IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 52 of 2002 Date of decision: 6. 4. 2009 State of H.P. …..Appellant Versus Om parkash ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 . For the appellant: Mr. J.S. Guleria, Assistant Advocate, General. For respondents : None. Surinder Singh, J. (Oral) The respondent was convicted and sentenced under Section 279, 338 and 304-A of the Indian Penal Code, by the learned trial court in Criminal case No. 370-II/96/91 decided on 16.2.1998 but in appeal No. 6-K of 1998, he was acquitted by the learned Sessions Judge, vide his detailed judgment dated 3.8.2001 against which, the present appeal has been preferred by the State. In brief, the prosecution case is that on 17.2.1991 at about 9.15 p.m. on the public highway in Nagrota- Bazar, appellant was allegedly driving vehicle No. HIK-675 rashly and negligently and hit Gopal Sharma, the Scooterist with a pillion rider 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes. - 2 - coming from the opposite side and thereafter it also hit PW-1 Loku Ram a Rehariwala, from behind. The scooterist Gopal Sharma succumbed to the injuries in the hospital and his pillion rider Rajeev Sood had also received injuries and had filed a claim petition. The FIR was lodged by Loku Ram. Police investigated the case, took the photographs and got the vehicle mechanically examined. On the conclusion of the investigation, challan was presented against the respondent in the court for his trial under the Sections aforesaid. Notice of accusation was put to the respondent for the above offences to which he pleaded not guilty and claimed trial. The prosecution examined its witnesses to prove the charges. In his statement under Section 313 of the Code of Criminal Procedure, the respondent admitted himself to be the driver of vehicle No. HIK-675, driving at the relevant time. But according to him, he was coming from up-side in the middle of the road, a truck was parked. On seeing the truck, he turned his vehicle towards left side of the road. The Scooterist, who was coming from the opposite side, turned towards left and hit against the truck and then against his vehicle (tempo) and sustained injuries. - 3 - I have heard learned Assistant Advocate General, for the State. None appeared on behalf of the respondents. Shri Guleria forcefully argued that respondent admitted himself to be the driver of the alleged offending vehicle and the witnesses have corroborated the prosecution case. The learned Sessions Judge wrongly acquitted the accused and the judgment of conviction and sentence passed by the learned trial Magistrate deserves to be restored. I have carefully and thoughtfully examined the evidence on record. PW-1 Loku Ram is an injured witness. According to him, he along with his brother Dassu Ram were going towards Railway Station Nagrota to fetch some luggage during the night at about 9.15 p.m. When they were going on foot, a tempo came from the opposite side, its window pushed him to one side and he fell down and sustained injuries. But he could not recognize as to who was the driver thereof. In his cross-examination, he had admitted that the name of the driver was Tony. Whereas in the instant case, driver of the alleged offending vehicle was respondent Om Parkash and it is nowhere in the evidence that said Shri Om Parkash is also nick-named as Tony. He even could - 4 - not say whether it was truck or tempo, window of which had hit him from behind. PW-2 Rajeev Kumar was pillion rider on the scooter of Gopal Sharma (deceased). According to him the scooterist was driving the scooter on the kacha portion of the road and from the side of Malan, a tempo HIK-675 came and caused accident. He also stated that he had filed a MACT case and he could not identify the driver but lateron realizing that he had filed a claim petition, corrected himself and deposed that respondent was the driver. In cross-examination he admitted that he was known to the respondent prior to the accident and after three days when he regained conscious, he came to know that tempo had fallen- down. He could not recollect as to whether he had mentioned the name of the driver, who was responsible for the accident. Significantly, he did not say that the respondent was driving his vehicle rashly or negligently. PW-3 Bhumi chand was informed by the Chowkidar that two persons on the scooter had fallen down and sustained injuries and he did not know whether the respondent was the driver of the tempo and was responsible for the accident. In cross-examination, he has categorically stated that scooter and tempo did not collide with each other. He also could not say whether at the relevant time, the scooterist was hit by the tempo - 5 - or by the truck and how the scooter over turned on the road. PW-5 Vijay Kumar did not support the case of the prosecution. He did not know as to how the accident had taken place. PW-8 S.I. Kartar Singh has stated that on the day of the alleged accident, the tempo in question was found having over turned on the road at a distance of about 4/5 furlong away from the place of alleged accident on the same night and no body was found present on the spot. He admitted that in the FIR, the name of the owner and its driver was shown as Tony son of Shri A.K. Verma whereas these particulars are not matching to the respondent in any way. On the critical examination of the witnesses, it transpires that at the time of the alleged accident, a truck also figures at the scene, but nothing has been said by any of the witnesses that who was its driver whether he was tony or somebody else. Whereas, according to the respondent, after hitting the truck, the Scooterist had hit his vehicle on the spot and PW- 1 could not say whether he was hit by a truck or tempo of which respondent was the driver. PW-3 could not say as to how the scooter had over turned on the road. PW-2 Rajeev Kumar has blown hot and cold in his statement. While firstly stating that he did not know who was driver of the - 6 - offending vehicle then realized that he had filed the MACT case then stated that it was respondent. The rash and negligent act on behalf of respondent is not proved in accordance with law. In the given circumstances, it can not be presumed that the tempo in question, of which the respondent was the driver, was the spot whereas, it was found overturned 4/5 furlong away from the place of accident, no person was present there. Further with respect to the said accident, there is no FIR. Thus, the grounds for acquittal recorded by the lower appellate Court are born out from the evidence on record therefore, calls for no interference in the acquittal of the respondent, as such the appeal is dismissed. Send down the record. April 6, 2009 (Surinder Singh),J. (cm)