HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A. No. : 336 of 1996 Reserved on: 1.4.2010 Decided on: 23.4.2010 State of H.P. ……… Appellant. Versus Mohinder Kumar ………Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? No. For the Appellant: Mr.Vikas Rathour, Deputy Advocate General. For the respondent: Mr.Rakesh Jaswal, Advocate. V.K. Ahuja, J.: This is an appeal filed by the State of H.P. under Section 378 of the Cr.P.C. against the judgment of the learned Sub Divisional Judicial Magistrate, Jogindernagar, District Mandi, H.P., vide which the respondent was acquitted of the notice of accusation put up against him for the offences punishable under Sections 279 and 304-A of the IPC. Briefly stated the facts of the case are that on 3.12.1991, at 2.30 p.m., SHO Police Station, Jogindernagar recorded a statement of one Chuni Lal under Section 154 of the Cr.P.C. In the said statement, he alleged that he had taken his truck, had unloaded the sand and parked it on the road side. The Cleaner of the truck got down and was closing the dala of the truck. A truck bearing No.HID-485 came at a fast speed, struck against his standing truck, with ___________________________________________ Whether reporters of local newspapers may be allowed to see the judgment? Yes. - 2 - the result that the Cleaner Shyam Lal fell on the road and died at the spot. It was alleged that the accident had taken placed due to the rash or negligent driving of the driver of the said truck. On this statement, a case was registered and after investigation, the challan was filed before the learned trial Court. Notice of accusation was put up to the respondent, as detailed above, who was tried by the learned trial Court leading to his acquittal. I have heard the learned counsel for the parties and have gone through the record of the case. On appraisal of the record of the case, it is clear that the prosecution had examined 7 witnesses in all to substantiate their case. The statements of two eye witnesses examined in this case can be said to be most material. PW-2 is Chuni Lal, complainant, who made statement under Section 154 Cr.P.C., who was the driver of the truck which had been parked on the road side and with which the truck of the respondent had struck at the spot. He stated that Shyam Lal was Conductor with him, who was fixing the dala and the truck bearing No.HID-485 came from back side, struck against Shyam Lal and the truck standing there and his truck was pushed 4 feet ahead. He further stated that the truck was being driven by the respondent present in court. He did not state that the respondent was driving the truck rashly or negligently, but he only stated about the fact that this truck struck with his standing truck. In cross examination, he stated that he had seen the driver standing at the spot only but has not stated that when he was standing by the road side, he saw the accused driving the truck, which had struck - 3 - with his standing truck. He stated that the accused had run away from the spot. However, no questions were put to him by the learned Public Prosecutor as to how he learnt about the name of the accused, when he learnt about the name of the accused or that he apprehended the accused at the spot and handed over him to the police. His statement rather shows that the accused had run away from the spot and was not known to him earlier, but how he learnt about the name or when he identified him, it is difficult to conclude. He stated that the accused was not known to him and he had seen the accused today only after the date of accident, which clearly suggests that no identification parade of the accused was conducted or the accused was ever shown by the police to him during the investigation of the case. In his cross examination, he has clearly stated that he was not knowing the name of the accused and learnt his name three days after the lodging of the report. However, he did not state from whom he learnt about the name of the driver or how he ascertained the identity of the driver i.e. the respondent, who was allegedly driving the truck at the relevant time. A perusal of the statement of PW-2 Chuni Lal further shows that rather in cross examination he went to the extent of admitting that the brake of the truck of the accused had become hot, smoke was coming out and on the other side there was a Khad. The driver struck his truck with his standing truck, meaning thereby that he was giving an explanation that there was a mechanical defect in the truck being driven by the respondent and since there was a Khad on the other side, he had struck his truck with his standing - 4 - truck. In further cross examination, he stated that when he saw the truck of the respondent, the brakes were jammed that further corroborates the observation made above that he was giving a justification that the respondent was not rash or negligent in driving the vehicle. The other eye witness examined, namely, PW-3 Gurdial Singh, has stated that the truck was pushed by another truck, but he has neither identified the driver nor has been able to state the number of the truck. He has further stated that he is having a weak eye sight, meaning thereby that he had not witnessed accident in the manner in which it took place or by whom or the number of the truck. The third material witness can be said to be PW-7 Bheem Singh Rana, the then SHO, who recorded the statement of the complainant, Ext.PC, under Section 154 of the Cr.P.C. He admitted that the accused was not named in the statement. However, he stated that the name was told to him by the complainant PW-2 Chuni Lal within 3-4 hours, but PW-2 Chuni Lal has stated that he learnt the name of the respondent after 2-3 days. He stated that he had recorded the supplementary statement of the witness Chuni Lal on the same day which was not put up to PW-2 Chuni Lal in his statement nor it was proved in evidence. On the other hand, the respondent, in his defence, has got a supplementary statement proved as Ext.D-1. The statement was exhibited in the statement of PW-7 and a perusal of the same shows that it has been recorded by some other person and the date of recording this statement is 12.9.1992, though the date of occurrence is 3.12.1991. When this document was exhibited in - 5 - the statement of PW-7 SHO Bheem Singh Rana, it should have been objected to since he was not a writer of the said statement. However, it is clear that this statement also appears to have been recorded in the same FIR No.258/91, dated 3.12.1991, for which the accused was facing prosecution. A further perusal of the statement of PW-7 Bheem Singh Rana also shows that he stated nothing as to how he established the identity of the accused or arrested him, which should have been stated by him in his examination in chief itself. He also admitted that he did not take into possession the driving license of the accused, which was necessary and then he should have collected some evidence to show that the accused had been given the truck in question by its owner to be driven on the relevant day, which evidence is also lacking. The above discussion clearly leads to the inference that the investigation was not conducted in a proper manner and neither the identity of the respondent was established beyond reasonable doubt, nor the evidence established that the respondent was driving the truck rashly or negligently. It was the duty of the IO PW-7 Bheem Singh Rana to ensure that a person does not go scot-free since he had run away from the spot and the evidence should have been collected as against the respondent in which the police had failed. Therefore, the net conclusion drawn by the learned trial Court holding that the prosecution had failed to prove their case beyond all reasonable doubts cannot be said to be perverse calling for an interference by this Court. - 6 - In view of the above discussion, I hold that there is no merit in the appeal filed by the appellant, which his dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged. April 23, 2010. (V.K. Ahuja), (TILAK) Judge