IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 86 of 1996. Decided on: 23rd February, 2010. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Anil Singh ……..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. J.S. Rana, Assistant Advocate General. For the respondent : Nemo. ____________________________________________________ SURINDER SINGH, J (Oral). The State has challenged the acquittal of the respondent recorded by the learned trial Court for the offences under Sections 279 and 304-A of the Indian Penal Code. In short, the prosecution case can be summed up thus. On 2nd September, 1989 at about 9.30 PM at a place known as Puhara in District Kangra, the respondent was driving taxi bearing registration No.HPY-355 and PW-4 Parmeshwari Dass was a passenger therein. When the said taxi reached near Shahpur, a Gypsy was ahead of them. The respondent took the pass and in that process run over one Budhi Ram, resident of village Rait (Kangra) and the taxi aforesaid struck against a culvert. Said Budhi Ram died on the spot. A case was registered in Police Station, Shahpur. The police visited the spot, prepared the site plan and took the dead body to the hospital for post-mortem. After recording the statements of the witnesses and on completing the Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - challan, it was presented in the Court for the trial of the respondent under the aforesaid Sections. The respondent was put on trial and was finally acquitted by the learned trial Court on the ground that the prosecution could not prove rash and negligent driving of the respondent in causing the said accident, which has been assailed in this appeal. Mr. J.S. Rana, learned Assistant Advocate General, vehemently argued that the statement of PW-4 Parmeshwari Dass coupled with the statement of the Investigating Officer, who prepared the site plan, proves the case against the respondent for the offences charged. PW-4 Parmeshwari Dass stated that at about 9.30 PM on the day of alleged accident when they reached near Shahpur a Gypsy was ahead of them. The respondent sought the pass from the Gypsy driver. He gave the signal to cross him. In that process, the Gypsy driver brought the Gypsy towards the taxi on the road, suddenly a scooterist came from the opposite side and in order to avoid the accident the respondent took taxi in question to another side and in the meantime said Budhi Ram darted against the taxi and sustained injuries. He categorically admitted in his cross-examination that when the taxi in question was in the process of crossing the Gypsy the deceased suddenly hit against it. Investigating Officer PW-8 Head Constable Nek Ram reached the spot when the accident was reported. He prepared the site plan of the place of alleged accident. The photographs were also taken, which show the position of the vehicle after the accident. - 3 - Legally the onus is on the prosecution to prove the rash and negligent driving to sustain the conviction for the offences charged. There must be positive proof that the rash and negligent act of the respondent-accused was proximate cause. If ingredients of rash and negligent act are established only then the onus will shift on the respondent to prove the due care and caution. It is also well settled by now that the speed is no criteria to prove rash and negligent act. In the present case, the prosecution has failed to prove rash and negligent act to prove the charges against the respondent and the learned trial Court has taken note of the statement of PW-4 Parmeshwari Dass, the sole eye witness and rightly acquitted the respondent by giving him the benefit of doubt on the strength of the evidence on record. Therefore, in my opinion, the findings of acquittal recorded by the learned trial Court are borne out from the record. There is no perversity in the said findings, as such, the appeal is without any merit and the same is dismissed. The bail bonds furnished by the respondent shall stand discharged forthwith. Send down the record. February 23, 2010. (Surinder Singh),J. (rc)