IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Appeal No. 505 of 2002. Judgment reserved on : 7.4.2009. Date of decision: 17.4.2009. State of Himachal Pradesh …Appellant. Versus Jagmohan ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No. For the Appellant : Mr. Anshul Bansal, Additional Advocate General. For the Respondent : Mr.A.K.Vashista, Advocate. __________________________________________________________ Kuldip Singh, Judge The State has come in appeal against the judgment dated 10.4.2002 of learned Chief Judicial Magistrate, Shimla in Criminal Case No.82/2 of 1996 acquitting the respondent for offence punishable under Sections 279, 337, 338 IPC. 2. The prosecution case, in brief, is that the statement under Section 154 Cr.P.C. of Roshan Lal was recorded on 17.4.1996 and thereupon FIR No.74 of 1996 was registered at Police Station, Sadar, Shimla. As per prosecution on 17.4.1996 Roshan Lal was near Bindu Raj Inn at about 1.00 p.m. and he saw taxi bearing No.HP-02-2711 coming from Victory Tunnel side and going towards main bus stand. . ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes. A motor cycle bearing registration No.CH-01A-2099 was coming from Command side and was going towards Victory Tunnel. Maruti taxi came in high speed and on wrong side and struck against motor cycle and due to the impact, the motor cycle rider went up in the air 6 – 7 feet and fell 4 feet away and struck his head on the ground. As a result of injuries sustained by him, blood oozed out from his nose and mouth. The motor cycle rider was removed to IGMC, Shimla for medical aid. The accident took place due to rash and negligent driving on the part of the driver of vehicle No.HP-02-2711. On completion of investigation, challan was presented in the Court under Sections 279, 337 and 338 IPC and notice of accusation was accordingly put to respondent. The prosecution has examined eight witnesses and produced some documents The respondent was examined under Section 313 Cr.P.C., he denied the accusation but led no evidence in defence. The learned Chief Judicial Magistrate after conclusion of the trial, has acquitted the respondent, hence this appeal. 3. I have heard Mr. Anshul Bansal, learned Additional Advocate General for the State and Mr. A.K.Vashista, learned counsel appearing for the respondent and have also gone through the record. On behalf of the State, it has been submitted that prosecution has proved the case beyond reasonable doubt against the respondent who caused the accident by rash and negligent driving, he came on the wrong side and struck the motor cycle. The learned Chief Judicial Magistrate has not properly appreciated the evidence. The learned counsel for the respondent has supported the impugned judgment and has submitted that prosecution has not examined the Investigating Officer, the statement under Section 154 Cr.P.C., FIR as well as site plan have not been proved. The learned Chief Judicial Magistrate has rightly acquitted the respondent. 4. PW-1 Dr. Sanjay Dhiman has stated that on 17.4.1996 he examined Ashok Kumar and issued MLC Ex.PW-1/A. He was referred to Radiological Department for his examination. On receipt of X-ray report Ex.PW-1/B, injury No.3 in Ex.PW-1/A was found grievous. PW-2 Santosh Kumar, police photographer has proved the photographs Ex.PW-2/A, Ex.PW-2/B, Ex.PW-2/C and Ex.PW-2/D and negative Ex.PW-2/E. In cross-examination, he has stated that he can’t say whether the position of the vehicles were changed. PW-3 Vinod Mehta has stated that he had done X-rays of Ashok Kumar and gave Radiological opinion Ex.PW-1/B. The X-rays are Ex.PW-3/A, Ex.PW- 3/B, Ex.PW-3/C, Ex.PW-3/D, Ex.PW-3/E and Ex.PW-3/F. The patient was found to have dislocation of right hip joint. PW-4 Ashok Kumar injured has stated that on 17.4.1996 he had gone for lunch on his motor cycle bearing No.CH-01A-2099. He was going from Winter Field towards Victory Tunnel, he saw one white van coming from Victory Tunnel side and must be in high speed and that is why all of a sudden, it came in front and hit him, he (witness) was on correct side. He sustained injuries, it was having speed of about 40 – 50 Km. PW-5 Nand Lal Constable has stated that on 17.4.1996 he was on duty at Winter Field, vehicle No.HP-02-2711 came from Victory Tunnel side on wrong side and hit motor cycle CH-01A-2099 which was going from Command side to Victory Tunnel side. The motor cycle rider sustained injuries in the accident. In cross-examination, he has stated that motorcycle was also in high speed. 5. PW-6 Balak Ram has stated that in the year 1996 he was manager in Bindu Raj Dharamsala. He was sitting in the verandah and was reading newspaper. On 17.4.1996 a maruti car in high speed struck against a motor cycle which was coming from opposite side. On hearing the sound of impact, he came down and saw that the car had dragged the motor cycle to about 10-15 feet. In cross-examination, he has stated that he saw the accident only when the vehicles had already struck each other. He could not say motor cycle came from which side. PW-7 Des Raj is a formal witness regarding recovery of documents of vehicle No.HP-02-2711. PW-8 Pyar Singh, Constable conducted the mechanical examination of the vehicles involved in the accident and proved report Ex.PW-8/A. 6. PW-4 Ashok Kumar injured has stated that the speed of the car must be high as it came all of a sudden in front and hit him. PW-5 Nand Lal, Constable has stated that motor cycle was also in high speed. PW-6 Balak Ram has stated that he was reading newspaper in the verandah, his attention was drawn by the impact of the accident, he came down and saw that the motor cycle rider had fallen. It means PW-5 is not an actual eye witness. He had seen the motor cycle rider fallen after the accident. The prosecution has not examined Roshan Lal complainant nor has proved the statement under Section 154 Cr.P.C. of Roshan Lal, similarly, F.I.R. and site plan have also not been proved. The prosecution has not examined the Investigating Officer which has deprived the respondent to put all relevant questions to the Investigating Officer. On behalf of the State, it has been stated that photographs Ex.PW-2/A, Ex.PW-2/B, Ex.PW-2/C and Ex.PW-2/D prove that the van was on wrong side. PW-5 has stated that after the accident, motor cycle went 6 – 7 feet in the air and then dropped 4 – 5 feet away. It means there was gap of at least 4- 5 feet between the van and the motor cycle immediately after the accident but photographs Ex.PW-2/C and Ex.PW-2/D do not show any gap in between the motor cycle and the van. The trend of cross-examination on behalf of the defence of PW-2 Santosh Kumar indicates that the position of vehicles involved in the accident was changed. In view of the statement of PW-5, no benefit can be given to the prosecution of the photographs Ex.PW-2/A, Ex.PW-2/B, Ex.PW-2/C and Ex.PW-2/D to show that the van was on the wrong side at the time of the accident. The learned Chief Judicial Magistrate has taken a possible view from the evidence on the record. The impugned judgment has not been shown to be perverse. It has not been pointed out that material evidence having bearing on the ultimate decision has been ignored by the learned Court below. There is no merit in the appeal which is accordingly dismissed. The bail bonds are discharged. April 17, 2009. ( Kuldip Singh ), (GR) Judge.