IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No. 552 of 2002 Date of Decision: 07.10.2009 State of H.P. …..Petitioner Versus Gurmel Singh …. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge Whether approved for reporting?1 For the Appellant : Mr. A.K. Bansal, Additional Advocate General with Mr. R.P. Singh Assistant Advocate General. For the Respondent : Ms. Ambika Soni and Mr. Haresh Sood Advocates. Kuldip Singh, Judge(Oral) This appeal has been directed against the judgment dated 13.2.2002, passed by learned Chief Judicial Magistrate, First Class(I), Dharamshala in Cr. Case No. RBT-82-II/01/2K acquitting the respondent for offences punishable under Sections 336 and 338 IPC. 2. The prosecution case in brief is that on 11.9.2000, at about 12.10 P.M., PW-2 Dhani Ram was working on the J.H.D. road near Sakoh in Kangra District. Whether the reporters of the local papers may be allowed to see the Judgment? …2… He was asked to give signals to the vehicles to slow down as the labourers were working on the road. The respondent while driving Bus No. HP-39-A-1049 came from Gaggal side and was going towards Dharamshala in high speed. He was signalled to slow down the bus but he did not care the signal which was given by PW-2 Dhani Ram and as a result of which a stone due to pressure of the tyre hit Dhani Ram and struck against his leg who was injured and fell down. Dhani Ram was taken to Zonal Hospital, Dharamshala, PW- 1 Devi Chand Chauhan, Assistant Engineer had sent a written complaint Ex. PW-1/A to Police Station, Dharamshala and on that basis FIR Ex. PW-6/A was registered. 3. The case was investigated by PW-6, HC Kuldeep Kumar who visited the spot, prepared spot map Ex. PW-6/N, took into possession stone Ex. P-1. The bus and documents were taken into possession. The injured was got medically examined at Zonal Hospital Dharamshala. On completion of investigation challan was presented in the court against respondent, notice of accusation for commission of offence under Sections 336 and 337 IPC was put to respondent, who pleaded not guilty and claimed trial. The prosecution has examined 7 witnesses and placed on record some documents. The respondent was examined under Section 313 Cr.P.C. He denied the prosecution case but led no …3… evidence in defence. On conclusion of the trial, the learned Chief Judicial Magistrate acquitted the respondent, hence, this appeal. 4. Heard and perused the record. Learned Assistant Advocate General has submitted that the learned Chief Judicial Magistrate has erred in acquitting the respondent. The prosecution has proved the case against the respondent beyond reasonable doubt by leading cogent and reliable evidence. He has submitted that respondent may be convicted and sentenced in accordance with law. The learned counsel appearing on behalf of respondent has supported the impugned judgment and submitted that a possible view have been taken by the learned Chief Judicial Magistrate from the facts on record which requires no interference in appeal. 5. PW-1 Devi Chand Chauhan, Assistant Engineer, H.P.P.W.D. has proved complaint Ex. PW-1/A. In cross examination, he has stated that he was not present on the spot. PW-2 Dhani Ram injured has stated that on 11.9.2000, he was working on the road as labourer. At about 12.30 P.M. bus came from Gaggal side and was going towards Dharamshala, which was signalled to slow down but bus driver did not care for the signal and did not slow down the bus. A stone which was kept on the road to mark the road came under the tyre of the bus and due to pressure …4… of the tyre the stone hit his right leg, he was taken to hospital where he was medically examined. In cross examination, he has stated that there is continuous ascent towards Dharamshala. The stone which hit him was weighing 60-70 Kgs. The said stone was never shown to him. 6. PW-3 Rajinder Parshad has stated that on 11.9.2000 they were marking road at Pipung Nalla, near Sakoh. Dhani Ram Beldar was asked to stand on the road to see that traffic moves with slow speed at that point. He was signalling the vehicles to slow down. At about 12.10 P.M. bus No. HP-39-A-1049 came from Gaggal side. Dhani Ram signalled the bus to slow down but driver of the bus ignored the signal. The stone which was kept on the road for marking came under the tyre of the bus and due to pressure hit the leg of Dhani Ram. He was taken to hospital. He identified stone Ex.P-1. In cross examination, he has stated that stone which was kept on the road was weighing 20-25 Kg. He has stated that stone, in question, has not been shown in the Court today. 7. PW-4, Om Parkash has stated that on 11.9.2000 he was working as labourer on the road and marking road at Pipung Nalla near Sakoh. Parkash Chand and Dhani Ram were put on the job to slow down the traffic at about 12.10 P.M. A stone which was kept for marking the road came under bus No. HP-39-A-1049 and hit right leg of …5… Dhani Ram. In cross examination, he has stated that the stone was 15-20 Kg and that stone has not been shown to him in the Court at the time he made the statement. 8. PW-5 Pran Nath has proved Ex. PW-5/A vide which bus and its documents were taken into possession. PW-6 HC Kudeep Kumar is Investigating Officer. He prepared plan Ex. PW-6/B and has also proved FIR Ex. PW- 6/A. In cross examination, he has stated that he did not take photographs of the spot. He did not take expert opinion in order to show as to how much kg stone can fly due to tyre pressure of a bus. PW-7 Dr. Archana Gautam has stated that she medically examined Dhani Ram. She has proved MLC Ex. PW-7/B. 9. Ex. PW-2/A is recovery memo of stone Ex. P-1. PW-3 Rajinder Parshad is a witness of memo Ex. RW-2/A. PW-3 in his examination-in-chief has identified stone Ex. P-1 but in cross examination, he has contradicted himself when he has stated that the stone, in question, was not shown to him in the Court. According to PW-3, in other words, Ex.P-1 is not the stone which hit PW-2 Dhani Ram injured. PW-2 Dhani Ram, PW-3 Rajinder Parshad and PW-4 Om Parkash are the witnesses who were allegedly present on the spot. PW-2 has stated that stone which hit him was 60-70 Kg and that stone has not been shown to him in the Court. PW-3 Rajinder Parshad has stated that weight of the stone was …6… 20-22 Kg. PW-4 Om Parkash stated that weight of the stone was 15-20 Kg., but, that stone has not been shown him in the Court. There is variations in the size and weight of the stone as stated by the prosecution witnesses, in addition the stone has not been shown to the witnesses in the Court. PW-6 has stated that he did not take opinion as to how much Kg stone can fly due to pressure if it comes under the tyre of a bus. 10. It has come in evidence that there is continuous ascent on the spot. In these circumstances, it is reasonable to infer that it is not possible for a heavy vehicle like bus to ply in high speed where the stone allegedly hit PW-2. The prosecution witnesses have not stated that stone came under the tyre of the Bus due to the negligence of the bus driver. The prosecution witnesses have not specifically fixed the place on the road where the stone was placed for marking the road by the labour. As per the spot plan Ex. PW-6/B, the stone has been shown at point “C” which is in the centre of the road. It has not been explained in the prosecution evidence how the stone which was kept in the centre of the road at point “C” came under the tyre of the bus. The learned Chief Judicial Magistrate has taken a possible view from the evidence on record and it cannot be said that the view taken by learned Chief Judicial Magistrate is not at all possible. There is no perversity in the impugned …7… judgment. The learned Additional Advocate General has failed to persuade this Court to take contrary view and set aside the judgment of acquittal. In view of the above discussion, there is no merit in the appeal, which is accordingly dismissed. Bail bonds of respondent are discharged. ( Kuldip Singh ) Judge October 7, 2009 *brb*