State of H.P. v. Mohd.Salim

For the respondent: Mr Anand Sharma with Mr.Jagan Nath, Advocates. R.B.Misra, Judge (Oral): Heard. The present criminal appeal has been directed against the acquittal of respondent / accused in Criminal case No.32/2 of 2000 in view of an order dated

27.4.2002 passed in reference to offences under Sections 279 and 337 IPC, passed by learned Sub Divisional Judicial Magistrate, Rajgarh (Camp at Sarahan). The petition under Section 378(3) of the Code of Criminal Procedure, for grant of leave to appeal, was filed in reference to the said Whether the reporters of the local papers maybe allowed to see the judgment? (cid:133)2(cid:133) judgment and after granting the leave, the State of H.P. has preferred the present appeal.

The brief facts, necessary for adjudication of the present appeal, are that on 5.4.2000 at about 9.30 A.M. one Dev Swaroop Mazdoor / labourer of Public Works Department, was alleged to be carrying drinking water with tin tiffin (container) on the bicycle for the benefit of other Mazdoors / labourers. The bicycle was being plied on the side of the road. The moment complainant, Dev Swaroop, was taking a turn, one Jeep bearing registration No.UP-07K- 6655 was observed coming from other side allegedly being driven in rash and negligent manner and after alleged collision, Dev Swaroop had fallen down from the bicycle and had sustained injuries on the head and other parts of his body. He was taken to hospital, on medical examination, bleeding was observed coming from the left ear and one injury was detected to be on the right side of the skull. The jeep, along with documents, were taken into possession and were examined to ensure the mechanical fitness. The prosecution has indicated offences under Sections 279 and 337 IPC against the driver / owner of the said Jeep, namely, Mohd. Salim and on examination alleged accused had denied the allegations of the prosecution in his statement under Section 313 Cr.P.C. (cid:133)3(cid:133)

On the basis of material on record, two points were put for determination by the trial Court which are reproduced below:- i) Whether the prosecution has proved that on 5.4.2000 at about 9.30 A.M. near Panwa on Nahan Shimla public highway accused had been driving Jeep No.UP-07K- 6655 in a manner so rash or negligent so as to endanger human life and personal safety of others and collided the Jeep with cycle being driven by Dev Swaroop? ii) Whether the prosecution has also proved that during aforesaid date time and place accused while driving the aforesaid Jeep in a manner so rash or negligent as to endanger human life and personal safety of others, caused simple injuries to Dev Swaroop? The prosecution has examined as many as ten witnesses in order to prove its case and the defence has simply denied the case.

On going through the contents of statement of PW-1 complainant Dev Swaroop apparent contradictions, omissions and exaggerations appearing from his statement and his testimony was rightly noticed by the trial Court. Statement of PW-2 Tara Dutt cannot be said to be consistent (cid:133)4(cid:133) and cannot be relied upon. PW-3 Sunder Singh could not reveal the truthfulness of the incident as he was busy at his work. PW-4 Kovind Ahuja, said to be sitting in the Jeep, was declared hostile as such his testimony was correctly not relied upon by the trial Court.

PW-5, Om Parkash, though mechanically examined the Jeep and cycle and his report is of no significance to the prosecution. PW-8, Jaswant Singh, though said to have taken photographs but the snaps could not divulge the actual spot and the place where the victim had fallen down and the incident had taken place.

Learned trial Court, on careful consideration, has found that there are inconsistencies in the version, statements of prosecution witnesses, namely, (PW-1) Dev Swaroop, complainant, PW-2 Tara Dutt and PW-3 Sunder Singh, regarding the incident and the fact of the complainant coming from the same side and coming of the Jeep, and actually hitting him. After going through the statements of the prosecution witnesses, I find that no witness has come forward emphatically and clearly in the case to say as to how the above mentioned Jeep was driven rashly and negligently and no particular defect was detected in the Jeep allegedly involved in the accident. On appreciation of the prosecution evidence, learned trial Court derived that the complainant (cid:133)5(cid:133) while bringing water on the bicycle behaved in an irresponsible manner, so much so, he had not even tied the tin on the bicycle with any rope. Keeping the water container on the bicycle, it was difficult for the complainant to concentrate on his movement. On the analysis of the prosecution evidence, it was found that when the movement of Jeep was observed by the complainant, he could not control himself and out of fear had collided with the Jeep. Nothing has emanated from the record or witness to know as to how the Jeep was being driven in rash and negligent manner. On the basis of appreciation of prosecution evidences, learned trial Court has rightly found that the prosecution witnesses are full of inconsistencies and were not inspiring confidence, as such, could not be believed and as such, learned trial Court has rightly found that the commission of offences under Sections 279 and 337 IPC were not proved against the accused as such, in my considered view, the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. I do not find any occasion to interfere with the judgment dated 27.4.2002 passed in Criminal case No.32/2 of 2000, in reference to the alleged offences under Sections 279 and 337 IPC, passed by learned Sub Divisional Judicial Magistrate, Rajgarh (Camp at Sarahan). Therefore, the (cid:133)6(cid:133) appeal being devoid of any merit, fails and is accordingly dismissed. Bail bonds, furnished by the respondent, are discharged. June 16, 2009. (soni) ( R.B.Misra ), J.