JUDGMENT : Vivek Singh Thakur, J. Petitioner-accused Babu Ram was driver in bus No. H.P.-07-5160 owned and possessed by deceased petitioner-accused Rajinder, who was also performing the job of conductor of his own bus. 2. Prosecution case is that on 25th October, 2004 at about 2:15 A.M., PW-2 Om Parkash noticed Rajinder (now deceased) stealing stepney (spare wheel) of Himachal Road Transport Corporation (in short HRTC) bus bearing No. H.P.-63-0313 by parking his bus H.P.-07-5160 adjacent to HRTC bus. By the time he reached near the bus, it left the spot but he noticed the number of bus. He approached the driver of HRTC bus, sleeping in the rest room and also informed control room, Regional Manager and Police Station, Boileauganj. He along with driver of the HRTC bus, tried to chase the offending vehicle, but on reaching on Barrier, they came to know that the said bus had crossed barrier 10 minutes ago. He filed a complaint Ex. PW-2/A in Police Station, Boileauganj. During investigation, offending bus was traced, spare tyre of HRTC bus was recovered from the said bus and petitioners-accused were found prima facie involved in committing alleged crime and thereupon, on completion of investigation, challan was presented in the Court. On conclusion of trial, accused were acquitted by trial Court. However, learned Additional Sessions Judge convicted the accused under Sections 379 read with Section 34 IPC and sentenced them to undergo rigorous imprisonment for a period of six months each and pay fine of Rs.5,000/- each and in default to make payment of fine, to further undergo rigorous imprisonment for a period of two months, hence present Revision Petition. Revision Petition qua co-accused-petitioner Rejinder stands abated vide order dated 20.9.2016 on account of his death on 29.5.2013 during pendency of present petition. 3. I have heard learned counsel for the parties and have also gone through the records. 4. Learned counsel for the petitioner submits that in cross-examination of PW-2 Om Parkash, there are contradictions in timings of writing and submitting the complaint Ex. PW-2/A in the Police Station, as firstly he stated that complaint was submitted at about 7:30 A.M., but in later part he stated that it was written by him at 9:00 A.M. in the Police Station. Statement of a witness is to be read as a whole and not to be considered by picking a sentence from here and one from there. Statement of a witness is to be read as a whole and not to be considered by picking a sentence from here and one from there. On perusal of cross-examination of this witness, it is clear that this witness firstly stated that Ex. PW- 2/A was submitted in the Police Station at 7:30 A.M. but in continuation he stated that he visited Police Station at 7:30 A.M. and had written Ex. PW-2/A in Police Station at 9:00 A.M. When all three sentences are read together, then it become clear that he went to Police Station at 7:30 A.M. and reduced the complaint into writing at 9:00 A.M. and this fact is also corroborated from FIR Ex. PW-6/A, wherein time of incident has been mentioned as 2:15 A.M. and time of lodging FIR has been mentioned as 10:15 A.M. 5. It is further contended that learned trial Court had rightly held that PW-2 Om Parkash had failed to identify accused and he had come to know about accused in the Police Station itself. Perusal of statement of PW-2 indicates that he, in his examination-in-chief, specifically stated that he knew the accused to whom he identified in the Court. He had also stated that he had seen a person on the buses who was shifting tyre from bus No. H.P-63-0313 to H.P-07-5160 and in the Court he had indentified the said person as the same person who was present in the Court at the time of deposition of this witness. It is true that in cross-examination PW-2 stated that accused came in the Police Station at about 9:00 A.M., but in cross-examination no where it was suggested to him that it was at 9:00 A.M. for the first time when he saw accused Rajinder Kumar. Therefore, learned Additional Sessions Judge has rightly reversed the findings of trial Court with respect to identification of the accused by PW-2 Om Parkash. 6. It is also settled law that statement of accused under Section 313 Cr.P.C. is not a substantive piece of evidence and statement made under Section 313 Cr.P.C. cannot be considered as a confession of the accused, but at the same time, it is also settled that such statement could be considered to corroborate or falsify the stand of either party. It is also settled law that statement of accused under Section 313 Cr.P.C. is not a substantive piece of evidence and statement made under Section 313 Cr.P.C. cannot be considered as a confession of the accused, but at the same time, it is also settled that such statement could be considered to corroborate or falsify the stand of either party. In his statement under Section 313 Cr.P.C., accused Rajinder, in answer to question No. 6, has replied that bus was with them during day time, but not at night. He was owner of bus, also performing the job of conductor of the said bus. On the contrary accused Babu Ram in reply to same question has denied the contents of this question. Either of them was telling lie. Babu Ram accused was not bound to disclose anything incriminating him but the answer given by Rajinder corroborated the prosecution story that Babu Ram and Rajinder were driver and conductor-cum-owner of the bus involved in the theft. 7. Prosecution has also examined PW-7 H.C. Manoj Kumar to prove recovery of stolen tyre from the bus H.P.-07-5160 in presence of accused. PW-7 stated that during investigation, in presence of PW-3 Harbhajan Singh and this witness, Investigating Officer had searched bus No. H.P-07-5160 parked near Phagli at National High Way No. 22 and a stepney (spare tyre) was found on roof of the the said bus and accused Babu Ram and Rajinder (deceased) were also sitting in the said bus and PW-3 Harbhajan Singh had identified the said stepney (spare tyre) as a stolen tyre of his bus, which was taken in possession by police vide memo Ex. PW-3/A and the said memo was signed by PW-3 Harbhajan Singh and this witness as identifier and marginal witness and also by accused Babu Ram and Rajinder. Despite having opportunity to examine him, this witness was not cross-examined by or on behalf of accused. 8. Effect of not cross-examining of witness on a point has been considered by the Apex Court in case titled Laxmibai and another versus Bhagwantbuva and others reported in (2013) 4 SCC 97 , (which has also been followed in Gian Chand and Others Vs. 8. Effect of not cross-examining of witness on a point has been considered by the Apex Court in case titled Laxmibai and another versus Bhagwantbuva and others reported in (2013) 4 SCC 97 , (which has also been followed in Gian Chand and Others Vs. State of Haryana (2013) 14 SCC 420 ) wherein it has been held as under: “40 Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 ; State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 ; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 ; and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096 ).” 9. (See: Khem Chand v. State of Himachal Pradesh, AIR 1994 SC 226 ; State of U.P. v. Nahar Singh (dead) & Ors., AIR 1998 SC 1328 ; Rajinder Pershad (Dead) by L.Rs. v. Darshana Devi (Smt.), AIR 2001 SC 3207 ; and Sunil Kumar & Anr. v. State of Rajasthan, AIR 2005 SC 1096 ).” 9. In the instant case also, statement of PW-7 H.C. Manoj Kumar with respect to recovery of stolen tyre from the bus being driven by Babu Ram, owned by accused Rajinder (deceased) at 10:00 A.M. in presence of PW-3 Harbhajan Singh and PW-7 remained un-rebutted and stands proved. 10. Learned counsel for the petitioner has pointed out that presence of PW-3 Harbhajan Singh at the time of recovery at 10:00 A.M. on 25.10.2004 is not possible for the reason that he had left Shimla on 25.10.2004 to Chamunda and had returned back on 26.10.2004. In cross-examination of PW-3 Harbhajan Singh, it has also come that in the morning of 25.10.2004, he had gone Lagru at 7:40 A.M. and came back at 9:45 A.M. and thereafter he left for Chamunda at 10:50 A.M. in the morning. Therefore, in these circumstances his presence at 10:00 A.M. at Phagli near ISBT is not only quite possible rather it corroborates the timings deposed by PW-7 H.C. Manoj Kumar with respect to recovery of stolen tyre from the bus in ownership and possession of accused persons. 11. Learned counsel for the accused has also stated that PW-3 Harbhajan Singh had not witnessed the recovery of tyre from accused persons, as he stated in cross-examination that stolen tyre was shown to him in the Police Station and further that the said tyre was not shown to him in the Court. As also stated earlier, statement of a witness is to be read as a whole. The statement that stolen tyre was shown to the witness in Police Station, but not in the Court, for want of specific cross-examination on the point, does not mean that this witness was not present at the time of recovery of stolen tyre from the accused. There is not even a single word questioning his presence at the time of recovery of stolen tyre in his cross-examination. There is not even a single word questioning his presence at the time of recovery of stolen tyre in his cross-examination. Recovery of tyre at Phagli and showing tyre in Police Station are two different incidents and it is not proved that both instances has been quoted with reference to the same day. Piecemeal answers to random questions cannot be considered in isolation. 12. It is also pointed out by learned counsel for the petitioner that on 25.10.2004 it was not possible for this witness to be present in Police Station, as according to his statement in cross-examination, he was called in the Police Station after 3-4 days. This fact, in fact, corroborates the prosecution story that tyre was recovered from Phagli and this witness was not supposed to be in Police Station on 25.10.2004, as it is no where case of prosecution that on 25.10.2004, this witness was called in the Police Station. It was PW-2 Om Parkash who visited the Police Station on 25.10.2004 and not PW-3 Harbhajan Singh. PW-3 Harbhjan Singh was supposed to be present at the time of recovery, which was effected from Phagli and not from the Police Station. He was called in Police Station after 3-4 days and it corroborates both instances i.e. recovery of tyre in presence of PW-3 at Phagli on 25.10.2004 and showing tyre him in police Station after 3-4 days. Chain of circumstances is complete. 13. In view of above discussion, I find no illegality and irregularity committed by learned Additional Sessions Judge in convicting the accused. There is no material evidence which could be said to be ignored by learned Additional Sessions Judge. On overall assessment of evidence on record, prosecution has been able to prove by leading cogent, convincing and reliable evidence against the accused that they have committed offence under Section 379 read with Section 34 IPC. No ground for interference in findings of conviction of the accused is made out. 14. At this stage, learned counsel for the accused submits that accused is facing criminal proceedings since 2004 and he has suffered trauma as an accused since 2004 and as a convict since 2009. No ground for interference in findings of conviction of the accused is made out. 14. At this stage, learned counsel for the accused submits that accused is facing criminal proceedings since 2004 and he has suffered trauma as an accused since 2004 and as a convict since 2009. At the time of incident accused was 23 years old and during intervening period his family responsibilities have also increased and he is first offender and except present incident, there is no other record of involvement of accused in committing the offence and therefore, learned counsel has prayed for lenient view with prayer to reduce the sentence imposed upon accused. 15. There is principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. Reformation, retribution, prevention, deterrence are some of the major factors which are served by punishment. Excessive punishment also amounts to injustice. The principle of proportionality between crime and punishment serves as the foundation of every criminal sentence being a basic principle of criminal justice. (See Ruli Ram and another Vs. State of Haryana (2002) 7 SCC 691 and State of Rajasthan Vs. Jamil Khan (2013) 10 SCC 721 ). 16. In present case owner of bus for which tyre was stolen was deceased accused Rajinder Kumar and accused Babu Ram was his driver. Practically, benefit of stealing tyre was to owner of bus, who has now expired during pendency of these proceedings and Babu Ram accused was acting under the command of his employer, but definitely participated actively in theft in question. Maintaining balance in view of ratio of law laid down by Hon’ble Supreme Court, the sentence is modified and reduced to only pay fine of Rs.15,000/-. The fine already deposited shall also be taken into consideration and remaining amount shall be deposited on or before 31.7.2017, failing in which the sentence imposed by the trial Court, affirmed by learned Additional Sessions Judge shall revive. Records be sent back.