JUDGMENT : Vivek Singh Thakur, J. This revision petition is against judgment dated 23.06.2008 passed by learned Sessions Judge Kangra at Dharamshala, in Criminal Appeal No. 8-D/X-2006 vide which conviction and sentence imposed by the learned JMIC-II, Dharamshala upon petitioner in Case No. 26.II/2004, in Case FIR No. 267/2003, Police Station Dharamshala, District Kangra, H.P. under Sections 279 and 338 IPC, has been affirmed. 2. Prosecution case is that on 29.12.2003, PW-9 Shamashudin, PW-3 Rehman Shekh, PW-7 Ahmad Khan and Sarajdin had loaded vehicle No. HP-39A-3334 for transportation households from Civil Bazar to one government quarter situated near Sainik Rest House Dharamshala. During transportation, they were sitting in rear portion of the vehicle alongwith goods. Petitioner was driving the Jeep in high speed and near Shaheed Smarak they had shouted to drive the vehicle slow. However petitioner did not accede to their request and struck the vehicle with tree as a result of which double-bed box loaded in the vehicle had fallen upon them and PW-9 Shamashudin has suffered injuries of both legs & hand and PW-3 Rehman Shekh had suffered injuries on whole body. Both of them were unconscious and were taken to the hospital. Statement of PW-9 Ext. PW-9/A was recorded on 30.12.2003 by PW-10 SI Duni Chand alleging that accident had occurred on account of rash and negligent driving of petitioner-accused. 3. On the basis of Ruka statement PW-9/A, FIR Ex. PW-5/A was recorded in Police Station Dharamshala. After completion of investigation, challan was put in the Court. Prosecution has examined 10 witnesses to prove guilt of petitioner-accused. Statement of petitioner-accused was recorded under Section 313 of Cr.P.C. and no defence witness was examined. 4. After completion of trial the learned trial Court has vide judgment dated 21.01.2006 convicted the petitioner accused and has sentenced simple imprisonment for a period of 10 days and to pay a fine of Rs. 500/- under Section 279 IPC and in default of payment of fine, further simple imprisonment for 5 days and simple imprisonment for a period of 15 days and to pay a fine of Rs. 500/- under Section 338 of IPC and in default to pay fine, further simple imprisonment of 5 days. 5. The petitioner-accused had preferred an appeal against the judgment dated 21.01.2006, passed by learned trial Court. The said appeal has been dismissed vide judgment dated 23.06.2008 by learned Sessions Judge, Kangra at Dharamshala. 6. 500/- under Section 338 of IPC and in default to pay fine, further simple imprisonment of 5 days. 5. The petitioner-accused had preferred an appeal against the judgment dated 21.01.2006, passed by learned trial Court. The said appeal has been dismissed vide judgment dated 23.06.2008 by learned Sessions Judge, Kangra at Dharamshala. 6. I have heard learned counsel for the parties and gone through exhibited documents placed on record. 7. Mr. Onkar Jairath, learned counsel for petitioner accused has argued that both the courts below have committed mistake and illegality by misreading evidence and convicting the petitioner-accused and impugned judgment suffers perversity and illegality. Impugned judgments have been passed ignoring settled law of the land and finding rendered by lower courts runs counter to pronouncements of Apex Court. 8. It has been submitted on behalf of petitioner accused that it has come in the statements of witnesses that vehicle in question was being driven in normal speed and Jeep had not struck with tree but it was double bed box loaded on Jeep which struck with branches of tree leaning towards road when petitioner had driven Jeep to side of road and had applied brakes to avoid collusion with vehicle taking pass from opposite side. It has been submitted that witnesses have admitted that PW-3 Rehman Shekh and PW-9 Shamashudin had received injuries on account of felling of double bed box upon them and Jeep had not struck with tree. 9. It has been contented that goods were loaded by injured persons and their companions who were also travelling in Jeep with goods. It was their own negligence that they had kept bed boxes loose and there is no rash and negligent act on the part of petitioner inviting criminal liability. 10. On the other hand Mr. Ramesh Thakur learned Deputy Advocate General has contented that there is no material defect, mistake, illegality, material irregularity or perversity in judgments passed Courts below warranting interference of this Court under revisional powers and thus, prayed for dismissal of the petition. 11. 10. On the other hand Mr. Ramesh Thakur learned Deputy Advocate General has contented that there is no material defect, mistake, illegality, material irregularity or perversity in judgments passed Courts below warranting interference of this Court under revisional powers and thus, prayed for dismissal of the petition. 11. On behalf of the State it is submitted that accident has been admitted by petitioner and even if it is presumed that Jeep had not struck with tree and accident had occurred on striking of branches leaning towards road with loosely loaded bed boxes on taking vehicle to side of road coupled with sudden application of breaks to avoid collusion with vehicle coming from opposite side, then also, petitioner accused has acted in rash and negligent manner endangering human life, personal safety others resulting into grievous injuries rendering himself liable to be punished under Sections 279 and 338 IPC as failure to tie or get tied bed boxes is an omission on the part of petitioner amounting to rash and negligent act for fastening criminal liability upon him and therefore, petitioner has rightly been convicted and sentenced by lower courts. 12. PW-3, PW-7 and PW-9 have corroborated the prosecution story in examination in chief. However, in their cross examination it has come that it was not Jeep but loose bed boxes which had struck with tree and had fallen upon PW-3 and PW-9 causing grievous injury to them. 13. The accident, driving of vehicle by the petitioner accused with loose bed boxes hovering on angles of Jeep, grievous injuries sustained PW-3 and PW-9 due to felling of loose bed boxes upon them after striking with tree branches are not disputed rather admitted and suggested by petitioner. PW-7 Ahmad Khan and PW-9 Shashdin though in examination-in-chief have stated that petitioner has struck Jeep with tree and he was driving the vehicle in high speed, however, in cross-examination they have admitted that Jeep had not struck with tree but bed boxes had struck with tree. PW-7 Ahamad Khan has also admitted that branches of tree were leaning towards road. 14. PW-4 Vinod Kumar was conductor of Jeep at that time and for resiling his earlier statement recorded under 161 Cr.PC, he was declared hostile and was subjected to cross-examination by the learned Public Prosecutor as well as defence counsel. PW-7 Ahamad Khan has also admitted that branches of tree were leaning towards road. 14. PW-4 Vinod Kumar was conductor of Jeep at that time and for resiling his earlier statement recorded under 161 Cr.PC, he was declared hostile and was subjected to cross-examination by the learned Public Prosecutor as well as defence counsel. It is well settled law that statement of hostile witness is not to be brushed aside in toto but the Court can look into the statement and consider portion of that statement corroborated by other evidence for charming truth. He has stated in his examination-in-chief that during course of giving pass to two buses and one truck, Jeep had collided with tree and because of that double bed box had caused injury to the labour. He has admitted that bed boxes were hovering on angles of Jeep. However, he has stated that bed boxes were loaded on angles by the labour and were not tied as labour had not allowed to tie these bed boxes. 15. PW-4 Vinod Kumar had been colleague of petitioner and there is reason for his turning hostile of help petitioner but his statement as a whole corroborated by other evidence indicates that bed boxes were loaded on angles without tying and bed boxes had struck with tree and had fallen upon the labour causing injuries to the PW-3 and PW-9. 16. In the light of evidence of this case, it is to be determined that whether it was legal duty of driver to tie up or get tied bed boxes before moving vehicle. Further whether driving Jeep with loose bed boxes causing grievous injury to PW-3 and PW-9 on account of felling bed boxes on sudden application of brakes and striking with leaning branches of tree amounts to gross negligence inviting criminal liability upon petitioner. 17. It is settled law that for punishing under criminal gross negligence on the part of person concerned is necessary ingredient. Gross negligence includes an act and also omission to perform legal duty but not moral duty. Such act and omission must be cause of accident as well as injury. Negligence of someone else must not be there. 18. It is primary duty of driver to ensure before driving vehicle that goods are loaded in such a manner so as not to cause danger of life or safety of other person on its movement. Such act and omission must be cause of accident as well as injury. Negligence of someone else must not be there. 18. It is primary duty of driver to ensure before driving vehicle that goods are loaded in such a manner so as not to cause danger of life or safety of other person on its movement. However necessity to tie up goods loaded in vehicle will also depend upon various factors like nature and weight of goods, distance to be covered, road condition and gradient of road etc. relevant for taking decision at particular point of time. 19. In case goods are heavy enough ruling out possibility of tilting or slipping even without tying and distance is too short within city or town to be covered on municipal road in good condition with normal gradient, necessity or requirement of tying up goods may not be felt. Therefore, driving a vehicle with loose goods may or may not tantamount to gross negligence attracting criminal liability in peculiar circumstances of a particular case. 20. In present case bed boxes had not slipped with their own weight for reason that bed boxes were not tied, but bed boxes had fallen on sudden application of brakes and striking with leaning branches of tree. Therefore, issue that who was responsible to tie up goods but manner, in which vehicle with loosely loaded goods was being driven and handled, is not so relevant as main cause of accident was sudden application of brakes and striking of bed boxes with leaning branches of tree. 21. Loose loaded bed boxes are remote cause whereas application of sudden brake coupled with striking of bed boxes with tree is direct and immediate cause of accident in present case. 22. Petitioner was knowing that he was driving vehicle with loose household articles loading bed boxes on angles of Jeep with labour sitting with goods in rear portion of the Jeep. Defence propounded on behalf of petitioner is that accident had occurred on sudden application of brakes at the time of crossing/passing other vehicles from opposite side and also because of striking of leaning branches with loose bed boxes. 23. Defence propounded on behalf of petitioner is that accident had occurred on sudden application of brakes at the time of crossing/passing other vehicles from opposite side and also because of striking of leaning branches with loose bed boxes. 23. It is also defence of the petitioner that speed of Jeep was normal and though some of the witnesses in their cross examination have stated that speed of Jeep was normal but for rash and negligent act speed is not relevant in all cases. In the present case when vehicle was being driven with loose articles loaded in it, speed is irrelevant but the manner in which vehicle was to be driven and was being driven is relevant. Petitioner had taken risk of transporting goods without tying goods properly then it was duty of petitioner to be careful and cautious in driving the Jeep as to avoid accident as occurred. Cause of accident is laxity on the part of driver to perform his duty to ensure proper loading of goods and also to drive vehicle with care and caution so as to avoid felling of loose goods at the time of movement of vehicle on the road. 24. Petitioner cannot shift his liability and responsibility to drive the vehicle without endangering the life and or without causing injury to other by saying that labour had not tied bed boxes or had not allowed to tie bed boxes. 25. Further at the time of driving vehicle with loose goods in his vehicle, it was duty of petitioner to drive vehicle in such a manner that there is no necessity of applying sudden brakes as any prudent person can visualize that on application of sudden break to a vehicle with loose house hold articles particularly hovering bed boxes on angles of vehicle will result into felling of goods on the labour travelling with house-hold in rear portion of vehicle. The leaning branches of tree had not come down suddenly to strike with bed boxes. It was duty of driver to be more careful and branches of tree must have been seen by the petitioner. 26. It was duty of petitioner to notice and act according to condition of road, leaning branches, flow of traffic and manner of loaded goods and also height and width of vehicle as well as loaded goods. 27. It was duty of driver to be more careful and branches of tree must have been seen by the petitioner. 26. It was duty of petitioner to notice and act according to condition of road, leaning branches, flow of traffic and manner of loaded goods and also height and width of vehicle as well as loaded goods. 27. There is omission on the part of the petitioner to drive vehicle without properly loading and tying goods and also there is an act on the part of petitioner to drive vehicle in such a manner that loose goods were bound to fall. 28. Scrutiny of evidence on record reflects that both the Courts below rightly held that omissions and commissions on the part of petitioner tantamount of gross negligence causing injures to labour safety in road portion of the vehicle. Findings recorded by learned trial court are based on evidence and cannot be said to be incorrect, illegal or improper. Therefore, I find no error in holding the accused guilty under Section 279 IPC and 338 IPC and therefore conviction of accused under Sections 279 and 338 IPC is upheld. 29. Shri Onkar Jairath has argued that the incident took place in the year 2003 and petitioner has been undergoing the agony of a long drawn litigation for the last more than 12 years. He submits that keeping in view the facts of the present case no substantive sentence be imposed upon petitioner and he be given the benefit of probation. From the evidence on record it is obvious that after the incident took place it was the petitioner himself who took the injured to the hospital. The injured have suffered a grievous injury but keeping in view the fact that the petitioner has been fighting the legal battle for more than 12 years it may not be appropriate to sentence him to substantive imprisonment. Keeping in view the nature of the offence, the age of the petitioner and his conduct in taking the injured to hospital, I am of the opinion that this is a fit case where benefit of the Probation of Offenders Act, 1958 should be granted to the petitioner. The learned lower Appellate Court has not at all considered this aspect of the matter. 30. However, before passing a final order in this behalf it is necessary to call for the report of the Probation Officer concerned. The learned lower Appellate Court has not at all considered this aspect of the matter. 30. However, before passing a final order in this behalf it is necessary to call for the report of the Probation Officer concerned. Accordingly, the Probation Officer of District Kangra is directed to submit his report as to whether Shri Naresh Kumar @ Sarju S/o Shri Govind Ram R/o Sham Nagar, Tehsil and P.S. Dharamshala, District Kangra, H.P. should be released on probation or not. The Probation Officer is directed to submit his report on or before 30.06.2016. List on 4.07.2016 on which date the petitioner shall remain present.