IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 222 of 2003 Date of decision: 25.08.2010 State of H.P. ... Appellant Versus Ashok Kumar … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Ajay Dhiman, 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 Additional Chief Judicial Magistrate, Amb, dated 5.8.2002, vide which the respondent was acquitted of the notice of accusations put up to him for offences punishable under Sections 279, 304-A and 201 I.P.C. 2. Briefly stated, the facts of the case are that on 9.6.2001, at about 10.30 A.M., statement of one Pritam Chand under Section 154 Cr.P.C. was recorded by a Police Officer, in which he alleged that he is running a shop at Saloi. At about 9.00 A.M., he was standing in front of his shop, a private bus came from Amb and one person got down and after crossing the bus, he was standing on the right side. It was alleged that driver of the bus started the bus and 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 hit the said person, who fell down on the road and suffered injuries. The bus driver did not stop the bus at the spot. The injured was brought to PHC Amb, where he was declared dead and he learnt about the name of the driver as Ashok Kumar. On the basis of the said statement, a case was registered and after investigation, the challan was filed before the learned trial Court, who tried the respondent for the offences as detailed above, 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 record of the case, it is clear that the prosecution case mainly rests upon the statement of complainant Pritam Chand, who was examined as PW-7 and one PW-6 Smt. Sudesh Rani, examined as an eye witness and statement of DW-1 Nikka Ram examined by the accused in his defence. The statements of these witnesses need to be carefully scrutinized to arrive at a correct conclusion. 5. A perusal of the statement of PW-7 Pritam Chand, shows that had lodged the report and on the basis of his statement under Section 154 Cr.P.C., a case was registered. He stated that he was standing outside his shop. One private bus came and Garib Dass got down from the bus and stood on the right side. The bus was being driven by Ashok Kumar, respondent and he struck the bus against Garib Dass, who suffered injuries. He further stated that at that time he was weighing articles in his shop and had only seen Garib Dass lying on the road. He was declared as hostile and was allowed to be cross-examined, but nothing could be brought on record to show any reasons for his false deposition, if any. In the cross-examination, he is 3 emphatic that he had seen Garib Dass only lying on the road side. He also named some of the passengers standing at the spot at that time. He stated that his shop is at a distance of 150 yards from the place of accident. He also stated that he had not seen the respondent driving the bus, but later on learnt about the name of driver as Ashok Kumar, respondent. 6. The other material witness is PW-6 Smt. Sudesh Rani, who had stated that she was sitting outside her shop at 9.00 A.M. A private bus came at a fast speed and one Garib Dass, who got down from the bus, was standing on the other side of the road. The bus was started by the respondent suddenly and struck against Garib Dass. She only stated that the accident took place due to wrongful act of the respondent. In cross-examaination, she admitted that the shop belongs to her husband and normally he sits in the shop. However, she stated that she was sitting in the shop. She denied the suggestion that she was busy in sending her children to the school at the relevant time and was not sitting in the shop. She denied the suggestion that the occurrence did not take place in her presence. She admitted that one Achhar Singh is her Jeth (elder brother of her husband) and Garib Dass was father-in-law of Achhar Singh. She admitted that she had been visiting the house of Garib Dass being their relative. However, she denied that she was deposing falsely because of this relationship. She also admitted that at that time many persons were standing at the spot. 7. The accused has also examined DW-1 Nikka Ram, whose presence has been admitted specifically by PW-7 Pritam Chand in his statement and though PW-6 Smt. Sudesh Rani had not specifically 4 admitted the presence of this witness on the spot, but she has stated that many persons were standing on the spot. Therefore, the presence of DW-1 Nikka Ram at the spot stands established from the testimony of PW-7 Pritam Chand. DW-1 Nikka Ram has stated that a bus came from wrong side. He was standing on the road and near the shop of Pritam Chand to board the bus. One old person got down from the bus and was standing on the corner of the road. One jeep came from Amb side and crossed the bus and while crossing it struck with an old person, who fell down. Pritam Chand was weighing articles in his shop at that time, who came out on hearing the noise. He also stated that shop of Balwinder was closed at that time, who is the husband of PW-6 Smt. Sudesh Rani. He further stated that the bus had gone and they picked up the old man and took him to hospital. He had also stated that the jeep had crossed at a fast speed, but he could not read its number. In cross-examination, he denied the suggestion that the accident took place due to rash and negligent driving of the respondent. However, nothing was brought on record to show that he had any interestedness to depose falsely in favour of the respondent. His statement was not shattered in cross-examination to hold that he has deposed falsely. 8. From a perusal of the above evidence, it is clear that both the eye witnesses mentioned above have not stated the manner in which the accident took place or said anything about the speed so that an inference could be drawn that the respondent was driving the vehicle rashly or negligently. It is also not clear from the evidence as to the manner in which the accident took place since as per the evidence the deceased had already crossed the road and was standing by the side of 5 the road on the other side. To prove the charge under Section 304-A, only it is not necessary to prove that a death has taken place and the respondent was driving the vehicle, but some positive evidence has to be led to prove the rash or negligent act of the driver of the vehicle in question. The doctrine of res ipso loquitur does not apply in a criminal case and no inference can be drawn about the rash or negligent driving only from the fact that a man died in a road accident. There is no positive evidence on the record from the statements of both the witnesses as to the manner in which the accident took place. The only independent witness PW-7 had not supported the prosecution story, while the presence of PW-6 appears to be doubtful at the spot, who is closely related to the deceased and, therefore, possibility of her deposing falsely cannot be relied out. The statement of DW-1 Nikka Ram supports the case of the accused whose presence has not been disputed at the spot nor any interestedness proved on record. The statement of DW-1 had also to be considered on the same level as statement of the prosecution witnesses. The driver had admitted that he was driving the bus at the relevant time in his statement under Section 313 Cr.P.C., but has not admitted that the vehicle had struck with the deceased or the deceased had suffered injuries due to his rash or negligent driving. 9. From the above discussion of the evidence, it is clear that the final verdict recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt, cannot be termed as perverse calling for an interference by this Court. 6 10. 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 ), August 25, 2010 Judge (BSS) 7