Kuldip Singh, J.
1. The acquittal of respondent for offence punishable under Sections 279, 304-A IPC vide judgment dated 31.1.2002 passed in Cr. Case No. 208/2 of 1996/97 has been assailed by State by way of present appeal.
2. The prosecution case, in brief, is that PW-2 Parmod Sood complainant made a statement Ex.PW-2/A and on that basis FIR No. 153/95 was registered on 6.6.1995 at Police Station, Sadar Shimla. The complainant in his statement has stated that on 6.6.1995 he was sitting out side his coal company namely Best Coal Company, Swati aged 10 years, Arushi aged 5 years daughters of his nephew were sitting with him. His nephew Raman and driver Des Raj were also standing there. The two girls stood up to go to their home at Lok Tara Estate, Kaithu. When the two girls were crossing the cart road, a bus bearing registration No. HP-07-0490 came from victory tunnel side in high speed and struck against Arushi who fell down. The driver side front tyre crushed Arushi and she started profusely bleeding. He and Raman took Arushi and carried her in his car to Indira Gandhi Medical College. The accident took place due to rash and negligent driving of the driver. The police came into action. The injured was got medically examined and doctor issued MLC Ex.PW-5/A. The bus was taken into possession alongwith documents, mechanical examination of the bus was got conducted and a report to this effect was obtained, recoveries were made and statements of the witnesses were recorded. The injured later on succumbed to her injuries and postmortem report Ex.PW-5/A of Arushi was obtained. On completion of investigation, challan was presented against respondent for having committed offence punishable under Sections 279,304-A IPC. The notice of accusation was put to respondent accordingly, to which he pleaded not guilty and claimed trial. The prosecution has examined seven witnesses to prove the accusation. The statement of respondent was recorded under Section 313 Cr.P.C., he denied the prosecution case but led no evidence in defence. The learned Chief Judicial Magistrate acquitted the respondent on 31.1.2002, hence this appeal.
3. I have heard Mr. Anshul Bansal, learned Addl. Advocate General for the State and Mr. N.K. Gupta, Advocate, learned Counsel for the respondent and have also gone through the record. It has been submitted on behalf of the State that learned Chief Judicial Magistrate has misconstrued, misinterpreted the evidence on record. The prosecution has led oral and documentary evidence to prove the case against the respondent. The learned Chief Judicial Magistrate has not properly appreciated the evidence on record and has erred in acquitting the respondent. The learned Counsel for the respondent has supported the impugned judgment and has submitted that the learned Chief Judicial Magistrate has closely looked into the matter and thereafter took a possible view which emerges from the evidence on record. In these circumstances, no fault can be found with the acquittal of respondent recorded by learned Court below.
4. PW-1 Anil Sood is a witness of recovery of shoes of Arushi from the spot vide memo Ex.PW-1/A. PW-2 Parmod Sood complainant has proved his statement Ex.PW-2/A vide which he reported the matter to the police. He has proved his signature on inquest report Ex.PW-2/B. He received the dead body of Arushi after postmortem vide memo Ex.PW-2/C. He said that accident took place due to rash and negligent driving of the bus driver. In crossexamination he has denied that accident took place as girl was running on the road. He has supported the prosecution case. PW-3 Raman Sood has stated that he works in Best Coal Company. On 6.6.1995 at about 1.30 p.m. he was standing out side the company alongwith driver Des Raj and Parmod Sood. Arushi and Swati were also there. Both the girls came out for going to their home, a bus in high speed came from tunnel side and struck Arushi and crushed her under front tyre. He and Parmod Sood took her to Indira Gandhi Medical College for medical aid. The bus was HP-07-0490. In cross-examination he has stated that there was no vehicle at that time on the cart road. He denied that girl all of a sudden appeared from behind and struck against the bus. He has also denied that accident took place due to the negligence of the girl.
5. PW-4 Santosh Kumar is the police photographer and has stated that on 6.6.1995, he took photographs Ex.P-1, Ex.P-2 of bus No. HP-07-0490, Ex.P-3 and Ex.P-4 are the negatives. He is also witness of taking into possession bus with documents vide memo Ex.PW-4/A. In cross-examination he has stated that he reached the spot immediately on receiving the information. PW-5 Dr. Tina Anand conducted the postmortem on the body of Arushi and proved postmortem report Ex.PW-5/A. PW-6 Dr. Sanjeev Rana has stated that on 6.6.1995, he examined Arushi Sood and issued MLC Ex.PW- 5/A, according to him injuries No. 1 to 5 shown in MLC Ex.PW-5/A were grievous. PW-7 Vijay Kumar was the conductor of bus No. HP- 07-0490 and has stated that bus was taken into possession vide recovery memo Ex.PW-4/A which bears his signature. The respondent was examined under Section 313 Cr.P.C. and was put question No. 6 that he was driving the bus in high speed to which he replied he does not know, to the same effect regarding high speed of the bus in reply to question No. 5 he said that he does not know.
6. PW-2 Parmod Sood complainant in his statement Ex.PW-2/A before police has stated that he saw the accident which took place due to rash and negligent driving of the bus driver. He has stated that accused present in the Court was driving the bus. PW-3 Raman Sood is also an eye witness. He has also stated that accident took place due to fast driving of the bus by the driver. The defence has not taken stand while cross-examining the eye witnesses of the accident that respondent was not driving the bus No. HP-07- 0490 at the time of accident. The respondent in his statement under Section 313 Cr.P.C. has also not taken a stand that he was not driving the bus at the time of accident. Thus, the prosecution has proved on record that at the time of accident respondent was driving the bus.
7. In postmortem report Ex.PW-5/A of Arushi, her age has been shown 6 years. PW-3 Raman Sood uncle of Arushi has given the age of Arushi 5 years. The defence has not disputed the age of Arushi, therefore, it is reasonable to infer that at the time of accident Arushi was about 6 years old. It is not in dispute that Arushi was injured in road accident on 6.6.1995 and later on she died on the same date. The question is whether the accident and ultimate death of Arushi is attributable to rash or negligent driving on the part of respondent.
8. The learned Court below has not believed PW-2 Parmod Sood and PW-3 Raman Sood on the grounds that they are relatives of the deceased. The prosecution case has also not been believed for not examining any passenger from the bus and any person who was standing nearby the place of accident at the time of accident. It has also been observed that the traffic constable remains on duty at a short distance from the place of accident but he has also not been examined. The speed of the bus was not disclosed by PW-2 and PW-3. PW-7 Vijay Kumar conductor of the bus was examined only to the effect that the bus was taken into possession and not how the accident had taken place. The mechanical report, site plan have not been proved and the Investigating Officer has also not appeared in the witness box.
9. The presence of PW-2 and PW-3 on the spot has been proved on record. They are the natural witnesses. The accident took place soon after when Arushi and her sister came on the road from Best Coal Company where PW-2 and PW-3 were present. PW-2 and PW-3 immediately after the accident took Arushi to IGMC for medical aid which fact also establishes that PW-2 and PW-3 were present on the spot at the time of accident. Simply because deceased was related to PW-2 and PW-3 is no ground to discard the testimony of PW-2 and PW-3.
10. In Kalegura Padma Rao and Anr. v. State of Andhra Pradesh (2007) 12 SCC 48, it has been held as follows:
In S. Sudershan Reddy v. State of A.P. it was observed that relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.
In Namdeo v. State of Maharashtra : 2007CriLJ1819 , it has been held as follows:
In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterised as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive.
The respondent has failed to show that PW2 and PW-3 had some direct or indirect interest in having the respondent somehow or other convicted due to animus or for some other oblique motive. The learned Chief Judicial Magistrate has erred in not believing PW-2 and PW-3 simply on the ground that deceased was related to these witnesses.
11. The lack of proof of mechanical report in the facts and circumstances of the present case is immaterial. There is no whisper in the defence of the respondent that accident took place due to mechanical brake down of the bus. In fact there is no consistency in the defence. PW-2 was given suggestion that accident took place as girl was running on the road. PW-3 was given suggestion that girl all of a sudden appeared from behind and struck against the bus. Therefore, respondent cannot take benefit from the fact that mechanical report of the bus has not been proved.
12. The lack of proof of site plan placed on record is also not of any significance. The prosecution has proved photographs Ex.P-1 and Ex.P-2 of the bus through PW-4 Santosh Kumar photographer who was not cross examined by defence on the position of bus at the time of accident and when photographs were taken. The position of the bus at the time of accident is proved by photographs Ex.P-1 and Ex.P-2.
13. On behalf of the respondent, it has been submitted that Investigating Officer has not been examined which has caused prejudice to the respondent. In Birendra Rai and Ors. v. State of Bihar : (2005)9SCC719 on the non-examination of investigating officer, the Supreme Court has held as follows:
It was then submitted that the investigating officer was not examined in this case and that has resulted in prejudice to the accused. Having gone through the evidence of witnesses and other material on record, we do not find that any prejudice has been caused to the defence by non-examination of the investigating officer. The mere fact that according to the seizure list a stick with bloodstains and pellet marks was seized from the place of occurrence would not advance this argument any further. The seizures have not been proved in this case because the investigating officer was not examined, and the seizure witness has turned hostile. We, therefore, ignore the seizure made and base our decision on the other evidence and the evidence of two eyewitnesses, who have impressed us as truthful.
It has not been pointed out what prejudice has been caused to the respondent for not examining investigating officer. The respondent has not denied the accident. In his statement under Section 313 Cr.P.C. he has said nothing about the cause of the accident. In the peculiar facts of the case respondent cannot take benefit of non-examination of investigating officer.
14. The prosecution has examined PW-2 and PW-3 in order to prove rash or negligent driving of respondent. PW-2 and PW-3 have stated that accident had taken place due to rash or negligent driving of the bus by respondent at high speed. The statement of witness is to be appreciated in the facts and circumstances of the case. The learned Chief Judicial Magistrate has taken a too technical view when he has observed that PW-2 and PW-3 have not disclosed the speed of the bus at the time of the accident. PW-2 and PW-3 have stated that respondent was driving the bus rashly or negligently in high speed and when they said so it cannot be expected from them to pin point the speed of the bus in kilometers.
15. The accident took place at about 1 O'clock in as much as injured Arushi reached hospital at least at 1.30 p.m. as per MLC Ex.PW-5/A. The statement Ex.PW-2/A of PW-2 was recorded at 3.05 p.m. It is reasonable to infer that the investigation in the case was started thereafter on registration of the case. The passengers travelling in the bus were not expected to remain in the bus till 3 O'clock. It was also difficult to trace out the persons, if any, who were standing near the place of accident at the time of accident, unless some body comes forward of his own, therefore, the prosecution case cannot be thrown out on the ground that the bus passengers or the persons, if any, who were standing near the place of accident were not examined. It has not come in the crossexamination of the prosecution witnesses that particular persons were actually present at the place of accident and they had seen the accident. There is no evidence on record that a traffic constable was in fact standing at a short distance from the place of accident at the time of accident and he had actually seen the accident. Therefore, non-examination of traffic constable by the prosecution is of no consequence. The conductor of the bus was examined by the prosecution in order to prove that the bus was taken into possession. He was not cross-examined by the defence despite opportunity granted to cross-examine the said witness. It has not come on record that PW-7 Vijay Kumar bus conductor had actually seen the accident, therefore, prosecution case cannot be suspected that the prosecution has not examined conductor of the bus regarding the cause of accident. The absence of cross-examination of PW-7 indicates that bus conductor was not aware of the accident and therefore, if the bus conductor has not stated regarding the cause of accident then no adverse inference can be drawn against the prosecution.
16. In a case under Section 304-A IPC the driver has some responsibility to show that the accident did not happen on account of his negligence. The principle of res ipsa loquitur comes into play and the burden shifts on the person who was in control of the vehicle at the time of the accident. In Thakur Singh v. State of Punjab : (2003)9SCC208 , the supreme court has held as follows:
It is admitted that the petitioner himself was driving the vehicle at the relevant time. It is also admitted that bus was driven over a bridge and then it fell into canal. In such a situation the doctrine of res ipsa loquitur comes to play and the burden shifts on to the man who was in control of the automobile to establish that the accident did not happen on account of any negligence on his part. He did not succeed in showing that the accident happened due to causes other than negligence on his part.
Mr. Gupta learned Counsel for respondent has relied Syad Akbar v. State of Karnataka AIR 1979 SC 1848 in support of his submission that principle of res ipsa loquitur is not applicable in the present case. In Syad Akbar, accident took place inspite of driver adopting best course to avoid accident. In the present case facts are entirely different. Therefore, Syad Akbar supra is not applicable in the facts and circumstances of the present case. The respondent has not discharged his burden as held in Thakur Singh case and has not succeeded in showing that the accident took place due to reason other than his negligence. In his statement under Section 313 Cr.P.C. he has not said anything about the cause of accident. PW-2 and PW-3 have fully proved that accident took place due to rash or negligent driving of respondent at the time of accident, which ultimately caused the death of Arushi. It is well settled principle what matters is the quality and not quantity of witnesses. It is thus held that prosecution has proved the accusation against respondent and he is held guilty of committing offence punishable under Sections 279, 304-A IPC.
17. The learned Counsel for the respondent has submitted for taking lenient view keeping in view that accident took place about 14 years ago. In Thakur Singh's case (supra), the Supreme Court after noticing Dalbir Singh v. State of Haryana : 2000CriLJ2283 has held that Probation of Offenders Act cannot be invoked in cases involving rash and negligent driving resulting in death of human beings. Therefore, no benefit of Probation of Offenders Act can be extended to the respondent. The respondent crushed Arushi aged about 6 years under driver side front wheel of the bus. The persons in control of the vehicles should drive vehicles carefully, cautiously near the educational institutions and when the school children are on the roads.
18. No other point was urged.
19. The result of the above discussion, the appeal is allowed, the judgment dated 31.1.2002 passed by learned Chief Judicial Magistrate, Shimla in Cr. Case No. 208/2 of 1996/97 is set aside. The respondent/accused is convicted under Sections 279, 304-A IPC. The accident took place about 14 years ago, therefore, in the facts and circumstances of the case respondent/accused is sentenced under Section 279 IPC to undergo rigorous imprisonment for two months and fine of Rs. 500/- , in default of payment of fine, he shall undergo further imprisonment for 15 days, under Section 304-A IPC he is sentenced to undergo rigorous imprisonment for six months and fine of Rs. 5000/- and in default of payment of fine he shall undergo further imprisonment for one month, both the substantive sentences shall run concurrently. The respondent/accused shall get benefit of Section 428 Cr.P.C., if any. The respondent/accused is directed to surrender to serve out the sentence imposed. The bail bonds of the respondent/accused stand cancelled.