JUDGMENT : Vivek Singh Thakur, J. 1. Instant appeal has been preferred by the State against acquittal of respondent-Dinesh Kumar vide judgment, dated 31st December, 2008 passed by the learned Sessions Judge, Una in Criminal Appeal No. 18 of 2006, whereby conviction and sentence imposed upon respondent-Dinesh Kumar vide judgment/order, dated 24th /26th August, 2006 passed by Judicial Magistrate 1st Class, Court No. 1, Amb, District Una, in Case No. 2731 of 2003, for commission of offence under Sections 279 and 304A of the Indian Penal Code (hereinafter referred to as “IPC”), has been reversed. 2. Respondent-accused was subjected to trial on the notice of accusation under Sections 279 and 304A IPC for endangering human life on public highway on 22nd April, 2003, at about 8.45 a.m. by driving a jeep bearing No. HP193504 in a rash and negligent manner and resultantly, causing death of Harbasi Devi. 3. I have heard learned counsel for parties and have also gone through the record. 4. Crime Investigating Agency was set into motion on a telephonic information received in Police Post, Amb whereupon Investigating Officer PW-9 HC Chaman Lal alongwith Constable Madan Mohan rushed to the Primary Health Center, Amb, where he was informed by Medical Officer that injured Harbasi Devi had been referred to Zonal Hospital, Una, on account of serious injury. After obtaining her MLC Ex. PW-3/A, he went to Zonal Hospital, Una, where PW-1 Satish Kumar made statement, Ex. PW-1/A, under Section 154 of the Code of Criminal Procedure (for short "CrPC") stating therein that on 22nd April, 2003, at about 8.45 a.m. he was present in his shop and at that time, Harbasi Devi, who was crossing the road, was hit by respondent with his jeep/tralla No. HP193504 being driven by him in rash and negligent manner, as a result of which Harbasi Devi fell on the road and received injuries on her back, head and other parts of body. He also gave name and address of respondent in his statement further stating that the accident had taken placed on account of high speed and rash act of the driver of the jeep/tralla. 5. On the basis of the said statement, sent as rukka to the Police Station, FIR Ex. PW-9/A was recorded. During investigation, PW-2 Manohar Lal pointed out the spot/place of occurrence and on the basis of the same, site map Ex. PW-9/B was prepared. 5. On the basis of the said statement, sent as rukka to the Police Station, FIR Ex. PW-9/A was recorded. During investigation, PW-2 Manohar Lal pointed out the spot/place of occurrence and on the basis of the same, site map Ex. PW-9/B was prepared. Photographs of the spot were also taken and statements of witnesses were recorded. Jeep involved in the accident alongwith documents and learner driving licence of respondent Ex. P1 was taken into possession vide memo Ex. PW-9/F. Later on, on 18th June, 2003, injured-Harbasi Devi expired in the hospital whereafter her post mortem report Ex. PW-7/A was also obtained by the Investigating Officer. On completion of investigation, finding prima facie complicity of respondent in commission of offence, challan was presented in the Court. 6. Prosecution has examined nine witnesses to prove its case whereas respondent has not chosen to lead any evidence in defence after recording his statement under Section 313 CrPC. 7. Learned Magistrate had convicted the respondent under Section 279 and 304A IPC whereas learned Sessions Judge, in an appeal preferred by the respondent, has acquitted him. Hence, this appeal. 8. It is pertinent to record herein that initially, case was registered under Sections 279 and 337 IPC, but, later on, on account of death of injured-Harbasi Devi, Section 304A IPC was also added. However, on the basis of material on record, learned Magistrate had put notice of accusation only under Sections 279 and 304A IPC. 9. Out of nine prosecution witnesses, PW-9 HC Chaman Lal is the Investigating Officer and PW-1 Satish Kumar is the complainant as well as eye witness, who also happens to be a relative of deceased-Harbasi Devi, having kiosk near the spot of accident. PW-2 Manohar Singh is also a shopkeeper, in front of whose shop, accident had taken place. 10. PW-4 Raghubir Singh was examined as an eye witness to the incident, but he did not lend support to the prosecution case and nothing material against the respondent could be elucidated in his cross-examination conducted by the learned Assistant Public Prosecutor after declaring him hostile. 11. Similarly, PW-5 Jagtar Singh, a witness to the seizure and vehicle alongwith its documents and learner driving licence, was also declared hostile for not supporting the prosecution case. His cross-examination by learned Assistant Public Prosecutor is also of no help to the prosecution. 11. Similarly, PW-5 Jagtar Singh, a witness to the seizure and vehicle alongwith its documents and learner driving licence, was also declared hostile for not supporting the prosecution case. His cross-examination by learned Assistant Public Prosecutor is also of no help to the prosecution. However, in cross-examination by defence counsel, he stated that he had signed on the memo at the instance of PW-1 Satish Kumar, who used to say that he intended to give a lesson to Dinesh Kumar (respondent) for parking his tralla in front of his shop. 12. PW-6 Vijay Kumar is a photographer who had photographed the place of incident. 13. PW-8 HHC Swarup Lal is mechanic who had conducted mechanical examination of the vehicle and proved report Ex. PW-8/A in this regard. In cross-examination, he replied that there was no scratch or dent on the vehicle. 14. PW-3 Dr. S.K. Verma had examined the injured on 22nd April, 2003 at 9.05 a.m. and issued MLC Ex. PW-6/A whereas PW-7 Dr. S.D. Bharwal had conducted the post mortem of the body of deceased-Harbasi Devi on 18th June, 2003 at 3.15 p.m. and issued post mortem report Ex. PW-7/A. 15. Defence taken by the respondent, in his statement under Section 313 CrPC is that he and his vehicle were not involved in the accident, but, he was falsely implicated in the case by PW-1 Satish Kumar for parking the jeep at the bus stop, on account of which a quarrel had also taken place between them. 16. It is settled law that statement of a hostile witness cannot be brushed aside in toto and said to be inadmissible only for the reason that he has been declared hostile, rather, reliable portion of his statement, which finds due corroboration from the other evidence/material on record, can be considered in favour of either of the parties. (See Devraj vs. State of Chhattisgarh, (2016) 13 SCC 366 , Raja and Others vs. State of Karnataka, (2016) 10 SCC 506 and Vinod Kumar vs. State of Punjab, (2015) 3 SCC 220 ). 17. In instant case, only PW-1 Satish Kumar has supported the prosecution case in toto whereas other eye witnesses, i.e. PW-2 Manohar Singh and PW-4 Raghubir Singh, were declared hostile. There is nothing in statement of PW-4 Raghubir Singh either in support of prosecution or respondent as he has denied the knowledge of the accident in question. 17. In instant case, only PW-1 Satish Kumar has supported the prosecution case in toto whereas other eye witnesses, i.e. PW-2 Manohar Singh and PW-4 Raghubir Singh, were declared hostile. There is nothing in statement of PW-4 Raghubir Singh either in support of prosecution or respondent as he has denied the knowledge of the accident in question. PW-2 Manohar Singh, though declared hostile, has corroborated occurrence of incident on 22nd April, 2003 at 8.45 a.m. which came to his notice, according to him, on hearing noise on the road in front of his shop where large number of people had gathered and were stating that accident had taken place and Harbasi Devi was picked up by those persons in a vehicle, but he expressed his ignorance about the vehicle involved in the accident. He had also admitted the visit of police on the spot and preparation of the site map. 18. The injured, immediately after the accident was examined by PW-3 Dr. S.K. Verma and MLC Ex. PW-3/A was issued by him. The case of injured (now deceased) was stated to be RSA (Road Side Accident) and four injuries with suspicion of head injury were noticed by him on the person of injured-Harbasi Devi. Time of examination of injured in the hospital has been recorded as 9.05 a.m. on 22nd April, 2003. As per statement Ex. PW-1/A made by PW-1 Satish Kumar under Section 154 CrPC and also in his deposition in the Court, time of accident has been stated as 8.45 a.m. on 22nd April, 2003. 19. It is well settled that no cross-examination of witness on a point, stated in examination-in-chief, amounts to admission of version of the said witness on the said count. (See Muddasani Venkata Narsaiah (Dead) through LRs. vs. Muddasani Sarojana, (2016) 12 SCC 288 ) 20. PW-3 Dr. S.K. Verma has not been cross-examined. Therefore, the contents of the MLC with regard to injuries sustained by deceased Harbasi Devi and also date and time of the accident, which were also deposed by PW-3 Dr. S.K. Verma in his statement on oath, are considered to be admitted by the respondent. PW-3 Dr. S.K. Verma has not been cross-examined. Therefore, the contents of the MLC with regard to injuries sustained by deceased Harbasi Devi and also date and time of the accident, which were also deposed by PW-3 Dr. S.K. Verma in his statement on oath, are considered to be admitted by the respondent. Also, there is no cross-examination of PW-2 Manohar Singh with regard to his statement about noticing the accident taken place on the same date and time in front of his shop after hearing the noise, visiting of police on the spot in his presence and preparation of site map. 21. PW-9 HC Chaman Lal is Investigating Officer, who has proved site map Ex. PW-9/B in his examination-in-chief and no question has been put to him in cross-examination doubting site map Ex. PW-9/B. The only question put to him with regard to site map Ex. PW-9/B is that kiosk of PW-1 Satish Kumar had not been shown in the map, which was admitted by him with explanation that the spot of accident was at a distance from the kiosk of Satish Kumar. 22. Therefore, there is ample evidence on record to hold beyond any doubt that accident had taken place on 22nd April, 2003 at about 8.45 a.m. in Nehrian Bazar on a spot indicated in site map Ex. PW-9/B. 23. It is true that conviction cannot be based solely on statement under Section 313 CrPC, but, at the same time, it is also settled that material in statement under Section 313 CrPC can be utilized to corroborate or confront the stand of prosecution or the defence. 24. In his statement under Section 313 CrPC, respondent has admitted that incident was reported to the police whereupon police had recorded statement of Satish Kumar under Section 154 CrPC, Ex. PW-1/A, on the basis of which FIR Ex. PW-9/A was registered. Respondent has also admitted that the police had taken into possession his vehicle bearing registration No. HP193504, alongwith documents and his learner driving licence vide memo Ex. PW-9/F in presence of witnesses, namely Sanjeev Kumar and Jagtar Singh. The aforesaid facts corroborate the statement of PW-1 Satish Kumar as well as Investigating Officer, PW-9 HC Chaman Lal with regard to occurrence of the accident, reporting the same to the police, recording of statement Ex. PW-1/A, registration of FIR Ex. PW-9/F in presence of witnesses, namely Sanjeev Kumar and Jagtar Singh. The aforesaid facts corroborate the statement of PW-1 Satish Kumar as well as Investigating Officer, PW-9 HC Chaman Lal with regard to occurrence of the accident, reporting the same to the police, recording of statement Ex. PW-1/A, registration of FIR Ex. PW-9/A and also taking into possession of vehicle involved in the accident alongwith documents and learner driving licence of the respondent vide memo Ex. PW-9/F in presence of witnesses. 25. PW-1 Satish Kumar, in his statement recorded under Section 154 CrPC Ex. PW-1/A and also in the Court has categorically stated that the accident had occurred with the jeep being driven by respondent in rash and negligent manner. The reason for involving him, as per respondent, as suggested in his cross-examination in defence, is that PW-1 Satish Kumar was a habitual drunkard, used to quarrel with respondent at Nehrian, where respondent used to park his vehicle and also that PW-1 Satish Kumar used to abuse respondent under intoxication whereas reason for involving respondent in the case, in the statement of PW-5 Jagtar Singh, has been suggested differently by stating that PW-1 Satish Kumar intended to give a lesson to Dinesh Kumar (respondent) for parking his jeep/tralla in front of his kiosk. 26. The version of respondent that he was implicated by PW-1 Satish Kumar on account of animosity is also not plausible for variance in reason put as defence for his false involvement. The story put to PW-1 Satish Kumar, in his cross-examination, is altogether different to that of PW-5. Further, an entirely different stand has been taken in the statement under Section 313 CrPC wherein it has been stated that PW-1 Satish Kumar was having objection for parking the vehicle by respondent at bus stand and for this reason, a quarrel had also taken place. 27. It is true that accused has not to prove his defence beyond reasonable doubt, but, at the same time, the defence propounded by the accused must be plausible one touching degree of proof to preponderance of probability. In present case, three different irreconcilable grounds taken in defence certainly falsifies stand of the respondent. 28. For the aforesaid reasons, involvement of the vehicle being driven by the respondent in the accident is also proved on record beyond reasonable doubt. 29. In present case, three different irreconcilable grounds taken in defence certainly falsifies stand of the respondent. 28. For the aforesaid reasons, involvement of the vehicle being driven by the respondent in the accident is also proved on record beyond reasonable doubt. 29. As has been established on record, the accident had taken place in the market. Site map, Ex. PW-9/B, not questioned during the trial, indicates that there was 12 feet metaled road having 10 feet un-metaled space on the side of spot where accident had taken place and jeep had hit the injured on un-metaled portion of the road at a distance of 3 feet from the metaled road. 30. It is also noticeable that respondent was not having effective driving licence but was driving the vehicle with learner driving licence. According to this licence, respondent was licensed to drive the vehicle subject to provisions of Rule 3 of the Central Motor Vehicles Rules, 1989 (for short "MV Rules") and as per this Rule, holder of a learner driving licence can drive a vehicle under the instructions of a person holding an effective driving licence to drive the said vehicle and sitting in a position so as to control or stop the vehicle. 31. Though, speed of jeep has not been stated in prosecution evidence, but, the speed cannot always be the sole parameter of rash and negligent driving and sometimes, speed of vehicle is irrelevant, particularly, in a case where the vehicle is being driven in a market area as even the speed which can be considered to be a low speed on highway can be rash in the market area and it may amount a negligent act on the part of the driver. 32. Negligence'means omission to do or doing something which a reasonable and prudent person, guided by considerations which ordinarily regulate human affairs, would not do. (See Ravi Kapur vs. State of Rajasthan, AIR 2012 SC 2986 ). A prudent person is supposed to drive a vehicle in the market area with more care and caution. A person holding a learner licence, driving the vehicle in market area without any instructor, as required under MV Rules and ultimately hitting a lady after going 3 feet out from metaled road, can certainly be said to have committed a rash and negligent act endangering the human life. A person holding a learner licence, driving the vehicle in market area without any instructor, as required under MV Rules and ultimately hitting a lady after going 3 feet out from metaled road, can certainly be said to have committed a rash and negligent act endangering the human life. Once the involvement of vehicle and the driver in accident in question causing injury to a person or causing loss of life is established on record and spot of accident is outside the metaled road, such a person is under obligation to explain the reasons causing the accident, may not beyond reasonable doubt, but with plausible reasoning at least establishing preponderance of probability. In such a situation, doctrine of res ipsa loquitur will come into play. 33. In present case, respondent has failed to take reasonable care and caution for driving vehicle in market area and has caused injury to a person resulting her death, thus, he is definitely liable to be punished under Section 279 IPC for his negligent act. 34. So far as culpability under Section 304A IPC is concerned, there is no satisfactory and sufficient evidence on record to establish that the deceased had expired in pursuance to the injury caused to her in the accident in question. Accident had occurred on 22nd April, 2003 and injured-Harbaso Devi expired on 18th June, 2003. As per post mortem report Ex. PW-7/A, cause of death of the deceased has been mentioned as RSA, i.e. road side accident-post injury, head injury bed sore septicemia. PW-7 Dr. S.D. Bharwal, who had conducted post mortem of the deceased, in his cross-examination, has admitted suggestion put to him that cause of death was septicemia, which had resulted from bed sores. Though, he has added that deceased had also suffered head injury in the accident, but again, he has stated that cause of death was not in immediate accident. 35. The opinion mentioned in the post mortem report is also not suggesting that the bed sores were having any relation with the head injury or bed sores were suffered by the deceased in pursuance to the injury suffered by her in the accident. Therefore, there is no conclusive evidence to connect the accident with the death of deceased. Hence, there is no sufficient evidence to convict the respondent under Section 304A IPC. Therefore, there is no conclusive evidence to connect the accident with the death of deceased. Hence, there is no sufficient evidence to convict the respondent under Section 304A IPC. Findings of learned Sessions Judge returned on this count need no interference as nexus between the death of deceased and the accident has not been proved beyond reasonable doubt. 36. Learned Sessions Judge has discarded the testimony of PW-1 Satish Kumar on the ground of enmity despite the fact that the respondent had taken irreconcilable defence with regard to enmity. Learned Sessions Judge has also arrived at a wrong conclusion that as PW-1 Satish Kumar has clearly mentioned the name and parentage of respondent in the FIR and, therefore, his stand in the cross-examination in the Court that he knew the respondent from the day of incident was false, because in his statement Ex. PW-1/A recorded under Section 154 CrPC, it was specifically stated by PW-1 Satish Kumar that name of offender driver came to be known as Dinesh Kumar S/o Onkar Singh. It has also come in evidence of PW-1 Satish Kumar that deceased was shifted to a private doctor in the same vehicle which hit the deceased. He also stated that father of respondent was known to him. Therefore, there is no ambiguity in the statement of PW-1 Satish Kumar with regard to acquaintance with the offender driver Dinesh Kumar from the day of accident and mentioning his name in the statement Ex. PW-1/A indicating his name and parentage. 37. Another reason for discarding the statement of PW-1 Satish Kumar is that he was nephew of the deceased. Testimony of a witness cannot be discarded only on the ground that he is relative of injured/victim unless it is proved that he is deposing for extraneous reasons or has to settle the scores with the accused. In fact, it is not disputed that PW-1 Satish Kumar was running a business as a shopkeeper in his kiosk near the spot of accident. In such a situation, being relative of injured/victim, he was supposed to be attending her immediately on accident near his kiosk in natural manner. Therefore, he is also a natural witness and his testimony is not to be discarded only on the ground that he was relative of the injured/deceased. As discussed earlier, there is sufficient material on record to corroborate his statement. Therefore, he is also a natural witness and his testimony is not to be discarded only on the ground that he was relative of the injured/deceased. As discussed earlier, there is sufficient material on record to corroborate his statement. Therefore, learned Sessions Judge has wrongly discarded his testimony on this ground. 38. Accordingly, impugned judgment, dated 31st December, 2008 passed by learned Sessions Judge, Una in Criminal Appeal No. 18 of 2006 and judgment/order, dated 24th/ 26th August, 2006 passed by Judicial Magistrate 1st Class, Court No. 1, Amb in Case No. 2731 of 2003 are modified in aforesaid terms upholding conviction of respondent under Section 279 IPC and acquittal under Section 304A IPC. 39. Before directing respondent-convict to serve substantive sentence imposed upon him, it would be in the interest of justice to consider plea of learned counsel for the respondent, who has also argued in alternative that in case respondent is found guilty for committing the charged offences, then, keeping in view the peculiar facts and circumstances of present case and as respondent was a first offender and is not involved in any other case thereafter and that the accident, in present case, has taken place in the year 2003 and at that time, respondent was 29 years of age, who has also suffered trauma of facing criminal trial for fifteen years, that too, including trauma of being convict after suffering judgment of conviction by the trial Court, and further that also by passage of time, social and family responsibilities of respondent have also increased, benefit of Probation of Offenders Act be extended to the respondent. 40. Considering the submissions made by the learned counsel for the respondent-convict and the fact that the incident had taken place in the year 2003, the respondent was convicted in the year 2006, who, thus, has faced the criminal proceedings for fifteen years and further that at the time of incident, he was a young boy of 29 years, instead of awarding substantive sentence, it is appropriate case to consider extension of benefit of Probation of Offenders Act to respondent-convict. But, prior to that, it would be appropriate to call for report of the concerned Probation Officer. But, prior to that, it would be appropriate to call for report of the concerned Probation Officer. The respondent is permanent resident of Village Jowar, Tehsil Amb, District Una, H.P. Therefore, Probation Officer, Amb, District Una is directed to submit his report under Probation of Offenders Act on or before 9th April, 2018. 41. List on 13th April, 2018, on which date the respondent-convict shall remain present in the Court.