IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 178 of 2003 Date of Decision: 5th July, 2010 __________________________________________________________ Jaswant Singh. ….Petitioner. Versus State of Himachal Pradesh. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No __________________________________________________________ For the Petitioner: Pt. Om Parkash Sharma, Advocate. For the Respondent: Ms. Ruma Kaushik, Additional Advocate General with Mr. R.P. Singh, Assistant Advocate General. __________________________________________________________ Dev Darshan Sud, J. (Oral) This revision petition is directed against the judgment of the learned sessions Judge, Kangra at Dharamshala affirming the judgment and conviction of learned Judicial Magistrate, Ist Class, Court No. (II), Dharamshala, sentencing the petitioner herein for offences under Sections 279, 304-A of the Indian Penal Code and Section 187 of the Motor Vehicle Act. The maximum sentence imposed was under Section 304-A of the Indian Penal Code, where he was sentenced to undergo 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 rigorous imprisonment of one year and fine of Rs. 500/-. All the sentences to run concurrently. 2. Brief facts of the case are that on 4.7.2000 at abound 7.45 A.M. at Jholbhati Dari, the petitioner, who was driving truck No. HPK- 1692 and the deceased was driving Scooter ahead of truck, the petitioner struck him from behind. The scooter fell down and the rider was run over by the truck. The petitioner was challaned and tried for the offences. The prosecution examined as many as nine witnesses. PW 1 Sh. Joginder Singh stated that on 5.7.2000, he mechanically examined the truck and did not find any malfunctioning. He proved this fact by his report Ex. PW 1/A. PW 3 Sh. Tara Chand states that on 4.7.2000 at around 7.30 A.M., he was on morning walk, when he heard a loud noise and he saw that a person was lying under the truck and at that time he was alive. He was injured and his arm was broken. He dragged the person from under the truck, put him in a van and rushed him to the Hospital. He took the photographs of the accidented vehicle, which are Ex. P1 to Ex. P8. The driver and conductor of the truck were also present on the spot. Though he was declared hostile, but there is nothing in his cross-examination, which would tend to contradict his testimony of examination-in-chief. PW 4 Sumit Thakur is owner of the Maruti Van H.P-01-2741 and stats that he took the deceased to Hospital. PW 6 Dr. Archana Gautam examined the deceased Kushal Singh and proved Medico Legal Certificate Ex. PW 6/A. Her opinion was that the injuries sustained by the deceased were grievous in nature. The other witnesses are not considered as they relate to the lodging of the report etc. On the totality of the evidence on record, the learned Judicial Magistrate, Ist Class, Court No. (II), Dharamshala convicted the petitioner, which sentence was upheld by the 3 learned Appellate Court. A number of points have been urged before the learned Appellate Court including the fact that the accident took place because of the negligence of the Scooter driver, but the learned Sessions Judge after thorough appreciation of evidence, upheld the findings of the learned Trial Court. 3. The petitioner is now in revision. Learned counsel appearing for the petitioner urges a number of points, namely, that PW 3 Tara Chand, who is the purported eye witness, has not supported the case of the prosecution and in this event, the other circumstances on record do not in any manner establish the criminality of the petitioner. He submits that evidence of PW 5 Tibti Ram can also not be accepted as there are major contractions in his statement qua the manner, in which the accident took place. He referrers to the statement of PW 8 Vijay Kishore, who states in his cross-examination that “yah teek hai kee jab kushal kumar gira tha tab khud kaa dos tha”. 4. I have gone through the judgments of both the courts below and thoroughly scrutinized the record. Although in revisional jurisdiction, I can not treat this revision as second appeal and re- appreciate the entire evidence, but in order to ascertain the legality and propriety of the evidence and also on quantum of sentence imposed, it is open to this court even in revisional jurisdiction to ascertain as to whether there is a fundamental error either in the assessment of the evidence or conclusion that would sustain the conviction. I am unable to persuade myself, that both the Court below are wrong in arriving at the conclusion of the guilt of the accused. 5. The accident took place in the year, 2000 and now this Court is examining the legality and propriety of the findings of two courts 4 below in the year, 2010. During this period, of course, the petitioner would have been on bail. In Dalbir Singh Vs. State of Haryana, (2000) 5 SCC 82, the Supreme Court has declined the benefit of Probation of Offenders Act for offences under Sections 279 and 304-A of the Indian Penal Code. However, considering the long passage of time, I am of the view that the ends of justice will be served in case the maximum sentence imposed under Section 304-A of the Indian Penal Code is reduced to six months rigorous imprisonment. All other sentences are kept intact. This judgment shall not be treated as precedent in other cases. A direction is issued to the learned Chief Judicial Magistrate, Dharamshala to ensure that the sentences will be carried out. Petition disposed of. July 05, 2010 (Dev Darshan Sud) (KRS) Judge