CR.A/146/2002 of STATE Vs AZAD on 29 December 2008

Criminal Appeal No. 146 of 2002.

Judgment reserved on: 22.12.2008.

Date of decision:29.12.2008.

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State of H.P. .. ..Appellant Versus Azad .. ..Respondent Azad

Coram:

The Hon’ble Mr. Justice Deepak Gupta, J.

Whether approved for reporting ? No

For the Appellant: Mr.R.M. Bisht, Dy.A.G.

For the respondent: Mr.Rakesh Jaswal, Advocate _____________________________________________________

Deepak Gupta, J.

This appeal is directed against the judgment dated 25.5.2001 passed by the learned Judicial Magistrate Ist Class, Nurpur, District Kangra, H.P. in Criminal Case No.97-II/97 whereby he has acquitted the accused of having committed offences punishable under Sections 279 and 304-A IPC.

The undisputed facts are that on 13.1.1996 an accident took place in the midst of Talara Bazaar in which one Maruti van No.HP-02-2457 coming from Jassur side hit Urmila Devi and Radha Devi. Both the ladies suffered injuries and were shifted to hospital. Radha Devi later succumbed to the injuries received in the accident.

A complaint was filed by Rai Singh husband of Urmila Devi and brother-in-law of Radha Devi. According to him the ‘mundan’ ceremony of Radha Devi’s son was to take place at Jawalamukhi temple. Therefore, the two injured ladies along with the complainant and other family members boarded a truck at village Barot. They got down at Talara Bus Stand since they had to catch a train from Talara to Jawalamukhi. After alighting from the truck they all crossed the road. In the meantime, the offending van came from Jassur side. This van was being driven by the accused. According to the prosecution this van was being driven rashly and negligently as a result of which the accident occurred.

During the course of investigation site plan was prepared by the Investigating Officer PW-11. On completion of the investigation, a challan was filed and the accused was summoned. He pleaded not guilty and claimed trial. He has been acquitted and hence this appeal by the State.

The complainant Rai Singh appeared as PW-3. He has supported the prosecution version. According to him, after the van hit his sister-in-law Radha Devi and his wife Urmila Devi they were both dragged for a considerable distance by the van and their bodies were taken out from under the van. He was confronted with his statement under Section 154 Cr.P.C. wherein it was not recorded that they had crossed the road. It is also not recorded in the statement that the van dragged the bodies of Radha Devi and Urmila Devi for a considerable distance. According to him, the van was at a high speed.

Urmila Devi was examined as PW-6. According to her she Radha Devi and one other lady were sitting on the front seat of the truck and they came out of the front of the truck and crossed the road and were standing on the side of the road when the offending maruti van came at a high speed from Jassur side. She also stated that the lights of the van had not been switched on which fact was not mentioned by her in her statement under Section 161 Cr.P.C. Admittedly Urmila Devi was first hit by the van and Radha Devi was behind her.

Veena Devi was another lady in the truck. She was examined as PW-1. According to her they got down from the truck and they were walking on their side of the road when one maruti van came from behind at a high speed and hit Radha Devi and Urmila Devi. The statement of this witness is contrary to the other witness since according to her the van came from behind whereas all the other witnesses have stated that the van came from the opposite side. She has specifically admitted that both Urmila Devi and Radha Devi and all the other persons had got off the rear side of the truck.

PW-2 Brij Lal is the father of the two ladies. He also states that when after getting down from the truck they were going towards the Railway Station, the van in question came at a high speed from Jassur side

and hit his daughters. According to him, Urmila Devi was taken out from under the van. He also states that both the injured ladies and some other persons had got down from the rear portion of the truck.

The defence is that the two ladies after getting down from the rear portion of the truck tried to suddenly cross the road and during this process they were hit by the van.

It is clear that an accident did take place which has resulted in the unfortunate death of Radha Devi. The question which arises is whether the accident took place due to the rash and negligent driving of the respondent-accused or not. It is the prosecution case that the accident took place in the Bazaar where a number of shops were open. No shopkeeper or any other independent witness has been examined in the Court. They have been given up as having been won over. No doubt when a driver is crossing an inhabitated area and that too the middle of the Bazaar he is supposed to drive the vehicle at a low speed but from the facts emerging from the statements of the witnesses it is apparent that the two injured ladies got down from the rear portion of the truck. Therefore, before crossing the road it was their duty to have looked left and right and to have ascertained whether there is no traffic so that they could cross the road. According to the Investigating Officer the site of the accident is about 5 ft. within the pucca portion of the road. It is also clear from the site plan that beside the pucca portion there is also some kacha portion of the road. As such it cannot be believed that the two ladies had already crossed the road. If they had crossed the road they should have been on the kacha portion and not 5 ft. inside the pucca portion.

A driver of the vehicle coming from the opposite side will not know whether some person is suddenly going to cross the road from behind a vehicle. It is the duty of the person coming from behind the vehicle to ascertain whether there is no traffic on the road and he can cross the road safely. This the two ladies do not appear to have done. It appears that they were crossing the road and the van driver applied the brakes but hit the ladies. The prosecution witnesses themselves have admitted that the van stopped within 8 ft. of the accident. This shows that the speed was not very high. Two prosecution witnesses have stated that Urmila Devi was dragged for a long distance and she came under the vehicle and was dragged out from under the vehicle. A perusal of the MLC of Urmila Devi does not show that she suffered any injuries which would have definitely occurred if she had been dragged by the vehicle for a long distance. Similarly there are no other injuries which would lead to the conclusion that she was dragged from under the vehicle. In fact some of the prosecution witnesses themselves have not stated this fact.

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The site plan prepared by the Investigating Officer is devoid of any information. It does not depict the width of the road, the width of the pucca portion of the road nor it gives the width of the kacha portion of the road. Therefore, no reliance can be placed on this site plan. The prosecution has also failed to examine any of the independent witnesses from the market. No doubt it is true that the statement of the relatives cannot be discarded just for this reason but in a case like this the prosecution could have easily associated and examined the witnesses from the Bazaar. The non-examination of these witnesses leads to an adverse inference against the prosecution.

Keeping in view the contradictions in the statements of the prosecution witnesses, the non-examination of independent witnesses, the faulty investigation, it is apparent that the learned trial Court rightly give he benefit of doubt to the accused. The judgment of the learned trial Court calls for no interference. Therefore, the appeal is rejected. Bail bonds furnished by the accused are ordered to be discharged.

December 29,2008. PV

( Deepak Gupta ), Judge