IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Revision No.384 of 1998 Date of Decision: February 03, 2010 Ishwar Singh .....PETITIONER(S) VERSUS State of Haryana .....RESPONDENT(S) . . . CORAM: HON'BLE MR. JUSTICE AJAI LAMBA PRESENT: - Mr. Vishal Malik, Advocate, for the petitioner. Mr. Gaurav Dhir, Deputy Advocate General, Haryana, for the respondent. . . . AJAI LAMBA, J (Oral) The revision petition has been filed against judgment of conviction recorded by the Judicial Magistrate Ist Class, Kurukshetra on 28.4.1997 and order of sentence passed on the same day. The petitioner has been convicted under Section 279 IPC and has been sentenced to undergo 3 months rigorous imprisonment. The petitioner has also been convicted under Section 338 IPC and sentenced to undergo 4 months rigorous imprisonment. Crl. Revision No.384 of 1998 [2] The petitioner preferred an appeal. The appeal has been dismissed vide judgment dated 3.4.1998 passed by the Appellate Court which is also under challenge. Learned counsel for the petitioner contends that the prosecution story as put forth before the Trial Court, is not plausible, rather not possible if the same is viewed in the context of site plan and the mechanic’s report Exh.PW9/B. Learned counsel for the respondent- State, to the contrary, contends that the statement of driver of the three-wheeler, in which vehicle the injured was travelling, clearly indicates the callous and negligent driving of the petitioner who was driving the bus owned by Haryana Roadways. I have considered the rival contentions. The prosecution story is that on 9.8.1993, Jahangir, Assistant Sub Inspector alongwith others was on patrol duty. When he reached near the railway bridge, he found traffic jam. Complainant, Balbir Singh met Jahangir, Assistant Sub Inspector and stated that he had been enrolled as Constable on 1.12.1988. After dropping his brother Nachhattar at Bus Stand, Pipli, complainant Balbir Singh was coming in an Crl. Revision No.384 of 1998 [3] Auto-Rickshaw being driven by driver, Amar Nath, from Pipli side towards railway bridge. At about 12.45 PM when he was sitting on the back of the Auto-Rickshaw, a tractor-trolley bearing registration No.HRQ-9841 came from behind and over-took the Auto-Rickshaw. After over-taking the Auto-Rickshaw, the mud guard of the said tractor-trolley suddenly broken and got struck in the mud guard of the trolley due to which the tractor over turned on its right side. Auto- Rickshaw, in the process of saving itself, applied breaks and stopped on the right side at the back of the trolley. At this point in time, a bus bearing registration No.HNE-7131 being driven by the accused-petitioner came from the side of Mohan Nagar while being driven rashly and negligently at a very high speed hit the Auto- Rickshaw from the back side. The Auto-Rickshaw collided with the trolley as a consequence of which complainant received injuries in his right ankle. The driver of the bus fled. Since the argument of the learned counsel for the petitioner is confined to the issue raised as noticed above, reference to rest of the evidence is not being made. The issue can be considered in the context of site plan and the report of mechanic. Crl. Revision No.384 of 1998 [4] PW-9, Ram Lal, Mechanic, while appearing in the witness box, has stated that on 8.8.1993, he examined the three-wheeler, tractor- trolley as also the bus. Report in regard to the three-wheeler has been exhibited as Exh.PW-9/B. In cross-examination, the witness, Ram Lal, has stated, “in report Exh.PW-9/B, at Serial No.3, damage has been shown as a scratch which could not have been caused on account of the bus striking the three-wheeler from the behind. From the report, it is evident that three-wheeler had struck only from the front because the damage from front is shown from the left side.....”. Report Exh.PW9/B in respect of three-wheeler reads, “(1) Left side front show damage; (2) Tool box with (not legible) damage; (3) Left side rear body fitted with Patti slight scratch.” Learned counsel for the respondent- State has not been able to justify the prosecution story when considered in the context of statement of PW-9 or report Exh.PW-9/B. The damage to the three-wheeler is a slight scratch on the left rear side of the body. As against this conclusive expert evidence, the prosecution case is recorded in the statement of PW-4, Som Nath and PW-7, Raju which is in tune Crl. Revision No.384 of 1998 [5] with the FIR version. PW-4, Som Nath, in the examination in chief has clearly stated that it is an incident of 2 - 2½ years back; we were going from Pipli city in three-wheeler; there were four persons sitting in the three-wheeler; three- wheeler was climbing the bridge when a tractor- trolley turned turtle; the three-wheeler was stopped behind the trolley; in the meantime, a bus hit from the back; I do not identify the driver; accident occurred on account of fault of the bus driver....” PW-7, Raju has stated on oath that “stated that I and my father were going in the three-wheeler; it is an incident of 2 – 2½ years back; alongwith us, a police personnel was also travelling; we were a little short of Mohan Nagar bridge; a tractor was over-taking the three- wheeler when something happened to its wheel and the trolley turned turtle; three-wheeler driver applied breaks; in the meantime, a bus hit the three-wheeler from behind when I fainted....” From the statements of the said witnesses, as reproduced above, as also from the statement of PW-1 i.e. Amar Nath, driver of the three-wheeler, it is made evident that the prosecution case is consistent to the fact that Crl. Revision No.384 of 1998 [6] bus hit the three-wheeler from behind. As against the case set up by the prosecution, the statement of PW-9 is contrary. The report given after mechanical examination of the three-wheeler indicates only a scratch at the back side of the three-wheeler which, in the opinion of the mechanic who is an expert witness examined by the prosecution, was not possible on account of accident at the instance of the bus. In view of the above, I am of the considered opinion that evidence has been mis-read causing manifest injustice. Eye-witness account is contrary to the account given by Mechanic, PW-9. If the bus could not have hit the three-wheeler from behind, as opined, the incident as stated in the prosecution case was not possible. The prosecution has failed to prove that the petitioner has committed offences, as alleged. In view of the above, the petition is allowed. Judgments dated 24.8.1997 passed by the Judicial Magistrate Ist Class, Kurukshetra and 3.4.1998 passed by the Sessions Judge, Kurukshetra are hereby set aside. (AJAI LAMBA) February 03, 2010 JUDGE avin