State of Himachal Pradesh vs Rajeshwar Singh

Dharam Chand Chaudhary, J.—The appellant-State aggrieved by the judgment dated 12th January, 2006, passed by learned Judicial Magistrate First Class, Court No. 2, Dehra, District Kangra in Criminal Case No. 76-I/2001, 35-II/2002 whereby the respondent (hereinafter referred to as ''the accused'') has been acquitted of the charge under Sections 279, 337, 338 and 201 of Indian Penal Code, has preferred this appeal on the grounds, inter-alia, that learned trial Court has based its findings merely on hypothesis, surmises and conjectures. The evidence available on record allegedly is appreciated in a slip-shod and perfunctory manner. The statement of complainant-injured PW-1, Surjeet Singh, who has supported the prosecution case on all counts, has not been appreciated properly. Similarly, the statement of PW-2, Rakesh Kumar, who was pillion rider, has also been erroneously ignored. The other evidence such as report of the mechanic and also the medical evidence, which lends support to the prosecution case, is not at all considered. It has, therefore, been claimed that the impugned judgment is neither legally nor factually sustainable and, as such, deserves to be reversed. The present is a case where notice of accusation under Sections 279, 337 and 338 of Indian Penal Code with the allegations that on 8.7.2001 at about 9.45 a.m. at a place Baba Panja (Dehrian) in District Kangra the accused while on the wheel of Tata Sumo bearing registration No. HP-02-8337 and while driving the same in a rash and negligent manner, hit scooter bearing No. PB-08-776 being driven by complainant, Surjeet Singh PW-1 and occupied by PW-2, Rakesh Kumar pillion rider, caused the accident leading to injuries on the persons of PW-1 and PW-2, grievous in nature and also causing damage to the scooter. Also that with a view to screen him from prosecution ran away from the place of accident with the offending vehicle.

It is worthwhile to mention here that in a case of this nature, sine-qua-non, for recording a finding of conviction is criminal rashness and negligence which is more than mere rashness and negligence.

It is to be ascertained from the evidence available on record that the prosecution has been able to prove that the present is a case of criminal rashness and negligence and not mere rashness and negligence on the part of the driver of the offending vehicle, who allegedly is accused. The record reveals that the charge against the accused-respondent is that he was driving the offending vehicle, Tata Sumo on 8.7.2001 at about 9.45 a.m. at place Baba Panja (Dehrian) and hit the scooter being driven by PW-1, the complainant. In the statement recorded u/s 154 Cr.P.C., Ex.PW-1/A, injured Surjeet Singh (PW-1) has stated that he alongwith PW-2 Rakesh Kumar and PW-3 Munish Kumar and also their another friend, Rajinder Kumar on 8.7.2001 started at 9.45 a.m. on the ill-fated scooter and also motor cycle No. PB-09D-1986. While the complainant was driving the scooter with pillion rider PW-2 Rakesh Kumar, their other two companions Munish Kumar, PW-3 and Rajinder Kumar were coming behind on motor cycle No. PB-09D-1986. In Ex.PW-1/A the time of accident is 2.30 p.m., however, entered so in a different hand and different ink. Though in the FIR Ex.PW-6/A the time of accident has been recorded as 2.30 p.m., however, while in the statement u/s 154 Cr.P.C. on the basis whereof the FIR has been recorded, initially the time of accident was not mentioned, which seems to be added as 2.30 p.m. by way of interpolation in different hand and different ink. No explanation to this effect has come on record.

If coming to the statement of injured PW-1, he has given the time of accident as 2.30 p.m. PW-2 has stated nothing in his statement about the time of accident and as regards PW-3, according to him, the accident occurred at 1-1.30 p.m. If coming to Rapat Raojnamcha No. 14, Ex.PW-7/A, the information about the accident was received from Community Health Centre, Jawalamukhi at 3.05 p.m. Although nothing is stated about the time of accident, but the record reveals that the same might have occurred at 2.30 p.m. for the reasons that the suggestions put to the prosecution witnesses in their cross-examination reveal that Dehrian was behind 6 Kms. from Jawalamukhi and the complainant and injured had reached within half an hour in the hospital. The fact, however, remains that when injured were in the hospital by 3.00 p.m., it is not known why their medical examination was delayed upto 6.15 p.m. This shows manipulation and due deliberation on the part of the Investigating Officer and nearer to the defence version that the complainant party being itself responsible for this accident, initially, was not ready to register the case and later on in connivance with the police registered the same to claim compensation under the Motor Vehicle Act. It has come in the statements of PWs.2 and 3 that a petition for award of compensation has been filed in the Court of Motor Accident Claims Tribunal at Kapurthala. Otherwise also, no tangible evidence suggesting that it is the accused who was driving the offending vehicle in a rash and negligent manner has come on record.

Admittedly, the place of accident is a portion of National Highway from Kangra to Jawalaji. Nothing is there in Ex.PW-1/A which contains the very first version qua the manner in which the accident occurred that the accused was driving the offending vehicle in wrong side of the road. PW1-injured, who as a matter fact was driving the scooter, has also not stated so while in the witness box. No doubt, the pillion rider, PW-2 Rakesh Kumar has stated that the offending vehicle was being driven in the wrong side of road. However, his version to this effect is nothing else, but merely an afterthought and also amounts to improvement in his statement u/s 154 Cr.P.C., Ex.PW-1/A recorded by the police. So far as PW-3, Munish Kumar is concerned, admittedly he was on the motor cycle being driven behind the ill-fated scooter and the distance of the scooter and motor cycle according to him was 30-40 meters. Therefore, how a person behind 30-40 meters from the place of accident can say about the rashness and negligence on the part of the driver of the offending vehicle or the same being driven in the wrong side also. Therefore, the testimony of PW-3 that the accident occurred on account of the rash and negligent driving on the part of the accused or that he was driving the offending Tata Sumo in the wrong side of road, cannot be believed to be true by any stretch of imagination. Not only this, but the best piece of evidence to prove the exact position of the scooter and the offending Tata Sumo at the spot would have been the spot map. No doubt, the Investigating Officer, PW-6 has prepared the spot map which is Ex.PW-6/B, however, in this document, which is the exact location where the accident occurred, has not been shown. At what place the scooter was lying after the accident also does not find mention in this document and the only reference thereto is that the same was lying on katcha portion of the road. Nothing, therefore, can be drawn from the spot map also that the offending Tata Sumo was being driven in the wrong side of the road and hit the scooter.

The photographs, no doubt, are available on record, however, being not proved during the course of trial cannot be read into evidence. The statement of the Investigating Officer, PW-6 also does not lend any support to the prosecution case that it is the rash and negligent driving attributed to the accused which resulted in this accident. The other evidence, as has come on record by way of the testimony of PW-4 Shri Karam Singh in whose presence the vehicle alongwith its key and documents was taken into possession by the police, PW-5 the Doctor who had conducted the X-Ray of injured persons PW-1 and PW-2, PW-7 Head Constable Kuldeep Chand who has proved the Rapat Rajnamcha Ex.PW-7/A qua the receipt of information about this accident at about 3.05 p.m. in police station and that of the motor mechanics PW-8 Rajneesh Kumar and PW-9 Rakesh Kumar, who had checked the offending vehicle and also the scooter mechanically and proved the reports Ex.PW-8/A and Ex.PW-9/A, would have been considered as link evidence, had the prosecution otherwise been able to bring home the guilt to the accused beyond all reasonable doubt. The trial Court, therefore, has not committed any illegality or irregularity while granting the benefit of doubt to the accused and resultantly acquitting him of the charge framed against him.

The re-appraisal of oral as well as documentary evidence, therefore, reveals that learned trial Judge has appreciated the same in its right perspective. The impugned judgment, therefore, cannot be said to be legally and factually unsustainable and the same rather deserves to be upheld. For all the reasons stated hereinabove, this appeal fails and the same is accordingly dismissed. The personal bond furnished by the accused shall stand cancelled and surety bond discharged. Pending application(s), if any, shall also stand disposed of.