Dismissed

State v. Firoz Khan

Himachal Pradesh HC9 Sept 2022CR.A/248/2010

Case brief

AI extract

What is this about?

In this criminal appeal against acquittal, the State challenged findings that the respondent was not the driver causing the accident due to inconsistencies in prosecution witnesses. The High Court examined evidence contradictions and held the acquittal was not perverse. The appeal was dismissed to uphold the trial court's judgment.

What did the court decide?

Judgment of acquittal dated 06.02.2010 passed by the learned Judicial Magistrate, Rohru, affirming acquittal of the respondent.

State Vs Firoz Khan — Criminal Trial and Appeal | Himachal Pradesh HC (2022)

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REPORTABLE/NON-REPORTABLE

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 9^th DAY OF SEPTEMBER, 2022

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BEFORE

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HON’BLE MR. JUSTICE SATYEN VAIDYA

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CRIMINAL APPEAL NO. 248 of 2010

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Between:

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STATE OF HIMACHAL PRADESH

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…..APPELLANT

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(BY MR. DESH RAJ THAKUR, ADDITIONAL ADVOCATE GENERAL WITH MR. NARENDER THAKUR, DEPUTY ADVOCATE GENERAL AND MR. MANOJ BAGGA, ASSISTANT ADVOCATE GENERAL )

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AND

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FIROZ KHAN, SON OF SHRI AHMAD KHAN, R/O VILLAGE JAKHAR, TEHSIL AND P.S. ROHRU, DISTT. SHIMLA, H.P.

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……..RESPONDENT

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(BY MR. INDERJEET SINGH NARWAL,ADVOCATE)

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RESERVED ON : 05.09.2022 DECIDED ON : 09.09.2022

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This appeal coming on for pronouncement of judgment this day, the Court passed the following:-

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J U D G M E N T

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By way of instant appeal, State has assailed the judgment of acquittal dated 06.02.2010, passed by learned Judicial Magistrate 1st Class, Court No. 2, Rohru, Distt. Shimla, H.P., in Criminal Case No. 95/2 of 2009/2008.

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Respondent was prosecuted for offences under Sections 279, 337 & 338 of Indian Penal Code. Allegations against the respondent were that on 03.08.2007, while driving Truck No. HP-10-2457 in a rash and negligent manner, he caused grievous injury to PW-1 Smt. Santosh near the office of Deputy Superintendent of Police, Rohru, District Shimla, H.P.

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Respondent denied the charge and claimed trial. Prosecution examined total fourteen witnesses. Respondent was examined under Section 313 of Cr.P.C. Respondent did not lead any defence evidence. Learned Trial Court after appreciating the

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prosecution evidence, acquitted the respondent, vide impugned judgement.

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State has assailed the impugned judgment on the grounds that the findings returned by the learned Trial Court were based on surmises and conjectures. Learned Trial Court had appreciated the evidence in slipshod and perfunctory manner. Appellant has contended that the reasoning returned by the learned Trial Court is unreasonable. Thus, the predominant challenge to the impugned judgment is on the ground of mis-appreciation of evidence.

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Learned counsel for the respondent, on the other hand, has supported the impugned judgment, on the ground that the view taken by the learned Trial Court, by appreciating the evidence, was the only possible and reasonable view.

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I have heard learned counsel for the appellant as well as learned counsel for the respondent and have also gone through the record.

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Prosecution examined PW-2 HC Amrit Singh, PW-11 HC Prakash Chand and PW-12 HHC Jania Ram as eye witnesses besides the victim as PW-1.

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Learned Trial Court on appreciation of the statements of aforesaid witnesses came to the conclusion that their statements were not consistent and there was a clear doubt as to the identity of the person driving the vehicle at the time of accident. PW-2 HC Amrit Singh and PW-13 HHC Jania Ram deposed that they were together near the place of accident on 03.08.2007. PW-2 in his examination-in-chief stated that at about 10:00 AM Truck No.HP-10-2457 came from the side of Hatkoti in high speed and hit one lady in front of the office of Deputy Superintendent of Police, Rohru. The name of the driver was later discovered as Feroj Khan. He identified in the Court the accused to be the person driving the Truck in question. It was further deposed by this witness that the accident had taken place due to rash and negligent driving of the accused. In crossexamination, PW-2 stated that he had not seen the persons occupying the truck. According to this witness, many people had

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gathered on the spot. He further stated that another vehicle was parked at the site of accident. He did not notice people sitting in the said vehicle. PW-12 HHC Jania Ram deposed that he alongwith PW-2 HC Amrit Singh were going towards their office on 03.08.2007. At about 10:00 AM Truck No. HP-10-2457 came from the side of Mahendli and hit a lady on the road. She was carried in the same truck to the hospital by the accused. The name of the driver was later discovered as Feroz Khan. He also stated that the accident had taken place on account of rash and negligent driving of the driver. In his cross-examination, he contradicted PW-2 on material particulars. PW-12 stated that on the spot there was none else than this witness and PW-2 Amrit Singh. He further stated that when they reached the spot the lady was lying on the ground and a truck was parked on the side. As per this witness, when he and Amrit Singh had reached the spot, the truck was parked and no one was occupying the seat of the driver. He feigned ignorance about the number of other vehicles parked on the spot. He also stated that before his reaching the spot 10-12 peoples were already standing there.

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Another witness PW-11 was also examined as eye witness. In his examination-in-chief, PW-11 HC Prakash Chand also stated that Truck No. HP-10-2457 was proceeding towards Rohru from Mahendli side and had hit a lady near the office of Deputy Superintendent of Police, Rohru. He identified in the Court the accused to be the driver of the Truck. According to this witness also the accident had taken place due to rash and negligent driving of the driver. In cross-examination, this witness stated that PW-2 Amrit Singh and PW-12 Jania Ram were with him at the spot and no other local person was walking on the road. He had also not seen the persons occupying the truck. According to him, no other vehicle was parked on the spot. Lastly, he stated that he had not seen inside the truck and was not aware that who was on the wheel.

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Analyzing, the depositions made by PW-2, PW-11 and PW-12, it cannot be said that the findings returned by the learned Trial Court are perverse. The statements of these witnesses were not consistent. PW-2 and PW-12 had not mentioned the name of PW-11 to be the person accompanying

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them. It is highly improbable that had PW-11 being accompanying them, they would have easily remembered such fact as PW-11 was also a police official working in the same office where PW-2 and PW-12 were posted. According to PW-11, there were no other person on the road except himself, PW-2 and PW-12, whereas according to PW-2 there were many persons on the spot. PW-12 had specifically stated in his cross-examination that when he alongwith PW-2 Amrit Singh reached the spot, the lady was lying on the road and truck was parked on the side. No one was on driver’s seat at that time. When PW-2 and PW-12 were together, it is not understandable, as to how, both could make diametrically different statements. PW-2 had stated that the accident had occurred in front of his eyes as well as in presence of PW-12. The embellishments and contradictions found in the statements of PW-2, PW-11 and PW-12 cannot be brushed aside as insignificant or minor in nature.

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As regards, the statement of PW-1 i.e the injured she had stated that the truck had hit her causing injury to her right leg and arm. The driver of the truck had taken her to the hospital.

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She had identified the accused to be the same person. However, in her cross-examination, PW-1 admitted that she had alighted from a vehicle and immediately thereafter she was hit by the truck. She further stated that she had seen the accused for the first time when he had lifted her. She was not even aware of the name of truck driver. She also feigned ignorance about the person on the wheel when the truck hit her. Thus PW-1 was also not very categoric about the identification of the person driving the vehicle. She had identified the accused to be the driver of the truck as according to her it was accused, who had taken her to hospital. Further, her statement also castes a doubt on the versions given by PW-2, PW-11 and PW-12. None of them had stated that the injured had alighted from a vehicle and immediately thereafter she was hit by the truck. Thus, possibility of suppression of genesis of the case cannot be ruled out.

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PW-5 Dr. Dalip Sharma proved the injuries suffered by PW-1, whereas other witnesses were formal and their depositions will not make any difference on the fate of the case as none of them had seen the occurrence.

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It is more than settled that while deciding the appeal against acquittal the Appellate Court should not ordinarily import its opinion or view on re-appreciation of the evidence unless the view taken by learned Trial Court is perverse. In M.G Agarwal Vs. State of Maharashtra, AIR 1963 SC 200 , the Constitution Bench of Hon’ble Supreme Court observed that the approach of High Court (Appellate Court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence is not certainly weakened by the fact that the accused has been acquitted at the trial.

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In Rajesh Prasad Vs. State of Bihar and anr. (2022) 3 SCC 471 , a three judge Bench of Hon’ble Supreme Court held as under:-

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“21. Before proceeding further, it would be useful to review the approach to be adopted while deciding an appeal against acquittal by the trial court as well as by the High Court. Section 378 of the Cr.P.C deals with appeals in case of acquittal. In one of the earliest cases on the powers of the High Court in dealing with an appeal against an order of acquittal the Judicial Committee of the Privy Council in Sheo Swarup vs. R. Emperor, AIR 1934 PC 227(2) considered the provisions relating to the power of an appellate court in

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dealing with an appeal against an order of acquittal and observed as under:

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“16. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court.

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“….But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognised in the administration of justice.”

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It was stated that the appellate court has full powers to review and to reverse the acquittal.

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22. In Atley vs. State of U.P., AIR 1955 SC 807, the approach of the appellate court while considering a judgment of acquittal was discussed and it was observed that unless the appellate court comes to the conclusion that the judgment of the acquittal was perverse, it could not set aside the same. To a similar effect are the following observations of this Court speaking through Subba Rao J., (as His Lordship then was) in Sanwat Singh vs. State of Rajasthan, AIR 1961 SC 715:

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“9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup case afford a correct guide for the appellate court’s approach to a case disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as, (i) ‘substantial and compelling reasons’, (ii) ‘good and sufficiently cogent reasons’, and (iii) ‘strong reasons’ are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.”

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The need for the aforesaid observations arose on account of observations of the majority in Aher Raja Khimavs. State of Saurashtra, AIR 1956 SC 217 which stated that for the High Court to take a different view on the evidence “there must also be substantial and compelling reasons for holding that the trial court was wrong.”

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23. M.G. Agarwal vs. State of Maharashtra, AIR 1963 SC 200 is the judgment of the Constitution Bench of this Court, speaking through Gajendragadkar, J. (as His Lordship then was). This Court observed that the approach of the High Court (appellate court) in dealing with an appeal against acquittal ought to be cautious because the presumption of innocence in favour of the accused “is not certainly weakened by the fact that he has been acquitted at his trial.”

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24. In Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793, Krishna Iyer, J., observed as follows:

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“6…..In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents.”

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25. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225, spoke about the approach of the appellate court while considering an appeal against an order acquitting the accused and stated as follows:

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“7…..While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions.”

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The object and the purpose of the aforesaid approach is to ensure that there is no miscarriage of justice. In another words, there should not be an acquittal of the guilty or a conviction of an innocent person.

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26. In Ajit Savant Majagvai vs. State of Karnataka, (1997) 7 SCC 110, this Court set out the following principles that would regulate and govern the hearing of an appeal by the High Court against an order of acquittal passed by the Trial Court:

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“16. This Court has thus explicitly and clearly laid down the principles which would govern and regulate the hearing of appeal by the High Court against an order of acquittal passed by the trial court. These principles have been set out in innumerable cases and may be reiterated as under:

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(1) In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the

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powers it possesses while hearing an appeal against an order of conviction.

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(2) The High Court has the power to reconsider the whole issue, reappraise the evidence and come to its own conclusion and findings in place of the findings recorded by the trial court, if the said findings are against the weight of the evidence on record, or in other words, perverse.

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(3) Before reversing the finding of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial court that the accused is entitled to acquittal.

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(4) In reversing the finding of acquittal, the High Court has to keep in view the fact that the presumption of innocence is still available in favour of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favour by the trial court.

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(5) If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.

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(6) The High Court has also to keep in mind that the trial court had the advantage of looking at the demeanour of witnesses and observing their conduct in the Court especially in the witness box.

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(7) The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would

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honestly and conscientiously entertain as to the guilt of the accused.”

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27. This Court in Ramesh Babulal Doshi vs. State of Gujarat, (1996) 9 SCC 225 observed visàvis the powers of an appellate court while dealing with a judgment of acquittal, as under:

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“7. … While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then—and then only—reappraise the evidence to arrive at its own conclusions.”

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28. This Court in Chandrappa & Ors. vs. State of Karnataka, (2007) 4 SCC 415, highlighted that there is one significant difference in exercising power while hearing an appeal against acquittal by the appellate court. The appellate court would not interfere where the judgment impugned is based on evidence and the view taken was reasonable and plausible. This is because the appellate court will determine the fact that there is presumption in favour of the accused and the accused is entitled to get the benefit of doubt but if it decides to interfere it should assign reasons for differing with the decision of acquittal.

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29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words:

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“42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

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(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

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(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

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(3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”,“glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

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(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in

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favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

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(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”

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30 . In Nepal Singh vs. State of Haryana– (2009) 12 SCC 351, this Court reversed the judgment of the High Court which had set aside the judgment of acquittal pronounced by the trial court and restored the judgment of the trial court acquitting the accused on reappreciation of the evidence.”

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Taking into consideration the above noted exposition of law, this Court does not find any material to disagree with the findings recorded by learned Trial Court. Such findings cannot be termed to be perverse. Learned Trial Court has based its findings on the evidence available on record. The view taken by learned Trial Court is reasonable and possible view.

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