IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Revision No. 149 of 2003. Date of Decision: 20th May, 2010. _______________________________________________________ Sukhwinder Singh .. Petitioner. Versus State of Himachal Pradesh ..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the petitioner : Mr. Ajay Sharma, Advocate. For the respondent : Mr. J.S. Rana, Assistant Advocate General. ____________________________________________________ SURINDER SINGH, J. (Oral) 1. This revision petition has been directed against the judgment of the learned Sessions Judge, Una, in Criminal Appeal No.1 of 2002, decided on 28th July, 2003, whereby the conviction and sentence of the petitioner for the offences punishable under Sections 279, 337 and 338 of the Indian Penal Code, passed by the learned trial Court, was upheld. 2. In short, the prosecution case can be stated thus. PW-2 Mohan Lal son of PW-3 Madan Lal, is a resident of village Saloh (Una) and his residence is located on the Whether reporters of the Local papers are allowed to see the judgment? - 2 - side of public highway. It is alleged that Mohan Lal during day time on 26th March, 1995 around 2.50 PM had gone to fetch water from the public tap nearby. It is alleged that while returning after filling water in his pitcher, he was hit by the petitioner-scooterist, who was driving rashly and negligently and both of them fell on the road, sustained injuries. The injury on the person of Mohan Lal dislocation of right shoulder, was opined to be grievous in nature. Mohan Lal and petitioner- scooterist both were got medically examined. The alleged incident was witnessed by the parents of PW-2 Mohan Lal and PW-6 Rachhpal Singh. PW-3 Madan Lal, father of Mohan Lal aforesaid, reported the matter to the police and got recorded his statement Ext.PB on the basis of which FIR was registered. 3. Police reached the spot, took photographs of the scooter and also prepared the site plan. Statements of the witnesses were recorded. After obtaining Medico Legal Certificates of the injured and also the petitioner, Challan was presented in the Court for the trial of the accused/petitioner. 4. Notice of accusation was accordingly put to the petitioner under Sections 279, 337 and 338 of the Indian Penal Code to which he pleaded not guilty and claimed trial. - 3 - 5. To prove its case, the prosecution examined injured Mohan Lal, his father PW-3 Madan Lal and mother PW-5 Shakuntla Devi and also PW-6 Rachhpal Singh. PW-6 did not fully support the case of the prosecution. At the end of the trial, petitioner was convicted and sentenced to pay a fine of Rs.500/- under each of the Sections, i.e., 279 and 337 of the Indian Penal Code and also to undergo simple imprisonment for three months for the commission of offence punishable under Section 338 of the Indian Penal Code with default clause. 6. Petitioner filed an appeal before the Court of Sessions, which was dismissed, hence the present revision petition, on the ground that the learned trial Court did not appreciate the evidence on record in the right perspective which caused miscarriage of justice to the petitioner. 7. I have heard learned Counsel for the parties and have carefully gone through the record of the case. 8. Initially PW-3 Madan Lal, father of injured Mohan Lal, reported the matter to the police alleging rash and negligent driving by the accused/petitioner. He categorically stated that while returning from the field with the load of grass, he saw the petitioner coming in a high speed and hit his son Mohan Lal with the result he fell on the road and sustained injuries. This fact has been - 4 - corroborated by PW-2 Mohan Lal injured when examined in the Court. The mother of the injured PW-5 Shakuntla Devi was standing nearby tethering the cattle, she also testified that she had seen the accident in question. 9. PW-6 Rachhpal Singh who turned hostile but also supported the case of the prosecution to the extent that Mohan Lal was hit by the scooterist. 10. In his statement under Section 313 of the Code Criminal Procedure, the petitioner admitted that at the time of alleged accident he was driving the scooter. 11. So it clearly proves on record that at the relevant time the petitioner was driving the scooter in a high speed. Although, high speed is not the criteria to prove the rash and negligent driving, but the prosecution has to prove the act of rashness or negligence by the driver to bring home his guilt under Section 279 of the Indian Penal Code. Sections 337 and 338 of the Indian Penal Code do not say anything about the driving, but it attributes the offence by a person who has been rash or negligent in his act. 12. A rash act is primarily an overhasty act. It is opposed to deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of - 5 - doing an act with recklessness and with indifference as to the consequences and criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against the injury to the public generally or to any individual in a particular. It is imperative duty of the driver of a vehicle to adopt such reasonable, proper care and caution. 13. In Baldevji Bhathiji Thakore v. The State of Gujarat, AIR 1979 SC 1327, the Apex Court held that in such a situation the onus lies on the accused to prove due care and caution, i.e., as to how and in what manner he has tried to avoid the accident. 14. In the instant case, the only defence which is raised is that the injured was hit by the trolley which fact is not probablised. Therefore, in the absence of cogent explanation given by accused/petitioner as to what precaution he did take to avoid the accident, in my opinion, the offence charged against him stands proved and there is no illegality in the conviction passed by the learned trial Court and upheld in appeal, for the offences aforesaid. 15. Learned Counsel for the petitioner submitted that the petitioner was aged about 28 years at the time of alleged accident, i.e., in the year 1995. About 15 years have elapsed from the date of accident till today. - 6 - Torture of trial and uncertainty in appeal loomed large on the head and mind of the petitioner having the fear of being imprisoned. By now he has settled in the life and he has no criminal history to his credit. No such offence has been repeated by him till date. Therefore, he may be exonerated from the substantive sentence. 16. Learned Assistant Advocate General submitted that the learned Courts below have already taken a lenient view in the matter by sentencing him to undergo simple imprisonment for a period of three months under Section 338 of the Indian Penal Code. Therefore, no further leniency is required to be shown in the instant case. 17. I have considered the rival contentions of the parties against the factual ground. Section 338 of the Indian Penal Code provides that the offender may be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both. No minimum sentence has been provided under the aforesaid Section and the discretion is left to the wisdom of the Court. 18. Examining the matter in the aforesaid circumstances, and also the fact that the accident had taken place about more than a decade ago and the petitioner - 7 - might have settled in life having his wife and children and also the fact that there was only a dislocation of the shoulder of Mohan Lal, therefore, he is exonerated of the substantive sentence prayed under section 338 of the Indian Penal Code without disturbing the fine imposed under each of the Sections aforesaid, which is stated to have been deposited. However, keeping in view the injuries sustained by the injured PW-2 Mohan Lal in the interest of justice the petitioner shall deposit Rs.10,000/- (rupees ten thousand only) within three weeks from today in the trial Court, failing which it shall be recovered as a fine. In case of its realization, it shall be released by the learned trial Court to Mohan Lal aforesaid. With this modification only in sentence the revision filed by the petitioner stands disposed of. Ordered accordingly. May 20, 2010. (Surinder Singh), J. (rc)