State of H.P. vs Virender Kumar

Instant criminal appeal filed under Section 378 of the Cr.PC, is directed against the judgment dated 10.8.2007, passed by the learned Judicial Magistrate, Ist Class, Court No. (VI), Shimla, H.P., in criminal case No. 7/2 of 2006/2003, whereby the respondent-accused has been acquitted of the charges framed against him under Sections 279, 337 and 338 of the IPC.

Briefly stated facts as emerge from the record are that on 9.2.2003, at about 11:30am, respondent-accused Virender Kumar was driving Tempo Trax bearing registration No. HP-62-0332 near MLA Quarters, Shimla, in rash and negligent manner, so as to endanger the human life or the personal safety of others. As per story of prosecution, on 9.2.2003, he caused simple hurt as well as grievous hurt to Chaman, Sarvan Kumar, Vinod, Satish, Tarsem Singh, Yogesh, Sanjeet, Virender, Sanjeev Kumar, Ramesh, Chetan, Suresh Kumar, Nirmal and Ranjeet Singh, who were travelling in the ill fated tempo in question along with their luggage. Police on the information having been received from one Shri Nirmal Patiyal, lodged FIR under Section 279, 337 and 338 IPC against the respondent-accused and after the completion of the investigation of case, presented challan in the competent court of law.

Learned Judicial Magistrate Ist Class, Court No. VI, Shimla, H.P, on being satisfied that prima-facie case exists against the accused charged him under Sections 279,337 and 338 IPC, to which he pleaded not guilty and claimed trial. However, fact remains that the learned trial Court on the basis of material adduced on record acquitted the accused-respondent of the offence, punishable under Sections 279, 337 and 338 IPC. In the aforesaid background, present criminal appeal has been filed by the State against the acquittal of the respondent-accused before this Court.

Mr. P.M. Negi, learned Additional Advocate General duly assisted by Mr. Ramesh Thakur, learned Deputy Advocate General, vehemently argued that the impugned judgment of acquittal having been passed by the learned court below is not sustainable in the eye of law as the same is not based upon the correct appreciation of the evidence adduced on record by the prosecution and as such, same deserves to be quashed and set-aside. While referring to the impugned judgment passed by the court below, Mr. Negi, contended that bare perusal of the same suggests that learned court below has not appreciated the evidence in its right perspective as a result of which, erroneous findings have come on record. Mr. Negi, while inviting attention of this Court to the evidence led on record by the prosecution stated that prosecution proved its case beyond reasonable doubt that at that relevant time, vehicle in question was being driven by respondent accused rashly and negligently, as a result of which, occupants of the vehicle sustained minor as well as grievous injuries. In the aforesaid background, Mr. Negi contended that the respondent accused deserves to be convicted after setting aside the judgment of acquittal recorded by the court below.

Despite repeated opportunities, none appeared on behalf of the respondent accused and as such, this Court proceeded to decide the case at hand on the basis of record made available to it.

I have heard the learned Additional Advocate General and carefully gone through the record.

In the instant case, prosecution with a view to prove its case, examined as many as 21 witnesses. Conjoint reading of statements having been made by PWs 1 to 4, 10 to, 14, and 18 &19 suggests that these aforesaid witnesses were travelling in the ill-fated vehicle at that relevant time. It emerge from their statement that they being member of battalion had go to Kullu for the purpose of VIP duty and accordingly, all of them (reserve battalion) had to travel in govt. bus, since no govt. bus turned up till 10:30 AM, they were directed to go to Kullu in HRTC bus. It also emerge from their statements that they were carrying heavy luggage with them and accordingly, for reaching bus stand from Boileauganj, they hired one Tempo Trax bearing No. HP 62-0332. It has come in his statement of PW1 CL Sharma, that they hired the aforesaid vehicle for Rs. 100/- and after loading the luggage, they started their journey towards bus stand. The aforesaid PWs stated that at that relevant time, vehicle was being driven by the accused Virender. It has also come in their statement that when vehicle reached near MLA quarters, it turned turtle due to over speed as driver had lost its control, as a result of which, all the occupants received injuries on their person. But careful perusal of cross-examination conducted on these PWs clearly suggests that they categorically admitted that tempo trax is used for the purpose of loading of goods, not for carrying the persons as it does not contain passenger seats. PW1 has categorically admitted in his statement that they were totally 13 in number. He also admitted that 5-6 police officials were also in the vehicle and approximate weight of each bedding would be 8 -10 kg. Similarly it has come in their statements that there was a deep U-turn at the spot but denied that there was any speed breaker at the spot before the Uturn. They all denied that they forcefully sat in the vehicle misusing their official position. They also denied the suggestion put to them that accused person had driven the vehicle as per their direction because they had to get the bus before 12 PM.

After carefully examining the statements of aforesaid PWs, there cannot be any dispute, if any, with regard to alleged accident as well as driving of ill fated vehicle by the respondents accused but certainly there is no evidence worth the name led on record by the prosecution suggestive of the fact that the vehicle in question was being driven rashly and negligently by the petitioner-accused. Apart from the bald statement having been made by some of the aforesaid witnesses that at that relevant time, vehicle was being driven rashly, there is nothing on record from where it can be safely inferred that vehicle was being driven in rash and negligent manner by the accused. None of the prosecution witness has stated something specific with regard to the speed of the vehicle and as such, learned trial Court rightly came to conclusion that on mere statement having been made by PWs, it cannot be concluded that vehicle in question was being driven rashly and negligently.

Apart from above, there is nothing placed on record by the prosecution to prove that respondent accused had charged some money from the petitioner accused while allowing them to travel in the vehicle. True, it is that it has come in the statement of PW1 that they had paid Rs. 100/- to the driver-accused-respondent for dropping them at bus stand but none of other PWs corroborated the aforesaid version having been put forth by PW1 and as such, no reliance, if any, could be placed on the statement of PW1, especially, when it stands duly proved on record that vehicle was not a passenger vehicle, rather it was goods carrier vehicle.

This Court also cannot lose sight of the fact that the occupants of the ill fated vehicle were police officials and as such, they could always compel any person, especially, the respondent-accused, to drive tempo in question. It also emerges from the statement of few of the PWs that vehicle was being driven in normal speed and due to heavy weight in the vehicle, it turned turtled. PW11 specifically stated that at that relevant time vehicle was being driven at normal speed. All the PWs have admitted that at the time of travelling in the tempo, they were also carrying their luggage along with them, meaning thereby, the vehicle in question, which was going down the hill, was overloaded at that time.

This Court after having carefully perused the evidence led on record has no hesitation to conclude that occupants of the vehicle at that relevant time, were also quite negligent in boarding the ill-fated vehicle, which was admittedly not a passengers carrying vehicle and as such, possibility of vehicle being turned turtled on account of overloading cannot be ruled out.

True it is, that there is evidence available on record suggestive of the fact that there was no mechanical failure but same cannot be of any help to the prosecution, especially, in view of the fact that there is nothing in the statements having been made by the PWs, from where, it could be inferred that vehicle was being driven rashly and negligently by the respondent-accused. Similarly, prosecution by way of leading medical evidence adduced on record, made an attempt to prove that in the alleged incident, occupants suffered injury but same may not be sufficient to hold the petitioner accused guilty of offences punishable under Sections 279, 337 and 338 of the IPC because there is no evidence specific with regard to the rashness and negligence, if any, committed by the respondent-accused, rather this Court has reason to believe that he was compelled by the police officials to drop them at the bus stand as they had to board the bus to visit Kullu.

Consequently, in view of the detailed discussion made herein above, this court sees no illegality and infirmity in the judgment passed by the learned court below, which appears to be based upon the proper appreciation of evidence adduced on record and as such, same is upheld. Accordingly, the present petition is dismissed being devoid of any merit.