IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Rev. No.197 of 2004. Date of Decision:12.5.2011. _______________________________________________ Mohinder Pal. ….Petitioner. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the appellant: :Mr. N.K.Thakur, Advocate. For Respondent-2. :Ms. Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J.(Oral). The petitioner has been convicted by the two courts below for offences under Sections 279 and 304-A I.P.C. and has been sentenced to undergo simple imprisonment for three months and fine of ` 1,000/- for the commission of offence under Section 279 I.P.C., simple imprisonment for a period of two years and fine of ` 2000/- for commission of offence under Section 304-A I.P.C. 2. The prosecution case in brief is that on 3.3.1997, Rakesh Kumar son of Dwarka Dass resident of Lal Singhi was proceeding on a bicycle from Una towards Lal Singhi. At around 8.15 a.m., when he reached near Shamshan Ghat Sabzi Mandi, Una, a tempo bearing Whether reporters of the Local papers are allowed to see the judgment.yes. 2 No.HR-47-4370 driven by the accused dashed into the bicycle from behind as a result of which Rakesh Kumar fell down and sustained fatal injuries. The case is that the tempo was stopped at a distance of about 50/60 mtrs. from the site of the accident. PW1 Bakshi Ram reported the matter to the police where his statement under Section 154 Cr.P.C. was recorded on the basis of which F.I.R. Ext. PW1/A was registered. The deceased was taken to the hospital. His post mortem conducted which corroborated the fact that he had died because of the injuries sustained by him in the accident. 3. In order to bring home the guilt of the petitioner herein, ten prosecution witnesses were examined. In his statement under Section 313 Cr.P.C., the petitioner denied his involvement in the case. The specific stand taken by him was that when he reached the spot, the police and village people were standing near the body of the deceased. The police stopped his vehicle for taking the dead body to the hospital but he refused to do so which invited the ire of the police personnel who falsely involved him in the case. 4. On the evidence on record, namely, PW1 Bakshi Ram eye witness of the accident, PW2 Ram Lal who was also an eye witness stated in clear and unequivocal terms that on the fateful day i.e. 3.3.1997 at around 8.30 a.m., deceased Rakesh Kumar who was riding on a bicycle was hit from behind, the evidence of PW3 Dr. Umesh Gautam who proved post mortem report Ext.PW3/A and PW4 Rajinder Singh who was also an eye witness, the learned Court accepted the case of the prosecution. In order to further strengthen its finding, the evidence of PW5 C. Mool Raj who proved the photographs Ext. P6 to P12 and negatives Ext.P13 to P18 and PW6 Saroop Lal, 3 mechanic who proved on record Ext.PW6/A and Ext.PW6/B certifying that there was no defect in the tempo and bicycle, the court convicted the petitioner herein. There was no defence evidence produced by the petitioner herein and in cross-examination of the prosecution evidence also does not suggest the defence put up by him under Section 313 Cr.P.C. that he was innocent person and involved falsely by the police because he had refused to carry the dead body of the deceased to the hospital. 5. In appeal, the points as taken before the learned trial Court were reiterated. One important aspect as urged was that the petitioner was never guilty of rash and negligent driving for the reasons: (a) that he was never involved in the accident and (b) that even if the Court comes to the conclusion that he was driving the vehicle it was not being driven either in a rash or negligent manner and these two factors being fundamental to attract liability under the law and have not been established/proved on the record. The learned court below re-appreciated the entire evidence and dismissed the appeal. The petitioner is now in revision. 6. One of the grounds urged before me is that the mere fact that an accident has occurred is not by itself a pointer to the fact that the vehicle was being driven in a rash and negligent manner unless both rashness and negligence is proved. An accident can occur for number of reasons. Learned counsel submits that the site plan Ext.PW9/B is suggestive of the fact that there was neither any rash nor negligent act committed by the petitioner. Learned counsel also submits that the photographs themselves are telling wherein the body 4 of the deceased is seen lying in the middle of the road with his clothes in a disheveled manner exposing this body. 7. On the evidence of the eye witnesses as held by the learned court below, namely, PW1 Bakshi Ram, PW2 Ram Lal and PW4 Rajinder Singh I am not persuaded to accept this submission made on behalf of the petitioner. So far as the site plan is concerned, it can be used in conjunction with the evidence and not in isolation from the facts of the case. 8. Adverting to the other aspect as to how the clothes of the deceased came to be pulled off since he wase lying on the road,as his trouser is pulled down below and his shirt above his waist, all that I need to say is that the impact of the accident itself could have caused this due to which he fell down from the bicycle. Ext.PW3/A post mortem report shows that the deceased was a young boy only about 4 feet 3 inches tall which itself is a indicator of his age. 9. Both the courts below have concurrently found as a fact on the point not only on the occurrence of the accident but also that the petitioner was rash and negligent in driving the vehicle, therefore, no interference is called for in the findings of the courts below. 10. It is the sentence which causes a dilemma to this Court. Admittedly in this case the accident took place in 1997 and this Court has now been called upon to adjudicate on this aspect after a period of fourteen years. 11. Learned counsel appearing for the petitioner prays that the petitioner be granted the benefit of the Probation of Offenders Act for the reason that he is now aged about 47 years and has three daughters, one of whom is suffering from a physical disability. In case 5 a long sentence of incarceration is imposed upon the petitioner, it would disrupt/ruin his family life as he is the sole bread earner. Learned counsel also submits that this is first time the petitioner is involved in any accident and there is no previous history of conviction. 12. I do find from the facts proved that the deceased was returning to home after selling milk and may have been earning his evocation as such and in these circumstances the view taken by the trial court cannot be said to be harsh more especially when considered from the point of view of curbing the rampant menace of rash driving snuffing out young and innocent lives. 13. Looking into the family circumstance of the petitioner herein, it would be in the fitness of things in case the sentence of imprisonment under Section 304-A is reduced to six months from two years subject to the condition that he shall pay compensation to the extent of Rs. 30,000/- to the family of the deceased. For this purpose, the petitioner shall deposit this amount before the learned trial Court within a period of four months from today. On such deposit being made, the learned trial Court shall ensure that the money is paid to the family of the deceased. It is clarified that this amount shall not be deducted from any amount which may have been paid to the family. It is directed that in case of non deposit of this amount, the sentence of imprisonment shall revive and a direction is issued to the trial court that the sentence be duly and faithfully executed. The other sentence is not interfered with. Both the sentences shall run concurrently. 14. I have been impelled to reduce the sentence of incarceration only on the ground that the family of the petitioner which 6 consists of one physical disabled daughter is depended upon him. Petition is disposed of. (Dev Darshan Sud), Judge. May 12,2011(R)