1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 496 of 2001. Date of Decision: 23-7-2008. ____________________________________________________________ State of H.P. Appellant. Versus Mohinder Singh. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Sh.J. S.Guleria, Law Officer. For the respondent :Shri Baldev Singh, Advocate. _________________________________________________________ Surinder Singh, J. (oral) The respondent was acquitted for the offence under Section 279, I.P.C. and 197 of the Motor Vehicle Act in case No. RBT. 4- II/2000 decided on 11-5-2001 by learned Judicial Magistrate which has been assailed in this appeal by the State. In brief, the facts which emerges from the evidence of the prosecution are that Truck No. HP51-1608 was owned by the H.P. Wool Federation wherein PW1 Sham Lal was an official Driver. On 22-11-1999, it was loaded with 110 bags of wool at Shahpur and this consignment was required to be taken to Palampur. Respondent was the Cleaner in the said truck. In the evening, PW1 brought the truck to the office compound and parked there around 7.00 P.M. Next day, he was on leave as he was to appear in an interview at Dharamshala. It is alleged that on 23-11-1998, the respondent drove of the vehicle from the office compound and it Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 over turtled on the road. On the information received by PW4 Deepak Saini, from his Head Office, he went to the spot and found the respondent present there. He asked him about the reason to take away the vehicle without permission. The respondent informed him that he had to reach his village as his son was unwell. Thereafter, PW4 aforesaid lodged the FIR Exhibit PW4/A. Police reached the spot, prepared the site plan, took into possession the documents of the vehicle along with its log book vide memo Exhibit PW11/A and also the bails of wool vide memo Exhibit PW2/A. The vehicle was got mechanically examined. The report is Exhibit PW7/A. The police also took the photographs of the truck PW3/A to PW3/F. After completing the investigation, the case was presented in the court for the trial of the respondent. Notice of accusation was put to the respondent under the aforesaid Sections. He pleaded not guilty and claimed trial. The prosecution examined its witnesses and the respondent was also examined under Section 313 of the Code of Criminal Procedure. According to him, in absence of regular Driver, he used to drive the truck. However, he denied that he was rash and negligent in driving the truck by which the accident was caused. At the end of the trial, he was acquitted by learned trial Court on the grounds that the respondent was conductor-cum-driver in the truck for the last about three years. PW1 in his cross-examination has admitted that the log book bore the signatures of the respondent- driver who was to drive the truck in the absence of the regular driver. Same statement was made by PW4 the complainant. There was no evidence of rash and negligent act of driving by the respondent. 3 Shri J.S. Guleria, learned Law Officer has argued that the ingredients of the offence are proved on record, therefore, the respondent deserve to be convicted whereas, learned counsel for the respondent has argued that the prosecution has failed to bring home the ingredients of the offence, therefore the acquittal of the respondent is required to be maintained. I have given my thoughtful considerations to the rival contentions of the parties and have carefully examined the evidence on record. PW1 Sham Lal is the original Driver of the vehicle in question. He has substantiated the fact that in his absence, the respondent also used to drive the truck and he was working as Conductor-cum-driver, this fact has also been admitted by PW2 Shri Deepak Saini, the complainant. He also admitted the fact of signing the log book earlier by the respondent as driver. The Investigating Officer has also admitted that the respondent had a driving license which was taken into possession by him. Now the question is that whether the accident had taken place on account of the rash and negligent driving by the respondent. There is no evidence in affirmative led by the prosecution to substantiate this fact. However, it is a fact that the truck had over turtled on the road. The perusal of the site plan shows that there were break skid marks on the road which went up to distance of ten feet and suddenly the truck over-turned towards the left and hit the tree. The Investigating Officer has also shown the bus parked at a distance of twenty-three feet away from the truck. PW8 Sub Inspector Birbal has stated that on the day of the accident, it was raining and during the investigation, he was told by the respondent that a truck was coming from the opposite direction in a high speed and in order to 4 avert the accident, he took his truck to the side of the road where it over-turtled. On the scrutiny of record, many important circumstances appear in favour of the respondent. Firstly, at the site of the accident, break skid marks are present, which means that in order to avert the accident with the another truck coming from the opposite side, the respondent had applied breaks took due care and caution by taking it to the extreme left side of the road. It appears that the road was slippery because of the rains as admitted by the Investigating Officer. Suddenly applying the breaks the said accident could have been caused. In these circumstances, when there is no positive evidence on the record to show that the respondent was driving the vehicle in question rashly or negligently on a public highway, he is required to be given the benefit of doubt. As such, in my opinion, the net result remains the same and the respondent deserved acquittal. In so far as the question of taking the vehicle without permission by the respondent, it does not come within the mischief of the offences charged. However, the department may take disciplinary action against the respondent if he is in their service, if not already taken. For the foregoing reasons, the judgment of acquittal passed by learned trial Court requires no interference. The appeal is accordingly dismissed. The respondent is discharged of his bail bonds entered upon by him at any time during the trial of this case. (Surinder Singh) Judge. July 23, 2008. (bm) 5