YUBRAJ ALIAS YOGRAJ Vs. STATE OF H.P.

JUDGEMENT

(1.) 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, 304A of the Indian Penal Code, (hereinafter referred to as the 'Code').

(2.) 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 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.

(3.) 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 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 v. State of Maharashtra : (2002)7 SCC 543 and Anil Rai v. 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 Ors. v. State of Bihar : (1996)2 SCC 317 and Krishna Mochi and Ors. v. State of Bihar : (2002)6 SCC 81.