Dismissed

State v. Gian Chand

Himachal Pradesh HC1 May 2017CR.A/287/2008

Case brief

AI extract

What is this about?

In this criminal appeal against acquittal for rash driving and causing injury, the High Court upheld the trial court's decision, finding the prosecution failed to prove the accused was driving the vehicle.

What did the court decide?

Acquittal confirmed; appeal dismissed.

What the court decided

State Vs Gian Chand — Criminal Trial and Appeal | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No.287 of 2008. Reserved on : 11.04.2017. Decided on : 1^st May, 2017.

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State of Himachal Pradesh

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.......Appellant.

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Versus

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Gian Chand Sharma ……Respondent.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge.

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Whether approved for reporting?¹ No.

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For the appellant

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: Mr. Virender Kumar Verma, Addl, AG with Mr. Pushpinder Singh Jaswal, Dy. Advocate General and Mr. Rajat Chauhan, Law Officer.

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For the respondent : Mr. M.L. Sharma, Advocate.

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Chander Bhusan Barowalia, Judge.

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The present appeal is maintained by the appellant-

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State of Himachal Pradesh against the impugned judgment of acquittal dated 1.3.2008, passed by learned Sessions Judge, Shimla, in Criminal Appeal No.39-S/10 of 2007, under Sections 279, 337 and 338 of the Indian Penal Code, whereby the judgment of conviction dated 30.7.2007, passed by the learned Judicial Magistrate 1^st Class, Theog, District Shimla, in Case No.242/1 of 2004 has been set aside.

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Briefly stating facts giving rise to the present appeal are that on 23.8.2004 at 4:50 PM, a telephonic information was received at Police Station, Theog from Police Post Fagu, at Lambidhar, one truck and one jeep collided with each other. On this information, rapat Ex.PW12/A, was recorded in the rojnamcha

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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and Head Constable Hira Lal (PW-12) and Constable Kamal Dev were deputed on the spot. PW-3 Sunil Jagta, got his statement Ex.PW3/A recorded that on the aforesaid date, he was driving the vehicle bearing registration No. HP-09A-0303, which belonged to his father Shri Narain Singh. Attar Singh, Hari Chand, Mohan Singh and Pradeep Thakur were also sitting alongwith him in the aforesaid vehicle. When he reached at Lambidhar, Hari Chand (PW-4) told him that he wants to answer the call of nature and the said vehicle was parked on National Highway-22. He got his vehicle parked in ‘ kacha ’ portion of the road. In the meanwhile, truck bearing registration No.HP-07-4031, driven by the accused came from Theog side in a very high speed and struck against the same in his stationary vehicle, due to which, Attar Singh (PW-1), who was standing outside sustained injuries. The vehicles in question were taken into possession by the police and photographs were prepared.

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The prosecution, in order to prove its case, examined as many as twelve witnesses. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure, wherein he has denied the prosecution case and claimed innocence. No defence evidence was led by the accused.

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Learned Additional Advocate General appearing

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on behalf of the appellant has argued that the prosecution has

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proved the guilt of accused beyond the shadow of reasonable doubt. He has further argued that the accused was so negligent in driving the vehicle that he dashed his vehicle against the stationery vehicle of the complainant and could not control the vehicle he was driving.

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On the other hand, learned counsel appearing on behalf of the accused has argued that the accused has committed no offence and in fact the prosecution has failed to prove the guilt of the accused and there is no iota of evidence against the accused. He has further argued that the appeal

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deserves dismissal.

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

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PW-1 Attar Singh, has deposed that on 23.8.2004,

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he alongwith Mohan Singh (PW-2) were going to Indira Gandhi Medical College, Shimla, with his father in Utility bearing No.HP-090303. He has further stated that Sunil Jagta (PW-3) was driver in the aforesaid vehicle. He has stated that when they reached Lambidhar at about 4:30 PM, his father got stopped the vehicle for answering the call of nature and the vehicle was parked in ‘kacha’ portion of the road. He has further deposed that one truck bearing

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No.HP-07-4031 coming from Theog side in a high speed struck against the stationary vehicle. He has deposed that he had suffered injuries on his leg. He has stated that the accident took place due to rash and negligent driving of the accused. In his cross-examination, he has stated that he does not know if there was fog in between Fagu and Kufri. He has stated that he does not know who was driving the vehicle at the time of accident, as he was unconscious. He has denied that the accused was not driving the vehicle and the accident had not taken place due to rash and negligent driving of the accused. He has also denied that the accident had taken place due to the parking of the Utility on the wrong side. PW-3 Sunil Jagta, has deposed that on 23.8.2004 at about 4:30 PM, he was driving the Utility bearing registration No. HP-09A-0303 from Cheog to Simila and Hari Chand, Attar Singh, Mohan Singh and Pradeep Thakur, were also sitting in the vehicle. PW4 Hari Chand has stated that he was going with his son Attar Singh to Shimla, as he was ill. He has deposed that Sunil Jagta (PW-3) was driving the vehicle. PW-5 Lokinder Singh has stated that he had clicked the photographs of both the vehicles. PW-12 Head Constable Hira Lal (Investigating Officer) has stated that on 23.8.2004, he had gone to Police Station Theog and received an information regarding the accident having been taken place at Lambidhar. He has stated that through rapat

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Ex.PW12/A, he went to the spot and recorded the statement of Sunil Jagta (PW-3), on the basis of which, FIR Ex.PW11/A, was recorded at the Police Station. He has further deposed that thereafter he went to IGMC Shimla, because in this accident, Attar Singh (PW-1) had sustained injuries. The other prosecution witnesses were formal in nature.

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From the evidence, it is clear that only PW-1 has seen the driver who driving the vehicle bearing registration No.HP07-4031, but in his cross-examination, he has admitted that he had seen the accused for the first time in the Court, when he was shown to him outside the Court by the prosecution. So, there is no evidence to say that it was the accused, who was driving the truck. No other witnesses have seen the accused, who was driving the vehicle and nothing has come in this regard. Further, in the evidence of PW-6, it has come that steering of the vehicle was found locked, meaning thereby that the truck was having mechanical defect. It has also come in evidence that the vehicle of the complainant was parked on the wrong side of the road. PW-9 Sukh Dev Sharma, has admitted in his cross-examination that Shimla Flour Mills had two trucks and in every truck there were two drivers employed for the purpose. Therefore, it was further incumbent upon the prosecution to have proved on record that it was the accused, and not the other drivers, who was driving the

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truck in question at the time of accident. The only conclusion is that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt. Further, it has come on record that vehicle of the complainant was parked on the wrong side and there was fog in the area.

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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.

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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.

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In view of the aforesaid decisions of the Hon’ble Supreme Court and discussion made hereinabove, I find no merit in this appeal and the same is accordingly dismissed. Record of the learned trial Court be sent back forthwith.

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(Chander Bhusan Barowalia) 01.05.2017 Judge (CS)

State v. Gian Chand

Case brief

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What the court decided

State v. Gian Chand

Case brief

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