JUDGEMENT :-
1 This revision petition has been filed by the petitioner against the judgment and sentence imposed by the learned Sessions Judge, Kangra at Dharamsala, affirming the judgment and sentence passed by the learned Additional Chief Judicial Magistrate, Nurpur, District Kangra, holding the petitioner guilty for offences under sections 279, 337 and 304-a, ipc and sentencing him to rigorous imprisonment for six months and a fine of Rs. 1000/- under Section 279, IPC, rigorous imprisonment of three months under Section 337, IPC and rigorous imprisonment for two years and a fine of Rs. 2000/- under Section 304-A, IPC. In appeal, the learned Sessions Judge affirmed the findings of guilt and sentence imposed after scrutiny of the facts and evidence on record.
2 The brief facts of the case are that on the fateful day, that is on 23-8-1996, Das Raj along with his wife and daughters was standing outside shop of Sarav Singh who was dealing in vegetables at Raja Ka Talab. It was raining and they had taken shelter in the shop. The prosecution alleged that the petitioner was driving Jonga Jeep bearing No. PAG-9042 in a rash and negligent manner which came from Jawali side and ploughed into the vegetable shop causing death of Neha, daughter of Das Raj and injured his wife and the other daughters. The police took the jeep and documents in its possession. Photographs of the accident site were also taken. After completion of investigation, the petitioner was charged for offences under sections 279, 337, 304-a, ipc. In his statement under Section 313, Cr. PC. the case set up by the petitioner is one of complete denial. No defence evidence was led by the petitioner.
3 Learned trial Court on the evidence on record, more especially the evidence of Das Raj (P.W. 1), who was an eye-witness and who recognized'the petitioner as the driver, as also of P.W. 3 Anil Kumar, who also witnessed the accident and identified the petitioner as the driver, held the petitioner guilty of rash and negligent driving and sentenced him for having committed the offences as charged. In appeal, these findings have been affirmed by the learned appellate Court.
4 Learned counsel for the petitioner submits that the Courts below have come to perverse findings holding that the petitioner at the relevant point of time was driving the accidental jeep. Learned counsel relies upon the statement of P.W. 2 Puran Chand and P.W.7 Sarav Singh. Referring to their statements in extenso, learned counsel submits that P.W.2 Puran Chand who was a vegetable seller/vendor at Raja Ka Talab for the last 17 years, has stated in his evidence that on 23-8-1996 at about 4.30 in the evening. P.W. 1 Des Raj was standing with his family outside the shop of Sarav Singh P.W. 7 whose shop is only one shop away from his shop. At that time, one Jonga Jeep came from Jawali side and rammed into the family of Des Raj. As a result, one of his daughters died on the spot and the injured were rushed to the hospital. He states that the driver of the jeep fled from the scene of occurrence and the injured were carried to the hospital in a van. He denied that it was the petitioner who was driving the jeep at the relevant point of time. At this stage, he was declared hostile and cross-examined by the prosecution. He states that the jeep was being driven at a speed which did not make it possible for it to negotiate the curve towards Rihan side. When confronted with the statement that he had recognized the driver, he states that he had said this on the basis of what he had heard from other people. Learned counsel then submits that P.W. 7 Sarv Singh outside whose shop Des Raj and his family members were standing, has in no uncertain terms, categorically stated that he did not know who was driving the jeep. This witness has also been declared hostile. He was cross-examined and confronted with his statement made under Section 161 of the Code of Criminal Procedure where he refused to budge from his stand taken in Court. Learned counsel also refers to Ex. P.W. 9/A which is mechanical report of the accidented vehicle showing that the brake and steering of the jeep not working. This document was produced by the investigating officer in his evidence when he appeared as P.W. 9.
5 Learned Additional Advocate General, Ms. Ruma Kaushik, submits that despite two witnesses turning hostile, there is ample evidence on record to prove that it was the petitioner who was driving the Jonga Jeep involved in the accident at the relevant point of time. In particular, she refers to the evidence of P.W. 1 Des Raj, who along with his family members was standing in the shop of Sarav Singh and recognized the petitioner as the driver of the Jeep involved in the accident. He says that he recognized the petitioner since he knows him from some time. He stays at a distance of about 6 kms. from his (Des Raj) residence. To similar effect is the evidence of RW. 3 Anil Kumar who corroborated P.W. 1 Des Raj and states in his evidence that he was running the business of a tent house. He knows both Prosecution Witnesses Sarav Singh and Puran Chand. He then testifies that his shop is on the opposite side of the shop of Sarav Singh at a distance of about 50 yards from the shop of both these witnesses. He has recognized the petitioner as being the driver of the Jonga Jeep, though he says that it was not being driven at a very fast speed. So far as the report Ex.P.W. 9/A is concerned, learned Additional Advocate General submits that it has not been proved by the mechanic himself, but has merely been tendered as an exhibit. This is the entirety of evidence on record, excluding the medical evidence which has not been disputed.
6 I cannot persuade myself to hold that the circumstances emphasized by the learned counsel for the petitioner, in any manner, detract from the guilt of the petitioner. Having scrutinized the evidence on record, merely because two witnesses have turned hostile, would not by itself mean that either the identity or the rash and negligent driving by the petitioner has not been proved on record. All that I need say is that P.W. 1 Des Raj and P.W. 3 Anil Kumar are clear in their depositions that it was the petitioner who was driving the vehicle. They have been subjected to searching cross-examination and the veracity of their evidence in examination in chief has not been controverted. Learned counsel submits that P.W. 1 has to be treated as an interested witness and his evidence is to be scrutinized with greater care and caution. True, P.W. 1 is an injured person and it is his daughter who died and his other family members received injuries, but that fact by itself does not render his evidence untrustworthy. This principle has been affirmed by the Supreme Court in Kalegura Padma Rao v. State of Andhra Pradesh represented by the Public Prosecutor (2007) 12 SCC 48 : (AIR 2007 SC 1299) holding :
"16. We may also observe that the ground that the witness being a close relative and consequently, being a partisan witness, should not be relied upon has no substance. This theory was repelled by this Court as early as in Dalip Singh's case, AIR 1953 SC 364 : (1953 Cri LJ 1465) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed (AIR p. 366, para 25) : "25. We are unable to agree with the learned Judge of the High Court that the testimony of the two eye-witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p. 59): (1952 Cri LJ 547). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
17. Again in Masalti v. State of U. P. (AIR 1965 SC 202) : (1965 (1) Cri LJ 226) this Court observed (AIR pp. 209-210 para 14):
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses............The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence, but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."
18. To the same effect is the decision in State of Punjab v. Jagir Singh, (AIR 1973 SC 2407): (1973 Cri LJ 1589) and Lehna v. State Of Haryana., (2002.(3) SCC 76)."
The decision of the Supreme Court in Namdeo v. State Of Maharashtra., 2007 Cri LJ 1819 : (AIR 2007 SC (Supp) 100) reaf- firms this decision, holding :
"31...............In our judgment, a witness who is a relative of the deceased or victim of a crime cannot be characterized as 'interested'. The term 'interested' postulates that the witness has some direct and indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive."
7 The golden rule of assessing evidence of any witness is to see as to whether in the natural sequence of events, the person deposing as a witness is one who is naturally familiar with the facts stated under oath, his testimony stands the test of cross-examination and he has no motive to implicate the accused. I find these factors established on record and neither P.W. 1 Des Raj, nor P.W.3 Anil Kumar have any motive to falsely implicate the petitioner.
8 In Radha Mohan Singh alias Lal Sahab v. State of U.P. (2006) 2 SCC 450 : (AIR 2006 SC 951 : 2006 Cri LJ 1121), holding :
"7.............It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. (See Bhagwan Singh v. State of Haryana ( 1976) 1 SCC 389 : 1976 SCC (Cri) 7 : AIR 1976 SC 202 : ( 1976 Cri LJ 203), Rabindra Kumar Dey v. State of Orissa ( 1976) 4 SCC 233 : 1976 SCC (Cri) 566 : AIR 1977 SC 170 : ( 1977 Cri LJ 173), Syed Akbar v. State of Karnataka (( 1980) 1 SCC 30 : 1980 SCC (Cri) 59 : AIR 1979 SC 1848): ( 1979 Cri LJ 1374) and Khujji v. State of M. P. ((1991) 3 SCC 627 : 1991 SCC (Cri) 916 : AIR 1991 SC 1853). The evidence on record clearly shows that the FIR of the incident was promptly lodged and the testimony of P.W. 1 Ganesh Singh, P.W. 1 Ramji Singh and also P.W. 3 Mohan Yadav finds complete corroboration from the medical evidence on record. We find absolutely no reason to take a different view."
9 Reading the testimonies of P.W. 2 Puran Chand and P.W. 7 Sarav Singh, on whom great reliance is placed by the petitioner, does not disprove the occurrence of the incident. Though, P.W. 2 says that he had heard about the petitioner driving the vehicle, but that fact by itself does not exonerate the petitioner. About P.W. 7 Sarav Singh all that I need say is that he is one person who seems to have been won over by the petitioner and is not telling the truth. It is by now notorious that people are resiling from their statements under Section 161 of the Code of Criminal Procedure which is plaguing the entire criminal justice system. In any event, it is not the number of witnesses which determines the guilt' of an accused, but the quality of evidence.
10 On an analysis of the statements of P.W. 1 Des Raj and P.W. 3 Anil Kumar, I am satisfied that the petitioner was the person driving the Jonga Jeep in a rash and negligent manner and caused the accident. There is no merit in the revision petition which is accordingly dismissed.
11 On the quantum of sentence, learned counsel submits that maximum sentence has been imposed upon the petitioner who deserves to be dealt with more leniently, more especially when the accident has occurred in 1996. Learned counsel prays that benefit of the Probation of Offenders Act be granted to the petitioner. I cannot accept this plea, as the Supreme Court in Dalbir Singh v. State of Haryana, (2000) 5 SCC 82 : (AIR 2000 SC 1677 : 2000 Cri LJ 2283) holds :
"When automobilies 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 utmost 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 sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and frolic."
12 This Court in State of H. P. v. Girdhari Lal, 2007 Cri LJ 4347, following the decision of the Supreme Court in Dalbir Singh's case rejected the plea for grant of benefit of Probation of Offenders Act to the accused. Subsequently in State of Himachal Pradesh v. Mast Ram, 2010 (1) SLJ (HP) 246, this Court reiterates the principle of law.
13 The case has been hanging like a Sword of Damocles on the petitioner's head and the very fact of pendency of the case has put fear in his heart. Having considered the submissions made by the learned counsel for the petitioner, I modify the sentence imposed upon the accused. Accordingly, the petitioner is sentenced to undergo rigorous imprisonment for a period of one month and a fine of Rs. 1000/- under Section 279, IPC, simple imprisonment for a period of three months and a fine of Rs. 500/- under Section 337, IPC and rigorous imprisonment for three months and a fine of Rs. 30,000/- under Section 304-A, IPC. In default of payment of fine, the petitioner shall undergo imprisonment for two months. The sentences shall run concurrently. The sentence of imprisonment has been reduced keeping in view the fact that the revision petition is now being decided after a period of more than 14 years. The fine, when recovered from the petitioner, shall be paid to the father of the deceased Neha. Bail bonds furnished by the petitioner are cancelled. He shall surrender before the Court of learned Sessions Judge, Kangra at Dharamsala, who shall direct the sentence to be executed in accordance with law. The revision petition is accordingly disposed of Order accordingly.
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