IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA vs State of H.P.

to the Police Station, where FIR (Ext.PW12/D) was registered. ASI Dev Raj (PW12) investigated the matter. He prepared the site plan 3 (Ext.PW12/H) and filed an application for the examination of Matloob Ahmad. Dr Kamal Pasha (PW10) examined Matloob Ahmad and found multiple injuries. The patient expired during the examination. He issued the MLC (Ext.PW10/A). ASI Dev Raj (PW12) conducted the inquest and prepared the report (Ext.PW12/K). The post-mortem examination of Matloob Ahmad was conducted, and it was found that the cause of death was uncontrollable intra- abdominal haemorrhage. Report (Mark-X) was issued. An application (Ext.PW12/G) was filed for the medical examination of Rakmudeen. Dr Inderjeet Singh (PW11) found that Rakmudeen had sustained multiple injuries. He issued the MLC (Ext.PW11/A). The scooter bearing registration No. HP-17-7286 was seized along with the documents vide memo (Ext.PW7/A). Jahid Ali (PW4) produced one jacket (Ext.P3) which was seized vide memo (Ext.PW3/B). Ali Hassan (PW1) produced one plank (Ext.P2) which was seized vide memo (Ext.PW3/C). It was found during the investigation that a truck bearing registration No. HP-18-4841, being driven by the accused, had loaded the rice from the Rampurkhad rice sheller. Another truck bearing registration No. HR-58-2428 was also parked for loading rice. The driver of the truck bearing registration No. HR-58-2428 had kept the planks on the ground. Accused Amar 4 Singh picked up one plank and used it to put a tarpaulin over the rice bags. However, he forgot to remove the plank and started the truck with the plank projecting outside the body of the truck. The plank almost hit Chowkidar Garbu, and Garbu shouted that the plank was projecting outside the body of the truck, but the accused did not listen and sped away from the spot. The plank hit Matloob Ahmad and Rakumdeen and fell outside the shop of Fakir Mohammad, who also shouted at the accused to stop the truck and take the plank. However, the accused did not listen and went away from the spot. The accused, Amar Singh, met Ali Hasan (PW1) and confessed that the plank had hit Matloob Ahmad and Rukamdeen. The police arrested the accused and seized the truck bearing registration No. HP-18-4841, along with the documents and the driving licence vide memo (Ext.PW5/A). HC Subhash Chand (PW15) conducted the mechanical examination of the scooter and the truck and found that there was no mechanical defect in them that could have caused the accident. He issued the reports (Ext.PW15/A and Ext.PW15/B). The statements of remaining witnesses were recorded as per their version, and after the completion of the investigation, the challan was prepared and presented before the learned Trial Court. 5

3. Learned Trial Court found sufficient reasons to summon the accused. When the accused appeared, a notice of accusation was put to him for the commission of offences punishable under Sections 279, 338, 304A and 201 of the IPC, to which the accused pleaded not guilty and claimed to be tried.

4. The prosecution examined 16 witnesses to prove its case. Ali Hasan (PW1) is the driver of the truck bearing registration No. HR-58-2428, whose plank was taken away by the accused. Ranjeet Singh (PW2) was employed in the factory from where the rice was loaded. Dilshad (PW3), Jahid Ali (PW4) and Vijay Kumar (PW5) witnessed the recoveries. Kishan Singh (PW6) is the owner of the truck bearing registration No. HP-18-4841, and proved that he had employed the accused as a driver. Gulsher Ahmad (PW7) took the photographs. Fakir Mohammad (PW8) is the owner of the shop, where the plank had fallen. Darshan Lal (PW9) saw Matloob Ahmad in an injured condition. Doctor, Kamal Pasha (PW10), examined the injured Matloob. Dr Inderjeet Singh (PW11) examined Rukamdeen. ASI Dev Raj (PW12) and Parkash Chand (PW16) investigated the matter. Mohammad Sagir (PW13) sustained injuries from the plank of the truck. Kamlesh Kumar (PW14) 6 proved the entry in the daily diary. HHC Subhash Chand (PW15) conducted the mechanical examination of the vehicles.

5. The accused, in his statement recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C), admitted that he was employed as a driver in the truck bearing registration No. HP- 18-4841 by Kishan Singh, the owner of the vehicle. He claimed that one other person was employed as a driver besides him. He denied the rest of the prosecution's case. He tendered the judgment of the Motor Accident Claims Tribunal, Sirmaur, in his defence.

6. The learned Trial Court held that the prosecution's case was based upon the circumstantial evidence. It was duly proved on record that the accused was driving the truck bearing registration No. HP18-4841, and that Ali Hassan (PW1) was a driver of the truck bearing registration No. HR-58-2428. He had removed the planks from his truck and kept them on the ground. The accused had picked up one of the planks and used it for tying the rope around the tarpaulin. The accused forgot to remove the plank and hit Matloob Ahmad, Hukam Deen and Prakash Chand. He had confessed to this fact before Ali Hasan (PW1). Driving a truck with a plank projecting outside its body amounted to negligence. Hence, 7 the learned Trial Court convicted and sentenced the accused as follows: Under Section 279 of the IPC To suffer simple imprisonment for three months, pay a fine of ₹500/-, and in default of payment of the fine, to undergo simple imprisonment for one month. Under Section 304-A of the IPC To suffer simple imprisonment for one year, pay a fine of ₹1,000/-, and in default of payment of fine, to undergo simple imprisonment for three months. Under Section 201 of the IPC To suffer simple imprisonment for one month, pay a fine of ₹500/-, and in default of payment of fine, to undergo simple imprisonment for 15 days. All the substantive sentences of imprisonment were ordered to run concurrently.

7. Being aggrieved by the judgment and order passed by the learned Trial Court, the accused preferred an appeal which was decided by the learned Sessions Judge, Sirmaur, District Nahan (learned Appellate Court). The Appellate Court concurred with the findings recorded by the learned Trial Court that the truck with a plank projecting outside its body had hit the deceased. However, it was not proved that the accused had taken the plank and left the premises with the plank projecting out of the truck. The extrajudicial confession made by the accused to Ali Hasan (PW1) 8 was not believable. The chain of circumstances was not complete, and the learned Trial Court erred in convicting and sentencing the accused. Hence, the learned Appellate Court allowed the appeal and acquitted the accused.

8. Being aggrieved by the judgment passed by the learned Appellate Court, the State has filed the present appeal.

9. I have heard Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/ State and Ms Shashi Kiran Negi, learned counsel for the respondent/accused.

10. Mr Lokender Kutlehria, learned Additional Advocate General for the appellant/State, submitted that the learned Appellate Court erred in reversing the well-reasoned judgment passed by the learned Trial Court. Ali Hasan (PW1) categorically stated that the accused had taken a plank from his truck. This is also corroborated by the fact that the accident occurred soon after the truck had left the premises. The accused had confessed to the crime to Ali Hassan. Learned Appellate Court ignored these circumstances and wrongly acquitted the accused. Therefore, he prayed that the present appeal be allowed and the judgment passed by the learned Appellate Court be set aside. 9

11. Ms Shashi Kiran, learned counsel for the respondent/accused, submitted that the learned Appellate Court had discussed the evidence led by the prosecution and correctly held that the prosecution's case was not proved beyond a reasonable doubt. Learned Trial Court failed to notice that the statement made by Ali Hasan regarding the taking of a wooden plank was hearsay in nature and could not have been relied upon. Learned Appellate Court corrected this error, and no interference is required with the judgment passed by the learned Appellate Court. Hence, she prayed that the present appeal be dismissed.

12. I have given considerable thought to the submissions made to the bar and have gone through the records carefully.

13. The prosecution's case is based upon the circumstantial evidence. The law relating to circumstantial evidence is well settled and was explained by the Hon’ble Supreme Court in Raj Kumar Singh v. State of Rajasthan, (2013) 5 SCC 722: (2013) 4 SCC (Cri) 812: 2013 SCC OnLine SC 435 at page 732: “23. In Hodge, In re [(1838) 2 Lewin 227: 168 ER 1136] the Court held that before a person is convicted entirely on circumstantial evidence, the court must be satisfied not only that those circumstances were consistent with his having committed the act, but also that the facts were such, so as to be inconsistent with any other rational conclusion other than the one that the accused is the guilty person. 10