State appeal against acquittal in rash driving case. High Court found prosecution failed to prove rashness or negligence. Accident due to curve and load; eye-witness said speed was slowed. Appeal dismissed.
Appeal dismissed. Injured accused not liable for commission of offence under IPC Sections 279, 337, and 338.
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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. Appeal No. 29 of 2008 Reserved on: 12.07.2017 Decided on: 19.07.2017
__________________________________________________________ State of Himachal Pradesh …..Appellant. Versus Yash Pal ……Respondent. _________________________________________________________ Coram_
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. 1 Whether approved for reporting? Yes. __________________________________________________________ For the appellant: Mr. Pushpinder Jaswal, Dy. AG, with Mr. Rajat Chauhan, Law Officer. For the respondent: Mr. Loveneesh Thakur, Advocate, vice Mr. Deepak Kaushal, Advocate. Chander Bhusan Barowalia, Judge.
The present appeal has been preferred by the appellant/State (hereinafter referred to as “the appellant”) laying challenge to the judgment, dated 31.08.2007, passed by the learned Judicial Magistrate 1st Class, Nahan, Camp at Sarhan, District Sirmaur H.P., in Criminal Case No. 26/2 of 2006, whereby the accused/respondent (hereinafter referred to as “the accused”) was acquitted for the offence punishable under Section 279, 337 and 338 of Indian Penal Code, 1860 (hereinafter referred to “the IPC”).
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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investigation, challan was presented in the Court.
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has further argued that the learned Court below after properly and correctly appreciating the evidence on record acquitted the accused. Lastly he has prayed that the appeal, which is without merits, may be dismissed.
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the accused is his driver. He has divulged that on the day of occurrence the accused informed him that the vehicle met with an accident at Dalighat. This witness produced the documents of the vehicle, which were taken into possession by police, vide recovery memo Ex. PW-2/A. PW-3, Shri Lekh Raj, was traveling in the vehicle at the time of the accident. He has deposed that he and Lajwinder boarded the vehicle having registration No. HP18A-3337, which was being driven by the accused. As per his version, Mukesh and his brother were already sitting in the vehicle. The accused was driving the vehicle on a high speed and they asked him to drive slow. When, around 01:30 p.m., they reached Dalighat, while negotiating a curve, due to the high speed the vehicle was turned turtle to its left side. In the said accident he suffered simple injuries and Mukesh sustained grievous injuries. Mukesh was taken to Mangarh dispensary and therefrom to Solan Hospital. As per this witness, the accident took place due to the negligence of the accused. This witness, in his cross-examination, has deposed that he stopped the vehicle for going to the fair. He has also admitted the accident took place on ascending road. He feigned his ignorance that at the time of
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the accident the patta of the vehicle broke, which resulted into the accident. He admitted that Shri Ranvir Singh (PW-4), whose house is at a distance of 300 meters from the spot of occurrence, immediately arrived on the spot.
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witness, due to the rash and negligent driving of the accused the accident took place. This witness, in his cross-examination, has deposed that where the accident had taken place there was ascending road and a curve. There were 18 to 20 occupants in the vehicle at the time of accident. He has admitted that speed of the vehicle was slowed down by the accused, as there was a curve.
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at a distance of 300 meters from the spot of occurrence. PW-8, Shri Roshan Lal Chaudhary, Pharmacist, PHC, Mangarh, deposed that on the day of occurrence Medical Officer, PHC, Mangarh, was on leave and he was present in PHC. Around 2:00 p.m., 4-5 persons brought injured Mukesh Kumar for treatment. As per this witness, injured Mukesh Kumar, suffered serious injuries, and was brought in an unconscious state to PHC. Other persons sustained simple injuries. Mukesh Kumar suffered fracture in both of his arms and blood was oozing from his nose. He administered first aid to Mukesh Kumar and referred him to Solan Hospital. This witness proved on record prescription slip, dated 28.08.2005, Ex.PW-8/A.
was taken into possession, vide recovery memo, Ex. PW-2/A, which bears his signatures and the signatures of Babu and
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Sanjiv Kumar. PW-11, ASI Anup Singh, only proved on record FIR, which is Ex. PW-1/A.
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he took lift in a vehicle, which afterwards turned turtle. As per this defence witness, the accident took place as the patta (suspension plank) of the conductor side got broken. The vehicle was being driven on a normal speed. This witness, in his cross-examination, has admitted that the accused was driving the vehicle bearing registration No. HP18A-3337 at the time of accident. He has specifically denied that accused was driving the vehicle on a high speed.
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but the record reveals that he was not driving the vehicle in a rash and negligent manner, which fact is further fortified by PW-3, Lekh Ram, PW-5 Lajwinder Singh, PW-6 Mukesh Kumar and PW-7 Manoj Kumar. All these witnesses in their examinations-in-chief deposed that the accused was driving the vehicle in a high speed at the time of accident. However, all these witnesses, in their cross-examinations, admitted that where the accident took place there was a curve and the road is ascending. The prosecution evidence goes to establish that 15 to 20 persons were traveling in the said vehicle. It is well known that when the vehicle is heavily loaded, the speed of the same could not be high. Thus, in these circumstances, it cannot be said with certainty that the speed of the vehicle was high. In State of Himachal Pradesh vs. Madan Lal, Latest HLJ 2003 (HP Vol. 2) 925, this Hon’ble Court has held that speed alone is not a parameter to decide rashness or negligence of the driver, the deciding factor is the situation in which the accident occurred. Relevant para 11 of the judgment (supra) is extracted hereinbelow for ready reference:
“11. It may be pointed out that speed alone is not criteria to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs.”
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Surenderan (2008) 1 SCC 258, that when two views are possible, the 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/mis-appreciation of evidence on record, reversal thereof by High Court was not justified.
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reasonable doubt.
also keeping in view the law, as above, the most natural and inescapable corollary emerges is that the prosecution has failed to prove and establish the guilt of the accused. Thus, the accused cannot be held liable for the commission of the offence punishable under Section 279, 337 and 338 IPC. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly.
(Chander Bhusan Barowalia) Judge
19th July, 2017
(virender)
3 issues framed by the court
Whether the accused was driving the vehicle in a rash and negligent manner causing the accident.
Whether prosecution successfully proved guilt of the accused beyond reasonable doubt.
Whether the High Court should interfere with the trial court's acquittal when two views are possible from the evidence.
Colour shows how this judgement treated each authority
State of Himachal Pradesh vs. Madan LalDistinguished¶44
State of Himachal Pradesh vs. Madan Lal, Latest HLJ 2003 (HP Vol. 2) 925
K. Prakashan vs. P.K. SurenderanRelied on¶48
K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258 · Who else cites this
T. Subramanian vs. State of Tamil NaduRelied on¶50
T. Subramanian vs. State of Tamil Nadu (2006) 1 SCC 401 · Who else cites this
3 provisions across 1 enactments
State of Himachal Pradesh
Yash Pal
Chander Bhusan Barowalia
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Chander Bhusan Barowalia
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