State of H.P. vs Sunil Kumar

Sureshwar Thakur, J.—The State of Himachal Pradesh is aggrieved by the findings of acquittal recorded in favour of the respondent/accused by the learned Judicial Magistrate 1st Class-(III), Kangra, District Kangra, H.P. Being aggrieved, it has sought the leave of this Court for instituting an appeal therefrom for assailing it.

Briefly stated the facts of the case are that complainant Shri Sanjay Soni made a statement under Section 154 of the Cr.P.C. to ASI Karam Deen that on 1.12.2005 at about 3 p.m. his two daughters Miss Diksha and Miss Kritika were returning home from school. When his daughters reached near Gurdwara then a vehicle Scorpio bearing No. PB-08-AS-8819 came at a high speed from rear and hit his daughters, who were walking on the left side of the road. His daughters suffered injuries in the incident and the driver of the vehicle fed away from the spot along with the vehicle. The accident occurred due to rashness and negligence of the driver of the vehicle bearing No. PB-08-AS-8819. On the basis of aforesaid statement of the complainant FIR was registered in the police station. During the course of the investigation, the police recorded the statements of the witnesses, prepared the site plan, took into possession the vehicle in question along with its key and documents as also got medically examined the injured from the doctor and obtained their MLCs.

On conclusion of the investigation, into the offence, allegedly committed by the accused, report under Section 173 of the Code of Criminal Procedure was prepared and fled in the Court.

The accused was charged by the learned trial Court for his having committed offences punishable under Sections 279, 337 and 338 of the IPC. In proof of the prosecution case, the prosecution examined 14 witnesses. On conclusion of recording of the prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded by the learned trial Court, in which the accused claimed innocence and pleaded false implication in the case.

On an appraisal of evidence on record, the learned trial Court, returned findings of acquittal in favour of the accused/respondent.

The State of H.P. is aggrieved by the judgment of acquittal rendered by the learned trial Court. The learned Deputy Advocate General has concerted to vigorously contend qua the findings of acquittal recorded by the learned trial Court being not based on a proper appreciation of evidence on record, rather, theirs being sequelled by gross mis-appreciation of material on record. Hence, he contends that leave be granted to the State of H.P. to institute an appeal therefrom for assailing it.

I have heard the learned Deputy Advocate General at length and have also gone through the entire material on record.

In support of the prosecution case, 14 witnesses stepped into the witness box. PW-4, the father of the victims, reported the matter to the police. He in his recorded deposition on oath has deposed qua vehicle bearing No. PB-08-AS-8819 at the relevant time being driven by the accused who stood identified by him in Court, on its arrival at the site of occurrence at high speed struck his daughter Diksha from the rear sequelling fracture of her leg. For his testimony on oath to carry credibility, it has to be free from any taint of inconsistency vis-a-vis his previous statement recorded in writing. The inference of his being unavailable at the site of occurrence marshals vigour from his having deposed in his cross-examination of his daughters walking ahead of him which factum remains uncommunicated by him in his previous statement comprised in Ex. PW4/A. With the prosecution version qua the incident comprised in Ex. PW4/A standing hence ripped apart arising from his having deposed in contradiction to his previous statement recorded in writing, the entire prosecution version anvilled thereupon stand jettisoned. PW-6 an eye witness to the occurrence has turned hostile, obviously, he too did not lend succor to the prosecution version. Even on his being permitted by the learned trial Court to be cross-examined by the learned APP on the latter''s request to cross-examine him on his reneging from his previous statement, he omitted to not identify the accused before the learned trial Court to be the person driving the vehicle. Furthermore, on his having come to be cross-examined by the learned defence counsel subsequent to the learned APP conducting his cross-examination, he has been unequivocal in disclosing therein of his having arrived at the site of occurrence after hearing an uproar. In sequel, he is to be construable to have not witnessed the incident at a stage contemporaneous to its happening besides, when he did not identify the accused in Court to be the person driving the vehicle necessarily then any attribution by him in any part of his deposition of the accident being sequelled by rash and negligent driving of vehicle bearing No. PB-08-AS-8819 on the part of the accused cannot be construable to be constituting conclusive evidence qua its occurrence standing begotten with the accused occupying the driver''s seat.

Another eye witness to the occurrence PW-8 also turned hostile. On his reneging from his previous statement recorded in writing, he was permitted by the learned trial Court to be cross-examined by the learned APP on the latter''s request, wherein also he has not unraveled any version qua the incident wherefrom an inference of the accused occupying the driver''s seat at the relevant time could stand gathered. In addition PW-12 has also turned hostile yet even during the course of his being subjected to cross-examination by the learned APP on permission having been accorded to the latter by the learned trial Court he was unable to identify the accused to be the person occupying the driver''s seat at the relevant time. The non identification of the accused by PW-12 in Court, obviously ousts the prosecution case of the accused being atop the driver''s seat at the relevant time. Even otherwise, when PW-12 stood cross-examined by the learned defence counsel, he has admitted the suggestion put to him by the latter of his having arrived at the spot on his hearing some noise. Consequently, with the unavailability of PW-12 at the site of occurrence at a stage contemporaneous to its happening cannot render his testimony qua vehicle bearing No. PB-08-AS-8819 being driven in rash and negligent manner by the accused and its sequelling its collision with the victim. Preeminently, the deposition of the victim is reticent qua the accused being atop the driver''s seat at the relevant time. The effect of the above discussion is of the prosecution having abysmally failed to lead conclusive evidence qua the guilt of the accused for the offence for which he stood charged.

For the reasons which have been recorded hereinabove, this Court holds that the learned trial Court below has appraised the entire evidence on record in a wholesome and harmonious manner apart therefrom the analysis of the material on record by the learned trial Court does not suffer from any perversity or absurdity of mis-appreciation and non appreciation of evidence on record, rather it has aptly appreciated the material available on record. Consequently, the instant application is dismissed, in sequel, the prayer of the State of Himachal Pradesh for grant of leave to appeal against the judgment of the learned is refused.