State of Himachal Pradesh vs Gurmail Singh

Surinder Singh, J.—The State has felt aggrieved by the judgment passed by the learned Additional Sessions Judge in Cr. Appeal No. 17-D/2001, decided on 17.5.2004, whereby the judgment of conviction and sentence, passed by the learned trial Court, for the offence punishable u/s 338 of the Indian Penal Code was set-aside, consequently the Respondent was acquitted.

Shri A.K. Bansal, learned Additional Advocate General for the Appellant-State vehemently argued that the learned first Appellate Court did not take into account the version of the eye witness, which proved the case of the prosecution beyond reasonable doubt. He led me through the evidence on record and submitted that the approach of the learned first Appellate Court in appreciating the evidence was faulty, which caused miscarriage of justice.

I have considered the above argument and have carefully gone through the evidence on record.

Precisely, the case of the prosecution is that on 16.3.1999, at about 1.50 p.m., Respondent was driving a private Bus bearing registration No. HP-39-5449, on a public highway and hit the scooterist at the place known as Bani with the result, scooterist alongwith pillion rider sustained the fractures of their legs.

PW1 Anup Kumar lodged the FIR, but he was declared hostile by the prosecution. He did not say anything about rash and negligent driving by the driver of the bus. He also stated that the bus was ascending and in normal speed. PW3 Baldev Raj is the scooterist. He was having ''learner-driving licence'' and PW2 Om Parkash was the pillion rider and admittedly, he was not having any driving licence, as stated by the Investigating Officer. Further according to PW3, when he just emerged from the approach road at Bani to the main highway, the bus came and struck against his scooter causing the accident. He did not make any reference as to what precaution he took when he emerged from the approach road to the highway, knowing fully well that there will be rush on the public highway.

The independent witness PW7 Kuldeep also did not support the case of the prosecution, as such, he was declared hostile. He admitted the case of the Respondent that the bus in question was on its left side of the road. With respect to rash or negligence driving, he was confronted with his statement recorded u/s 161 of the Code of Criminal Procedure, to which he denied.

The photograph Ext.PW6/A on the record substantiate the fact that the driver of the bus was on the extreme left side of the road. There are also brake skid marks, which means that the driver of the bus took due care and caution to avert the accident. Though PW3 has stated that the bus was on the high speed, yet speed is not a criteria to prove the rash or negligent driving by the motorist. Prosecution is obliged to prove something more in order to satisfy the ingredients of the offence. If the accident has occurred, the act of rash or negligent driving is not automatically to be presumed, but it is required to be proved in accordance with law, to which in the present case, prosecution has failed to discharge its onus in view of the aforesaid attending circumstances, which probablised the defence.

Therefore, for the aforesaid reasons I do not find any infirmity in the acquittal of the Respondent, as such, appeal sans merits and is accordingly dismissed.

The Respondent is discharged of his bail bonds entered upon by him at any time during the proceedings of this case.

Send down the records.