IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 593 of 2002. Judgment reserved on: 15.9.2009 Date of decision: 5.11.2009 State of H.P. …….Appellant Vs. Mohinder Singh …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Addl. Advocate General with Mr. R.P. Singh, Assistant Advocate General. For the Respondent : Pt. Om Parkash Sharma, Advocate. Kuldip Singh, Judge. The State has come in appeal against the judgment dated 7.6.2001 passed by learned Judicial Magistrate Ist Class, Nurpur in Criminal Case Challan No.14-II/98, acquitting the respondent for offence punishable under Sections 279, 304-A IPC. 2. The prosecution case in brief is that statement Ex.PW-1/A of PW-1 Ashok Kumar was recorded on 26.12.1994 under Section 154 Cr.P.C. and there upon FIR Ex.PW-7/A was registered at Police Station, Nurpur. The further case of the prosecution is that on 25.12.1994 at about 11.30 AM, PW-1 Ashok Kumar, Mohinder Kumar Whether the reporters of the local papers may be allowed to see the Judgment? yes …2… and Keshav Dutt had gone out for collecting fodder for their cattle. They were returning to their homes at about 3.30 PM. They stopped on the way for drinking water and took rest at Gureli Khad. In the meantime tractor bearing registration No.HP-38-4717 which was being driven by accused came there and was loaded with Bajri. The accused stopped the tractor and had some talk with Keshav Dutt. Keshav Dutt asked them to put their fodder on the tractor trolley. It has been alleged that PW-1 and Mohinder Singh quickly sat on the tractor but Keshav Dutt could not board the tractor and in the meantime tractor gained speed, suddenly Keshav Dutt fell down and was crushed under the right rear tyre of the tractor and succumbed to injuries on the spot. It has been alleged that accident took place due to rash and negligent driving of the tractor driver. The tractor driver ran away from the spot. 3. On completion of investigation challan was presented against the respondent and he was charged for offence punishable under Sections 279 and 304-A IPC, he pleaded not guilty and claimed trial. The prosecution has examined eight witnesses and produced some documentary evidence. The statement of respondent was recorded under Section 313 Cr.P.C. The learned Judicial Magistrate acquitted the respondent on 7.6.2001 and therefore, the State has come in appeal. 4. Heard and perused the record. Mr. A.K. Bansal, learned Addl. Advocate General for the appellant has submitted that the trial Court has misconstrued and misinterpreted the evidence on record. The trial Court has erred in acquitting the respondent despite …3… the fact that the prosecution has proved the case against the respondent beyond reasonable doubt. The learned Addl. Advocate General has prayed for setting aside the acquittal of the respondent. The learned counsel for the respondent has supported the impugned judgment of acquittal and has submitted that the learned trial Court has minutely looked into the evidence and has properly appreciated the evidence on record. The learned counsel for the respondent has justified the impugned judgment and prayed for dismissal of the appeal. 5. PW-1 Ashok Kumar has stated that when they were resting on the ground, tractor No.HP-38-4717 came there which was being driven by accused Mohinder Singh. The tractor was loaded with Bajri. The tractor stopped there. The accused asked them to put their fodder in the tractor trolley and asked them to sit on the said tractor. They put their fodder in the trolley and sat on the tractor along with the accused. He alongwith Mohinder Singh sat on the tractor, the accused moved the tractor but by that time Keshav Dutt had not boarded the tractor properly. Keshav Dutt came under rear tyre of the tractor and died. In cross-examination he has stated that he lodged the complaint next day on 26.12.1994. The police station, Nurpur is at a distance of 8-9 KM from Gureli Khad. There was one more person with the driver. It was about 11.30 AM when tractor came. Keshav Dutt had not boarded the tractor and he was in the process of boarding the tractor. Keshav Dutt came under the left tyre of the tractor then said that left tyre hit Keshav. …4… 6. PW-2 Mohinder Kumar is the real brother of Keshav Dutt and has stated that tractor came at Gureli Khad at about 3.30 PM . The accused told them to put the grass in the trolley and permitted them to sit on the tractor. They put the grass in the trolley. PW-1 and the witness sat on the tractor, Keshav was about to sit on the tractor but in the meantime the tractor started moving in high speed, as a result of which Keshav fell down, he sustained injuries and came under the tyre. In cross-examination he has stated that they boarded the tractor from the point where the tractor is connected with the trolley. Keshav had not boarded the tractor and he was in the process of boarding the tractor but in the meantime the tractor started moving. Keshav had come under the tyre of the trolley. The report was lodged in the police on the same day. He and Ashok had gone to the police for lodging the report. In the re-examination conducted by the prosecutor he has stated that police reached the spot on 25.12.1994 at 8 PM. He denied that police reached the spot on 26.12.1994 at 9.30 PM. 7. PW-3 constable Joginder Singh took photographs. PW- 4 Mohinder Paul is a witness of taking into possession of the tractor. PW-5 Kishori Lal has stated that Mohinder Singh on 26.12.1994 had produced tractor alongwith documents to the police. PW-6 Dr. Indu Bhardwaj had conducted the postmortem of Keshav Dutt and issued postmortem report Ex.PW-6/A. PW-7 Narain Singh has stated that in the year 1994 he was posted as Inspector-SHO at Nurpur. He filed the challan in the Court. He has proved ruka Ex.PW-7/B and FIR Ex.PW-7/A. PW-8 Satwant Singh is the Investigating Officer. He …5… has stated that in the year 1994 he was posted as Addl. SHO at Police Station, Nurpur. He recorded the statement Ex.PW1/A of Ashok Kumar under Section 154 Cr.P.C. The respondent in his statement has denied the prosecution case. 8. PW-1 Ashok Kumar in his statement under Section 154 Cr.P.C. Ex.PW-1/A has stated that accident took place at about 3.30 PM. He has also stated that Keshav Dutt tried to board the tractor, all of a sudden tractor took speed and keshav Dutt fell down and came under right tyre of the trolley and died on the spot. However, PW-1 in the Court has stated that tractor came at 11.30 AM. In other words PW-1 Ashok Kumar has changed the time of accident from about 3.30 PM to 11.30 AM on 25.12.1994. PW-1 in the Court has stated that Keshav Dutt came under the rear tyre of the tractor but in statement Ex.PW-1/A he has stated that Keshav came under the right tyre of the trolley. PW-2 has stated that he and Ashok Kumar had gone for lodging the report. Police came on the spot on 25.12.1994 at 8 PM. The statement under Section 154 Cr.P.C. Ex.PW-1/A was recorded on 26.12.1994 at 9.30 AM and thereafter FIR Ex.PW-7/A was registered on 26.12.1994. PW-1 in his statement in the Court has stated that there was one more person along with the driver but who was that person that has not been identified by the prosecution. 9. There are contradictions in the statements of PW-1 and PW-2 regarding the time when the accident took place. The PW-1 and PW-2 have contradicted each other on the point whether deceased came under tyre of the tractor or under the tyre of the trolley. PW-2 has contradicted the statement Ex.PW-1/A regarding …6… time of recording statement Ex.PW-1/A and visit of the police on the spot. PW-2 has stated that matter was reported to the police on 25.12.1994 whereas as per Ex.PW-1/A statement under Section 154 Cr.P.C. it was recorded on 26.12.1994 at 9.30 AM and the FIR Ex.PW-7/A was recorded on 26.12.1994. In presence of these contradictions it was incumbent upon the prosecution to examine the person who was also sitting on the tractor with the driver when accident took place. The prosecution has not given any explanation why that person has not been examined as a witness in the Court. The learned Judicial Magistrate has highlighted various contradictions in the prosecution case and has recorded a finding that prosecution has failed to prove the case against the accused, such findings cannot be said to be perverse. The view taken by the learned Judicial Magistrate is a possible view from the evidence on record. The learned Addl. Advocate General has failed to point out any misconstruction and misinterpretation of evidence by learned Judicial Magistrate while acquitting the respondent. No case for interference has been made out. Resultantly, appeal fails and is accordingly dismissed. Bail bonds discharged. ( Kuldip Singh ) Judge November 5, 2009 (sks)