IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 298 of 2000. Judgement reserved on: 1.1.2008 Date of decision: 2.1.2008 State of H.P. …….Appellant Vs. Surjit Singh & another …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. M.L. Chauhan, Additional Advocate General. For the Respondents : Mr. N.K. Sood, Advocate, for respondent No.1. Mr. Aman Sood, Advocate, for respondent No.2. Kuldip Singh, Judge. The State has filed this appeal against the judgment dated 31.1.2000 passed by learned Addl. Chief Judicial Magistrate, Dehra in Criminal Case No.134/90 acquitting the respondents under Sections 279 and 304-A IPC. 2. The prosecution case in brief is that PW-2 Rajinder Kumar complainant and one Suresh Kumar on 26.6.1990 boarded bus bearing registration No.HP-36—469 at Ranital for Dehra via Jawalamukhi and respondent No.2 was driving that bus. The complainant and Suresh Kumar were sitting on the last seat of the Whether the reporters of the local papers may be allowed to see the Judgment?Yes …2… bus. The respondent No.2 Dhian Singh was driving the bus in high speed and when the said bus reached Suknal near Jawalamukhi at about 12.20 pm a bus bearing registration No.HPK-3450 came from opposite side in high speed from Jawalamukhi side which was being driven by Surjit Singh. Both the drivers while crossing did not slow down their respective buses and hit against each other from the side as a result of which one arm of Suresh Kumar was chopped off from his shoulder and other passengers also received injuries in the accident. The injured Suresh Kumar was removed to CHC Jawalamukhi, but he died on way to the hospital. The accident was attributed to the negligence of both the drivers for driving their respective buses. On the statement of PW-2 Rajinder Kumar FIR No.62/90 was registered under Sections 279, 337, 304-A IPC at Police Station, Jawalamukhi. The challan was put up against the respondents and notice of accusation was put to both the respondents under Sections 279, 304-A IPC. The respondents did not plead guilty and claimed trial. The prosecution examined seven witnesses. The evidence of the prosecution was closed by the order of the Court on 18.11.1999. The statements of respondents were recorded under section 313 Cr.P.C., in which they pleaded their innocence. The respondents did not lead any evidence in defence. The learned Addl. Chief Judicial Magistrate acquitted the respondents on 31.1.2000, hence this appeal by the State. 3. I have heard the learned Addl. Advocate General for the State and Mr. N.K. Sood, learned counsel for respondent No.1, Mr. Aman Sood, learned counsel for respondent No.2 and gone …3… through the record. The learned Addl. Advocate General has submitted that the accident took place due to rash and negligent driving on the part of both the respondents, the prosecution has proved the case against the respondents. The trial Court has not properly appreciated the material on record and has erred in acquitting the respondents. The learned counsel for the respondents No.1 and 2 have supported the impugned judgment. 4. PW-1 Bidhi Chand has proved mechanical report Ex.PW-1/A of bus bearing registration No.HPK-3450 and mechanical report Ex.PW-1/B of bus bearing registration No.HP-36-0469. PW-2 Rajinder Kumar has stated that on 26.6.1990 he was travelling along with another boy in Beas View Bus service on the last seat on the driver side. The other boy was sitting at the end of the seat towards window. The driver was over speeding the bus. A bus of Ex-Service Men came from the opposite side in high speed and at the time of crossing, both the drivers did not apply brakes and both buses struck each other from sides, many passengers were injured and the arm of the boy sitting with them was chopped off from the shoulder, due to which he died immediately thereafter. He has reported the matter to the police and his statement Ex.PW-2/A was recorded. In cross- examination conducted on behalf of respondent No.2, he has stated that he does not have an idea whether the bus was being driven at the speed of 10-15 K.M., volunteered, it was being driven in over speed. He had not seen the other bus. PW-3 Naresh Kumar has stated that on 26.6.1990 he was travelling in Beas View Bus Service and the driver of that bus was driving the bus in high speed. Near …4… Jawalaji, a bus came from opposite side but he cannot tell the speed of that bus, only after the accident he came to know that the accident has taken place, his hand was fractured in the accident. One person died in the accident. The respondent No.2 was driving the bus in which he was sitting. This witness did not support the prosecution and was declared hostile. 5. PW-4 Desh Raj has stated that on 26.6.1990 he was travelling in Beas View Bus Service and the driver of the bus was driving in high speed. At Jawalaji near petrol pump a bus was going towards Kangra and was also in high speed. He does not know what happened to the arm of the deceased. The man died due to the collision of the buses. PW-5 R.K. Mehta has stated that he examined Naresh Kumar on 26.6.1990 and issued MLC Ex.PW-5/A. In cross examination he has stated that injuries No.1 to 3 can be caused by fall. PW-6 HC Kishore Chand has proved FIR Ex.PW-6/A. PW-7 Nirmal Kaushal took photographs. 6. The allegation of rash or negligent driving is against both the drivers. The prosecution has examined PW-2, PW-3 and PW-4, who were travelling in bus bearing registration No.HP-36-0469 which was being driven by respondent No.2 Dhian Singh. The prosecution did not examine any witness travelling in bus bearing registration No.HPK-3450 which was being driven by respondent No.1. PW-3 Naresh Kumar did not support the prosecution and was declared hostile. In his cross-examination conducted on behalf of prosecution nothing was extracted favouring the prosecution. The other eye witnesses are PW-2 and PW-4. PW-2 has stated that at the time of …5… crossing both the drivers did not apply brakes and therefore, sides of the buses struck against each other. This witness has not stated anything about the wrong side of any bus. It is surprising that no person was examined who was travelling in bus No.HPK-3450 at the time of accident. The spot map has not been proved. The Investigating Officer has also not appeared in the witness box. PW-3 Naresh Kumar did not support the prosecution. It is not very clear that Suresh Kumar deceased immediately before the accident was having his right arm inside the bus or out side the bus. The prosecution case is that right arm of deceased Suresh Kumar was chopped off because of the accident but in the statements of respondents under Section 313 Cr.P.C. no specific question was put to them that right arm of the deceased was chopped off due to accident, rather the question was put to them was that one arm of Suresh Kumar was chopped off. The respondents were deprived to explain chopping off right arm of the deceased by not putting straight and clear question of chopping of right arm of Suresh Kumar in the accident. The photographs Ex.A-1 and Ex.A-2 are of bus No. HPK- 3450 but photograph Ex.A-3 has not been linked with bus bearing registration No.HP-36-0469 as from this photograph it is not clear that this photograph is of bus No.HP-36-0469. The injury on the person of deceased Suresh Kumar has not been proved by medical evidence. The respondents have blamed each other. There is no clear evidence to prove the negligence of particular driver. The learned Addl. Chief Judicial Magistrate in the facts and circumstances of the case has come to the conclusion that it is not possible to hold beyond …6… reasonable doubt that both the drivers were responsible for the accident. He has come to the conclusion that it appears to be a case of error of judgment and not a case of rash and negligent driving of the respondents. He ultimately gave benefit of doubt to both the respondents. The view taken by learned Addl. Chief Judicial Magistrate is possible in as much as there is no clear evidence to prove the negligence on the part of the respondents. In appeal it is to be seen that the inference drawn from the material on record is possible and the acquittal will not be converted into conviction simply on the ground d that other view is also possible. 7. The result of the above discussion, the appeal fails and is accordingly dismissed. ( Kuldip Singh ) Judge. January 2, 2008 (sks)