IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No. 361/2004 Date of decision: 1.6.2011 State of H.P. …..Appellant Versus Yashpal @ Nandi ……Respondent Coram: The Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting ?1 For the Appellant: Mr. J.S. Rana Assistant Advocate General. For the respondents : Mr. Bhuvnesh Sharma, Advocate. Surinder Singh, J. (Oral) Respondent was acquitted for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code by the learned trial Court as such the State preferred the present appeal. 2. Prosecution case is that on 11.12.1999 at about 7 p.m. at the place known as “Sera” on a public highway, PW1 Virender Kumar was hit by the tractor bearing registration No. HP-21-1941 which was being allegedly driven rashly and negligently by the respondent. After sustaining injury, he was 1 Whether the reporters of Local Papers may be allowed to see the judgment ?. yes - 2 - removed to the Hospital for treatment where he was attended upon by PW6 Dr. Praveen Kumar. He noticed as many as three injuries on his person and was referred to radiological examination with respect to injury No. 1. As per report of the Radiologist, PW 8 Dr. P. C.Verma there was a fracture on right tibia middle third part of the leg of PW1 Virender Kumar. 3. After completing the investigation, challan was presented in the Court for the trial of the respondent. 4. Notice of accusation was put to the respondent to which he denied. 5. Prosecution examined PW1 injured, his friend who was accompanying him, PW2 Satish Kumar, PW3 Purshotam Lal who conducted the mechanical examination of the tractor, PW4 Subhash Chand, PW5 Radiographer, PW6 Dr. Praveen Kumar PW8 Dr. PC. Verma, besides examining other police witnesses. 6. At the end of the trial, respondent was acquitted by the learned trial Court as aforesaid. 7. Shri J.S. Rana, learned Assistant Advocate General vehemently argued that the learned trial Court simply reproduced the statements of the - 3 - witnesses without critically examining their versions wrongly held that the prosecution failed to bring home the guilt of the accused for the commission of the alleged offences without pointing out the contradictions, variations and infirmities to discard their version. He further submitted that the statements of PW1 and PW2 with respect to the accident coupled with the statements of the doctors are sufficient to held the respondent guilty of the offences charged. 8. Contra Shri Bhuvnesh Sharma, learned counsel for the respondent pointed out that there are contradictions in the statements of PW1 and PW2 aforesaid and further that PW4 Subhash Chand has not supported the case of the prosecution. Therefore, the impugned judgment of acquittal is sustainable. 9. I have given my thoughtful consideration to the rival contentions of the parties and have carefully re-appraised the evidence on the record. 10. PW1 Virender Kumar injured witness categorically stated that he was walking ahead of his friend PW2. In the meantime, the alleged offending vehicle which was being driven by the respondent rashly or negligently in a high speed hit - 4 - PW1 with the result, he fell down. His right leg was crushed under the tyre of the trolley and the respondent fled-away from the spot. Thereafter he was taken to the Hospital for his treatment. He also proved his statement Ext. PW1/A to the police which is further supported by PW2 Satish Kumar. Whereas PW4 Subhash Chand has resiled from his earlier statement recorded under Section 161 of the Code of Criminal Procedure and denied that he was an eye witness to the incident. 11. The statement of PW1 Virender Kumar duly corroborated by PW2 Satish Kumar clearly establishes the rash and negligent driving of the respondent which caused grievous injury to PW1 aforesaid. 12. In the aforesaid circumstances, the respondent owe an explanation as to how the accident had taken place and what due care and caution was adopted by him to avert the accident. But he renders no explanation. 13. Therefore, for the above reasons, on the evidence aforesaid the offences charged stand proved against the respondent. The judgment of acquittal passed by the learned trial Court is perverse as such it is set aside. Accordingly, the - 5 - respondent is convicted for the offences punishable under Sections 279, 337 and 338 Indian Penal Code. Since Section 337 Indian Penal Code is merged into Section 338, no separate sentence is being passed. I have heard the learned counsel for the respondent on the quantum of sentence. According to the learned counsel for the respondent, the incident took in the year 1999, i.e., more than 12 years from today and there is no evidence on record to show that he has been held guilty for the similar offence earlier. It is also ventilated that respondent is sole bread-earner of his family. Therefore, a lenient view may be taken. I have considered the submissions of the learned counsel for the respondent. It is true that more than a decade has passed from the date of the alleged incident and there is also no evidence of his previous conviction. Therefore, in view of the aforesaid circumstances, taking a lenient view, the respondent is sentenced till rising of the Court under Sections 279 and 338 Indian Penal Code and sentenced to pay a fine of `1000/- under Section 338 and `500/- under Section 279 Indian Penal Code. In default of payment of fine, he shall undergo simple - 6 - imprisonment for a period of one month. The fine shall be deposited by the respondent before the learned trial Court within four weeks from today. Since the respondent is not present, he shall be present before the learned trial Court for serving out the sentence and for making the payment of fine on 30.6.2011, failing which, the learned trial Court shall take coercive steps to implement this judgment. Accordingly the appeal stands disposed of. June 1, 2011 (Surinder Singh), (cm) Judge.