IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.293 of 2005 Date of decision : December 12, 2011 State of Himachal Pradesh ….Appellant Versus Roop Chand son of Basant Ram, resident of Village Juken, Post Office Novai, Tehsil and Police Station Sarkaghat, Districtr Mandi, H.P., at present driver in HRTC Depot, Rampur. …Respondent. Appeal under Section 378 of the Code of Criminal Procedure against the impugned judgment of acquittal dated 4.10.2004, passed by the Learned Sub Divisional Judicial Magistrate, Ramput, District Shimla, Himachal Pradesh, in Case No.27-2 of 2002, Under Sections 336, 337, 427 of the Indian Penal Code and Section 184 of the Motor Vehicles Act. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. Whether approved for reporting?1 For the Appellant : Mr. Ramesh Thakur, Assistant Advocate General. For the Respondent : Mr. B.N. Mehta, Advocate. Surjit Singh, Judge(Oral) State has appealed against the judgment dated 4th October, 2004, passed by learned Sub Divisional Judicial Magistrate, Rampur, whereby respondent Roop Chand, who was tried for offences, under Sections 336, 337, 427 of the Indian Penal Code and Section 184 of the Motor Vehicles Act, has been acquitted. 2. Respondent had been working as a driver on a bus, bearing registration No.HP-06-2817, in the year Whether reporters of the local papers may be allowed to see the judgment? Cr.A No.293/2005 …2… 2001. On 26th November, 2001, he ignited the engine of the bus, at a place called Butti-Curve and leaving the engine ignited, he went to a nearby tea-stall to take tea. In the meanwhile, two persons, by the name of Ashok Kumar and Pari Chand, went to the site, where the bus was parked and they loaded one heavy machine inside the bus and also occupied seats in the bus. Two passengers, named Shankri Devi and Shivani, were already on board the bus, when the aforesaid machine was loaded. Soon thereafter, the bus started moving. It damaged the parapet and also one shop and rolled down the road. Two of the passengers jumped out, when the bus started moving. The remaining two passengers remained in the bus, when it rolled down and they sustained simple hurts. 3. Matter was reported to the police. On investigation, it was found that the respondent had conducted himself in a rash or negligent manner and because of that accident had taken place. So, the respondent was challaned. Learned trial Court put the substance of accusation to the respondent, who pleaded not guilty. Therefore, the trial Court tried him for the aforesaid offences. 4. Prosecution examined all the four passengers on board the bus as also the owner of the tea-stall, where the respondent had gone to take tea, to bring the guilt Cr.A No.293/2005 …3… home to the respondent. Learned trial Magistrate concluded that the evidence did not prove, beyond reasonable doubt, that the respondent had deboarded the bus, keeping the engine ignited and taking no precautions, like applying wooden block or stone etc. against the tyres of the bus to ensure that it did not roll down. 5. I have heard learned Assistant Advocate General as also learned counsel representing the respondent and gone through the record. 6. Prosecution’s own evidence makes it doubtful if the engine of the bus had been kept ignited by the respondent, when he went to take a cup of tea. PW-4 Smt. Shankri Devi, one of the passengers, stated that engine of the bus was switched off, when the driver went to take tea. Tea-stall owner PW-6 Shri Gian Chand also stated that the engine was switched off, as he did not hear its sound. The bus was subjected to mechanical test by PW-9 Shri Charanji Lal. The test was conducted two days after the accident. Though because of this delay, it was not possible to find out whether the engine was switched on or not, but some opinion could have been expressed by the mechanic, on the basis of the fact, whether ignition key was in the key-hole or not, or whether it was found lying somewhere near the key-hole or the driver seat or inside the bus. Mechanic did not Cr.A No.293/2005 …4… report if ignition key was available in the bus nor has he opined that engine was ignited when the bus rolled down. 7. In view of the abovestated position, there does not seem to be sufficient reason to disagree with the finding of the learned trial Court that it does not stand established that the engine of the bus had been kept ignited by the respondent, when he went to take tea. 8. Regarding the allegation of non-application of wooden block, learned trial Court, placing reliance on a photograph Ex. PW-13/6, has observed that a stone had been applied. The photograph suggests that a piece of stone, big enough, was there on the road. One of the witnesses, namely PW-6 Shri Gian Chand, tea-stall owner, has stated that a stone had been applied against one of the rear tyres, by the driver. There is no reason to disbelieve the witness, as the prosecution did not choose to cross-examine him. 9. In view of the abovestated position, there does not seem to be any good ground for setting aside the judgment of acquittal passed by the trial Magistrate. Hence, the appeal is dismissed. December 12, 2011(sd) ( Surjit Singh ), J