IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.742 of 2002 Date of decision: 29.5.2008 State of H.P. Appellant Versus Raju Respondent Coram The Hon’ble Mr. Justice V.K. Ahuja, J. Whether approved for reporting1? No. For the appellant: Mr. J.S. Guleria, Law Officer, For the respondent: Mr. Ashok Sood, Advocate. V.K.Ahuja, J. (Oral): This is an appeal filed by the State of H.P. against the judgment of the Court of learned Additional Chief Judicial Magistrate, Court No.1,Shimla, dated 7.8.2002, vide which the respondent was acquitted of the notice of accusations under Section 279/304-A I.P.C. Briefly stated the facts of the case are that on receipt of information that an accident had taken place with a truck and one person had died, police officer went to the spot and recorded the statement of PW-6 Kuldeep Kumar. In the said statement, Kuldeep Kumar had alleged that at about 6.10 P.M., he was present on the road at the tea shop, a bus came and one person, namely, Amar Singh got down from the bus was crossing the road, when a truck came at a fast speed and struck against him and said Amar Singh died on the spot. Whether the reporters of Local Papers may be allowed to see the Judgment? Yes. 2 On this report, a case was registered and after investigation, the Challan was filed before the learned trial Court who tried the respondent leading to his acquittal. I have heard learned counsel for the parties and have gone through the record. On a perusal of the record of the case, it is clear that the prosecution has examined three eye witnesses to substantiate their case. PW-6 Kuldeep Kumar has stated that he was taking tea at tea stall at Banoti and one passenger got down from the bus and tried to cross the road, a truck came from opposite side and struck against him. He stated that the speed of the truck at that time was 40-45. In his cross-examination, he has clearly admitted that the deceased Amar Singh was from his village, was known to him since childhood and he had been visiting his house also. In further cross-examination, he has stated that the deceased was his cousin (Massi’s son). It is in his statement that many persons had gathered at the spot and they had seen the occurrence also. In further cross-examination, he has stated that he was taking tea at the first floor and PWs Rajnish and Inder Pal were also taking tea at that time. He had given a telephonic call to the police. In further cross-examination, he clearly stated that he cannot say that the accident had taken place due to the negligence of the deceased, again stated it may be due to the negligence of the deceased also since he got down from the bus from the driver side and suddenly came on the road in front of the truck resulting in the accident. He also admitted that near the place of accident it was ascend and accordingly, the speed of the truck was likely to be less. He further stated that all the three persons Inder Pal Singh and Rajnish including him were taking tea at that time. In further cross- 3 examination, he stated that he cannot state if the accident took place due to the negligence of the deceased or the truck driver. He also stated that the truck driver could not know about the accident and learnt it only when the persons raised voice. PW-4 Inder Pal Singh, another eye witness stated that the truck came at a fast speed and struck against Amar Singh who was crushed under the truck. He did not state about the speed of the truck. In his cross-examination, he clearly stated that the deceased was his real uncle (Chacha) and many persons had gathered there. He also stated that there are many shops at the spot and those shops were open. He further stated that he was taking tea alongwith Naresh at that time and Rajnish was present there who is from his village. He further stated that Amar Singh opened the rear door of the bus and tried to cross the road towards the other side, which was not visible. He stated the speed of the truck as 40. He denied his knowledge that in case the deceased had taken liquor at that time or was heavily drunk. He further stated that the truck was going on its own side. He further stated that the accident had taken place at the ground floor and he was taking tea on the first floor and the spot was at a distance of 10 feet from that shop. He denied that it was ascend at the spot which fact was admitted by PW-6. He further stated that there are many shops on the ground floor but none from those shops had been examined as a witness. The third eye witness, namely, PW-7 Rajnish has also stated that Amar Singh got down from the bus and was crossing the road when the truck came and struck against him and he and other witnesses went to the spot and found that Amar Singh had died. He clearly stated that Amar Singh was from his village and was known to him since childhood. He also stated that many persons had gathered 4 at the spot and he further stated that there are 7-8 shops at the spot and many of them are on the ground floor as well as on the first floor. He stated that they were taking tea in the second floor, whereas other witnesses have stated that they were taking tea on the first floor. It was ascend at the spot which fact was admitted by the other witnesses as mentioned above. He stated that the accident took place on the driver’s side and in between them and the spot there was truck. Therefore, they could not see the accident taking place. He clearly admitted that the accident took place due to the negligence of the deceased, again stated the truck driver was also negligent. He also stated that the truck was coming on its own side and the speed of the truck was 40-50. The Medical Officer had given the opinion that the deceased had taken liquor before he had died. From the above discussion, it is clear that the witnesses have stated about the speed of the vehicle as 40-45 and it was ascend at that time on the spot, therefore, the facts of the case clearly show that the deceased had come suddenly on the road and struck against the truck. The possibility that he was instrumental in the accident cannot be ruled out. Most of the witnesses have admitted that many persons were present at the spot who had seen the accident but the police had associated only three independent witnesses who were related to deceased and third witness was from his village, as such, the police had not associated any other independent witnesses. In such circumstances of the case, when there is no evidence to establish that the truck was going at a fast speed and the deceased came on the road and struck against the truck resulting in the accident, it cannot be said that the respondent was liable under Section 304-A read with Section 279 I.P.C., when the negligence has 5 to be proved and there has to be some nexus in between negligence and death of the deceased which is not so in the present case. I may make a reference to the decision relied upon by respondent’s counsel in P.M. Raju Vs. State of Karnataka, 1977 CRI. L.J. 1545, wherein it was observed as under:- “Where an old pedestrian crossed the road without attempting to take care to see the approaching bus with the consequence that he was knocked down by that bus, no case of criminal negligence could be inferred against the driver.” I may refer to the another decision of the Apex Court in Mahadeo Hari Lokre Vs. The State of Maharashtra, AIR 1972 Supreme Court 221, wherein it was observed that if a person suddenly crossed the road, the bus driver, however slowly he may be driving may not be in a position to save the accident, therefore, it will not be possible to hold that the bus driver was negligent. In view of the above discussion, the findings recorded by the learned trial Court that the prosecution had failed to prove their case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court and as such, there is no merit in the appeal filed by the appellant, which is dismissed accordingly. Bail bonds furnished by the respondent shall stand discharged. May 29, 2008 ( V.K. Ahuja ) (BSS) Judge 6