IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 700 of 2002 Reserved on: 27.04.2010 Date of decision: 14.05.2010 State of H.P. … Appellant Versus Pyaru Ram … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 No. For the appellant: Mr. Vikas Rathour, Deputy Advocate General and Mr. J.S. Guleria, Assistant Advocate General. For the respondent: Mr. Anup Chitkara, Advocate. V.K. Ahuja , J.: This is an appeal filed by the State of H.P. under Section 377 Cr.P.C. against the judgment of the Court of learned Judicial Magistrate Ist Class, Dehra, dated 30.5.2002, vide which the respondent was held guilty under Sections 279, 337 and 304-A I.P.C. and was sentenced as under: 1. Under Section 279 I.P.C.: The convict is sentenced to imprisonment till the rising of the Court and to pay fine of Rs.300/-. 2. Under Section 337 I.P.C.: The convict is sentenced to imprisonment till rising of the Court and to pay fine of Rs.200/-. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 3. Under Section 304-A I.P.C.: The convict is sentenced to imprisonment till rising of the Court and to pay fine of Rs.1000/-. In default of payment of fine amount, the respondent was to undergo simple imprisonment for four months. 2. Being aggrieved by the said judgment passed by the learned trial Court taking a lenient view, the State has filed the present appeal. A notice of the appeal was issued to the respondent. 3. I have heard learned counsel for the parties and have gone through the record of the case. 4. The first question which arises for cosideration is as to whether the respondent can challenge the findings of the trial Court also or not holding him guilty of the offence under Section 304-A I.P.C. apart from other sections when no appeal has been preferred by him. 5. My attention has been drawn by the learned counsel for the respondent to a decision of the Apex Court in State of Himachal Pradesh Vs. Sudesh Kumar and others, 2000(2) Shim.L.C. 379. In that case also, an appeal was filed under Section 377 Cr.P.C., for enhancement of sentence. In that case, the prosecution had not filed any appeal against acquittal under Sections 307, 326,324, 506 read with Section 34 I.P.C. Appeal was filed only for enhancement of the sentence. The order passed by the learned Sessions Judge was regarding granting benefit of probation. It was held that in an appeal for enhancement of sentence under Section 377, the accused has a right to plead for their acquittal or for reduction of sentence. This plea raised by the learned counsel for the 3 respondent in that case was accepted and it was held that this plea can be considered that conviction recorded by the Sessions Judge against accused No. 3 is not in accordance with law. In the present case also, though no appeal has been preferred by the respondent against the sentence imposed by the learned trial Court, convicting the respondent under Section 304-A to imprisonment till rising of the Court and a fine of Rs.1000/- apart from the sentence imposed under Sections 279/337 I.P.C., but on the strength of the above judgment, it was submitted that the conviction imposed can be considered by the Court as to whether it was proper or not. Once the State has come up in appeal for enhancement of the sentence, therefore, the question is being considered as to whether the sentence imposed by the learned trial court was in accordance with law or not. 6. Coming to the evidence in question, out of the 7 witnesses examined in this case, statements of three eye witnesses and Medical Officer can be said to be most material. PW-1 Kulvinder Singh, complainant, has stated that the vehicle turned due to fast driving by the respondent. He further stated that one Jitender came under the Tempo. In cross-examination, he has admitted that there were 35-40 persons in the Tempo. He admitted that the driver was driving on his own side. He further admitted the suggestion that he cannot say if the driver was at fault or not. 7. PW-2 Mintu has stated that the respondent continued driving at a fast speed and at the turning due to fast speed, the Tempo over turned. He also admitted that there were 40 persons in the Tempo. He also stated that 40 persons can sit in a Tempo if the wooden planks are fitted and Tempo is used as a double decker. 4 He also admitted that they had taken wooden planks from the village and fitted them themselves. He admitted the suggestions that they were performing ‘Kirtan’ at that time. They were also having Dholak and Chaina at the relevant time. He admitted that the accident had taken place at a turning and vehicle had tilted at the turning. He admitted the suggestion that the speed of the Tempo was 60-65 at that time, but denied the suggestion that since they were performing ‘Kirtan’, the boy had himself fallen from the Tempo. 8. PW-3 Parvinder Kumar has stated that the Tempo was going at a over speed and it turned at the turning ad one by came under the Tempo. He stated that there were 35 persons sitting in the Tempo and some persons were sitting on the tool box by fixing of wooden plank. They had put one plank to make a roof, on which luggage was loaded. He denied the suggestion that they were performing ‘Kirtan’ at the relevant time, which was admitted clearly by PW-2 Mintu. He clearly stated that the accident had not taken place due to the fault of the driver. He admitted that 5-7 boys had fallen from the Tempo and 5-7 persons came under the Tempo due to turning. 9. From the above discussion, it is clear that no witness has specifically stated about the speed of the vehicle or the fact that the driver was driving rashly or negligently except that it was going at a speed. The Tempo was to be used for carrying of goods and it was carrying passengers by putting wooden planks in it and 35-40 persons were sitting in the Tempo at the relevant time. This may have been the reason for tilting of the Tempo on the one side leading to the accident. No witness specifically has stated about the speed of the 5 vehicle except the suggestion admitted by PW-2 Mintu which appears to be an exaggerated version that in the hilly area the speed at the relevant time with 35-40 persons in the vehicle, it was 60-65 K.M. per hour. 10. To prove an offence under Section 304-A I.P.C., it is not only necessary to establish that a person had died due to the driving of the respondent, but it has to be proved that there was negligence involved. The learned counsel for the respondent had relied upon the decision Braham Dass Vs. State of Himacal Pradesh, (2009) 3 Supreme Court Cases (Cri) 406. In that case, it was observed that for bringing in application of either Section 279 or Section 304-A it must be established that there was an element of rashness or negligence. It was observed that in the instant case even if prosecution version was accepted in toto, there was no evidence to show that any negligence was involved. It was observed that it must be established that the accused was driving any vehicle on public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. 11. No witness examined by the prosecution has specifically asserted as to the cause of the accident or the manner of accident except that it was going at a speed, but the fact that 35-40 persons were going in a small Tempo cannot be ignored, which may have been a contributory factor in the accident having taken place. The fact that the ‘Kirtan” was being performed in the vehicle at the relevant time clearly shows that it may have contributed to the turning of the vehicle resulting in the death of one of the passenger. The fact that wooden planks were put up to make room for more persons to be 6 accommodated stands established. Some of the prosecution witnesses have rather stated that the accident had not taken place due to rashness or negligence of the respondent as have been discussed above. The postmortem report was exhibited in evidence as Ext. PW7/E and a perusal of the same shows that there was injury to vital centre and crush injury to brain leading to death. However, in case the deceased had come under the vehicle due to over turning, there would have been crushed injuries which has not been so observed by the Medical Officer also. Moreover, the MLC of Vikky proved in evidence only shows the abrasions and similarly the MLC of Parvinder Kumar Ext. PW7/G also shows tenderness and abrasions and in case both these persons had come under vehicle due to over turning, the injuries in question would have been more serious. Therefore, there is remote possibility of the deceased having come under the respondent’s vehicle and it may be that since the balance had been disturbed by the occupants i.e. the passengers sitting in the Tempo by performing ‘Kirtan’ at the relevant time and the possibility that they may have fallen from the vehicle when it was taking turn at the turning cannot be ruled out. 12. In view of the above discussion, it is clear that the prosecution had failed to prove that the vehicle was being driven rashly or negligently by the respondent, since there is no evidence on record and no inference only can be drawn since one person had died in an accident that it was rash or negligent of the driver which fact had to be proved by the prosecution. 13. In view of the above discussion, I accordingly hold that there is no merit in the appeal filed by the State of H.P. and the 7 respondent stands acquitted of the charge framed against him under Sections 279, 337 and 304-A I.P.C. The sentence imposed by the learned trial Court is set aside. The fine if recovered, shall be refunded back to the respondent forthwith. The bail bonds furnished by the appellant shall stand discharged. ( V.K. Ahuja ), May 14, 2010 Judge (BSS) 8