State Of Himachal Pradesh vs Shri Jai Pal Kanwar
2021 Latest Caselaw 4498 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                       ON THE 13th DAY OF SEPTEMBER, 2021
            BEFORE HON'BLE MR. JUSTICE ANOOP CHITKARA




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                    CRIMINAL REVISION No. 241 of 2010
    BETWEEN:-





    STATE OF HIMACHAL PRADESH
                                                             .... APPELLANT

    (BY SHRI NAND LAL THAKUR,




    ADDITIONAL ADVOCATE GENERAL,
    SHRI KUNAL THAKUR, DEPUTY
    ADVOCATE GENERAL, AND
    SHRI SUNNY DHATWALIA,

    ASSISTANT ADVOCATE GENERAL)

    AND

    VIJENDER SINGH SON OF


    SHRI JAI PAL KANWAR,
    R/O VILLAGE SENO, P.O.
    BALDEYAN, P.S. DHALLI,
    TEHSIL & DISTRICT SHIMLA, HP




                                                          .... RESPONDENT





    (BY MS. ARCHNA NEGI, ADVOCATE
    LEGAL AID COUNSEL)





    Reserved on :      10th September, 2021
    Decided on :       13th September, 2021.


          This petition coming on for hearing this day, the Court passed the
    following:
                             JUDGMENT

FIR NUMBER 263 of 2004, dated 21.10.2004, registered at Police Station, Dhalli, District Shimla, H.P., under Section 279, 337 IPC.

Trial Court Case Police Challan No.30-2 of 2008/04, Decided on Number 31.10.2009 by learned Judicial Magistrate First Class (4), Shimla, District Shimla, H.P.

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Challenging the acquittal of respondent for driving the bus in such

a rash and negligent way, that it got entangled with an overhanging transmission wire, which amputated the foot of the injured, the State has come up before this Court by filing the present appeal.

2.

On 21.10.2004, the workers of Electricity Board were replacing the overhanging transmission wires near Mashobra electricity sub station.

Apart from injured Lekh Ram, Hem Singh, PW-1, Jai Singh, PW-4,

Girdhari Lal PW-5, and Mathu Ram were working at the spot. In the meantime, a bus allegedly driven by the accused came from the side of

Shimla, and hit the injured. After that one Bharat Singh, PW-7, who was working as operator in the concerned sub station informed the police post. In the meanwhile, the injured were brought to the IGMC Hospital

for treatment. After that the police official sent Head constable to

Hospital, where he conducted the preliminary inquiry. After his initial inquiry, he sent a written complaint to SHO Police Station, which is

Ex.PW-10/A. Based on this complaint, the above captioned FIR Ex.PW- 10/B was registered in the police Station for the commission of offences punishable under Sections 279 and 337 IPC against the accused.

3. After that the SHO handed over the investigation to PW-12 SI Rajinder Kumar. During investigation, the investigator procured MLC Ex.PW-11/A of the injured Lekh Ram. He also prepared spot map Ex.PW-12/A, procured the mechanical report of the bus Ex.PW-9/A. He also took photographs of the spot Ex.P-1 to P-6. He also seized the bus

along with its documents. After completing the investigation, he handed over the same to SHO of the Police Station. The officer in charge of the police station launched prosecution for commission of the offences

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punishable under Sections 279, 337, 338 IPC and Section 187 M.V. Act, by filing report under Section 173(2) Cr.P.C.

4. Vide order dated 7.2.2005, learned Judicial Magistrate First Class found prima facie evidence and took cognizance of the offences punishable under Sections 279, 337, and 338 IPC and Section 181 M.V.

Act.

5. Vide order dated 30.8.2006, learned Judicial Magistrate First

Class, put notice of accusation to the accused for commission of offences

punishable under Sections 279, 337 and 338 IPC. However, no notice of accusation was put for the commission of offences punishable under Section 181 of Motor Vehicles Act.

6. During the trial, the prosecution examined injured Lekh Ram, all other workers except Mathu Ram, doctor and other formal witnesses.

7. The accused in his statement under Section 313 Cr.P.C., denied the

prosecution case in its entirety.

8. The accused examined owner of the bus Dalip Kumar as DW-1. In

his testimony, he stated that at the time of accident, he was driving the bus and accused Vijender Singh was sitting on the bonnet of the bus. He further stated that the accident did not take place because of the negligence.

9. Vide judgment captioned above, learned trial Court dismissed the prosecution case and acquitted the accused of all charges.

10. Aggrieved by the said acquittal, the State came up before this Court by filing the instant appeal.

11. When the matter was taken up for hearing Ms. Seema K,. Guleria, Advocate learned counsel appearing for the respondent-accused submitted that the respondent had taken away the brief from her office

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and at that time she had apprised him about the need to engage a counsel. She prayed for withdrawal of her power of attorney, which was allowed.

Since the matter pertains to the year 2010, as such, this Court appointed Ms. Archna Negi, Advocate as legal aid counsel and gave reasonable time to go through the file.

12. I have heard Mr. Kunal Thakur, learned Deputy Advocate General for the state and Ms. Archna Negi, learned legal aid counsel appearing for the respondent and have also gone through the records.

ANALYSIS AND REASONINGS.

13. The initial occurrence mentioned in the FIR is that the bus had hit Lekh Ram. However, such information was hearsay because it was

recorded at the instance of the investigator, who had reached the spot after receiving the information. indisputably, by that time, the injured had already been shifted to the Hospital by his coworkers. As such, the

initial inquiry was hear say and it would not impact the prosecution case

regarding the cause of accident.

14. The prosecution examined the doctor, who had medically

examined the injured, as PW-11. The said doctor noticed the accidental injury with an electrical wire and found amputation of 2/3 rd portion of right leg along with foot. DW-1 Dalip Kumar, who was owner of the bus, stepped into the witness-box, testified on oath that the injuries were received by the workman of electricity board because of the entanglement in the electricity wire. He further stated that he along with his brother had brought the injured to IGMC. An analysis of this evidence certainly establishes that the injuries were received due to

entanglement of the leg of the injured with electricity wire. Thus, the information mentioning of this fact in the earliest report is insignificant.

15. Injured Lekh Ram testified as PW-3. He stated that, at that point

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of time, they had been engaged by the department to replace the transmission line. They were laying transmission line on the poles,

which were across the road. On that day, they were working since morning. At around 4-4.30 p.m., they had already laid three wires and were working on the 4th wire. At that time, the 4th wire had been laid

across the poles and it was not properly stretched and was hanging in between. At that time, a bus came from the side of Shimla in a high speed. The worker signaled the bus to stop and they had also put bushes

on the road, however, the driver did not stop the bus. The roof of the bus

got entangled with the wire and the driver stopped the bus at a distance of 20-25 feet. At that time, injured Lekh Ram was holding the other end

of the wire along with the bundle. Due to the impact of the wire being entangled in his lower leg, it got amputated. After that he was brought to the Hospital. This version gets corroboration from the statements of

other workers PW-1 Hem Singh, PW-4 Jai Singh and PW-5 Girdhari Lal.

16. Without going into the controversy that who was driving the bus, the first question is that whosoever was the driver of the bus, he can be

said to be negligent or not. To answer this, the following circumstances are material.

17. The investigator PW-12 SI Rajinder Kumar, who had investigated the matter, did not associate any officer of the HP Electricity Board like Junior Engineer or higher officer. He did not tried to find out that whether the electricity Board had issued SOP (statement of purpose), when they replaced or laid down the transmission line; he also did not lay down that as per that SOP or other conventions, how the vehicular

traffic is managed while simultaneously changing the electricity wire; he also did not find out that how much bushes has been placed on the road and whether traffic was still moving from the side of the bushes; he also

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did not conduct any investigation that whether any sign board was placed on the road that men were at work.

18. None of the workers of the spot stated that they had placed any red flag or road signs or informed the local police to create a road barricade or to manage traffic, when they were doing replacement of the

transmission line across the road. The contradictory version, which the prosecution witnesses have tried to tender in evidence is that at that time they had placed the bushes on the road. On one end PW-5 Girdhari Lal

and on the other PW-3 injured Lekh Ram was supposed to signal the

traffic. PW-3 Lekh Ram injured stated in his examination-in-chief that they signaled the bus to stop. However, at that time, he was holding the

wire with his hand, then how could he signal the bus to stop. There is no evidence that he was carrying any play card. PW-5 Girdhari Lal was supposed to guard him. In his testimony, he stated that he signaled the

bus to stop. However, he also does not say that how he signaled. A

person, who signaled the bus to stop, may be a passenger, who wants to take lift in the bus. The driver of the bus always misconstrues the signal

as of the passenger, who wants to board the bus. This is a normal practice in the rural areas and the areas where there was lessor schedule buses. Thus, even if it is believed that both of them have signaled the bus without using any play card or any red flag or any other visible sign, such signal could have always been misconstrued as a signal to take lift.

19. PW-1 Hem Singh admitted that at the time of accident, he was not at the spot, but was at sub station, which is below the road. Therefore, he could not be termed as an eye witness.

20. PW-4 Jai Singh, admitted in his cross-examination that they had put bushes on the road, but there was no person near the bushes to signal the traffic or control the traffic.

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21. PW-5 Girdhari Lal, in his cross-examination admitted that although they had kept bushes at the both ends of the road, but no person was

standing near the bushes.

22. Given this, it was incumbent upon the investigator to have associated higher officer or supervisory officer of the Electricity Board

to find out as to why they did not depute somebody on both ends of the road. Furthermore, it was incumbent upon the investigator to find out that why the Electricity Board did not inform the local police to depute

police officials on the road to manage traffic. It was necessary for the

investigator to obtain SOP, instructions and other conventions, which were in practice and were being followed at that kind of work. It was

also incumbent upon the investigator to have investigated the negligence on the part of the higher officer of the Electricity Board, which he failed to do so.

23. Given above, even if all the evidence adduced by the prosecution is

taken as gospel truth, still no case is made out against the accused and he is entitled to give benefit of doubt.

24. I have gone through the impugned judgment delivered by learned trial Court, which is well reasoned and calls for no interference.

25. Given above there is no merit in the present appeal and the same is accordingly dismissed. Bail bonds are cancelled and discharged. Pending application(s), if any, shall also stands disposed of.

                                                           (Anoop Chitkara)
    September 13, 2021 (ps)                                     Judge.