IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. R. No. 222 of 2002 Decided on: 26.3.2009 Rakesh Kumar ..…Petitioner Versus State of H.P. ..…Respondent Coram The Hon’ble Mr. Justice Surjit Singh, J. Whether approved for reporting ?1 For the petitioner : Mr. Suneet Goel, Advocate. For the respondent : Mr. P.M. Negi, Dy. A.G. with Mr. Ramesh Thakur, Assistant A.G. Surjit Singh,J. (Oral) Rakesh Kumar has filed the present revision petition, under Sections 397 and 401 read with Section 482 Cr.P.C. for setting aside the judgment dated 26.8.2002, of learned Chief Judicial Magistrate, Solan, whereby he has been convicted of offences, under Sections 279 and 304-A IPC and sentenced to undergo six months simple imprisonment and to pay fine of Rs. 1000/- for offence, under Section 279 IPC and to undergo simple imprisonment for two years and to pay fine of Rs. 5000/- for offence punishable, under Section 304-A IPC, as also the judgment dated 25.11.2002 of the learned first 1 Whether the reporters of Local Papers may be allowed to see the judgment? 2 Appellate Court (Sessions Judge, Solan), whereby his appeal against the order of said conviction and sentence, passed by the learned Chief Judicial Magistrate, Solan has been dismissed. 2. Prosecution case, which has led to the conviction and sentencing of the revision petitioner, may be summed up thus. Petitioner was engaged as driver on truck No. HP-06- 1064 by the owner of the truck. Truck had gone to Jallandhar on or about 9th August 1995. On that day the truck started for Solan from Jallandhar. When it reached near Dharampur, one of the occupants of the truck, named Mohan Singh deceased, who was earlier sitting in the driver’s cabin, went up and sat in the tool box. Around 1.00 A.M. when the truck reached near Barog, it met with an accident. The tyres on the left side of the truck, both front and rear slipped into the drain on the left side of the road and the truck then grazed against the retaining wall of the hill side. As a result of that Mohan Singh, who was sitting in the tool box fell off the truck and died on the spot. Thinking that Mohan Singh was alive, the revision petitioner and other occupants of the truck carried him to the hospital at Solan in that very truck but the doctors at the hospital declared him brought dead. 3. Report was lodged with the police by PW2 Kailash Chand, one of the occupants of the truck. On the basis of that report, case was registered against the revision petitioner. Conductor of the truck, PW9 Hari Ram was also examined as eye witness during the course of investigation. Scene of the accident was got photographed. Dead body of Mohan Singh was subjected to post-mortem examination. Site- plan was prepared 3 by PW8 Bansi Lal, H.C. Ultimately, the petitioner was challaned. 4. Trial Court proceeded to try the petitioner on his pleading not guilty, after the substance of accusation was put to him. Prosecution examined PW2 Kailash Chand and PW9 Hari Ram, conductor of the truck, as the witnesses of occurrence. It also examined PW8 Bansi Lal, H.C. who conducted the spot inspection. Several other formal witnesses were also examined. 5. Revision petitioner took the plea that at the site of accident two or three trucks were parked on his right hand side and that all of a sudden another truck appeared from the opposite direction at a very fast speed and with a view to averting head on collision with that truck, he swerved the truck to his extreme left and since it was raining that day the edge of the road sagged as a result of which left hand side tyres of the truck slipped into the drain along the hill side and Mohan Singh, who was in the tool box fell off the truck. He also took the plea that at the time of the accident, Mohan Singh was trying to climb down the tool box and that was a contributory factor for his fall from the truck. 6. Trial Magistrate did not believe the defence version and held the revision petitioner guilty of both the offences and convicted and sentenced him, as aforesaid. His appeal was dismissed by the Sessions Court. 7. I have heard the learned counsel for the petitioner as also the learned Deputy Advocate General, Mr. P.M. Negi and gone through the record. A bare reading of the earliest version given to the police, per statement Ext.PW2/A, under Section 154 4 Cr.P.C., as also the testimony of PW2 Kailash Chand and PW9 Hari Ram conductor shows that the accident had taken place in the manner, the revision petitioner pleaded in the course of trial. Of course, PW9 Hari Ram conductor was declared hostile by the prosecution and cross-examined with the leave of the court but PW2 Kailash Chand who also made the statement on the lines of the defence plea was not cross-examined by the prosecution. Not only this, the testimony which PW2 Kailash Chand made in the court was similar to the earliest version given by him to the police vide statement Ext.PW2/A. 8. Now, according to the earliest version Ext.PW2/A, as also the testimony of above named two witnesses, at the site of the accident a vehicle appeared from the opposite direction all of a sudden at a very fast speed and with a view to averting collision with that truck the revision petitioner turned the truck to his extreme left and it grazed against the breast wall after entering the kuchha drain on hill side. The witnesses further stated that two trucks were already parked on the right hand side. In the face of this evidence, I do not think the two courts below were justified in holding the revision petitioner guilty of the offences, under Section 304-A IPC, because the cause of accident was not rash driving as held by the two courts below. 9. However, there does not appear to be any reason for reversing the finding of guilt of the revision petitioner, as regards offence, under Sections 279 IPC is concerned. Both the witnesses, named above, testified in no uncertained terms that the revision petitioner allowed Mohan Singh, deceased to go on top of the truck and to occupy the tool box. Driving a truck, 5 with a person present in the tool box, is by itself an act of negligent driving endangering human life or personal safety of others and the same is punishable, under Section 279 IPC. 10. In view of the above stated position, revision petition is partly allowed. Conviction and sentence of the revision petitioner for offences, under Section 304-A IPC, as awarded by the trial Magistrate and affirmed by the first Appellate Court (Sessions Judge) are set aside, but his conviction and sentence for the offence, under Section 279 IPC, as ordered by the trial Court and affirmed by the Sessions Judge are upheld. Appeal stands disposed of accordingly. (Surjit Singh),J. March 26, 2009 (vs)