IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 563 of 2008. Date of Decision: 18th May, 2011. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Paramjit Singh ....Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. A.K. Bansal, Additional Advocate General. For the respondent: Mr. Onkar Jairath, Advocate. ____________________________________________________ SURINDER SINGH, J (Oral). The acquittal of the respondent has been challenged in the present appeal by the State recorded by the first appellate Court reversing the judgment of conviction and sentence passed by the learned trial Court for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. 2. Heard and gone through the record. 3. In short, the prosecution story can be stated thus. On 30th March, 2002 at about 11.00 am, PW11 Nitin Verma, a minor school going child aged about 10 years, was allegedly hit by a Tata Tempo 407 bearing Whether reporters of the Local papers are allowed to see the judgment? - 2 - registration No.PB-06-2464 on the side of the road. As per the case of the prosecution, the said Tempo was coming from the side of Una at a very high speed and hit him. He fell down and sustained injuries on his legs and other parts of the body. In the meantime, a scooterist, PW2 Radha Krishan came there. He picked-up the injured and took him to P.H.C., Amb for treatment. 4. The matter was reported to police around 11.40 am by PW1 Pushap Kumar. Police visited the spot, prepared the site plan Ext.PW10/A, took into possession the Tempo aforesaid vide memo Ext.PW4/A and got it mechanically examined from PW8 Sarup Lal. He also issued report Ext.PW8/A and the injured was got medically examined from PW5 Dr. Anju Lath and issued Medico Legal Certificate Ext.PW5/A. Doctor noticed multiple abrasions on both arms, back and right leg of the injured and was referred to the X-ray examination. No fracture was detected. 5. Police after completing investigation presented the Challan in the Court against the respondent for the offences aforesaid. He was accordingly charge-sheeted, tried and convicted by the learned trial Court in Case No.145-I of 2002/42-II/2002, vide its detailed judgment passed on 21st February, 2006, whereby he was sentenced to undergo simple - 3 - imprisonment for a period of three months and to pay a fine of `1,000/- for the offence punishable under Section 279 of the Indian Penal Code and in default of payment of fine to further undergo simple imprisonment for one month. He was also sentenced to undergo simple imprisonment for three months for the offence punishable under section 337 of the Indian Penal Code. He was further sentenced to undergo rigorous imprisonment for one year and to pay a fine of `1,000/- for the offence punishable under Section 338 of the Indian Penal Code and in default of payment of fine to further undergo simple imprisonment for one month. 6. Against the aforesaid conviction and sentence the respondent filed appeal before the Court of Sessions. The learned Additional Sessions Judge reappraised the evidence on record and found material discrepancies in the site plan Ext.PW10/A and the statement of the Investigating Officer was found inconsistent thereto. Further, the learned Additional Sessions Judge also took note of the hostility of the informant PW1 Pushap Kumar and PW7 Kewal Singh. According to them, some children came running on the road and suddenly PW11 Nitin Verma darted against the alleged offending vehicle in the centre of the road and the defence witnesses who were traveling in the alleged - 4 - offending vehicle lend corroboration to the aforesaid fact. The first appellate Court also scrutinized the statements of the witnesses and did not find the case of rash and negligent act of driving by the respondent, as such he was acquitted. 7. Shri A.K. Bansal, learned Additional Advocate General, for the State heavily relied upon the statement of PW2 Radha Krishan an alleged eye witness, who according to him, supported the case of the prosecution in toto. It is further submitted that the learned first appellate Court did not give the due consideration to the statement of the witness to which he deserves. If the evidence of the prosecution is seen as a whole, there are grounds to upset the judgment of the first appellate Court and restore the judgment of the trial Court. 8. Shri Onkar Jairath, learned Counsel for the respondent, supported the impugned judgment of acquittal passed by the learned first appellate Court reversing the judgment of the learned trial Court and he took pain to lead me through the evidence and submitted that from the evidence on record if two views are deducible, the benefit of the view which supports the case of the accused is to be weighed in his favour. - 5 - 9. I have examined the rival contentions of the parties and have reappraised the evidence on record closely and cautiously. 10. In the instant case, the prosecution is obliged to prove rash and negligent act of driving by the respondent. As a matter of fact, “rashness” and “negligence” are not the same things. Mere “negligence” cannot be construed “rashness”. It is not clear from evidence as to what act of “negligence” is attributed to the respondent, in the instant case. Further, there are degrees of “negligence” and “rashness” and in order to amount the ‘criminal rashness’ or ‘criminal negligence’ one must find that the “rashness” has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was must likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. The words “rashly and negligently” are distinguishable and one is exclusive of the other. The same act cannot be “rash” as well as “negligent”. 11. Further, it is also by now well settled that if from the evidence on record two views are deducible, the benefit of the view which is in favour of the accused has to be given to him. - 6 - 12. Against the above legal parameters, the evidence in the instant case is required to be examined dispassionately shunning all prejudices against the Motorist. 13. In the instant case, the respondent is admitted to be the driver of the alleged offending vehicle. He denied the rash and negligent driving of the said vehicle on the State Highway. To prove its case, the prosecution examined PW1 Pushap Kumar, the informant. He did not support the case of the prosecution at all. He also denied the rash and negligent driving by the respondent of the alleged offending vehicle. He was confronted with portions “A” to “A” and “B” to “B” of his statement Ext.PW1/A to which he denied. He further stated that when he reached spot about 15 persons had already gathered there and the injured was taken to the shop nearby for providing first- aid. He further stated that he did not see Shri Raj Kumar (PW3) and PW2 Radha Krishan on the spot. 14. PW7 Kewal Singh also turned hostile to the prosecution and categorically stated that some of the school children were running on the road and were dashing towards the Tempo and the injured-boy was responsible for the said accident. He totally denied the rashness and negligence of the respondent in causing - 7 - the said accident. This fact has been corroborated by DW1 Amrik Singh and DW2 Paramjeet Kaur, who were the occupants of the said offending vehicle, whereas PW2 Radha Krishan stated that the Tempo in question was at a high speed. 15. Be it stated that the speed is no criteria to even infer the rash and negligent act of driving of the vehicle. It is a basic ingredient of the offence punishable under Section 279 of the Indian Penal Code. 16. To prove the offences charged against the respondent, injured PW11 Nitin Verma has blown hot and cold while making his statement. In examination-in-chief he stated that he was standing on the left side of the road and he was hit by the speeding Tempo and sustained injuries, but in cross-examination he stated, he alongwith some other school-boys had come to the tap to drink water. The school-boys were also standing there. He also did not know as to who-else was present at the spot at that time. He was also unable to say from which side the Tempo was going, which suddenly hit him. His statement is not sufficient to conclude the offences charged against the respondent. Since two views are deducible from the evidence on record, the view in favour of the accused has to be given due weight. - 8 - 17. On the scrutiny of the aforesaid evidence, in my considered opinion, the prosecution has failed to prove the act of rash and negligent driving by the respondent beyond reasonable doubt against the respondent. As such, the acquittal recorded by the first appellate Court upsetting the judgment of learned trial Court cannot be interfered with as the findings of acquittal are borne out from the evidence on record. Appeal sans merit and is accordingly dismissed. 18. The respondent is hereby discharged of the bail bonds entered upon by him during the proceedings of this case. 19. Send down the record forthwith. May 18, 2011. (Surinder Singh), J. (rc)