IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 528 of 2003 Date of decision: 06.07.2010 State of H.P. ... Appellant Versus Tek Chand @ Mintta … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vikas Rathore, Deputy Advocate General. For the respondents: Mr. Neeraj Gupta, Advocate. V.K. Ahuja , J. (Oral): This is an appeal filed by the State of H.P. under Section 378 Cr.P.C. against the judgment of the Court of learned Chief Judicial Magistrate, Una, dated 7.8.2003, vide which the respondent was acquitted of the notice of accusation put up to him for the offence punishable under Sections 279, 304-A and 201 I.P.C. and under Section 196 of the Motor Vehicles Act. 2. Briefly stated, the facts of the case are that on 9.10.2000, at about 9.45 P.M., a report was lodged with the police by Tirath Ram that at about 8.15 P.M., he was present in his house alongwith his family . One Yog Raj came to his house and informed him that his son Sanjeev Kumar was lying unconscious on the road near Khanpur and his scooter was also lying by his side. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Complainant Tirath Ram proceeded to the spot alongwith said Yog Raj and Surjit Singh and found that the scooter was lying on one side of the road in a broken condition and his son Sanjeev was also lying in a unconscious state. They took Sanjeev Kumar to District Hospital, Una, where they learnt that he has already died. The complainant alleged that someone had hit the vehicle rashly and negligent and had ran away from the spot leading to the death of Sanjeev Kumar, his son. On this report, a case was registered and the investigation was carried out by the police. After investigation, the challan was filed by the police under the above mentioned Sections and the respondent was tried by the learned trial Court, leading to his acquittal. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. On appraisal of the statement of complainant Tirath Ram as PW-1, it is clear from the report lodged by him as well as the report made to him by one Yog Raj. Neither the said Yog Raj had also seen the occurrence nor he had seen the occurrence and he had no where lodged that he learnt about the occurrence from any of the witnesses. Therefore, his statement is not material. The said witness Yog Raj was not examined by the prosecution. The prosecution had examined two witnesses as eye witnesses, whose statements are to be appreciated with more care and caution. 5. PW-2 Kushal Chand has stated that he does not remember the date, he was coming back on his cycle, at about 7.30 P.M. and he saw the respondent going on a tractor from Santoshgarh side at a speed. From the other side Sanjeev came on the scooter and the 3 tractor hit the scooterist, who suffered injuries and fell down on one side. The respondent parked the scooter on one side and took away the tractor and ran away. He afterwards learnt that the injured was Sanjeev son of Tirath Ram. In cross-examination, he has stated that this statement was recorded on the 3rd day , but the statement proved in evidence as Mark D-1 and Ext. PW9/E shows that it was recorded on 15.10.2000. The occurrence had taken place on 9.10.2000 and it was recorded by the Investigating Officer on the 6th day and not on the 3rd day, as stated by this witness. He was also confronted with the said statement, in which he had not alleged that the tractor was coming from Santoshgarh side and the scooter was coming from the opposite side. He also stated that he had stated so in his police report that the scooter was driven by Sanjeev son of Tirath Ram and he was confronted with his previous statement wherein it was not so recorded. In further cross-examination, he stated that he told about the occurrence on the next day itself to Tirath Ram and a police constable was also present at that time. But it is surprising that he did not volunteer to make statement to the police or the police did not record his statement on the next day itself, but it was recorded on the 5th/6th day itself, which makes his version doubtful. In his statement to the police, he had mentioned that Lekh Ram and Shyam Lal came to the spot and he was confronted with his statement where there is no reference to this effect. In his statement he has also stated that he had given the tractor number in his statement to the police, with which he was confronted wherein it is not so recorded. His conduct does not appear to be normal when he did not report the matter to the police or volunteer to make statement and the fact that his 4 statement was recorded after 5 days, makes the version given by him doubtful. 6. PW-6 Sham Lal is the other eye witness, who has been examined by the prosecution, has stated he was coming on cycle at about 7.30 P.M. and a tractor came from Una side at a fast speed being driven by the respondent, which struck with the scooterist at some distance. The scooterist fell down. The respondent took the tractor in side a gate. He stated that other persons had also gathered at the spot. He admitted that his statement was recorded on the 6th day. A perusal of Ext.PW9/A, which was recorded on 19.9.2000, that is, about 9th day of the occurrence, which also makes his version doubtful and cannot be relied upon fully. He stated that he learnt about the injured person after 4-5 days, but thereafter also, he did not go to the Police Chowki. He further stated that he was knowing Lekh Ram, Ram Asra, Khushal Chand and Sukhdev Raj of Khanpur. Lekh Ram was working with him in PWD, while Kushal Chand was not working in PWD, but he was knowing him for the last 20-25 years. However, in cross-examination, he had clearly stated that till the time he remained at the spot, no person came to the spot. This clearly shows that he has ruled out the possibility of the accident having been witnessed by PW-2 Kushal Chand. He is specific that he has not seen PW-2 at the spot, which clearly shows that either of the two witnesses have deposited falsely. He has also stated that he had informed the police in his statement that after the accident, the respondent took the tractor inside the gate and he was confronted with his police statement, wherein it is not so recorded. He had also stated that he had told the police that other persons including women had 5 gathered there and he offered water to the injured, which does not find mention in the police statement, with which he was confronted. The statements of both the principal witnesses were not recorded immediately after the occurrence and does not prove the presence of either of the witnesses and late recording of the statement of both these witnesses make their versions doubtful. 7. The third witness, namely, Lekh Raj, whose reference also comes in the testimony of a witness, was examined as PW-5 and turned hostile and had not supported the prosecution story. 8. From the above discussion, it is clear that there is no specific evidence on record to prove that the respondent was driving the vehicle rashly or negligently on that day, which met with an accident. The mere fact that the accident has taken place and a person has died does not prove that the accident was the result of the rash or negligent driving of the accused, which fact has to be proved from the cogent and reliable evidence, which was lacking in the present case. Therefore, the final conclusion drawn by the learned trial Court leading to the acquittal of the respondent cannot be termed as perverse, calling for an interference by this Court. 9. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the appellant, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. ( V.K. Ahuja ), July 06, 2010 Judge (BSS) 6