IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.133 of 2002 Date of decision: 11. 12.2008 State of H.P. Appellant Versus Jagdish Chand Respondent Coram The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting1? No For the appellant: Ms. Subh Mahajan, Dy. Advocate General. For the respondent: Mr. Sanjeev Kuthiala, Advocate. V.K.Ahuja, J (oral). This is an appeal filed by the appellant against the judgment of the Court of ld. Judicial Magistrate, Ist Class, Kasauli at Solan dated 25.7.2001 vide which the respondent was acquitted of the charge framed against him under Sections 279,337,338 and 201 IPC. Briefly stated, the facts of the case are that on receipt of an information regarding the accident, a police officer from Police Station, Parwanu went to PGI, Chandigarh on 1.11.1994 and recorded the statement of complainant Diwakar Malhotra Ex.PW- 2/A. In the said statement, the complainant had alleged that on 31.10.1994 he alongwith his wife, was going towards Solan. The complainant was driving the Scooter and his wife was the pillion rider. At about 6.30 p.m. when they reached near Petrol Pump, Parwanu, Sector VI, a Maruti Van blue in color, came with fast speed and struck with his Motor Cycle and he along with his wife fell down on the road and they both suffered injuries on their legs Whether the reporters of Local Papers may be allowed to see the Judgment? Yes, and the driver of the Maruti Van ran away from the spot. He alleged that some person took them in his Car to Parwanu and left them at their house and from their his father took them to the Hospital at Chandigarh from where they were referred to PGI, Chandigarh and his leg was plastered. On this statement, which was sent to the Police Station, Parwanu, a case was registered and after investigation, the challan was filed as against the respondent, who was tried by the learned trial Court leading to his acquittal. From a perusal of the record of the trial Court, it is clear that to substantiate its case, the prosecution has examined 12 witnesses. The statement of the complainant and his wife can be said to be most material. The complainant had stepped into the witness box as PW-2 and has stated that when he along with his wife were crossing the Petrol Pump, Parwanu on Motor Cycle, a Maruti Van, blue in color, came from the other side at a fast speed and struck his motor cycle and he along with his wife fell on the road and they suffered injuries and the respondent ran away with the Van at that time. He stated that one person took them in his Car to Panchkula and to their house and then to the Hospital at Chandigarh from where he was referred to PGI, Chandigarh. A similar statement was made by his wife PW-3 Vichitra Malhotra. In their statement, neither the complainant nor his wife has stated at any time that that on the way, they stooped at the Police Station to give any information of the accident to the Police or that they lodged any report with the Police Station. On the other hand, the Investigating Officer PW-11 Head Constable Jai Gopal has stated that he received a log on Police Station from Kalka on which the SHO directed him to go to PGI, Chandigarh. He went there and recorded the statement of the complainant Ex. PW-2/A. However, no such log has been produced from the record of the Police about the receipt of any information in regard to the accident. It may be that some passer-by might have informed the Police about the accident. A copy of the register of the daily diary or the said log received, if any, could have been produced on record which could give credence to the version of PW-2. Apart from the above, the trial Court had referred to the medical slips Mark ‘A’ and ‘B’ which were not proved in evidence and the trial Court drew some inference which was uncalled for since these medical slips were not proved in accordance with law from the testimony of any witness and PW-12 Dr. Kedar Deogaonkar, in whose statement these were marked had not been proved them. Apart from the above, it is in the statement of PW-2 Diwaker Malhotra that he was taken to the spot on 2.11.1994 and there he identified the Maruti Van and the driver of the Van namely the respondent, herein but the on the other hand the statement of his wife PW-3 Vichitra Malhotra shows that they remained admitted in the Hospital at PGI, Chandigarh for 3-4 days and her husband was discharged a day earlier. It appears that they were admitted on 31.10.1994 and remained their upto 3-4 days but there is nothing on record to show that the complainant was discharged on 2nd November which is the date when he was present at the spot and had identified the van and the driver. PW-11 HC Jai Gopal has specifically stated that Diwaker Malhotra was not present at the spot on that that date i.e.2.11.1994 when he prepared the site plan Ex.PW-11/A. There is nothing on record to show that the Van was taken in possession by holding that it was taken to the spot and got identified from the complainant PW-2 Diwaker Malhotra except the statement of PW-11 HC Jai Gopal that the Van was taken in possession from the barrier about which there was no specific evidence as to when it was taken in possession. Apart from the above, the prosecution has examined PW-1 Kamal Kumar of Traffic Police, Solan who produced copy of the entries of the barrier but the said copy cannot be looked into since the original Register was not produced. The prosecution has also tried to produce some evidence i.e. the respondent has given the bumper for repairs and the same was taken in possession on 9.11.1994 as per the testimony of PW-9 Sadik Masiha who has stated that some bumper was given to him but vehicle number has not been mentioned and the same was mechanically examined but the said bumper was not produced during the trial of the case. There is nothing on the record to show as to who gave the information about this bumper to the Investigating Officer that it was given by the respondent. It has come on record that the father of the complainant PW-4 Shri Krishan Lal Malhotra is a dealer in Spare Parts and the possibility that the bumper was planted by him, cannot be ruled out. Further, there is nothing in the evidence in this regard. It looks improbable that the complainant and his wife were able to identify the Van and its number as neither the complainant nor his wife has specifically stated that at the relevant time they had noted down the number of the van. In view of the above discussion, the final conclusion recorded by the learned trial Court that the prosecution had failed to prove its case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged. 11th December, 2008 (V.K.Ahuja),J. (sds)