JUDGMENT : Sureshwar Thakur, J. 1. The instant appeal stands directed against the impugned judgment of 7.11.2007 rendered by the learned Judicial Magistrate, 1st Class, Court No. II, Una, District Una, H.P. in Criminal Case No. 9-II-99/98, whereby the learned trial Court acquitted the respondent (for short “accused”) for the offences charged. 2. Brief facts of the case are that on 30.7.1998 at around 7.30 p.m. near Shiv Mandir, Dangoli the accused was found driving a jeep bearing registration no. DLK-D-5372 on a public road, in a rash and negligent manner so as to endanger human life and personal safety of others and while driving as such accused struck his jeep against Baryam Singh and thereby caused Baryam Singh simple and grievous injuries and thereby committed offence under Sections 279, 337 and 338 of IPC. After the accident the accused could not control his vehicle which was coming in high speed and went down on the road. Injured Baryam Singh who taken to District Hospital Una where he succumbed to injuries on 1.9.1998. This incidence was witnessed by Ram Kishan and Charan Dass and the matter was reported to the police. After completing all codal formalities and on conclusion of the investigation into the offence, allegedly committed by the accused challan was prepared and filed in the Court. 3. Notice of accusation stood put to the accused by the learned trial Court qua his committing offences punishable under Sections 279, 337 and 338 of the Indian Penal Code to which he pleaded not guilty and claimed trial. 4. In order to prove its case, the prosecution examined 10 witnesses. On closure of prosecution evidence, the statement of the accused under Section 313 of the Code of Criminal Procedure was recorded in which he claimed false implication. However, he did not choose to lead any evidence in defence. 5. On an appraisal of evidence on record, the learned trial Court returned findings of acquittal qua the accused. 6. The learned Additional Advocate General has concertedly and vigorously contended qua the findings of acquittal recorded by the learned trial Court standing not based on a proper appreciation of evidence on record, rather, theirs standing se-quelled by gross mis-appreciation of material on record. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. Hence, he contends qua the findings of acquittal being reversed by this Court in the exercise of its appellate jurisdiction and theirs being replaced by findings of conviction. 7. The learned counsel appearing for the respondent/accused has with considerable force and vigor contended qua the findings of acquittal recorded by the Court below standing based on a mature and balanced appreciation of evidence on record and theirs not necessitating interference, rather theirs meriting vindication. 8. This Court with the able assistance of the learned counsel on either side has with studied care and incision, evaluated the entire evidence on record. 9. An FIR qua the ill-fated occurrence stood lodged by the complainant, therein he sustained injuries as pronounced in the apposite MLC comprised in PW-8/A. The apposite opinion enunciated therein by the Doctor, unfolds qua Injury No. 7 sustained by the victim/complainant being grievous in nature. 10. To prove the genesis of the occurrence, the prosecution had led into the witness box three eye witnesses to the occurrence who respectively deposed as PW-1, PW-2 and PW-3. 11. The learned trial Court on an analysis of the testimony of PW-1 Charan Dass holding revelations therein qua his deceased father at the time when his person stood struck by the vehicle driven by the accused, his standing not accompanied by PW-4 Surinder Kaur nor by PW-2 Ram Krishan, concluded qua the prosecution abysmally failing to sustain the charge. However, the inference aforesaid drawn by it, on anvil of PW-1 articulating in his deposition comprised in his cross-examination qua his father at the relevant time of occurrence standing not accompanied by other eye witnesses thereto yet cannot enhance any concomitant conclusion as stands drawn by it qua the prosecution thereupon failing to prove the charge against the accused nor also it was apt for the learned trial Magistrate to thereupon conclude qua ipso facto the testimony of PW-1, an eye witness to the occurrence holding no credence. 12. 12. The learned counsel appearing for the respondent has contended qua with the deceased complainant in the aforesaid complaint, recording the factum qua at the relevant time, his standing accompanied only by PW-4, his daughter-in-law hence eroding in its entirety the version qua the ill-fated incident testified by PW-1, an eye witness to the occurrence besides he contends qua the testimony of PW-2 (Ram Krishan) who qua the ill-fated occurrence deposed with intra-se harmony with PW-1 likewise holding no probative worth significantly when the name of PW-1 likewise stands unrecorded in the apposite complaint. 13. An incisive scanning of the entire evidence, significantly the one existing in the cross-examination of PW-1 holding underscorings therein qua the factum of the house of the deceased complainant standing located at a distance of 10 meters from the relevant site of occurrence, thereupon even if the complainant, in the FIR lodged qua the occurrence had proceeded to record therein only the presence thereat alongwith him of his daughter-in-law (PW-4) who, however turned hostile also though PW-3 (Surinder Singh), also a purported eye witness to the occurrence turned hostile yet thereupon the factum of PW-1 not witnessing the relevant incident would reiteratedly for the reasons alluded hereinafter not hence stand effaced. (a) The omission of the deceased complainant, to, in his complaint record the factum of PW-1, his son accompanying him at the relevant site of occurrence would stand subsumed by the factum qua uncontrovertedly the house of the deceased standing located at a distance of 10 meters from the relevant site of occurrence wherefrom PW-1 testified with aplomb qua his witnessing the occurrence, in testification whereof he inculpated the guilt of the accused. (b) Furthermore, the evident factum of the deceased taking, to, trudge the road for crossing from its one side to the other side obviously disabled him to notice the presence outside his homestead of PW-1, his son, whereupon he stood precluded to record in the FIR qua PW-1 witnessing the occurrence. 14. Consequently the mere factum qua no unfoldment occurring in the apposite FIR qua PW-1, accompanying him at the relevant site of occurrence, would not constrain any inference qua the ocular version qua the incident rendered by him wherein he has graphically inculpated the guilt of the accused warranting its standing ousted from consideration nor any inference can be erectable qua its holding no probative sinew. 15. 15. Moreover, the factum pronounced by PW-1 in his cross-examination qua at the relevant time of occurrence the deceased complainant being alone whereas the informant disclosing qua his thereat standing accompanied by PW-4 his daughter-in-law, though visibly contradicts the deposition qua the aforesaid facet existing in the cross-examination of PW-1 yet thereupon the version qua the incident initially propounded in the apposite FIR would not perse stand belied whereas preeminently thereupon the testimony of PW-1 stands rendered discardable, conspicuously when the defence fails to belie the presence of PW-4 at the site of occurrence, testimony whereof for reasons alluded hereinabove succors the genesis of the prosecution case. 16. Be that as it may other eye witnesses to the incident who deposed as both PW-3 (Surinder Singh) and PW-4 (Surinder Kaur) turned hostile, significantly PW-4 who stands unveiled by the informant to be accompanying him at the relevant time also omitted to lend support to the prosecution case. Nonetheless the opening part of the testimony of PW-4 apparently underlines the factum qua hers at the relevant site of occurrence accompanying her deceased father-in-law also the identity of the relevant vehicle stands emphasized therein whereupon the prosecution has visibly succeeded in proving, the enunciations in the FIR qua the informant at the relevant time standing accompanied by PW-4. Moreover PW-4 in her examination-in-chief has therein made vivid communications qua at the relevant time whereat she was accompanying her father-in-law, the latter thereat concerting to cross from one side of the road to the other, whereat a jeep driven at an excessive high speed arrived whereupon it collided with her deceased father-in-law. The aforesaid communication made by PW-4 in her examination-in-chief wherein she identified the relevant vehicle yet with PW-4 feigning ignorance qua the identity of the accused, stemmed an inference qua the incriminatory role of the accused standing not firmly proven. 17. The aforesaid communication made by PW-4 in her examination-in-chief wherein she identified the relevant vehicle yet with PW-4 feigning ignorance qua the identity of the accused, stemmed an inference qua the incriminatory role of the accused standing not firmly proven. 17. For determining with invincibility the aforesaid facet, it is imperative to advert qua the reason prevailing upon the learned APP concerned to proceed to seek permission of the learned trial Court to declare her hostile, with a further permission to cross-examine her, permission whereof stood accorded to him, ensuing from the factum of hers in her deposition reneging from her previous statement recorded in writing where within she had named the accused to be driving the relevant vehicle whereas in her deposition comprised in her examination-in-chief, she feigned ignorance qua the factum of the accused occupying the wheel of the relevant vehicle. The apposite reneging by PW-4 qua the factum aforesaid would not give capitalization to the defence to either contend nor it was apt for the learned trial magistrate to conclude qua thereupon the prosecution failing to prove the guilt of the accused arousable from PW-4 not voicing in her deposition qua the accused at the relevant time occupying the wheel of the relevant vehicle. 18. Any formation of any inference qua existence of trite, relevant clinching evidence for thereupon with invincibility concluding qua the accused hence not standing proven to man the driver’s seat of the relevant vehicle warrants an allusion to the statement of the accused recorded under Section 313 of Cr.P.C. wherein apposite disclosures stand enjoined to carry a denial qua the accused occupying the drivers seat of the relevant vehicle. However an allusion thereto marks the factum of the accused not therein pointedly denying the factum of his manning the driver’s seat of the relevant vehicle. In sequel thereto it stands concluded qua the defence acquiescing qua the factum of the accused occupying the driver’s seat of the relevant vehicle thereupon with PW-4 in the opening part of her examination-in-chief identifying the relevant vehicle also renders proven the inculpatory role of the accused in the ill-fated mishap dehors the factum of hers in the later part thereof omitting to in corroboration vis-a-vis her previous statement recorded in writing depose qua the accused occupying the driver’s seat of the relevant vehicle. 19. 19. Reiteratedly conspicuously when the effect of the omission qua the aforesaid facet stands benumbed also stands dispelled by the apposite acquiescence's emanating from the aforesaid omission of the defence to thereupon belie qua the accused manning the driver’s seat of the relevant vehicle. In addition PW-2 has with firmness lent corroboration vis-a-vis PW-4 qua the relevant factum probandum. The mere factum of his name remaining un-enunciated by the informant in the apposite FIR cannot render his testimony to be incredible, inference wherefrom ensues qua his identity being unknown to the complainant. Moreover, with the defence while subjecting him to cross-examination not putting any apposite suggestions to him for belying his presence at the relevant site of incident, contrarily enhances an inference qua the defence concomitantly conceding qua the factum of his at the time contemporaneous to its occurrence being available at the relevant site of mishap. In aftermath his testimony comprised in his examination-in-chief when remains un-eroded of its sanctity despite his facing the ordeal of an exacting cross-examination hence renders it to acquire accentuated credence. 20. The learned counsel for the accused has contended qua with the mechanical expert one Jeet Singh (PW-7) who examined the relevant vehicle pronouncing in his testification qua it not depicting qua any dents or damages standing entailed thereon whereupon the testimony of PW-1 qua, its, after colliding, with the person of the victim/deceased, its rolling down, standing apparently contradicted whereupon he contends qua the version qua the occurrence propounded by PW-1 holds no vigor. However since PW-1 for the reasons ascribed hereinabove did not eye witness the occurrence, the effect of his testimony qua the occurrence standing belied by PW-7, cannot enhance the propagation made by the defence qua the latter deserving an order affirming the verdict of acquittal recorded by the learned trial Magistrate. 21. The learned trial Magistrate on anvil of the testimonies of the prosecution witnesses qua the deceased suffering an auditory impairment had thereupon concluded qua his standing rendered incapacitated to discern the arrival behind him of the relevant vehicle whereupon it further concluded qua no penally inculpable negligence standing ascribable vis-a-vis the accused. 21. The learned trial Magistrate on anvil of the testimonies of the prosecution witnesses qua the deceased suffering an auditory impairment had thereupon concluded qua his standing rendered incapacitated to discern the arrival behind him of the relevant vehicle whereupon it further concluded qua no penally inculpable negligence standing ascribable vis-a-vis the accused. Assuming the deceased was suffering from an auditory impairment nonetheless the defence has neither reared (a) qua the deceased abruptly arriving at the site of occurrence (b) the accused sounding the horn of his vehicle, for alarming the deceased to give way to the vehicle driven by the accused. Omissions aforesaid, constrain an inference qua the defence acquiescing qua the factum of the accused by omitting to blow the horn of the relevant vehicle, his thereupon not adhering to the standards of due care and caution rather when he evidently was driving his vehicle at a high speed he hence provenly visibly committed a grave penal misdemeanor wherefrom the tenacity of the aforesaid defence is rendered frail. 22. The crux of the above discussion is that the appeal is allowed and the impugned judgment rendered by the learned trial Court whereby it recorded findings of acquittal qua the accused stands reversed and set aside. Accordingly, the respondent/accused stands convicted for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code. Let the accused/convict be produced on 30.3.2017 before this Court for his being heard on the quantum of sentence. Records of the learned trial Court be sent back forthwith.