IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. A. No. : 549 of 2003. Decided on 10.05.2010. _________________________________________________________ State of Himachal Pradesh. …Appellant. -Versus- Mast Ram. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. For the appellant : Mr. Anil Jaswal, Deputy Advocate General. For the respondent : Nemo. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): A challenge has been laid by the State to the judgment of learned Chief Judicial Magistrate, Shimla, rendered in Cr. Case No. 110/2 of 1997/95, dated 31.07.2003, whereby the respondent, who was charged with and tried for offences, under Sections 279, 304-A, 337 and 338 of the Indian Penal Code, has been acquitted. 2. The case of the prosecution, in a nut-shell, is that on 08.06.1995, accused Mast Ram was driving bus No. HP-07-2250 of H.R.T.C., which was plied between Karsog to Shimla. At about 3:00 P.M., when the bus reached some distance ahead 18/2 and was negotiating a curve, a scooter bearing registration No. HP-07-2404 driven from Shimla side collided with bus on the driver side. Shri Umesh 1 Whether the reporters of the local papers may be allowed to see the judgment? No. - 2 - Kumar was driving the scooter, on which his wife Dhaneshwari and two children were also travelling. According to the prosecution, the accident has occurred due to the rash and negligent driving of the accused. Shri Umesh Kumar (Scooterist) and his wife Smt. Dhaneshwari died on the spot due to the accident. Kumari Samriti (daughter) had sustained injuries and she was taken to hospital (I.G.M.C.). During investigation, site plan was prepared and both the vehicles were taken into possession alongwith documents and got mechanically examined. The F.I.R. was registered and the matter was investigated. Thereafter, a challan was put up against the accused. 3. Prosecution examined eleven witnesses to prove the case against the accused. The accused was examined under Section 313 of the Criminal Procedure Code. He admitted that Umesh Kumar (since deceased) was riding the scooter which met with an accident and that on the scooter, his wife as well as two children were also sitting, and due to the accident, Umesh and his wife died. During investigation, the scooter as well as the bus were taken into possession alongwith their documents. He has admitted that two dead bodies were lying on the spot and the same were taken into possession vide Fard Ex.-PW-1/C. He has denied rest of the incriminating circumstances either specifically or for want of knowledge. According to him, a false case has been registered against him. He was acquitted by the learned trial court. Hence, this appeal by the State. 4. Mr. Anil Jaswal, learned Deputy Advocate General has strenuously argued that the prosecution has proved its case against the respondent. - 3 - 5. I have heard Mr. Anil Jaswal, learned Deputy Advocate General and gone through the record carefully. 6. PW-1 is Shri Sohan Lal. He stated that on 08.06.1995, a scooter driven by Umesh Kumar had met with an accident, on which his wife and two children were travelling. Umesh Kumar and his wife died on the spot. Children also sustained injuries. He further stated that at the place of incident, the road is quite wide and the accident occurred due to the rash and negligent driving of the driver. In his presence, the Police prepared the site plan and also took the photographs. 7. PW-2 is the material witness. He was travelling in the bus No. HP-07-2250. He stated that the accused was driving the bus in speed and also on the wrong side and for this reason, the accident took place. PW-6 Dr. Dev Raj Sharma had medically examined Kumari Samriti on 8.6.1995 in the Indira Gandhi Medical College. PW-7 Shri Puran Chand had conducted the mechanical examination of both the vehicles involved in the accident. According to him, the accident had occurred due to the rash and negligent driving of the bus driver. PW-9 Dr. Harsaran Kaur has conducted the post-mortem on the dead bodies of Shri Umesh Kumar and Smt. Dhaneshwari and issued reports Ex.- PW9/A and PW-9/B. PW-10 Shri Vijay Pal is another eye witness of the incident, who was conductor of the bus No. HP-07-2250 on 8.6.1995. According to him, at about 3:00 P.M. when the bus reached near Devidhar, five passengers boarded the bus. While he was issuing the tickets to them, a scooter came from front side at a high speed, on which there were two adult members and two minors. The scooter hit the bus. Due to the collision, two of the scooter riders went off the road into a Dhankh. The other two passengers of the scooter remained on - 4 - the road alongwith the scooter. He further stated that the accident had occurred due to the rash and negligent driving of the scooter rider. He was declared hostile. 8. The prosecution has not examined the Investigating Officer. In the absence of his examination, neither the F.I.R. nor site plan was proved. The prosecution has not even examined the photographer to prove the photographs. There are two eye witnesses to the incident, i.e., PW-2 Gopal Sharma and PW-10 Shri Vijay Pal. There are contradictions in the statements made by these two eye witnesses. According to PW-2 Gopal Sharma, the driver of the bus was negligent, however, as per the statement of PW-10 Shri Vijay Pal, Umesh Kumar was negligent while driving the scooter. In other words, statement of PW-2 Gopal Sharma has not been corroborated by PW-10 Shri Vijay Pal. 9. PW-1 Shri Sohan Lal cannot be termed as an eye witness. He has not seen the manner in which the accident has taken place. It has come in his statement that he reached the spot when the bodies were already brought on the road. 10. The learned trial court has given undue importance to the fact that deceased Umesh Kumar was only in possession of learner licence. What was to be determined in this case, was whether the accused was rash and negligent in driving the bus or not? The fact that Umesh Kumar was having only a learner’s licence, will not in any manner could dilute the case of the prosecution. 11. In view of the contradictions in the statements of PW-2 and PW-10, coupled with the fact that neither the Investigating Officer nor the photographer has been examined, the prosecution has failed to prove the case against the respondent. - 5 - Accordingly, there is no merit in this appeal and the same is dismissed. Bail bonds are ordered to be discharged. (Rajiv Sharma) Judge May 10, 2010. (bhupender)