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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Satyen Vaidya, J.
State Of Himachal Pradesh - Appellant
Vs.
Hem Chand, Son Of Shri Sita Ram - Respondent
Criminal Appeal No. 256 of 2010
Decided On : 07-09-2022
Indian Penal Code, 1860 - Sections 279, 337, 338 and 304-A - rashly and negligently Driving – Charged - Appeal against acquittal - Respondent were that on while driving Bus No.HP-07-5099, he acted so rashly and negligently that he lost control over same causing bus to roll down in deep gorge resulting into injuries to many occupants of the bus and death to four of them - It was specifically alleged against the respondent that he continued to drive vehicle despite the fact that lights of the bus were not working due to snag - Whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable.
Finding of Court :
An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law - Secondly, accused having secured his acquittal, presumption of his innocence is further reinforced, reaffirmed and strengthened by trial court - Taking into consideration above noted exposition of law, Court does not find any material to disagree with findings recorded by learned Trial Court - Such findings cannot be termed to be perverse - Learned Trial Court has based its findings on the evidence available on record - View taken by learned Trial Court is reasonable and possible view.
Result : Appeal fail
JUDGMENT :
By way of instant appeal, State has assailed the judgment of acquittal dated 08.09.2009, passed by learned Judicial Magistrate 1st Class, Arki, Tehsil Arki, Distt. Solan, H.P. in Criminal Case No. 64/2 of 2005.
2. Respondent was prosecuted for offences under Sections 279, 337, 338 and 304-A of Indian Penal Code. Allegations against the respondent were that on 21.01.2005, while driving Bus No.HP-07-5099, he acted so rashly and negligently that he lost control over the same causing bus to roll down in deep gorge resulting into injuries to many occupants of the bus and death to four of them. It was specifically alleged against the respondent that he continued to drive the vehicle despite the fact that the lights of the bus were not working due to snag.
3. Respondent denied the charge and claimed trial. Prosecution examined total twenty six witnesses. Respondent was examined under Section 313 of Cr.P.C. Respondent did not lead any defence evidence. Learned Trial Court after appreciating the prosecution evidence, acquitted the respondent, vide impugned judgement.
4. State has assailed the impugned judgment on the grounds that the findings returned by the learned Trial Court were based on surmises and conjectures. Learned Trial Court had appreciated the evidence in slipshod and perfunctory manner. Appellant has contended that the reasoning returned by the learned Trial Court is unreasonable. Thus, the predominant challenge to the impugned judgment is on the ground of mis-appreciation of evidence. It has further been asserted that the facts proved on record clearly justified the application of doctrine of res ipsa loquitur.
5. Learned counsel for the respondent, on the other hand, has supported the impugned judgment, on the ground that the view taken by the learned Trial Court, by appreciating the evidence, was the only possible and reasonable view.
6. I have heard learned counsel for the appellant as well as learned counsel for the respondent and have also gone through the record.
7. Prosecution examined PW-1 Jattu Ram, PW-2 Bhim Singh, PW-4 Rajinder Singh, PW-5 Naresh Kumar, PW-8 Hem Raj, PW-9 Sant Ram, PW 10 Suresh Kumar, PW-11 Nek Chand, PW-12 Asha Kumari, PW-13 Chet Ram, PW-14 Pawan Kumar, PW-17 Joginder Singh and PW-24 Bittu, as witnesses to the occurrence. All these persons were stated to be the occupants of the bus.
8. PW-3 Ashok Kumar and PW-6 Suresh Chand, were examined to prove the photographs.
9. PW-7 Sohan Lal, was examined as an expert, who proved his mechanical examination report Ext.PW7/A.
10. PW-15 Dr. Abhilash Sood, PW-16 Dr. T.D. Tandon, PW-19 Dr. Pujan Jaswal and PW-20 Dr. Amarjit Singh, proved the MLCs of the injured occupants of the bus. PW-21 Dr. N.K. Verma, proved the postmortem report of deceased Mahavir, Suresh Chand and Sant Ram. PW-22 S.K Patial proved PMRs of Prakash Chand. PW-22-A HC Dev Raj, PW-23 HC Ranjit Singh and PW25 S.I. Shankar, were the police officials. PW-26 B.D. Sharma, was examined as owner of the ill-fated bus.
11. To bring home the guilt against respondent, prosecution was under burden to prove that the respondent had driven Bus No. HP-07-5099, in a manner, so rash or negligent that resulted in the accident and consequent injuries to some of the occupants of the vehicle and death of four of them.
12. The occupants of the bus examined as prosecution witnesses, as noted above, were the eye witnesses to the occurrence. They could provide the first hand information, as to how and in what manner, the accident took place. PW-1 Jattu Ram, PW-2 Bhim Singh, PW-4 Rajinder Singh, PW-5 Naresh Kumar, PW-13 Chet Ram, PW-14 Pawan Kumar and PW-24 Bittu stated on oath that there was no negligence on the part of the respondent. According to them, bus was being driven at normal speed. PW-10 Suresh Kumar, PW-11 Nek Chand, PW-12 Asha Kumari and PW-17 Joginder Singh, categorically stated that the accident had taken place, due to the fact that embankment of road gave way resulting the bus to roll down in gorge. P
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