IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.621 of 2002 Date of decision : December 14, 2009 State of H.P. …Appellant. Versus Gurvinder Kumar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : M/s V.D. Khidta & Sanjeev Mankotia, Advocates. Surjit Singh, J (Oral) State has appealed against the judgment, dated 1st May, 2002, of learned Additional Chief Judicial Magistrate, Paonta Sahib, whereby respondent Gurvinder Kumar, who was tried for offences, under Sections 279, 337, 338, 304-A of the Indian Penal Code and Section 182 of the Motor Vehicles Act, has been acquitted. 2. A report was lodged with the police by PW-1 Harjinder Kaur that on 21st February, 1999, around 9 a.m., she alongwith Jasvinder Singh, Harbinder Kaur, Pyar Kaur, Harjinder Kaur and Gurmeet Kaur was travelling by Tempo No.HP-50-0146 from Paonta Sahib to Bhagani Sahib, and around 9 a.m. when the Tempo reached near Bhungrani, Bus No.HP-18-3517 of Himachal Road Transport Corporation appeared from the opposite direction and the back side of the Whether reporters of the local papers may be allowed to see the judgment? …2… Tempo, she and other persons were travelling by, struck against the Bus, as a result of which all the persons on board the Tempo sustained injuries. Accident was alleged to have taken place on account of negligence and carelessness of the driver of the Tempo and the fast speed of the Tempo. Case was registered vide FIR Ex. PW-9/B. One of the passengers of the Tempo, namely Jasvinder Singh lateron died. All other passengers were got medically examined. Some of them had sustained simple injuries and others grievous injuries. Mechanical examination of the Tempo and the Bus was conducted. Brake system of the Tempo was found to be defective. No defect was found in the Bus. On completion of investigation, challan was filed. 3. Prosecution examined five passengers of the tempo, namely PW-1 Harjinder Kaur wife of Kamaljeet Singh, who lodged the FIR, PW-2 Harinder Kaur wife of Bhupender Singh, PW-3 Hardyal Singh, PW-4 Narender Kaur, PW-8 Amarjeet Kaur and the driver of the Bus, namely PW-7 Jagpal Singh, to prove the case. 4. All the passengers of the Tempo, named above, who were examined as witnesses of the prosecution, testified that the respondent was not to blame for the accident. Some of them stated that it was the driver of the Bus who was responsible for the accident, while others stated that they were not attentive and so they could not say how the accident took place. However, all of them denied that the Tempo was being driven fast. …3… 5. Bus driver, namely PW-7 Jagpal Singh, however, stated that the accident took place because the tempo was being driven at very fast speed. He admitted in the cross- examination that the tempo was on the ascent, while the Bus was on descent. Tempo was having nine or ten passengers and also it was moving upward. So, the tempo could not have been moving at high speed and, therefore, testimony of the occupants of the tempo that it was being driven at normal or slow speed cannot be disbelieved. 6. Learned Assistant Advocate General representing the appellant-State says that the site plan Ex. PW-9/C suggests that the Tempo was being driven on the wrong side. Submission cannot be accepted. Firstly, none of the witnesses stated that the Tempo was being driven on the wrong side. Also, no question was put to the respondent, when he was examined, under Section 313 of the Code of Criminal Procedure, that the tempo was being driven on the wrong side. Site plan also does not suggest that the tempo was in fact being driven on the wrong side. Total width of the road is 16 feet, as per site plan. Bus is shown to be stationary on the left hand side of its driver. There is one foot wide space of the road to the left of the Bus. That means the Bus, which is supposed to be not less than 8 feet wide, had covered about 9 feet width of the road, leaving only 7 feet on the other side for use by the vehicles appearing from the opposite direction. Width of the tempo is also supposed to be 5-6 feet. So, it …4… cannot be said that the tempo was being driven on the wrong side. For the foregoing reasons, appeal is dismissed. December 14, 2009(sd) ( Surjit Singh ), J.