IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. Revision 136 of 2004 Date of Decision 28th March, 2011 __________________________________________________________ Sanjeev Kumar ….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. Anup Chitkara, Advocate. For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy A.G. __________________________________________________________________ Dev Darshan Sud, J (oral) This appeal has been preferred by the petitioner challenging his conviction under Sections 279 and 304A IPC sentencing him to undergo simple imprisonment for six months individually for each offence and to pay a fine of ` 500/- each for each of the offence and in default, to further undergo simple imprisonment for one month. 2. The brief facts of the case are that on 27.6.1999 Shri Shiv Ram PW1 reported to the police vide 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 Ext.PW1/A that at about 8.30 AM when he was standing in front of Vikas Kullu Shawl Factory, Shamshi, a Tata Sumo (white in colour) bearing No. HP-02-8510, which was being driven at rash or negligent manner and at high speed, came from Bhuntar side, and hit a woman who was standing on right side of the road. At that time, she was carrying one canny. She fell down, sustained injuries on her head and waist and she was removed immediately to the District Hospital, Kullu in the same vehicle. Deceased Baisakhi Devi died on 29.6.1999. The accused was identified as driver of this vehicle and charged with offences, for which he has been convicted. Seven witnesses were examined by the prosecution in support of the case. The petitioner has denied his involvement in the accident. 3. PW1 Shiv Kumar, who was an eye witness of the accused, gave a description of the accident. He stated that it was because of the rash and negligent act of the petitioner that accident occurred. PW2 Balak Ram was informed by PW3 Ganga Ram that his mother had been injured and had been hospitalised. PW3 Ganga Ram was informed by one Partap Sood on telephone about the accident of Baisakhi Devi and when he went to the hospital to see her, he found her in injured and in an unconscious condition. PW4 Punu Ram conducted the mechanical examination of the vehicle and according to his report Ext.PW4/A no mechanical defect was found in the vehicle. PW4 (again numbered as such) Dr. Mahesh Kapoor examined the deceased at 8.45 AM and vide his report Ext.PW4/A, he found that she had sustained lacerated wound over the right side of forehead above eye-brow and blood was present. She was advised X-ray. He also 3 found wounds near the lateral canthus of left eye and shoulder joint. Medico Legal Certificate Ext.PW4/B was prepared by him. Dr. Kamal Kapoor PW5 conducted the post mortem examination and according to his report Ext.PW5/A Smt. Baisakhi Devi had died because of the head injury. PW7 Kamla was the Investigating Officer who on receipt of Ruka Ext.PW4/A, moved an application Ext.PW7/A for obtaining the statement of deceased. When it was found that she was unable to speak, she recorded the statement of Shiv Ram (Ext.PW1/A). 4. The defence taken up by the petitioner was that no other witness, except PW1, who actually witnessed the accident has been examined by the prosecution and since he was from the same village; his testimony could not be accepted for the reason that he was an interested witness. It is urged that at one time, it is in his evidence that the deceased was standing on the right side of the road and at another that he has stated that she was walking. The second contradiction pointed out was that the statement was recorded in the Police Station whereas the Investigating Officer has stated that his statement was recorded at village Shamshi. The Court considered his evidence in detail and came to the conclusion that even in cross examination, there was nothing which could discard his testimony and that he had identified the accused-petitioner as he had taken Baisakhi Devi to the hospital in the very same vehicle. In these circumstances, the Court held that the accident was proved. 5. The petitioner appealed against his conviction and the learned Additional Sessions Judge dismissed the appeal after reappreciating the entire evidence. The finding of the learned 4 Appellate Court is that the judgment of the learned Chief Judicial Magistrate is based on the proper appreciation of evidence. 6. The petitioner is now in revision against the findings of the two Courts below. 7. Learned counsel appearing for the petitioner submits that the conviction is against the law as the evidence of prosecution is insufficient to convict him. Referring to the evidence of PW1 Shiv Ram, learned counsel submits that there are discrepancies as to the time at which the accident occurred. He then submits that the deceased had not been idenfied by him though he belonged to the same village as in Medico Legal Certificates Ext.PW4/B and Ext.PW4/C, in the column of name, there is question mark, thereafter her name Joni Devi was written and later on her name Baisakhi was entered. This witness who is the star witness of the entire case has not stated the truth more especially when the identity of the deceased was doubtful. 8. I have scrutinised the evidence on record and do not find that the submission of the learned counsel appearing for the petitioner can be accepted. In emergency situations, witnesses can not work clock wise/computerised account of the occurrence. Cases come to Court after a long period of time and witness is not supposed to remember the minor details of the occurrence. When the testimony of this witness is considered in detail, what I find is that he identifies the vehicle, the driver as also the fact that deceased was taken to the hospital in the very vehicle of the petitioner, who thereafter fled away from the scene. If there is some discrepancy which has been later on crept in and that too after a long period of time, that is not fatal the case of 5 prosecution, more so when it stands established from the record that the prosecution has been able to establish the facts constituting the offence. 9. On the question of interested witness, all that I need say is that this aspect has been engaging the attention of the Supreme Court which, as far back in 1953 in Dalip Singh vs. State of Punjab AIR 1953 SC 364, later on retrieated in number of cases including Kulbir vs. State of Andhra Pradesh 2007 12 SCC 48 holding that mere relationship does not constitute a factor which would discard the testimony of a witness. The Court held that the term “interested” means that the witness has some direct and indirect interest in having the accused convicted by hook or crook. 10. The golden rule for assessing evidence of any witness is to see as to whether in the natural course of events, the person who appears as a witness is one who was naturally familiar with the facts stated on oath. His testimony stands the test of cross examination and no motive has been establihsed on record to implicate the accused. I need not say more. 11. On the re-appreciation of evidence, I do not find any error in the judgments of the two Courts below. This reivision petition is therefore rejected. 12. Coming to the aspect of sentencing I find that now a period of 12 years has elapsed which requires some modification in the sentence. Accordingly the sentence of imprisonment imposed is reduced to 15 days simple imprisonment subject to this condition that the petitioner shall deposit a sum of ` 40,000/- with the learned Chief Judicial Magistrate, Kullu within a period of 6 two months from today. The sentence has been modified more so when it is established on the record that the accused himself rushed the injured for medical treatment to the hospital and she died after having been given medical aid. She died after a day or so. The accused did not flee from the spot but rendered all aid to her. On such deposit being made, the Court shall disburse this amount to the legal representatives of the deceased. In case of non-deposit, the sentence of imprisonment as imposed by the learned trial Court shall revive and duly and faithfully executed by the Court below. March 28th, 2011 (Dev Darshan Sud), ms Judge 7