HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No.: 720 of 2001 Reserved on: 16.10.2008 Decided on: 24.10.2008 State of Himachal Pradesh ………Appellant. Versus Surinder Pal alias Shindi ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the appellant: Ms.Shubh Mahajan, Deputy Advocate General. For the respondent: Mr.Pankaj Negi, vice Mr.N.K. Thakur, Advocate. V.K. Ahuja, J: This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the court of learned Sessions Judge, Una, dated 18.7.2001, vide which he set aside the conviction and sentence imposed by the learned Chief Judicial Magistrate, Una upon the respondent as under: Under Section 279/337 IPC: Sentenced to undergo simple imprisonment for three months and to pay a file of Rs.1000/- each. In default of payment of fine, the respondent was to undergo further simple imprisonment for one month. Under Section 304-A IPC: Sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.5000/-. In default of payment of fine, the respondent was to undergo further simple imprisonment for six month. _______ 1.Whether reporters of Local papers may be allowed to see the judgment? Yes. - 2 - Briefly stated the facts of the case are that on 13.4.1993, ASI Incharge of Police Post City Una Mohar Singh received a telephonic information and a police officer was deputed to the spot where he recorded the statement of Ishar Singh who was running a shop at Village Doraha. It was alleged by him that on 13.4.1993 he was coming back in a Tempo from Baba Balak Nath and the Tempo reached at Thanakalan at 12.30 p.m. The respondent was driving the Tempo at a fast speed and the Tempo turned turtle on the left side of the road. The complainant also received injuries. One boy came under the Tempo who was taken to the hospital, who died. On the basis of the statement, a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the respondent under Section 279, 337 and 304-A IPC leading to the conviction of the respondent under various sections, as detailed above. On appeal, these findings were set aside by the learned Sessions Judge, Una by accepting the appeal and the respondent was acquitted of the charge framed against him. I have heard the learned counsel for the parties and have gone through the record of the case. The submissions made by the learned Deputy Advocate General for the State were that the learned trial Court had found the respondent guilty under various sections and since there was sufficient evidence on record to prove the guilt of the respondent, the findings of acquittal recorded by the learned Sessions Judge can be said to be perverse calling for an interference by this Court and as such, the appeal is liable to be accepted. On the other hand, the learned counsel for the respondent had supported the impugned judgment of the learned Appellate Court for the reasons recorded therein. - 3 - Coming to the evidence of PW-2 Ishar Singh, who was one of the occupant of the Tempo being driven by the respondent, though he has used the word truck, has stated that when they were turning at Thanakalan, one stone came under the tyre of the truck and the truck overturned. He stated that the deriver was not at fault. He was declared as hostile and was allowed to be cross examined. He stated that the truck had overturned on the left side since it had gone on the stone. He stated that on seeing the stone, the respondent applied the brakes but inspite of that the truck overturned. He admitted his relationship with the respondent and that may be the reason for his not supporting the prosecution case. PW-3 Moti Ram, who was running the shop at the place of occurrence, has stated that a Tempo came carrying many passengers and it came at a fast speed and struck with a danga and overturned. He stated that the passengers sitting in the Tempo suffered injuries while one person came under the Tempo. He stated that he cannot say as to of whose negligence the accident took place, it may be due to the driver of the Tempo. He stated that the road was metalled at the spot. He denied his knowledge whether in fact there was a stone on the left side and the Tempo’s tyre came on the left side resulting in the overturning of the Tempo. PW-7 Ranbir Singh, one of the occupant of the Tempo, has also stated that they were coming back in the Tempo in which there were 30/35 persons. He stated that the speed on which the respondent was going can be said to be fast and he could not control the vehicle and the Tempo overturned. Some passengers suffered injuries, while one boy came under the Tempo who died subsequently. He stated that he cannot say about the speed of the vehicle and denied the suggestion that the accident took place since the land gave way. - 4 - PW-8 Jeet Singh, who was a shopkeeper at the spot, has stated that a Tempo came at a fast speed and went ahead of his shop and turned on the left side. Some passengers suffered injuries while one person came under the Tempo. He stated that the accident took place due the fast speed or negligence of the respondent. He denied his knowledge in case the Tempo driver took the vehicle towards his left side since the bus was standing on the other side and he did not see if the land had sunk at the place. PW-12 Gurjit Kaur, one of the occupants in the Tempo, has stated that the Tempo was going at a slow speed and suddenly it jumped and overturned. She admitted her close relationship with the respondent that he was her brother- in-law. PW-13 Surender Pal, another occupant, stated that the Tempo overturned, which was going at a slow speed and he admitted that the respondent was his neighbour. Both the witnesses had turned hostile and were allowed to be cross examined by the prosecution. In coming to its conclusion by holding the respondent guilty of the charge, the learned trial Court had placed reliance upon the testimony of PW-3 Moti Ram and PW-8 Jeet Singh. PW-3 Moti Ram, as discussed above, has only stated that the Tempo came at a fast speed but did not specify the speed or the manner in which the accident took place. He also stated that he cannot say if the accident took place due to the negligence of the respondent. The other witness relied upon is namely PW-8 Jeet Singh, who, as discussed above, had only stated that the Tempo was going at a fast speed, gave some jerks and overturned. He stated that the accident took place due to the fast speed or negligence of the respondent. These statements have been discussed above by me and the infirmities in their testimony have been pointed out. However, the learned Sessions Judge, while setting aside the conviction and sentence imposed - 5 - upon the respondent by the learned trial Court, had found some defect in the notice of accusation put up to the respondent under Section 251 Cr.P.C. that it was faulty. He also observed that there is no medical evidence on record to prove that some passengers suffered the injuries and as such the respondent was not liable under Section 337 of the IPC. The learned Sessions Judge also came to the conclusion that the evidence led shows that the respondent was driving the Tempo slowly but its tyres came on the stone lying on the road as a result of which it fell down. The other version, as concluded by the learned Sessions Judge, was that the respondent was driving the Tempo at a fast speed and went off the road and fell down, but since two views emerge, one favouring the respondent was accepted by the Appellate Court, which finally came to the conclusion that the respondent deserves to be acquitted of the charge framed against him. During the course of arguments, it was also sought to be pointed out that the parents of the respondent were also traveling in the said Tempo and, therefore, the respondent would not have dared to drive the vehicle at a fast speed or rashly or negligently involving danger to his own family members. This was sought to be substantiated from the statement of PW-7 Ranbir Singh who admitted this fact that the parents of the respondent, his brother and other members of his family were also in the Tempo. The fact that the respondent was driving the vehicle rashly or negligently or not has to be established from the evidence led by the prosecution and the mere fact that his family members were in the vehicle may be a point that he would have taken all precaution, but it cannot be taken as positive fact to prove the innocence of the respondent. To substantiate is case, the learned counsel for the respondent had relied upon two decisions. The decision in Raghunath vs. State of Haryana - 6 - and another, (2003) 1 Supreme Court Cases 398, was relied upon, which was a case under Section 302 IPC read with other Sections but the law laid down on the basis of the facts of the case is not attracted to the present facts. Reliance was also placed upon the decision in Kali Ram vs. State of Himachal Pradesh, AIR 1973 Supreme Court 2773, in which the cardinal principle in the cases has been reiterated that if two views are possible on the basis of the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. I had specifically asked the learned counsel for the respondent to support his submissions by the case law as to how the evidence is to be appreciated by the court in an appeal filed as against the judgment of acquittal, but no relevant case law was cited in inspite of opportunity having been given. However, I may make a reference to three decisions of the Apex Court cited in other similar case and those decisions are relevant which are being referred below. The point to be considered is as to whether if two views are possible, whether the court can reverse the findings of acquittal till it is also proved that the findings were perverse as recorded by the court below. The decision in Babu and others vs. State of Uttar Pradesh, 1983 Cri.L.J. 334, shows that the following observations were made by their Lordships in para 18 of the judgment, which are relevant and are being reproduced below: “In appeal against acquittal if two views are possible, the appellate Court should not interfere with the conclusions arrived at by the trial Court unless the conclusions are not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial Judge has the advantage - 7 - of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it.” The decision in Surat Lal and others vs. State of Madhya Pradesh, 1982 Cri.L.J. 1577, shows that the following observations were made in para 14, which are relevant and are being reproduced below: “When two views of the evidence on indicating conviction and the other supporting acquittal are equally possible, the High Court should not disturb the finding of the trial Court. In the instant case the question was whether the accused could be held vicariously liable for the fatal blow given by one of the accused viz. B to the deceased. The trial Court, after appraising the evidence there answered this question in the negative. In its opinion, the common object of the unlawful assembly constituted by the five accused persons was to give a good thrashing to the deceased, and no more, and the fatal blow by B to the deceased was not given in the prosecution of the common object of that assembly. This finding could not be said to be clearly erroneous.” The decision in Tota Singh and another vs. State of Punjab, 1987 Cri.L.J. 974 shows that the following observations were made in para 6 of the judgment by the Apex Court which are relevant and are being reproduced below: “The mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the Appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the Appellate Court cannot legally interfere with an order of acquittal even if it is of the - 8 - opinion that the view taken by the Court below on its consideration of the evidence is erroneous.” Coming to the evidence led in the light of the above judgments, it is clear that only one witness had stated about the accused driving the Tempo rashly or negligently and no witness has stated about the speed of the vehicle or even specifically the manner as to how the accident took place about which two conclusions have emerged on record one pointing out to no negligence of the respondent since his tyre came on a stone due to which the vehicle overturned since there was a bus standing on the other side. The view taken by the learned Sessions Judge, on the basis of the evidence, may or may not be correct and it is one thing that the view taken by the learned trial Court could have been taken but the view taken by the learned Sessions Judge on appeal cannot be said to be perverse and as such the findings of acquittal recorded by the learned Sessions Judge are not liable to be reversed. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant and the same is dismissed. The Bail bonds furnished by the respondent shall stand discharged. October 24, 2008. (V.K. Ahuja), (TILAK) Judge.