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2009 DIGILAW 933 (HP)

STATE OF HIMACHAL PRADESH v. RAKESH KUMAR

2009-10-30

V.K.AHUJA

body2009
JUDGMENT V.K. Ahuja, J.(Oral)-This is an appeal filed by the appellant under Section 378 of the Cr.P.C. against the judgment passed by the learned Judicial Magistrate Ist Class, Nurpur, District Kangra, H.P., dated 19.1.2002, vide which the respondent was acquitted of the charge framed against him under Sections 279, 337, 338 and 304-A of the IPC. 2. Briefly stated the facts of the case are a report was lodged with the police by one Usha Devi in which it was alleged that she was going on a tractor alongwith other 30-35 persons. It was further alleged that due to the rash or negligent act of the tractor driver, the tractor overturned and some persons suffered injuries. On this report, a case was registered and during investigation, it was observed that two persons died in the accident and many other suffered injuries. Accordingly, the challan was filed against the respondent/driver of the tractor by the police. 3. On consideration, the learned trial Court framed a charge under Sections 279, 337, 338 and 304-A of the IPC as against the respondent, who pleaded not guilty. The case was tried by the learned trial Court and on conclusion of the trial, the respondent was acquitted. Being aggrieved, the state has preferred the present appeal. 4. I have heard the learned counsel for the parties and have gone through the record of the case. 5. On appraisal of the record of the case, it is clear that the prosecution had examined 14 witnesses to substantiate their case. The statement of two eye witnesses/occupants of the tractor can be said to be most material, which have to be appreciated to see whether the guilt of the respondent stands proved or not. On of them is PW-10 Vijay Kumari, who has stated that she was going in the said tractor and while taking a turn, the tractor overturned, due to which she and other persons suffered injuries. She had also stated that at the time of taking the turn, the speed of the tractor was fast and it could not take a turn due to which the said tractor overturned. PW-11 Guddi Devi, one of the occupants, had stated that the respondent was driving the tractor at a fast speed and at the turning near the temple, it overturned. 6. PW-11 Guddi Devi, one of the occupants, had stated that the respondent was driving the tractor at a fast speed and at the turning near the temple, it overturned. 6. A perusal of the statements of both these witnesses shows that the only thing stated by them was that the respondent was driving the tractor at a fast speed. However, both these witnesses have not stated that the driver was driving the vehicle rashly or negligently or due to the rash or negligent act of the respondent, this accident took place. The mere fact that an accident had taken place and some persons had died or others suffered injuries is not sufficient to hold that it can be concluded that the accident took place due to the rash or negligent driving of the respondent. There may be error of judgment or mechanical failure and it has to be proved by the witnesses that the accident took place due to the rash or negligent act of the respondent/driver, which evidence is missing in the present case. There is no other material witness who may have stated about the cause of the accident. 7. A perusal of the record shows that a plea was also taken by the respondent that he was not driving the tractor and he has also examined two witnesses to substantiate this plea. However, there are no findings of the learned trial Court that the respondent was not driving the vehicle at the relevant time, which fact stood established from the statements of these two witnesses i.e. PW-10 Vijay Kumari and PW-11 Guddi Devi. The learned trial Court had also observed in the impugned judgment that there was some mechanical failure of the brakes prior to he accident and he has referred to the statement of some witnesses in this regard and there is statement of one of the witnesses, namely, PW-13 Urmila Devi that the tractor driver had asked the persons to get down, but they did not get down and the hook came out and the tractor trolley overturned. The reasoning has also been given by the learned trial Court that due to mechanical failure, the accident had taken place. 8. The reasoning has also been given by the learned trial Court that due to mechanical failure, the accident had taken place. 8. Therefore, keeping in view the evidence and the statements of the two eye witnesses referred to above, it is clear that there was no positive evidence to hold that the accident occurred due to the rash or negligent driving of the vehicle. The findings recorded by the learned trial Court holding that the prosecution has failed to prove their case beyond any reasonable doubt cannot be said to be perverse calling for an interference by this Court. 9. In view of the above discussion, accordingly hold that there is no merit in the appeal filed by the appellant/State, which is dismissed accordingly. The bail bonds furnished by the respondent shall stand discharged.