IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P(M) No. 288 of 2010 Date of Decision: 5.4.2010 State of H.P. …Appellant. Versus. Som Dutt …Respondent. Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for Reporting? No. For the appellant: Mr. Rajesh Mandhotra, Deputy Advocate General. For the Respondent: None. Deepak Gupta, J. (Oral) This petition for leave to appeal is directed against the judgement of the learned Judicial Magistrate, Ist Class, Rajgarh, District Sirmaur, in Criminal Case No. 25/2 of 2008 whereby he acquitted the accused of having committed offences punishable under Sections 279, 337, 338, 201 of the Indian Penal Code and 181 of the Motor Vehicles Act. The prosecution case in brief is that on 10.11.2007 PW-1 Rajesh Sharma was going on his Motor cycle No. HP-16-1771 to Narag. His wife PW-2 Neeraj Sharma was sitting as a pillion rider alongwith their son Ishant aged 3 years. When they reached near Narag the offending truck No.HP-64-0859 2 came from Sanora side. It was being driven negligently in a high speed and struck against the motor cycle. The truck driver did not stop and fled towards Rajgarh. Telephonic information was given to the Police by the authorities of the Civil Hospital, Rajgarh and Rapat Ext.PB was entered at the Police Station, Rajgarh. The police party went to the hospital and recorded the statement (Ext.PW-1/A) of Rajesh. On the basis of this statement, FIR Ext.PA was lodged at Police Station Rajgarh. Investigation was carried out by the Investigating Officer PW-8 ASI Mahender Kumar. On the basis of the investigation a case for rash and negligent driving and causing grievous hurt on account of rash and negligent driving was registered against the accused. The learned trial Court has acquitted the accused. Hence, the present petition. At the outset, it may be stated that the identity of the driver of the truck has not been established in the Court. PW-1 Rajesh Sharma stated that he fell unconscious immediately after the accident and he was lateron told by other people that the accused was driving the truck. In fact, his version is that his wife later informed him about the driver of the truck. However, though PW-2 the wife of Shri Rajesh Sharma in her statement does state that the accused was 3 driving the truck, however, she could not say whether there were any other passenger in the cabin or whether the truck was loaded or not or whether it was covered with a tarpaulin or not. She also admitted that she did not know the accused prior to the date of the accident and after the accident saw him for the first time in the Court. Therefore, it is obvious that she did not know his name and in such eventuality it was duty of the prosecution to have conducted a test identification parade as has been held by the learned trial Court. With regard to the accident itself, the case of the prosecution is that a HRTC bus was standing at the spot when the accident took place. Neither the driver nor the conductor nor any of the passengers of the said bus were associated with the investigation. There is no plausible explanation as to why this was not done. The case of the prosecution is sought to be supported by the statement of PW-3 Sanjeev, who according to the prosecution is an eye witness. In fact, PW-3 Sanjeev is not an eye witness because even according to PW-2 after the accident happened, a bus going towards Rajgarh side stopped at the spot and about 10 minutes later Yog Raj and Sanjeev came to the spot. In fact, PW-3 though has given a detailed version of 4 how the accident happened in cross-examination he admitted that he reached the spot in 2-3 minutes after the accident. In 2-3 minutes the truck would have been half or one kilometer away. Thus the identity of the person driving the truck itself has not been established on the basis of the evidence on record. Therefore, I find no merit in the petition which is accordingly rejected. 5th April, 2010 ( Deepak Gupta ) ™ Judge.