IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Criminal Revision No. 10 of 2006. Judgment reserved on : 11.11.2011 Date of decision: 16.12.2011 Des Raj S/o Shri Dharam Singh R/o Village Dharmani, Rajera Pargana Panjala, Tehsil and District Chamba. …Petitioner. Versus State of Himachal Pradesh ....Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting ? No For the Petitioner : Mr. Virender Singh, Advocate. For the Respondent. Ms. Ruma Kaushik, Addl. A.G. __________________________________________________________ Kuldip Singh, Judge This revision has been directed against judgment dated 17.1.2006 passed by learned Sessions Judge, Chamba in Criminal Appeal No. 5 of 2005 affirming judgment dated 11/12.8.2005 passed by learned Chief Judicial Magistrate, Chamba in Criminal Case No. 251-II of 2004 convicting the petitioner under Sections 279, 338 IPC and sentencing the petitioner to pay fine of ` 1000/-for offence punishable under Section 279 IPC and to undergo simple imprisonment for one month and to pay fine of ` 1000/- for offence __________________ 1 Whether reporters of Local Papers may be allowed to see the Judgment ? yes 2 punishable under Section 338 IPC and in default of payment of fine to undergo simple imprisonment for 15 days for each violation. The petitioner has been acquitted for offences punishable under Sections 337 IPC and Sections 187, 197 of the Motor Vehicles Act. The petitioner has paid ` 2000/- fine amount in the Court. 2. The prosecution case in brief is that petitioner on 24.3.2004 at about 3.30 p.m. was driving motorcycle bearing registration No. HP-48-1510 at Chowgan Bazar near Museum, Chamba on public road in negligent manner endangering human life and safety of others. The petitioner hit PW-1 Inder Singh, who sustained simple and grievous injuries. The matter was reported to the police and on the statement of PW-1 Inder Singh recorded under Section 154 Cr.P.C. by PW-11 Fauja Singh the case was registered. PW-1 was got medically examined. On completion of investigation the challan was submitted in the Court. The notice of accusation was put to petitioner for offence punishable under Sections 279, 337, 338 IPC and Sections 187, 197 of the Motor Vehicles Act. The petitioner pleaded not guilty and claimed trial. The prosecution has examined 11 witnesses. The statement of petitioner was recorded under Section 313 Cr.P.C. He pleaded his innocence but led no evidence in defence. On conclusion of trial, the learned Chief Judicial Magistrate convicted and sentenced the petitioner as noticed above. In appeal, the learned Sessions Judge affirmed the judgment dated 11/12.8.2005 of the learned Chief Judicial Magistrate and dismissed the appeal, hence present revision. 3 3. I have heard the learned counsel for the petitioner and learned Additional Advocate General for the State and have also gone through the record. The learned counsel for the petitioner has made submissions on the quantum of sentence only and has stated that lenient view may be taken keeping in view the age of the petitioner and the fact that petitioner was taken into custody after conviction on 24.1.2006 and he was released on bail on 1.2.2006. This submission of the learned counsel for the petitioner has been recorded in the zimni order when the revision was heard finally. The learned Additional Advocate General has supported the impugned judgment and has submitted that already the Courts below have taken lenient view, she has prayed for dismissal of the revision. 4. PW-1 Inder Singh has stated that on 24.3.2004 on Post Office road he was going to market, motorcycle bearing registration No. HP-48-1510 which was being driven by Des Raj in high speed negligently came from behind and hit him causing injuries in his leg and toes. He was taken to hospital. He reported the matter vide Ex.PW-1/A. In cross-examination, he has stated that road is 25 feet wide. He denied that all of a sudden he came in the middle of the road and struck against the motorcycle. He denied that motorcycle fell down; volunteered after hitting him petitioner sped away from the spot. He denied that accident took place due to his own negligence. The motorcycle threw him 8-10 paces. 4 5. PW-2 Devinder Kumar has stated that on 24.3.2004 accident took place in front of Kuldeep Electric shop. The motorcycle was being driven by accused present in the Court. The motorcycle hit Inder Singh who was taken by him in his vehicle to Civil Hospital, Chamba. The accident took place due to negligence of motorcycle driver. He has stated that motorcycle also fell down after hitting Inder Singh, volunteered it dragged the injured also for about 4 feet. PW-3 Ram Singh is the father of the injured. He has stated that on 24.3.2004 petitioner came on motorcycle, hit his son Indu and dragged him with the motorcycle for 4-5 feet which caused injuries to Indu Kumar. The accident took place due to rash and negligent driving of petitioner. 6. PW-4 Saran Singh has also supported the prosecution case and said about the rash and negligent driving of the motorcycle driver. PW-7 V.K.Pathak, Radiologist has proved report Ex.PW-7/A. PW-8 Dr. Umesh Dhiman examined Inder Singh on 24.3.2004 and issued MLC Ex.PW-8/A. PW-9 Tarsem Singh has proved mechanical report Ex.PW-9/A. PW-11 S.I. Fauja Singh is the Investigating Officer. He has proved spot map Ex.PW-11/C. The petitioner in his statement under Section 313 Cr.P.C. has not denied the accident. He has stated that the accident took place due to the negligence of the complainant. 7. PW-1, PW-2, PW-3 and PW-4 are the eye witnesses. They have specifically stated that accident took place due to rash and negligent driving of the petitioner. PW-8 has proved the injuries 5 sustained by injured in the accident. Ex.PW-9/A is the mechanical report in which it has been stated that there was no mechanical defect in the motorcycle. Ex.PW-11/A is the FIR. 8. The two Courts below after appreciation of evidence on record have recorded a finding of fact that accident took place due to rash and negligent driving of motorcycle by the petitioner. In revision the evidence cannot be reappreciated but in order to satisfy myself and to consider the legality and propriety of the impugned judgment the evidence has again been considered. The view taken by the two Courts below is in consonance with the evidence on record. The learned counsel for the petitioner has submitted nothing regarding the findings of negligence on merits recorded by the two Courts below. He has submitted that lenient view may be taken in the matter. In view of evidence on record no fault can be found with the findings of conviction recorded by the two Courts below for offences punishable under Sections 279 and 338 IPC. 9. The accident took place on 24.3.2004 and thereafter the petitioner has faced the trial, appeal and revision. He has already suffered a lot. The Chief Judicial Magistrate has imposed substantive sentence of one month under Section 279 IPC, no substantive sentence has been imposed under Section 338 IPC. The fine of ` 1,000/- each under Section 279 IPC and under Section 338 IPC has already been deposited by the petitioner on 12.8.2005 and this fact has been recorded in the judgment by the Chief Judicial Magistrate. The learned counsel for the petitioner has submitted that 6 after the decision in the appeal the petitioner remained in custody from 24.1.2006 and was released on 1.2.2006 that means he remained in custody for about eight days. The petitioner has thus already undergone some substantive sentence also. Therefore, after seven years of the occurrence in the facts and circumstances of the case it will be too harsh to send the petitioner in jail for serving another about 22 days in jail. Therefore, in the interest of justice it is sufficient if the petitioner is sentenced to undergo substantive sentence under Section 279 IPC period already undergone. As noticed above, the petitioner has already paid the fine amount. 10. In view of above discussion, the revision is partly allowed. The conviction of the petitioner under Section 279 IPC and Section 338 IPC recorded by the two Courts below is upheld. The substantive sentence of the petitioner under Section 279 IPC is modified for the period already undergone. The remaining sentence of the petitioner of fine under Section 279 IPC and sentence under Section 338 IPC recorded by the two Courts below is upheld. December 16, 2011. ( Kuldip Singh ), (GR) Judge.