Chattisgarh High Court
State Of Chhattisgarh vs Vishnu Nishad on 5 August, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Acquittal Appeal No. 126 of 2021
State of Chhattisgarh, Through - Police Station Sarkanda, District Bilaspur
(C.G.)
---- Appellant
Versus
Vishnu Nishad, S/o Firantaram Nishad, aged about 37 years, R/o Near
Durga Mandir, Lingiyadih, R/o Rajkishore Nagar, Sarkanda, Police Station
Sarkanda, District Bilaspur (C.G.)
----Respondent
For Appellant : Mr. Dinesh Tiwari, Deputy Govt. Advocate.
For Respondent : Mr. Nitansh Kumar Jaiswal, Advocate.
Hon'ble Shri Justice N.K. Chandravanshi
Order On Board
05.08.2021
(1) Proceedings of the matter have been taken-up through Video
Conferencing.
(2) Present appeal is directed against the judgment dated 28.08.2018 passed
by Judicial Magistrate, First Class, Bilaspur in Criminal Case No. 762/2015
acquitting the respondent/accused of the alleged commission of offence
punishable under Sections 279 & 338 of the Indian Penal Code.
(3) Case of the prosecution, in brief, is that when complainant Narendra
Kumar Yadav (PW-9), who is working on the post of Stenographer in the Office of
Additional S.P., Bilaspur, was returning to his home from his office for taking
lunch in his Hero Honda Motor-cycle bearing registration No. CG 12-A 5269
(henceforth "Hero Honda Motorcycle"), at that time, respondent/accused, while
driving the Tractor bearing registration No. CG 10 D 4693 (henceforth "Tractor")
rashly and negligently dashed to Hero Honda Motorcycle of complainant from
behind, as a result thereof, complainant sustained multiple/grievous injuries on
his both the hands and legs & backbone and his motorcycle was also got
damaged. Based on this, FIR (Ex.P-1) was registered under Sections 279 & 337
IPC against the respondent/accused (driver of tractor). After filing of charge sheet
under Sections 279, 337 & 338 of IPC, the trial Court stated the substance of
accusation under Sections 279 & 338 IPC to the respondent/accused.
(4) So as to hold the respondent/accused guilty, the prosecution has
examined as many as 10 witnesses. Statement of the respondent/accused was
also recorded under Section 313 of the Code of Criminal Procedure in which he
denied the circumstances appearing against him in the prosecution case,
pleaded innocence and false implication in the case.
(5) The trial Magistrate after hearing counsel for the respective parties and
considering the material available on record has acquitted the
respondent/accused as mentioned in paragraph No. 2 of this order. Hence, this
acquittal appeal.
(6) Learned counsel appearing for the appellant/State would submit that from
the evidence of Dhirendra Tiwari (PW-1), Ayodhya Prasad Pandey (PW-3) &
Narendra Yadav (PW-9) adduced by the prosecution, it is proved that
respondent/accused while driving the alleged tractor, committed the accident of
injured - Narendra Yadav (PW-9), despite that, learned trial Court has acquitted
the respondent/accused of the alleged offences, therefore, he prays to allow the
acquittal appeal and respondent/accused be convicted under Sections 279 & 338
of the IPC as there are sufficient material available on record calling for his
conviction.
(7) On the other hand, learned counsel for the respondent/accused would
submit that none of the witnesses have stated in their evidence that at the time of
accident, respondent/accused was driving the alleged Tractor. He would further
submit that in criminal cases to hold the guild, it is required that conclusive proof
must be there in the record but in this case no such evidence have been
adduced by the prosecution, therefore, learned trial Court has rightly acquitted
the respondent/accused of the offences punishable under Sections 279 & 338 of
the IPC, which does not call for any interference in the instant acquittal appeal.
(8) I have heard learned counsel for the parties and perused the material
available on record including impugned order with utmost circumspection.
(9) From the evidence of prosecution witnesses namely Complainant -
Narendra Yadav (PW-9), Dhirendra Tiwari (PW-1), Ayodhya Prasad Pandey
(PW-3), U.S. Pandey (PW-5) & Santosh Prajapati (PW-6), it is proved that on
the date on incident, Narendra Yadav met with an accident near Nutan Chowk,
Bilaspur and his motorcycle was dashed from behind by the Tractor. These facts
have been fully corroborated by FIR (Ex.P-1) and seizure memo of tractor-trolley
etc. (Ex.P-2) and Hero Honda Motorcycle (Ex.P-3).
(10) Narendra Yadav (PW-9), who is complainant/injured, has stated in his
statement that due to the accident, he sustained injuries over his hip, head and
legs and also on his backbone and due to that injuries he is still unable to stand
and move here and there. He has also stated in his evidence that below portion
of his hip has paralyzed. His above statement has been corroborated by
Dhirendra Tiwari (PW-1), who is not only his colleague but as soon as he
received his phone call , he went to CIMS Hospital, Bilaspur from where he was
taken to Appolo Hospital, Bilaspur and he saw the injuries sustained by victim in
the said accident.
(11) Dr. Deepak Jangde (PW-10) has examined victim - Narendra Yadav
(PW-9) on 22.12.2014 and has prepared his medical report (Ex.P-9). He has
stated in his evidence that on being examination of victim/injured, he found that
there was no movement on his both the legs, he was complaining pain on his
head and chest also. Injured/victim has received injuries on his right ear, right
hand, left knee, left ankle and below the left knee and he was unable to lift his
both the legs. After primary treatment, he was admitted in emergency ward of
CIMS hospital. His statement has been well supported by the medical report
(Ex.P-9), which has been prepared and proved by him.
(12) Dr. Ashish Jaiswal (PW-7), who is Orthopedic Surgeon of Appolo Hospital,
Bilaspur, has stated in his evidence that on 22.12.2014 Narendra Yadav (PW-9)
was admitted in Appolo Hospital because there was fracture on his back-bone,
due to which, his both the legs were paralyzed. His aforesaid statement has
been corroborated by Injury Certificate (Ex.P-7), which was prepared and proved
by him.
(13) Looking to above evidence, learned trial Court has rightly held that due to
accident, victim Narendra Yadav (PW-9) was severally injured and his D-12
(Thoracic Vertebrae) was fractured, as a result thereof, his both the legs were
paralyzed.
(14) So far as question of driving the alleged Tractor by respondent/accused is
concerned, Ayodhya Prasad Pandey (PW-03), who is owner of the tractor, has
stated that at the time of accident, respondent/accused was working as driver of
his tractor. He has also stated in his examination-in-chief that he has issued
driving certificate (Ex.P-5) in the name of respondent/accused but in cross-
examination, he has stated that document (Ex.P-5) was written by the police and
on behest of the police, he has signed in it. He has further stated that he does
not know that accident was occurred by which of the vehicle.
(15) Arjun (PW-4), who is brother of respondent/accused, has also stated that
respondent/accused was working as driver of tractor of Ayodhya Prasad Pandey
(PW-3).
(16) Dhirendra Tiwari (PW-1) and injured Narendra Yadav (PW-9) have stated
in their evidence that respondent/accused was driving tractor at the time of
accident. Narendra Yadav (PW-9) has also stated that driver of the tractor was
driving it rash and negligent manner but Dhirendra Tiwari (PW-1) has accepted
the suggestion in the cross-examination that he did not know that who was
driving the said tractor at the time of accident.
(17) Injured - Narendra Yadav (PW-9) has also accepted the suggestion in the
cross-examination that other persons were told him that the respondent/accused
is driver of the tractor, by which the accident had occurred. Aforesaid acceptance
of both these witnesses shows that they were not seen the driver (Person), who
was driving the tractor at the time of accient. Therefore, there statements are not
believable that at the time of accident, respondent/accused is a person, who was
driving the alleged tractor.
(18) Santosh Prajapati (PW-6), who is said to be eye witness to the incident,
has stated in his evidence that he did not see the accident, rather when he came
out from his office after the accident, then he saw damaged motorcycle lying on
the road and one tractor was standing there in the place of occurrence. He has
stated that persons, who were present there, were told him that accident
happened between tractor and motorcycle. He has clearly stated that he does
not know how the accident had occurred, he has not supported the case of the
prosecution.
(19) From the evidence of Ayodhya Prasad Pandey (PW-3) and Arjun (PW-4),
who is brother of respondent/accused, it is proved that respondent/accused was
working as tractor driver of Ayodhya Prasad and he has given the requisite
certificate in this regard. But only on this ground, it cannot be proved that at the
time of accident, respondent/accused was driving the tractor. Although Ayodhya
Prasad Pandey (PW-3) has stated in his examination-in-chief that at the time of
accident, respondent/accused was driving the tractor but in cross-examination,
he has stated that he does not know that from which of the vehicle the accident
had occurred. None of the witnesses of prosecution has stated that he saw the
respondent/accused driving the alleged tractor at the time of accident. Thus,
prosecution has failed to prove the fact that at the time of accident,
respondent/accused was driving the tractor, by which the accident had occurred.
(20) In view of the foregoing discussion and on going through evidence
adduced by the prosecution witnesses and particularly the fact that prosecution
has utterly failed to prove its case, and the trial Court is fully justified in recording
the finding of acquittal, which is based on proper appreciation of evidence
available on record, hence, this Court is of the view that the judgment impugned
acquitting the respondent/accused of the offence punishable under Sections
under Sections 279 & 338 of the Indian Penal Code, is just and proper, which
does not call for any interference by this Court.
(21) Accordingly, the acquittal appeal preferred by the appellant/State is devoid
of any substance and, therefore, the same is liable to be and is hereby
dismissed.
Sd/-
(N.K. Chandravanshi)
Judge
D/-
