IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.Revision No. 113 of 2011 Date of Decision 6th July ,2011 ________________________________________________________ Dalip Singh ….Petitioner. Versus State of H.P ….Respondent. ________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No ________________________________________________________ For the Petitioner: Mr. N.K. Bhardwaj, Advocate. For the Respondent: Mr. P.K. Sharma, Addl. A.G. with Ms. Shubh Mahajan, Deputy A.G. ______________________________________________________________ Dev Darshan Sud, J (oral) The petitioner challenges his conviction under Sections 279, 227, 338 and 304-A IPC and 187 of the Motor Vehicles Act. The learned trial Court had imposed the sentences as under: Section Sentence Fine In default of fine (simple imprisonment) 279 IPC Six months ` 500/- one month 337 IPC Six months ` 500/- one month 338 IPC One year ` 500/- one month 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes 2 304-AIPC Two years ` 1000/- two months 187 M.V. Act three months ` 200/- one month. All the sentences were ordered to run concurrently. 2. The case of the prosecution is that on 22.6.2005 PW1 Survir alias Amit Chauhan was driving motor cycle bearing registration No. HP-34-2996. PW14 Manoj Kumar was the pillion rider. They were coming from Thalaut to Bajor. At about 11 PM, the deceased Dev Dutt took a lift from them. Further case of the prosecution is that the accused was driving a truck No. HP-49- 0786 at a high speed and on the wrong side of the road, struck against the motor cycle as a result of which Dev Dutt was crushed under the tyres of the truck and died on the spot. The other two persons/pillion rider suffered injuries and they were taken to hospital. On intimation received, daily dairy Ext.PW15/A was recorded and PW12 H.C. Balak Ram was deputed to verify facts at the spot. He found that dead body of the deceased and the motorcycle were lying there. He thereafter proceeded to Kullu where he recorded statement Ext.PW2/A of Bhup Singh, PW2 which was sent to the police station and FIR Ext.PW12/A was registered. Site plan Ext.PW12/C was prepared; the motor cycle seized alongwith all documents etc. vide seizure memo Ext.PW3/A. Photographs Ext.P1 to Ext.P8 and their negatives Ext. P9 to Ext.P16 were taken at the spot. Dr. Sonam conducted the medical examination of Manoj Kumar and found simple as well as grievous injuries on his body vide MLC Ext. PW17/A. She also conducted the medical examination of Amit Chauhan vide Ext.PW7/B and referred him to PW16 Dr. Samir Vaidya who conducted the dental examination and proved grievous injuries 3 vide report Ext.PW16/A. Dr. K.R. Sharma PW9 conducted the postmortem examination and testified that death has been caused because of crush injuries leading to brain damage, tracheal injury and haemorrhage shock . Ext.PW9/A is the post mortem report. At this juncture, the Court also noticed that PW4 Duni Chand examined both the accidented vehicles i.e. the motor cycle and truck and did not find any mechanical defect. These two reports Ext.PW4/A and Ext.PW4/B have remained unchallenged. 3. In his statement under Section 313 Cr.P.C. the petitioner admits the accident. In fact, in answer to question No. 12, he told: “This is a false case. The accident actually happened due to negligence of motorcycle driver. The death of Dev Dutt was caused due to rash & negligent driving by Amit Chauahan.” In other words, the only thing which the Court had to judge in these circumstances was as to whether it was the motor cycle or the truck which was rash and negligent resulting in the death of Dev Dutt. The factum of accident stands admitted under Section 313 Cr.P.C. 4. The prosecution examined 17 witnesses. PW1 Survir @ Amit Chauhan was driving the motor cycle, PW2 Bhup Singh did not support the prosecution case and has been declared hostile. PW7 Rajender Kumar was also declared hostile. The learned trial Court on the evidence on record including the circumstances convicted the petitioner for offences as noted by me above. 4 5. In appeal, it was urged before the learned Appellate Court that delay in recording the statement of Amit Chauhan is fatal to the entire case. This submission has been rejected by the learned Appellate Court and rightly so as there is no evidence on record to show/establish that delay in fact was with the intent/design to falsely implicate the petitioner herein. Rather the case of the prosecution is that after hitting the motor cycle, the petitioner fled away from the scene of occurrence. Even otherwise, the factum of accident having been admitted by the petitioner herein the delay losses all significance. The second question urged was with respect to the witnesses turning hostile. This is a rampant malady which has clogged the criminal justice system where the witnesses do not speak truth in Court despite having witnessed the incident and requires to be dealt with sternly. Leaving that aside, the principle and this point is well settled and established by the Supreme Court and needs no reiteration is that the maxim falsus in uno falsus in omnibus does not apply to criminal proceedings in India. The principle needs no reiteration and reaffirmation again and again. What is required to be seen is as to whether despite having resiled from his previous statement under Section 161 Cr.P.C. the evidence of the witness can still be considered to be trustworthy on the other aspects of the case. This exercise was undertaken by the learned trial Court as also by the learned Appellate Court holding that their evidence had not been impeached to the extent that the incident so that it would effect its credibility. 5 6. Learned counsel appearing for the petitioner submits that there was no eye witness of this accident and in that eventuality, no conviction could follow. 7. I do not find any substance in the submissions for the reason that both the motor cycle riders have deposed/testified about the occurrence and their evidence cannot be doubted. They cannot be treated as interested witnesses. As the accident had occurred in the night at 11 PM, it is not possible to have independent witness who could see/watch the accident. Moreover, the evidence of an injured person cannot be treated as being that of an interested witness. Again if I look at their evidence from another angle, that is to say whether it is credible or not, what I find is that their examination-in-chief has not been impeached which would in any manner point out that these witnesses had a motive to implicate the petitioner herein. This submission is therefore rejected. 8. Having gone through the judgment of both the Courts below in detail, I do not find that this Court can interfere to exercise its revisional powers under Sections 397 and 401 Cr.P.C. The revision petition is therefore dismissed. 9. On the aspect of sentencing, learned counsel appearing for the petitioner submits that the petitioner is aged about 46/47 years and in case of his incarceration, his entire family would suffer. True, this is a fact but at the same time it cannot be forgotten that it was this person, who was driving in a reckless manner without any care and caution, endangered the life and liberty of an innocent user of the road. In Dalbir Singh vs. State of Haryana (2000) 5 SCC 82 the Supreme Court held: 6 “1. When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of further escalation of road accidents. All those who are manning the steering of automobiles particularly professional drivers, must be kept under constant reminders of their duty to adopt almost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic.” (at p. 84-85) In these circumstances, the sentence of imprisonment is reduced to six months under Section 304-A IPC. All the sentences shall run concurrently. In addition, a sum of ` 50,000/- shall be paid by the petitioner to the legal representatives of the deceased as compensation. This shall be over and above any amount which may have been claimed/awarded to them for his death and shall not be deducted from such amount which has been awarded or may be awarded in any civil action. Such amount be deposited within a period of six months from today. In case of non-deposit of this amount, the sentence of imprisonment shall revive and shall be duly and faithfully executed by the learned trial Court. Petition stands disposed of. July 6th, 2011 (Dev Darshan Sud), ms Judge 7