IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 360 of 2009. Date of Decision: 2nd May, 2011. _______________________________________________________ State of Himachal Pradesh ….Appellant. Versus Dr. Nitin Sethi ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? For the appellant : Mr. A.K. Bansal, Additional Advocate General. For the respondent: Mr. K.D. Sood and Mr. Mukul Sood, Advocates. ____________________________________________________ SURINDER SINGH, J (oral). The respondent was acquitted by the learned trial Court for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code, hence the present appeal by the State. 2. In short, the prosecution story is that on 30.10.2006, the respondent was going uphill from Kala- Amb to Nahan side, in his Santro-car bearing registration No.CH-03-9097. When he reached near Sainwala, it is alleged that the respondent was overtaking a scooterist on a curve, thus he left his own side and came to the right side of the road. In the meantime, PW1 Sandeep Parmar Whether reporters of the Local papers are allowed to see the judgment? - 2 - came on his motor-cycle No.HP-18-5678 from the opposite side with pillion-rider PW3 Manoj Gautam. The right-side of Santro-car hit the motorcyclist with the result the motorcycle fell on the road thereby causing grievous injuries to PW3 Manoj Gautam. The respondent stopped his car, took the injured in his car to District Hospital, Nahan for treatment, where he was attended upon by PW9 Dr. A.K. Sethi. On the medical examination of Manoj Gautam, he observed a bleeding injury and tenderness on his right-leg, thus advised for X-ray. The Medico-Legal Certificate is Ext.PW9/A. PW11 Dr. D.D. Sharma, Radiologist on the perusal of the X-ray found fracture of both bones of right-leg and gave his opinion Ext.PW11/B. 3. After completing investigation of this case, Challan was presented in the Court against the respondent for his trial for the offences aforesaid. Finding a prima facie case against him, he was accordingly charge-sheeted, tried and acquitted by the learned trial Court. 4. Shri A.K. Bansal, learned Additional Advocate General, vehemently argued that the findings recorded by the learned trial Court for acquitting the respondent are wrong and not borne out from the record. If the evidence on record is appreciated in its right perspective, there are grounds to convert the acquittal into - 3 - conviction. He further ventilated that in para 31 of its judgment, the learned trial Court wrongly made the mention that PW2 Najakat Khan had turned hostile to the prosecution and that Vishal Gaur was a material witness who was given-up. It is also ventilated that Gaurav Gupta was rightly given-up by the prosecution being a colleague of the respondent, who would not have supported the prosecution case. It is further ventilated that the learned trial Court did not give the due consideration to the witnesses which they deserved. 5. Contra, Shri K.D. Sood, learned Counsel for the respondent, forcefully argued that in the instant case the rash or negligent act of driving is not proved by the prosecution, which is a ‘sine-qua-non’ and further that a dent has been caused by DW1 Dr. Gaurav Gupta in the prosecution case stating that it was PW1 who was rash or negligent and the statements of PW1 and 3 cannot be believed to prove the charge against the respondent. 6. I have given my thoughtful consideration to the rival contentions of the parties and have carefully and meticulously examined the evidence on record. 7. PW1 Sandeep Parmar was a motorcyclist which was hit. He was going to attend his duty in the factory alongwith PW3 Manoj Gautam as pillion-rider. Both these witnesses have categorically stated that the - 4 - respondent while overtaking the scooterist at a curve, hit their motorcycle with the result both of them fell-down and PW3 aforesaid sustained fracture on his leg which stands proved by PW9 Dr. A.K. Sethi and PW11 Dr. D.D. Sharma, Radiologist. 8. PW12 Head Constable is the Investigating Officer. He visited the spot and prepared the site plan, which shows that at the point of the alleged incident, pucca portion of the road was 22 feet and beyond that there has been 12 feet kacha portion of road towards its edge. Thus the road was 34’ wide at the site of accident and it is a State-highway. Normally the accident should not have occurred, however, the accident stands admitted, but the prosecution is obliged to prove the rash or negligent driving of the offending vehicle by the respondent. For that though during the investigation police recorded the statement of Dr. Gaurav Gupta, who was in his vehicle followed by the vehicle of the respondent, but was not examined by the prosecution. He was produced as a defence witness. According to him, PW1 motorcyclist was driving his motorcycle rashly and negligent which caused the accident. But the very important fact which has come in his evidence is that he was in another vehicle and was working in the same hospital wherein the respondent was also posted is - 5 - ostensibly the reason to support his case being his colleague and friend. The fact that the man may lie but the circumstances cannot is a classical example in this case. The negligence on the part of the respondent stands clearly established from the very fact that at the place of accident there was a slight curve and the road was about 34 feet wide. The respondent was driving his vehicle uphill. PW1 and PW3 categorically stated that at that time respondent was overtaking a Scooterist at a curve which resulted in high speed to cross him and in that process he must have gone towards the right-side of the road and suddenly the motorcyclist appeared on the curve and right side of the car of the respondent hit the motorcycle causing the said accident. 9. Thus keeping in view the width of the road coupled with the above fact and also no explanation worth the name as to what due care and caution the respondent had taken to avert any mishap lead me to the conclusion that the offences punishable under sections 279 and 338 of the Indian penal Code stand proved. 10. In para 31 of the judgment of the learned trial Court there is a reference that PW2 Najakat Khan did not support the prosecution qua the alleged rash and negligent driving of the car by the respondent, is wrong as - 6 - this person is not a witness to the alleged accident at all. He came to the place of accident after it had occurred. He was examined by the prosecution with respect to the fact of taking the motorcycle in question in their possession. He was neither declared hostile nor eye witness. Further, the learned trial Court drew an adverse inference for not examining Vishal Gaur and Gaurav Gupta being material witnesses. As already stated above, Gaurav Gupta was given up by the prosecution but examined in defence. His statement has already been discussed above. Vishal Gaur is not an eye witness at all. Therefore, the learned trial Court drew wrong inference. 11. Although, the photographs which were taken by the police of the alleged offending vehicle are not of the spot, but it would hardly effect the prosecution case. As per the prosecution case the respondent took the injured in his car to the hospital before the police had arrived at the spot, therefore, it is of no consequence. 12. In my considered opinion, the learned trial Court did not appreciate the evidence of the prosecution in the right perspective. It is a perverse judgment. Therefore, for the aforesaid reasons, the judgment of acquittal is hereby set aside. The respondent stands - 7 - convicted for the offences punishable under Sections 279 and 338 of the Indian Penal Code. 13. Shri K.D. Sood, learned Counsel for the respondent submitted that the respondent is a young doctor a leniency be shown keeping in view the fact that as a responsible citizen he lifted the injured and took him immediately to the hospital for providing medical-aid, is a mitigating circumstance. Further that the accident had taken place about five years back and thereafter no such offence has been committed by the respondent, hence the sentence of imprisonment may not be awarded. 14. I have considered the above submissions. True it is that the accident had taken place about five years back and there was a torture of trial and uncertainty in appeal. It is also an admitted fact that after the accident aforesaid, the respondent is said to have not committed similar offence. The above factual background that immediately after the accident, he took the injured to provide the medical-aid and also cooperated with the instigation of the case shows that he is a repentant soul and requires to be dealt with leniency . 15. Thus the interest of justice would be met in case the convict is ordered to pay fine only. Since the offence under Section 279 has merged into the offence under Section 338 of the Indian Penal Code, therefore, no - 8 - separate sentence is required to be passed, as such, the convict is hereby ordered to pay a fine of `700/-, which shall be deposited by him in the Registry of this Court forthwith, failing which he shall undergo simple imprisonment for one month. 16. The fine stands deposited vide receipt No. 4780203 even dated, as stated by the counsel for the accused/respondent. In view of this, appeal stands disposed of. May 2, 2011. (Surinder Singh), J. (rc)