IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.529 of 2002 Date of decision : April 29, 2009 State of H.P. …Appellant. Versus Rajiv Kumar …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. P.M. Negi, Deputy Advocate General. For the Respondent : Mr. Manohar Sharma, Advocate. Surjit Singh, J ( Oral ) State has appealed against the judgment dated 1st February, 2002, of the trial Magistrate, whereby respondent Rajiv Kumar, who was tried for offences, punishable under Sections 279 and 304-A of the Indian Penal Code, has been acquitted. 2. Accusation on which the respondent was put on trial may be noticed. PW-2 Gurbax Kumar used to carry the children from Dussara area to a school at Jhalera in his Matador. On 4th September, 1999, when he was taking the children back home from the school, he stopped his Matador on the left side of the road, in village Panoh, in front of the house of a child, named Master Tushar, aged about 3 or 3½ years, to let that child deboard the Matador. The child alighted from the Matador. In the meanwhile, Jeep No.HP-03- 1129, which was being driven by respondent Rajiv Kumar, Whether reporters of the local papers may be allowed to see the judgment? …2… appeared from the opposite direction. It was allegedly being driven very fast. Driver of the Matador, namely PW-2 Gurbax Kumar, signaled to the respondent to slow down the Jeep, but he did not pay any heed. The result was that the bumper of the Jeep hit Master Tushar, who was standing by the side of the road. The child fell on the spot. He sustained serious injuries. Respondent put the child in his Jeep and rushed to the hospital at Una. On the way, the child died. 3. Matter was reported to the police by PW-2 Gurbax Kumar, the same day. Police investigated the case and challaned the respondent. 4. Prosecution examined the mother of the child, Anu Dutta, as PW-3 and one Achhar Ram (PW-4), as eye- witnesses, besides PW-2 Gurbax Kumar, to bring the charge home to the respondent. All the three witnesses testified that the child was standing on the left side of the road, after disembarking from the Matador of PW-2 Gurbax Kumar, when the Jeep that came from the opposite direction hit him. Learned trial Magistrate has disbelieved their testimony, with the reasoning that it does not fit into the site plan Ex. PW-7/D prepared by the Investigating Officer, namely PW-7 Rikhi Ram. Consequently, the trial Magistrate acquitted the respondent. 5. I have heard the learned Deputy Advocate General as also the learned counsel appearing for the respondent and perused the record. …3… 6. Prosecution version that the child was standing on the left side of the road, when the Jeep of the respondent, which came from the opposite direction, hit him, is improbablized not only by the site plan Ex. PW-7/D but also by certain facts stated by PW-2 Gurbax Kumar, in his cross- examination. The site plan shows that the Matador was parked on the left side of the road, with its front side towards Amb. The Jeep of the respondent came from the opposite direction, i.e. from Amb side. The exact point where the accident took place is shown by letter “A” in the site plan. This point is not on the left side of the road, but on the road itself and that too towards the right side of the Matador. The fact suggests that after alighting from the Matador, the child, whose house was on the other side of the road, tried to cross the road from the hind side of the Matador. PW-3 Anu Dutta, the mother of the child, says that she was present on the other side of the road. It is quite likely that on seeing the mother, on the other side of the road, the child, who was only 3 or 3½ years, got excited and in that excitement ran towards his mother and, in the meanwhile, Jeep of the respondent appeared from the opposite direction and hit the child. The respondent could not have seen the child crossing the road, so long as he was behind the Matador and it appears that when he appeared in front of the Jeep of the respondent, all of a sudden, from behind the Matador, respondent had hardly any time to save him. …4… 7. PW-2 Gurbax Kumar’s testimony probablizes what has been observed hereinabove. He has admitted that the child was only 2-3 feet behind the Matador. If it were so, the child could not have been hit by the Jeep, if he was only 2-3 feet behind the Matador and was standing on the left side of the road, because in that situation the Jeep was supposed to have hit the Matador first. 8. It can also not be said that the Jeep was being driven very fast and, hence, in a rash manner. It has come in the evidence that the Jeep stopped there and then, after hitting the child. The fact suggests that it was not being driven very fast. For the foregoing reasons, there does not appear to be any ground for interfering with the judgment of acquittal passed by the trial Court. Hence, the appeal is dismissed. April 29, 2009(sd) ( Surjit Singh ), J