IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.Appeal 432 of 2001 Decided on 21.8.2008 State of H P …….Appellant Versus Mohan Lal ……. Respondent Coram: The Hon’ble Mr. Justice Surinder Singh.J. Whether approved for reporting ?1 . No. For the appellant : Mr. J.S.Guleria, Law Officer. For the Respondent Mr. Ramakant Sharma, Advocate. Surinder Singh, J. (oral) The respondent was tried and acquitted by the learned trial court for an offence punishable under section 279 of the Indian Penal Code. Thus, the State, felt aggrieved by the impugned judgment, passed in Cr. Case No. 6/2 of 2000 decided on 13.3.2001, as such filed the instant appeal. In brief, the facts giving rise to the present appeal are that on 30.9.1999 Joginder Singh (PW2) accompanied by Atar Singh (PW 4) were transporting ginger of PW3 Harish Chander on their four mules from village Koti Chabaha to local market at Sarahan. Around 4.30 p.m. when they reached near naina Tikkar on the motor-able road, H.R.T.C. Bus No.HP- 18-3522, which was being driven by the respondent allegedly struck from rear portion against one of mules, named ‘Lado’ which was ahead of all. 1 Whether the reporters of Local Papers may be allowed to see the judgment ? yes. 2 Consequently, the mule sustained sprain in the right leg. Respondent did not stop the bus and drove it off towards Sarahan bus stand. The matter was reported to the police at 5.30 p.m. on the same day by PW2 Joginder Singh, owner of the mule. FIR Ex.PW2/A was lodged. The veterinary Doctor Anil Kapoor (PW5) medically examined the mule on 1-10-1999 and issued the certificate Ex.PW5/B. Thereafter, the mule was re-examined on 27.10.1999 and found some improvement, the Doctor issued another certificate Ex.PW5/C. Police prepared the site plan of the place of incident and the bus was taken into possession. The mule was handed over, on sapurdari, to Joginder Singh vide memo Ex.PW2/B. Police also got the vehicle examined from the motor mechanic. The abstracts of duty register Ex.PW6/A and Ex.PW6/B were also taken into possession. By the police. Police also took photographs of the spot. After recording statements of the witnesses and completing the investigation, a challan was presented in the court for trial of the respondent. Notice of accusation was put to the respondent, under the aforesaid section, to which he pleaded not guilty and claimed trial. Prosecution examined its witnesses. Respondent was also examined, under section 313 of the Code of Criminal Procedure. He denied the circumstances, appearing against him. However, he did not lead any evidence in his defence. At the end of the trial, the respondent was acquitted of the offence charged, on the ground that the evidence of the prosecution is contradictory, the mules were found to be unattended, which might have got frightened. The version as to how the mule came in contact with the bus is not borne out from the record and the rash and negligent driving of 3 the bus was not proved and the Doctor opined that due to imbalance and heavy load mule might have sustained the sprain. Shri Guleria, learned Law Officer has forcefully argued that the statements of the prosecution witnesses clearly prove the fact of rash and negligent driving of the bus by the respondent on a public road, which endangered the human life but caused injury to the mule. Since the learned trial court wrongly disbelieved the prosecution witnesses, there are grounds to convert the acquittal into conviction. Shri Ramakant Sharma, learned counsel for the respondent has supported the findings, arrived at by the learned trial court, for acquitting the respondent. I have given my thoughtful consideration to the rival contentions of the learned counsel for the parties and have carefully scanned and re-appraised the evidence on record. Out of the four, two mules belonged to Joginder Singh (PW2) and other two to Atar Singh (PW4). The mules were loaded with ginger and were going to Sarhan market. The HRTC bus was also being driven in the same direction. If the prosecution version is believed the mules were on the left side of the road and the vehicle in question was also being driven on the left side of the road. As per the site plan Ex.PW7/A there was a inner side sharp curve on the road. The rear position of the bus allegedly hit the mule which was ahead of all. PW3 Harish Chander, the owner of the ginger, was also accompanying Joginder Singh and Atar Singh. He has stated that none of them had seen the mule coming in contact with the bus in question but they believed that some portion of the bus might have touched against the mule, which caused push, whereas according to PW2 the bus came in 4 contact with the load of the mule, thus it moved towards the side and fell down. Then, he stated that the bus struck against the right toe of the mule which fact is unbelievable and is palpably wrong because practically in no case the rear portion of the bus could come in contact with the toe of a loaded mule which extends to both the sides of the mule. However, his version is contrary to the version given by Atar Singh aforesaid. According to PW5 Dr. Anil Kapoor, had the bus hit the mule and fallen down there must have been corresponding injuries but he completely over-ruled the possibility of the mule fallen down as stated by the complainant. However, he was firm in his statement that there was only a sprain in the right rear foot of the mule and further stated that such type of injury could be caused due to imbalance under a heavy load. Further PW3 Harish Chander stated that when they reached Sarahan, they met the respondent and after three hours the case was registered, whereas the FIR was registered at 5.30 p.m. exactly after one hour of the alleged accident in Police Station, Sarahan. If his version is believed then it cannot be said that the incident in question had taken place at 4.30 p.m. In that event the involvement of the bus in question is completely ruled out. Thus, this circumstance makes the story of the prosecution highly improbable. Except the above contradictory evidence, there is nothing on record to substantiate the prosecution case. Therefore, on scrutiny and reappraisal of the evidence, on record, for the reasons stated above, I do not find that the findings of acquittal, recorded by the learned trial Magistrate, are not borne out from the record. Thus it requires no interference. Accordingly, the appeal sans merit and is dismissed. Send down the records. August 21, 2008 (Surinder Singh),J. (D) 5