IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No.: 547/2003 Decided on: 10.5. 2010 _____________________________________________ State of Himachal Pradesh. …Appellant. Versus Balbir Singh. …Respondent. _______________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the Appellant : : Mr. Anil Jaswal, Deputy Advocate General. For Respondent : Mr. Deepak Kaushal, Advocate. ____________________________________________________ Rajiv Sharma, J. (oral) State has filed this appeal against the judgment dated 17.7.2003 passed by the learned Chief Judicial Magistrate, Sirmaur at Nahan in criminal case No. 6/2 of 2003/02, whereby respondent charged with and tried for offences punishable under sections 279 and 304-A of the Indian Penal Code, has been acquitted. 2. Case of the prosecution, in a nutshell, is that on 19.10.2002, the complainant accompanied by her mother Kako Devi, sister Neeta, two nieces Mahendro and Mamta and nephews Ajay, Sanjay and Punit had come to Trilokpur to pay obeisance to Mata Bala Sundri. At about 1.30 P.M., they were 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 present at a shop in front of a temple and were purchasing some goods. A water tanker bearing No. HR-37-A-3001 came there and crushed Ajay Kumar under its rear tyre. He died on the spot. According to prosecution, accident took place due to negligence on the part of respondent. Case was registered. Postmortem was conducted. The vehicle was taken in possession. It was got mechanically examined. The challan was put up in the Court against the respondent after completing all the codal formalities under section 207 of the Code of Criminal Procedure. 3. Prosecution examined as many as seven witnesses in all to prove its case against the respondent. Accused was examined under section 313 of the Code of Criminal Procedure. He has denied that he was driving the vehicle rashly and negligently. The trial court acquitted the accused. 4. Mr. Anil Jaswal, learned Deputy Advocate General has strenuously argued that the prosecution has proved its case against the accused. 5. Mr. Deepak Kaushal has supported the judgment of the learned trial court. 6. I have heard the learned counsel for the parties and perused the record carefully. 7. PW-5 Dharam Pal did not support the prosecution case and he was declared hostile. PW-1 Nirmala Devi in her cross- examination has stated that tanker was moving very slow. She further deposed that the child was crushed under the rear tyre of the tanker. Statements of PW-2 Neeta Devi and PW-3 Suresh 3 Chand are to the effect that child slipped out of hands. PW-4 Kako Devi stated that child crushed under the front tyre. This is not the case of the prosecution. There is variance in the statements of PW-1 Nirmala Devi and PW-4 Kako Devi. According to PW-1 Nirmala Devi child ran and was crushed under the rear tyre of the tanker. PW-4 Kako Devi, as noticed above, has stated that the boy came under the front tyre. It is evident from the photograph Ex.P-1 that the main portion of the child’s body was crushed underneath the two rear tyres of the conductor’s side. There was a fair organized and it can be assumed that the tanker was being plied on a very slow speed. PW-1 has admitted that the tanker was moving very slow. In these circumstances, the version of the defence is probablised that the child slipped out of the hands and ran towards the tanker. 8. Accordingly, in view of above discussion, the view taken by the learned trial court is supportable by the evidence and there is no perversity in the findings recorded by the trial court. Consequently, the appeal is dismissed. Bail bonds furnished by the respondent/accused stand discharged. (Rajiv Sharma), J. 10.5. 2010 *awasthi*