IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Criminal Revision No. 134 of 2003 Date of Decision: 9th July, 2010 __________________________________________________________ Dinesh Kumar. ….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. K.D. Sood, Advocate. For the Respondent: Ms. Ruma Kaushik, Additional Advocate General with Mr. R.P. Singh, Assistant Advocate General. __________________________________________________________ Dev Darshan Sud, J (oral). The petitioner has been sentenced for offences under Sections 279, 337 and 304-A of the Indian Penal Code for various terms of imprisonment, namely, six months simple imprisonment under Section 279, six months simple imprisonment under Section 337 and two years simple imprisonment for offences under Section 304-A of the Indian Penal Code. 1 Whether Reporters of Local Papers may be allowed to see the judgment? 2 2. The prosecution case is that on 15.2.1999, petitioner was driving Mini Bus H.P-22-2590, was responsible for causing accident which resulted in the death of one Subhash Chand, who had boarded the bus and injuries to Smt. Tripta Devi PW 8. According to the case as set out by the prosecution, he was driving the bus in a rash and negligent manner and was unable to control it as a result of which it turned turtle and caused death of Subash Chand and injuries to PW 8 Tripta Devi. Learned Trial Court on the basis of evidence on record convicted the petitioner for the offences. In appeal, the judgment of conviction has been affirmed. 3. Learned counsel appearing for the petitioner submits that, there is no evidence to link the petitioner with the incident and that there was no rash or negligent driving on the part of the petitioner. In particular, he made reference to the evidence of PW 8 Tripta Devi and PW 9 Manjeet Singh, who were other passengers traveling in the bus. PW 8 Tripta Devi states that she had boarded the bus along with her husband and children and shortly thereafter it turned turtle. She states that the bus was full of passengers at that point of time and she became unconscious. She states that the road had been dug on the spot. She affirms this statement in cross-examination that drains had been dug by the Telephone Department. PW 9 Manjeet Singh states that when the bus reached near Bara, it was in normal speed and there was a large heap of mud lying on the road, over which the bus turned turtle and the passengers received injuries. He also affirms this statement in cross- examination that heap of mud were piled on the road. 4. The main stress of the prosecution case is on PW 1 Ramesh Chand, who boarded the bus alongwith the deceased and states in his evidence that the driver had thrown out a newspaper from the bus, 3 while driving, due to which the bus met with the accident and caused death of Subash Chand. The learned courts placed reliance on his statement to hold that the bus was driven in rash and negligent manner by the petitioner herein. 5. Surely in order to prove the offences it is the entirety of the evidence which has to be considered. But in this case, the fact which is established on record is that the Telephone Department had dug the road/drains and heaps of mud were lying on the road. I am unable to find any reason on record as to why the evidence of PW 8 and PW 9 has been ignored, when they are the witnesses of prosecution itself. If the entire evidence is read and not re-appreciated, the conclusion is that the petitioner may have been negligent, but not rash. In other words, the bus was not being driven in a very high speed. These facts are relevant for the purpose of considering the sentence to be imposed upon the petitioner. I am unable to persuade myself that the petitioner has not been negligent. If he had seen the mud heaps on the road and the drains dug, it was his duty to stop the bus there and then and ascertain whether it is safe to drive the bus or not. I also notice from the photographs that the road has been kept in a terrible condition, but that would not exonerate the petitioner for taking some care. Turning to the sentences, especially with regard to rashness, it has not been established on record that the petitioner is guilty of any rash act, as such I deem it fit and proper to set aside the sentence of imprisonment imposed upon the petitioner for all three offences. 6. In these circumstances, this revision petition is partly allowed and I held that for offences under Sections 279, 337 and 304-A of the Indian Penal Code, the petitioner shall be liable to pay fine of Rs. 4 25,000/-. The amount of Rs. 6,500/- stand already deposited. The balance amount be deposited before the learned Trial Court within a period of four weeks from today. Revision petition disposed of. July 09, 2010 (Dev Darshan Sud) (KRS) Judge