IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.540 of 2000 Reserved on:26.02.2008. Decided on: February 27, 2008. State of H.P. …Appellant. VERSUS Sanjiv Kumar @ Gunja ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant: Mr A.K.Bansal, Addl. A.G. For the respondent: Mr Deepak Kaushal, Advocate. Kuldip Singh, Judge The State has filed this appeal against the judgment dated 18.5.1999 passed by learned Chief Judicial Magistrate, Sirmaur District at Nahan, in Criminal case No.9/2 of 1997 acquitting the respondent under Sections 279, 337 and 338 I.P.C. 2. The prosecution case, in brief, is that PW-4 Susheel Kumar informed Police Post, Gunnughat vide report Ext.PB that on 12.9.1996 at about 7.45 A.M. an accident has taken place near turpentine factory, Nahan between buses bearing registration No.HP- 14-1397and HP-17-4100. On this, statement of PW-3 Ram Chander, driver of bus No.HP-17-4100 was recorded under Section 154 Whether the reporters of the local papers maybe allowed to see the judgment? Yes …2… Cr.P.C. He alleged that he stopped the bus at about 7.45 A.M. near Banog for school boys and he just started the bus in the meantime another bus bearing registration No.HP-14-1397 which was being driven in rash and negligent manner by respondent came from Nahan side and on wrong side, struck with the right side of the bus of the complainant. The respondent was trying to overtake another bus of HRTC. He has alleged that in the accident he and other passengers of the bus sustained injuries. On the basis of statement Ext.PW-3/A of PW-3 Ram Chander, F.I.R. Ext.PE came to be registered at Police Station, Sadar Nahan under Sections 279, 337 IPC against the respondent. PW-3 Ram Chander was medically examined vide MLC Ext.PB. Nathu Ram PW-8, who was travelling in the bus No.1397, was also medically examined vide MLC Ext.PA. The respondent also sustained injuries and he was medically examined vide MLC Ext.PC. After completion of the investigation, challan was put against the respondent in the Court under Sections 279, 337 and 338 IPC and accordingly notice of accusation was put to him to which he pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses. The statement of respondent was recorded under Section 313 Cr.P.C. in which he pleaded his innocence. He attributed accident on the part of driver of the bus No.HP-17-4100. He did not examine any witness in defence. The learned Chief Judicial Magistrate acquitted the respondent, as noticed above. 3. I have heard learned Additional Advocate General for the State, Mr Deepak Kaushal, learned counsel for the respondent and …3… gone through the record. The learned Additional Advocate General has submitted that the prosecution has proved the case against the respondent beyond reasonable doubt. The learned Chief Judicial Magistrate has not properly appreciated the material on record and has erred in acquitting the respondent. Mr.Deepak Kaushal, learned counsel for the respondent, has submitted that learned Chief Judicial Magistrate has rightly appreciated the material on record. The prosecution has miserably failed to prove the case against the respondent. The question in this appeal is rash and negligent driving on the part of the respondent for causing the accident. 4. PW-1 Dr.Vani Aggarwal and PW-2 Dr.S.Gandhi are formal witnesses as far as the rash and negligent driving on the part of respondent is concerned. PW-3 Ram Chander has stated that bus bearing registration No.HP-14-1397 was being driven by respondent in high speed and on wrong side and the bus of respondent struck against his vehicle. He sustained injuries in the accident. In cross examination, he has stated that there were about 40 – 42 passengers in his bus but he is not aware how many passengers were in the other bus. He denied the suggestion that there is a blind curve on the spot. He has also denied that the road is ascending at the place of accident. PW-4 Susheel Kumar has stated that he was going in another HRTC bus from Dehradun to Shimla and he saw the stationary bus of the respondent at the place of accident after the accident. In cross examination, he has also stated that the road is a little bit ascending at the place of accident and there is a blind curve …4… also. There was another vehicle in between the vehicle of the respondent and the vehicle in which he was travelling. PW-4 Susheel Kumar has contradicted PW-3 Ram Chander regarding the blind curve at the place of accident and ascending road at the place of accident. PW-8 Nathu Ram has also stated that there is a blind curve at the place of accident. He did not see the bus coming from hill side before the accident. He has stated that respondent was driving the vehicle on his side in contradiction to the statement of PW-3 Ram Chander that respondent was driving the vehicle on the wrong side. 5. From the prosecution evidence one thing is clear that bus bearing registration No.HP-17-4100 was coming down hill and bus bearing registration No.HP-14-1397 was going uphill. There is blind curve at the place of accident. PW-8 has stated that respondent was driving the vehicle on his side. PW-8 claims that he was travelling in bus No.1397 but he had not seen the bus which was coming down hill before the accident. In other words, PW-8 has not seen the position, location, speed etc. of the bus which was being driven by PW-3 Ram Chander. PW-8 has admitted that respondent was driving the bus on his side and, therefore, there is no question of respondent striking against the bus which was coming down hill even if it is assumed that respondent was driving his bus in high speed. PW-4 is not an eye-witness. The learned Chief Judicial Magistrate has rightly appreciated the material on record and has rightly concluded that the prosecution has failed to prove its case against the respondent. The inference drawn by the Court below is possible from …5… the evidence which has been led by the prosecution. The prosecution has failed to prove its case beyond reasonable doubt. No case for interference has been made out. Hence, the appeal fails and is accordingly dismissed. Bail bonds, furnished by the respondent, are discharged. February 27, 2008. ( Kuldip Singh ), J. (soni)