IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL GOVERNMENT APPEAL NO.1451 OF 2001 (OLD NO.2338 /1996) The State ……… Appellant Versus Adesh Kumar Garg ……… Respondent Dated: June 09, 2009 Mr. M.A. Khan, learned brief holder for the State/appellant Mr. Gopal Dutt Joshi, Advocate holding brief of Mr. Lokendra Dobhal, learned counsel for the respondent HON. DHARAM VEER, J. This appeal, preferred by the State/appellant under Section 378 of The Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 12.9.1996 passed by Additional Chief Judicial Magistrate IInd, Dehradun in Criminal Case No.871/1996, State Vs. Adesh Kumar, whereby the learned Addl. Chief Judicial Magistrate II acquitted the respondent under Sections 279/337/338/427 of The Indian Penal Code, 1860 (hereinafter to be referred as I.P.C.). 2. I have heard Sri M.A. Khan, learned brief holder for the State/appellant as well as Sri Gopal Dutt Joshi, Advocate holding brief of Sri Lokendra Dobhal, learned counsel for the respondent. Perused the entire material available on record. 3. In brief, the prosecution case is that D.P. Sharma lodged the F.I.R. at reporting outpost Panditwari, P.S. Cantt, Dehradun with the averments that on 20.6.1995 his son Tribhuvan Sharma accompanied by Jeet Singh was going from Dakhrani to Dehradun by scooter bearing No. DAK-5217 which his son was driving. At about 05:30 P:M when they reached near 2 Ranghadwala (Panditwari) then a Fiat Car bearing No. DHE-1558 coming from the side of Dehradun hit the scooter due to which Tribhuvan and Jeet Singh received serious injuries and the scooter also got badly damaged. It was also stated that the driver was driving the car in a rash and negligent manner. Tribhuvan and Jeet Singh are admitted in Doon Hospital. After getting the information, when he reached hospital then his son narrated the entire incident to him. With the same averments, F.I.R. was lodged by D.P. Sharma at Reporting Outpost Panditwari, P.S. Cantt, Dehradun on 20.6.1995 at 06:30 P:M. That F.I.R. is Ext.Ka-1. On the basis of F.I.R. (Ext.Ka-1), Chik F.I.R. (Ext.Ka-5) was prepared by Constable Sher Singh. The necessary entries were also made in the G.D., carbon copy of which is Ext.Ka-6. The investigation of this case was entrusted to S.I. Narottam Lal Gupta. Injured Tribhuvan Sharma and Jeet Singh were got medically examined by Dr. A.K. Jain, Medical Officer, E.M.O., Doon Hospital, Dehradun on 20.6.1995 at 07:00 P:M and 07:20 P:M, respectively. Injury report of Tribhuvan Sharma is Ext.Ka-11 and that of Jeet Singh is Ext.Ka-10. Vivek Garg, who was with the respondent at the time of accident, also got injured in the said incident. His medical examination was done by E.M.O., Doon Hospital, Dehradun on 20.6.1995 at 08:30 P:M and injury report thereof was prepared, which is Ext.Ka-12. During the course of investigation, the I.O. prepared the site-plan (Ext.Ka-4) of the place of occurrence, recorded the statement of the witnesses and also took into possession the plain and blood stained soil and also the pieces of glass and plastic from the spot and the FARD was prepared, which is Ext.Ka-8. The technical inspection of the said scooter and the car was done and thereafter the inspection reports were prepared. The inspection report of scooter is Ext.Ka-2 and that of car is 3 Ext.Ka-3. On completion of the investigation, the I.O. submitted the charge sheet against the accused/respondent. That charge sheet is Ext.Ka-9. 4. After that the statement of the accused/respondent was recorded, the particulars of the offence of which he was the accused was stated to him. However, he denied the particulars of the offence made against him and wishes to face the trial. 5. In order to prove its case, the prosecution has examined P.W.1 H.C.M.T. Madan Lal Sharma; P.W.2 D.P. Sharma, P.W.3 Jeet Singh; P.W.4 Tribhuvan Sharma; P.W.5 S.I. Narottam Lal Gupta, P.W.6 Dr. A.K. Jain and P.W.7 Vivek Garg. 6. Thereafter the statements of the accused/respondent were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. In defence, he has filed Ext.Kha-1 and Ext.Kha-2 as documentary evidence and in oral evidence he examined himself as D.W.1. 7. After appreciating the entire evidence available on record and hearing learned counsel for the parties, learned Addl. Chief Judicial Magistrate IInd, Dehradun vide his judgment and order dated 12.9.1996 acquitted the accused/respondent. Against the aforesaid judgment and order, the State has preferred the present appeal. 8. Before further discussion, it is pertinent to mention injuries found on the body of Tribhuvan Sharma, who got injured in the said accident. Dr. A.K. Jain, E.M.O., Doon Hosptial, Dehradun medically examined the injured on 20.6.1995 at 07:00 P:M and 4 prepared the injury report (Ext.Ka-11), which is reproduced as under:- (i) LW 2.5 cm x 0.5 cm left side face front away left eye brow. (ii) Lacerated wound 2 cm x 0.5 cm right side head 8 cm above right ear. (iii) Multiple abrasion 6.5 cm x 2.5 cm back of right forearm 6 cm below left elbow. (iv) Multiple abrasion 15 cm x 0.3 cm left thigh (front) joint above left knee.. (v) Abrasion 0.6 cm x 4 cm outer aspect of right thigh upper part. Opinion :- Injury No.1, 2, 3, 4 and 5 caused by blunt object, fresh nature, Injury No.1 kept under observation, rest are simple. 9. Jeet Singh also got injured in the same accident and his medical examination was done by the same Medical Officer on 20.6.1995 at 07:20 P:M. Injury report (Ext.Ka-10) of the injured was prepared, which is reproduced as under:- (i) L/W 27 cm x 8 cm x bone deep right leg lower half bone and muscles are exposed. Opinion:- Injury No.1 caused by hard blunt object from nature kept under observation. 10. Vivek Garg who was accompanying the accused/respondent at the time of accident also got injured. His medical examination was done on 20.6.1995 at 08:30 P:M by the Emergency Medical Officer, Doon Hospital, Dehradun and the injury report (Ext.Ka-12) was prepared, which is reproduced as under:- (i) Abraded contusion 5 cm x 3 cm on top left shoulder. 5 Opinion:- Injury kept under observation and advised X-ray left shoulder. Injury caused by blunt object, duration fresh. 11. To prove the injury reports Ext.Ka-10 and Ka- 11, the prosecution has examined Dr. A.K. Jain (P.W.6), Medical Officer, Doon Hospital, who has stated that on 20.6.1995 at 07:20 P:M, he medically examined the injured Jeet Singh and found the above-noted injuries on his body. He has proved the injury report Ext.Ka-10. He further stated that on the same day at 07:00 P:M he also conducted the medical examination of the injured Tribhuvan Sharma and has found the above-noted injuries on his body. He has proved the injury report Ext.Ka-11. He further stated that the injuries could be caused in an accident. 12. Further to prove its case, the prosecution has examined P.W.1 Madan Lal Sharma, who has stated that on 24.6.1995 he was posted as H.C.M.T. at Police Line, Dehradun. On that day, he conducted the technical examination of the vehicle bearing no.DAK-5217 at reporting outpost Panditwari and prepared the report Ext.Ka-2. On the same day, he also conducted the technical examination of the FIAT car bearing no.DHE- 1558. He further stated that brake oil was not there in master cylinder and flake savil ¼¶ysd lsfoy½ pipe was damaged. At that time brake was not working. He has proved the technical inspection report Ext.Ka-3. In the cross-examination, he has stated that the collision had not taken place opposite to each other. It was further stated that if a brake is used in a running vehicle then Flake savil pipe can be burst all of a sudden or it can be damaged and by bursting or breaking of the Flake savil pipe, brake oil may leaked and the vehicle can 6 go out of control. He further stated that this condition can be happened in a running vehicle at any time by coincidence. 13. P.W.2 D.P. Sharma is the father of the injured Tribhuvan Sharma, who has supported the contents of the F.I.R. 14. P.W.3 Jeet Singh is the injured eyewitness, who has stated that on 20.6.1995 at about 05:30 P:M, the said incident took place at Chakrata Road in Ranghadwala, Dehradun. He was going from Dhakrani to Dehradun with his friend by scooter bearing no.DAK- 5217, which his friend (Tribhuvan Sharma) was driving. Meanwhile, a FIAT car bearing no.DHE-1558 coming from the side of Dehradun hit their scooter. The driver of the car was driving it in a rash and negligent manner. In this accident, his leg got seriously injured and Tribhuvan Sharma also received injuries. From there, Tribhuvan Sharma took him to Kohli Nursing Home for first-aid. Thereafter he was taken to Doon Hospital where his medical examination was done. P.W.4 Tribhuvan Sharma is the injured eyewitness, who has corroborated the statement of Jeet Singh (P.W.3). 15. P.W.5 S.I. Narottam Lal Gupta has stated that on 21.6.1995 he was posted at reporting outpost Panditwari, P.S. Cantt. On that day the investigation of the case was entrusted to him. During the course of investigation, he prepared the site-plan (Ext.Ka-4) of the 7 place of occurrence and recorded the statements of the witnesses. He also prepared the FARD (Ext.Ka-8) regarding the blood stained soil and plain soil and the glass and plastic pieces which he recovered from the spot. He has also proved the document Ext.Ka-7. On completion of the investigation, he submitted the charge sheet against the accused/respondent, which is Ext.Ka- 9. 16. P.W.7 Vivek Garg, who has stated that on 20.6.1995 the police personnel took him from Ranghadwala to Panditwari Chawki. He was going from Dehradun to Dakpathar with his friend Adesh Kumar (respondent) by FIAT car bearing no.DHE-1558. Suddenly a cow came in between the road and to save that cow, the accused/respondent used the brake but the brake got failed. The accused/respondent did not turn the car in the left side of the road as there were shops in the left side of the road and in the right side concrete was lying. To stop the car, the accused/respondent hit it on concrete due to which the car overturned. Then the people took them out from the car. In the said incident he had also received the injuries and his medical examination was also done. He has proved the injury report Ext.Ka-12. He has further stated that the report (Ext.Ka-7) was been scribed by him forcefully. In the cross-examination he has stated that the speed of the car was not more than 20-25 km/hr and the accused/respondent Adesh Kumar was not driving the car in a rash and negligent manner. 17. Thereafter the statements of the accused/respondent were recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made 8 against him. In defence, he has filed Ext.Kha-1 and Ext.Kha-2 as documentary evidence and in oral evidence he examined himself as D.W.1. 18. D.W.1 Adesh Kumar has stated that on 20.6.1995 he was going from Dehradun to Dakpathar by his car DHE-1558. His brother and nephew-Vivek Garg was also with him in the car. At about 05:30 P:M when he reached near Ranghadwala then all of a sudden a cow came in front of his car. To save that cow he used the brake but the brake got failed. In the left side of the road there was shop and some people were standing there. Right side of the road was empty and there were 2-3 piles of concrete. He hit the car on the piles of concrete as a result of which his car overturned. Then the scooter driver hit his scooter on the car. He further stated that if the brake would have been used by the driver of the scooter then the accident would have not taken place. People took them out from the car. He has proved Ext.Kha-1, photo of the car and Ext.Kha-2 negative of the photo. He further stated that he was not driving the car in a rash and negligent manner. He further stated that after 15-20 days of the incident, the police took his signature on a paper by saying that they have send this information to higher officers. 19. Learned brief holder for the State has argued that the judgment of the trial court is not justified as per the evidence and the prosecution has proved the case beyond reasonable doubt against the accused/respondent Adesh Kumar under Sections 279/337/338/427 I.P.C. I do not find force in the argument advanced by learned brief holder for the State as Head Constable Madan Lal, in his deposition, has clearly stated that on 24.6.1995 he conducted the 9 technical inspection of the scooter bearing no.DAK-5217 and the car bearing no.DHE-1558. During conducting the inspection of the car, he found that brake oil was not there in master cylinder and flake savil ¼¶ysd lsfoy½ pipe was damaged. At that time brake of the car was not working. It was further stated by him in the cross- examination that the collision of the car and scooter had not taken place opposite to each other. He further stated that if a brake is used in a running vehicle then Flake savil pipe can be burst all of a sudden or it can be damaged and by bursting or breaking of the flake savil pipe, brake oil may get leaked and the vehicle can go out of control. It was further deposed by him that this condition can be happened in a running vehicle at any time by coincidence. Apart from this evidence, Vivek Garg (P.W.7) has also deposed that when he was going from Dehradun to Dakpathar with his friend Adesh Kumar (respondent) by FIAT car bearing no.DHE-1558 then all of a sudden a cow came in between the road and in order to save that cow, the accused/respondent used the brake. The brake got failed. The accused/respondent did not turn the car in the left side of the road as there were shops and in the right side of the road concrete was lying. To stop the car, the accused/respondent hit it on concrete due to which the car overturned. Then the people took them out from the car. In the cross- examination, he has stated that the speed of the car was not more than 20-25 km/hr and the accused/respondent Adesh Kumar was not driving the car in a rash and negligent manner. Thus, from the evidence discussed above, it is clear that at the time of accident, the accused/respondent Adesh Kumar was not driving the car in a rash and negligent manner. He has not committed any mischief and whatever the incident has 10 happened it has happened all of a sudden just in order to save the cow. 20. Learned counsel for the accused/respondent has further submitted that where two views are possible and one of the views is possible which was taken by the trial court, then at the appellate court shall not ordinarily interfere with the judgment of acquittal. Reliance is placed on paras 7 and 8 of a judgment rendered by Hon’ble Supreme Court in the case of Kalyan Singh v. State of M.P. reported in (2007) 3 SCC (Cri.) 173, which read as under: - 7. The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do no, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible. 8. We, therefore, having regard to the fact situation of the instance case, are of the opinion that as two views are possible, the High Court should not have interfered with the judgment of acquittal passed by learned Sessions Judge. We, therefore, set aside the impugned judgment and allow this appeal. The appellant is in jail, he is directed to be 11 released forthwith if not required in connection with any other case. 21. On the basis of the evidence discussed above, I am of the considered view that when one view is also possible as the view taken by the trial court, then as per the aforesaid judgment of Kalyan Singh (Supra), the view taken by the trial court must be accepted. Therefore, there is no reason to disagree with the view taken by the trial court on the basis of the evidence discussed above and, therefore, the prosecution has not able to prove its case against the respondent/accused Adesh Kumar beyond reasonable doubt. 22. Accordingly, the appeal is dismissed. The judgment and order dated 12.9.1996 passed by Additional Chief Judicial Magistrate IInd, Dehradun in Criminal Case No.871/1996, State Vs. Adesh Kumar, is affirmed. 23. Let the lower court record be sent back. (Dharam Veer, J.) 09.06.2009 RG