IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 206 of 2003. Decided on: 24.4.2010. ___________________________________________________________ State of H.P. … Appellant. Versus Parkash Chand @ Sheru & another … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Shri Rajinder Dogra, Addl. Advocate General. For the Respondents : Mr. Ramakant Sharma, Advocate. __________________________________________________________ V.K. Sharma, Judge.(Oral) In this Appeal under Section 378 (3) of the Code of Criminal Procedure, 1973 (‘the Code’), challenge is against the judgment of acquittal dated 9.12.2002, of the learned Judicial Magistrate 1st Class, Court No. II, Amb, District Una, whereby, the respondents who were tried for the offences under Sections 279 and 337 IPC and Sections 123, 177 and 181 of the Motor Vehicles Act, have been acquitted. 2. Shorn of details facts of the prosecution case are that PW-6 Shri Vinod Kumar and PW-7 Shri Malkiat Singh, were at the relevant time employed as Home Guards at Chintpurni. On 13.6.2001, at about 6.30 PM, they were present at Gagret Chowk in order to go to Chintpurni for duty. In the meantime, Bus No. PB08N-5451, belonging to Kartar Bus Service, came from Hoshiarpur. It was bound for Chintpurni. The bus stopped at 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 Gagret Chowk, where some passengers alighted from the bus and some other boarded the same. There was rush of passengers and as a result some of them were travelling on the roof top. According to PW-6, Vinod Kumar (complainant), when he along with his companion PW-7 Malkitat Singh (injured) started boarding the bus, the bus conductor, respondent No.2 Pawan Kumar, asked them to go to the roof of the bus, apparently for the reason that the bus was already full up-to its entire capacity. It was in such circumstances that both of them started travelling in the bus while sitting on the roof. Some other passengers were already sitting on the roof of the bus. After the bus covered some distance, it is alleged that a ceremonial gate had been put on the road to welcome some VIP. When the bus reached the said gate, PW-7 Malkiat Singh came into contact with it and as a result fell down from the bus and thereby suffered multiple injuries. 3. I have heard the learned Additional Advocate General for the appellant and the learned counsel for the respondents and perused the record. 4. The law enforcing machinery was set into motion with recording of statement of PW-6,Vinod Kumar Ex.PW-10/A under Section 154 Cr.P.C. The injured was sent for medical examination. PW-8 Dr. N.K. Bhardwaj, had found the following two simple injuries on his person:- “1. There was bleeding wound 2 cm below occiput 5cm x 0.9 x 0.3 cm with swelling. 2. There was feint bruise mark in the tubrcle area back side 2cm x 2cm redish colour. The nature of injuries were simple.” 3 5. Apart from PW-6 Vinod Kumar, the complainant, PW-7 Malkiat Singh, the injured, the prosecution also examined two other independent witnesses, that is, PW-1 Naresh Kumar, Shop Keeper and PW-2 Yash Pal Singh. PW-6 Shri Vinod Kumar and PW-7 Shri Malkiat Singh, are the most material witnesses for the prosecution. However, they have contradicted each other in material particulars, casting a very serious doubt on the genesis of the prosecution case, which cannot be lightly over looked. In the statement Ex.PW-10/A, made by PW-6, Vinod Kumar, he had stated that when they started boarding the bus, the bus conductor asked them to go to the roof of the bus. However, while deposing before the court as PW-6, he has taken a complete somersault and has deposed in no uncertain terms that it was PW-7 Malkiat Singh injured himself who had asked him that since it was hot inside the bus they would travel while sitting on the roof top. It was in such circumstances that he was declared hostile and was subjected to quite lengthy cross examination, but, nothing tangible could be extracted out of him to show that he had either been won over by the respondents or was making a false statement for some other extraneous consideration. To the contrary, he is very specific in stating that the respondents, the driver and conductor of the offending bus, were not responsible for the accident and that they were specifically told by him and the injured that they were not at fault and that they can proceed with the onward journey. It being so, the very case set up by the prosecution falls flat and cannot be safely believed. 4 6. Strangely enough none out of the other passengers travelling in the bus while sitting on its roof has been examined by the prosecution. They could have been the most natural witnesses in the given facts and circumstances of the case. Thus, an adverse inference is bound to be drawn against the prosecution. 7. The testimonies of PW-1 Naresh Kumar and PW-3 Yash Pal Singh are not of much help to advance the prosecution case for the reason that they had not seen the occurrence taking place and had instead arrived at the spot scene thereafter. 8. In view of the above, I am satisfied that the learned trial court has appraised the evidence on record in its correct perspective and has rightly came to the conclusion that the prosecution was not able to prove its case against the respondents beyond reasonable doubt. Thus, I do not see any lawful cause or basis for any interference with the impugned judgment dated 9.12.2002. Accordingly, the appeal is dismissed as being without any merit. (V.K. Sharma) Judge. April 24, 2010. (lsp)