IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.580 of 2002 Decided on: June 17, 2009. State of H.P. …Appellant. VERSUS Balbir Singh ….Respondent. Coram The Hon’ble Mr.Justice R.B.Misra, Judge. Whether approved for reporting?1 For the Appellant: Mr P.M.Negi, Deputy A.G. For the respondent: Mr Ramakant Sharma and Mrs. Devyani Sharma, Advocates. R.B.Misra, Judge (Oral): Heard. Present criminal appeal has arisen after granting of leave under section 378(3) of Cr.P.C in reference to the acquittal of the respondent-accused, vide an order dated 5.6.2002 passed by Ld. Additional Chief Judicial Magistrate, Arki, District Solan, H.P. in criminal case No. 14/2 of 1998 for his alleged offence under sections 279, 337, 304-A and 201 of IPC. 2. For adjudicating the present criminal appeal of State, it is necessary to indicate the brief facts of the case. Whether the reporters of the local papers maybe allowed to see the judgment? …2… On 12.10.1997 at about 8.00 PM, complainant Sh. Roshan Lal and Sh. Chander Singh boarded in a bus at place Banoti for Bhararighat. His real brother Kuldip Kumar and one Ramesh Kumar started their journey for Bhararighat on a scooter No. HP-51-0407. At about 11 PM, they all gathered at Bhararighat, where they stopped for a while and after that they intended to go to Namhol. The said scooter was being driven by Kuldip Kumar amd Sh. Chander Singh was a pillion rider. Complainant and Ramesh Kumar had boarded in a bus. After sometime, complainant Sh. Roshan lal and Ramesh Kumar reached Namhol and when they were waiting for some another bus, complainant Roshan Lal was told by someone that a scooter has met with an accident. Hearing this, complainant Roshan lal suspected that his brother might be involved in the accident. On reaching the spot, they noticed that Kuldip Kumar was lying by the side of the road in an injured condition while Chander Singh had died. Kuldip Singh was brought to PHC, Darlaghat for treatment. Kuldip Singh told that the accident was caused by truck No. HIH-335. Thereafter, a case was registered, investigation proceeded and a case for the alleged offence under sections 279, 337, 304-A and 201 of IPC was made against the accused/respondent. …3… 3. The prosecution has examined as many 13 witnesses, whereas the accused have denied the said alleged offence in their testimony recorded under section 313 Cr.P.C. Following points were considered by the learned trial court and were answered accordingly as below: Point No. 1 Whether it is proved that on 12.10.1997 at about 11 PM, the accused was driving a truck No. HIH 335 on a public road Bhararighat rashly and negligently so as to cause endanger to human life and personal safety of others ?. Point No. 2 Whether it is proved that on the aforesaid date, time and place the accused caused injuries to Sh. Kuldip Kumar due to rash or negligent driving of his part ?. Point No. 3 Whether it is proved that on the aforesaid date, time and place the accused caused death of Sh. Chander Singh due to his rash or negligent driving?. Point No. 4 Whether it is proved that on the aforesaid date, time and place the accused after causing accident in question fled away from the spot with an intention to screen himself from legal punishment ?. 4. From the testimony of PW-1, it appears that PW-1 complainant Roshan Lal, has deposed that the accident had not taken place in his presence and he reached at the spot only when he was told about the accident by some driver. PW- …4… 1 has admitted in his cross examination that the said driver had not told him the number of truck which had caused the accident. From the statement of PW-1, nothing has revealed that who was the accused, rather he has admitted in his cross examination that he has no personal knowledge about the accident in question. PW-2, Madan Lal was the witness of recovery in whose presence scooter involved in the accident and other documents were taken into custody by the police through recovery Memo Ext PW-1/C. PW-2 is also a witness of supurdari memo Ext PW-2/A. Though PW-2 has to some extent corroborated the case of prosecution, but through his cross examination, it appears, that he too has no knowledge about the accident in question. PW-2 has also shown his ignorance about the vehicle involved in the accident. PW-3, Doctor Yuv Raj, had conducted the postmortem on the body of Chander Singh. PW-4 Amit Gupta, is another doctor, had also conducted the medical examination of injured Kuldip Kumar. They have corroborated the prosecution case to the extent of role assigned on their part. 5. PW-5, Kuldip Singh, said to be an injured was said to be driving the vehicle, has said that in October, 1997, he himself and his brother in law Chander Singh were going ahead to Bhararighat on a scooter. Scooter was being driven …5… by Kuldip Singh. Enroute to Bilapsur after Bhrarighat, a truck was also going from Bhararighat to Bilapsur side. According to him the said truck while coming from the same side has hit the scooter, consequent upon he became unconscious. The accident took place at 11.30 PM on the narrow turning road. At about 4 AM, when PW-5 became conscious in the hospital, he came to know that injuries had been inflicted on his leg and chest. He has further stated that he had no knowledge about the exact speed of the truck in question. According to PW-5, the truck had hit the front side of the scooter, whereas he was moving on the proper side and the speed of scooter was 20 to 30 Kms per hour. According to PW-5, accident took place by the fault of the truck driver, due to which Chander Singh, brother in law of the complainant, had died. From the cross examination, it appears that at the place of occurrence of incident, truck was ahead to scooter and scooter was behind. After some time, scooter became ahead to truck and truck side hit the scooter. While getting pass from truck, side of the truck touched scooter. As per cross examination of PW-5, he was only crossing the truck and had not even crossed the entire truck and the speed of the truck was normal between 20 to 30 Kms per hour. From the cross examination, of PW- 5 it was revealed that he could not know …6… who is the owner of truck and who was driving the truck and what was the number of truck. From the testimony and cross examination of PW-5, it could be inferred that he has not deposed anything against the accused and stated that the truck was being driven at a high speed but this part of statement of PW-5 also appears to be doubtful because in his cross examination he has stated that the speed of the truck was normal. On the basis of cross examination of PW-5, learned trial court has analyzed that PW-5 had admitted that it could not be known that what was the number of truck and who was the driver, meaning thereby that PW-5 had given a clean chit to the accused. 6. PW-5 was the spot injured witness, and after going through the cross examination of PW-5, it appears that the scooter as well as the truck was being driven between the speed of 20 to 30 Kms and the truck earlier was moving ahead the scooter and the scooter was behind and scooter had tried to take over the truck and while taking over ahead, the scooter was hit by the truck, but in all possibility, in my respectfully consideration, truck and the scooter could never be said to have been rashly driven. PW-6 Sh. Daya ram Chandel had conducted the mechanical examination of both the vehicles involved in the accident. PW-7 is the photographer who had …7… taken photographs of the vehicles in question. However, both have corroborated the case of prosecution to the extent the role assigned to them. However, nothing has come forward about the true involvement of the truck in question in the said incident. PW-8, Dinesh Kumar, is the police official who reached the spot on coming to know about the accident in question and found the dead body of the Chander Singh on the spot. The truck was searched by PW-8 which was lying parked at a distance of 2 Kms towards Namhol with the blood on the tyre of the truck. The said truck was taken into custody by PW-8. From the testimony of PW-8, prosecution has tried to establish that since there was a blood stain on the tyre of the truck No. HIH 335, hence the said truck was involved in the accident. On analysis of the testimony of PW-8, even the trial court has analyzed that there is nothing on record to show that the blood on the tyre was that of the injured or of that person who had died in the accident in question. There is nothing on record to show that any blood sample was taken by the police to ascertain that fact. There was also nothing on record to show that who was driving the truck at that relevant time and simply because of the fact that there was blood stain on the tyre of the truck, it was difficult to link the accused with the offence in question. In my respectful consideration, the …8… aforesaid analysis is correct. PW-9, Chaman Lal is a police official who had visited the spot along with ASI and PW-8. He has indicated in the same fashion as deposited by PW-8. Nothing has come from the testimony of PW-9, whereby, the accused could be linked with the offence in question. PW-10 Harmesh Kumar is a police official, who had also reached the spot on coming to know about the accident in question. PW-11 is again the police official who had recorded the FIR and PW- 12 is Sh.Gian Chand, who is a witness of recovery. There is a testimony of I.O Sh. Rustam Ali, who has conducted the investigation. All the witnesses have corroborated the case of prosecution to the extent of the role on their part. 7. Learned counsel for the respondent Mr. Ramakant Sharma, Advocate has placed reliance on Ghurey Lal Vs. State of Uttar Pradesh (2008) 10 SCC 450, wherein it has been held by Hon’ble Supreme Court that an acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. The appellate court undoubtedly has wide powers of re- appreciating and reevaluating the entire evidence but it would …9… be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse. Relevant paragraphs No. 43 and 69 are reproduced herein below: “43. The earliest case that dealt with the controversy in issue was Sheo Swarup V. King Emporer. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under (at AIR P 230): (IA P. 404) “……the High Court should and will always given proper weight and consideration to such matters s (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.” The law succinctly crystallized in this case has been consistently followed by this Court. On …10… proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of re-appreciating and re- evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the trial court is palpably wrong, totally il-founded or wholly misconceived, based on erroneous analysis of evidence and non existent material, demonstrably unsustainable or perverse. “69. The following principles emerge from the cases above. 1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before trial …11… court. The trial court’s acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.” 8. After analyzing the testimony of prosecution witnesses and material on record, learned trial court has frankly indicated that the prosecution has failed to link the accused with the offence in question despite the fact that the prosecution has examined as many as 13 witnesses but no witness examined has deposed that at the relevant time the truck in question was being driven by the accused. 9. In my respectful consideration, I find that even the owner of the truck in question, alleged to have been involved, was not examined. Nobody has known as to who was driving the truck in question at the time of accident as there was no eye witness. Even the injured person PW-5 could not depose clearly against the accused. No doubt, the truck involved in accident was taken into custody by the police officials after the accident, but there is nothing on record that …12… this particular truck was being driven by the accused-accused or the accused had fled away from the spot with an intention to save himself from the legal action. 10. In my respectful consideration, the prosecution cannot take the advantage of lapses on its part and the sole witness PW-5 is inspiring confidence and on the basis of testimony of the prosecution witnesses and cross examination, it could be inferred that the prosecution has failed to prove that the truck was being driven rashly and negligently and the said truck in question was ever involved in the said accident. Therefore, the view take by the trial court cannot be interfered with. 11. In view of the above analysis, the appeal being devoid of any merit, and is accordingly dismissed. Bail bonds, furnished by the respondent, are discharged. June 17, 2009. ( R.B.Misra ), J. (sl)