IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 585 of 2004. Decided on: August 4, 2011. ____________________________________________________ State of Himachal Pradesh. ……..Appellant. Versus Baljit Singh. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting1?Yes. For the appellant : Mr. A.K.Bansal, Addl. Advocate General. For the respondent : Mr. Naresh K. Thakur, Advocate. _______________________________________________________ SURINDER SINGH, J (oral): The State has challenged the acquittal of the respondent, recorded by the learned Additional Sessions Judge, in Cr.Appeal No.11/2201 RBT No.12/2004. on 14.10.2004, whereby the judgment of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, for the offences punishable under Sections 279 and 337 of the Indian Penal Code was set-aside. 2. In short, the prosecution case can be stated thus. The respondent was a driver of Punjab Roadways. On 26th August, 1999, he was driving Bus Whether reporters of the Local papers are allowed to see the judgment? - 2 - bearing registration No.PB-12C-9332, which was coming from the side of Chintpurni and going to Fazlika. Around 6 A.M. on the aforesaid day, it is alleged to have hit Tempo No.DL-2CB-2809 being driven by complainant Raj Kumar near Mubarakpur causing simple injuries to him and grievous injuries to other passengers of the Tempo. 3. Police was accordingly informed. PW11 ASI Avtar Singh took up the investigation, visited the spot and recorded the statement of the complainant Raj Kumar under Section 154 of the Code of Criminal Procedure, which culminated into FIR Ext.PW6/B. Police took the photographs of the vehicles in question on the spot and prepared site plan Ext.PW11/A. Injured were got medically examined and their MLCs were obtained by the police. During investigation, statements of the witnesses were also recorded under Section 161 of the Code of Criminal Procedure. 4. After completing the investigation, the case was presented in the Court for the trial of the respondent. Notice of accusation was put to him, to which he pleaded not guilty and claimed trial. - 3 - To prove its case, prosecution examined its witnesses and respondent was also examined under Section 313 of the Code of Criminal Procedure. Though, he admitted that he was the driver of the Bus in question, but denied the rash and negligent act of driving. 5. After hearing the parties, at the end of trial, the respondent was convicted and sentenced to undergo the imprisonment for a period of one month and to pay a fine of `500/- under Section 279 whereas, simple imprisonment for a period of three months and to pay a fine of `1,000/- for the offence under Section 337 of the Indian Penal Code with default clauses. Both the sentences were ordered to run concurrently by the learned trial Court. 6. Feeling aggrieved and dissatisfied by the impugned judgment of conviction and sentence, the respondent filed an appeal before the Court of Sessions, which came to be decided by the learned Additional Sessions Judge and on reappraisal of the evidence, the respondent was acquitted. State felt dissatisfied by such acquittal, hence the present appeal. - 4 - 7. Shri A.K.Bansal, learned Additional Advocate General, for the State forcefully argued that the learned Additional Sessions Judge set unrealistic standard while evaluating the statements of the prosecution witnesses and the reasons recorded for the acquittal by the first Appellate Court are not borne out from the record, as such impugned judgment is unsustainable and prayed to restore the judgment of conviction and sentence passed by the learned trial Court. 8. Contra, Shri Naresh K. Thakur, learned counsel for the respondent countered the above arguments by making submissions that it was a Tempo driver PW2 Raj Kumar, who was rash and negligent in driving his vehicle, whereas, respondent on seeing the speeding Tempo applied the brakes of his bus, but even despite that it hit the bus. He also led me through the evidence on record and made further submissions that respondent’s rash or negligent act of driving the Bus has not been proved and there is no perversity in the judgment of acquittal. - 5 - 9. I have given my thoughtful consideration to the rival contentions of the parties and have reappraised the evidence on record. 10. The arguments raised by the learned counsel for the respondent are not at all convincing, as in the above fact situation proved on record, the rash and negligent driving by the respondent stands proved, thus the findings of acquittal recorded by the learned Additional Sessions Judge are not borne out from the record, for the reasons that PW2 Raj Kumar, complainant who was driver of the Tempo testified that when he reached near Mubarakpur, the bus which was being driven by respondent in a high speed came from opposite side and hit his Tempo, which was on the extreme left side of the road. By this accident, PW3 Melo Devi and PW5 Charanjit Kaur sustained injuries and he also proved his statement Ext.PW1/A. Though, he was subjected to the lengthy cross-examination and admitted that at the point of accident, there was a slight curve, but he specifically denied that on seeing the Tempo, bus driver had stopped its bus. The fact of accident stands substantiated by - 6 - PW3 Melo Devi and even PW4 clearly stated that it was the respondent, who was the driver of the bus, which was in a high speed and the Tempo driver on seeing the speed of the bus had slowed-down his vehicle on extreme left side of the road. He further stated that the police had also arrived at the spot. PW5 Charanjit Kaur also lent strength to his version. 11. The services of PW7 Vijay Kumar, Photographer were requisitioned by the police on the same day and he proved the photographs Exts.P4 to P6 alongwith its negatives having taken by him. No suggestion has been put to him and also to PW11 ASI Avtar Singh that before taking photographs or preparing site plan Ext.PW11/A, the spot was disturbed. 12. On the critical examination of the aforesaid evidence, at least it is clear that the bus was in a high speed. Though, it is a settled law that the speed is not a criteria even to infer the rash or negligent act of driving, but in the instant case, it is corroborative factor. On examining the site plan and photographs, it is ostensibly clear that there was a slight curve on the public highway. Both the vehicles were visible to the drivers of the each of - 7 - the vehicles. Photographs as well as site plan indicate that the Tempo in question, which was being driven by PW2 Raj Kumar was on its extreme left side of the road, whereas, respondent, who was driving the Bus had left his own side and came in contact with the Tempo on its extreme right side leaving about 7 ½ feet metalled road, thereby hitting the side of Tempo which was partially on Kachha portion and partly on metalled road. 13. Once the accident stands proved and the circumstances which appear on the record conclude the rash or negligent driving by the offending vehicle, immediately the onus shifts upon such driver to prove due care and caution. 14. In the instant case, neither in the cross- examination of the prosecution witnesses nor in the statement under Section 313 of the Code of Criminal Procedure, respondent explained what causes beyond his control, responsible for the accident despite taking due care and caution by him could not probablised his defence. 15. Thus, in the aforesaid proved circumstances, the bus driven by respondent has been proved to - 8 - be in a high speed, left its own side and hit the Tempo in question. Therefore, the guilt of the respondent for the offences punishable under Sections 279 and 337 of the Indian Penal Code stands fully established. Thus the reasons for acquittal recorded by the learned Additional Sessions Judge are perverse, therefore, unsustainable and set-aside, as such, his conviction passed by the learned trial Court is restored. 16. Confronted with the above situation, Shri Naresh K. Thakur, learned counsel for the convict- respondent prayed for leniency on the grounds that the respondent, at the time of alleged accident was aged about 30 years and he suffered the torture of trial and uncertainty in appeal. Further he is sole bread-earner of the family and accident had taken place more than a decade ago i.e. in the year 1999. He has his family to support and is not a previous convict. 17. I have considered the above submissions and also the extenuating and mitigating circumstances in the case. The respondent has not been proved to be a previous convict and there is nothing on - 9 - record to show that he committed similar offence even after the accident in question. Though, the respondent cannot be granted the benefit under the Probation of Offenders Act in view of the judgment of Supreme Court, however, in my opinion, the ends of justice would be met, in case the respondent is sentenced to pay a fine of `5,000/-, only for the offence punishable under Section 337 of the Indian Penal Code and also that the offence under Section 279 of the Indian Penal Code has merged into the graver offence under Section 337 of the Code. Further sentencing him to imprisonment after such a long time will be too harsh to him. In default of payment of fine, the respondent shall undergo simple imprisonment for a period of one month. Ordered accordingly. Consequently, the sentence passed by the learned trial Court would stand automatically modified to the above extent. 18. The amount of fine shall be deposited by the respondent in the learned trial Court on or before 20.9.2011. The fine if already deposited earlier in the case shall be adjusted. - 10 - 19. The appeal stands disposed of in the above terms. 10. Send down the records. (Surinder Singh), Judge. August 4, 2011. (Pds)