IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.703 of 2001 Judgment reserved on: 13th October, 2008 Decided on: 17th October, 2008. State of H.P. …Appellant Versus Vijay Kumar …Respondent Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Dy. Advocate General For the Respondent : Mr. N.K. Thakur, Advocate. Surjit Singh, Judge State has appealed against the judgment dated 6.10.2001 of Sessions Judge, whereby appeal filed by respondent Vijay Kumar against judgment dated 26.7.2000 of learned Chief Judicial Magistrate, Una, thereby convicting him of offences, punishable under Sections 279 and 304-A IPC, and sentencing him to undergo six months imprisonment and to pay a fine of Rs.1000/-; in default of payment of fine, to undergo simple imprisonment for a further period of one month, in respect of offence, under Section 279 IPC, and imprisonment for two years and fine of Rs.5000/-; in default of payment of fine, to undergo simple imprisonment for a further period of six months, in respect of offence, under Whether reporters of the local papers may be allowed to see the judgment? …2… Section 304-A IPC, has been accepted and he (respondent Vijay Kumar) has been acquitted. 2. Respondent Vijay Kumar was tried for offences, punishable under Sections 279 and 304-A IPC, at the instance of Police Station, Sadar. Charge against the respondent, as per evidence on record, was that on 21.4.1997, around 8.45 a.m., he drove truck No.HIU-985, near Indira Gandhi Stadium, in so rash or negligent a manner as to endanger human life or personal safety of others and while so driving, he hit one Madan Lal, a pedestrian, and caused his death. Matter was reported to the police by PW-9 Devinder Kumar, by making statement Ext.PW8/A, under Section 154 Cr. P.C. As per this statement, on 21.4.1997, around 8.45 a.m., PW-9 Devinder Kumar was returning on a scooter from a school, after dropping his children there. When he reached near Indira Gandhi Stadium, on Una-Nangal road, truck No.HIU-985, which came from Nangal side at a very fast speed, over took him and after overtaking him when its driver was trying to bypass a trolley, parked on one side of the pucca portion of the road, he lost control and the truck went to the extreme right hand side of its driver and hit Madan Lal, who was coming from the opposite direction on his extreme left hand side and was walking on the kutcha portion of the road. Madan Lal died on the spot. Matter was investigated by PW-8 ASI Mohinder Singh. He recorded the statements of other eye witnesses and also prepared site plan. Mechanical test of the truck was also got conducted. …3… 3. On completion of investigation, report, under Section 173 Cr. P.C., was filed in the Court of Chief Judicial Magistrate, who after complying with the requirement of Section 207 Cr. P.C, proceeded to try the case, in accordance with the procedure laid down for summons cases. Substance of accusation was put to the accused to which he pleaded not guilty. 4. Prosecution examined nine witnesses to prove the case. The witnesses included PW-5 Bodh Raj, PW-6 Rajnish Kumar and PW-9 Devinder Kumar, all of whom claimed to have witnessed the accident. Dr. V.K. Raijada, who conducted postmortem examination, was examined as PW-4. Investigation Officer ASI Mohinder Lal, appeared as PW-8. 5. The three eye witnesses testified, with one voice, that the truck, in question, was being driven by the respondent at a very fast speed and that when the respondent tried to bypass a trolley, parked on his left hand side, and swerved the truck to his right hand side, he lost control and the truck knocked Madan Lal down, as a result of which he died on the spot. PW-5 Bodh Raj and PW-6 Rajnish Lal stated that they saw the accident when they were coming on a scooter from Una side and the truck came from Nangal side. They stated that deceased Madan Lal was walking ahead of them on kutcha portion of the road, to his extreme left. 6. PW-9 Devinder Kumar stated that he was coming from the same side as the truck, near the site of the accident and that after overtaking him, when the driver of the truck …4… tried to bypass the trolley and swerved the truck towards his right hand side, he lost control, as the truck was moving at a very fast speed and it hit Madan Lal, who was coming from the opposite direction. Suggestions were thrown to this witness in the cross-examination that they were related to the deceased and because of that they had made false statement that they had witnessed the accident and that in fact they were not present when the accident took place. They denied the suggestions. No other suggestion, indicative of any defence plea, was put to them. However, to PW-8 ASI Mohinder Lal, a suggestion was put that deceased Madan Lal tried to cross the road, all of a sudden, without noticing the vehicles coming from the opposite directions and because of that the accident took place. He denied the suggestion. Throwing of this suggestion to the Investigating Officer was of little consequence, because he was not present on the spot, when the accident took place. No suggestion on the lines of this plea was put to the three eye witnesses. Also, in his own statement, under Section 313 Cr. P.C., the respondent did not take such a plea. He denied that he was driving the truck and the truck hit Mandan Lal, who was walking on kutcha portion of the road, on his extreme left hand side. He expressed ignorance about the presence of PW-9 Devinder Kumar on the spot and his having lodged the report with the police. 7. Relying upon the aforesaid evidence, learned Chief Judicial Magistrate, came to the conclusion that the …5… respondent was guilty and convicted and sentenced him, as aforesaid. 8. In appeal, the learned Sessions Judge has taken the view that the dead body of Madan Lal was found lying in the middle of the pucca portion of the road, as per site plan Ext.PW8/D and the photographs Exts.PA to PF, and this fact itself disproved the testimony of the eye witnesses that the deceased was walking on the kutcha portion of the road, on his left hand side. The learned Sessions Judge has observed that had the deceased been walking along the kutcha portion of the road or even on the berm of the road, he would not have fallen towards pucca portion of the road, but farther away on the kutcha portion itself, if hit by the truck. 9. Having heard the learned Deputy Advocate General and the learned counsel for the respondent, I am of the firm view that the learned Sessions Judge was not justified in holding, just on the basis of the fact of the dead body lying on the pucca portion of the road, that the deceased was not keeping to his left hand side and was not on the kutcha portion of the road. Undoubtedly, the photographs and the site plan, referred to above, show that the dead body was lying on the pucca portion of the road, but it was not in the middle of the road, as observed by the learned Sessions Judge. It was on one side of the road and that side was the left hand side of the deceased. According to the site plan and the testimony of PW-8 Mohinder Lal, width of pucca portion of the road was 18 feet. Site plan suggests that the truck, which …6… appeared from Nangal side, moved towards the right hand side of its driver and after hitting the deceased, it was moved again to the left side and brought to a halt at a distance of 60 yards. The very fact that the truck went on the wrong side and there it hit the deceased proves the charge of rash or negligent driving, endangering human life, levelled against the respondent. 10. In any case when there were three eye witnesses and all of them testified, with one voice, that the truck was being driven at a very fast speed and it went on the wrong side and hit the deceased, who was walking on his extreme left hand side on kutcha portion of the road and no suggestion was put to any of those three eye witnesses that the deceased was walking in the middle of the road or even on the pucca portion of the road on his side or tried to cross the road without caring for vehicles moving on the road, learned Sessions Judge ought not to have drawn the inference that had the deceased been keeping to his left and walking along kutcha portion of the road, his body would not have been found lying on the pucca portion of the road. This inference is contrary to the clear cut evidence of the eye witnesses. Otherwise also, it cannot be said that when a man, walking on his extreme left side on kutcha portion of the road, is hit by a vehicle coming from the opposite direction, he would, in all probabilities, fall farther to his left side on the kutcha portion and not on his right hand side, on the pucca portion of the road. It would depend upon the side of the vehicle, which hits …7… the victim. The eye witnesses were not thrown any suggestion by the defence as to how the deceased fell towards the pucca portion of the road when he was walking on the kutcha edge of the road, as per their testimony. May be that if cross-examination was directed on these lines, they would have come forward with a satisfactory explanation. 11. As an upshot of the above discussion, the present appeal is accepted. Judgment dated 6.10.2001 of the Sessions Judge, accepting the appeal against the judgment of the Chief Judicial Magistrate, whereby the respondent was convicted and sentenced for the offences, under Sections 279 and 304-A IPC, is set aside and the conviction and the sentence of the respondent, as ordered by the Chief Judicial Magistrate, vide his judgment dated 25.7.2000, are upheld and restored. The appeal stands disposed of. October 17, 2008 (ss) ( Surjit Singh ), J.