IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.A.No.649 of 2000. Date of Decision :3rd March, 2008. State of H.P. …Appellant. Versus: Sanjiv Kumar. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.Vivek Thakur, Addl. Advocate General . For Respondent. Mr.N.K.Thakur, Advocate. Sanjay Karol, J. The present appeal arises out of the judgment dated 3rd May, 2000 passed by Judicial Magistrate, Ist Class, Court No.II, Amb in Case No.70-II/97 titled as State of H.P. Vs. Sajiv Kumar acquitting the accused of the charged offence under Sections 279, 337, 338 and 304-A of the Indian Penal Code. As per the case of the prosecution, on 10th May, 1997 complainant, Sagar Singh (PW-2) was driving vehicle No.HP.36-2287 loaded with cement from Barmana H.P. to Pathankot (Punjab). When he reached at a place known as Dhandri, District Kangra a Tempo bearing No.PH 07-D-3364 driven by accused came from behind at a high speed and hit the truck as a result of which the occupants of the 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 tempo sustained injuries and the truck in question was damaged. The accident occurred due to the rash and negligent driving of the accused. The statement of the complainant under Section 154 Cr.P.C. (Ext.PW- 2/A) was recorded and based on the same F.I.R. No.78/97 (Ext.PW- 7/E) was registered with Police Station, Amb under Sections 279 and 337 I.P.C. The police machinery was swung into action and both the vehicles were impounded vide seizure memo (Ext.PA and Ext.PB). The vehicles were got mechanically examined through Sh. Shakti Chand (PW-4). Mechanic reports (Ext. PW-4/A and Ext.PW-4/B) were also taken into possession by the police. The occupants of the Tempo, namely accused-Sanjeev Kumar, Anand Kishore (PW-6) and Kuldip Kumar were taken to the hospital for treatment where Kuldip Kumar succumbed to his injuries and died as per report Ext.PW-7/C. The medico legal certificates of PW-6 are mark ‘Y’ and that of the accused is mark ‘Z’. After completion of the investigation the challan was presented in the Court for trial. The notice of accusation was put to the accused for an offence under Sections 279, 337, 338 and 304-A I.P.C. The accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as seven witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded and the accused examined himself as his defence witness. He got exhibited the complaint Ext.D-1 dated 13th May, 1997 lodged by him in the Court of Judicial Magistrate, Ist Class, Amb, District Una, H.P. The said complaint was sent for investigation of the case under Section 156(3) Cr.P.C. on the same date itself. 3 After considering the material on record, the court below came to the conclusion that the prosecution had failed to prove its case beyond reasonable doubt as there were material contradictions in the statements of the prosecution witnesses. I have considered the material on record and heard learned counsel for the parties. The testimony of Sh. Ram Kishan (PW-1) is formal in nature as he has proved the seizure memo Ext.PA and Ext.PB. Sh. Shakti Chand (PW-4) has mechanically examined the vehicles in question in terms of his report Ext.PW-4/A and Ext. PW-4/B. Rajesh Kumar (PW-5) is the photographer and has proved the negatives and the prints of the photographs (Ext. P-1 to Ext.P-3 and Ext.P-4 to Ext.P- 6). From the statement of these witnesses, it is clear that the vehicles in questions were involved in the accident. From the material on record it is undisputed that the vehicles in question were involved in the accident. This fact stands admitted by the accused vide document Ext.D-1 placed by him on record. Through the testimony of the spot witnesses, it is clear that injuries were sustained by the passengers of the Tempo. The fact that the death of a passenger took place as a result of accident is also evident from the material on record. From the statement of the spot witnesses, it is also clear that it was the accused Sanjeev Kumar who immediately after the accident took the injured to the hospital for getting them medical treated. However to ascertain as to whether the accident occurred due to the rash and negligent driving of the accused 4 or as to whether the action of the accused were such so as to endanger the human life and personal safety causing grievous hurt, the statement of the remaining witnesses, namely Sagar Singh (PW-2), Surinder Singh (PW-3) and Nand Kishore (PW- 6) needs to be examined. Statement of Bichitter Singh (PW-7) who has carried out the investigation also needs to be examined for the said purpose. Nand Kishore (PW-6) has given a version which proves the innocence of the accused. The prosecution story and the version narrated by spot witnesses PW-3 and PW-4 stands contradicted and falsified. Even though PW-6 was declared hostile during the trial but, however a perusal of his statement would show that in spite of cross-examination by the Public Prosecutor, the innocence of the accused is quite evident. He has stated that he was travelling in the tempo i.e. vehicle in question. The complainant who was driving the truck was behind the tempo and was repeatedly blowing the horn and attempting to take over the tempo. Since the road was narrow pass could not be given and the accused signaled the complainant to wait for the appropriate place where the pass could be given. The complainant, however, rashly came from behind and over took the tempo at a place where the road was narrow and immediately after crossing the tempo in the middle of the road the complainant applied the brakes as a result of which the accident took place. According to him he along with the accused and Kuldeep Kumar were hurt and 5 were taken by the accused to the hospital in a local Van. He has categorically deposed that the accident occurred due to the fault of the complainant and the accused was not at fault. He has deposed that due to the accident he sustained serious injuries in his legs and is permanently disabled as he has to walk with the helps of the crutches. This version totally shatters the prosecution case and also shows the innocence of the accused The presence of Surinder Singh (PW-3) who is stated to be an eye witness, in my view, appears to be doubtful for the simple reason that as per the First Information Report lodged by PW-2 in the Police Station his presence has not been mentioned. PW-2 has introduced the presence of this witness for the first time in the court while stating that PW-3 was the Cleaner of his truck. This fact, however, is not stated by PW-3 in his testimony. Moreover, PW-3 in his statement has admitted that for over a decade he has been working as Mechanic at a place called Barmana where he has also been repairing the vehicle in question. This witness appears to be interested for the reason that he is the class mate of the son-in-law of the owner of the truck. Further, as per the version of PW-3 he left the spot within 10 to 15 minutes of the occurrence of the accident. PW-2 in his testimony has admitted that the police reached at the spot only after about two hours. PW-7, who has investigated the matter, in his statement has deposed that none was present 6 at the spot of occurrence. If the PW-3 had left the place of occurrence within 10 to 15 minutes, then how his statement under Section 161 Cr.P.C. could be recorded by the police after reaching at the spot has not been explained. The presence of PW-3 at the time of the alleged occurrence appears to be doubtful and therefore his testimony cannot be relied upon to prove the guilt of the accused beyond reasonable doubt Further, there are contradictions in the statements of PW-2 and PW-7. As per the version of PW-2 he had visited the local police Station. According to PW-2 the accident took place at about 5 A.M. and the police reached only after two hours. But as per the version of PW-7 he reached at the spot at 5.30 A.M. and he carried out the investigation at the spot. Therefore, the version of PW-2, in my view cannot be relied upon to hold the accused guilty of the offence. Therefore, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. The accused had himself lodged the complaint with the Police which was forwarded by the Court of Judicial Magistrate, Ist Class, Amb for investigation. There were two cross complaints which were required to be investigated by the Police. The Investigating Agency has not even mentioned about the said complaint in the instant proceedings. Therefore the entire version of the prosecution appears to be false and concocted. 7 The testimony of PW-2 also can not be relied upon as there is contradiction and improvement from his various statements made before the police. In his examination-in-chief PW-2 has stated that the bus was coming from the opposite direction and consequently he applied the brake as a result of which the Tempo being driven by the accused came at a high speed and hit the truck from behind which fact is not mentioned in the earlier proceedings. In any case if the version was to be accepted even then it cannot be said that the accused was guilty of the charged offence. The brakes of the truck were applied suddenly by PW-2 which resulted into the accident. Keeping in view the facts and circumstances as have emerged it is clear that the accused is innocent and the case of the prosecution is false. The version of PW-2 and PW-3 can not be relied upon to prove the guilt of the accused for being unreliable and untrustworthy and interested witnesses. In any event another version showing the innocence of the accused has been noticed earlier is also on record. The court below has correctly appreciated the material on record while arriving at its conclusion. There is no perversity in the same. The appeal is accordingly dismissed. The bail bonds are discharged. (Sanjay Karol), Judge. March 3, 2008(R) 8