IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 196 of 2003 Judgment reserved on 06.07.2010 Date of Decision: 8th July, 2010 __________________________________________________________ Bansi Ram. ….Petitioner. Versus State of Himachal Pradesh. ….Respondent. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 __________________________________________________________ For the Petitioner: Mr. Lovneesh Kanwar, Advocate. For the Respondent: Ms. Ruma Kaushik, Additional Advocate General with Mr. R.P. Singh, Assistant Advocate General. __________________________________________________________ Dev Darshan Sud, J. This revision petition has been instituted by the petitioner against his conviction for offences under Sections 279, 304-A of the Indian Penal Code sentencing him to undergo six months rigorous imprisonment and fine of Rs. 2000/- under Section 304-A of the Indian Penal Code and for offences under Section 279 sentencing him to undergo three months simple imprisonment and fine of Rs. 500/-. Sentences were ordered to run concurrently. The case against the petitioner was that on 24.10.1998 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 at 1.00 P.M. at Village Paron, Sh. Chaman Lal, PW 2 reported that a child Anil Kumar, S/o Sh. Bramh Dass was crushed under the bus being driven by the petitioner, whereon Chaman Lal, Vijay Kumar PW 6, Naresh Kumar, Ravinder Kumar, Bihari Lal etc. rushed to the spot and found the child lying dead in a pool of blood. It is alleged that the accident took place because of the rash and negligent driving of the bus by the petitioner. Information about this accident was conveyed to the Station House Officer, Police Station Sarkaghat, who rushed to the spot and recorded the statement of Sh. Chaman Lal under Section 164 of the Code of Criminal Procedure. The petitioner was charged for offences under Sections 279, 304-A of the Indian Penal Code. The case set up by the petitioner is one of denial simpliciter. According to him the child may have died due to fall from hill top. He says that so far as the factum of his abscondence from the spot is concerned, that was because of the fact that he apprehended physical danger from the villagers. 2. On the evidence of PW 2 Chaman Lal, PW 3 Yadav Singh, PW 5 Ishwar Dass and PW 7 Vijay Kumar, the petitioner was convicted for the offences. PW 2 Chaman Lal states that when the accident took place he immediately rushed to the spot and found that the deceased child had been hit by the bus, as a result of which he suffered fatal injuries on his head and had died on the spot. The petitioner had absconded from the spot. PW 3 Yadav Singh supported this evidence. This was also corroborated by PW 7 Vijay Kumar. According to him, when he confronted the petitioner that he had killed the child, the petitioner fled away from the spot. Before the learned Trial Court, reliance was placed on behalf of the petitioner on the judgment of this Court in State of H.P. Vs. Sudarshan Singh 1992 (2) Sim. L.C. 258, holding that where there 3 was no evidence on record that the vehicle was driven in a rash and negligent manner, the prosecution case could not be accepted. To similar effect was the decision of Orissa High Court in Penu alias Pannu Sethi Vs. State 1983 Crimes 876, that rashness and negligence not having been proved, no conviction could follow. 3. In appeal, the petitioner urged that the judgment was not sustainable, but the learned Sessions Judge relying upon the evidence of the witnesses holds that the prosecution has been able to establish its case. On the question of abscondence, the learned Court holds that, that fact could not itself be factor for convicting the accused. 4. Learned counsel appearing for the petitioner challenges these findings. 5. Turning to the evidence of PW 2, Chaman Lal, he proved the report Ex. PW 2/A, and states that when he reached the spot, he found that the accused had fled from the spot. He states that his house is about 400 meters from the site of the accident. PW 3 Yadav Singh says that he was sitting in his shop and around quarter to one, a bus driven by the petitioner came there and hit the deceased near his ear. Resultantly child died on the spot. He says that he witnessed this accident. Deceased Anil Kumar was his nephew. So far as the speed of the bus is concerned, he says that, he could not say that what was the speed of the bus, but it was being driven at a high speed. He did not see the driver of the bus. A suggestion has been put to him that the deceased was playing on the road. PW 5 Ishwar Dass, who was the conductor of the bus, was declared hostile. He denies that the accident was caused by the rash and negligent driving of the petitioner. PW 7 Vijay Kumar, states that on the day, when the deceased was crushed under the 4 bus by the petitioner and when he asked him as to why he done this, then he replied that child had just died and ran away from the spot. Learned counsel appearing for the petitioner on the basis of this evidence submits that there is no eye witness to the accident and that the evidence of PW 3 Yadev Singh can not be relied upon, since he is a partisan witness. The other witnesses according to the learned counsel have not supported the case of the prosecution. He also submits that there is no evidence of rash and negligent driving on the part of the petitioner and in case any injury etc. has been caused, it may be/is due to other reasons and can not be attributed to the petitioner. 6. This submission of the learned counsel appearing for the petitioner can not be accepted. I do not find any thing in the statement of PW 3 Yadav Singh, which would disclose partisanship on his part disclosing that he has deliberately deposed to implicate the petitioner. True that he admits his relationship with the deceased, but that by itself is not sufficient to hold that his evidence is partisan and he was deliberately testified in a manner to implicate the petitioner. His testimony is natural and can not be doubted. Both the learned courts below have thoroughly gone into the evidence and did not find any element of perversity in the deposition. In these circumstances, I do not find any merit in this petition, which is accordingly dismissed. However, keeping in view the long pendency of this petition, I reduce the sentence to two months rigorous imprisonment and the fine shall remain intact. The learned Additional Chief Judicial Magistrate, Sarkaghat is directed to ensure that the sentence is carried out and executed. July 08, 2010 (Dev Darshan Sud) (KRS) Judge