Dismissed

State v. Rajesh Kumar

Himachal Pradesh HC10 Mar 2022CR.A/253/2010

Case brief

AI extract

What is this about?

Criminal appeal by the State against the acquittal of the respondent for rash and negligent driving causing injury. The High Court upheld the acquittal, finding the investigation tainted and evidence contradictory, thus leaving no room for reasonable interference.

What did the court decide?

Impugned judgment acquitting the respondent was confirmed; pending applications, if any, dismissed; bail bonds discharged.

State Vs Rajesh Kumar — Cheque Dishonour | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 10^th DAY OF MARCH, 2022

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BEFORE

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HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN

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CRIMINAL APPEAL NO. 253/2010

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BETWEEN:

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STATE OF HIMACHAL PRADESH

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….APPELLANT (BY MR. ASHOK SHARMA, AG. WITH MR. VINOD THAKUR, ADDL. A.G. & MR. RAJAT CHAUHAN, LAW OFFICER)

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AND

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RAJESH KUMAR, SON OF SH. RANGI RAM, R/O VILLAGE RABON, P.O. SAPROON, TEHSIL AND DISTRICT SOLAN, H.P.

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...RESPONDENT

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(BY MR. VINAY THAKUR, ADVOCATE)

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The appeal coming on for admission after notice this

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day, the court passed the following:

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J U D G M E N T

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The State has filed the instant appeal against the judgment dated 30.1.2010 passed by the learned Judicial Magistrate, 1^st Class, Solan, District Solan, H.P. in Cr. Case No. 144/2/04/03, whereby the respondent/accused has been acquitted of offences punishable under Sections 279, 337 and 338 of the Indian Penal Code.

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2 Briefly stated the facts of the case are that on 17.3.2003 at about 8.00 P.M., the respondent/accused was driving a three-wheeler bearing registration No. HP-59-0074 in a rash and negligent manner near Pani-Ki-Bawri on a public way at Anji, as a result whereof, the vehicle in question hit PW3 Laiq Ram causing simple as well as grievous injuries to him. A telephonic information of the incident was received by the police from Zonal Hospital, Solan, where the injured was brought for medical treatment. On receipt of such information, PW10 HC Ram Rattan and Constable Jasbir visited the hospital, where statement of the complainant under section 154 Cr.P.C., Ext. PW5/A came to be recorded and accordingly an FIR, Ext. PW7/A was registered.

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3 Investigation of the case was handed over to HC Ram Rattan, who visited the spot and prepared the site plan, Ext. PW10/A and also clicked the photographs of the spot, Ext. P4 to Ext. P6. The Investigating Officer impounded the vehicle in question and also seized the R.C. and other documents of the vehicle vide memo, Ext. PW10/B. The vehicle was got mechanically examined from the mechanic Yoginder Kumar, who prepared report, Ext. PW4/A. After recording the statements of the witnesses and completion of investigation, the investigating

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officer handed over the case file to SHO, who prepared the challan and presented it before the learned trial court.

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4 The prosecution examined as many as 10 witnesses

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and thereafter statement of the accused was recorded under Section 313 Cr.P.C., wherein he pleaded innocence, however he did not lead any evidence.

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5 The learned trial court after evaluating the evidence acquitted the accused, as aforesaid, constraining the appellant/state to file the instant appeal.

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6 It is vehemently argued by learned Advocate General that the judgment passed by the learned trial court is not at all sustainable as its findings are based on conjectures and surmises. The learned trial court has given benefit of fanciful doubt and not reasonable doubt to the accused, whereas in view of the categorical statements of the prosecution witnesses, more particularly PW-1, PW-2, who were the eye-witnesses, PW3 injured, PW5 owner of the vehicle in question and investigating officer, it is proved beyond reasonable doubt that the accused had been driving the vehicle in question rashly and negligently.

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7 Learned trial court has given reasons for acquittal of the accused in paras 19 and 20 of the impugned judgment, which read as under:-

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19. In the present case, the complainant has failed to identify the accused as the driver of the three wheeler. He

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has stated that there were two persons in the three wheeler. The other eye witness Megh Raj has also deposed that there was one other person besides the driver. On the other hand, PW1 has identified the accused as driver of the three wheeler and he has denied the suggestion that there were three persons in the three wheeler. However, none of the witnesses has been able to identify the other occupants of the three wheeler. Therefore, it definitely creates a reasonable doubt as to the identity of the accused.

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20. As regards the rashness or negligence of the accused in driving the vehicle, it may be observed that the witnesses have deposed that the three wheeler was being driven on the wrong side of the road. However, the photographs of the spot create a reasonable doubt because they appear to have been taken at different places. Whereas, in photographs Ex P4 and P6, the three wheeler has been shown to be standing on Kucha road, PWS reveals that the same was standing on Pucca road. It may be observed that this is in stark contravention of the deposition of the IO that all the above photographs were taken at the same place. Further more, the I.O. has deposed that towards the right side of the three wheeler, as shown in the site plan, there was valley side but a portion of the photographs shown that there was hill side towards the right side of the three wheeler. Therefore, this contravention could create reasonable doubt as to the genuineness of the investigation. Mere oral deposition of the witnesses can not be the sole ground of imputing the accused with criminal liability when the investigation appears to be tainted and even the photographs do not reveal the correct picture of the spot.

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8 Learned Advocate General has failed to convince this Court that the findings, as recorded above, are in any manner incorrect much less perverse.

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9 The record reveals that the complainant indeed has failed to identify the accused as driver of the vehicle in question as he stated that there were two persons in the vehicle, whereas other eye-witness, Megh Raj, deposed that there was one another person besides the driver in the vehicle. As regards PW1 Kalu Ram, he would go to state that there were three persons in the vehicle.

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10 What is more strange is that none of these witnesses have been able to identify other occupants of the vehicle, which rightly, as observed by the learned trial court, definitely creates reasonable doubt about the identity of the accused.

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11 Further, as regards rashness and negligence, there is no proof whatsoever qua the same. All the witnesses have stated that they were walking on the correct side of the road, but then what is correct side is not forthcoming. That apart, it has been stated that the vehicle in question came from the wrong side of the road, but then evidence led to this effect is not forthcoming and limited evidence led is itself contradictory.

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12 One of the photographs, Ext. P-5 reveals that the vehicle was standing on pucca road, whereas in photographs Ext.

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P4 and Ext. P6, the vehicle in question has bene shown to be standing on Kachha road facing towards the left side, while as per the Investigating Officer, the vehicle was standing on the right side of the road, which is contradicted by the site plan prepared during the course of the investigation.

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13 In such circumstances, this Court has no hesitation to conclude that the prosecution has not been able to prove its case beyond reasonable doubt, in fact the whole investigation is shabby and therefore, not trustworthy.

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14 In the given circumstances, the learned trial court committed no error, while observing that “mere oral deposition of the witnesses can not be the sole ground of imputing the accused with criminal liability when the investigation appears to be tainted and even the photographs do not reveal the correct picture of the spot”.

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15 It is more than settled that if the view taken by the trial court is a possible view, then acquittal cannot be set aside by merely substituting its reasons by High Court. Reference in this regard can conveniently be made to the judgment of the Hon’ble Supreme Court in Dhanapal vs. State by Public Prosecutor, Madras (2009) 10 SCC 401 .

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16 Since the view taken by the learned trial court is a possible and plausible one, therefore, I see no reason to interfere with the impugned judgment.

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17 In view of aforesaid discussions, I find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any. Bail bonds are ordered to be discharged.

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(Tarlok Singh Chauhan) Judge

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10.3.2022 (pankaj)

State v. Rajesh Kumar

Case brief

What is this about?

What did the court decide?

State v. Rajesh Kumar

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

Cases cited

Statutes considered

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