IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Criminal Revision No.105 of 2003. Date of decision: 16.03.2010. Yubraj alias Yograj ….Petitioner Versus State of H.P. ….Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Mr.M.A. Khan, Advocate. For the Respondents: Ms.Ruma Kaushik, Additional Advocate General. Dev Darshan Sud,J. The petitioner has filed this petition against the judgment and sentence imposed by the learned Sessions Judge, Kangra at Dharamshala, affirming the judgment and sentence of the learned Judicial Magistrate Ist Class, Dharamshala, convicting the petitioner for offences under Sections 279, 337, 304-A of the Indian Penal Code, (hereinafter referred to as the `Code’). The petitioner was sentenced to undergo rigorous imprisonment for a period of three months and a fine of Rs.500/-, in default of payment of fine to 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 undergo further imprisonment for one month under Section 279 of the Code, rigorous imprisonment for six months and fine of Rs.1,000/-, in default of payment of fine simple imprisonment for two months for offences under Section 304-A of the Code, rigorous imprisonment for three months and fine of Rs.500/- and in default simple imprisonment for one month for offence under Section 337 of the Code. The prosecution case in brief is that on 20.5.1997 at about 7.50 PM in the evening at Kachehari Adda near Post Office at Dharamshala, the petitioner while driving Car No.HPK-126 in a rash and negligent manner knocked down the hawkers sitting on the road side, who were selling vegetable and one child Sarthi alias Guglu son of Dwarka Dass who was also standing on the edge of the road. He caused injury to Tej Pal, Onkar Singh, Jeewan Dass and Santosh Kumari and other persons standing on the road side and the child died on the spot. After causing the accident, the petitioner fled from the scene of the accident, leaving the car at the spot. The accused was also driver of Tanker No.8771. In order to prove the accident, the prosecution produced 22 witnesses. The learned trial Court holds that the fact that the petitioner was driving the car involved in the accident bearing registration No.HPK-126 and that it was mechanically fit has not been disputed. It was argued that the death of the child was caused not by the act of the 3 petitioner but by the child himself striking against the car. PW-2 Tej Pal, is one of the injured, who has testified on oath that the offending vehicle was being driven by the petitioner (who was also a Tanker Driver) in a rash and negligent manner which knocked down the child causing his death. This witness also sustained injuries in the accident. He states that at the time when accident occurred he was in the shop at Kachehari Adda. The car hit the deceased and thereafter rammed into the shop causing injury to him. Thereafter it struck against the gate of Jagdish Chand and then stopped. PW-10 Santosh Kumari was also injured in the accident and she corroborated the testimony of PW-2 Tej Pal. PW-8 Harish Chand and PW-9 Jiwan Dass were the another injured parties. PW-6 Dwarka Dass, father of the deceased Guglu, testified on oath that his only son died in the accident and described the accident in vivid detail. In appeal, the learned Sessions Judge has affirmed these findings. On the question of one of the witnesses, namely, PW-9 Jiwan Dass turning hostile, the learned Court holds that his statement corroborates those of PW-10 Smt.Santosh Kumari and PW-2 Tej Pal on the point that the car was being driven by the petitioner in a rash and negligent manner. It, therefore, cannot be said that his testimony did not establish the factum of the accident. The Court relies upon the judgments of the Supreme Court in Balu Sonba Shinde vs. State of 4 Maharashtra, (2002)7 SCC 543 and Anil Rai vs. State of Bihar, AIR 2001 SC 3173 to accept the testimony of the hostile witness. The other aspect of the matter regarding non-examination of the Investigating Officer etc. has also been dealt with by the learned appellate Court in detail holding that if the factum of occurrence stands established, non-examination of the Investigating Officer is not fatal to the case of the prosecution. (See:Behri Prasad and Others vs. State of Bihar, (1996)2 SCC 317 and Krishna Mochi and Others vs. State of Bihar, (2002)6 SCC 81). I have heard learned counsel appearing for the parties and have gone through the records of the case. Learned counsel appearing for the petitioner has taken me extensively to the evidence to urge that the petitioner-accused was not guilty of the offences as charged. He submits that the evidence on record conclusively establishes that the child himself had struck against the car and did not sustain any injury because of any wrongful act on the part of the petitioner. I am not persuaded to take a different view of the evidence on the record than the one held by both the Courts below holding that the accident has been corroborated in all material particulars by all witnesses including the hostile witness Jiwan Dass, PW-9. The factum of the death of the child is established on the record and the suggestions that the 5 child himself ran into the car cannot be accepted. There can be no other conclusion than the one arrived at concurrently by both the Courts below that the petitioner is guilty of the offences as charged. I may also note that the Supreme Court in Dalbir Singh vs. State of Haryana (2000)5 SCC 82 has ruled that these kind of offences need to be dealt with sternly. This Court in Krishan Singh vs. State of Himachal Pradesh, Criminal Revision No.46 of 2003, dated March 3, 2010 and State of Himachal Pradesh vs. Mast Ram, 2010(1) S.L.J.(HP) 246 also follows this principle. The benefit of the provisions of Section 4 of the Probation of Offenders Act have been rightly denied to the petitioner. I, therefore, find no merit in this revision petition which is accordingly dismissed. The bail bonds filed by the petitioner are forfeited. A direction is issued to the learned Sessions Judge, Kangra at Dharamshala to ensure that the sentence imposed upon the petitioner is duly executed. March 16, 2010. (Dev Darshan Sud) (aks) Judge.