused for the commission of offences, punishable under Sections 279 & 338 of IPC, hence the present

appeal.

Learned Additional Advocate General, has argued that the judgment of acquittal, passed by the learned trial Court is without appreciating the

evidence to its true perspective and after re-appreciating the evidence correctly, the accused be convicted, as the prosecution has proved the guilt of

the accused beyond the shadow of reasonable doubt. On the other hand, learned counsel appearing on behalf of the accused/respondent has argued

that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt and, therefore, the well reasoned judgment of

acquittal, passed by the learned trial Court needs no interference.

To appreciate the arguments of learned Law Officer and learned defence counsel, this Court has gone through the record in detail and minutely

scrutinized the statements of the witnesses

.6. PW-1, HC Choli Ram, has taken the photographs Exts. P-1 to P-5 of the place of occurrence including the offending bus and the negatives thereof

are Exts. P-6 to P-10. PW-5, Jamil Ahmad, a driver in HRTC depot, Nahan is a witness to memo, Ext. PW-5/A, whereby the offending bus alongwith

its documents was taken in possession. PW-9, Laiq Ram has produced extract of logbook and duty register, which are Exts. PW-9/A and PW-9/B.

PW-8, HC Saran Singh has carried out mechanical examination of HRTC Bus No. HP-18-3601 and submitted his report, Ext. PW-8/A. In his cross-

examination, he could not tell the time, when he carried out the mechanical examination of the offending bus.

Complainant, Naresh Kumar appeared in the witness box as PW-2 and stated that on 04.12.2003, at about 5.30 p.m., he boarded Bus No. HP-18-

3601 from the bus stand, Nahan and the bus reached at Vikram Castle, at about 6.00 p.m., where PW-4, Rita Devi safely alighted the bus, however

when PW-3, Rahul was alighting the bus, the accused suddenly started the bus, due to which, Rahul fell down and his right foot came under the rear

tyre of the bus. Thereafter, he alongwith PW-4, Rita Devi and his brother Sanjeev Kumar took the injured to the Zonal Hospital, Nahan for treatment.

In his cross-examination, he has stated that there were many passengers in the bus, when it reached at Vikram Castle. He has further stated that

PW-3 and PW-4 are known to him, as he used to work with them. He has deposed that PW-3, Rahul was sitting with him, whereas his mother PW-4

was sitting on the seat in front of them. He admitted that he boarded this bus many times before and usually it was being driven by the accused, who

used to drive the same with due care and caution. He has deposed that when PW-3 and PW-4 alighted the bus, there was nothing in their hands. Self

stated that PW-4 was having bag with her. He denied the defence suggestion that when bus started, PW-3 Rahul came running to take the articles

back and had a fall, due to which his foot came under the trye of the bus.

It is not in dispute that PW-3 Rahul and PW-4 Rita Devi have tried to support the prosecution case in their examination-in-chief, however in their

cross-examination, they could not validate the allegations of negligence on the part of the accused satisfactorily. They stated that on the evening of

04.12.2003, they boarded bus No. HP-18-3601 at 5.30 p.m. and around 6.00 p.m., the bus reached at Vikram Castle and when PW-3 was alighting

the bus, the accused suddenly started the bus, due to which, PW-3 fell down and sustained injury on his right foot. As per PW-3, the accident has

occurred, as the accused suddenly started the bus. However, he has not stated anything whether the conductor of the bus has given whistle to start

the bus or not. On the other hand, as per PW-4, the accused was responsible for causing the accident, as he started the bus without waiting for the

whistle of the conductor. Both these witnesses in their cross-examination have corroborated themselves with respect to the detail of the articles,

which they had been carrying at the time of the accident. PW-3 in his evidence, admitted that they were carrying one bag of vegetable and one

briefcase, which they kept on the road after alighting themselves from the bus, however PW-4, denied the factum of having one briefcase with them

at the time of said accident.

PW-11, Mam Raj, conductor of the offending bus has not supported the case of the prosecution and he was declared hostile. In his cross-

examination, he deposed that on 04.01.2003, at about 6.00 p.m., PW-3 and PW-4 had safely alighted the bus and thereafter at the instance of the

passengers sitting in the bus, the accused started the bus and when the bus started PW-3 came running to take the articles back and had a fall, due to

which, his right foot came under the rear tyre of the bus. He further deposed that on hearing the cries, he gave whistle and the accused stopped the

bus. He denied that the accident has occurred due to negligence of the accused.

PW-7, Dr. S.C. Goel, has medically examined PW-3, Rahul and issued MLC, Ext. PW-7/A and opined the injury to be grievous in nature. PW-6,

Dr. D.V. Kulkarni, Radiologist, Zonal Hospital, Nahan, performed the x-rays of the injured and gave his opinion, which is Ext. PW-6/C.

After analyzing the evidence which have come on record, it is clear that PW-11, conductor of the bus, has not supported the case of the

prosecution. Though it has come on record that there were many passengers in the bus, but the Investigation Officer has not associated any of them

as an independent witness. The mere statement of PW-2 is not sufficient to hold the accused guilty, as he is an interested witness and has admitted in

his cross-examination that PW-3 & PW-4 are known to him, as he used to work with them.

Admittedly, the boy has received grievous injury on his right foot, but whether it has occurred by a fall or due to rashness of the driver/accused is

suspicious. So, in these circumstance, after taking into consideration the evidence, which has come on record and testimonies of the witnesses, even

after re-appreciating the evidence, this Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable

doubt and the well reasoned judgment of acquittal, passed by the learned trial Court, needs no interference.

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.

In Chandrappa vs. State of Karnataka, (2007) 4 SCC 415, the Hon’ble Supreme Court has culled out the following principles qua powers of

the appellate Courts while dealing with an appeal against an order of acquittal : “42. From the above decisions, in our considered view, the

following general principles regarding 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 Code of Criminal Procedure, 1873 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence

before it may reach its own conclusion, both on questions of fact and of 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 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.â€​

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 deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stands disposed of.