IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. Cr. Appeal No. 332 of 2001 Date of Decision : May 9, 2008 State of H. P. …Appellant. Versus: Bhagat Singh …Respondent. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting?1 For the appellant: Ms. Shubh Mahajan, Dy. A. G. For the respondent : Mr. Chandernarayan Singh, Advocate. Sanjay Karol, J. (Oral). The present appeal arises out of the judgment dated 31.8.2000 passed by the Chief Judicial Magistrate, District Kinnaur at Reckong Peo, H.P. in Criminal Case No. 4-2 of 1997, titled as State v. Bhagat Singh, acquitting the accused of the charged offences under sections 279, 337 and 338 of the Indian Penal Code. As per the case of the prosecution, on 6.11.1996, the accused was driving the vehicle Tata-Mobile No. HP-25-0685 on a public highway when at a place called as Powari, H. P., he 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 hit the complainant Shri Dilli Ram (PW-1). The vehicle was being driven by the accused on a public highway in a rash and negligent manner and due to the accident the complainant suffered injuries. The accused carried the complainant to the District hospital at Reckong Peo for treatment. Based on the complaint lodged with the police, FIR No. 61/96 (Ext.PW-6/A), dated 6.11.1996 under Sections 279, 337 & 338 IPC was registered with Police Station, Reckong Peo, Distt. Kinnaur, H.P. The police machinery was put into motion and the M.L.C Ext.PW- 3/A prepared by Dr. S. K. Bansal (PW-3) was taken on record. The vehicle was impounded vide recovery memo Ext.PW-4/A and got mechanically examined through Shri Nargu Sain mechanic (PW-5) who submitted his mechanical report Ext.PW- 6/A. With the completion of the investigation, the challan was presented in the Court for trial. The accused was charged for the offences under Sections 279, 337 & 338 IPC, to which he pleaded not guilty and claimed trial. In order to prove its case the prosecution examined 10 witnesses and the statement of the accused under Section 313 Cr.PC was also recorded. Appreciating the material on record, the Court below found that the prosecution had failed to prove the guilt of the accused beyond reasonable doubt. Shri Swarup Singh (PW-4) an occupant of the vehicle in question had deposed the version 3 showing the innocence of the accused, therefore, giving the benefit of doubt, the accused was acquitted. I have heard the learned counsel for the parties and perused the record. The vehicle in question was got mechanically examined and found to be in a fit condition. Doctor proved the MLC and also the injuries (grievous) sustained by PW-1. However, that fact by itself is not sufficient to prove the guilt of the accused. No doubt, complainant Dilli Ram (PW-1) has deposed that the accused who was driving the vehicle in question at the relevant place and time had caused accident due to which he suffered injury on his body, but however, PW-8 had clearly proved the innocence of the accused . As per the version of Shri Shiv Raj (PW-8), he was travelling in the vehicle at the time and place of the occurrence of the accident. According to him, PW-1 was loitering in the center of the road. The accused who was driving the vehicle at a speed of 40-42 kms. had blown the horn but however, PW-1 had not paid any attention to it and in fact was looking at the river below the road. The road was straight and there were lot of passer byes on the road. It was only after the vehicle had crossed PW-1, the back portion of the vehicle hit the complainant on the shoulder. The vehicle was immediately stopped by the accused and the injured was taken to the hospital. This only proves that the accused had not been 4 negligent in any manner and in fact had been cautious while driving the vehicle. The version of PW-1 stands contradicted by his earlier statement and also the material on record. When confronted with his earlier statement made to the police at the time of accident he was standing under the tree. He clearly admitted that his earlier version is incorrect. Importantly, his earlier statement stands duly signed by him. Further, there is a variation in the statement of PW-1 and the site plan Ext.PW- 10/A with regard to the place where he was standing on the road at the time of the occurrence of the accident. In order to constitute an offence under Section 279 IPC, it is necessarily required to be proved that the accused at the time and place of the occurrence of the accident was driving the vehicle on a public highway in a manner which would endanger the safety of the passer byes. I would agree with the following principles of law culled out by the Court below from various judicial pronouncements of the Apex Court :- “The prosecution has to establish beyond all reasonable doubts that accused at the time and place of occurrence was driving his vehicle in such a manner from which it can be safely said that he acted with consciousness of risk that evil- consequences, were likely to follow therefrom. Negligence means breach of duty caused by omission to do something which a reasonable man guided by 5 those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent and reasonable man would not do. There is a duty on every user of the road to make a reasonable use of it for the purpose of passing along it and to allow others to do so also. A person driving a motor-car has a right to expect that the persons negligently loitering on the road would make way for him especially when he has seen that they were aware of his approach. He has the right to assume that they would get out of the way when they saw him and ignore their signals to stop. Motorists are not the only persons who owe a duty of care; others also have a responsibility and must conform to the ordinary usage of the road. In determining whether a person is negligent or rash, the standard of reasonable care is that which is reasonably to be demanded in the circumstances. The term ‘negligence’ indicates want of care; it is failure to exercise a care demanded by the circumstances. The standard of care ordinarily would be in that of a prudent and reasonable man observing in a set of circumstances, unless the case is such as to require higher degree of care. The driver must be able to pull up within limits of vision, but each case must depend upon its own circumstances. If there is no danger to the public outside the vehicle, who are using the road, no offence under Section 279 IPC is committed. Although, driver on the pubic way should not expect reasonable care from road users. He must anticipate even their negligent acts which are reasonably foreseeable. It is not possible to accept 6 that as a matter of law an extra responsibility devolves on driver for taking extra precaution to avoid accidents. Enough if he blows horn and travels at a low speed, then the ingredients of offence under Section 279 I.P.C. are not established. Every case of collusion of the motor-car and pedestrian have to be judged on its merits.” In the present case, all precaution had been taken by the accused. The care and caution required to be taken by a prudent man had been taken. PW-1 who was not paying attention to the moving traffic on the public highway got hit when the vehicle had already crossed him. Therefore, it cannot be said that the accused committed the charged offence. The Court below has appreciated the material in its entirety. There is no perversity or illegality in the same. I see no reason to interfere in the appeal and the same is accordingly dismissed. Bail bonds stand discharged. May 9, 2008 ( Sanjay Karol ), (rana) Judge.