IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 382 of 2002. Judgment reserved on : 20.3.2009. Date of decision: April 2, 2009. State of Himachal Pradesh …Appellant. Versus Desh Raj ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? Yes. For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondent : Mr. Sanjay Jaswal Advocate. __________________________________________________________ Kuldip Singh, Judge The acquittal of respondent for offence punishable under Sections 279, 304-A IPC vide judgment dated 21.12.2001 recorded by the learned Additional Chief Judicial Magistrate, Kasauli at Solan in Criminal Case No. 23/2 of 2000/1995 has been assailed by State in the above appeal. 2. The prosecution case, in brief, is that on 5.6. 1995 at about 1.10 p.m. near bus stand Parwanoo respondent was driving bus bearing registration No. HP-06-2003 in a rash and negligent manner and hit Kumari Pooja with the rear tyre of the bus, as a result of which Kumari Pooja died on the spot. The information of the accident was given to ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. 2 Police Station, Parwanoo on telephone, police visited spot and recorded the statement Ex.PW-1/A under Section 154 Cr.P.C. of PW-1 Jaswinder Singh. Thereupon ruka was sent to Police Station, Parwanoo and FIR Ex.PW-6/A was registered. The post mortem report Ex.PW-3/B of Kumari Pooja was obtained, site plan was prepared and photographs of the spot were also taken. The bus and the documents were taken into possession. On completion of investigation, challan was presented against the respondent, notice of accusation was put to respondent under Sections 279, 304-A IPC. The respondent pleaded not guilty. The prosecution has examined seven witnesses, some documents were also placed on record. The statement of respondent was recorded under Section 313 Cr.P.C. The learned Additional Chief Judicial Magistrate, acquitted the respondent on 21.12.2001, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. Sanjay Jaswal, learned counsel for the respondent and have gone through the record. It has been submitted on behalf of the appellant that prosecution has proved the case against the respondent beyond reasonable doubt. The learned Additional Chief Judicial Magistrate has not properly appreciated the evidence on record and has erred in acquitting the respondent. On the contrary, the learned counsel for the respondent has submitted that a possible view has been taken by learned Additional Chief Judicial Magistrate in the impugned judgment from the evidence on record. There is no perversity in the impugned judgment. The learned counsel for the respondent has supported the impugned judgment and prayed for dismissal of the appeal. 4. Ex.PW-1/A is the statement of Jaswinder Singh, Constable under Section 154 Cr.P.C. He has stated that on 5.6.1995 his 3 duty was at traffic chowk Parwanoo from 8.00 a.m. to 2.00 p.m. At about 1.10 p.m. bus bearing registration No.HP-06-2003 came from hill side and as soon as the driver turned the bus towards H.R.T.C. petrol pump, a girl walking on the road was hit by the rear tyre of the bus and died on the spot. The accident took place due to the negligence of the bus driver. The accident was witnessed by Ram Dulara, Radhe Shayam etc. The statement Ex.PW-1/A was recorded at 1.55 p.m. PW-1 Jawinder Singh in the Court has stated that as soon as the driver turned the bus towards petrol pump, a girl was trapped in the rear right side tyre of the bus and died on the spot. The accident took place due to the negligence of the bus driver. In cross-examination, he has stated that traffic chowk is at a distance of 20 mtrs. from petrol pump. He has also stated that adjoining to the petrol pump, there is a liquor vend and five, six shops. There were 40 to 45 passengers in the bus. The speed of the bus was normal. 5. PW-2 Amar Singh has proved mechanical report Ex. PW- 2/A of the bus bearing No. HP-06-2003. PW-3 Dr. M.L. Thakur, conducted post-mortem on the body of Kumari Pooja and issued post mortem report Ex.PW-3/B on the basis of application Ex.PW-3/A. He also examined respondent Desh Raj and issued M.L.C. Ex. PW-3/C. 6. PW-4 Ram Dulara has stated that in June, 1995 he had come to Parwanoo bazaar for some work, a bus came from Solan side and took turn towards petrol pump. A girl was hit by the front tyre of the bus, she fell down and was run over by the rear tyre and died on the spot. He cannot recognize the driver. In cross-examination, he has stated that he was in Mayur market which is at a distance of 200 meters from petrol pump. PW-5 Madan Lal, photographer has proved photographs Ex.P-1 to Ex.P-3 and negatives Ex. P-4 to Ex.P-6. PW-6 4 M.P. Bam has stated that in the year 1995 he was SHO, Police Station, Parwanoo. On the basis of statement Ex.PW-1/A, he recorded FIR Ex. PW-6/A. He prepared the challan. PW-7 Chain Ram, ASI has stated that in the year 1995, he was posted as ASI, at Police Station, Parwanoo. On 6.6.1995, the investigation of the case was handed over to him by ASI Rikhi Ram. He recorded the statements of Amar Singh, mechanic, Dr. M.L. Thakur and Madan Lal, Photographer and handed over the case file to ASI Rikhi Ram. 7. PW-6 M.P.Bam, SHO, Parwanoo had recorded FIR Ex.PW-6/A, some investigation was conducted by PW-7 Chain Ram, ASI, who has stated that he recorded the statements of Amar Singh, mechanic, Dr. M.L. Thakur and Madan Lal, Photographer. It appears that rest of the investigation in the case was conducted by ASI Rikhi Ram, who has not been examined by the prosecution. PW-1 Jaswinder Singh has stated that accident was witnessed by Ram Dulara and Radhe Shayam. It is the case of the prosecution that bus was coming from Solan side. The site plan was prepared but it has not been proved. PW-1 Jaswinder Singh was on duty at traffic crossing. He has stated that traffic crossing is at a distance of 20 meters from petrol pump. The perusal of statements of PW-1 Jaswinder Singh and PW-4 Ram Dulara indicate that the place of accident is a busy place. It is reasonable to infer that PW-1 was on duty at traffic crossing. PW-1 has stated that the girl was hit by the rear tyre of the bus and was trapped and died. PW-4 Ram Dulara has stated that girl was hit by the front tyre, she fell down and was crushed by the rear tyre without indicating whether she was crushed by right or left rear tyre. Thus, PW-1 and PW-4 have contradicted each other whether the girl was initially hit by the front tyre or rear tyre of the bus. PW-1 has stated that there were about 40 to 45 5 passengers in the bus but surprisingly, no passenger of the bus was examined as a witness. PW-1 has stated that Radhe Shayam was on the spot but he has also not been examined by the prosecution. It has come in the evidence that there are 5, 6 shops and liquor vend near the place of accident but no witness from those shops and liquor vend has been examined. In his statement, PW-1 has not stated that accident took place right in his presence. It appears PW-1 came on the spot later on. 8. PW-4 Ram Dulara on material point has contradicted PW-1 Jaswinder Singh regarding the manner in which accident took place. The learned trial Court had given repeated opportunities to the prosecution for examining the witnesses but ultimately on 24.8.2001, the evidence of the prosecution was closed by the order of the Court. The fact remains that Rikhi Ram, who conducted the investigation partly and a material witness was not examined. In Ambalal D. Bhatt Vs. The State of Gujarat, AIR 1972, S.C. 1150, the Apex Court has held that in a prosecution for an offence under Section 304-A, the mere fact that an accused contravenes certain rules or regulations in the doing of an act which causes death of another, does not establish that the death was the result of a rash or negligent act or that any such act was the proximate and efficient cause of the death. The act causing the deaths “must be the causa causans; it is not enough that it may have been the causa sine qua non.” The Supreme Court in Suleman Rahiman Mulani and another Vs. State of Maharashtra, AIR 1968, S.C. 829, while interpreting Section 304-A IPC, has held that the requirements of this section are that the death of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the death. There must be direct nexus between the death of a 6 person and the rash or negligent act of the accused. It is unfortunate that Kumari Pooja has died but the prosecution has failed to establish that the accident took place due to the rash and negligent driving of the respondent. The post mortem report and other medical evidence of deceased Pooja are of no help to the prosecution in absence of proof of rash or negligent driving of respondent causing death of Kumari Pooja. The learned Additional Chief Judicial Magistrate has rightly appreciated the material on record in acquitting the respondent. There is no perversity in the impugned judgment. The prosecution has failed to make out any case for interference and the appeal is liable to be dismissed. 9. No other point was urged. 10. As a result of above discussion, the appeal fails and is accordingly dismissed. Bail bonds are discharged. April 2, 2009. ( Kuldip Singh ), (GR) Judge.