IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 560/1996 and Cr. Appeal No.78/1997 Reserved on: 29.4.2010 Decided on: 14.6. 2010 _____________________________________________ 1. Cr. Appeal No. 560/1996 Ashok Kumar. …Appellant. Versus State of Himachal Pradesh. …Respondent. 2. Cr. Appeal No. 78/1997 State of Himachal Pradesh …Appellant Versus Ashok Kumar and another. …Respondents. _______________________________________________________ Coram: Hon’ble Mr. Justice Deepak Gupta, Judge. Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. 1. Cr. Appeal No.; 560/1996 For the Appellant : Mr. N. K. Thakur. Advocate. For the Respondent: Mr. Vivek Singh Thakur, Addl. Advocate General. 2. Cr. Appeal No.; 78/1997 For the Appellant : Mr. Vivek Singh Thakur, Addl. Advocate General. For the Respondent: Mr. N. K. Thakur. Advocate. ____________________________________________________ 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Per Rajiv Sharma, J. Since common questions of laws and facts are involved in both the appeals, the same were taken up together for hearing and are being disposed of by a common judgment. 2. Criminal Appeal No. 560/1996 has been preferred by the appellant-accused (hereinafter referred to as the accused for convenience sake) under section 374 of the Criminal Procedure Code against the judgment dated 10.10.1996 passed by the learned Sessions Judge, Una in Sessions Trial No. 17 of 1995 whereby accused has been convicted for offence under section 304-A of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 10,000/- and in default of payment of fine, he has been ordered to undergo rigorous imprisonment for further period of one year. 3. Criminal Appeal No. 78/1997 has been preferred by the State against the judgment dated 10.10.1996 passed by the learned Sessions Judge, Una, in Sessions Trial No. 17/1995, whereby accused have been acquitted for offences punishable under section 302 read with section 34 of the Indian Penal Code. However accused Ashok Kumar has 3 been convicted under section 304-A of the Indian Penal Code and sentenced, as noticed above. 4. Case of the prosecution, in a nutshell, is that on 7.4.1993 at about 9.00 P.M., PW-10 Bhagat Ram alongwith Daulat Ram (deceased) was going towards his house from the shop. When they reached link road Ajauli near the house of accused Ashok Kumar. They heard the sound of vehicle and at that time both tried to go on the left side of the road. The truck driver hit Daulat Ram, who fell in the middle of the road and Bhagat Ram fell on the left side of the road while saving himself. Daulat Ram died on the spot. The truck driver tried to flee from the spot, however, the truck struck against the bricks lying on the spot. Ashok Kumar left the truck and ran away from the spot. Initially, it was alleged that accident has taken place due to negligence of the driver and case for offences punishable under section 279 and 304-A of the Indian Penal Code was registered. However, a complaint was lodged by PW-3 Shankar Dass, father of the deceased, that it was a case of murder and the police has wrongly registered the case for offences punishable under section 279 and 304-A of the Indian Penal Code. Accordingly, FIR for offence punishable under section 302 of the Indian Penal Code was registered. Investigation was handed over to another Police Officer PW-20 Kishan Chand, Sub Inspector. 4 In this case inquest report was prepared by PW-19 Tilak Raj. The documents of the truck were taken into possession, vide memo Ex.PW-19/B. The driving licence of the accused was also taken into possession, vide memo Ex. PC. The truck was seized vide memo Ex.PA. 5. Postmortem was conducted on the body of Daulat Ram by PW-14 Dr. Vijay Kumar Sharma. He issued postmortem report Ex.PW-14/B. He opined that the injuries were possible in an accident. On completion of investigation, challan was prepared by Kashmir Chand, the-then SHO and the same was put up for offence punishable under section 302 read with section 34 of the Indian Penal Code and in alternate, charge was framed under section 304-A of the Indian Penal Code. 6. Prosecution examined a number of witnesses to prove its case against the accused. Accused persons were examined under section 313 of the Code of Criminal Procedure. Accused Ashok Kumar has admitted that he was driving the truck, however, his brother was not sitting in the truck. He pleaded innocence and stated that he has been falsely implicated. Accused Sat Pal alias Palu has also deposed, in answer to question No.4, that Ashok Kumar was driving the truck, but he was not with him. He also pleaded innocence and according to him, he was falsely implicated. 5 The learned trial court acquitted accused Ashok Kumar and Sat Pal alias Palu under section 302 of the Indian Penal Code, however, accused Ashok Kumar was convicted under section 304-A of the Indian Penal Code and sentenced, as noticed above. 7. Accused Ashok Kumar has filed the present appeal against his conviction and imposition of sentence under section 304 –A of the Indian Penal Code and the State has preferred the appeal against the acquittal of accused Ashok Kumar and Sat Pal alias Palu under section 302/34 of the Indian Penal Code. 8. Mr. Vivek Singh Thakur, learned Additional Advocate General has vehemently argued that prosecution has proved the case against the accused persons for offence under section 302/34 of the Indian Penal Code. 9. Mr. N.K. Thakur has argued that prosecution has miserably failed to prove its case against accused Ashok Kumar under section 304-A of the Indian Penal Code. 10. We have heard the learned counsel for the parties and perused the record carefully. 11. PW-1 is Kartar Chand. He narrated that he was joined in the investigation by the police. The police prepared the inquest report and the dead body was sent for 6 postmortem to District Hospital, Una. He thumb marked the inquest papers. He was Member of Panchayat, Ajauli. 12. PW-2 Jaswinder Singh has deposed that on 7.4.1993 at about 9.15 P.M., he alongwith Ram Sarup was going towards their houses. They stopped as Ram Sarup was urinating. Truck bearing No. HP-20-1121 came from Santoshgarh side and accused Ashok Kumar was driving the truck. His brother was also sitting with him. Ashok Kumar stopped the truck and abused Ram Sarup. He pulled Ram Sarup backward and the truck went towards Ajauli link road. After 10/15 minutes when they reached near the house of Aakhri Devi (PW-11), Aakhri Devi met them and told that Ashok Kumar has hit Bhagat Ram and Daulat Ram with truck as a result of which Daulat Ram was run over. 13. PW-3 Shankar Dass is the father of deceased Daulat Ram. According to him, Chuhru Ram had filed a suit about the water dispute against Dharam Chand alongwith others. The main dispute was with Dharam Chand. Dharam Chand is the father of accused Ashok Kumar. The case was decided about 1½ years prior to the occurrence. They were also effected by the water dispute so he was helping Chuhru Ram in that case. Due to this dispute, they were not on talking terms with the family of Dharam Chand. He then narrated that Yog Raj had a dispute with Ashok Kumar, 7 which was settled by the Panchayat in the Police Station. On 7.4.1993 at about 9.15 P.M., he was present in his house in village Ajauli. He heard the noise that an accident has taken place. He came out and came to know that his son has died. Aakhri Devi was raising alarm about the accident and claimed that two boys have been struck by the truck. He went to the spot and saw that his son Daulat Ram was lying dead in front of the house of Aakhri Devi on the road. Bhagat Ram injured had already been removed from the spot. He was told by the people that Ashok Kumar was driving the truck. Police has registered case but the case was not properly investigated. He approached the Senior Police Officers. In his cross-examination, he has admitted that suit filed by Chuhru Ram was dismissed. 14. PW-4 is Jog Raj. He was working in Ice Factory, Ajauli. He was relaxing in the Ice Factory about five/six years back during rainy season. There was no electricity. Ashok Kumar along with three/four persons entered in the Ice Factory and gave him beatings with stones. The matter was compromised in the Panchayat next day. Ashok Kumar apologized. 15. PW-10 is Bhagat Ram. He is one of the eye witnesses. He states that on 7.3.1993 at about 8.45 P.M., he was standing in the shop of Desh Raj, when Daulat Ram 8 deceased son of Shankar Dass came there. Daulat Ram was resident of his village. They were going to their houses on the road which leads to Ajauli on foot. At about 9.00 P.M., when they were near the house of Aakhri Devi wife of Harbilas, accused Ashok Kumar stopped his truck near his house about six feet behind them. Accused Ashok Kumar was driving the truck and his brother Palu was sitting with accused Ashok Kumar. They continued going on the road as the truck had stopped. They had hardly gone about six feet ahead when accused Ashok Kumar again moved his truck on high speed. They tried to save themselves and he jumped on left side and fell down whereas Daulat Ram fell in front of the truck. Accused Ashok Kumar did not stop the truck and crushed the head of Daulat Ram under the tyre. Accused Ashok Kumar tried to run away from the spot and took the truck towards Chatha (heap) of bricks. The truck struck against the bricks and the accused ran away. When Daulat Ram was crushed under the truck by the accused, he had raised alarm but the accused Ashok Kumar did not stop the truck. Aakhri Devi (PW-11) by that time had come on the road. According to him, accused Ashok Kumar was inimical towards his father and brother. In his cross-examination, he admitted that there was no street light on that road, however, the light of the house of Aakhri Devi was on. According to 9 him, the front wheel of the truck crushed the head of the deceased. 16. PW-11 is Aakhri Devi. She states that at about 9.00 P.M., she was untying her buffalo from Khunda in her courtyard, which is by the side of road. Bhagat Ram and Daulat Ram (deceased) were going to their house on the road. A truck came from the back side of Daulat Ram and Bhagat Ram, who were going on the road. They tried to save themselves on seeing the truck. Bhagat Ram fell down on his side as he jumped whereas Daulat Ram fell in front of the truck on the road as truck hit him. The truck crushed Daulat Ram. She raised alarm but truck did not stop and driver took the truck towards the house of Ram Lok. Truck was being driven by accused Ashok Kumar. She knew him. 17. PW-12 Chaman Lal has not supported the case of the prosecution. He was declared hostile. He deposed that no documents of the truck were taken into possession in his presence on 7.4.1993. 18. Similarly, PW-13 Ramesh Chand has deposed that no documents of the truck, i.e. driving licence of the accused Ashok Kumar were taken into possession in his presence by the police. He was also declared hostile. 19. PW-14 Dr. Vijay Kumar Sharma has conducted the postmortem on the dead body of deceased on 8.4.1993. 10 He has issued postmortem report Ex.PW-14/A. In his opinion, deceased died an instantaneous death due to head injury/brain injury. The duration between injuries and death was immediate and between death and postmortem was 24 hours. 20. PW-17 is Ram Lok. He heard the alarm raised by Aakhri Devi that a person has been killed by truck. He came out and went to the spot. The truck struck against the stones and bricks which were lying by the side of road. Accused Ashok Kumar and Palu left the truck and ran away. 21. PW-10 Bhagat Ram was recalled. He deposed that the front tyre of the truck had run over on the head of deceased. PW-11 Aakhri Devi was also recalled. She deposed that she saw the truck coming. It is the entire evidence led by the prosecution. 22. There are only two eye witnesses to the incident, i.e. PW-10 Bhagat Ram and PW-11 Aakhri Devi. PW-10 was going with deceased Daulat Ram. According to him, Ashok Kumar stopped his truck near his house six feet behind them. They continued going on the road as truck was stopped. They had gone hardly six feet when the truck came in high speed. They tried to save themselves and he jumped on left side and fell down whereas Daulat Ram fell in front of the truck and accused Ashok Kumar did not stop the truck 11 and truck crushed the head of Daulat Ram. Accused tried to run away, however, the truck struck with Chatha of bricks. PW-11 Aakhri Devi has deposed that deceased Daulat Ram and Bhagat Ram were going towards their houses. She stated that truck came from back side of Daulat Ram and Bhagat Ram. On seeing the truck, they tried to save themselves and Bhagat Ram fell down on his side as he jumped whereas Daulat Ram fell in front of the truck on the road and hit him. Truck run over Daulat Ram. It has come in the medical evidence that the death was instant and the duration between death and postmortem was within 24 hours. PW-12 Chaman Lal and PW-13 Ramesh Chand have not supported the prosecution case as far as the recovery of documents and driving licence is concerned. Prosecution has tried to prove that there was enmity between the families of accused and deceased. PW-10 Bhagat Ram has deposed that relationship between Ashok Kumar and his father were not cordial. According to him, a dispute was settled with the intervention of the police. According to him, another case was also settled by the Panchayat. He deposed that Ashok Kumar wanted to kill the deceased. He has not deposed about the nature of the dispute the accused had with his family. According to him, when he was working in the Ice Factory, five/six years back, Ashok Kumar accused entered 12 the Ice Factory and gave him beatings with stones. However, Ashok Kumar apologized on the next day. According to him, Ashok Kumar used to threaten him and his family members. In his cross-examination, he admitted that he never reported the threats advanced to him to the police or any other person. However, in his earlier statement he had not disclosed that he was given beatings with stones. PW-1 Kartar Chand talks of one compromise, which was arrived at between Ashok Kumar and Girdawar. He has not disclosed what relationship Girdawar had with PW-4 Jog Raj and PW-10 Bhagat Ram. Copy of compromise was not placed on record. PW-3 Shankar Dass, father of deceased Daulat Ram, has deposed that one Chuhru had filed suit regarding water dispute with Dharam Chand. According to him, he was helping Chuhru Ram in that case and as such they were not on talking terms. It has come in the evidence that the suit filed by Chuhru Ram was dismissed. The prosecution has failed to prove that accused persons wanted to kill deceased. The evidence led by the prosecution by way of statements of PW-1, PW-2, PW-3 and PW-4 is very weak. PW-4 Jog Raj had not filed any report with the police when his family members were threatened by accused. PW-1 Kartar Chand has not placed on record copy of compromise arrived at between Ashok Kumar and Girdawar. 13 There is variance in the statement made by PW-10 and the earlier statement made by him, i.e. Ex.PK. He has not stated that deceased was killed intentionally by accused Ashok Kumar. He has made various improvements the manner in which the deceased was hit. As far as PW-10 is concerned, he has not stated in his earlier statement recorded by the police that there was any dispute with accused. He has not narrated about the nature of the dispute or the settlement arrived at by the Panchayat or by the Police. There is no mention about the date and time of such compromise. Prosecution has not led sufficient evidence to prove the intention on the part of accused for causing the death of Daulat Ram. Prosecution has not led any evidence against co-accused Sat Pal alias Palu as there is nothing on record to suggest what role was played by accused Sat Pal alias Palu and that he had common intention with accused Ashok Kumar to kill Daulat Ram. Accused Ashok Kumar and Sat Pal alias Palu have rightly been acquitted by the trial court under section 302/34 of the Indian Penal Code. 23. Now, we will advert whether the prosecution has proved case against the accused for committing offence under section 304-A of the Indian Penal Code or not? There are two eye witnesses, i.e. PW-10 Bhagat Ram and PW-11 Aakhri Devi, who have seen the deceased being hit by the 14 truck. The road was narrow and it was expected from accused Ashok Kumar to drive the truck cautiously. He knew consequences of driving the truck on a narrow stretch. The width of the road was only 13.3’. It was a link road. The vehicle was required to be driven at very very slow speed. It has come in the statement of PW-10 Bhagat Ram that he jumped on the left side, however, deceased was struck by the truck and he fell in front of the truck and was run over. No suggestion has been put to the witnesses that deceased and Bhagat Ram were on the wrong side of the road. It has come in the report of PW-6 Sarup Lal, Mechanic that there was blood and pieces of human flesh on the rear tyre of the right side. Statements of PW-10 Bhagat Ram and PW-11 Aakhri Devi stand corroborated by medical evidence. According to opinion of PW-14 Dr. Vijay Kumar Sharma, deceased died due to head injury/brain injury. Visual impression of Ex.P-8 and P-9 establishes that body was lying almost in the middle of the road. The prosecution has proved the case against the accused Ashok Kumar as far as section 304-A of the Indian Penal Code is concerned. The trial court has rightly convicted the accused Ashok Kumar under section 304-A of the Indian Penal Code. 24. Mr. N.K. Thakur has vehemently argued that accident has taken place on 7.4.1993 at 8.45 P.M. and 15 seventeen years have elapsed and as such lenient view may be taken so far as imposition of sentence is concerned. Accused was 35 years old at the time when his statement under section 313 of the Code of Criminal Procedure was recorded. He is now 52 years old. He must be maintaining his family and parents. We are of the considered view that the interest of justice will be met if the accused is sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 10,000/-, instead of two years rigorous imprisonment ordered by the trial court. 25. Accordingly, the appeal preferred by the State is dismissed. The appeal preferred by accused Ashok Kumar is also dismissed except to the extent that instead of imposition of two years rigorous imprisonment, ordered by learned trial court, accused Ashok Kumar is convicted and sentenced to undergo one year rigorous imprisonment and to pay a fine of Rs. 10,000/-. In case of default of payment of fine, accused shall undergo simple imprisonment for a period of six months. The amount of fine shall be payable to the father of the deceased. The period of detention already undergone by the convict in this case shall be set off against the sentence imposed hereinabove. (Deepak Gupta), J. (Rajiv Sharma), J. 14.6. 2010 *awasthi*