State Of Himachal Pradesh vs Surinder Singh
2021 Latest Caselaw 3989 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH
               AT SHIMLA

             ON THE 18TH DAY OF AUGUST, 2021




                                                     .

                     BEFORE





          HON'BLE MR. JUSTICE ANOOP CHITKARA

          CRIMINAL APPEAL NO.229 OF 2010





    BETWEEN:

    STATE OF HIMACHAL PRADESH


                                     .... APPELLANT


    (BY   SHRI   NAND   LAL       THAKUR,         ADDITIONAL



    ADVOCATE GENERAL, SHRI RAM LAL THAKUR &
    SHRI SUNNY DHATWALIA, ASSISTANT ADVOCATE




    GENERALS, FOR THE STATE)





    AND





    SURINDER SINGH,
    SON OF SHRI RAN SINGH,
    RESIDENT OF VILLAGE
    SHIVNATH, TEHSIL DEHRA,
    DISTRICT KANGRA,
    HIMACHAL PRADESH.
                                     .... RESPONDENT.




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    (SHRI DIVYA RAJ SINGH, ADVOCATE)
    ____________________________________________________________________

              This Appeal coming on for orders this day, Hon'ble




                                                                .

    Mr. Justice Anoop Chitkara, delivered the following:





                            JUDGMENT

FIR Number 23 of 2000 dated 28.2.2000, under Sections 279, 304A of IPC and 184 of M.V. Act, registered at

Police Station, Haripur, District Kangra, H.P. Cr. Appeal 22-G/05/04, decided on 26.11.2009 by Additional RBT No. Sessions Judge, Fast Track Court, Kangra at

Dharamsala, H.P.

Cr. Case No. 111-II/2000, decided on 18.6.2004 by JMFC (1), Dehra, District Kangra, (HP).

CHARGES & TRIAL COURT'S VERDICT

Accused Sections 279, Accused sentenced to undergo six

Surinder 304-A of the months rigorous imprisonment

Singh IPC and also pay a fine of Rs.500/- for offence under Section 279 IPC

and further sentenced to undergo two years rigorous imprisonment with fine of Rs.5,000/- for offence under Section 304-A of the IPC.

In default of payment of fine, accused to further undergo simple imprisonment for six months.

Challenging the judgment of reversal of conviction,

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passed by learned Additional Sessions Judge, Kangra, whereby

he had acquitted the accused overturning the judgment of

conviction passed by the trial Court, for offences punishable

under Sections 279, 304-A of the IPC for causing death by rash

and negligent driving on a public way, the State has come up

before this Court.

2. On 28.2.2000 at about 1:45 p.m., Police Post

Ranital, received a telephonic information that near the Primary

School at Darkata, one truck bearing registration No.HP-36-

3049 which was coming from the side of Dehra and going

towards Ranital, crushed a child and ran away. The name of

the informant was Sat Parkash. After that, the police reached

on the spot. On reaching the spot, Investigator got recorded the

statement of informant, Bal Krishan (PW-4) under Section 154

Cr.PC (Ex.PW4/A).

3. The informant told the Investigator that on

28.2.2000 at about 1:30 p.m., he was standing at the shop of

one Ashwani Kumar (PW-1). At that time, from the side of

Dehra, a truck came which, was loaded with empty crates. At

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that time, the recess of Government Primary School was going

to be over and one boy was walking towards the school. The

truck was being driven in a very high speed and it crushed the

child under its front tyre. The child expired on the spot. The

driver of the vehicle ran away with the truck. The informant

further stated that the child was walking on the side of the road

and the truck crushed him by going on wrong side. Based on

this information, the police registered the FIR mentioned above.

4. The Investigator, Shanti Swarup (PW-9) prepared a

spot map (Ex.PW9/A). He also got the postmortem of the boy

conducted vide inquest report (Ex.PW9/B). The Investigator

also procured the postmortem report (Ex.PA), which opined

that the child had died due to head injury as a result of road

accident. He obtained the photographs of the spot. The truck

was also seized, the driver arrested and the documents of the

truck were also taken into possession. The Investigator

recorded the statements of the spot witnesses under Section 161

Cr.PC. After completion of the investigation, the Officer-in-

Charge of the Police Station launched prosecution by filing

.

report under Section 173(2) Cr.PC.

5. Vide order dated 25.6.2001, learned Additional

Chief Judicial Magistrate put notice of accusation against the

accused for committing offences punishable under Sections

279, 304A of the IPC and Section 184 & 187 of the MV Act.

The accused did not plead guilty and claimed trial.

6. During trial, the prosecution examined all the spot

witnesses as well as the Investigator. After completion of

prosecution evidence, learned trial Court put incriminating

evidence against the accused under Section 313 Cr.PC.

Although the accused denied all the circumstances appearing

against him, but in answer to the final question, he explained

that he was innocent and the case was false. The accused

explicitly stated that the child had come on the road by running

and hit with the truck. He stated that he tried to save the boy

with his maximum possible efforts, but he failed. He claimed

that he is not responsible for the accident.

7. Vide above captioned judgment dated 18.6.2004,

learned JMFC(1), Dehra convicted the accused for offences

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punishable under Sections 279 and 304A of the Indian Penal

Code. However, the accused was acquitted for an offence

punishable under Section 184 of the M.V. Act. Learned trial

Court sentenced the petitioner as captioned above.

8. The accused challenged the judgment of conviction

passed by learned JMFC by filing an appeal before the learned

Sessions Judge, Dharamsala. Vide judgment dated 26.11.2009,

learned Additional Sessions Judge, Fast Track Court, Kangra at

Dharamsala, overturned the conviction and acquitted the

accused of all the charges.

9. Challenging the said acquittal, the State came up

before this Court by filing the present appeal.

10. Mr. Ram Lal Thakur, learned Assistant Advocate

General, has based his arguments on grounds No.6, 7 and 8 of

the appeal. He stated that it remains undisputed that the child

was crushed by the truck driven by the accused in a rash and

negligent manner. Learned Assistant Advocate General, further

drew attention of this Court to the photographs (Ex.P-1 to P-9)

to show that the road was straight and, as such, it was the driver

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who was at fault.

11. To the contrary, Mr. Divya Raj Singh, learned

counsel for the respondent-accused, has drawn attention of this

Court to the statement of spot witness, Ashwani Kumar (PW-

1), who specifically stated that the child was crossing the road

by running because the school bell was going to ring.

ANALYSIS AND REASONING

12. In an unfortunate accident, a small child was

crushed by a truck. The primary reason for the accident is that

the school was absolutely on the edge of the road. A perusal of

photograph (Ex.P-9) shows that the body of the child is not on

the side of the road, but somewhere on the middle of the road

itself.

13. A perusal of site plan (Ex.PW9/A) also mentions the

body of the child to be on around 3-4th portion of the road i.e.

there was a space of 4 feet towards north and 20 feet towards

other side of the road with a width of 24 feet. Furthermore,

from the middle portion of the road, there was a Kachaa road of

4 feet and adjacent to that there was the gate of Primary School.

.

The site plan also mentions skid marks of the truck. Thus, the

stand of the accused taken in the statement recorded under

Section 313 Cr.PC that the child was crossing the road by

running is probabalized.

14. The earlier report (Ex.PW4/A), was registered on

the basis of statement of Bal Krishan (PW-4) recorded under

Section 154 Cr.PC. In the statement, Bal Krishan specifically

stated that at 1:30 p.m., he was standing at the shop of Ashwani

Kumar.

15. The shopkeeper Ashwani Kumar testified as PW-1

and he specifically admitted the suggestion of the defence that

the child was crossing the road by running because the bell of

the school was going to ring. The time of incident is 1:30 p.m.,

which probabalise that the recess would be over after half an

hour break.

16. The statement of Roshan Lal (PW-2) that the child

was on the side of the road is contradicted by the site plan and

.

the photographs.

17. The informant Bal Krishan (PW-4), stated in his

cross-examination that the recess was going to be over and

children were going towards the school. He also admitted it to

be correct that since the recess time was going to be over, as

such, children were in a hurry to reach the school and were

running. He stated that the child who had died in the accident

had crossed the road towards the school at that time. However,

this portion of the statement is contradicted by the site plan and

the photographs of the spot.

18. Sadarshan Kumar (PW-5) admitted in his cross-

examination that the child had crossed the road by running and

there were some more children with this child. He also

admitted that the children were running to cross the road.

19. Som Dutt (PW-7) did not support the case of the

prosecution and stated that the tempo was not at a very high

speed. Thus, two sets of evidence have come up on the record

in this case. One set of evidence, which is in the form of

statement of PW-1 Ashwani Kumar, site plan (Ex.PW9/A) and

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photographs of the road, points out that the child was crushed

when he was on the road. The other set of evidence is that the

child had crossed the road. The set of evidence in favour of the

accused cannot be ruled out because the time of accident was

1:30 p.m., when the recess was going to be over. It is

consistent stand of all the witnesses that the children were

running towards the school because the time of the recess was

going to be over and the school bell was going to ring. This

probabalises the explanations of the accused given in the

statement recorded under Section 313 Cr.PC that all of sudden

the child crossed the road and despite his best efforts he could

not save him.

20. Given this evidence, it is very difficult to say that it

was the accused, who was negligent. However, be that as it

may, when schools are opened on the side of the road and

during recess time, the schools permit the children to cross the

roads, then such accidents are likely to take place.

21. Given above discussions, the prosecution has failed

to prove the case beyond its reasonable doubts.

.

22. I have gone through the judgment of conviction

passed by learned trial Court, which is not legally sustainable.

I have also gone through the judgment of acquittal passed by

learned Sessions Judge which is reasonable and does not call

for any interference by this Court.

Accordingly, there is no merit in the present appeal

and the same is dismissed. Pending application(s), if any, are

also closed.

Anoop Chitkara, Judge.

August 18, 2021 (ks).