IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.269 of 2008 Decided on: May 01, 2008. State of Himachal Pradesh …Petitioner. VERSUS Sushant Kumar ….Respondent. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner : Mr A.K.Bansal, Addl.A.G. For the respondent : Kuldip Singh, Judge (Oral) The State has filed this petition seeking leave to file appeal against the judgment dated 23.11.2007 passed by learned Judicial Magistrate 1st Class (5), Shimla in Cr. Case No.140-2 of 2006 acquitting the respondent under Sections 279, 337, 338 and 201 I.P.C. 2. The facts, in brief, are that PW-6 Yash Pal – complainant, Vikrant Kaprate and Atish were walking along side the Dhalli Tunnel, Shimla at about 12.15 p.m. on 29.4.2006, a Maruti Car bearing registration No.JK-02-1522 came from inside the tunnel and hit PW-10 Atish. The accident took place due to rash and negligent driving on the part of the driver of the car. The injured Atish was taken to hospital and the matter was reported to the police and in this Whether the reporters of the local papers may be allowed to see the judgment? Yes …2… way F.I.R. Ext.PW-2/C was registered. PW-7 Dr.Hans Raj Rahi examined the injured and issued MLC Ext.PW-7/A. PW-3 Dr.Anupam Jhopta examined the X-Ray of the injured and he issued X-Ray report Ext.PW-3/A. On completion of the investigation, challan was presented in the Court and notice of accusation under Sections 279, 337, 338 and 201 IPC was put to respondent to which he pleaded not guilty and claimed trial. The prosecution examined 10 witnesses, the statement of respondent was recorded under Section 313 Cr.P.C. in which he pleaded his innocence but the respondent led no evidence in defence. The learned trial Magistrate acquitted the respondent. Hence, the State has filed the petition seeking leave to file appeal. 3. Heard and perused the record. PW-6 Yash Pal complainant in his cross examination has stated that he does not know how many persons were sitting in the car and who was driving the car. PW-8 Vikrant Kaprate has stated that on 29.4.2006 at about 12.15 p.m. he, cousin Atish and Yash Pal were walking, a car bearing registration No.JK-02-1522 came from inside the tunnel in high speed and struck Atish. The person having wheatish complexion was driving the car and he identified the accused who was present in the Court. He has not stated that he knew the driver of the car earlier nor there is anything on record that identification of the accused was got conducted during investigation immediately after the accident. 4. PW-10 Atish has stated that when he was going towards Cemetery then a Zen Maruti car came and struck him and he suffered injury on the leg. The driver of the car was driving the car in rash and negligent manner. Vikrant Kaprate and Yash Pal took him to the …3… hospital. In cross examination, he has stated that he does not know who was driving the car. PW-7 Dr.Hans Raj has stated that injuries recorded by him in MLC Ext.PW-7/A can be caused due to fall. The complainant and the injured have not stated that respondent was driving the car at the time of accident. PW-8 Vikrant Kaprate in his statement has nowhere stated that he knew the respondent / accused prior to the accident. There is no evidence that identification parade was conducted immediately after the accident. PW-8 has admitted that Atish is his cousin. It is not safe to rely on the sole testimony of PW-8 for returning the finding that in fact respondent was driving the car at the time of accident. It has come on record that many persons gathered on the spot but surprisingly the prosecution has not examined any independent person to support the case of the prosecution that accident took place due to rash and negligent driving of the respondent. The learned trial Magistrate has appreciated the material on record properly and the inference drawn by him from the evidence cannot be said to perverse. No case has been made out for grant of leave to file appeal against the impugned judgment. Hence, leave to appeal refused and the petition is dismissed. May 01, 2008 ( Kuldip Singh ), J. (soni)