IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A.No.: 519/2003. Date of decision: 30.7.2010. State of H.P. … Appellant Versus Prem Lal. … Respondent Coram : The Hon’ble Mr. Justice V.K. Ahuja, Judge. Whether approved for reporting?1 Yes For the appellant : Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr. K.C. Shankhyan, Advocate. V.K. Ahuja, J.(oral) This is an appeal filed under Section 378 Cr.P.C by State of H.P. against the judgment of Learned Additional Sessions Judge, Mandi dated 24.3.2003 vide which the judgment of conviction dated 21.5.2001 passed by learned Sub Divisional Judicial Magistrate, Karsog against Prem Lal was set aside and one Hari Ram was convicted and was sentenced as under: Under Section 338 I.P.C Simple Imprisonment for three months and fine of Rs. 500/- . Under Section 337 I.P.C fine of Rs. 200/-. 1Whether reporters of Local Papers may be allowed to see the judgment? Yes 2 In default of payment of fine the accused was to undergo further simple imprisonment for one month. 2. Briefly stated the facts of the case are that on 13.1.1998 at about 9:30 P.M a statement was recorded by ASI Vijay Sen under Section 154 Cr.P.C that one Dhani Ram, was admitted in the Hospital Karsog. In the said report ASI Vijay Sen has alleged that a truck No.HP11-0243 was parked on the road, loaded with sand and the truck driver was found missing. It was alleged in the said report that one person Dhani Ram had been admitted in the hospital having suffered injuries and he had been referred to hospital at Shimla. In the statement of Dhani Ram recorded under Section 154 Cr.P.C he had stated that he had gone on the occasion of Lohri to Tatapani to take a bath. At 4:15 P.M. he was sitting outside the shop of Het Ram, vegetable seller near Bus Stand bridge and he was sitting on the parapet . A Private truck No.HP11-04243 came at a high speed towards the bridge and the driver drove the vehicle rashly and negligently and crushed his left foot under the rear tyre of the vehicle. The person raised an alarm but the driver did not stop the vehicle and he became unconscious and was brought to the hospital. Thereafter, the case was registered and after investigation , the police filed the challan under Sections 279,337,338 I.P.C and 187 Motor Vehicle Act, as against one Hari Ram. On application filed by Hari Ram, accused under Section 319 Cr.P.C., the respondent Prem Lal was also impleaded as an accused and both of them were tried for the offences as detailed above. 3. On conclusion of the trial, the learned J.M.I.C Karsog vide his judgment held the respondent guilty for the offences detailed above and convicted and sentenced him as aforesaid. 3 4. On appeal, by the respondent against his conviction, the learned Additional Sessions Judge, Mandi vide his judgment dated 24.3.2003 acquitted the respondent and convicted Hari Ram for the offence under Sections 279,337 and 338 I.P.C and sentenced him for 15 days on each count. 5. A revision was preferred by Hari Ram, who had been held guilty by the learned Additional Sessions Judge and had been sentenced, though no appeal against acquittal lied before learned Additional Sessions Judge. This court vide its judgment dated 14.10.2003 held that the learned Additional Sessions Judge had passed judgment without jurisdiction and the revision filed by Hari Ram was accepted. 6. The present appeal has been filed by the State of H.P against the acquittal of respondent by learned Additional Session Judge vide his impugned judgment. 7. I have heard the learned counsel for the parties and have gone through the evidence on record. 8. From the appraisal of the evidence, it is clear that there is sufficient evidence on record to show that the driver of the truck in question was driving the vehicle rashly and negligently. A reference can be made to the statement of PW-1 Dhani Ram injured, PW-3 Het Ram, PW-4 Tej Ram and PW-12 HiraLal, Range Officer who all have stated that the driver of the truck took a shortcut resulting in the accident in question and crushing of the foot of Dhani Ram injured. All these witnesses have clearly stated in this regard that the driver was driving the truck rashly and negligently and in so far as this fact is concerned, there are findings of both the courts namely the court of learned S.D.J.M.I.C as well as of the court of learned Additional Sessions Judge, Mandi who have held that the ingredients of the offences under Sections 279,337,338 I.P.C stood 4 established. The only question worth consideration was as to the identity of the driver of the truck, who was driving the truck at the relevant time. The learned trial Court had come to the conclusion that the respondent was driving the truck at the relevant time, while learned Appellate Court had come to the conclusion that Hari Ram was driving the truck at the relevant time and they passed the judgment accordingly. 9. I may make a reference to the testimony of the witnesses. In so far as the identity of the driver of the truck is concerned, PW-1 Dhani Ram has stated that he does not know who was driving the truck in question. PW-3 Het Ram has stated that the truck had gone to some distance and they followed the truck and he clearly stated that they took out the driver PremLal, who was driving the vehicle. In the examination in chief before summoning of the respondent he had stated that the driver is not present in the Court but when he was re-examined after respondent was impleaded as a accused. He clearly stated that the driver was the one whom he identified also in the court. He also stated that he knew respondent and has clearly named him also. 10. PW-4 Tej Ram has also stated that the truck was being driven by respondent Prem Lal and not by the accused present in the court namely Hari Ram. He identified Prem Lal and has stated his name and has also stated that he is married in their village. In his cross examination he has clearly stated that the truck was being driven by Prem Lal accused present in the Court. He also admitted the suggestion that injured Dhani Ram was taken to Suni Hospital by Prem Lal respondent. PW-12 Hira Lal has stated that the truck was being driven by its owner. In cross examination he has stated that it was being driven by the owner Prem Lal present in court today and not by Hari Ram. 5 11. From the perusal of the statements of all these witnesses this fact stands established that the identity of the person driving the vehicle was established, was that respondent was driving the vehicle at the relevant time. It is also clear that the investigation in this case had not been fair since the statement of the witnesses showed the involvement of the respondent, who was not made an accused since he may be the owner of the truck and belonging to the area in question as per the address given by him. In his statement under Section 313 Cr.P.C Prem Lal respondent has not come up with any plea that he had employed Hari Ram in those days, who was his driver and he was making the payment regularly to him. Learned counsel for respondent has pointed out to the entries at the Barrier EX.PW5/A which suggest that the name of the driver was Hari Ram, however, there was no signature of the driver in the register maintained at the Barrier and these entries could have been easily procured since report in question was lodged after about 5 hours of the occurrence. I have no doubt to disbelieve the version of the three witnesses mentioned above who have in their cross- examination categorically stated that driver of the vehicle in question was respondent and not Hari Ram. 12. In view of the above discussion, I accordingly hold the respondent guilty of notice of accusation put up to him under Sections 279,337,338 IPC. Let the respondent be heard on the point of sentence. Judgment to continue. (V.K Ahuja), Judge, 30th July,2010 (veena) 6 HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.A.No. 519 of 2003. Decided on: 30.7.2010/26.8.2010. State of H.P. ………Appellant. Versus Prem Lal ……Respondent. Coram: The Hon’ble Mr.Justice V.K. Ahuja, Judge. Whether approved for reporting? For the appellant: Mr.J.S. Guleria, Assistant Advocate General. For the respondent: Mr.K.C. Shankhyan, Advocate. Respondent in person also. V.K. Ahuja, J.: Heard on quantum of sentence. Keeping in view the statement of the respondent that he is the only earning member of the family consisting of his parents, wife and two children and the fact that the occurrence relates back to the year 1998 and the present appeal has been listed after more than 10 years, I am of the opinion that he deserves the leniency of the Court and substantive sentence imposed upon the respondent by the learned trial Court is modified and the respondent is held liable to pay fine as under: Under Section 279 of the IPC – Rs.5,00/- Under Section 337 of the IPC – Rs.5,00/- Under Section 338 of the IPC – Rs.1,000/- Apart from the above, the respondent shall also pay compensation of Rs.30,000/- under Section 357 of the Cr.P.C. 7 2. The respondent prays for time to deposit the compensation and pay the fine by the next date. List on 6th September, 2010. The compensation, when deposited, shall be payable to the injured Dhani Ram. The Registry shall issue a notice to the said injured to collect the compensation amount. Dasti copy. July 30/Aug.26, 2010. (V.K. Ahuja) (trs) Judge.