IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revison No. 151 of 2003. Date of Decision: June 2, 2010. _______________________________________________ Harpal Singh ….Petitioner. Versus State of Himachal Pradesh ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No For the petitioner : Mr. Rakesh Jaswal, Advocate. For the respondent : Ms. Ruma Kaushik, Additional Advocate General. ______________________________________________________ Dev Darshan Sud, J This revision petition has been instituted by the petitioner against the judgment and sentence imposed by the learned Sessions Judge, Bilaspur, affirming the judgment and sentence passed by the learned Chief Judicial Magistrate, Bilaspur holding the petitioner guilty for offences under Sections 279, 337 and 338 IPC and sentencing him to pay a fine of Rs. 1000/- for offence under Section 279 IPC, to pay a fine of Rs. 500/- for offence under Section 337 IPC and to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1000/- under Section 338 IPC, in default, simple imprisonment for one month 1Whether reporters of the Local papers are allowed to see the judgment? yes for offences under Section 279 & 337 IPC each, and simple imprisonment for three months under Section 338 IPC. 2.The prosecution case is that Hem Raj complainant was driving bus No. HP-24-2327 on the Bilaspur-Panhol Shahtalai road on 6.9.1998 at about 9.45 a.m. When he reached near Sagarview Hotel which is on the National Highway, the accused who was coming from Ghagas side and was driving a Balker (Boggi) No. HP-24-5656 in a rash and negligent manner in the wrong side, struck it with the bus, in which the complainant received injuries, some of which were grievous. On his statement Ext. P-A, F.I.R Ext. PW-10/A was registered with the Police Station at Bilaspur. Site Plan Ext. P.W. 12/A was prepared by the police. The truck/Balker and the bus involved in the accident alongwith documents were taken into custody. 3.Before proceeding with the case, I may note that so far as the injuries are concerned, they stand admitted by the petitioner as by a statement dated 23.6.2000 recorded by the learned Trial Court, the mechanical report Ext. P.X, the X-rays Ext. P-Y and Ext. P.Z and the X-ray Report Ext. P.Z.I have been admitted and on this statement having been made, the Public Prosecutor gave up Dr. N.K Sankhayan, who was to be examined as the doctor to prove these reports in the case. Ext. P-X and Ext. P-Y are the X-rays and Ext. P.Z.I is the report showing that there is fracture of scapula right side. 4.The learned trial Court on consideration of the evidence on record which consisted of 12 witnesses, holds that the version given by Hem Raj (PW-1) that when he was driving the bus, it was hit by the Balker, which was coming from the opposite side driven by the petitioner and that he was driving it on the wrong side of the road, constituted rash and negligent driving. The Court further took into consideration the Site Plan Ext.PW-12/A. PW-3 Raj Kumar is another witness who says that the bus was being driven by the complainant from Bilaspur to Shahatalai, which was rammed by the Balker. The complainant was not at fault. PW-8 Om Raj says that he was going to his home and was travelling in the bus on the fateful day and that the Balker driven on the wrong side by the petitioner struck the bus and that this occurred because of the rash and negligent act of the petitioner. 5.These findings have been re-affirmed by the learned Appellate Court. Learned Counsel appearing for the petitioner urges that there is no evidence on record to show that the petitioner was driving the Balker in a rash or negligent manner. After referring to the evidence on record, he urges that the ingredients of Section 279 of the Indian Penal Code have not been established. He submits that there is no iota of evidence on the record to show that the petitioner was in fact driving the Balker in a rash manner. Negligence, according to the learned Counsel, is not equivalent to rashness. He seeks support from the judgment of the Supreme Court in Braham Dass versus State of Himachal Pradesh (2009) 7 Supreme Court Cases 353 holding that: “8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously the foundation in accusations under Section 279 IPC is not (sic) negligence. Similarly, in Section 304-A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved.” (P.354) 6.The law relied upon by the petitioner is basic that the ingredients of the Section under which a person is charged, have to be established on the record of the case. In the present case, the fact that the Balker was being driven on the wrong side and it smashed into the bus, which was being driven on its right side (i.e on the left side of the road) is not only established from the evidence of the witnesses PW-1 Hem Raj, PW-3 Raj Kumar and PW-8 Om Raj, but in addition, the photographs proved on the record Ext.PW-6/A to Ext.PW-6/D clearly establishes this fact. Considering the evidence in its totality, I cannot find any perversity in the judgment. This revision petition is accordingly dismissed. However, so far as the sentences imposed upon the petitioner are concerned, taking into consideration the fact that the case has been pending for a considerable long time, the sentence of rigorous imprisonment under Section 338 IPC is reduced to two months. This judgment shall not be construed as a precedent in other cases. The learned Chief Judicial Magistrate, Bilaspur shall ensure that the sentence is executed. In revisional jurisdiction, though, I cannot re-appreciate the evidence, yet I have read the evidence in its entirety to see if any perversity or illegality is disclosed or manifested on the record. I am unable to persuade myself that the evidence on record does not support the conviction. The revision petition is dismissed. The bails bonds executed by the petitioner are cancelled. (Dev Darshan Sud), Judge. June 2,2010 (HL)