IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 38 of 2004 Date of Decision: 8th September, 2010 __________________________________________________________ Sanjay Kumar ….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. Rajiv Jiwan, Advocate For the Respondent: Mr. P.K. Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Deputy Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner challenges his conviction by the learned trial Court as affirmed by the learned Appellate Court for offences under Section 279, 337 and 338 of the Indian Penal Code sentencing him to undergo rigorous imprisonment for three months and to pay fine of Rs. 1000/- under Section 279 of I.P.C., rigorous imprisonment for three months and to pay fine of Rs. 500/- under Section 337 I.P.C. and to undergo rigorous imprisonment for six months and to pay a fine of Rs. 1000/- under Section 338 IPC. In case of non-payment of fine, the petitioner has been ordered to undergo various terms of imprisonment. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 2 The brief facts for consideration before the trial Court were that on the morning of 28.4.2002, around 5.45 A.M. complainant Krishna Devi and her husband were on a morning walk. When they were on their way to their house and had reached Bhalehar bus stop, her husband went to purchase some articles in a shop across the road. 3 The complainant who was walking on her side of the road, jeep No. HP39-7528 which was being driven by the accused- petitioner in a rash and negligent manner struck against the complainant as a result of which she fell down and sustained simple and grevious injuries on her person. She became unconscious. The husband of the complainant rushed her to the Zonal Hospital, Dharamshala for medical treatment. Subsequent investigation and follow up action was taken by the police. 4 The prosecution has examined 8 witnesses namely PW1 Krishna Devi, PW2 Purshotam Lal, PW3 Dr. Veena Pathiyarch, PW4 Subhash Chand, PW5 Naresh Kumar, PW6 ASI Yash Pal, PW7 Raj Kumar and PW8 Hans Raj. The case of the prosecution has been corroborated in all particulars especially by the evidence of PW1 Krishana Devi and PW2 Purshotam Lal. Though PW1 was declared hostile but her cross examination proved the allegations made by her. She stated about the accident in clear terms and in cross examination stated that the accident had affected her memory. PW3 Dr. Veena Pathiyarch has proved on record the injuries sustained by PW1 as recorded in Ext.PW3/A. The X- ray report Ext.P2 proves the fracture on the person of the complainant. 3. In appeal before the learned Sessions Judge, the petitioner pleaded his innocence and urged that there was no rash or negligent driving. He also urged that identity of the petitioner was not established. The learned Appellate Court after considering the evidence of 3 PW5 Naresh Kumar, the owner of jeep, held that it was the petitioner who infact was driving the jeep. After considering the evidence in detail, the Courts holds that there is no doubt left that the accident was caused due to the rash and negligent driving of the petitioner. 4. Learned counsel appearing for the petitioner has vehemently urged that the Courts below have not considered the evidence in its right perspective. One of the grounds urged is that conviction is based on the evidence of interested witnesses more especially PW2 Purshotam Lal the husband of the complainant and that the version of PW1 is not similar to what she has stated before the police. Learned counsel submits that identity of the petitioner had not been established the mere fact that he was the driver of the jeep, hence no liability can be attributed to him. 5. Adverting to the evidence on record the statement of complainant is to the effect that after the accident, she became unconscious. In these circumstances, it cannot be accepted that the petitioner would narrate the entire incident with all details. Had it been the case the evidence was required to be rejected outright for the obvious reason that once a person becomes unconscious he is not supposed to remember the details of occurrence. So far as the evidence of PW2 is concerned, at that time of accident, the complainant was walking with him. It cannot be said that PW2 is an interested witness. Identity of the petitioner is clearly established by the owner of the jeep PW5 and the injuries have also been proved by PW3 Dr. Veena Pathiyarch. 6 Coming to the aspect of sentence, this Court is always face with difficulty as the accident had occurred about 6/7 years back. Sentence of imprisonment obviously would not serve any purpose. In these circumstances, I do not find that the incarceration of the petitioner 4 would serve any purpose. The sentence of fine is maintained. The petitioner shall pay a sum of Rs. 25,000/- to the complainant Smt. Krishana Devi, in addition to whatever compensation she may have received from the owner/the petitioner in any other civil action etc. The amount be deposited in Court of the learned Judicial Magistrate Ist Class, Court No.1, Dharamshala within a period of twelve weeks from today. On deposit of such amount, the Court shall ensure that the amount deposited is disbursed to the injured. Revision petition stands disposed of. It is clarified that in case of non-deposit of compensation within a period of twelve weeks from today, the sentence of imprisonment shall revive and shall be executed in accordance with law by the learned trial Court. Bail bonds furnished by the petitioner stand discharged. (Dev Darshan Sud) Judge September 8th , 2010(ms)