IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 518 of 2004. Date of Decision: 31st May, 2011. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Shyam Lal …..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: Mr. T.S. Chauhan, Advocate. ____________________________________________________ SURINDER SINGH, J. (Oral) The learned trial Court vide its judgment dated 6th September, 2002, passed in Criminal Case No.92-I of 2001, convicted the respondent and sentenced him to undergo imprisonment for the offences mentioned hereunder: Offence under Section. Sentence 279 I.P.C. Rigorous imprisonment for six months and fine of `1,000/- and in default of payment of fine to further undergo simple imprisonment for one month. 337 I.P.C. Rigorous imprisonment for six months Whether reporters of the Local papers are allowed to see the judgment? - 2 - and fine of ` 500/- and in default of payment of fine to further undergo simple imprisonment for one month. 304-A I.P.C. Rigorous imprisonment for one year and fine of `2,000/- and in default of payment of fine to further undergo simple imprisonment for one month. All the sentences were ordered to run concurrently. 2. Feeling aggrieved and dissatisfied with the judgment of conviction and sentence, the respondent filed an appeal before the Court of Sessions. Vide its judgment dated 12th May, 2004, the appeal filed by the respondent was allowed and his conviction and sentence was set aside on the grounds that there are contradictions in the statements of PW2 Dinesh Kumar and PW8 Ranjit Singh and also relying upon Rapat Ext.PW5/A recorded on the telephonic message of PW2 Dinesh Kumar to the effect that the marble-sheets and chips had fallen on the labourers engaged in unloading the same. 3. The State felt dissatisfied by the impugned judgment of acquittal, hence the present appeal. 4. Shri J.S. Rana, learned Assistant Advocate General, for the State vehemently argued that the first appellate Court did not appreciate the evidence of the prosecution in the right perspective and further - 3 - conveniently brushed aside the statement of PW2 Dinesh Kumar, who was an eye witness of the alleged accident and also that in his statement under Section 313 of the Code of Criminal Procedure the respondent has admitted that the labourers were engaged in unloading the truck. Since there was no due care and caution adopted by the respondent to avert the accident, the judgment of acquittal is perverse. 5. On the other hand, Shri T.S. Chauhan, learned Counsel for the respondent, forcefully argued that the prosecution evidence is lacking the ingredients of rash and negligent act of driving by the respondent. There is also no evidence to the effect that the respondent had the knowledge that the injured-labourers were present in the backside of the vehicle when he had just started the engine of the truck. 6. I have given due consideration to the rival contentions of the learned Counsel for the parties and have carefully and cautiously gone through the evidence on record and I find that the statement of PW2 Dinesh Kumar is contrary to the Rapat Ext.PW5/A and also to the statement of PW8 Ranjit Singh. 7. According to PW2 Dinesh Kumar, he had engaged the truck in question to transport the marble from Chandigarh, which was to be unloaded at two places - 4 - at Barsar. Further, he stated that some marble-sheets were unloaded at one place, thereafter the truck was parked near his shop to unload the remaining sheets of the marble and chips. When the truck was parked near his shop, the labourers were engaged for unloading the marble-sheets, but the driver without notice to them started the truck and put in forward and then in backward motion with the result marble-sheets fell on Alam Singh and his brother PW8 Ranjit Singh. He and Ranjit Singh sustained minor injuries, whereas Alam Singh got buried under the marble-sheets which were broken to take out injured Alam Singh. Thereafter he was removed to the Hospital from where he was referred for further management of his injuries to Chandigarh or I.G.M.C., Shimla, but on the way he succumbed to his injuries and ultimately died. 8. PW8 Ranjit Singh has given another version. According to him, in order to give a pass to the car the respondent had started the vehicle with the result the marble-sheets fell on him and his brother Alam Singh got seriously injured. Only these two are the relevant witnesses about the occurrence, but none of them stated that the accused-driver was in knew of it that the deceased was engaged in body of the truck when he had put the truck in motion. - 5 - 9. It is well settled that the foundation of accusation under Sections 279 and 304-A of the Indian Penal Code is on the evidence of causing the death by negligence and rashness. The prosecution is obliged to prove that there was an element of rashness or negligence. Even if the prosecution version, in the instant case, is accepted on its face value, in my opinion, there is no evidence led to prove the rash or negligent act of the respondent for the reasons that none of the witnesses stated that the driver of the vehicle, i.e., the respondent was having the knowledge that at the relevant time the labourers, including the deceased were in the vehicle engaged in unloading the marble-sheets. That being the position, the impugned judgment of acquittal passed by the learned Additional Sessions Judge (Fast Track Court), Hamirpur, cannot be interfered with. As such, the appeal sans merit and is accordingly dismissed. 10. The respondent is discharged of his bail bonds entered upon by him at any stage during the proceedings of this case. May 30, 2011. (Surinder Singh), J. (rc)