Dismissed

State of Hp v. Vijay Parkash

Himachal Pradesh HC2 May 2018CR.A/251/2016

Case brief

AI extract

What is this about?

In an appeal against an order of acquittal on charges of rash driving and dangerous driving, the High Court upheld the acquittal of the accused. The court found insufficient evidence to prove the accused was driving rashly or that he was present at the scene, distinguishing between high speed and legal rashness.

What did the court decide?

The appeal is dismissed; the order of acquittal is upheld; the accused is discharged of bail bonds; miscellaneous applications disposed of.

State of Hp Vs Vijay Parkash — Cheque Dishonour | Himachal Pradesh HC (2018)

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IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

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Cr.Appeal No.251 of 2016 Date of decision: 02.05.2018

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State of Himachal Pradesh ….Appellant

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Versus

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Vijay Parkash ....Respondent-Accused

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Coram

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The Hon’ble Mr.Justice Sandeep Sharma,Judge.

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Whether approved for reporting ?^� Yes.

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For the Petitioner: Mr.Vikrant Chandel, Deputy Advocate General.

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For the Respondent : Mr.K.R. Thakur, Advocate.

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Sandeep Sharma,J.

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Complainant Aman Dogra (PW-2) in his statement recorded under Section 154 of the Code of Criminal Procedure (for short ‘Cr.P.C.’) Ex.PW-2/A, on the basis of which formal FIR Ex.PW-7/A came to be registered against the respondent-accused (hereinafter referred to as the ‘accused’ ), alleged that on 30^th April, 2010, at around 7.30 P.M. he, after his office hours, was going to his house in his car bearing No.HP-52A-3599. He alleged that when he reached near B.C.S. (PNB Curve), accused, who was under the influence of liquor, came driving vehicle bearing No.HP-

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� Whether the reporters of Local Papers may be allowed to see the judgement ? Yes.

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52A-0262 from Sector-2 side and hit a person namely; Kanhya Bihari. As per complainant, accused also hit Innova vehicle bearing No.HP-68AT-0837 and vehicle No.HP-52A3599 of the complainant, as a consequence of which front portion belonging to the vehicle of complainant got damaged. After completion of investigation, on the basis of aforesaid information furnished by complainant PW-2, FIR detailed hereinabove came to be lodged against the accused. After completion of investigation, police presented challan in the competent Court of law i.e. Additional Chief Judicial Magistrate, Court No.1, Shimla, who, being satisfied that prima facie case exists against the accused, put him notice of accusation for having committed offence punishable under Sections 279 and 337 of the Indian Penal Code (for short ‘IPC’) and Section 185 of the Motor Vehicles Act (for short ‘MV Act’) to which he pleaded not guilty and claimed trial.

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2. Prosecution, with a view to prove its case, examined as many as 10 prosecution witnesses, whereas accused in his statement recorded under Section 313 Cr.P.C. denied the incriminating evidence adduced on record against him and claimed himself to be innocent by stating that after the accident, one of the owner of car bearing No.HP-3599 demanded Rs.one lac from him. He further stated that he was not having money and on the next day, the vehicle owner demanded for Rs.10,000/- from him, which he gave to

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him and thereafter, they entered into a compromise in D.C. Office. He further stated that car owner assured him that he would not register any case against him. Subsequently, he came to know that case stands registered against him. He also stated that he was having 10 years experience of driving and was not drunk at the time of occurrence. Accused took a defence that at the time of accident, vehicle in question was being driven by one Mohinder Harish and he had reached on the spot later on. Learned trial Court, on the basis of evidence adduced on record by the prosecution, held the accused not guilty of having committed offence punishable under Sections 279 and 337 IPC and Section 185 of the MV Act and accordingly, acquitted him of the notice of accusation put to him.

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3. In the aforesaid background, appellant-State has approached this Court in the instant proceedings, seeking therein conviction of respondent-accused for having committed offence punishable under Sections 279 and 337 of the IPC and Section 185 of the MV Act, after setting aside the judgment of acquittal recorded by the Court below.

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4. Shri Vikrant Chandel, learned Deputy Advocate General, while referring to the impugned judgment of acquittal recorded by the Court below, strenuously argued that same is not sustainable in the eye of law and same is not based upon proper appreciation of evidence. He further

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contended that bare perusal of impugned judgment of acquittal recorded by Court below clearly suggests that Court below has failed to appreciate the evidence in its right perspective, as a consequence of which erroneous findings have come to the fore and accused has been let out on very flimsy grounds. While making this Court to peruse statements made by the prosecution witnesses, Mr.Chandel made a serious attempt to persuade this Court to agree with his contention that prosecution successfully proved beyond reasonable doubt that on the date of alleged incident vehicle was being driven rashly and negligently under the influence of liquor by the respondent-accused, who, prior to hitting vehicle of complainant PW-2, also hit person; namely; Kanhayia Bihari and two other vehicles and as such there was no scope left for Court below to acquit the respondentaccused for having committed offence punishable under Sections 279 and 337 IPC and 185 of the MV Act.

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5. Lastly, Mr.Chandel, while inviting the attention of this Court to the FSL report Ex.PW-7/C contended that it stands duly proved on record that accused was under the influence of liquor and, as such, Court below has fallen in grave error while acquitting him of offences punishable under Section 185 of the MV Act. He further contended that statements made by all the prosecution witnesses, if read in its entirety, proves beyond reasonable doubt that accident in

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question occurred on account of rash and negligent driving of the respondent-accused and as such impugned judgment of acquittal deserves to be quashed and set aside being totally contrary to the evidence available on record.

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6. Mr.K.R. Thakur, learned counsel representing the respondent-accused, supported the impugned judgment of acquittal recorded by the Court below and contended that bare perusal of same suggests that same is based upon proper appreciation of evidence and there is no illegality and infirmity in the same and, as such, the same deserves to be upheld. While refuting the aforesaid submissions having been made by the learned Deputy Advocate General, Mr.K.R. Thakur, learned counsel representing the respondentaccused, contended that if the statements of prosecution witnesses are read in conjunction, it creates doubt with regard to the fact that the offending vehicle was being driven in rash and negligent manner and, as such, learned Court below rightly not placed reliance upon the same.

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7. I have heard learned counsel for the parties and gone through the record of the case.

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8. Before ascertaining the correctness of rival submissions made on behalf of the learned counsel for the parties vis-à-vis impugned judgment of acquittal recorded by Court below, it may be noticed that this Court, while granting leave to appeal under Section 378(3) Cr.P.C.,

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summoned the record of the Court below, which has been made available today during the course of hearing.

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9. Having carefully perused the record, especially, statement of accused recorded under Section 313 Cr.P.C., factum with regard to accident in question cannot be disputed. Similarly, though learned Deputy Advocate General, while inviting the attention of this Court to the answer given by the accused to question No.4 in his statement recorded under Section 313 Cr.P.C., argued that factum with regard to consumption of alcohol at the time of alleged incident stands admitted by the accused, but this Court, after having perused the statement made by accused under Section 313 Cr.P.C. in its entirety, is not inclined to agree with the aforesaid submission made by learned Deputy Advocate General because accused has though admitted the factum with regard to accident on the alleged date of incident, but he has categorically stated that on the date of alleged incident vehicle in question was being driven by Mohender Harish and not by him, which statement of him stands duly corroborated by the version put forth by only one independent witness i.e. PW-4 Kanhayia, who while supporting the version put forth by prosecution that on 30^th April, 2010 at around 7.30 P.M. he was going to Sector-2, stated that one black alto car No.HP-52A-2852 hit him from behind in the wrong side, as a consequence of which he fell

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and sustained injuries in right portion of his back and arm. He further stated that thereafter he started moving towards New Shimla, Sector-2, where he saw that said car hit one Santro car. Most importantly, it has come in his statement that lateron he came to know that driver of the car was drunk at the time of accident. It has specifically come in his cross-examination that the accused was not present on the spot at that time and he had reached lateron.

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10. PW-1 Amar Dogra stated that on the date of alleged incident, he asked his son Aman Dogra (PW-2) to bring car bearing No.HP-52A-3599 to Nigam Bihar and thereafter they both went to drop Balbir Chauhan at Sector2, New Shimla. He further stated that after dropping Balbir Chauhan, when they reached near PNB, the accused, while driving alto car bearing No.HP-52A-0262 at high speed, came there and hit their car in the wrong direction of the road, as a consequence of which bumper and lights of the driver side of their vehicle were damaged. He further stated that the accused was drunk at that time. He also stated that one/two other occupants of his car fled away from the spot and later on he came to know that the accused had also hit some other vehicle bearing registration number of Haryana. In his cross-examination he admitted that 4-5 persons were sitting in the offending vehicle and he did not know their names. He further stated that he knew the accused prior to

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the occurrence. He further deposed that he came to know about his name only when police asked his name. Though he denied that he had demanded Rs.one lac from the accused, but he admitted that on the next day accused gave them Rs.10,000/-, which statement of his further corroborates the version put forth by the accused in his statement under Section 313 Cr.P.C. Though he denied that they had gone to Police Station with the request that they did not want to pursue the case, but admitted that police told them that FIR already stands registered.

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11. PW-2 Aman Dogra also corroborated the version put forth by PW-1 Amar Dogra and claimed that accused, while driving black alto car at the speed of 40-50, hit them on the wrong side of the road, as a result of which, bonnet, paddle and light of driver side of their vehicle were damaged. He also stated that the accused was drunk at that time. In his cross-examination he admitted that complaint Ex.PW2/A was written by his father. He also stated that 4-5 persons were sitting in the offending vehicle at that time, but he did not know them. Interestingly, this witness in crossexamination stated that he had come to know the name of the accused from the documents of the vehicle, however, admitted that accused lives near the petrol pump. He also stated that he as well as accused used to drive their vehicle in New Shimla. He also admitted that they had received

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Rs.10,000/- from the accused after entering into a compromise. He also admitted that after having entered into compromise, they went to the police station with a request not to pursue the case, but police stated that FIR stands already registered.

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12. Statements having been made by PW-1 Amar Dogra, PW-2, Aman Dogra and PW-4 Kanhayia Sharma are material to determine the correctness of the story put forth by the prosecution with regard to the alleged incident, whereas statements having been made by other witnesses may not be very relevant to determine the factum with regard to rash and negligent Act of the accused.

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13. Investigating Officer, ASI Taranjeet, while deposing as PW-7 in his cross-examination, denied that accused was not driving the car nor he was present on the spot at the time of occurrence, but admitted that the complainant on the next day had casually told him that he had effected a compromise with the accused and does not want to pursue the case. He also denied that accused being owner of offending vehicle was telephonically called on the spot. As has been noticed above, there is only one independent witness i.e. PW-4 Kanhayia Sharma, who was also allegedly hit by the vehicle driven by the accused, but

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he categorically stated before the Court below that accused was not present on the spot at the time of accident, rather

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police after having procured information with regard to address from the documents lying in the vehicle called him on the spot. The aforesaid version put forth by independent witness falsifies the entire story of prosecution. Needless to say that PW-1 and PW-2 are closely related to each other being father and son and as such version put forth by them is/was required to be considered and dealt with cautiously, with utmost care and precaution. No doubt, version put forth by interested witnesses cannot be brushed aside solely on the ground of relationship, but at the same time it is well settled by now that version put forth by the interested witnesses is required to be dealt with cautiously and carefully, while ascertaining the guilt of accused.

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14. In the case at hand, from the statements of PW1 Amar Dogra and PW-2 Aman Dogra, it clearly emerge that accused was known to them as he had been driving the vehicle in New Shimla for quite considerable time. PW-2 in his statement has categorically stated that accused lived near petrol pump. Both these witnesses in their crossexamination admitted that the name of the accused was not known to them earlier, whereas name of the accused stood mentioned in the complaint Ex.PW-2/A, but there is no explanation that once name of the accused was not known to

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the complainant, how his name figured in the complaint Ex.PW-2/A. Similarly, though PW-1 and PW-2 stated in

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their statements that 3-4 persons were occupying the offending car at the time of occurrence, out of whom one/two occupants fled away from the spot. PW-4 Kanhayia Sharma, who allegedly was also hit by his car, categorically stated that accused was not present on the spot at the time of accident and was called lateron and as such, learned Court below rightly came to the conclusion that the presence of accused on the spot, rather factum with regard to his being driving the offending vehicle, is/was doubtful. In the case at hand, prosecution has failed to prove the identity of the accused and, as such, this Court finds no illegality and infirmity in the impugned judgment of the Court below. No doubt that in the case at hand evidence available on record indicates that accused was under the influence of liquor, but, as has been observed above, presence of accused is/was doubtful on the spot and, as such, report of FSL Ex.PW-7/C indicating the petitioner to be under the influence of liquor is of no relevance and learned Court rightly not placed reliance upon the same.

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15. Leaving everything aside, this Court finds no specific evidence led on record by the prosecution to prove rash and negligent driving by the respondent-accused. PW-1 and PW-2 in a very casual manner have only stated that offending vehicle was being driven in high speed, but high speed cannot be a criteria to conclude rash and negligent

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driving, rather to prove guilt, if any, under Section 279 IPC, it is/was incumbent upon the prosecution to prove act of rashness and negligent so as to endanger the human life. But in the case at hand there is no specific evidence led on record in this regard.

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16. In the instant case, this Court is unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently that too at high speed. In this regard, reliance is placed on judgment rendered by the Hon’ble Apex Court in Braham Dass v. State of Himachal Pradesh, (2009) 3 SCC (Cri)

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406 , which reads as under:-

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“6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the accusedappellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there. There was no evidence to show that the driver had knowledge that any passenger was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.

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8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.”

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17. The Hon’ble Apex Court in case titled “ State of

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Karnataka v. Satish,”1998 (8) SCC 493 , has also observed as

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under:-

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“1. Truck No. MYE-3236 being driven by the respondent turned turtle while crossing a "nalla" on 25-11-1982 at about 8.30 a.m. The accident resulted in the death of 15 persons and receipt of injuries by about 18 persons, who were travelling in the fully loaded truck. The respondent was charge-sheeted and tried. The learned trial court held that the respondent drove the vehicle at a high speed and it was on that account that the accident took place. The respondent was convicted for offences under Sections 279, 337, 338 and 304A IPC and sentenced to various terms of imprisonment. The respondent challenged his conviction and sentence before the Second Additional Sessions Judge, Belgaum. While the conviction and sentence imposed upon the respondent for the offence under Section 279 IPC was set aside, the appellate court confirmed the conviction and sentenced the respondent for offences under Sections 304A, 337 and 338 IPC. On a criminal revision petition being filed by the respondent before the High Court of Karnataka, the conviction and sentence of the respondent for all the offences were set aside and the respondent was acquitted. This appeal by special leave is directed against the said judgment of acquittal passed by the High Court of Karnataka. 2. We have examined the record and heard learned counsel for the parties.

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3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.

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4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any

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material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.

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5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged. Appeal dismissed.”

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18. Careful perusal of aforesaid judgment clearly suggests

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that there cannot be any presumption of rashness or negligence, rather, onus is always upon the prosecution to prove beyond reasonable doubt that vehicle in question was being driven rashly and negligently. In the aforesaid judgment, it has been specifically held that in the absence of any material on record, no presumption of rashness or negligence can be drawn by invoking maxim res ipsa loquitur .

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19. The Hon’ble Apex Court in case titled Ravi Kapur versus State of Rajasthan (2012) 9 SCC 285, has held as under:

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“15. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes – one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a

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provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of ‘culpable rashness’ and ‘culpable negligence’ into consideration in cases of road accidents. ‘Culpable rashness’ is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). ‘Culpable negligence’ is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person’s negligent conduct. [Ref. Justice Rajesh Tandon’s ‘An Exhaustive Commentary on Motor Vehicles Act, 1988’ (First Edition, 2010]. 20. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone’s negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration

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thereof. Elements of this doctrine may be stated as :

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The event would not have occurred but for someone’s negligence.

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The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.

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Accused was negligent and owed a duty of care towards the victim.”

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20. Reliance is also placed on judgment rendered by this Court in State of H.P. Vs. Manpreet Singh , Latest HLJ 2008 (HP)

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538, relevant para whereof is as under:

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“4. Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that said Shri Daya Ram had died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused. According to Rupinder Parkash (PW4) deceased was hit by the motor cycle which was in a high speed but the speed is not criteria to hold the act as rash or negligent. The respondent in his statement under Section 313 of the Code of Criminal Procedure has explained that on seeing the deceased, he had blown the horn and he (deceased) stopped on the road. As soon as he reached near him, he immediately tried to cross the road and got hit. His version has been duly corroborated by Hardeep Singh (DW1) who was a pillion rider with him. Ajay Kumar (PW-1) has admitted this version that the respondent had blown the horn and Daya Ram on hearing it, had stopped for a while. In these circumstances, if a person suddenly crosses the road, without taking note of the approaching vehicle and its driver may not be in a position to save the accident, it will not be possible to hold the Driver guilty of the offence. In the instant case, the deceased knowing fully well at least the approaching vehicle stopped on hearing the horn while crossing the road but when the motor cycle reached near him, he darted before it and the accident took place. Thus in my opinion the prosecution could not prove the offence charged against the respondent beyond reasonable doubt that the respondent was driving the vehicle rashly or negligently. Therefore, in these circumstances, the learned trial Court had rightly acquitted the respondent of the charges framed against him. As such, no

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interference in the impugned judgment of acquittal is called for. Accordingly the appeal is dismissed. The respondent is discharged of his bail bounds entered upon by him at any stage of the trial.”

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21. Consequently, in view of the detailed discussion made herein above as well as law laid down by the Hon’ble Apex Court, this Court sees no reason to differ with the well reasoned judgment passed by the learned court below, which otherwise appears to be based upon the proper appreciation of evidence adduced on record and as such, same is accordingly upheld. Accordingly, the appeal is dismissed being devoid of any merits.

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22. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.

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May 2, 2018 (Sandeep Sharma) (aks) Judge.

State of Hp v. Vijay Parkash

Case brief

What is this about?

What did the court decide?

State of Hp v. Vijay Parkash

Case brief

What is this about?

What did the court decide?

What the court decided

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