JUDGMENT : Vivek Singh Thakur, J. State of Himachal Pradesh has approached this Court against acquittal of respondent vide judgment dated 1.12.2006 passed by Sub Divisional Judicial Magistrate, Jawali, in Criminal Case No. 101-II/2002, titled State of HP vs. Balkar Singh @ Suram Singh, in case FIR No. 21 of 2002, dated 22.1.2002, registered in Police Station Jawali, under Sections 279, 338 and 304-A of Indian Penal Code (in short ‘IPC’). 2. Prosecution case, in brief, is that on 22.1.2002 at about 9 AM, respondent/accused, while driving Maruti Van No. PAC-3468 in rash and negligent manner in village Barot, had hit Chiru Ram and dragged him for 60 to 70 feet causing his death on the spot. 3. On the basis of statement of PW3 Baldev Singh recorded under Section 154 Cr.P.C. (Ext.PW2/A), FIR was registered by police and investigation was carried out. In his statement, PW3 Baldev Singh had stated that Chiru Ram was walking on his own side on the side of road and van coming from Fatehpur side, on wrong side, with high speed had hit and dragged Chiru Ram between both front tyres for a distance of 60 to 70 feet causing death of Chiru Ram and the said van was being driven by Suram Singh son of Gorkhu Ram resident of Bankehar and the said incident was also witnessed by Karnail Singh (not examined) and Bhawani Singh (PW1-A), who were basking in the sun near the tree of Pipal. It is claimed by Baldev Singh that accident had taken place for rash, negligent and wrong side driving of driver of van No. PAC-3468. 4. On completion of investigation, finding prima-facie complicity of respondent/accused in commission of alleged offences, a challan was presented against him in the Court. 5. After putting Notice of Accusation to respondent/accused, prosecution has examined 8 witnesses to prove its case, whereas, after recording the statement of respondent/accused under Section 313 Cr.P.C., no evidence was led by respondent/accused in defence. 6. Accident in question has not been disputed. But, identification of driver, driving the vehicle at the time of accident and the manner in which accident had occurred have been disputed. 6. Accident in question has not been disputed. But, identification of driver, driving the vehicle at the time of accident and the manner in which accident had occurred have been disputed. Claim in defence is that respondent/accused was not driving the vehicle and Chiru Ram was crossing the road without noticing the van and had come in front of vehicle on the middle of road and vehicle could not be stopped for failure of brakes. 7. PW1 Dr. R.K. Mehta has proved the factum of death of Chiru Ram and cause of death with further qualification that injuries causing the death of Chiru Ram can be caused in a motor vehicle accident. He has also proved postmortem report Ext.PW1/A on record, which has not been disputed. 8. PW2 Baldev Singh, complainant as well as eye witness, and PW1A Bhawani Singh, eye witness, have supported the prosecution case in examination-in-chief in general and had also deposed about witnessing the incident and investigation carried out by Investigating Officer on spot including taking of photographs of spot and dead body, preparation of site map and also recording of their statements by police. In cross examination, both of them have not denied the suggestion put by defence counsel that Chiru Ram along with another person was crossing the road, rather, it is stated by them that they did not know about this fact and further that another person, who was crossing the road along with Chiru Ram, had tried to pull Chiru Ram and during that effort, shawl of Chiru Ram had come in the hands of that another person. PW2 Baldev Singh has stated it to be correct that thereafter van had hit Chiru Ram with further qualification that he did not know what had happened prior to that. Whereas PW1A Bhawani Singh has stated that he did not know who was crossing the road along with Chiru Ram at the time of occurrence of accident as he used to wear spectacles but on that day, he was not having the same. In statement recorded under Section 161 Cr.P.C., PW1A Bhawani Singh had stated number of vehicle and he had explained in his crossexamination that he was knowing the number of van, but, how and why he has not clarified, rather, he has also stated that he did not know who was owner of van and whereto van belonged. In statement recorded under Section 161 Cr.P.C., PW1A Bhawani Singh had stated number of vehicle and he had explained in his crossexamination that he was knowing the number of van, but, how and why he has not clarified, rather, he has also stated that he did not know who was owner of van and whereto van belonged. PW1A has also stated that name of driver as Suram Singh was stated by him to police, but, he was not knowing Suram Singh and public had informed him the name of driver, but, he was not knowing the native village of Suram Singh and he did not remember from whom he had inquired about name of Suram Singh. According to him, police had not got identified Suram Singh from him, however, he had seen the driver. He has admitted that he had also come to the Court on previous date for his evidence in this case and he had seen the respondent/accused only on that day and before that he had seen him in Barot. In examination-in-chief, he has stated that van had stopped after striking with stone, but, in cross-examination he has denied not only the said fact but also making of such statement at any point of time. In examination-in-chief, he has stated that front glass of van had broken in accident. 9. According to PW2 Baldev Singh, vehicle had hit Chiru Ram and he (Chiru Ram) was dragged in between the tyres and thereafter, a stone had come under the tyre of vehicle, whereupon Chiru Ram was left behind and vehicle had stopped at a distance of 10-50 feet and Chiru Ram had died on the spot. In cross-examination, he has stated that they had inquired the name of driver from the boys. According to him and Bhawani Singh, driver remained on spot, but, later on they did not know where he had gone. According to Bhawani Singh, two persons were sitting in van, whereas, according to Baldev Singh, three persons were sitting on front seat. According to him there were no skid marks on the spot on the road and he has stated that it might be possible that in site plan police might have shown skid marks on spot, but according to him, it was incorrect. According to him there were no skid marks on the spot on the road and he has stated that it might be possible that in site plan police might have shown skid marks on spot, but according to him, it was incorrect. He has admitted that he had seen the accused for the first time in the Court, but, had again stated that he had also seen him earlier, but, he was not knowing about his village and caste. PW2 Baldev Singh and PW1A Bhawani Singh, are real brothers. The third witness Karnail Singh has not been examined. These witnesses are real brothers and they have admitted that Chiru Ram was their co-villager and customer also. Baldev Singh has admitted, even to the extent, that he has deposed in Court according to statement read over to him by police. 10. PW3 Uttam Singh is a formal witness who has proved the seizure of Van No. PAC-3468 vide memo Ext.PW3/A, but, in his cross examination, he has expressed his ignorance about owner or driver of vehicle. According to him, van, parked on the spot along with key, was taken in possession by police. 11. PW4 Rajinder Kumar is a mechanic, who had inspected the vehicle on request of Investigating Agency. He has proved his mechanical report Ext.PW4/A on record. In report, he has stated, and also admitted in cross examination, that brake system of vehicle was poor. He has admitted in cross examination that with such poor brake system, despite being driven at low speed, the vehicle would not be stopped easily. 12. PW5 Ravinder Singh is a photographer, who had taken photographs of the spot on the day of accident. In his cross examination, he has admitted that deceased had collided with vehicle on the middle of road and pieces of broken glass were lying on middle of road. This admission is duly corroborated by facts recorded by Investigating Officer in site map Ext.PW8/A, wherein, at spot ‘H’ at the middle of road, pieces of broken glass of van have been depicted. It is the case of prosecution that at the time of hitting Chiru Ram from front side of vehicle, front glass of van was broken. 13. This admission is duly corroborated by facts recorded by Investigating Officer in site map Ext.PW8/A, wherein, at spot ‘H’ at the middle of road, pieces of broken glass of van have been depicted. It is the case of prosecution that at the time of hitting Chiru Ram from front side of vehicle, front glass of van was broken. 13. According to PW1A Bhawani Singh and PW2 Baldev Singh, accident had taken place on side of road, whereas, according to site map as well as statement of PW5 Ravinder Singh, accident had taken place in the middle of road. Investigating Officer has shown skid marks on side of road, but, away from the place where broken pieces of glass of van have been reflected in site map, where PW2 Baldev Singh has deposed that there were no skid marks on the spot, which creates doubt about the claim of prosecution with respect to existence of skid marks on spot. It may be possible that those skid marks might be of a different vehicle, because, it is not possible that front glass of the vehicle is broken in middle of road, but, tyres of the said vehicle were on the side of road. Therefore, the manner in which accident had taken place has not been clearly established on record. Even PW1A Bhawani Singh and PW2 Baldev Singh have expressed their ignorance to the suggestion put by defence that accident had taken place on middle of road when Chiru Ram was crossing the road along with another person. 14. PW4 Rajinder Kumar and PW5 Ravinder Singh had further fortified the version of defence that accident did not take place as alleged by PW1A and PW2, but, for different reason including the poor brake system of vehicle. 15. There is also confusion to witnesses with respect to name and identity of driver. Everywhere, in their statements, PW1A Bhawani Singh and PW2 Baldev Singh have stated that name of driver was Suram Singh, whereas according to prosecution case, Balkar Singh was driving the vehicle, though, PW8 ASI Kulvinder Singh, the Investigating Officer, has tried to establish identity of the respondent/accused by saying that accused was got identified from Baldev Singh and Bhawani Singh on spot, but, the said fact has been denied by these witnesses in their statements recorded in Court. PW8, Investigating Officer, has also stated that owner and driver of vehicle was one and the same person and vehicle was released to driver, whereas, as a matter of fact, vehicle was released to Buta Singh the registered owner of vehicle through one Rakesh Kumar and respondent/accused is not owner of vehicle. It is admitted by Investigating Officer that brake system of vehicle was found poor on mechanical inspection of it and he has also admitted that at the time of accident, deceased Chiru Ram was crossing the road, which is contrary to statements of PW1A Bhawani Singh and PW2 Baldev Singh. 16. PW6 Bagicha Singh is also witness to seizure of documents of vehicle, whereas, PW7 SI Gurbaksh Singh is SHO, who had prepared challan and presented it in Court. 17. PW6 Bagicha Singh has been examined to establish that the documents of vehicle were handed over to police by Balkar Singh, but, in cross examination he has categorically stated that in his presence no document was produced by Balkar Singh to police and memo Ext.PW6/A prepared by police was not read over to him. 18. As discussed supra, for the material placed on record by way of evidence, including statements of eye witnesses and site map Ext.PW8/A, it cannot be said with certainty that accident had taken place in the manner as claimed by prosecution and it cannot be said with certainty that respondent/accused was driving the vehicle at the time of accident. 19. There is nothing on record to establish that Suram Singh and Balkar Singh was and is one and same person. None of the witnesses has stated so in their oral depositions and no document has been placed on record to establish this fact. Even the Investigating Officer, PW8 is silent in this regard. The only material on record, in this regard, is that in challan name of accused has been mentioned as Balkar Singh @ Suram Singh, which is not sufficient to prove that Suram Singh, alleged to be the driver in the statements of witnesses, is Balkar Singh. 20. From aforesaid discussion, it is apparent that State has failed to establish the foundation of case by leading cogent, reliable, trustworthy and confidence inspiring evidence and prove its case against respondent/accused beyond reasonable doubt. As such, I do not find any illegality, irregularity or perversity in the judgment passed by trial Court. 20. From aforesaid discussion, it is apparent that State has failed to establish the foundation of case by leading cogent, reliable, trustworthy and confidence inspiring evidence and prove its case against respondent/accused beyond reasonable doubt. As such, I do not find any illegality, irregularity or perversity in the judgment passed by trial Court. Therefore, respondent/accused is entitled for benefit of doubt more particularly for the reason that respondent/accused is having the advantage of being acquitted by trial Court fortifying the presumption of his innocence. In view of above, appeal is dismissed being devoid of any merit. Bail/surety bonds furnished by respondent and his surety are discharged. Record be sent back to the concerned Court.