IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL REVISION No. 123/2003 Tilak Raj Shahni …….Revisionist Versus Harbhajan Singh ……Respondent Mr. Arvind Vashistha, Advocate, for the revisionist. Mr. Sanjeev Singh, Advocate, for the private respondents. 14th October, 2011 Hon’ble Servesh Kumar Gupta, J. This criminal revision is directed against the judgment and order dated dated 31.5.2003, passed by the Additional Sessions Judge, Dehradun in Sessions Trial No. 29/2002, State v. Harbhajan Singh. The said trial was adjudicated in acquittal with the result that the accused respondent Harbhajan Singh was exonerated of the charge of offence punishable under Section 304-A of the IPC. 2. This revision has been filed by the complainant Tilak Raj Shahni against the accused Harbhajan Singh, who was served sufficiently and he also engaged Mr. A.K. Gautam and Mr. L.K. Tiwar, Advocates, to plead the case on his behalf. Their Vakalatnama is also on the record. But none turned up on behalf of the accused respondent even in the revised call. So, hearing was extended to learned Counsel for the complainant revisionist. Also perused the trial court record. 3. The incident relates way back to 20.8.1997, at any time between 8 pm to 12 pm, the deceased Deepak Shahni, son of Tilak Raj Shahni riding on the scooter was out of his house in the locality of Race Course Road, Dehradun. He was hit and run over by a speedily plied passenger bus driven by the accused Harbhajan Singh. When his father came out from his house to search his son after 12 of the instant night, at a 2 nearly distance, he found the dead body of his son in a bitterly injured position. He was no more by that time. So, he (father) lodged an FIR in the same intervening night of 20/21.8.1997 at 1.30 am. By the time of lodging the FIR, the name of chauffeur and the registration number of the bus could not be ascertained. So, the FIR was filed against “unknown”. The chargesheet was submitted against the accused Harbhajan Singh, who was tried and the trial resulted in his acquittal, as stated above. 4. Learned Counsel for the revisionist argued that the finding of acquittal recorded by the trial court is quite misconceived because in paragraph 13 of the impugned judgment, the trial judge has committed an error by stating that the FIR was lodged on the next day while it is not so. In fact, the FIR was lodged, not on the next day, but it was lodged in the intervening night of the same day, just within one and half hours of the finding of the dead body of Deepak Shahni. Although it was technically the next date, but not strictly the next day after sunrise. So, this way, the finding of the learned trial court is quite erratic. 5. In paragraph 13 of the impugned judgment, it has been indicated by the learned Additional Sessions Judge that the father of the deceased met the witnesses in the same night, who told the name of the accused and the number of the bus driven by him, but the father did not mention either the name of the accused or the number of the bus in the FIR lodged by him. This finding is also misconceived because in the statement of PW2 Tilak Raj Shahni, it has nowhere been stated that the witnesses had disclosed him the name of the driver or the number of the bus before lodging the FIR. Quite astonishing, in the same paragraph 13, the learned trial judge has put a blame on PW1 Naveen Thapa, PW3 Arun Thapa and 3 PW4 Inder Pal Arora in the words: “further to say that in case they had seen the occurrence they must have disclosed the name of the accused and the number of the bus to the father of the deceased and he must have mentioned both these facts in the FIR….”. It indicates that the learned trial court has recorded a finding that all the witnesses had disclosed the name of the driver and the number of the bus to the father of the deceased, while in the same paragraph, he has thrown a blame upon the witnesses that in case they had seen the occurrence they must have disclosed the name of the accused and the number of the bus. 6. The learned Additional Sessions Judge in the same paragraph 13 has recorded a finding that all the facts witnesses PW1, PW3 and PW4 have corroborated the happening of the occurrence by the accused. 7. It is very amazing that the attention of the learned Sessions Jude has escaped from the fact that in the present case, chargesheet was submitted for the offence of Section 338/304 IPC and the charge was levelled against the accused for the offence of Section 304 Part II of the IPC, while in the title of the judgment, the learned Sessions Judge has mentioned the trial as if it has been proceeded under Section 304-A IPC. In the first paragraph of the judgment, he has again mentioned that the accused Harbhajan Singh was facing his trial under Section 338/304-A IPC. But the situation is quite otherwise. Offences under Section 338/304-A IPC are triable by Magistrate, while offence under Section 304 Part II of the IPC is triable by the Court of Sessions. So, in the operative paragraph of the judgment, he has absolved the accused from the charge of Section 304-A IPC. This way too, the learned Sessions Judge was quite misconceived and it appears that he could not put meticulous attention while 4 applying his mind to the merits of the case and putting his signatures on each and every page of the judgment. 8. Therefore, in the above circumstances, it is very strange as to how the learned Additional Sessions Judge has arrived at the finding of acquittal. This finding of acquittal is patently perverse. As such, it would be expedient in the interest of justice to remit this case back to the trial court exercising the powers under Section 386(a) of the CrPC. 9. Resultantly, the revision is allowed. The impugned judgment and order dated 31.5.2003, passed by the Additional Sessions Judge, Dehradun in Sessions Trial No. 29/2002, is hereby quashed. The matter is remitted back to the trial court, which after rendering an opportunity of hearing (advancement of submissions, if any) shall decide the case after proper appreciation of the evidence already adduced by the prosecution. 10. Let a copy of this judgment and order be sent to the trial court for compliance. Trial court record be also sent back. (Servesh Kumar Gupta, J.) 14.10.2011 Prabodh