IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 329 of 2003. Date of Decision:20.7.2010. _______________________________________________ State of H.P. ….Appellant. Versus. Gurbax Singh. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant : Ms. Ruma kaushik, Addl. Advocate General. For Respondent. : Mr. Malay kaushal, Advocate vice Mr.Ramakant Sharma, Advocate. Dev Darshan Sud, J.(Oral). The State challenges the acquittal of the respondent under Sections 279, 337,338 and 304-A of the Indian Penal Code. 2. The prosecution case in brief is that the respondent was driving bus bearing No HIA-6559 on 28.3.1998. When he reached at bus stand Manpura at about 5.25 in the evening, Lachhi Ram was alighting from the bus and the respondent-accused started the bus suddenly as a result of which deceased Lachhi Ram fell down and the tyres crushed his legs. Whether reporters of the Local papers are allowed to see the judgment?yes. 2 3. The prosecution has examined ten witnesses. Out of these, PW1 Sh.Ram Nath, PW3 Sh. Prabhu Ram and PW4 Sh.Prakash are eye witnesses; PW2 Sh.Prittam Chand, is the Mechanic, who conducted the mechanical examination of the bus. PW5 Sh. Arun Kumar has taken the photographs on the spot. 4. On consideration of the entire evidence on record, the Court holds that it has not been established that the respondent has been rash and negligent in driving the bus. To arrive at this conclusion, the court examined the evidence of the eye witnesses. 5. Considering the evidence of PW1 Ram Nath first, the court holds that no reliance can be placed on his testimony for three reasons (i) he belongs to the same community as the deceased,(ii) after witnessing the accident, did not accompanying the deceased to the hospital and (iii) he was unable to say as to whether the bus was started after it had been signaled to do so by the conductor. On the first aspect of this witness being partisan because of community considerations, the finding of the learned trial court cannot be accepted. The crucial point is as to whether the bus started after the conductor had signaled it to start or not. 6. Evidence of PW4 Parkash is not accepted by the learned trial court as he is son-in-law of the deceased. He states that the deceased was trying to get down from the bus which was being driven at a very fast speed, resultantly the accused lost one leg. 3 7. PW3 Prabhu Ram has given a different version altogether and says that the deceased was boarding the bus from the rear door. In this conflict what has been stated by the witnesses, the learned trial Court doubts the presence of these witnesses on the spot because the consistent case of the prosecution is that the deceased was trying to get down the bus. In any event, the important factor was the non- examination of the conductor, who has not been examined but would have been the best person to testify as to whether he had signaled the bus to start or not. He has been kept out of the witness box by the prosecution. 8. The learned trial Court relying upon the judgment of the Supreme Court in Mohammed Aynuddin alias Miyam Vs. State of Andhra Pradesh, AIR 2000 Supreme Court 2511 holding: “6. What is the culpable negligence on the part of the bus driver in the above accident ? A passenger might fall down from a moving vehicle due to one of the following causes : it could be accidental; it could be due to the negligence of the passenger himself; it could be due to the negligent taking off of the bus by the driver. However, to fasten the liability with the driver for negligent driving in such a situation there should be the evidence that he moved the bus suddenly before the passenger could get into the vehicle or that the driver moved the vehicle even before getting any signal from the rear side. 7. A driver who moves the bus forward can be expected to keep his eyes ahead and possibility on the sides also. A driver can take the reverse motion when that driver assures himself that the vehicle can safely be taken backward. 10………………………………………. 4 11. In the present case the possible explanation of the driver is that he was unaware of even the possibility of the accident which happened. It could be so. When he moved the vehicle forward his focus normally would have been towards what was ahead of the vehicle. He is not expected to move the vehicle forward when passengers are in the process of boarding the vehicle. But when he gets a signal from the conductor that the bus can proceed he is expected to start moving the vehicle. Here no witness has said, including the conductor that the driver moved the vehicle before getting signal to move forward. The evidence in this case is too scanty to fasten him with criminal negligence. Some further evidence is indispensably needed to presume that the passenger fell down due to the negligence of the driver of the bus. Such further evidence is lacking in this case. Therefore, the Court is disabled from concluding that the victim fell down only because of the negligent driving of the bus. The corollary thereof is that the conviction of the appellant of the offence is unsustainable.” (PP 2512 & 2513). 9. There is no evidence on the record to suggest that the respondent is negligent or rash. In these circumstances, I concur with the judgment of the learned trial Court. This appeal is accordingly dismissed. Bail bonds furnished by the respondent are discharged. (Dev Darshan Sud), Judge. July 20, 2010(R) 5