Himachal Pradesh High Court
Surinder Kumar vs Unknown on 7 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7TH DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CRIMINAL REVISION NO. 29 OF 2012
Between:-
SURINDER KUMAR
S/O SHRI BALDEV CHAND,
R/O VILLAGE DHAMANDARI,
TEHSIL & DISTRICT UNA,
HIMACHAL PRADESH
.. PETITIONER-ACCUSED
(BY MR. VINOD GUPTA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
RESPONDENT
(BY MR. SUDHIR BHATNAGAR AND
MR. DESH RAJ THAKUR,
ADDITIONAL ADVOCATES GENERAL
WITH MR. NARINDER THAKUR AND
MR. KAMAL KISHORE & GAURAV SHARMA,
DEPUTY ADVOCATES GENERAL)
Whether approved for reporting: Yes.
This petition coming on for orders this day, the court passed the following:
O R D E R
Instant criminal revision petition filed under Ss. 397 and 401 CrPC
lays challenge to judgment dated 9.1.2012 passed by learned Additional
Sessions Judge Una in Cr. Appeal No. 9-X/2011, affirming judgment of
conviction and order of sentence dated 16.4.2011/18.4.2011, passed by
learned Judicial Magistrate First Class, Court No. (II), Una, in Cr. Case
No. 13-II-08, whereby learned trial Court, while holding the petitioner-
accused (hereinafter, 'accused') guilty of having committed offences
punishable under Ss. 279, 337 and 201 IPC, convicted and sentenced the
accused as under:
Section Sentence Fine Sentence in default
.
of payment of fine
279 IPC Four months simple 500 One month simple
imprisonment imprisonment
337 IPC Four months simple 500 One month simple
imprisonment imprisonment
201 IPC One month simple 500 Seven days simple
imprisonment imprisonment
2. Precisely, the facts of the case, as emerge from the record, are
that on 30.11.2007 at 5.55, a telephonic information was given to the
Police Station Haroli by Medical officer, Community Health Centre, Horoli
to the effect that a person, who suffered injuries in a vehicular accident
has been brought to the hospital for treatment. In this regard Rapat No.
16, (Ext. PW-10/A) was recorded. HC Pawan Kumar, Police Station
Haroli, recorded statement of Gurcharan Singh, injured, Ext. PW-1/B,
under S. 154 CrPC, who alleged that on 13.11.2007, he was transporting
grass on his bullock cart from his field to his house and at about 4.45 pm,
a private bus (Rajindra Bus) came from Tahliwal side on very high speed,
and struck against the bullock cart, which was moving on the left side of
the road. He alleged that due to impact of the bus, bullock cart went off
the road and he (complainant) suffered injuries on his right arm and other
part of the body. He alleged that the driver of bus fled from the spot after
alleged commission of crime. He averred that the complainant came to
know about registration number of the bus as HP-67-0108. He alleged
that the mishap occurred due to rash and negligent driving of the bus
driver, who was driving the bus at the relevant time in high speed. After
completion of investigation, police presented Challan in the competent
Court of law, who being satisfied that a prima facie case exists against the
accused, served notice of accusation upon the accused, for the
commission of offences punishable under Ss. 279, 337 and 201 IPC, to
.
which the accused pleaded not guilty and claimed trial.
3. Prosecution, with a view to prove its case, examined as many
as 11 witnesses, whereas, the accused in his statement recorded under
S.313, denied the prosecution case in toto and claimed himself to be
innocent.
4. Learned trial Court on the basis of evidence led on record, held
accused guilty of having committed offence punishable under 279, 337
and 201 IPC and accordingly convicted and sentenced him as per
description given above.
5. Being aggrieved and dissatisfied with judgment of conviction
and order of sentence recorded by learned court below accused preferred
an appeal in the court of Additional Sessions Judge Una, which came to
be dismissed vide judgment dated 9.10.2012. In the aforesaid background
accused has approached this court in the instant proceedings, praying
therein for his acquittal after setting aside judgments of conviction and
order of sentence recorded by learned court below.
6. Having heard learned counsel for the parties and perused
material available on record vis-à-vis the reasoning assigned by learned
Courts below, while holding accused guilty of having committed offence
punishable under 279, 337 and 201 IPC, this court finds sufficient reason
to agree with learned counsel for the accused that both learned courts
below have failed to appreciate evidence in its right perspective, as a
consequence of which, findings to the detriment of accused have come to
the fore.
7. PW-1 Guracharan deposed that he was carrying grass on his
.
bullock cart. He deposed that he was moving on his own side i.e. left side
of the road and in the meanwhile, a bus came at high speed from
Tahliwal side and rammed into the bullock cart which was damaged. He
deposed that he suffered injuries and accident took place because of the
rash and negligent driving of the bus driver. In his cross-examination this
witness deposed that one wheel of bullock cart was on kacha portion of
road. He denied that the bus was being plied in normal speed. He also
denied that the bullock cart turned turtle as a stone came under its wheel.
8. PW-7 Balwinder Singh, deposed that while he was going
towards Haroli bazaar, a Rehra was coming from the front side. He
deposed that bus was going from Palkwah to Una and one motor cycle
came in front of the bus, because of which the accused swerved the bus
and a side of the bus struck against the Rehra and it turned turtle. He
deposed that he could not tell on account of whose fault, the collision
resulted. This witness in his cross-examination admitted that the cart was
on left side of the road. He also admitted that name of the bus driver was
Surinder Kumar. This witness further admitted that the police visited the
spot and got photographs clicked. This witness however, denied that the
accused was driving the vehicle in high speed and mishap was the result
of high speed of the bus. This witness admitted in his cross-examination
that the cart was broken due to impact. He also admitted that the cart
was taken into possession by the Police as per memo, Ext. PW-1/A and
handed over to its owner. He denied that he was suppressing the truth to
save the miscreant. This witness denied the portion Ext. PW-11/E of his
statement made before the Police under S. 161 CrPC. In his cross-
.
examination, this witness denied that the bus driver was at fault.
9. Another eye-witness, PW-8 Kashmiri Lal, deposed that at the
relevant time he was working in his fields. A bus came from Palkwah side
and hit the Rehra. The Rehra turned turtle and its rider fell down and got
hurt. This witness deposed that the accident took place due to rash and
negligent driving of the bus driver. He also deposed that the bus was
being driven in high speed. However, in his cross-examination, he
admitted that when the collision took place, he was cutting grass in his
fields and he went to the spot, after hearing the noise. He denied that the
accused was on wheels of the vehicle.
10. PW-5 Gulahsn Rai, owner of the bus deposed that he had
employed the accused as a driver on his bus and documents of the
vehicle were taken from him by the Police. In his cross-examination, this
witness deposed that he did not know that on the relevant day, his bus
had struck against the bullock cart. He though admitted that the
documents of the bus involved in the accident were produced by him
before the police as per memo Ext. PW-3/A, which bears his signatures in
red circle 'B'. He denied specific portions of the statement (Ext. PW-11/H),
made before the police at the time of investigation.
11. PW-11 HC Pawan Kumar, IO in his cross-examination stated
that he did not record statement of any of the persons traveling in the bus
as they had already left the spot. He denied that in fact a scooter had hit
the cart and the bus did not strike the cart.
12. Since the statements made by PW-1, PW-5 PW-7, PW-8, and
PW-11 are relevant for determining the guilt of the accused, statements
.
made by other witnesses being formal, need not be taken into
consideration at this stage.
13. Interestingly, in the case at hand, record reveals that the animal
pulling cart did not suffer any injury. If it is so, very factum of accident is
doubtful. As per persecution, bus was being driven in rash and negligent
manner and it hit the Rehra due to which its rider fell down and Rehra
turned turtle. None of the Prosecution witnesses stated anything specific
with regard to the animal, which was pulling the cart, rather, it has come
on record that the animal pulling the cart did not suffer any injury. It is
otherwise unbelievable that the bullock cart hit by bus though turned turtle
but no injury, if any was caused to the animal. Leaving everything aside,
there is no mention by any of the material prosecution witnesses with
regard to falling, if any, of the animal.
14. PW-7 Balwinder Singh stated that one motor cycle came in
front of the bus, as a result of which, accused turned the vehicle and side
of bus struck against Rehra and same turned turtle. Cross-examination
conducted upon this witness nowhere suggests that the defence was able
to extract from this witness, any thing contrary to what he stated in his
examination-in-chief.
15. Kashmiri Lal, PW-8, though stated that the bus came from
Palkwah side and hit the Rehra , as result of which, it turned turtle but he
admitted in his cross-examination that at the time of incident, he was
cutting grass in his fields and he came to the spot after hearing noise.
Once this witness had no occasion to see the accident with his own eyes,
no weightage/credence can be given to this witness.
.
16. Spot map, Ext. PW-11/D, nowhere supports the prosecution
case. Learned court below has specifically recorded in para 33 of the
judgment that Exhibit PW-111/D was wrongly prepared and does not
depict correct picture but same will not come to the rescue of the accused
because he cannot be acquitted due to faulty investigation or fault on the
part of police. In the case at hand, Ext. PW-11/D is most relevant
document, especially when none of the prosecution witnesses has been
able to specifically prove the negligence, if any, of the accused, save and
except complainant. None of prosecution witnesses/so called independent
witnesses have supported the prosecution case.
17. Leaving everything aside, prosecution story has become highly
doubtful for the reason that no injury has been shown to be caused to
animal pulling the cart at the time of alleged accident. As per prosecution,
bus hit the bullock cart from back side, as a consequence of which Rehra
turned turtle but interestingly, the animal pulling cart neither fell on the
ground nor suffered injury, which otherwise appears to be highly
improbable, making entire prosecution story doubtful.
18. Though in the case at hand prosecution has placed on record
MLC Exhibit (Ext. PW-9/A), which subsequently came to be proved by
PW-9 Dr. AK Sharma, but since the prosecution has not been able to
prove that the injuries suffered by complainant were on account of his cart
being hit by the bus being driven by accused, same may not be of much
help to the prosecution case.
19. By now it is well settled that in a criminal trial evidence of
eye-witness requires careful assessment and needs to be evaluated
.
for its creditability. Hon'ble Apex Court has repeatedly held that since
fundamental aspect of criminal jurisprudence rests upon well
established principle that "no man is guilty until proved so", utmost
caution is required to be exercised in dealing with the situation where
there are multiple testimonies and equally large number of witnesses
testifying before the Court. Most importantly, Hon'ble Apex Court has
held that there must be a string that should join the evidence of all the
witnesses thereby satisfying the test of consistency in evidence
amongst all the witnesses. In nutshell, it can be said that evidence in
criminal cases needs to be evaluated on the touchstone of
consistency. In this regard, reliance is placed upon the judgment
passed by Hon'ble Apex Court in C. Magesh and others versus State
of Karnataka (2010) 5 Supreme Court Cases 645, wherein it has been
held as under:-
"45. It may be mentioned herein that in criminal
jurisprudence, evidence has to be evaluated on the
touchstone of consistency. Needless to emphasis,
consistency is the keyword for upholding the conviction of
an accused. In this regard it is to be noted that this Court
in the case titled Surja Singh v. State of U.P. (2008)16
SCC 686: 2008(11) SCR 286 has held:-( SCC p.704, para
14)
"14. The evidence must be tested for its inherent
consistency and the inherent probability of the
story; consistency with the account of other witness
is held to be creditworthy; ..the probative value of
such evidence becomes eligible to be put into the
scales for a cumulative evaluation."
.
In a criminal trial, evidence of the eye witness requires a
careful assessment and must be evaluated for its
creditability. Since the fundamental aspect of criminal
jurisprudence rests upon the stated principle that " no
man is guilty until proven so," hence utmost caution is
required to be exercised in dealing with situation where
there are multiple testimonies and equally large number of
witnesses testifying before the Court. There must be a
string that should join the evidence of all the witnesses
and thereby satisfying the test of consistence in evidence
amongst all the witnesses."
20. In view of the aforesaid discussion and law laid down by the
Hon'ble Apex Court as well as this Court, there are major flaws in the
investigation of the prosecution and prosecution story does not appear
to be believable.
21. Consequently, in view of detailed discussion made herein
above, this Court finds merit in the petition, which is accordingly
allowed. Judgment dated 9.1.2012 passed by learned Additional
Sessions Judge Una in Cr. Appeal No. 9-X/2011 and judgment of
conviction and order of sentence dated 16.4.2011/18.4.2011, passed by
learned Judicial Magistrate First Class, Court No. (II), Una, in Cr. Case
No. 13-II-08 are quashed and set aside. Accused is acquitted of the
offences framed against him. Bail bonds, if any, furnished by the
accused are discharged.
22. Case property, if not destroyed, be destroyed forthwith.
.
(Sandeep Sharma)
Judge
December 7, 2021
(Vikrant)
r to
