IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 548 of 2002. Date of Decision: 01-06-2009. ____________________________________________________________ State of H. P. Appellant. Versus Surinder Kumar Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the appellant : Mr. Vikas Rathore, Deptuy Advocate General. For the respondent : Mr. N.K. Thakur, Advocate. __________________________________________________________ SURINDER SINGH, J. (ORAL) The acquittal of the respondent under Sections 279, 338 and 304-A of the Indian Penal Court has been challenged in this appeal, by the State. Heard and gone through the record. In nut-shell, the prosecution case is that on 4.2.1998, at about 5.15 p.m., the complainant Gurcharan Singh along with Mohinder Pal (deceased), were waiting for the bus at the old Bus stand, Una. In the meantime, Saini bus bearing registration No.HP-20-5513 came to the Whether reporters of the Local papers are allowed to see the judgment? Yes. - 2 - old bus stand from Jhalehra side. Mohinder Pal aforesaid signaled to stop it. The bus was stopped and while boarding the bus from the front door, he fell down as the driver of the bus took it off. The deceased was crushed under the rear tyre. Gurcharan Singh raised hue and cry and the bus was stopped. Immediately thereafter, he was taken to the hospital in the same bus where he was declared dead. The matter was reported to the police. The autopsy of the dead body was conducted. The police prepared the site plan, took photographs of the accident site, recorded the statements of the witnesses and thereafter the case under the aforesaid sections was presented in the court for the trial of the respondent. Notice of accusation was put to the respondent, to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined its witnesses and the respondent was also examined under Sections 313 of the Code of Criminal Procedure. The respondent denied the rash and negligent act of his driving. According to him, the deceased had tried to - 3 - board the bus while moving and negotiating the curve, however, no evidence in defence was led. PW1 Gurcharan Singh did not support the case of the prosecution. Although in his cross- examination conducted by the learned Public Prosecutor, he admitted that the accident in question had taken place on account of the fault of the driver as he had taken off the bus immediately when the deceased was in the process of boarding it, however, he expressed his ignorance if there was any bus stoppage or no parking place. But he categorically stated that at least he did not see the bus stoppage at that place for the last about one year. Then he stated converse to what he stated above that when the bus was negotiating the curve, Mohinder Pal had tried to get into it. The other alleged eye witnesses PW2 Rajinder Kumar, PW3 Wattan Chand and PW4 Jagdish Ram did not support the case of the prosecution, however, PW7 Iqbal Mohammed stated that while negotiating the curve, a passenger had tried to board in it, but in that process, he fell down, which fact is in consonance with the defence taken by the respondent. - 4 - PW9 Constable Lal Chand was on duty near the place of alleged accident, but he gave a different version. According to him, the bus stopped at the said place, a few passengers got into it, thereafter it started moving. In the meantime, a passenger tried to get into it, but the driver took off the bus and in that process, he fell down and got crushed under the rear tyre. In the cross-examination, he has admitted that at the time of accident, the bus was not moving, but it was in a slow speed. Now on the critical examination of the aforesaid evidence, two views are deducible from the record. It is a settled law that the view favourable to the accused has to be accepted. One set of the witnesses have stated that when the bus was negotiating the curve, deceased Mohinder Pal was trying to get into the moving bus, but he failed to catch hold of the bar of the window and fell down, with the result he got crushed under the rear tyre and another statement is of PW9 Constable Lal Chand who has also given a contradictory version on the one hand he says that the said passenger was fell down while getting into the bus while - 5 - the bus was stationary and in the same breath, he stated that the bus was moving. Therefore, in these circumstances, the defence taken by the respondent stands probablised. The learned trial court has rightly taken note of the above facts while acquitting the respondent. In my opinion, the rash or negligent act of the respondent could not be proved, as such the appeal sans merits and is accordingly dismissed. The respondent is discharged of his bail bonds entered upon by him during the proceedings of the case. (Surinder Singh) Judge. June 01, 2009. (Pds)