IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 620 of 2001. Judgment reserved on: 4.9.2008 Date of decision: 8.9.2008 State of Himachal Pradesh ……...Appellant Vs. Dharam Singh …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Vikas Rathore, Deputy Advocate General. For the Respondent : S/Shri Harsh Khanna and Deepak Bhasin, Advocates. Kuldip Singh, Judge. The State has filed this appeal against the judgment dated 23.6.2001 passed by learned Judicial Magistrate Ist Class (II), Shimla in Cr. Case No.128/2 of 1998, acquitting the respondent under Sections 279, 337, 338 and 304-A IPC. 2. The prosecution case in brief is that on 14.2.1998 at about 4.10 PM deceased Santosh Kumar along with PW-14 Tej Ram were going to Dhalli riding on motorcycle No.HP-41-0778, when they reached near Himachal Filling Station, Dhalli, they were hit head on by Maruti Van No.HP-01-0142 which was coming from the opposite Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… side and was being driven by respondent rashly and negligently. Santosh Kumar and Tej Ram received injuries in the accident, injured Santosh Kumar was taken to Indira Gandhi Medical College Hospital, Shimla where he died on 16.2.1998. Tej Ram was also shifted to hospital on 15.2.1998. After the accident, information was given to police, on which head constable PW-11 Bhumi Chand along with constable Om Parkash and constable Kansi Ram reached the spot. After site inspection, Investigating Officer found that the accident had occurred due to rash and negligent driving of respondent Dharam Singh. Accordingly, he sent ruka Ex.PW-11/A, on which FIR Ex.PW- 11/B came to be registered. On conclusion of investigation, challan was presented in the Court and notice of accusation was put to respondent under Sections 279, 337, 338 and 304-A IPC, to which he pleaded not guilty and claimed trial. The prosecution has examined 14 witnesses and also produced documentary evidence. The statement of respondent was recorded under Section 313 Cr.P.C., in which he pleaded his innocence but did not lead any evidence in defence. On conclusion of trial, the learned Judicial Magistrate acquitted the respondent, hence this appeal. 3. I have heard Mr. Vikas Rathore, learned Dy. Advocate General for the State and Mr. Harsh Khanna, learned counsel for the respondent and gone through the record. On behalf of the appellant, it has been submitted that respondent on the relevant date and time was driving maruti van in rash and negligent manner and hit the motorcycle, as a result of which Santosh Kumar died and PW-14 …3… Tej Ram sustained injuries. The statement of PW-14 has been corroborated by PW-1 Tarlok Singh. The learned Judicial Magistrate has not properly appreciated the material on record and erred in acquitting the respondent. The learned counsel for the respondent while supporting the impugned judgment has submitted that deceased Santosh Kumar was driving the motorcycle in rash and negligent manner, which caused accident. PW-14 Tej Ram pillion rider of the motorcycle ran away from the spot. The learned trial Court has rightly appreciated the material on record and has committed no error in acquitting the respondent. 4. In order to appreciate the submissions of learned counsel for the parties, it is relevant to refer to prosecution evidence. PW-1 Tarlok Singh has stated that he had been working at petrol pump at Dhalli. The statement of PW-1 was recorded on 10.3.1999. He has further stated that last year at about 2.30/3.00 PM, one van and one motorcycle had collided, both were in high speed, van was coming from Shimla side. The motorcycle riders were taken to hospital. He did not support the prosecution and was declared hostile. He was cross-examined by the prosecution. In cross- examination he has stated that he does not know that the accident took place due to the negligence of the van driver. In the cross- examination conducted on behalf of the accused, he has stated that he had been working at the petrol pump, how many vehicles were on the petrol pump he can’t say. The vehicles wait on road for their turn to get petrol. …4… 5. PW-14 Tej Ram has stated that on 14.2.1998 at about 3 PM, he and Santosh were going from Sanjauli to Dhalli on motorcycle for repairing the same. Motorcycle was being driven by Santosh. The accident took place near Himachal Filling Station, Dhalli. The van in high speed was overtaking the another vehicle. They were going on the left side. After the accident, Santosh was taken to hospital and he was taken to his residence at Cemetry. In cross- examination he has shown his ignorance that at that time many vehicles were at the petrol pump. He has stated that the vehicles which come to petrol pump for filling petrol remain on the road. He has stated that on the next day he was called telephonically by the police. He has stated that his statement was recorded before Motor Accident Claims Tribunal where he stated that he became unconscious after the accident. PW-11 HC Bhumi Chand has stated that the information of accident was received on 14.2.1998 at about 4.10 PM and there upon rapat Ex.PW-10/A was recorded. The vehicle involved in the accident namely scooter No.HP-52-0478 and taxi No.HP-2-142 were on the spot. Both the vehicles were in the middle of the road. There were vehicles on the road out side the petrol pump. He has admitted that motorcycle was being driven in high speed. Ex.PW-10/A is rapat No.22 wherein vehicles involved in the accident have been mentioned as Motorcycle No.HP-01-0142 and van No.HP-51-0778. 6. PW-1 Tarlok Singh has stated that he does not know that the accident took place due to negligence of van driver. He has …5… stated that both vehicles were in high speed. The prosecution case is that van was going to Shimla but PW-1 has contradicted the prosecution case by stating that Van was coming from Shimla side. PW-1 did not support the prosecution and he was declared hostile. The statement of PW-1 cannot be relied in as much as he has stated that Van was coming from Shimla, which is not even the case of the prosecution. The PW-1 is an employee of the petrol pump and as per prosecution accident took place near the petrol pump. PW-1 has stated that vehicles waited on road for their turn to get petrol. PW-14 Tej Ram, pillion rider of the motorcycle has stated that van was overtaking another vehicle and in that process accident took place. The overtaking of van of another vehicle before the accident has not been corroborated by any other eye witness. PW-14 Tej Ram after the accident had not reported the matter to the police, he left the place quietly. He has admitted that he was called by the police next day on telephone. This gives an indication that van driver was not at fault for causing the accident. PW-11 H.C. Bhumi Chand, Investigating Officer has stated that motorcycle was being driven in high speed. In his statement he has stated that scooter No.52-0478 and taxi No.HP –02-142 were involved in the accident and both the vehicles were in the middle of the road. In rapat Ex.PW-10/A the vehicles involved in the accident have been shown motorcycle No.HP-01-0142 and van No.HP-51-0778. PW-14 Tej Ram has stated that Santosh was driving motorcycle No.HP-51-0778 and the van involved in the accident was HP-01-0142. There is thus …6… contradiction regarding the vehicles involved in accident as per Ex.PW-10/A and as disclosed by PW-11 in his statement in the Court. PW-11 HC Bhumi Chand is not an eye witness but he has stated that both the vehicles at the time of accident were in the middle of the road, this part of the statement of PW-11 has not been corroborated by any other witness, therefore, his statement that both vehicles were in the middle of the road can not be accepted. 7. The learned Judicial Magistrate has rightly appreciated the material on record and the view taken by him in the impugned judgment emerges from the evidence on record, no case for interference has been made out in the appeal. 8. No other point was urged. 9. The result of the above discussion, appeal fails and is accordingly dismissed. Bail bonds furnished by the respondent are discharged. ( Kuldip Singh ) Judge. September 8, 2008 (sks)