IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 65 of 2004 Date of Decision: 13th September, 2010 __________________________________________________________ Mohan Singh @ Pappu ….Petitioner. Versus State of HP ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Petitioner: Mr. K.S. Kanwar, Advocate For the Respondent: Mr. Ankush Dass Sood, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner is aggrieved by his conviction under Sections 279, 337, 338 and 201 IPC passed by the learned trial Court. The learned Appellate Court affirmed the judgment and sentence save and except that the petitioner was acquitted for offences under Section 337 and 201 IPC. 2. The prosecution case, in brief, is that on 25.9.2001 at about 4 P.M. baby Rakhi, aged 9 years, who was a student of third standard, was going to her house after attending school and when she reached near the shop of one Desh Raj near Bus Stand on Kumarhatti 1 Whether Reporters of Local Papers may be allowed to see the judgment?. 2 Sarahan Public Highway, a scooter bearing No. HP-14-0752 driven by the petitioner herein dashed against her. Further case of the proseution is that after the accident, the petitioner fled away from the scene. The injured was then taken to the Civil Hospital, Sarahan and report registered with the police. After conclusion of the trial, the petitioner was convicted. The trial Court placed reliance on the evidence of the mother of child namely Meera Devi, PW2 who corroborated the material particulars of the accident. PW1 Desh Raj was examined, but he turned hostile and was cross examined at length. PW4 Ravi Dutt was also declared hostile and cross examined. These facts were considered at length by the Courts below but could not dent the prosecution case. The injured baby Rakhi was also examined, but not administered oath, as she could not understand its meaning. 3. Learned counsel appearing for the petitioner urges that the Courts below were clearly in error in placing reliance on the prosecution evidence, as neither the presence of accused nor the involvement of the scooter in accident was established. In particular, he refers to the statements of PW1 Desh Raj and PW4 Ravi Dutt to support his contention. He further urges that even the statement of PW2 mother of the injured does not establish her presence at the site of accident. In these circumstances, no guilt can be attributed to the petitioner herein. Lastly he submits that the evidence of a child witness cannot be relied upon as it is without oath and considering the fact that she could not understand the meaning of oath, her statement should be totally discarded. 3. Even if the statements of PW1 Desh Raj and PW4 Ravi Dutt are excluded from the evidence of prosecution, I cannot persuade myself that the statement of PW2 Meera does not establish the presence of the accused or of this factum of accident. Her statement is sufficient to 3 establish the guilt of accused. So far as the statements of PW1 Desh Raj and PW4 Ravi Dutt are concerned, all that need be said is that their cross examination in no manner supports the defence. It is rather unfortunate that eye witnesses are turning hostile in more than one case. In his cross examination PW1 has admitted the presence of accused alongwith scooter at the site of accident. 4. In conclusion, the statement of PW2 Meera Devi is sufficient to fasten the liability on accused as she has corroborated the prosecution case on all material particulars. In these circumstance, this revision petition deserves to be dismissed. 5. Adverting to the question of sentence, the accident has taken place in the year 2001 and now this case has come up before this Court after a period of ten years. In these circumstances, I deem it fit and proper that this Court should exercise powers under Sections 357 of the Code of Criminal Procedure and considering the nature of injuries I award a sum of Rs. 25,000/- to the minor baby Rakhi. The sentence of imprisonment on all counts is set aside. The sentence of fine as imposed is affirmed. The amount of compensation so awarded shall be deposited in the trial Court i.e. Judicial Magistrate Ist Class, Rajgarh within a period of twelve weeks from today. On deposit of such amount, the money shall be released to the minor, if she has attained majority. It is clarified that in case of non-deposit of the compensation as awarded, the sentence of imprisonment shall revive. Bail bonds furnished by the petitioner stand discharged. Petition stands disposed of. (Dev Darshan Sud) Judge September 13th , 2010(ms)