IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.6 of 2000 Reserved on:8.04.2008. Decided on: April 11, 2008. State of H.P. …Appellant. VERSUS Harish Chand ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 Yes For the Appellant: Mr A.K.Bansal, Addl. A.G. For the respondent: Mr Ashutosh Burathoki, Advocate. Kuldip Singh, Judge This appeal has been directed against the judgment dated 24.5.1999 passed by learned Sub Divisional Judicial Magistrate, Kandaghat, District Solan in Criminal case No.21/2 of 1996 acquitting the respondent / accused under Sections 279 and 304 (A) I.P.C. 2. The prosecution case, in brief, is that PW-1 Vinod Kumar alias Dola on 12.4.1996 at about 11.50 a.m. gave information to the police that an accident of HRTC bus and scooter has taken place near Deon Chowki, scooter driver has died on the spot and pillion rider has been shifted to Civil Hospital, Kandaghat in critical condition. On this, Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… PW-14 ASI Jamita Ram along with Constables Jiya Lal, Madan Lal, Ranjit Singh and Hakam Singh went to the spot and found that HRTC bus No.HP-10-0338 had been coming from Tyuni to Una and scooter No.HPS-2315 was on its way from Solan to Shimla. At about 11.30 a.m. near culvert No.122/8 at Sihara Mour both vehicles collided, dead body of scooter driver was lying at the spot and pillion rider was sent to Kandaghat. Harish Chand accused and driver of bus was present at the spot whereas Conductor of the bus had gone to Civil Hospital along with the injured. There was no passenger or other person on the spot. PW-14 ASI Jamita Ram came to the conclusion that accident took place due to rash and negligent driving on the part of the accused, he sent Ruka Ext.PW-14/A to Police Station through Constable Hakam Singh and on that basis F.I.R. Ext.PW-9/A was registered. The Investigating Officer prepared spot map Ext.PW-14/B. It was gathered during investigation that bus driver negotiated the curve negligently and as such the bus struck against the ill fated scooter. The scooter driver Pushkar Singh Rawat and his wife fell down on the road. The scooter struck with the mudguard of the bus but despite that accused could not control the bus and dragged the scooter about 62 feet and turned the bus to its left side. The pillion rider Meena Kumari also expired while taking to hospital. The bus was taken into possession during investigation so also the scooter. The bus and the scooter were got mechanically examined from PW-12 Chinta Mani who issued reports Ext.PW-12/A and Ext.PW-12/B, he did not find any mechanical defect in the vehicles. The post mortem report of Pushkar Singh Rawat is …3… Ext.PW-8/A and that of Meena Kumari Ext.PW-8/B. The spot was got photographed by PW-3 Satish Sharda. On the completion of investigation, challan was presented in the Court, notice of accusation was put to the accused under Sections 279, 304(A) IPC to which he pleaded not guilty. The prosecution has examined 14 witnesses. The statement of accused was recorded under Section 313 Cr.P.C. The accused led no evidence in defence. The learned Sub Divisional Judicial Magistrate, Kandaghat acquitted the respondent, as noticed above. 3. I have heard Mr.A.K.Bansal, learned Additional Advocate General for the appellant, Mr Ashutosh Burathoki, learned counsel appearing on behalf of the respondent and gone through the record. The learned Additional Advocate General has submitted that the respondent rashly and negligently drove bus No.HP-10-0338 on 12.4.1996 as a result of which scooter bearing registration No.HPS- 2315 struck against the bus. The scooter driver, namely, Pushkar Singh Rawat and pillion rider Meena Kumari sustained injuries in the accident and both died. The accident is attributable to the rash and negligent driving on the part of the bus driver. The learned Sub Divisional Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondent. On the contrary, learned counsel for the respondent has submitted that it is unfortunate that two persons have died in the accident but the accident is not at all attributable to the respondent. He has submitted that scooter driver was driving the scooter rashly and negligently. PW-1 is not an eye …4… witness to the accident. PW-2 has also not seen the accident. He claims to be a passenger in the bus but there is no evidence that PW-2 was passenger in the bus except his bald statement. The conduct of PW-2 after the accident also establishes that in fact he was not in the bus at the time of accident. The learned trial Court after appreciation of the evidence has come to the conclusion which emerges from the evidence on record. The appellate Court will not reverse the finding of acquittal even if other view is possible from the evidence on record. In order to appreciate the contentions of either side, it is necessary to refer to evidence led in the case. 4. PW-1 Vinod Kumar has stated that he is a Conductor in bus No.HP-13-399 which plies on Solan – Shimla route. On 12.4.1996, he was coming from Shimla to Solan. At Shoghi HRTC Una – Tyuni bus overtook their bus. At about 11 a.m. when they reached Sichara Mour, they found that the aforesaid bus met with an accident with scooter and the scooter was entangled with the driver’s side front side of the bus. On the spot, there was dead body of a man. The bus along with scooter was stopped at a distance of 15 feet from the dead body. A woman was also lying there in an injured condition. She was taken to Kandaghat hospital in a jonga. He reported the matter to the police. The respondent was driving the bus. In cross examination, he has stated that the bus HP-10-0338 was going at the speed of 50 or 60 kilometers. He is not an eye witness. 5. PW-2 Harvinder Pal has stated that on 12.4.1996 he was travelling in Rohru Depot bus which was going from Tyuni to Una and …5… he boarded the bus at Shimla. The respondent was driving the bus. At place short of Deon Chowki on curve the bus struck against the scooter and scooter driver died on the spot. The driver side of the bus struck against the scooter and the scooter was entangled with the bus at the place of number plate. The scooter was on its side. The scooter was dragged to a distance of 30 feet. The pillion rider lady also sustained injuries who was taken to hospital. The bus started at 10.15 a.m. from Shimla and the accident took place at 10.45 a.m. In cross examination he has stated that scooter might have been dragged for 8 – 10 feet by the bus. He does not know at what time accident took place. He was sitting in the centre of the bus and the front was not visible from that place. 6. PW-3 Satish Sharda, Photographer, has proved photographs Ext.P-1 to Ext.P-16 and negatives Ext.P-17 to Ext.P-32. PW-4 Chander Singh Rawat has stated that on 12.4.1996 a constable came to his residence at Tara Devi and informed him that his son and daughter-in-law have met with an accident with a bus at Deon Chowki Sichra Mour. He came to know that both of them have died. The HRTC bus was stopped at a distance of 50/60 feet from the blood lying on the spot. PW-5 Joginder Singh has stated that on 11/12-4.1996 accused was on duty on bus bearing registration No.HP-10-0338 which was coming from Tyuni to Una. PW-6 Dharam Singh is a witness of recovery memo Ext.PW-5/B and Ext.PW-6/A. PW-7 Deep Kumar, Clerk HRTC Depot Rohru is a witness to recovery memo Ext.PW-6/A vide which photocopy of appointment order of respondent was given to …6… police. He has proved appointment order Ext.PW-7/A of the accused. PW-8 Dr.Girish Sharma has stated that he examined Harish Chand on 12.4.1996 at about 3 p.m. and no injury was found on his person and there was no sign of intoxication. On 12.4.1996, he conducted post mortem on the body of Pushkar Singh Rawat and Meena Kumari and issued post mortem reports Ext.PW-8/A and Ext.PW-8/B respectively. He has stated that injuries on the person of both the deceased were possible in vehicular accident. 7. PW-9 Vichitar Singh, ASI has stated that on the basis of Ruka he recorded F.I.R. Ext.PW-9/A. PW-10 Dharam Singh is a formal witness with regard to the recovery of photocopy of appointment letter of the accused vide memo Ext.PW-5/B. PW-11 Harinder Singh Head Constable has stated that the file of the case was entrusted to him on 30.6.1996. He took into possession duty certificates of the accused as well as his appointment letter etc. He entrusted the file to ASI Jamita Ram. PW-12 Chinta Mani has proved mechanical reports Ext.PW-12/A and Ext.PW-12/B of the vehicles involved in the accident. 8. PW-13 Rattan Chand Sharma, retired Sub Inspector, has stated that in the year 1995-96 he was posted S.H.O. Kandaghat. This case was investigated by ASI Jamita Ram. He submitted challan on 28.7.1996. PW-14 Jamita Ram has stated that he remained posted as Investigating Officer at Police Station, Kandaghat from 1994-97. On receiving information from PW-1 Vinod Kumar he went to the spot and sent Ruka Ext.PW-14/A for registration of the case. He prepared spot map Ext.PW-14/B. After completing the investigation, he submitted the …7… file to SHO. He recorded the statements of witnesses Vinod Kumar and Harvinder Pal Mark ‘A’ and ‘B’. In cross examination, he has stated that when he reached the spot except for Conductor no other person was on the spot, even the passengers were not there. The statements of Harvinder Pal and Vinod were recorded on 3.7.1996. He cannot say whether deceased Pushkar was having driving licence. There is no limit of speed of vehicles on national highway. He has not found brake marks of scooter. He cannot tell whether scooter applied brakes. In his statement under Section 313 Cr.P.C. the accused has stated that he was driving the bus at a speed of 35/40 kilometers. The scooter driver got confused and he struck against the bumper of the bus. 9. PW-1 Vinod Kumar is not an eye witness. He was a Conductor in another bus No.HP-13-399 and he reached the spot after the accident. Therefore, his statement is not of much help to the prosecution. PW-2 Harvinder Pal claims that he was sitting in the bus which was being driven by the accused at the time of accident on 12.4.1996. He has stated that scooter struck against the driver’s side of the bus and the scooter was entangled with the bus near number plate. There is no trustworthy evidence on record to show that PW-2 at the time of accident was actually sitting in the bus. PW-14 Jamita Ram Investigating Officer has stated that when he reached the spot except bus conductor no other person was on the spot. The statement of PW- 2 was recorded by the police on 3.7.1996 whereas the accident took place on 12.4.1996. The PW-2 till 3.7.1996 did not come forward to …8… assist in the investigation. He has not produced any ticket to show that on 12.4.1996 he was traveling in the bus. He has stated that he boarded the bus at Shimla but he has not stated that from Shimla to which place he was going in that bus. At the end of his cross examination, he has stated that he was sitting in the centre of the bus and from there front was not visible and if that was the position it can be safely inferred that PW-2 has not actually seen how accident took and who was at fault for causing the accident. The prosecution has not examined any other eye witness of the accident. 10. PW-14 Jamita Ram has stated that spot map Ext.PW- 14/B was prepared by him. The learned Additional Advocate General has heavily relied on this spot map to show that respondent was negligent while driving the bus and due to the fault of the respondent, collision of bus and scooter took place. PW-14 has not stated on what basis he prepared the spot map Ext.PW-14/B. The perusal of spot map would show that the accident took place at point A and dead body of Pushkar was lying at point B and injured Meena Kumari after accident fell at point C. In spot map Ext.PW-14/B the blood marks have not been shown. In spot map Ext.PW-14/B it has been noticed that from Point A towards left of the bus metalled road was 14 feet and towards left of scooter metalled road was 10 feet. The perusal of photographs Ext.P-8 to Ext.P-12 would show that accident site was disturbed inasmuch as in the photographs Ext.P-8 to Ext.P-12 even the position of the deceased has been changed. …9… 11. The photograph Ext.P-6 reveals that the bus is standing on its extreme left when one comes from Shimla to Solan. One dead body is lying on extreme left of the road when one comes from Solan to Shimla. There is no dispute that dead body shown in Ext.P-6 is of Pushkar Singh Rawat. Now, if photograph Ext.P-6 is compared with Ext.P-12 it would show that there are two blood marks on the road far away from the dead body shown in Ext.P-12. One blood mark is quite close to the middle of the road. It seems after the accident one of the deceased fell at the point shown by blood mark which is quite close to the middle of the road and shown in the photograph Ext.P-12 and another deceased fell on the point which is shown by another blood mark in photograph Ext.P-12 and is towards left of the first blood mark when one comes from Solan to Shimla. It is natural that due to the impact of the bus, which was going down hill after the accident, Pushkar Singh Rawat and his wife Meena Kumari must have been thrown for quite some distance from the place of impact. It appears that the scooter and the bus at the time of impact were more towards the centre of the road and due to impact Pushkar Singh Rawat and Meena Kumari were thrown on the road towards left side from the point of impact when one comes from Solan to Shimla. The bus was going on national highway so also the scooter. On the curve, the bus is likely to cover approximately half of the road in width keeping in view the total width of the road as shown in spot map Ext.PW-14/B and the right edge of the bus while going from Shimla to Solan will come almost in the centre of the road. As per prosecution case, the front right edge of …10… the bus struck with scooter, had the bus would have been on wrong side the scooter would not have struck at extreme front right end of the bus inasmuch as the scooter driver would also leave some space on road from the extreme left of the road. It is not the case of the prosecution that accident took place when driver of the bus was overtaking another vehicle. Therefore, why the bus driver was allegedly on wrong side that has not been explained by the prosecution. The driving of the scooter in almost in the centre of the road on the national highway is not an act of prudence. It is nothing but to invite the accident. There is no eye witness of the accident. PW-14 has not disclosed on what basis he has prepared spot map Ext.PW- 14/B. PW-14 is not an eye witness. Therefore, simply on the basis of Ext.PW-14/B respondent cannot be convicted. The learned Sub Divisional Judicial Magistrate on the basis of material on record has taken a reasonable and possible view that the driver of the bus at the time of accident was not negligent. Mr.Burathoki, learned counsel for the respondent, has submitted that if two views are possible from the evidence on record and the trial Magistrate has taken one view then the appellate Court will not convict the accused merely on the ground that the other view is possible and for this purpose he has relied Hem Raj and another versus State of Punjab, AIR 2003 SC 4259 and Samghaji Hariba Patil versus State of Karnataka, AIR 2007 SC 28. There is force in this submission of the learned counsel for the respondent. The prosecution has failed to point out on what grounds the view which has been taken by the learned Sub Divisional Judicial …11… Magistrate from the evidence on record is wrong, perverse or not reasonable. No case for interference has been made out. Accordingly, the appeal fails and is dismissed. Bail bonds, furnished by the respondent, are discharged. April 11, 2008. ( Kuldip Singh ), J. (soni)