IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: Cr.A.No.298 of 2001. Date of Decision :29th February, 2008. State of H.P. …Appellant. Versus: Balak Ram. …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for judgment?1 For the appellant: Mr.Rajesh Mandhotra, Deputy Advocate General For Respondent. Mr.Ajay Kochhar, Advocate. Sanjay Karol, J.(Oral) The present appeal arises out of the judgment dated 10th January, 2001 passed by Judicial Magistrate, Ist Class, Kasauli at Solan in Case No. 102/ 2 of 1996 titled as State Vs. Balak Ram acquitting the accused of the charged offence under Sections 279, 337 and 338 of the Indian Penal Code . As per the case of the prosecution, on 28th January, 1996 at about 11.30 a.m. vehicle No.HP-14-1457 being driven by Raj Kumar (PW-5) was on its way from Solan towards Barog. After reaching at a place known as Doridiwal (near Congress Bhavan, Solan), bus bearing No. H.P.14-3537 being driven by accused at a high speed came and hit the vehicle driven by Raj Kumar (PW-5). The accident occurred due to rash and negligent driving of the accused as a result of which passengers suffered injuries. The matter was reported with the Police by Shri Bhag Chand (PW-9), Cleaner of the bus driven by PW-5. His statement (Ext.PW-9/A) under Section 154 Cr.P.C. was recorded by 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 the Police. Based on the same, FIR No. 13/96 (Ext.PW-8/A) was registered with Police Station, Solan under Sections 279 and 337 I.P.C. The police machinery was set into motion and Kulwant Singh (PW-11) carried out the investigation. The photographs Ext. P-1 to Ext.P-4 were taken by Ashok Kumar (PW-4). The vehicles in question were impounded and the mechanical report Ext.PW-11/C was obtained. Injured Raj Kumar (PW-5), Smt. Madhu (PW-6) and Kulwant Singh (PW-11) were got medically examined through Dr. S.K.Aggarwal (PW-3) and Dr.Pradeep Sood (PW-7). Medical report of Sunil is Ext.PW-3/A, Raj Kumar (PW-5) is Ext.PW-3/B, Madhu (PW-6) is Ext.PW-3/C and Kulwant Singh (PW-11) is Ext.PW-7/A. Spot map (Ext.PW-11/A) was also prepared at the spot. The statements of the witnesses were recorded under Section 161 Cr.P.C. With completion of the investigation, the challan was presented in the court for trial. The notice of accusation under Sections 279, 337 and 338 I.P.C. was put to the accused to which he did not plead guilty and claimed trial. In order to prove its case, the prosecution examined as many as 14 witnesses. The statement of the accused under Section 313 Cr.P.C. was also recorded. No evidence was led by the accused. Considering the material on record, the court below acquitted the accused of the charged offence on the ground that the prosecution story appeared to be false. The version of the witnesses was contrary to the record and the police authorities had not carried out the investigation at the spot and in accordance with the provisions of law. The accused was held not to have committed the charged offence. 3 I have considered the record and heard the learned counsel for the parties. The guilt of the accused has to be ascertained from the statements of the witnesses which needs to be examined. Out of 14 witnesses the testimony of the spot witnesses namely, Raj Kumar (PW-5), Madhu (PW-6), Bhag Singh (PW-9) and Kulwant Singh (PW- 11) who carried out the investigation is material Kanshi Ram (PW-1) has simply deposed about the recovery of the offending bus No.HP. 14-3557 in terms of seizure memo Ext.PW-1/A . Krishan Dutt (PW-2) has deposed with regard to the receipt of information of the accident and lodging of the report Ext. PW-2/A. Dr. S.K.Aggarwal (PW-3) and Dr.Pradeep Sood (PW-7) have examined the passengers who were travelling in the bus driven by PW-5. PW-3 examined Sh. Sunil as per M.L.C. (Ext.PW-3/A), PW- 5 as per M.L.C. (Ext.PW-3/B), Smt. Madhu (PW-6) as per M.L.C. (Ext.PW-3/C), Shri Balak Ram as per M.L.C. report (Ext. PW-3/D) and Sh. Diwan Chand (PW-12) in terms of his M.L.C. report (Ext.PW-7/A). From the medical reports and the certificates, it is clear that the passengers including the witnesses had sustained injuries as a result of the accident in question. Shri Ram (PW-8) has registered the F.I.R. (Ext.PW-8/A) and Ranjeet Singh (PW-10) is the police official, who has partly investigated the matter along with PW-11. Amar Singh (PW-13) has mechanically examined the vehicle and submitted his report. Shri Hem Raj Sood (PW-14) is the witness to the recovery of the documents. But, however, he has resiled from his statement recorded under Section 161 Cr.P.C. and was declared 4 hostile. In his cross-examination by the Public Prosecutor, he does not support the case of the prosecution in any manner. After careful scrutiny of the version of the material witnesses i.e. PW-5, PW-6, PW-9 and PW-12, it cannot be said that the accused has committed any offence. Even though PW-6 has stated that the driver of the H.R.T.C. bus (the offending vehicle) was driving the vehicle at a high speed, but, however, she has categorically admitted that she was sitting in the centre of the bus and she could not see the bus coming from the opposite direction. She could not state with whose fault the accident took place. She clarified that her earlier version that the offending vehicle was being driven at a great speed was in the background that the accident took place. She did not know the speed at which the vehicle was being driven. PW-9 was the Cleaner of the bus at the relevant time. Even though PW-9 has corroborated the version of PW-5 but, however in his cross-examination he has clearly admitted that he was in the middle of the bus and was issuing tickets to the passengers. He came to know of the accident only after the vehicles had hit each other. He did not see the offending vehicle, being driven by the accused coming from the opposite side. Thus, since this witness had not seen the vehicles coming from the opposite direction, he could not specify as to who was at fault and whether the vehicle was being driven by the accused in a rash and negligent manner or not. Further this witness has stated that on 28th January, 1996, between 4-5 P.M. the police had recorded his statement (Ext.PW-9/A) at the Police Station Sh. Diwan Chand (PW-12) has fully exonerated the accused. In his cross-examination he has clearly stated that he was 5 sitting in the centre of the bus at a place from where he could not see the road. According to him he could not specify with whose fault the accident had taken place. He did not know who was driving the offending vehicle nor could he describe him. According to him the offending vehicle was being driven on its side. These witnesses have not identified the accused to have driven the vehicle in a rash or negligent manner. Therefore, their statements do not prove the complicity of the accused in the commission of the offence. This leaves us with the statement of PW-5 who was also driving the vehicle which met with an accident. Undoubtedly, this witness has stated that the accused was driving the offending vehicle in a rash and negligent manner and the accident occurred due to his fault. However, the sole testimony of this witness, in my view, cannot be relied upon to establish the complicity of the accused beyond reasonable doubt. As per the version of this witness the accident occurred at a place which was approximately 100 feet away from the blind curve on the highway towards Solan. His version is obviously false and does not inspire confidence. It stands contradicted with the spot map Ext.PW-11/A and version of PW-9, according to whom, the accident actually took place on the blind curve and not 100 feet ahead of the curve towards Solan side. The investigation in the present case has not been carried out in accordance with law. PW-9 has categorically stated that his statement under Section 154 Cr.P.C. was actually recorded by the Police on the day of the accident at about 4 P.M. in the Police Station. Perusal of the F.I.R. however, would show that the F.I.R. was registered at about 12.15 P.M. and as per the version of PW-11 the 6 statement was recorded on the spot and only thereafter the machinery was set in motion. Obviously there are contradictions in the statements of PW-9 and PW-11. The record appears to have been prepared at the convenience of the Investigating Officer which casts a serious doubt about the prosecution story. Sh. Ashok Kumar (PW-4) in his deposition has not stated that the time of taking the photographs. A perusal of the photographs would show that there is a truck parked in between the two vehicles involved in the accident. Other vehicles are also parked on the side. The spot map does not give reference of any other vehicle. Therefore, it cannot be said that the photographs were actually taken at the exact spot of the accident. It appears that the vehicles in question have been moved from the original position. Thus the exact picture has not been placed on record. Further, PW-2 has admitted that in the Rojnamcha there is an over writing which makes the prosecution version to be doubtful. Therefore, it cannot be said that the prosecution has been able to prove its case beyond reasonable doubt. The accused cannot be said to have driven the vehicle in a rash and negligent manner so as to endanger human life and personal safety of the passengers travelling in the bus. For the aforesaid reasons, the appeal is dismissed. The bail bonds are discharged. (Sanjay Karol), Judge. February 29, 2008(R) 7