1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 121 of 2001. Judgment reserved on: 21.07.2008. Date of Decision: July 24, 2008. ____________________________________________________________ Ramesh Chand. Appellant. Versus State of H.P. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the Petitioner : Ms. Sunita Sharma, Advocate. For the respondent : Mr. J.S. Guleria, Law Officer. ______________________________________________________________ Surjnder Singh, J. The present petition has been directed by the convict/ appellant against the judgment passed by the learned Additional Sessions Judge (1), Kangra at Dharamshala in Criminal Case No.16-K/2000 dated 25.8.2001 whereby his conviction and sentence passed by the learned trial court under Section 304-A of the Indian Peal Code was affirmed. The facts giving rise to the present petition are that on 5.4.1999, a bus No.HP-40-1165 was being driven on a public highway by the petitioner herein, from Kangra to Pathankot. When it reached at Gaggal around 8.40 a.m., it is alleged that it was being rashly and negligently driven by the petitioner and it hit one Lal Bahadur, while he was crossing the road. Said Lal Bahadur sustained serious injuries and was taken to the Zonal Hospital, Dharamshala by the complainant (PW8) Satish Kumar, who thereafter reported the matter to the police and got recorded his statement under Section 154 of the Code of Criminal Procedure, on the Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 basis of which the FIR was lodged under Section 279 and 337 of the Indian Penal Code read with Section 184 of the Motor Vehicles Act. Later, the injured had died and it was converted into under Section 304-A of the Indian Penal Code. The police visited the spot, prepared the site plan, took the photographs and got conducted the mechanical examination of the Bus in question. The Investigating Officer obtained the post-mortem report and after completing the investigation, presented the challan in the court for the trial of the petitioner. A Notice of Accusation under the aforesaid section was put to the petitioner, to which he pleaded not guilty and claimed trial. To prove its case, prosecution examined its witnesses and the petitioner was also examined under Section 313 Cr.P.C. He denied the accident and according to him, the deceased was having a bucket of water in his hand, he slipped down and sustained the injuries, however, no defence was led by the petitioner. At the end of trial, the petitioner was convicted under Section 304-A of the Indian Peal Code and was sentenced to undergo two years simple imprisonment and to pay fine of Rs.5,000/- and in default of fine, he was further ordered to undergo simple imprisonment for a period of six months. In addition to this, he was sentenced to pay a fine of Rs.1,000/- for the offence under Section 184 of the Motor Vehicles Act. The judgment of conviction and sentence was assailed by the petitioner in appeal before the court of Sessions, which was dismissed and now in the present petition, it is contended that both the courts below did not appreciate the evidence on record in the right perspective, whereas the offence charged was not at all proved against him, which has caused miscarriage of justice and prayed that legality and propriety of the judgments/orders passed by the courts below may be examined. 3 I have heard the learned counsel for the parties and have carefully examined the evidence on record. The whole case hinges upon the statement of the complainant Satish Kumar (PW8). He admitted to have only signed the statement Ex.PW7/A under Section 154 of the Code of Criminal Procedure. According to him he was in hurry, therefore, he could not go through its contents. Thus, he denied the narration B to B of the said statement with respect to the accident having been caused by the petitioner, as such he was declared hostile. In fact the Staish Kumar took the injured to the hospital and PW7 Smt. Shreshtha Thakur, ASI has stated that the statement Ex.PW7/A of Satish Kumar complainant, was recorded in the hospital, on the basis of which FIR was lodged and thereafter she proceeded to the spot, prepared the site plan Ex.PW7/E and got mechanically examined the bus. No defect was found therein. She also took the photographs Exts.P1 to P3. She has stated that at the point of accident, some of the shops were open and some were closed and she did not associate any of the witness present in the shops which were open, to have witnessed the accident. According to PW6 Dr.Dinesh Mehta, the injuries in question could be caused to the deceased due to a fall from the height. The prosecution has not examined any witness who had seen the occurrence except PW8 Satish Kumar, who has not supported the case of the prosecution. It is not enough that the accident is proved, but the prosecution is obliged to prove that the accident had taken place on account of rash and negligent driving of the petitioner, which fact is missing in the instant case. Both the courts below convicted the petitioner on his non-plausible plea that the deceased was carrying a bucket of water and he had a fall as such an injury could not have been caused. Since the prosecution has failed to prove the case by leading a positive evidence regarding rash and 4 negligent driving on the part of the petitioner, thus the petitioner could not have been convicted on the ground of improbability of his plea as initial onus lies on the prosecution to prove the ingredients of the offence against the accused to bring home the guilt. Therefore, the petitioner is entitled for the acquittal by extending him the benefit of doubt. Accordingly, the judgment of conviction and sentence passed by the learned trial court and affirmed in appeal by the learned Additional Sessions Judge both are wrong and illegal, therefore, the judgments of both the courts below are hereby set-aside, consequently, the petitioner is acquitted of the charges. The petitioner is also discharged of his bail bonds furnished by him during the proceedings of this case and the fine amount, if any, deposited by him, be refunded to him forthwith. Send down the records. (Surinder Singh) Judge. July 24, 2008. (Pds)