IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 322 of 2002. Decided on: May 19, 2009. ____________________________________________________________ State of H.P. ……..Appellant. Versus Rasil Ram. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. J.S. Guleria, Law Officer. For the respondent : None. ____________________________________________________________ SURINDER SINGH,J (oral): The acquittal of the respondent has been challenged by the State in this appeal, on the ground that the learned trial court did not appreciate the evidence of the prosecution in the right perspective, rather, rejected its whole evidence on flimsy grounds. None appeared for the respondent, however, Mr.J.S. Guleria, learned Assistant Advocate General led me through the evidence and submitted that there are grounds to convert the acquittal into conviction, if the evidence is properly appreciated. Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - In short, the prosecution case is that on 5.11.1995, at about 4.30 p.m., a Maruti Van No.HP-21-0065 came from Hamirpur side and was going towards Bhota. When it reached in Dugha Bazar, it hit a scooterist (PW5) Parkash Chand with the result the scooter got damaged and he along with his wife sustained the multiple injuries. Many persons gathered on the site of the accident, from where both the injured were removed to the hospital for immediate medical- aid. The police was informed about the accident. PW10 HC Krishan Kumar visited the hospital and recorded the statement of Parkash Chand, on the basis of which FIR Ex.PW10/F was recorded under Sections 279 and 337 of the Indian Penal Code. PW9 Dr. V.K. Gautam, attended the injured and advised them for the X-ray. Parkash Chand is alleged to have sustained the fracture of the wrist of his right hand and his wife Usha Kumari sustained the fracture of clavicle bone of her left shoulder. Statements of the witnesses were recorded. Thereafter the challan was put in the court for the trial of the respondent. - 3 - A notice of accusation was put to the respondent under Section 279, 337 and 338 of the Indian Penal Code. He denied the allegations and claimed trial. To prove its case, the prosecution examined its witnesses. Respondent was also examined under Section 313 of the code of Criminal Procedure. He denied that at the relevant time, he was driving the said Maruti Van and about the accident he pleaded ignorance, however, no evidence in defence was led. At the end of the trial, learned trial court acquitted the respondent, on the grounds that the prosecution did not produce the medico legal certificates of the injured persons nor it was filed along with the charge-sheet. Further looking at the position of the vehicles in question shown in the spot map as also the photographs, the version of the injured persons with respect to the accident becomes doubtful. Further the spot of accident was a quite wide and open road and error of judgment in driving the scooter by PW5 Parkach Chand could not be ruled out. - 4 - I have reappraised the evidence on record. PW5 Parkash Chand has stated that when he reached at Dugha Bazar on his scooter along with his wife as pillion rider, a Maruti Van No.HP- 21-0065 came from opposite side in a high speed and hit the scooter, consequently it fell down and both of them sustained injuries, whereas, his wife PW6 Usha Kumari simply, stated that the scooter was hit by the Maruti Van. None of them stated that at the relevant time, the respondent was the driver who was responsible for driving the van rashly or negligently. PW5 aforesaid only stated that the van was in a high speed. It is a settled law that the speed is not the criteria to conclude the rash or negligent act of driving of the offending vehicle, but the prosecution witnesses are supposed to say something more in order to satisfy the ingredients of the offence under Section 279 of the Indian Penal Code. Much stress has been laid on the statement of PW8 Surjit Kumar, an alleged eye witness, who has gone a step forward by saying that the driver of the Van was drunk at the - 5 - relevant time, but when confronted with his statement recorded under Section 161 of the Code of Criminal Procedure, this fact did not find mention therein. He attributed the accident to the speed of the driver of the Van, but significantly, he also demolished the case of the prosecution by saying that he could not recognize the driver of the Van. The investigating officer nowhere stated that it was the respondent, who was found driving the vehicle in question at the relevant time. This evidence assumes importance, more specifically when the respondent has denied that on the day of alleged accident, he was not driving the vehicle in question. This fact was not noticed by the learned trial court. Further, as already stated above, the ingredients of rash or negligent act of driving of the alleged offending vehicle have not been spelt out by any of the prosecution witness aforesaid. In these circumstances, in my opinion, the evidence of the prosecution is not sufficient to convert the acquittal into conviction, as canvassed by the learned Assistant Advocate - 6 - General. Therefore, the appeal is devoid of any merit, accordingly, it is dismissed. The respondent is discharged of his bail bonds entered upon by him during the proceedings of the case. Send down the records. (Surinder Singh), Judge. May 19, 2009. (Pds)