IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA [CASE NUMBER] Reserved on: 05.07.[SECTION]7 Decided on: 12.07.[SECTION]7 .
[ENTITY] Appellant.
Versus [ENTITY] Respondent.
Coram The Hon'ble Mr. Justice [ENTITY], Judge.
approved for reporting? Yes.
1 Whether For the appellant: Mr. [ENTITY], Dy. AG, with Mr. [ENTITY], Law Officer.
For the respondent: Mr. [ENTITY], Advocate.
[ENTITY], Judge.
The present appeal has been preferred by the appellant/State (hereinafter referred to as "the appellant") laying challenge to the judgment, dated 30.10.2006 passed by the learned Chief Judicial Magistrate, Sirmaur at Nahan, H.P., in [CASE NUMBER], whereby the accused/respondent (hereinafter referred to as "the accused") was acquitted for the offence punishable under [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT] and [SECTION] of The Whether reporters of Local Papers may be allowed to see the judgment? Yes.
[ACT].
2. Tersely, the facts giving rise to the present appeal, as per the prosecution, are that on 24.11.2004, around 01:00 .
p.m., on Nahan-[ENTITY] State Highway, at Markanda Bridge, the accused was driving motorcycle, bearing registration No. HP-17-7224, in a rash and negligent manner, endangering human life. As a result, the accused rammed his motorcycle against the motorcycle of the complainant ([ENTITY]), bearing registration No. HP-17A-1352, due to which the complainant and pillion rider suffered simple as well as grievous injuries. The accused fled away from the spot after the accident. Subsequently, the injured were shifted to Zonal Hospital, Nahan, where injured [ENTITY] got recorded his statement under [SECTION] [ACT], whereupon FIR was registered against the accused. Police visited the spot and photographs of motorcycle, bearing registration No. HP-17A-
1352, were taken. Later on, whereabouts of the motorcycle having registration No. HP-17-7224 were ascertained by the police and the accused could not produce any valid insurance certificate qua the vehicle. As the accused fled away from the spot after the accident, thus he caused disappearance of evidence against him. Photographs of motorcycle, bearing registration No. HP-17-7224, were also taken and site plan was prepared. Both the motorcycles, which were involved in the accident, were taken into possession and got mechanically .
examined. After completion of investigation, challan was presented in the Court.
3. The prosecution, in order to prove its case, examined as many as nine witnesses. Statement of the accused was recorded under [SECTION] [ACT], wherein he denied the prosecution case and claimed innocence.
r The accused, in defence, examined a defence witness.
4. The learned Trial Court, vide impugned judgment dated 30.10.2006, acquitted the accused for the offence punishable under [SECTION], [SECTION], [SECTION], [SECTION] [ACT] and [SECTION] of The [ACT], hence the present appeal.
5. I have heard the learned Deputy Advocate General for the appellant/State and the learned counsel for the respondent/accused.
6. The learned Deputy Advocate General for the appellant/State has argued that the learned Court below did not appreciate the material on record to its right and correct perspective, thus the findings of acquittal, as recorded by the learned Trail Court, are wrong and the same are required to be interfered with. He has further argued that after re-
appreciating the evidence, the accused may be convicted.
Conversely, the learned counsel for the respondent/accused .
has argued that the prosecution has failed to establish the guilt of the accused beyond the shadow of reasonable doubt, thus the findings of acquittal, as recorded by the learned Trial Court, needs no interference. In order to substantiate his arguments, the learned counsel for the respondent/accused, has gone through the entire evidence available on record.
7. In order to appreciate the rival contentions, I have gone through the record carefully and in detail.
8. PW-1, Shri [ENTITY] (injured) deposed that on 24.11.2004, around 01:00 p.m., he alongwith his sister ([ENTITY]) was going to Renuka, on his motorcycle, bearing registration No. HP-17A-1352, and when they reached near Markanda bridge, the accused, who was driving his motorcycle, bearing registration No. HP-17-7224, in a rash and negligent manner, rammed the same against his motorcycle, due to which he sustained injuries on his leg and his sister sustained injuries on her nose and forehead. This witness has further deposed that a lady was traveling with the accused and the accused had also fell on the spot, however, the accused fled away from the spot. Subsequently, an ambulance came from [ENTITY] and he alongwith his sister came to Zonal Hospital, Nahan, where his statement was recorded by the .
police. As per this witness, the accident occurred due to the rash and negligent driving of the accused. This witness, in his cross-examination, has deposed that his statement was recorded by the police in Police Station, Nahan. He has further deposed that there was a blind curve where the accident took place and only after negotiating the curve one could see the coming vehicle. He could not tell about the speed of the motorcycle of the accused, as the accident took place suddenly on a curve. This witness, in his cross-examination, has deposed that the accused had also sustained injured in the accident.
9. PW-2, [ENTITY], deposed that on 24.11.2004, she alongwith her brother (complainant) was going on motorcycle, bearing registration No. HP-17A-1352, to Renuka and when they reached near Markanda bridge, motorcycle, bearing registration No. HP17-7224, came in a high speed from Nahan side and rammed against their motorcycle. Due to the said collision they fell down and she sustained injuries on her forehead and nose. PW-2 has further deposed that her brother ([ENTITY]) suffered injuries on his leg. As per the version of this witness, the accused fled away from the spot alongwith his motorcycle. Subsequently, an ambulance came from .
[ENTITY], in which they came to Zonal Hospital, Nahan.
The accident took place owing to rash and negligent driving of the accused. This witness, in her cross-examination, deposed that the accident took place on a blind curve and she feigned her ignorance that accused had also sustained injuries. She has also deposed that she became unconscious immediately after the accident.
10. PW-3, [ENTITY], deposed that he is friend of PW-1, [ENTITY], and remained associated in the investigation.
He visited the spot of accident and in his presence motorcycle, bearing registration No. HP17A-1352, was taken into possession by the police, vide recovery memo, Ex. PW-1/B, which was signed by him and one [ENTITY]. PW-4, [ENTITY], deposed that he remained associated in the investigation of the case and accused, alongwith the Driving Licence, produced his motorcycle, bearing registration No. HP17-7224, and the same was taken into possession, vide recovery memo, Ex. PW-4/A. PW-5, [ENTITY], has stated that he is owner of motorcycle, bearing registration No. HP17-7224, and on 24.11.2004 his brother, [ENTITY], accused had taken the motorcycle. On 25.11.2004 police took into possession the motorcycle from him. PW-6, HC [ENTITY], stated that on 26.11.2004 he .
clicked photographs of the motorcycle having registration No. HP17-7224, in the premises of Police Station. Photographs are Ex. PW-6/A to Ex. PW-6/B and negatives thereto are Ex. PW-
6/C and Ex. PW-6/D. PW-7, [ENTITY], mechanically examined both the motorcycles and issued reports Ex. PW-7/A and Ex. PW-7/B. As per this witness, he found no mechanical defect in the motorcycles.
11. PW-8, [ENTITY], deposed that he is a photographer having studio at Shambhuwala. On 24.11.2004 he, at the instance of police, clicked photographs of accidental motorcycle having registration No. HP17A-1352. Photographs are Ex. P-1 to Ex. P-4 and negatives thereof are Ex. P-5 to Ex.
P-8. PW-9, [ENTITY], conducted investigation in this case and he has deposed that on 24.11.2004 he received information from Zonal Hospital, Nahan, qua the accident. He procured the Medico Legal Certificates of injured [ENTITY] and [ENTITY]. He has further deposed that he recorded the statement of [ENTITY] under [SECTION] [ACT], which is Ex. PW-1/A, and the same was sent to police station through Constable [ENTITY], whereupon FIR, Ex. PW-9/A, was registered. Photographs of motorcycle, which are Ex. P-1 to Ex. P-4, were clicked by [ENTITY]. He has further .
stated that he prepared site plan, Ex. PW-9/C, and seized motorcycle having registration No. HP17A-1352, vide recovery memo Ex. PW-1/B. As per the statement of this witness, the accused had fled away from the spot after the accident. The accident had occurred due to the rash and negligent driving of the accused. He also took into possession motorcycle of the accused having registration No. HP17-7224 alongwith the documents, vide recovery memo Ex. PW-4/A. Reports qua mechanical examination of both the motorcycles were also obtained, which are Ex. PW-7/A and Ex. PW-7/B. Photographs of the motorcycle of the accused were also taken, which are Ex.
PW-6/A and Ex. PW-6/B.
12. In defence, the accused has examined his wife as DW-1. As per the testimony of this witness, she alongwith her husband (accused) was going to [ENTITY] and when they reached near Markanda bridge, a motorcycle came on a high speed and while negotiating the curve the motorcyclist got baffled and he collided his motorcycle against their motorcycle.
She has further stated that speed of their motorcycle was slow and in the said accident they also suffered injuries and got treatment from Vohra Hospital, Paonta. She has further stated that subsequently they came to know that a false report against .
them had been lodged by the complainant. There was no fault of her husband, as the accident took place due to the collision of the motorcycle of the complainant with their motorcycle.
13. The record reveals that the wife of the accused was also cited as a witness, but she was not examined being the wife of the accused and won over by him. She was examined as a defence witness wherein she has meticulously given the details how the accident has occurred. She has stated that the complainant got perplexed after negotiating the curve, as he found the accused coming from the other side and it is the accused, who collided the motorcycle against the motorcycle of the accused. There is no cross-examination of this defence witness qua these facts of the case. In the absence of any specific cross-examination, the facts which have been stated by this defence witness, goes unrebutted and the same cannot be ignored, especially when she was cited as a prosecution witness.
14. It has also come on record that where the accident occurred there was a sharp curve. There is contradiction in the statements of PW-1, [ENTITY], and PW-2, [ENTITY].
PW-1, [ENTITY], has stated that after the accident, they remained on the spot for 1-2 hours, whereas PW-2, [ENTITY] .
[ENTITY], who was the pillion rider, deposed that they immediately left for the hospital. There is variance in the statements of PW-1 and PW-2 qua admission in the hospital.
PW-1 has stated that they remained in the hospital for some hours, whereas PW-2 has stated that they remained in the hospital for a day.
15. At the same point of time, if the prosecution story is seen as a whole, the photographs were taken after 08:00 p.m., after recording the statement of the complainant (PW-1), but the photographs seem to have been taken in a broad day light.
The spot map though shows that the accused had gone towards the right side of the road, but there is no explanation with respect to non-appearance of any marks on the road or any other material lying after the accident on the road, so veracity of the spot map is also shrouded with serious doubts.
Therefore, this Court finds that the spot map, Ex. PW-9/C, cannot be relied upon.
16. PW-1, [ENTITY], and PW-2, [ENTITY], it are interested. PW-1, [ENTITY], in his examination-in-
chief, supported the prosecution case, however, he has destroyed the prosecution case in his cross-examination. PW-
1, in his cross-examination admitted that the spot where the .
accident had occurred there was blind curve and only after negotiating the curve one would know what is coming from the other side. He could not divulge about the speed of the motorcycle of the accused at the time of the accident. As per this witness, the accident had occurred all of sudden on a curve. He has also admitted that accused had also suffered injuries in the accident.
17. In view of what has been discussed hereinabove, it is clear that the prosecution has failed to prove its case beyond the shadow of reasonable doubt and thus the accused cannot be held liable for the commission of the offence, as alleged by the prosecution.
18. It has been held in K. Prakashan vs. P.K. Surenderan (2008) 1 SCC 258, that when two views are possible, the appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non-consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified.
19. The Hon'ble Supreme Court in [PRECEDENT], has held that where two .
views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt.
20. In view the discussion made hereinabove, the inescapable conclusion is that the prosecution has failed to prove the guilt of the accused persons beyond the shadow of reasonable doubt. Thus, this Court is of the considered view that there is no occasion to interfere with the well reasoned judgment of the learned Trial Court, as such the appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stand(s) disposed of accordingly.
([ENTITY]) Judge 12th July, [SECTION]7 (virender)