IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 532/2004 Date of decision: 25.7.2011 State of H.P. …..Appellant Versus Surinder Kumar ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. A.K. Bansal Addl. Advocate General. For the respondent : Mr. Devinder Shamra, vice counsel. Surinder Singh, J. (Oral) In criminal case No. 29/2 of 2003/2002 decided on 14.6.2004, respondent was convicted by the learned trial Court but acquitted by the learned Sessions Judge in criminal appeal No. 12-Cr.A/10 of 2004, preferred by the respondent while setting aside his conviction and sentence. 2. Respondent faced trial for the offences punishable under Sections 279, 304-A of the Indian Penal Code on the allegations that on 26.1.2002 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - deceased child Sachin along with his father, uncle and cousin were traveling in a tempo being driven by PW2 Riyasat Ali. All these passengers were de- boarded at Bus stand Majra at 5 p.m. When all of them, including the deceased were standing on the side of the road and were to cross the road to the another end, it is alleged that a quails vehicle bearing registration No. UP-08-6567 being driven rashly and negligently by the respondent hit the minor child (Sachin). He sustained injuries and fell on the road. Immediately he was picked-up and taken to the Hospital in the same vehicle, later he succumbed to his injuries. The tempo driver (PW2) lodged the FIR. The Qualis vehicle was taken into possession by the police vide memo Ext. PW4/A. Police also obtained the MLC of the minor child and later his autopsy report. After recording the statements of the witnesses, challan was presented in the Court for his trial. 3. Respondent was put on trial for the offences aforesaid and at the end of trial he was convicted and sentenced by the learned trial Court to undergo simple imprisonment for 6 months for offence under Section 304-A and for simple imprisonment for 3 months for the offence under - 3 - Section 279 Indian Penal Code with default clause, which was set aside in appeal, as aforesaid by the learned Court of Sessions precisely on the ground that the prosecution failed to prove rash or negligent driving by the respondent and also that two views were deducible from the evidence on record and the benefit of the view favourable to the accused was given to him. 4. Shri J.S. Guleria, learned Assistant Advocate General forcefully argued that the learned first appellate Court did not appreciate the evidence of the prosecution in the right perspective and further that the statements of the witnesses concluded the ingredients of the offence charged. He took me through the site plan, prepared by the Investigating Officer during the investigation of this case and also the photographs. He then argued that if prosecution case is examined in the right perspective, there are grounds to restore the judgment of conviction and sentence passed by the learned Magistrate. 5. Contra Shri Devinder Sharma, learned Advocate supported the findings of acquittal recorded by the Magistrate below. - 4 - 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and cautiously examined the evidence on record. 7. PW2 Riyasat Ali tempo driver though stated that the alleged offending vehicle was being driven by the respondent at the relevant time but according to him, he did not know that quails aforesaid was coming behind his tempo. He stated that he alighted the passengers from his tempo and they were to cross the road to go to the another end of the road. Further, according to him, there were two small children with one adult boy. One of them suddenly crossed the road which was a National High Way and got hit by the Qualis. In cross- examination he stated that he did not witness the accident nor he could say that the accident was on account of the negligence and fault of the child. Rather in the tail-end of the cross examination, he admitted that the driver of the quails was not at fault. 8. PW3 Bhim Sen is also not an eye witness. He stated that he only saw when the accident had already taken place. Whereas PW4 Sunil stated that the alleged offending vehicle had hit the child when - 5 - he had already crossed the road and was standing at the other end of the road which is contrary to the spot map, photographs as well as the narration of the other witnesses. This witness is the uncle of the deceased. However, in cross-examination he admitted that after de-boarding the tempo the child was to cross the road. He also stated that the respondent blew the horn and also applied brakes. 9. PW10 Vinod Kumar is the cousin of the deceased who was accompanying him at the relevant time. Though he stated that when the child had already crossed the road, the alleged offending vehicle had hit him when he was standing on the edge of the road but when confronted with the statement under Section 161 of the Code of Criminal Procedure, this fact was not found mentioned there rather it was recorded that in the process of crossing the road, he was hit by the said vehicle. 10. The Investigating Officer was also examined as PW11. He frankly admitted that it came during the investigation of this case that the child got involved in the accident while crossing the road. According to him had somebody assisted the child to cross the road, this accident would not have occurred. - 6 - 11. On the critical examination of the aforesaid evidence, I find that there are two set of witnesses. One set comprises of the father of the deceased child, his uncle and the cousin. Though their testimonies cannot be discarded out rightly if it is confidence inspiring but I do find that their statements are full of contradictions, prejudicial, embellishment and improvements. They also did not spell-out anything about the rash or negligent driving by the respondent. Merely that accident had taken place, the offence cannot be said to have proved where there exist circumstances to conclude otherwise or due care and caution by the accused stand probablized. 12. The another fact which emerges from the evidence do probablize the defence that at the relevant time, the child barely of 6 years, was unguarded, unassisted and was crossing the road which was a National High way and a quite busy road. While doing so, he darted against the alleged offending vehicle. The respondent, who was the driver of the said vehicle blew horn and also applied brakes as is evident from the photographs and site plan and so spoken by the witnesses. He appears to have taken due care and caution to avert the - 7 - accident. Even thereafter after he stopped the vehicle and immediately took the child for medical help but he could not be saved. 13. Thus, the version which is favourable to the accused cannot be discarded. The prosecution has miserably failed to prove its case beyond reasonable doubt qua rash or negligent driving by the respondent. The learned first appellate Court has rightly picked-up the circumstances appearing in the statements of the witnesses and has aptly discussed it by applying the provisions of law which cannot be faulted with. In my considered opinion, the view and findings arrived at by the learned first appellate Court are born out from the record, which requires no interference. 14. The appeal sans merit and is accordingly dismissed. 15. The respondent is discharged of his bail bonds entered upon by him, at any time during the proceedings of this case. July 25, 2011 (Surinder Singh), (cm) Judge.