IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 99 of 2004 Date of decision: 06.10.2010 Kuldeep Kumar ….. Petitioner Versus State of H.P. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes. For the petitioner: Mr. Bimal Gupta, Advocate. For the respondent: Mr. J.S. Guleria, Assistant Advocate General. V.K. Ahuja, J. (Oral): This is a revision petition filed by the petitioner under Sections 397/401 Cr.P.C. against the judgment passed by the learned Additional Sessions Judge, Ghumarwin, dated 28.4.2004, vide which he affirmed the judgment of the Court of learned Additional Chief Judicial Magistrate, Ghumarwin, dated 11.2.202, vide which the learned trial Court had held the petitioner guilty for the offences under Sections 279/304-A I.P.C. and Section 187 of the Motor Vehicles Act and convicted and sentenced as under:- 1. Under Section 279 I.P.C.: The petitioner was sentenced to pay a fine of Rs.500/- and in default of payment of fine, S.I. for three months. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. Under Section 304-A I.P.C.: The petitioner was sentenced to S.I. for one year. 3. Under Section 187 of the M.V. Act:- The petitioner was sentenced to pay a fine of Rs. 500/- and in default of payment of fine, S.I. for three months. 2. Briefly stated, the facts of the case are that on 17.6.1998, a report was received by the police in regard to the accident and the police officer went to the spot, recorded the statement of one Chaman Singh under Section 154 Cr.P.C. In the said statement, he had alleged that he alongwith one Hari Singh were going to shop of one Lachhu Ram to make purchases. At about 1.00 P.M., a boy named Vikas alolngwith a girl named Anju, aged about 5 and 6 years respectively, were going on left side of the road. A truck bearing No. HR 38 B G 6222 came at a fast speed and struck the boy Vikas, who fell down on the road. He alongwith Hari Singh tried to stop the truck, but the truck driver ran away from the spot alongwith truck. He observed that the boy had died on the spot itself and the accident had taken place due to rash or negligent driving of the truck driver. On this report, a case was registered and after investigation, the challan was filed and the petitioner was tried by the learned trial Court for the offences as detailed above and was convicted and sentenced accordingly. 3. On appeal, the conviction and sentence was maintained by the learned Additional Sessions Judge vide his impugned judgment. 4. I have heard the learned counsel for the parties and have gone through the record of the case. 3 5. On appraisal of the record of the case, it is clear that to substantiate its case the prosecution had examined 8 witnesses. PW-4 Chaman Singh is one of the eye witnesses and the complainant who had made a statement under Section 154 Cr.P.C. to the police and he had been examined by the prosecution to substantiate the case of the prosecution. This further finds corroboration from the testimony of PW-6 Dr. D.R. Sehgal, who had conducted the postmortem and gave the postmortem report Ext. PW6/A, in which the cause of death was given as due to severe head injury. These statements were further corroborated by the statement of the Investigating Officer PW-8 Kishan Kapoor, who had gone to the spot, prepared site plan and effected the recovery of the truck and completed the investigation. 6. The submissions made by the learned counsel for the petitioner were that the statement of PW-4 Chaman Singh was not such in which he had given the reasons for the accident that it was due to rash or negligent driving of the truck by the petitioner. It was submitted that the witness, namely, Hari Singh, who was accompanying him, was given up by the prosecution. It was submitted that on reappraisal of the evidence of PW-4 Chaman Singh, the Court can form an opinion that his statement does not establish the guilt of the petitioner. 7. On the other hand, learned Assistant Advocate General had submitted that there can no reappraisal of the evidence by this Court exercising the revisional powers once the learned Additional Chief Judicial Magistrate had held the petitioner guilty, which findings on reappraisal of the evidence had been affirmed by the learned Additional Sessions Judge and there can be no reappraisal accordingly. 4 He had placed reliance upon the following decisions to substantiate his point:- The decision in State of Karnataka Vs. Balu Ingale and others, 1993 CRI. L.J. 1029, shows that in Para-2 of the judgment it was observed by their Lordships that ordinarily it is not open for the High Court to interfere with the concurrent findings of the Courts below specially by reappreciating the evidence in its revisional jurisdiction. 8. These provisions were considered by the learned Single Judge of this Court in the following two decisions: The decision in Bhagwan Dass Vs. State of H.P., 2000(3) Shim. L.C. 175, shows that it was observed by the learned judge that jurisdiction of revisional power can be exercised only when miscarriage of justice is found. The reliance was placed upon the decision in Raj Kumar Vs. State of Himachal Pradesh, 2000(2) Shim. L.C. 422, wherein it was observed as under:- “That the Courts below have rightly held the petitioner guilty of the offence and the findings record by both the Courts are based on sound appreciation of the entire evidence on record adduced by the parties. Though this Court is not obliged to re-appraise and re-asses the evidence again in criminal revision application about the fact whether the petitioner was rash or negligent in driving the vehicle resulting the deaths of the two children by crushing their heads who were traveling in HRTC bus alongwith their parents. It is by now settled by the Supreme Court that in accidental deaths in which the driver of the offending vehicle is found grossly rash and negligent in driving the vehicle, the Court should not lightly award the sentence to such an accused who is responsible for taking the precious life of a citizen. In this 5 view of the matter, no leniency can be shown to the petitioner in awarding the sentence.” Reliance was placed upon the decisions of the Apex Court in State of Orissa Vs. Nakula Sahu and others, AIR 1979 SC 663 as well as State of Kerala Vs. Puttumana Illath Jathavedan Namboodiri, (1999) 2 Supreme Court Cases 452, wherein it was observed that revisional powers cannot be equated with the power of an appellate Court nor can it be treated even a second appellate jurisdiction. It was further observed that ordinarily, therefore, it would not be appropriate for the High Court to reappreciate the evidence and come to its own conclusion when the evidence has already been appreciated by the Magistrate as well as the Sessions Judge in appeal, unless any glaring feature is brought to the notice of the High Court, which would otherwise tantamount to gross miscarriage of justice. 9. Nothing was pointed out that there was any miscarriage of justice in the judgment passed by the Courts below and as such, there can be no reappraisal of the evidence. Both the Courts below have observed that the petitioner was driving the truck, which fact has been admitted by him in his statement under Section 313 Cr.P.C. The road was sufficiently wide and one of the eye witnesses PW-4 had been examined to substantiate the case of the prosecution that the truck was going at a fast speed and struck against the child. It has also come up on record that the petitioner ran away from the spot and there were no marks of applying of brakes at the spot. Thus, there was no miscarriage of justice in the judgments of both the Courts below in holding the petitioner guilty for committing offence 6 punishable under Sections 279 and 304-A I.P.C. and under Section 187 of the Motor Vehicles Act. Therefore, the findings of learned trial Court affirmed by the learned Additional Sessions Judge holding the petitioner guilty, do not call for an interference by this Court. 10. Coming to the question, learned counsel for the petitioner had submitted that the petitioner deserves to be released on probation since he is a young man of the age of 32 years, has got 2 children and is likely to loose his employment, in case he is convicted and sentenced for the offences. He has prayed for release of the petitioner on probation. To substantiate his plea, learned counsel for the petitioner had relied upon the decision in Paul George Vs. State of NCT of Delhi, (2008) 4 Supreme Court Cases 185. On the other hand, learned Assistant Advocate General had relied upon the decision in Dalbir Singh Vs. State of Haryana and others, AIR 2000 Supreme Court 1677, wherein it was clearly held that the benefit of probation can not be extended to persons convicted of offence of causing death by rash and negligent driving. In coming to this conclusion, their Lordships had observed in Paras 13 and 14 as under:- “Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, Criminal Courts cannot treat the nature of the offence under S. 304-A I.P.C. as attracting the benevolent provisions of S. 4 of the Probation of Offenders Act” 11. Reliance was also placed upon the decision of this Court in Bhagwan Dass Vs. State of H.P., 2000(3) Shim. L.C. 175, wherein learned Single Judge relied upon the decisions of the Apex 7 Court and held that leniency under Section 4 of Probation of Offenders Act cannot be awarded. It has been repeatedly held by the Apex Court that the benefit of Probation of Offenders Act should not be granted to a person who commits offence under Section 304-A I.P.C., keeping in view the nature of these cases, which are increasing in number. Thus, the plea of learned counsel for the petitioner cannot be accepted based upon the facts of this case. The decision relied upon by him shows that it was on the facts of that case the Apex Court held that the convict was entitled to be released on probation since he had already faced litigation for 20 years in different Courts. 12. In view of the above discussion, I am of the opinion that no special facts are there on record to hold that the benefit of probation can be extended to the petitioner and as such, this plea raised by the learned counsel for the petitioner is rejected. 13. In view of the above discussion, I accordingly hold that there is no merit in the revision petition filed by the petitioner, which is dismissed accordingly. A copy of the judgment be sent to the Courts below and the learned trial Court shall take steps for issuing warrant of arrest for the arrest of the petitioner to serve the sentence imposed upon him. 14. Before parting with the judgment I may make an observation that in the present case, there were only two eye witnesses, but Mr. K.S. Verma, the then A.P.P, made a statement and gave up one PW Hari Singh, who was also an eye witness, to avoid repetition. This conduct of his needs to be probed as there were two eye witnesses and only one eye witness has been examined 8 and, therefore, it was necessary for him to have examined PW Hari Singh also. The conduct of Shri K.S. Verma, the then A.P.P. needs to be probed departmentally, for which a copy of judgment be sent to the Principal Secretary (Home), to the Government of Himachal Pradesh, Shimla-2, by name, who shall proceed with the matter in the light of the observations made by this Court in regard to the conduct of the said A.P.P. 15. In view of the above discussion, the revision petition filed by the petitioner stands dismissed accordingly. V.K. Ahuja ) October 06, 2010 Judge (BSS)