IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 408/2004 Date of decision: 4.7.2011 State of H.P. …..Appellant Versus Vijay Kumar ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 Yes. For the Appellant : Mr. A.K. Bansal Addl. Advocate General. For the respondent : Mr. G.S. Chandel, Advocate. Surinder Singh, J. (Oral) The State has challenged the acquittal of the respondent passed by the learned Additional Sessions Judge in criminal appeal No. 36.S/10/2004/2003 reversing the judgment of conviction and sentence passed by the learned trial Court for offences punishable under Sections 279 and 304-A of the Indian Penal Code. 2. Prosecution case can be stated thus. On 28.6.2003, respondent was the driver of Bus No. HP-25- 0713. He is alleged to have crushed a minor child under the left front wheel of his Bus. The said accident was 1 Whether the reporters of Local Papers may be allowed to see the judgment ? - 2 - attributable to the alleged rash or negligent driving of the bus by the respondent. 3. The child died at the spot and the matter was reported to the police. The dead body was taken to the Hospital for autopsy. The respondent was also accompanying the dead body. According to the doctor, the injuries sustained on the person of the deceased could be due to motor vehicular accident. 4. The police after registration of the case, visited the spot, prepared the site plan and took photographs of the place of the alleged incident. 5. After recording the statements of the witnesses and completing the investigation, challan was presented in the Court for the trial of the respondent. 6. The learned trial Court convicted and sentenced the respondent for the offences aforesaid which were set aside in appeal by the learned Additional Sessions Judge. 7. Shri A.K. Bansal, learned Additional Advocate General vehemently argued that the learned appellate court did not appraise the evidence on record in the right perspective. He also led me through the evidence on record and submitted that the statement of PW2 Rajinder Singh was wrongly ignored by the learned Additional - 3 - Sessions Judge, which resulted into incorrect findings and caused miscarriage of justice. 8. On the other hand, Shri G.S. Chandel, learned counsel for the accused/ respondent, supported the impugned judgment of acquittal and ventilated that even PW2 Rajinder Singh has probablized the defence taken by the accused to the effect that at the relevant time, the deceased child suddenly appeared from behind the stationary truck and struck against the front left tyre of the bus, immediately without wasting any further time, driver of the bus applied brakes. He further argued and that the rash or negligent act of driving by the respondent stands not proved on record, therefore the acquittal of the accused cannot be interfered with. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully gone through the evidence on record. 10. PW1 Pawan Kumar and PW2 Rajinder Singh both are alleged to be the eye witnesses of the incident in question. PW1 did not support the case of the prosecution. However, in cross examination he admitted the existence of speed breaker at a distance of about 35 feet from the place of the alleged accident and also that a truck was standing in the front of the shop. PW2 though stated that the child was crushed by the alleged - 4 - offending bus but in cross examination admitted that the child was running across the road and the driver applied the brakes immediately. 11. Further in the statement under Section 313 of the Code of Criminal Procedure, accused has also given the explanation with respect to the said accident that a truck was standing in front of the shop and the child came running from behind the truck and struck against the bus. 12. There is no evidence on record that the driver of the bus was able to see the deceased child while crossing the road, rather, from the above discussed evidence, it surfaces that the said child while running from behind the truck came in contact with the left tyre of the bus which caused accident. While dealing with the same situation, the apex Court in Mahadeo Hari Lokre versus The State of Maharashtra AIR 1972 SC 221 the Supreme Court observed that if a pedestrian suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowly he may be driving and therefore, he cannot be held to be negligent in such a case. The ratio of this judgment applies in the facts and circumstances of the present case on all fours. - 5 - 13. Therefore, for the reasons aforesaid, it is not possible to hold the bus driver guilty for the offences charged. I do not find any perversity in the impugned judgment of acquittal, hence it cannot be interfered with. As such the appeal sans merit and is accordingly dismissed. 13. The respondent is discharged of his bail bonds entered upon by him at any time during the proceeding of this case. July 4, 2011 (Surinder Singh), (cm) Judge.