Dismissed

State v. Satish Sarswati

Himachal Pradesh HC1 May 2017CR.A/386/2008

Case brief

AI extract

What is this about?

In this criminal appeal, the State of Himachal Pradesh challenged the acquittal of an accused in a vehicle accident case involving rash driving and alleged intoxication. The High Court affirmed the acquittal, holding that the prosecution failed to prove guilt beyond reasonable doubt due to contradictory witness statements and lack of identification of the accused or the vehicle.

What did the court decide?

Accused acquitted; appeal dismissed; trial court record sent back.

State Vs Satish Sarswati — Cheque Dishonour | Himachal Pradesh HC (2017)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. Appeal No.386 of 2008. Reserved on : 17.04.2017. Decided on : 1^st May, 2017.

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State of Himachal Pradesh .......Appellant.

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Versus

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Satish Saraswati ……Respondent.

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Coram

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The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?¹ Yes.

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For the appellant : Mr. Pushpinder Singh Jaswal, Dy. Advocate General with Mr. Rajat Chauhan, Law Officer.

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For the respondent : Mr. Sandeep Dutta, Advocate.

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Chander Bhusan Barowalia, Judge.

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The present appeal is maintained by the appellantState of Himachal Pradesh against the judgment of acquittal of accused in a case under Sections 279 and 338 of the Indian Penal Code and Section 185 of the Motor Vehicles Act, passed by the learned Judicial Magistrate 1^st Class, Court No.I, Shimla (H.P) dated 7.12.2007, in Criminal Case No.29/2 of 2005.

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Briefly stating facts giving rise to the present appeal are that on 7.1.2005, Ravinder Kumar (PW-2) was driving a bus bearing registration No.HP-07-3932 from Bus Stand Shimla to Mehli, whereas Ashok Kumar (PW-3) was conductor in the said bus. Around 8:40 PM, when the bus reached at Talland, Maruti Car

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coming from Khalini side in a high speed and collided with the

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

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aforesaid bus. The Maruti car in question was being driven by the accused in a rash and negligent manner so as to endanger human life and personal safety of others. As a result of which, he could not control the same and collided the same with the aforesaid bus. Accused was driving the car under the influence of liquor. Thereafter, the matter was reported to the police, where Investigating Officer recorded the statement of Ravi Kumar Ex.PW2/A, under Section 154 of the Code of Criminal Procedure, which was sent to Police Station, vide FIR Ex.PW10/A was registered. Statement of the witnesses was also recorded and site plan was prepared. The vehicle in question was taken into possession by the police and photographs were taken.

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The prosecution, in order to prove its case, examined as many as ten 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 Deputy Advocate General appearing on behalf of the appellant has argued that the prosecution has proved the guilt of accused beyond the shadow of reasonable doubt, but the learned Court below on the basis of surmises and conjectures has acquitted the accused and the present is a fit

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case, where the accused is liable to be convicted after setting aside the judgment of acquittal.

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On the other hand, learned counsel appearing on behalf of the accused has argued that the prosecution has failed to prove the guilt of the accused beyond all reasonable doubt and there is no occasion to interfere with the well reasoned judgment passed by the learned trial Court.

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To appreciate the arguments of learned Deputy 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 Gopal Sharma, is a witness of memo

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Ex.PW1/A. PW-2 Ravinder Kumar, has deposed that he had not seen, which Maruti car collided with his bus. He had not noticed the registration number of Maruti Car and he could know about the registration number only at Police Station, Chhota Shimla. He has further deposed that he has not uttered a single word that driver of car was driving the said car in a state of intoxication. As per PW-2, he has neither noticed the registration number of Maruti Car nor he could identify the person, who was driving the Maruti Car. Similarly, as per PW-3, he has nowhere stated that accused was driving the Maruti car in a state of intoxication. From these statements, it is clear that accused was not driving the Maruti Car

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in a state of intoxication. Further, as per PW-2, PW-3 and PW-4, they specifically deposed that no injury was caused to any person. There is no iota of evidence on record as per the statements of PW2 and PW-3 that Maruti car bearing registration No.HP-62-0299 was being driven by the accused. The statement of PW-2 does not inspire confidence, as he had not seen the registration number of Maruti car nor he was able to identify the accused. PW-5 Dharam Dutt, who had mechanically examined the accidental bus and Maruti Car and his reports are Ex.PW5/A and Ex.PW5/B. As per his report, there was no mechanical defect in both the vehicles. PW-6 Gian Chand, in whose presence, photographs of the bus and car were taken. The bus alongwith its documents and key was taken into possession vide memo Ex.PW2/B. PW-7 Dr. Ramesh Chand, medically examined the accused and issued MLC Ex.PW7/A. The injuries were simple in nature and were possible due to road side accident. PW-8 Constable Jitender Kumar produced copy of rapat Ex.PW8/D. PW-9 Constable Bhagat Ram is a witness of recovery memo Ex.PW9/A. PW-10 Head Constable Tulsi Dass, has deposed that he alongwith other police officials visited the spot and recorded the statement of complainant Ex.PW2/A, on the basis of which, FIR Ex.PW10/A was registered. He visited the spot, prepared site plan and both the vehicles were taken into possession vide recovery memo in the presence of witnesses.

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Accused was medically examined at I.G.M.C Shimla and statements of witnesses were recorded, as per their versions.

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As far as PW-4 Dev Raj, is concerned, he has shown his ignorance about the speed of Maruti Car driven by the accused. He has stated that both the vehicles were damaged, but no one has received injuries. He could not recognize the person who was driving the Maruti Car. PW-2 Ravinder Kumar/complainant has stated that he was driving the bus bearing No.HP-07-3932 from Bus Stand towards Mehli side, when he reached at Talland from downward, Maruti car came with high speed and collided with the bus. The Maruti Car was being driven by the accused. The accident has taken place due to the rash and negligent driving of the accused. Police visited the spot. During investigation, documents of the bus alongwith its key and driving licence were taken into possession vide memo Ex.PW2/B in the presence of witnesses. Photographs of the spot were also taken. In his cross-examination, he has admitted that when he was driving the bus, he had not seen which vehicle collided with his bus. He has also admitted that he had not seen the number of Maruti Car and he had seen the said number at Police Station, Chota Shimla. At the time of accident, no witness was present on the spot. If the statement of this witness, as a whole is perused, he has nowhere stated that what was the registration number of the

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Maruti Car, which collided against his bus. As per his statement recorded by the police under Section 154 of the Code of Criminal Procedure, he has not mentioned the registration number of Maruti Car nor he has noticed the registration number of Maruti Car. The statement of this witness is totally contradictory to other. He has not noticed the number of the Maruti Car nor he has seen the accused, but on the other hand, when his statement was recorded by the police, he had got down from the bus and asked the name of the accused.

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Statement of PW-2 is a major improvements and in contradiction to his earlier statement recorded under Section 154 of the Code of Criminal Procedure, as nothing has come in the evidence to prove that accused was driving the Maruti Car under intoxication or he was driving the car as even the PW-2 could not notice the registration number of the Maruti Car nor he identify the accused, so this Court finds that the prosecution has failed to prove the guilt of the accused beyond the shadow of reasonable doubt.

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It has been held in K. Prakashan vs. P.K. Surenderan

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(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

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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.

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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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The net result of the above discussion is that the prosecution has failed to prove the guilt of the accused conclusively and beyond reasonable doubt. There is no illegality and infirmity in the findings, so recorded by the learned trial Court. 13. 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) 1^st May, 2017 Judge (CS)

State v. Satish Sarswati

Case brief

What is this about?

What did the court decide?

State v. Satish Sarswati

Case brief

What is this about?

What did the court decide?

What the court decided

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Coram

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