IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Revision No. 10 of 2003. Judgment reserved on : 21.4.2009. Date of decision: April 28, 2009. Vinesh Kumar …Petitioner. Versus State of Himachal Pradesh ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. Ram Gopal Thakur, Advocate. For the Respondent. Mr. Anshul Bansal, Additional Advocate General. __________________________________________________________ Kuldip Singh, Judge The petitioner has come in revision against the judgment dated 21.12.2002 passed by the learned Additional Sessions Judge, Mandi in Criminal Appeal No. 28 of 1998 maintaining the conviction of the petitioner under Section 279 IPC whereas acquitting him under Section 429 IPC. 2. The prosecution case, in brief, is that statement Ex.PW-5/A of Ramesh Kumar complainant was recorded on 3.7.1995 and thereupon FIR Ex.PW-4/A was recorded. The complainant has alleged that he was on duty from 3.00 p.m. to 6.00 p.m. at Hello Colony gate, Pandoh. At about 4.45 p.m. two mules came running from Battalion link road, ______________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? Yes 2 the petitioner was driving Maruti Van No.HP-02-2718 in a high speed and was coming from Kullu side . He tried to save the mules but lost control of the vehicle and went to wrong side and struck his vehicle against one mule. The mule fell down on the road and started bleeding from leg and mouth. The police visited the spot, site plan Ex.PW-7/A and photographs Ex.P-6 to Ex.P-10 were taken. The broken pieces of glass Ex.P-1 were taken into possession. The van was impounded vide recovery memo Ex.PW-6/B. The mule died lateron and was handed over to its owner PW-6 Nokhu Ram vide Ex.PW-2/A. The mechanical report Ex.PW-3/A of the van was obtained, post-mortem Ex.PX of the mule was got conducted. On completion of investigation, challan under Sections 279 and 429 IPC was presented against the petitioner. He was accordingly charged for offence punishable under Sections 279 and 429 IPC. 3. The prosecution in order to bring home the charge has examined seven witnesses and placed on record some documents. The petitioner was examined under Section 313 Cr.P.C., he denied the prosecution case. The learned Chief Judicial Magistrate convicted the petitioner under Sections 279 and 429 IPC. He was sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs.500/- for the offence under Section 279 IPC. He was further sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 2000/- for offence under Section 429 IPC. In default of payment of fine, the petitioner was ordered to undergo simple imprisonment for 22 days for offence under Section 279 IPC and for a period of two months for offence under Section 429 IPC. In appeal, the learned Additional Sessions Judge on 21.12.2002, acquitted the petitioner under Section 429 IPC but maintained his conviction under Section 279 IPC but 3 reduced the sentence under Section 279 IPC to 15 days, hence the accused has filed this revision. 4. I have heard Mr. Ram Gopal Thakur, Advocate, learned counsel for the petitioner and Mr. Anshul Bansal, learned Additional Advocate General for the State and have also gone through the record. Mr. Thakur has submitted that the petitioner had not driven the vehicle rashly and negligently. The two uncontrolled mules all of a sudden came running on the main road from the link road. The petitioner tried to save the mules by taking the van to the right side but one mule struck against the van. The learned Additional Sessions Judge has not properly appreciated the evidence on record and has erred in convicting and sentencing the petitioner under Section 279 IPC. The learned Additional Advocate General has submitted that the learned Additional Sessions Judge has rightly appreciated the material on record, lenient view has been taken against the petitioner and, therefore, no interference is required in the revision. 5. Ex.PW-5/A is the statement of PW-5 Ramesh Kumar under Section 154 Cr.P.C. He has submitted that vehicle HP-02-2718 came in high speed and in the process of saving the animals, the driver lost the control of the vehicle and struck against one animal. Ex.PW-7/A is the site plan which indicates that the van was coming from Kullu and going to Mandi. The link road Battalion has been indicated by point ‘E’. The prosecution case is that mules came running from link road Battalion. The site plan Ex.PW-7/A provides that van was coming on its correct side. In Ex.PW-5/A, the complainant has stated that the driver of the van tried to save the mules and took the van to the extreme right side of the road and one mule struck the van at point ‘A’. The site plan shows that the driver did his best to save the mule. PW-5 Ramesh Kumar has reiterated the 4 prosecution case in his statement and has stated that two mules came running from Battalion side on the road. The vehicle was on its correct side which lost control, one mule struck against the vehicle. In cross- examination he has stated that the mules while running crossed the road left to right side, the accident took place due to running of the mules. PW-3 Prem Nath had conducted the mechanical examination of the van and had given report Ex.PW-3/A. In cross-examination, he has stated that mechanical report of the vehicle was done at the police post. PW-1 Jai Singh is the photographer, who has proved photographs Ex.P-6 to Ex.P-10. PW-2 Shankar Dass is a witness of handing over of dead body of mule to Nokhu Ram. PW-4 ASI Dhian Singh has proved FIR Ex.PW- 4/A. PW-6 Nokhu Ram is the owner of the mules and has stated that he was not with the mules at the time of the accident. In cross-examination, he has stated that on the date of the accident, Jitender was attending the mules. The prosecution has not examined Jitender Kumar. PW-7 Mul Raj is the Investigating Officer. The petitioner in his statement under Section 313 Cr.P.C. has denied the prosecution case. 6. PW-5 Ramesh Kumar is the eye witness of the accident. The perusal of statement of PW-5 Ramesh Kumar would show that petitioner was coming from Kullu and going to Mandi on correct side, all of a sudden two mules came running on the road from link road and crossed the main road from left to right side. In his cross-examination he has clearly stated that accident took place due to running of the mules. PW-6 Nokhu Ram owner of the mules was not with the mules at the time of accident. He has stated that one Jitender Kumar was attending the mules at that time. The prosecution has not examined Jitender Kumar. The two Courts below have not drawn proper inference from the evidence on record in convicting the petitioner under Section 279 IPC. The petitioner 5 tried his best to save the accident, but it appears the mules were running and behaving wildly and in that process one of them struck against the van. In the facts and circumstances of the case, it cannot be said that accident took place due to rash and negligent driving of the petitioner. The impugned judgment deserves to be set-aside. 7. No other point was urged. 8. As a result of the above discussion, the revision is allowed, judgment dated 21.12.2002 passed by the learned Additional Sessions Judge in Criminal Appeal No. 28 of 1998 convicting and sentencing petitioner under Section 279 IPC is set-aside. The petitioner is acquitted of the charge, fine amount, if any, deposited by him be refunded to him, bail bonds are discharged. April 28, 2009. ( Kuldip Singh ), (GR) Judge.