JUDGMENT : Chander Bhusan Barowalia, J. 1. The present appeal has been preferred by the appellant/State (hereinafter referred to as “the appellant”) laying challenge to the judgment, dated 31.08.2007, passed by the learned Judicial Magistrate 1st Class, Nahan, Camp at Sarhan, District Sirmaur H.P. in Criminal Case No. 26/2 of 2006, whereby the accused/respondent (hereinafter referred to as “the accused”) was acquitted for the offence punishable under Section 279, 337 and 338 of Indian Penal Code, 1860 (hereinafter referred to “the IPC”). 2. Succinctly, the facts giving rise to the present appeal, as per the prosecution, are that on 28.08.2015, around 01:30 p.m. at place Dalighat, the accused was driving pickup van, having registration No. HP-18A-3337, in a rash and negligent manner so as to endanger human life and personal safety of others. It has further come in the prosecution evidence that the accused could not control his vehicle and due to which the vehicle turned turtle causing simple and grievous injuries to its occupants, that is, Mukesh Kumar, Lajwinder Singh, Lekh Ram and Manoj Kumar. The injured were taken to CHC, Mangarh, wherefrom injured Mukesh Kumar was further referred to District Hospital, Solan. The complainant, Shri Bhupender Singh, who is father of injured Mukesh Kumar @ Vinod (hereinafter referred to as “the complainant”) reported the matter to the police, whereupon FIR was registered. Police conducted the investigation and prepared the spot map. The vehicle was seized alongwith its documents and the same was got mechanically examined. The spot was photographed. Medico legal certificates of the injured were also obtained. Medical case summary of injured Mukesh Kumar and his discharge slip were also obtained. After completion of investigation, challan was presented in the Court. 3. The prosecution, in order to prove its case, examined as many as twelve witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. wherein he denied the prosecution case and claimed innocence. The accused, in defence, examined only one defence witness. 4. The learned Trial Court, vide impugned judgment dated 31.08.2007, acquitted the accused for the offence punishable under Sections 279, 337 and 338 IPC, hence the present appeal. 5. I have heard the learned Deputy Advocate General for the appellant/State and the learned counsel for the respondent/accused. 6. The accused, in defence, examined only one defence witness. 4. The learned Trial Court, vide impugned judgment dated 31.08.2007, acquitted the accused for the offence punishable under Sections 279, 337 and 338 IPC, hence the present appeal. 5. I have heard the learned Deputy Advocate General for the appellant/State and the learned counsel for the respondent/accused. 6. The learned Deputy Advocate General for the appellant/State has argued that the learned Court below without appreciating the evidence, which has come on record, has acquitted the accused. He has further argued that the prosecution has established and proved the guilt of the accused beyond the shadow of reasonable doubt. Conversely, the learned vice counsel appearing on behalf of the accused has argued that the prosecution has fail to prove the guilt of the accused beyond reasonable doubt, thus the well reasoned judgment of the learned Court below needs no interference. He has further argued that the learned Court below after properly and correctly appreciating the evidence on record acquitted the accused. Lastly he has prayed that the appeal, which is without merits, may be dismissed. 7. In order to appreciate the rival contentions, I have gone through the record carefully and in detail. 8. The complainant (PW-1) deposed that the occurrence took place on 28th in the month of ‘Bhado’. He has further deposed that on the day of occurrence his son had gone to see fair at Mangarh and enroute he took lift in vehicle having registration No. HP-18A-3337. He was told by his son and other occupants that the accused was driving the vehicle in a rash and negligent manner and at place Dalighat the vehicle turned turtle. As a result, the occupants of the vehicle suffered injuries. His son was taken to Mangarh dispensary and after having been administered first aid, he was referred to Solan, Solan. Both arms of his son were fractured. He got registered FIR, Ex. PW-1/A, at Police Station, Pachhad. PW-1 (complainant) is a hearsay witness as he occurrence did not take place in his presence. He also reported the matter belatedly, however, he divulged that he remained busy in the treatment of his son and thus could not report the matter on time. 9. PW-2, Shri Rajiv (owner of the vehicle) deposed that the accused is his driver. PW-1 (complainant) is a hearsay witness as he occurrence did not take place in his presence. He also reported the matter belatedly, however, he divulged that he remained busy in the treatment of his son and thus could not report the matter on time. 9. PW-2, Shri Rajiv (owner of the vehicle) deposed that the accused is his driver. He has divulged that on the day of occurrence the accused informed him that the vehicle met with an accident at Dalighat. This witness produced the documents of the vehicle, which were taken into possession by police, vide recovery memo Ex. PW-2/A. PW-3, Shri Lekh Raj, was traveling in the vehicle at the time of the accident. He has deposed that he and Lajwinder boarded the vehicle having registration No. HP-18A-3337, which was being driven by the accused. As per his version, Mukesh and his brother were already sitting in the vehicle. The accused was driving the vehicle on a high speed and they asked him to drive slow. When, around 01:30 p.m. they reached Dalighat, while negotiating a curve, due to the high speed the vehicle was turned turtle to its left side. In the said accident he suffered simple injuries and Mukesh sustained grievous injuries. Mukesh was taken to Mangarh dispensary and therefrom to Solan Hospital. As per this witness, the accident took place due to the negligence of the accused. This witness, in his cross-examination, has deposed that he stopped the vehicle for going to the fair. He has also admitted the accident took place on ascending road. He feigned his ignorance that at the time of the accident the patta of the vehicle broke, which resulted into the accident. He admitted that Shri Ranvir Singh (PW-4), whose house is at a distance of 300 meters from the spot of occurrence, immediately arrived on the spot. 10. PW-4, Shri Ranbir Singh, deposed that his house is located on the roadside at Dalighat. On the day of occurrence, around 01:30 p.m. when he was standing in his courtyard, vehicle having registration No. HP-18A-3337 came in a high speed and turned on its left side on a curve. He rushed to the spot and saw that the occupants of the vehicle had sustained injuries. The accused was driving the vehicle and after the accident there had been traffic jam on the spot. He rushed to the spot and saw that the occupants of the vehicle had sustained injuries. The accused was driving the vehicle and after the accident there had been traffic jam on the spot. Many people gathered there and they put the vehicle on its wheels, however, as the vehicle was in neutral gear, it rolled towards the back side and struck with a parafit. Injured Mukesh was shifted to Mangarh Dispensary, wherefrom he was further referred to Solan Hospital. When the police visited the spot, the vehicle was not there. This witness, in his cross-examination, has deposed that his house is at a distance of 150 meters from the spot of occurrence. He has admitted that where the accident had taken place there was ascend and a curve. He did not tell due to whose negligence the accident had taken place. 11. PW-5, Shri Lajwinder Singh, was also traveling in the vehicle. He deposed that he alongwith Lekh Ram (PW-3), took lift in the vehicle at Dinger for going to Mangarh fair. As per his version, the accused was driving the vehicle on a high speed. He asked the driver to drive slow, but, around 01:30 p.m. at place Dalighat the vehicle was turned turtle on a curve and resultantly Mukesh Kumar sustained simple injuries. Ranbir Singh (PW-4) also came on the spot. This witness, in his cross-examination, has deposed that Ranbir Singh has his house at a distance of 500-600 meters from the spot of occurrence. This witness also feigned his ignorance that the patta of the vehicle got broken and due to this the accident took place. 12. PW-6, Shri Mukesh Kumar @ Vinod, deposed that he was traveling in the said vehicle. As per this witness, the accused was driving the vehicle on a high speed. The other occupants of the vehicle told the accused to slow down the speed, but the accused continued driving on a high speed. Around 01:30 p.m. when they reached near Dalighat, the vehicle turned turtle on its left side. Due to the accident he became unconscious and was shifted to Solan Hospital for treatment. Both his arms were fractured in the accident and his X-ray examination was done by the doctor. As per this witness, due to the rash and negligent driving of the accused the accident took place. Due to the accident he became unconscious and was shifted to Solan Hospital for treatment. Both his arms were fractured in the accident and his X-ray examination was done by the doctor. As per this witness, due to the rash and negligent driving of the accused the accident took place. This witness, in his cross- examination, has deposed that where the accident had taken place there was ascending road and a curve. There were 18 to 20 occupants in the vehicle at the time of accident. He has admitted that speed of the vehicle was slowed down by the accused, as there was a curve. 13. PW-7, Shri Manoj Kumar, who was also traveling in the vehicle. As per his version, his brother Mukesh Kumar (PW-6) sustained serious injuries in the accident. Shri Ranbir Singh (PW-4), whose house is near to the spot of occurrence, also rushed to the spot and Mukesh Kumar was taken to Mangarh Dispensary, wherefrom he was referred to Solan Hospital. He informed his family about the accident. He has further deposed that the accident took place, as the accused was driving the vehicle on a high speed. This witness, in his cross-examination, has deposed that at place Dinger the driver himself stopped the vehicle and he alongwith four others boarded the same. This witness has admitted that at the place of occurrence there was a curve. He feigned his ignorance that he heard any sound of breaking something. 8-10 persons were sitting in the vehicle. The house of one Ranbir Singh (PW-4) is at a distance of 300 meters from the spot of occurrence. PW-8, Shri Roshan Lal Chaudhary, Pharmacist, PHC, Mangarh, deposed that on the day of occurrence Medical Officer, PHC, Mangarh, was on leave and he was present in PHC. Around 2:00 p.m. 4-5 persons brought injured Mukesh Kumar for treatment. As per this witness, injured Mukesh Kumar, suffered serious injuries, and was brought in an unconscious state to PHC. Other persons sustained simple injuries. Mukesh Kumar suffered fracture in both of his arms and blood was oozing from his nose. He administered first aid to Mukesh Kumar and referred him to Solan Hospital. This witness proved on record prescription slip, dated 28.08.2005, Ex.PW-8/A. 14. PW-9, Constable Suresh Kumar, deposed that on 02.09.2005 he mechanically examined Pickup Van, having registration No. HP-18A-3337. He issued mechanical report, Ex. He administered first aid to Mukesh Kumar and referred him to Solan Hospital. This witness proved on record prescription slip, dated 28.08.2005, Ex.PW-8/A. 14. PW-9, Constable Suresh Kumar, deposed that on 02.09.2005 he mechanically examined Pickup Van, having registration No. HP-18A-3337. He issued mechanical report, Ex. PW-9/A. He found the suspension system of the vehicle in normal condition. This witness, in his cross-examination, has denied that the accident occurred due to breaking of front left patta of the vehicle. PW-10, Constable Ram Kishan, deposed that on 02.09.2005 vehicle, which was involved in an accident, was taken into possession, vide recovery memo, Ex. PW-2/A, which bears his signatures and the signatures of Babu and Sanjiv Kumar. PW-11, ASI Anup Singh, only proved on record FIR, which is Ex. PW-1/A. 15. PW-12, ASI Chaman Lal Bhatia, deposed that on 01.09.2005 SHO Anup Singh handed over the case file to him for investigation. He prepared spot map, Ex. PW-12/A and took into possession the accidental vehicle vide recovery memo, Ex. PW-2/A. The vehicle was mechanically examined by him and mechanical report is Ex. PW-9/A. He had moved applications, Ex. PW-12/B and Ex. PW-12/C, for having medical case summary and discharge slip of the injured. Photographs, Ex. P-1 to P-3, were clicked, negatives whereof are Ex. P-4 and P-5. He also recorded the statements of the witnesses. Prescription slip, Ex. PW-8/A, dated 28.08.2005, was obtained by him. After completion of investigation he prepared and presented the challan in the Court. This witness, in his cross-examination, has admitted that the vehicle was not there on the spot when he reached there and the same had been taken by the accused. As per the version of this witness, 7-8 persons were sitting in the vehicle at the relevant time. 16. The accused, in defence, examined Shri Jagdish Thakur as DW-1. He has deposed that on 28.08.2005, when he was going to Mangarh fair and reached just ahead of Bagthan, he took lift in a vehicle, which afterwards turned turtle. As per this defence witness, the accident took place as the patta (suspension plank) of the conductor side got broken. The vehicle was being driven on a normal speed. This witness, in his cross-examination, has admitted that the accused was driving the vehicle bearing registration No. HP-18A-3337 at the time of accident. He has specifically denied that accused was driving the vehicle on a high speed. 17. The vehicle was being driven on a normal speed. This witness, in his cross-examination, has admitted that the accused was driving the vehicle bearing registration No. HP-18A-3337 at the time of accident. He has specifically denied that accused was driving the vehicle on a high speed. 17. Manifestly, in the case in hand, the accused was driving the vehicle and the same turned turtle on curve. As per the prosecution, the accident occurred due to the rash and negligent driving of the accused and in contrast to this, the case of the defence is that the accident occurred due to the breaking of patta (suspension plank), which is a mechanical defect. 18. The close scrutiny of the available evidence makes it clear that there was a curve where the accident had taken place and the vehicle was loaded as well, so in such like circumstances, there cannot be high speed of the vehicle. This fact is fortified by PW-6, Mukesh Kumar (injured) who stated that where the accident took place there was a curve and the vehicle had been slowed down by the accused. Undisputedly, the accused was driving the vehicle at the time of the accident, but the record reveals that he was not driving the vehicle in a rash and negligent manner, which fact is further fortified by PW-3, Lekh Ram, PW-5 Lajwinder Singh, PW-6 Mukesh Kumar and PW-7 Manoj Kumar. All these witnesses in their examinations-in-chief deposed that the accused was driving the vehicle in a high speed at the time of accident. However, all these witnesses, in their cross- examinations, admitted that where the accident took place there was a curve and the road is ascending. The prosecution evidence goes to establish that 15 to 20 persons were traveling in the said vehicle. It is well known that when the vehicle is heavily loaded, the speed of the same could not be high. Thus, in these circumstances, it cannot be said with certainty that the speed of the vehicle was high. In State of Himachal Pradesh vs. Madan Lal, Latest HLJ 2003 (2) 925, this Hon’ble Court has held that speed alone is not a parameter to decide rashness or negligence of the driver, the deciding factor is the situation in which the accident occurred. Relevant para 11 of the judgment (supra) is extracted herein-below for ready reference: “11. In State of Himachal Pradesh vs. Madan Lal, Latest HLJ 2003 (2) 925, this Hon’ble Court has held that speed alone is not a parameter to decide rashness or negligence of the driver, the deciding factor is the situation in which the accident occurred. Relevant para 11 of the judgment (supra) is extracted herein-below for ready reference: “11. It may be pointed out that speed alone is not criteria to decide rashness or negligence on the part of a driver. The deciding factor, however, is the situation in which the accident occurs.” 19. In the present case, the eye-witnesses have categorically mentioned about the approximate speed of the vehicle. PW-6, Mukesh Kumar, who suffered serious injuries in the accident, himself stated that where the accident took place there was a curve and the accused slowed down the speed of the vehicle there. In fact, none of the prosecution witnesses could clearly state the manner in which the accident took place. Thus, the possibility of error in judgment while negotiating the curve could not be ruled out, so the negligence cannot be attributed to the accused. 20. It has been held in K. Prakashan vs. P.K. Surenderan, (2008) 1 SCC 258 , that when two views are possible, the appellate Court should not reverse the judgment of acquittal merely because the other view was possible. When judgment of trial Court was neither perverse, nor suffered from any legal infirmity or non-consideration/mis-appreciation of evidence on record, reversal thereof by High Court was not justified. 21. The Hon’ble Supreme Court in T. Subramanian vs. State of Tamil Nadu, (2006) 1 SCC 401 , has held that where two views are reasonably possible from the very same evidence, prosecution cannot be said to have proved its case beyond reasonable doubt. 22. In view of what has been discussed hereinabove and also keeping in view the law, as above, the most natural and inescapable corollary emerges is that the prosecution has failed to prove and establish the guilt of the accused. Thus, the accused cannot be held liable for the commission of the offence punishable under Section 279, 337 and 338 IPC. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, stands disposed of accordingly.