IN THE HIGH COURT OF HIMACHAL PRADESH. SHIMLA Cr.Rev. No. 16 of 2005. Date of Decision: 11th July 2011. _______________________________________________ Karnail Kumar ….Petitioner. Versus. State of H.P. ….Respondent. Coram: Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting1? No. For the petitioner : Mr.Shashi Bhushan, Advocate. For respondent. : Mr.P.K.Sharma, Addl. Advocate General with Ms. Shubh Mahajan, Dy. Advocate General. Dev Darshan Sud, J(oral). The petitioner challenges his conviction for offences under Sections 279, 337, 338 and 304-A IPC for which he has been sentenced to undergo rigorous imprisonment for various terms. 2. The brief facts of the case are that on 8.12.1999 ASI Sh. Jeet Singh, Police Station Amb received information about an accident which had taken place on the high way. He along with H.C. Jaswinder Singh, Constable Gulzari Lal and Constable Jaswant Singh rushed to village Takarala and found that a Tata Sumo, two bicycles and one motor cycle were standing there in an accidented condition. Two persons, who were later on identified as Ravinder Kumar and Jaswinder Kumar, had died on the spot. Whether reporters of the Local papers are allowed to see the judgment?yes. 2 The cyclist Amar Singh and Balwant Singh were on the way from Amb to Una. The prosecution examined 21 witnesses in support of its case. The accused was examined under Section 313 Cr.P.C. and denied his involvement in the accident. 3. PW4 Balwant Singh stated that on the day of the accident he was returning to his house and when he reached near village Takrala, a motor cyclist passed by his side which was being driven on the left side of the road. In the meanwhile, Tata Sumo vehicle coming from the opposite side being driven in a rash and negligent speed, hit the motor cycle as a result both the driver and the pillion rider of the motor cycle were tossed in the air with the impact and died on the spot. In his evidence, he has disclosed that this Tata Sumo has been driven on the wrong side of the road. When the truck impacted the motor cycle, both the driver and pillion rider fell down and died on the spot. He also received injuries in the accident, as after hitting motor cycle, the truck also hit the cycle. 4. PW5 Amar Singh also states that he was walking on the road pushing his bicycle and near village Takrala, he saw a Tata Sumo ramming into the motor cycle. He states that at that time it was being driven in a rash and negligent manner and that the fault was that of the truck driver. PW8 Sarabjit Singh, who was also produced by the prosecution to prove the accident was declared hostile but the prosecution did not rely on his testimony. Post mortem reports of the deceased was placed on the record Ext. PW9/A and 3 Ext.PW9/B. They testified the victims of the accident he had received injuries in the accident resulting in their death. Ext PW17/E and Ext.PW17/D are the medical certificates of the two witnesses PW4 and PW5 testifying that both these witnesses Balwant Singh and Amar Singh had sustained injuries during the accident. 5. An attempt was made to discredit their testimony on the ground that they were smelling of alcohol and in these conditions, they were drunk and their evidence could not be relied upon as they could state the correct version. 6. The learned trial Court on the evidence of the doctor as also the medico legal certificates holds that such incapacity of these witnesses to testify has not been established on the record. The learned court holds that the road cannot be turned into a death trap which is meant to be used in a manner which does not cause danger to the life and limb of citizen using it either as pedestrian or as a motorist. The petitioner was accordingly convicted. 7. In appeal, the learned appellate Court has re- assessed the entire evidence. It was urged before the learned Court that merely driving vehicle at a fast speed did not imply rashness unless that fact was proved. Learned appellate Court, adverts to the evidence of PW4 Balwant Singh to say that the truck was coming at a very high speed from the opposite direction and hit the motor cyclist who died on the spot. This witness has turned hostile but was cross-examined at length by the Public Prosecutor and in cross-examination 4 he admitted that the accident was the result of rash and negligent driving by accused Karnail Singh. Similar is the testimony of PW5 Amar Singh who was also walking with his bicycle. The learned court holds that the truck was being driven on the wrong side of the road and the accident was the result of these acts. A suggestion put to both the witnesses PW4 and PW5 that they were under the influence of liquor and therefore, they were not in a possession of their cognitive faculties was rejected by the learned appellate Court as being devoid of merit and not having been proved on the record. 8. Learned counsel appearing for the petitioner reaffirms these arguments before me. He places reliance on the judgment of the Delhi High Court in Abdul Subhan Vs. State, 2007 Cr.L.J. 1089 which relies upon the decision of the Supreme Court in Vijaya Kumar Shrotriya Vs. State of U.P. and others, 1998 SCC (Crl) 1508, holding that mere high speed does not constitute rashness. He submits that the witnesses do not state anywhere that the vehicle was being driven in a rash manner. This argument cannot be accepted for the reasons that the Tata Sumo was being driven at a fast speed on the wrong side of the road, which by itself was a pointer and conclusive proof of the fact that the vehicle was, in fact, being driven in a rash manner. When combined with an excessive by high speed, it becomes apparent and evident that the petitioner was guilty of rash and negligent driving. He had no business to drive on the wrong side of the road. Both two witnesses PW4 and PW5 are emphatic in their statements whether in 5 examination-in-chief or in cross-examination that it was because of the fault of Tata Sumo driver which resulted in the accident. This submission, therefore, deserves to be rejected. 9. On the question as to whether cognitive faculties of these two witnesses had been numbed by the consumption of liquor, all that I need say is that barring the medico legal certificates as noticed above which state that they were smelling of alcohol, there is nothing on the record to show that these witnesses were, in fact, drunk to the extent that they could not comprehend the nature of the accident or of what they said. 10. There is thus, no merit in this revision petition which is accordingly rejected. 11. On the question of sentencing what I find is that the Supreme Court in Dalbir Singh Vs. State of Haryana, (2000) 5 SSC 82 has dealt with the principles applicable under Section 304-A IPC in extenso and rule that such offence/acts need to be dealt with sternly. This Court in Krishan Singh Vs. State of Himachal Pradesh, Criminal Revision No. 46 of 2003 decided on 3rd March, 2010 and State of Himachal Pradesh Vs. Mast Ram, 2010 (1) S.L.J. (HP) 246, followed this ratio. In other words the court holds that such acts could not be allowed to go unpunished and jeopardize the safety of the life and limb of those persons who using the road. 12. Considering the totality in the facts and circumstances of the case, I hold that the substantive sentence of imprisonment imposed upon the petitioner is reduced to five months. All other sentences shall run concurrently be executed accordingly. This is further qualified by the condition that the petitioner herein shall 6 deposit a sum of Rs. 50,000/- in the trial Court within a period of six months from today which amount on receipt shall be disbursed equally amongst the legal representatives of the deceased/victims. In case of non-deposit, the sentence of imprisonment shall revive and the trial Court shall faithfully and duly execute the sentence. (Dev Darshan Sud), Judge. July 11, 2011(R)