IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Revision No. 91 of 2005. Judgment reserved on :14.9.2011 Date of decision: 18.10.2011 Sarwan Singh ….. Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the petitioner : Mr. N.K. Thakur, Advocate. For the Respondent : Ms. Ruma Kaushik, Addl. Advocate General with Mr. J.S.Rana, Assistant Advocate General. Kuldip Singh, J. This revision is directed against judgment dated 21.7.2005 passed by learned Sessions Judge, Una, affirming judgment dated 10.12.2004 passed by learned Addl. Chief Judicial Magistrate, Amb in case No.153-1 of 2003/35-II/2002, convicting the petitioner under Section 279 IPC and sentencing him to undergo simple imprisonment for three months and to pay a fine of Rs. 1000/- and in default of payment of fine to further undergo simple imprisonment for fifteen days, simple imprisonment for three months and to pay a fine of Rs.500/- and in default of payment of fine to further undergo simple imprisonment for seven days under Section 337 IPC . Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2. The facts in brief are that PW-7 Rajesh Kumar was coming to Suhari on 27.7.2001 on scooter bearing registration No.PB- 54-5445. At Amb at about 9.30 P.M. a truck bearing registration No.HP-36-1012 being driven by petitioner on wrong side came from Nehrian with high speed and hit the scooter. Rajesh Kumar sustained injuries. The accident took place due to rash and negligent driving of petitioner. The matter was reported to Police. The statement Ex.PW-9/A of Rajesh Kumar was recorded and on that basis FIR Ex.PW-9/B was registered. The site plan Ex.PW-9/C was prepared. On completion of investigation, challan was filed in the Court. 3. The notice of accusation was put to petitioner for offences punishable under Sections 279, 337 IPC and Section 184 of the Motor Vehicles Act. The petitioner pleaded not guilty and claimed trial. The prosecution has examined nine witnesses and produced some documents. The statement of petitioner was recorded under Section 313 Cr.P.C., he denied the prosecution case. He examined DW-1 Sham Kumar in defence. 4. On conclusion of trial, the learned Addl. Chief Judicial Magistrate on 10.12.2004 convicted and sentenced the petitioner for offences punishable under Sections 279, 337 IPC and in appeal learned Sessions Judge on 21.7.2005 upheld the judgment dated 10.12.2004. 5. I have heard Mr. N.K. Thakur, learned counsel for the petitioner and Ms. Ruma Kaushik, learned Addl. Advocate General and Mr. J.S. Rana, learned Assistant Advocate General for the State and have also gone through the record. It has been submitted by learned counsel for the petitioner that the two Courts below have not properly appreciated the evidence on record. They have erred in convicting and sentencing the petitioner. The prosecution has miserably failed to prove the case against the petitioner. The learned Addl. Advocate General has supported the impugned judgment and has prayed for dismissal of the revision. 6. PW-2 Sarup Lal has proved mechanic reports Ex.PA, Ex.PB, of truck No.HP-36-1012 and scooter No.PB-54-5445. DW-3 Dr. Manoj Kumar has stated that he took X-rays of Rajesh Kumar, Parshotam on 28.7.2001 which are Ex.PC, Ex.PD, Ex.PE and Ex.PF. PW-6 Dr. Harjinder Singh has stated that he had examined Rajesh Kumar on 27.7.2001 and found simple injuries on his person and issued MLC Ex.PH. 7. PW-7 Rajesh Kumar has stated that on 27.7.2001 he was going from Talwara to Suhari Rakoli on scooter No.PB-54-5445. He reached Amb crossing at about 9.30 P.M. when a truck came from Nehrian side in high speed and on wrong side and hit the scooter. He sustained injuries on the face, head, teeth and legs. The truck was No.HP-36-1012. Later on he came to know the name of the truck driver Sarwan Singh. The accident took place due to rash and negligent driving of the truck driver. He became unconscious. He was medically examined at Amb. In cross-examination he has stated that he hit the central portion of the truck and his scooter entangled with the truck. He has shown his ignorance that on that date vehicles were crossing only from the left over space as on the other side there was road roller. 8. PW-9 Mohinder Singh recorded the statement Ex.PW- 9/A of Rajesh Kumar and on that basis FIR Ex.PW-9/B was registered. He prepared site plan Ex.PW-9/C. In cross-examination he has stated that scooter struck against the rear tyre of the truck. A suggestion was given to him that site plan was prepared by him wrongly. He has stated that in the centre of the crossing there is place for standing of duty constable for controlling the traffic. He denied the suggestion that road roller had blocked the road and therefore, duty constable gave signals to the vehicles to pass through from one side only. The site plan was prepared by him on next morning. 9. DW-1 Sham Kumar has stated that on 27.7.2001 he had gone to Bazar in jeep for purchasing medicine. At about 9.30.P.M. a truck was following him. A road roller was standing on Una-Amb road. The constable on the crossing was regulating the traffic from other side, there was no space left for crossing of the vehicles by the road roller. The accident took place due to the fault of the scooter driver. A positive suggestion has been given to this witness that he came to know the accident when the scooter struck against the truck. 10. The prosecution has not examined any other independent eye witness to corroborate the statement of PW-7 Rajesh Kumar. It is not the case of the prosecution that accident took place at an isolated place. It has come on record that there were shops nearby. The duty constable has not been examined. The consistent stand of the petitioner is that on the crossing on one side of the road a road roller was standing and enough space was not left for crossing other vehicles. 11. PW-7 in cross-examination has shown his ignorance that on that date the vehicles were crossing from one side only as on the other side the road roller was standing. DW-1 has also stated that there was a road roller on the spot and the vehicles were crossing through one side only. It is significant to note that a positive suggestion has been given to DW-1 which he admitted that he came to know the accident when scooter struck against the truck. In other words the prosecution has not denied the presence of DW-1 on the spot. DW-1 has stated that accident took place due to the negligence of scooter driver. 12. It has also come in evidence that the scooter struck against the rear tyre of the truck and entangled. PW-9 has prepared the site plan on next morning. PW-9 has not stated that he was present on the spot at the time of accident. In his statement he has not made clear on what basis he has prepared site plan Ex.PW-9/C. It appears site plan Ex.PW-9/C does not indicate the correct position of the accident. 13. There are many shops on the spot as per site plan Ex. PW-9/C but surprisingly no witness from shops has been examined by the prosecution nor the evidence has come that at the time of accident the shops were closed. It has been submitted on behalf of the respondent that in criminal revision the evidence cannot be re-appreciated. In Krishnan and another v. Krishnaveni and another, 1997 (4) SCC 241, it has been held that when the High Court notices that there has been violation of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct regularities/incorrectness committed by inferior criminal court in its juridical process or illegality of sentence or order. 14. In the present case, the two Courts below have misconstrued and mis-interpreted the evidence on record in convicting and sentencing the petitioner under Sections 279, 337 IPC. The prosecution has failed to prove the case against the petitioner beyond reasonable doubt, hence impugned judgment dated 21.7.2005 passed by learned Sessions Judge, Una and judgment dated 10.12.2004 passed by learned Addl. Chief Judicial Magistrate, Amb in case No.153-1 of 2003/35-II/2002 are liable to set aside and the petitioner is entitled to acquittal. 15. In view of above discussion, the revision is allowed. The judgment dated 21.7.2005 passed by learned Sessions Judge, Una and judgment dated 10.12.2004 passed by learned Addl. Chief Judicial Magistrate, Amb are set aside. The petitioner is acquitted of the accusation under Sections 279, 337 IPC. The fine amount, if any, deposited by him, be refunded to him, his bail bonds are discharged. October 18, 2011 ( Kuldip Singh ) (sks) Judge.