Between vs Nagar 2Nd
2021 Latest Caselaw 4463 HP

Reportable

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA ON THE 10th DAY OF SEPTEMBER, 2021 BEFORE

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HON'BLE MR. JUSTICE SURESHWAR THAKUR

CRIMINAL APPEAL NO.534 OF 2010.

Between:-

STATE OF HIMACHAL PRADESH

..... APPELLANT.

(BY MR. HEMANT VAID, ADDITIONAL

ADVOCATE GENERAL WITH MR. VIKRANT CHANDEL, DY. A.G.)

AND

YASH PAUL SINGH SON OF SH. MAHAVIR SINGH, R/O

PLAM B-11, DEV KUNJRAJ

NAGAR 2nd , P.S. DWARKA, SECTOR-23, PALAM COLONY, NEW DELHI.

.....RESPONDENT.

(MR. N.K. THAKUR, SENIOR ADVOCATE WITH MR. KARANVIR SINGH, ADVOCATE)

...2...

.

RESERVED ON: 1st SEPTEMBER, 2021.

DELIVERED ON: 10th SEPTEMBER, 2021.

This Criminal Appeal coming on for hearing this day,

the Court passed the following:-

r JUDGMENT

The accused faced charges for commission of

offences constituted under Sections 279, 337, 338 of the IPC,

and, under Section 181 and 185 of the Motor Vehicles Act.

Upon, the afore drawn charges, the learned trial Court through

its verdict made on 11.08.2010, upon, Cr. Case No. 127/I-07

made an order of acquittal upon the accused.

2. The State of Himachal Pradesh becomes aggrieved

from the order of acquittal (supra) and, hence has reared the

extant appeal before this Court.

3. Brief facts, necessary for the disposal of the present

criminal appeal are that on 27.06.2007 at about 6 p.m. at place

near Godni Sidh Mandir Chobu, while complainant Ganga Devi

...3...

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was going from her house to depot along with her son Sagar and

when they reached near Godni Sidh Mandir, Chobu, in the

meantime one vehicle came from the Chadhiar side from the

back which was being driven in high speed and in a negligent

manner, struck against son of the complainant, due to which he

fell down and sustained injury. Further injured Sagar was taken

to the hospital in the same vehicle which had struck him. The

said vehicle was bearing registration No. DL3CAP1824 and driver

revealed his name Yash Paul Singh son of Mahavir Singh. The

accident allegedly occurred due to rash and negligent driving of

accused Yash Paul. The intimation of the occurrence was given

by Medical Officer, SDH Baijnath to the police. In pursuance to

which, DDR Ex.PW11/A was recorded and H.C. Puni Chand along

with other police officials went to the hospital where statement

of complainant, borne inEx.PW1/A was recorded and on the

basis of said statement formal FIR Ex.PW9/A was registered in

the police station concerned. The investigation was intiated and

during the course of investigation, medical examination of

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injured Sagar was got conducted and MLC along with case

summary of injured were obtained. It was also revealed during

the course of investigation that accused Yash Paul consumed

alcohol when he caused accident, as such his medical

examination was also conducted and MLC was obtained.

Further, the investigating officer prepared the site plan and

documents of the vehicle were also taken into possession. After

completion of all codal formalities, challan was presented in the

trial Court against the accused.

4. The incriminatory occurrence took place at the site

disclosed in the site plan embodied in Ex.PW10/F. Though, the

victim sustained injuries on his person as become pronounced

in Ex.PW7/A. Moreover, though the victim after his becoming

declared a competent witness, rather in his examination-in-chief

attributed commission of incriminatory offences to the accused.

However, his testification cannot enable the prosecution to

argue that therethroughs, the charge becomes unflinchingly

proven against the accused. Conspicuously, when he has

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echoed in his examination-in-chief, that during the course of his

trudging on the edge of the road along with his mother, yet he

has further disclosing therein,that the offending vehicle

purportedly driven by the accused rather striking him from

behind. Therefore, upon, the afore made statement of the

accused, it cannot be firmly concluded that either the accused

was at the relevant time driving the offending vehicle, and/or

that penally inculpable negligence can be ascribed to him.

5. Be that as it may, the mother of the victim, a

purported ocular witness to the occurrence, stepped into the

witness box as PW-1. She in her examination-in-chief, has

completely supported the prosecution case, as becomes,

embodied in the FIR, borne in Ex.PW9/A. However, for the

reasons to be assigned hereafter, even her testification, does not

garner, the requisite evidentiary vigour. The primary reason for

discarding her testimony, is anchored, upon the factum of hers

disclosing in her testification, that one Pinka alias Jatinder Kumar

being also present at the site of occurrence. Thereupons, unless

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completest corroboration to the statement of PW-1, became

meted by PW-3 Jatinder Kumar, thereupon, alone credence

would be assignable to the testimony of PW-1. PW-3, Jatinder

Kumar did not in his examination-in-chief support the

prosecution case. Consequently, on the request of the learned

APP he was declared hostile, and, thereafter he was subjected to

cross-examination by the learned APP concerned. Even, in his

cross-examination, he has not made echoings hence supportive

of the charge. Therefore, since PW-1 strives to seek

corroboration from the deposition of PW-3, whereas, the latter

completely reneging from his previous statement recorded in

writing, and, even in his cross-examination rather no

bespeakings being made by him rather supportive of the charge.

Consequently, no credence can be ascribed to the statement of

PW-1, the purported ocular witness to the occurrence.

6. Be that as it may, PW-4, is, also claimed by the

prosecution to be also an ocular witness to the occurrence.

However, even his testimony as comprised in his examination-

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in-chief remains unsupportive of the charge, as, therein he has

voiced that he had acquired hear say knowledge about the

incident, rather subsequent to its occurrence, and, with his also

disclosing in his examination-in-chief, that when he arrived at

the relevant site, his noticing that the accused had lifted the

child in his vehicle, and, taken him to hospital for treatment.

Therefore, the afore made echoings in the examination-in-chief

by PW-4, also a purported eye witness to the occurrence, rather

cannot become construable to be lending or meteing any

corroboration to the testification of PW-1.

7. Analysing from another angle, PW-1 though has

stated that the occurrence took place at about 5 or 5.30 p.m., of,

the relevant day, yet upon hers being cross-examined by the

learned defence counsel , she has deposed that the offending

vehicle reached at the spot at about 6.30 p.m. Therefore, it

appears that the purported offending vehicle, was not at the

relevant site of occurrence, at the time of the occurrence taking

place, at the time mentioned in the FIR, and, also concomitantly

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the accused/respondent, who is contended by the prosecution

to be its driver, cannot obviously be construed to be driving the

purported vehicle at the relevant time. Consequential effect

thereof, is that a false attribution of guilt qua the accused has

been made by the prosecution. Therefore, no credence is to be

assigned thereto.

Even otherwise, the act of the accused in

lifting the child onto his vehicle for his thereafter ensuring his

receiving treatment at the hospital concerned, is obviously

manifestative of an act consistent with his innocence, and,

obviously is an act inconsistent with his guilt.

8. For the reasons which have been recorded

hereinabove, this Court holds that the learned trial Court has

appraised the entire evidence, on record, in a wholesome and

harmonious manner, apart therefrom, the analysis of the

material, on record, by the learned trial Court, hence, also does

not suffer from any gross perversity or absurdity of mis-

appreciation, and, non appreciation of germane thereto

evidence, on record.

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9. Consequently, there is no merit in the extant criminal

appeal, and, it is dismissed accordingly. The judgment

impugned before this Court is affirmed. All pending applications

also stand disposed of. Records be sent back forthwith

10th September, 2021.

       (jai)
                    r          to  (Sureshwar Thakur)
                                           Judge