IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 218 of 2003 Date of Decision: 11.05.2010 __________________________________________________________ Karnail 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: Mr. Virender Singh Rathore, Advocate. For the Respondent: Ms. Ruma Kaushik, Additional Advocate General, with Mr. R.P. Singh, Assistant Advocate General. __________________________________________________________ Dev Darshan Sud, J. (Oral) The petitioner has been convicted by two Courts for offences under Section 279 and 304-A of the Indian Penal Code. The case of the prosecution is that on 23.8.1996 at about 10.35 A.M. in the morning, complainant PW-1 Manmohan Singh was driving Jeep No. H.P-02-5239 and was ferrying passengers and at about 10.35 A.M. when he reached near Flado, the accused who was driving Maxi Cab 750 H.P.-02-8170 in a rash and negligent manner dashed against the Jeep of the complainant and one person sitting on the right side of the driver fell on the road. The complainant came down from Jeep and found that this 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 person was unconscious. Later on, he came to know that his name was Sudesh Kumar. He was rushed to hospital from where he was taken to the Zonal Hospital, Dharamshala, where he succumbed to his injuries. After investigation, First Information Report was registered and challan was filed in Court. Petitioner was charged for offences under Sections 279 read with Section 304-A of the Indian Penal Code. 2. The prosecution examined thirteen witnesses in all to prove its case. PW-1, complainant Sh. Manmohan and PW-2 Sh. Achar Singh, who was passengers in Maxi Cab, were declared hostile. According to the complainant, the deceased was riding on the bumper of Maxi Cab No. H.P-02-8170. According to him this Maxi Cab was being driven at a normal speed. He was declared hostile, but nothing material has been elicited by the prosecution from his statement. PW- 2 Sh. Achhar Singh also states that the deceased who was riding on the bumper, despite the requests of accused and other fellow passengers, he did not came inside the Maxi Cab and continued to ride on the bumper. According to him the Maxi Cab was being driven at a normal speed. PW-5 Sh. Des Raj was a passenger in Jeep No. H.P-02-5239 and states in his evidence that he could not say anything about the negligence of any driver as he was sitting inside the vehicle. PW-8 Sh. Raghuvir Singh was also a passenger in Maxi Cab No. H.P- 02-8170 and he states that death of Subash Kumar occurred because the Jeep struck against the Maxi Cab and the deceased fell down. He states that he can not say that whose negligence caused the death of Subash Kumar, as he was sitting inside the Maxi Cab. This is the entire evidence in so far as the incident is concerned. 3. Learned Judicial Magistrate concluded that mere fact that the deceased was riding on the bumper of Maxi Cab was itself sufficient to show the negligence of the accused. He held that non examination of Investigating 3 Officer is not fatal to the prosecution case, for which purpose he relied upon decision of Supreme Court in Bihari Parsad Vs. State of Bihar AIR S.C. 1996 2905. On conclusion of the trial, he convicted the petitioner herein to undergo rigorous imprisonment for one year and fine of Rs. 1000/- and on non payment of fine, to further undergo simple imprisonment of three months. The findings have been confirmed by the learned Appellate Court. 4. I have heard the learned counsel appearing for the petitioner and learned Additional Advocate General for the State and gone through the record. 5. I find that the case of the petitioner has been dealt with in a slip shod manner. It is true that evidence of a hostile witness can be used for the purpose of convicting the accused. The rule of falsus in uno falsus in omnibus is not applicable in criminal trials in India. The two crucial witnesses PW-1 Sh. Manmohan Singh and PW-2 Sh. Acchar Singh, who witnessed the incident, corroborate that the deceased was riding on the bumper. The other two witnesses PW-5 Sh. Des Raj and PW-8 Sh. Raghuvir Singh did not support the case of the prosecution because they were sitting inside the vehicle. All I need say is that the deceased fell down as a result of which he sustained injuries. Section 304-A of the Indian Penal Code provides for punishment for a person who causes death by rash or negligent act not amounting to culpable homicide. Section 279 of the Indian Penal Code contemplates driving of vehicle in a rash and negligent manner as to endanger the human life, or likely to cause hurt or injury to any other person. From the evidence on record what can be gathered is that the deceased himself has contributed to the cause his death. There is evidence on record as noticed above that the deceased was asked to sit inside the Maxi Cab, but he insisted/persisted on hanging on to the bumper. This however does not absolve the petitioner of his negligence. He could stop the vehicle and ask the deceased to 4 get down. Considering the entirety of the evidence on record, I hold that the provisions of Section 304-A of the Indian Penal Code are not attracted. The petitioner/accused, therefore, is convicted under Section 279 of the Indian Penal Code and sentenced to pay Rs. 1,000/- as fine. In case of non payment of fine, the petitioner shall undergo rigorous imprisonment for one month. This Revision Petition is disposed of. The fine shall be deposited in the Court of learned Judicial Magistrate, Ist Class-I, Dharamshala within a period of two months from today. May 11, 2010 (Dev Darshan Sud), (KRS) Judge