IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 194 of 2002. Judgement reserved on: 31.3.2009. Date of decision: 10.4.2009. State of H.P. ….. Appellant. Vs. Rajesh Kumar …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the appellant : Mr. A.K. Bansal, Addl. Advocate General. For the respondent : Mr. Dushyant Dadwal, Advocate. Kuldip Singh, Judge. The State has come in appeal against judgement dated 5.9.2001 passed by learned Chief Judicial Magistrate, Hamirpur in Criminal Case No. 51-II of 1996, acquitting the respondent of offence punishable under Sections 279, 304-A, IPC. 2. The prosecution case, in brief, is that on 26.1.1996 at 5.00 p.m. near Post Office, Hamirpur, while driving jeep applied for respondent hit Smt. Urmila Devi and caused serious injuries on her person. The injured was removed to Zonal Hospital, Hamirpur for medical aid but she could not survive and was declared dead after some time. On the statement Ex. PW 9/A of PW 9 Rattan Chand, Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… under Section 154 Cr.P.C., a formal FIR was registered at Police Station, Hamirpur. The police took into possession Ex. PW 4/A OPD slip of treatment of Smt. Urmila Devi. The police got conducted post mortem on the body of Smt. Urmila Devi and took into possession the post mortem report Ex. PW 10/A. The site plan was prepared, the jeep alongwith documents was taken into possession vide memo Ex. PW 6/A. The mechanical report Ex. PW 3/A of the jeep was obtained, the photographs Ex. PW 7/A to Ex. PW 7/C were also taken. On completion of investigation, challan was presented in the court. The notice of accusation was put to respondent for committing an offence, punishable under Sections 279, 304 –A, IPC, to which he pleaded not guilty. The prosecution has examined ten witnesses to prove the accusation, the statement of respondent was recorded, under Section 313 Cr.P.C., he denied the prosecution case. The learned Chief Judicial Magistrate, on conclusion of trial, acquitted the respondent, hence, this appeal by the State. 3. I have heard Mr. A.K. Bansal, learned Additional Advocate General for the State and Mr. Dushyant Dadwal, learned counsel for the respondent and have also gone through the record. The learned Additional Advocate General has submitted that learned Chief Judicial Magistrate has misconstrued, misinterpreted the oral and documentary evidence on record. The prosecution has proved the case beyond reasonable doubt against the respondent, and, therefore, Mr. Bansal has submitted that after setting aside the impugned judgement, the respondent may be convicted and sentenced in accordance with law. The learned counsel for the …3… respondent has submitted that learned Chief Judicial Magistrate has rightly appreciated the oral and documentary evidence on record. There is no perversity in the impugned judgement. The view taken by the learned Chief Judicial Magistrate emerges from the evidence on record, and, therefore, no fault can be found with the impugned judgement. 4. Ex.PW 9/A is the statement under Section 154 Cr.P.C. of Rattan Chand in which he has stated that they were standing at Bhota Chowk, Hamirpur near post office adjacent to hand-pump at about 5.00 p.m. on 26.1.1996, a jeep without number came from bus stand side, the driver of the jeep reversed the jeep in high speed and struck against Smt. Urmila Devi, who was standing near the complainant. She fell down and was removed to hospital in the same jeep but she died in the hospital. Later on, he came to know the name of driver of jeep was Rajesh Kumar. Ex. PW 10/A is the post mortem report of Smt. Urmila Devi. PW 1 Kewal Ram has stated that on 26.1.1996 they were standing at Bhota Chowk and watching television, Urmila Devi was standing near the hand-pump, a jeep in high speed came from bus stand side and took turn towards hospital and hit Urmila Devi from back side and she fell down and jeep crushed her. He does not know the name of the driver of the jeep nor he could recognize the driver. In addition to driver, there was one more occupant in the jeep with the driver. PW 2 Hardev did not support the prosecution and he was declared hostile. He was cross- examined by the prosecution, but prosecution could not extract …4… anything in the cross-examination, which can be relied by the prosecution. 5. PW 3 Purshotam Lal has proved mechanical report Ex. PW 3/A of the jeep. PW 4 Dr. N.K. Galoda has stated that he attended Urmila Devi on 26.1.1996 vide OPD slip Ex. PW 4/A. PW 5 ASI Ramesh Nand has proved daily-diary Ex. PW 5/A. PW 6 Parkash Chand is the witness regarding taking into possession documents of the vehicle vide memo Ex. PW 6/A. PW 7 Jagjit Singh has proved photographs Ex. PW 7/A, Ex. PW 7/B, Ex. PW 7/C and negative Ex. PW 7/D. PW 8 Gurdhian Singh has stated that he was driver of van in the year 1996, Shyam Sarup was the owner. The vehicle No. HP-55-421 was given to the vehicle later on. The other partner of the vehicle was Rajesh Kumar. He (Gurdhian Singh) carried Barat in the vehicle from Dhaneta to Lambloo, Barat alighted at Hamirpur, Rajesh took the vehicle. Rajesh was under the influence of liquor, 2-3 persons were sitting with Rajesh. Rajesh took the vehicle in high speed towards hospital, he reversed the vehicle and crushed a woman. Thereafter the vehicle was moved forward and again reversed and this time also the vehicle ran over that woman. In cross-examination, he has stated that he was on the bus stand with Rajesh when he took the vehicle. He heard that vehicle met with an accident. He reported the matter to the police. 6. PW 9 Rattan Chand has stated that on 26.1.1996, they were standing at Bhota Chowk adjacent to hand-pump at Hamirpur. A jeep without number came from bus stand side in high speed, it was reversed and it hit Smt. Urmila Devi, who fell down and the rear …5… tyre ran over Urmila Devi. Thereafter the jeep was moved forward but it again ran over Smt. Urmila Devi. Urmila Devi was removed to hospital in that very jeep. At that time, there were two persons in the jeep, namely Gurdhian Singh and Rakesh. There was third person also, but he does not know his name. The people told the name of the driver as Rakesh. In cross-examination, he has stated that photographs of the jeep were taken in his presence but these photographs were taken when the jeep returned from hospital. PW 10 Dr. Sunita Galoda proved the post mortem report Ex. PW 10/A. 7. PW 9 Rattan Chand in his statement in the court has given the name of the driver as Rakesh as against Rajesh named earlier in Ex. PW 9/A. He has also stated that Gurdhian Singh, Rakesh and one more person were in the jeep at the time of accident, but he does not know the name of third person. In Ex. PW 9/A, it has been stated that when driver reversed the jeep, it hit Smt. Urmila Devi, who fell down on the road and became unconscious. PW 9 in his statement in the court has stated that jeep came in high speed from bus stand side, it was reversed and it hit Urmila Devi, who fell down and the rear tyre of the jeep ran over Urmila Devi. Thereafter, the jeep was moved forward and again ran over Urmila Devi. Thus the statement of PW 9 before the police in the form of Ex. PW 9/A is in contradiction to his statement which he made in the court. PW 9 has stated that driver of the jeep was Rakesh but the accused in the court is Rajesh. In the court, he has not identified Rajesh Kumar and said that he was driving the jeep at the relevant time. PW 9 has …6… stated that Gurdhian Singh was also sitting in the jeep. PW 1 Kewal Ram said that jeep hit Urmila from back side, he has not stated that jeep ran over Urmila, when the jeep was being reversed. 8. PW 8 Gurdhian Singh has admitted that he was driver of the jeep but he has stated that when Barat alighted from the jeep, thereafter Rajesh took the jeep and accident was caused by Rajesh. He has also stated that when the jeep was reversed, it hit the woman and ran over her, thereafter the jeep was moved forward and in that process jeep again ran over that woman. This statement of PW 8 Gurdhian Singh is in contradiction to the statement Ex. PW 9/A given by the complainant under Section 154 Cr.P.C. It appears PW 8 Gurdhian Singh has not disclosed the whole truth. In any case, in cross-examination, he has stated that he heard that vehicle met with an accident. It means he is not an eye witness. PW-8 has stated that he reported the matter to police but no such report has been placed on record. The photographs of the vehicle are of no help inasmuch as it is the prosecution case that immediately after the accident Smt. Urmila Devi was removed to hospital in that very jeep. In other words, the position of the vehicle was changed. PW 9 has specifically stated that photographs were taken when jeep came from hospital. 9. The prosecution has not been able to prove that at the time of accident the respondent was driving the jeep, nor it has not been established that respondent has committed an offence, punishable under Sections 279, 304-A, IPC. The learned Chief Judicial Magistrate has rightly appreciated the material on record. …7… There is no perversity in the impugned judgement. The view taken by the learned Chief Judicial Magistrate emerges from the record, simply because other view is possible, is no ground to reverse the acquittal into conviction in appeal. There is no merit in the appeal which is dismissed. The bail bonds of respondent are discharged. April 10, 2009. ( Kuldip Singh ), (Hem) Judge.