IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 46 of 2004 Date of Decision: 10th September, 2010 __________________________________________________________ Hardayal Singh ….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. Ramakant Sharma, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner challenges his conviction under Sections 279, 337 and 338 of the Indian Penal Code as he has been sentenced to rigorous imprisonment for six months and to pay a fine ofRs. 1,000/- under Section 279 IPC, simple imprisonment for six months under Section 337 IPC for causing hurt to Vikas and rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- under Section 338 IPC for causing grevious hurt to Bhagwan Dass. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. The learned Appellate Court has modified the sentence and awarded simple imprisonment for six months, a fine of Rs. 1000/- and in default of payment of fine, simple imprisonment for one month. 3. The prosecution case, in brief, is that Rakesh Kumar complainant PW1 lodged the First Information Report with Police Station Dharampur stating therein that on 16.2.2000,he was on patrolling and around 8.20 p.m. (night)he was coming from Sanwara to Dharampur and when he reached near Fauji dhaba, a scooter bearing No. DBK-5298 came from Solan side. In the meantime, bus bearing No. HP-14-3699 being driven by the petitioner-accused, came from the opposite side in a rash or negligent manner/speed after overtaking another bus and hit the scooterist as a result of which one of the riders went under the engine of the bus. He was removed from that place by the complainant and other persons and taken to the hospital. As per medical examination, PW2 Vikas suffered simple injuries and PW3 Bhagwan Dass suffered grievous injuries on his person. The site plan was prepared and the evidence of witnesses, especially the evidence of PW1 Rakesh Kumar, PW2 Vikas and PW3 Bhagwan Dass was duly supported on the factum of injuries by PW6 Dr. Jagdeep Singh Thakur who proved on record the medico legal certificate of Bhagwan Dass (Ext.PW6/A) stating that he had fracture of right shaft femur and of Vikas (Ext.PW6/B) that he sustained simple injuries. 4. The petitioner has produced in evidence DW1 Shakat Singh as defence witness who stated that he was the conductor of the bus and the scooter driver was at fault in driving his vehicle in a rash or negligent manner. The learned Court has discarded his statement and to reach this conclusion the Court considered the fact that as per the site plan and photographs, the injured was driving his scooter on his correct 3 side (left side) whereas the bus was driving in rash or negligent manner on its extreme right side (wrong side of the road). In these circumstances rejection of testimony of this witness cannot be faulted with. Considering the fact that he was conductor in the bus it was but natural that he should have supported the case of bus driver. 5. Learned counsel appearing for the petitioner submits that the Courts below were wrong in accepting the version of prosecution witnesses and ignoring the testimony of DW1. This statement cannot be accepted in view of site plan Ext.PW5/C and photographs Ext.PW5/D to Ext.PW5/H. The statements of the complainant as also the injured have supported the case of prosecution and I am unable to find anything in their cross examinations which negates the occurrence of the accident. Infact PW1 who is an eye witness reached immediately on the spot after the accident. The other two witnesses PW2 Vikas and PW3 Bhagwan Dass who are the injured have corroborated each other in material particulars as to the nature of occurrence and the manner in which the bus had struck the scooter. Moreover, considering the fact that the bus was on its extreme right side i.e. on wrong side of the road, there is no doubt in my mind that it was being driven in a rash and negligent manner. In these circumstances, I find no merit in this revision petition, which is dismissed. 6. On the question of sentencing, learned counsel appearing for the petitioner submits that since the accident relates to the year 2000 and now after a period of 11 years, it would not be in the interest of justice to send the petitioner behind the bars to undergo the sentence of imprisonment. 7. As a general proposition, this submission cannot be accepted as delay itself cannot discharge the commission of offence nor it can be used p[leading that a lesser sentence be imposed. But the 4 inexorable delays of the Criminal System prompts this Court to set aside the sentence of imprisonment. However, looking to the facts and circumstances of the case, I find that the injury which was caused to the complainant was not life threatening. There is also no evidence on record that the nature of injury is such which has totally crippled the injured. In these circumstances, I deem it fit that the substantive sentence of imprisonment can not be sustained. But the sentence of fine is maintained. The petitioner shall pay a sum of Rs.20,000/- to Vikas, who sustained simple injures, and a sum of Rs. 30,000/- to Bhagwan Dass, who sustained grievous injuries in addition to the fine imposed by the trial Court. This amount be deposited before the learned trial Court within a period of ten weeks from today. It is clarified that in case of non-deposit, the trial Court will ensure that sentence of imprisonment is duly executed. Revision petition stands disposed of. Dasti copy on usual terms. (Dev Darshan Sud) Judge September 10th , 2010(ms)