IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.216 of 2003. Date of decision: 15.7.2010. Dev Raj … …Petitioner Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Petitioner: Mr.Virender Singh Rathore, Advocate. For the Respondents: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. The petitioner has filed this petition against the judgment and sentence imposed by the learned Additional Sessions Judge-(II), Kangra at Dharamshala, affirming the judgment and sentence of the learned Judicial Magistrate Ist Class, Dharamshala, convicting the petitioner for offences under Sections 279, 304-A of the Indian Penal Code. 2. The petitioner was sentenced to undergo simple imprisonment for six months and a fine of Rs.500/- under Section 279 IPC and rigorous imprisonment for a period of one year and a fine of Rs.3,000/-, in default of payment of fine to undergo 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 further simple imprisonment for two months under Section 304-A of the Code. 3. The prosecution case in brief is that on 25.8.1996, Dr.C.S. Rathore, PW-4, sent information to the Police Station, Dharamshala vide Ex.PW-11/A, informing them that one accident case, in which Pawan Kumar had died, has been reported to the Hospital. Thereupon the police recorded the statement of Mool Chand PW1 under Section 154 of the Code of Criminal Procedure stating that on 25.8.1996 he was at Hotel Vispring Resort near Ghanyara and at around 4.15 P.M. when he was going to his home, he found Pawan Kumar in an injured condition and two boys were standing there who told him that Pawan Kumar fell down from the jeep. He took him into the hospital in a taxi. The investigation followed thereafter and petitioner was convicted for offences as charged. 4. To consider the entire case, the evidence of PW-1 Mool Chand, PW-2 Master Varinder Kumar, aged about 8 years may be considered. Mool Chand PW-1, states that on the day of accident at around 4/4.30 P.M. he was going to his house when on the way he saw Pawan Kumar lying in an injured condition and two boys were standing near him who told him that one Jeep bearing registration No.HP-39-3693 hit Pawan Kumar and sped away from the spot. He was lying in an injured condition and thereafter he took him into Hospital in a 3 taxi. In his cross-examination he states that he did not witness the accident. 5. PW-2, who was aged about 8 years, was put in the witness box after the Court ascertained that he was capable of giving logical answers to the question put to him and he understand the meaning of being under an oath to state the truth. He states that he was traveling with Pawan Kumar in the jeep. Both of them were to get down at village Patola. Near village Patola they told the driver to stop the vehicle, but he said that he would drop them at Dharamshala. He then says that the jeep was being driven at a very fast speed and he received injuries on his head and his brother Pawan Kumar was thrown out of the jeep, as a result of which he died. In cross-examination he says that they had gone to Patola to play “bat ball”. He does not remember the number of the jeep. Immediately after the accident, a lot of people had gathered at the spot including Subhash, his mother and Ashok etc. This is the entirety of the evidence. Dr.C.S. Rathore, PW-4, only proves the death of Pawan Kumar deceased. An important aspect of the case is that there is only one eye witness to the entire incident whereas according to this witness there were a lot of other people had gathered on the spot and he does not remember the number of the jeep. He also says that there were only three of them on the spot and there was no other person before the accident. When his statement is considered 4 with that of PW-1 Mool Chand, who has not witnessed the accident, what emerges is that according to this witness they were sitting in the jeep, whereas according to PW-1 a jeep had hit the deceased. PW-1 can only be believed to the extent of what he saw and that is Pawan Kumar was lying on the road in an injured condition. There is nothing relevant in his evidence which would implicate the accused petitioner. So much so it is not clear as to from where he got number of the vehicle as PW-2 has stated in no uncertain terms that he does not remember the number of the vehicle and it is but natural in considering the tender age of the child. 6. I find from the evidence that both the learned Courts below have acted solely on the testimony of the child witness. This is not to say that this cannot be made the basis for conviction but it should be complete in all aspects and considered with care and caution before basing the judgment solely on this statement. The child states that a number of other people had gathered on the spot regarding which PW-1 says nothing. I would find it difficult to convict the petitioner on the testimony of the child PW 2 alone since his evidence neither proves rashness nor negligence and the factum of incident can itself be doubted. The learned Courts below have acted on perverse conclusions which they have drawn from the evidence on record. If the evidence of this witness is 5 excluded, there is nothing on the record even in the nature of circumstantial evidence which may link the petitioner with the guilt. 7. In these circumstances, I find that the judgment of both the Courts below is perverse and not based on conclusion which can be drawn from the evidence. This petition is allowed. The bail bonds furnished by the petitioner are discharged. July 15, 2010. (Dev Darshan Sud) (aks) Judge.