Crl. Rev. No. 171 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 171 of 2009 Date of decision: 26.3.2009 Halwinder Singh … Petitioner Versus State of Punjab … Respondent Present: Mr. Brijender Kaushik, Advocate for the petitioner. Mr. Sudhir Nehra, Addl. A.G., Punjab. *** S.S. SARON, J. The Crl. Revision petition has been filed by the petitioner Halwinder Singh against the judgment and order dated 14.1.2009 passed by the learned Sessions Judge, Patiala, whereby the appeal of the petitioner against the judgment and order of his conviction and sentence dated 19.9.2005 passed by the learned Judicial Magistrate Ist Class, Samana sentencing him to rigorous imprisonment for one year, besides, to pay a fine of Rs.1,000/- and in default of payment of fine sentencing him to undergo simple imprisonment for a period of two months for the offence punishable under Section 304-A Indian Penal Code (“IPC” – for short), has been dismissed. Crl. Rev. No. 171 of 2009 2 The prosecution case has been initiated on the statement of Sandip Kumar who on 23.9.2001 met the police party comprising of Head Constable Paramjit Kumar, Constable Harnail Singh and Constable Jagdish Singh at the Bus stand Shutrana who were present on patrol duty. It is stated by the complainant Sandip Kumar that he had been working at Sood Auto Agency, Khanauri. On 23.9.2001, he along with Ramesh Sood, Rohit Sood (deceased) and Tejinder Singh (deceased) residents of Khanauri were going from Khanauri to Patran on their scooter and motorcycle for some domestic work. A red colour motorcycle make ‘Enfield’ was being driven by Tejinder Singh (deceased) and Rohit Sood (deceased) was riding pillion. Sandip Kumar (complainant) and Ramesh Kumar were on the scooter which was being driven by Ramesh Kumar. Tejinder Singh and Rohit Sood were at a distance of about 100 yards ahead of Sandip Kumar and Ramesh Kumar. When they reached near the place of Baba Peer in the area of Paind at about 12 noon, a white colour Tata Sumo vehicle bearing registration No.HR-01K-3594 came from Patran side at a very high speed. The driver of the Tata Sumo vehicle was driving it in a rash and negligent manner. He struck the Tata Sumo with the motorcycle driven by Tejinder Singh (deceased) on the left side of the road. Tejinder Singh died at the spot and Rohit Sood received many injuries on his person. Ramesh Sood brought him to Rajindera Hospital, Patiala for treatment but he succumbed to his injuries. The driver of the Tata Sumo went away from the place of occurrence after leaving his vehicle there. The complainant Sandip Kumar could identify him if he (driver of the offending vehicle) was produced before him. He was going to the Police Chowki Shutrana to give information when he met the police party. The dead body of Tejinder Singh had been taken by his family members. It was requested that action be Crl. Rev. No. 171 of 2009 3 taken as per law. The statement of Sandip Kumar, complainant was recorded by Head Constable Paramjit Kumar and after recording it he sent the same to the Police Station through Constable Jagdish Singh for registration of a case for the offences under Sections 279 and 304-A IPC. On the basis of the statement of Sandip Kumar complainant, FIR was registered. Thereafter, Head Constable Paramjit Kumar along with Sandip Kumar complainant and others went to the place of occurrence and investigations were carried out. A rough site plan of the place of occurrence was also prepared. Photographs of the place of occurrence were also got taken by calling Gurdeep Lal, Photographer (PW3). The statements of witnesses under Section 161 of the Code of Criminal Procedure (“CrPC” – for short) were also recorded by the Head Constable Paramjit Kumar. Thereafter, he went to the house of Tejinder Singh (deceased) at village Khanauri and asked for handing over the dead body of Tejinder Singh (deceased) for postmortem examination, but the relatives of Tejinder Singh (deceased) did not hand over the dead body. They stated that they did not want any action in this regard. Thereafter, Head Constable Paramjit Kumar went to Rajindera Hospital, Patiala and prepared inquest report regarding the dead body of Rohit Sood. The dead body of Rohit Sood was handed over to his relatives after postmortem. The Tata Sumo vehicle and the motorcycle that were involved in the accident were taken in police possession by the Head Constable Paramjit Kumar from the place of occurrence. The petitioner was arrested on 27.9.2001 in front of the police station where he was having tea. He submitted his driving licence and photocopy of his Registration Certificate which were taken in possession vide recovery memos. The original Registration Certificate could not be produced as it was alleged that it had been misplaced. The mechanical Crl. Rev. No. 171 of 2009 4 reports regarding the vehicles were obtained from HC Piara Singh (PW4) who mechanically tested with the vehicles. Photographs that were taken of the place of occurrence, were also taken in police possession. After completion of investigations, charge report (challan) was filed by the police against the petitioner. The learned trial Magistrate from perusal of the documents found a prima facie case for the offence under Section 304-A IPC to be made out. Accordingly, charge for the said offence was framed against the petitioner on 24.1.2002. The petitioner pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined Sandip Kumar (PW1) and Ramesh Kumar eye-witness (PW2). Gurdeep Lal, Photographer (PW3) was also examined. He had taken photographs (Ex.P1 to Ex.P4) of the place of occurrence. He also proved the negatives (Ex.P5 to Ex.P8). Head Constable Piara Singh (PW4) had mechanically tested the Tata Sumo and the motorcycle that were involved in the accident. He was examined and he proved the reports Ex.PW4/A and Ex.PW4/B respectively. Head Constables Paramjit Kumar (PW6) who had conducted the investigations in the case was also examined and he proved the recovery memos and the rough site plan (Ex.PW6/C) of the place of occurrence. Besides, he proved the inquest report (Ex.PW6/D) regarding the dead body of Rohit Sood. After tendering documents in evidence, the prosecution evidence was closed. The statement of the petitioner in terms of Section 313 CrPC was recorded in which the evidence and material appearing against him was put to him. He denied the incriminating evidence produced by the prosecution and pleaded his innocence and false implication. The learned Judicial Magistrate Ist Class, Samana considered the question whether the Tata Sumo vehicle that was involved in the accident was being driven in a rash and negligent manner by the petitioner Crl. Rev. No. 171 of 2009 5 and whether the prosecution has been able to bring home the guilt against the petitioner beyond reasonable doubt. After considering the evidence and material on record, the learned Judicial Magistrate Ist Class held the petitioner guilty of the offence under Section 304A IPC. The petitioner was sentenced to undergo rigorous imprisonment for a period of one year, besides, to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two months. Aggrieved against the order of the learned Trial Magistrate, the petitioner preferred an appeal. The learned Sessions Judge, vide his impugned judgment and order has dismissed the same and aggrieved against the same the petitioner has preferred the present petition. Learned counsel for the petitioner has submitted that the prosecution has not been able to establish that the motorcycle which was involved in the accident was being driven by Tejinder Singh (deceased) who died in the accident. Without proving the fact that Tejinder Singh (deceased) died in the said accident with the Tata Sumo vehicle, a finding of guilt is not liable to be recorded against the petitioner. It is submitted that the petitioner has not been named in the FIR, but it is later that Sandip Kumar (PW1) stated that the petitioner had informed about his name at the place of the accident. Therefore, it is submitted that the name of the petitioner was liable to be mentioned by the complainant Sandip Kumar in his statement on the basis of which the FIR has been registered. It is also submitted that the fact that the petitioner was apprehended on 27.9.2001 in front of the Police Station where he was having tea is highly improbable. Besides, no independent witness has been examined which would show the falsity of the prosecution case. No test identification parade of the petitioner was even conducted and he was identified for the first time in Crl. Rev. No. 171 of 2009 6 Court only at the instance of the Police. It is submitted that even the rough site plan of the place of occurrence that was prepared by the Investigating Officer shows that the motorcycle was on its wrong side. Therefore, the Tata Sumo vehicle, it is submitted, cannot be said to be at fault nor the petitioner can be said to be driving the same in a rash and negligent manner. In response, learned counsel for the State has submitted that the prosecution has proved its case in all material aspects and this Court in exercise of its revisional jurisdiction is not to re-appreciate the evidence and material on record and interfere with the concurrent judgments and orders of conviction and sentence. It is submitted that jurisdiction of this Court is not to be equated with that of a second appellate jurisdiction and by re-appreciating the evidence and material nullify the findings and the conclusions recorded by the Courts below concurrently. Therefore, according to the learned counsel, the petition merits dismissal. I have given my thoughtful consideration to the matter and with the assistance of the learned counsel appearing for the parties, gone through the records of the Courts below also which were requisitioned. Sandip Kumar (PW1) on whose statement (Ex.PA) FIR was registered, has supported the prosecution case while appearing in Court. According to Sandip Kumar, the Tata Sumo vehicle hit the motorcycle which was being driven by Tejinder Singh (deceased) while Rohit Sood (deceased) was riding pillion. The Tata Sumo vehicle, it is stated was being driven in a rash and negligent manner due to which Tejinder Singh died at the spot and Rohit Sood received many injuries on his person and while bringing him to Rajindera Hospital, Patiala he succumbed to his injuries on the way. The driver of the Tata Sumo vehicle i.e the petitioner had gone away from the place of occurrence after leaving his vehicle behind. Sandip Kumar (PW1) Crl. Rev. No. 171 of 2009 7 identified the petitioner while he was appearing in Court even though his name has not been mentioned in the FIR. Besides, Ramesh Kumar (PW2) who was driving the scooter that was 100 yards behind the motorcycle at the time of the accident, had witnessed the accident and he has also fully supported the prosecution case. The learned trial Court observed that Halwinder Singh (petitioner) was arrested at the instance of Sandip Kumar complainant (PW1) on 27.9.2001 while he was having tea at a tea stall near the Police Post. Therefore, it was observed that it is not a case where the petitioner was identified for the first time in Court. Besides, in the absence of an identification parade being conducted, the same is not fatal to the case of the prosecution. Head Constable Paramjit Kumar (PW6) who was the Investigating Officer in the case has specifically stated that the petitioner was arrested on 27.9.2001 at the instance of Sandip Kumar complainant (PW1) and no question was put to him by the learned defence counsel to controvert the said fact. Accordingly, it was held that the arrest of the petitioner on 27.9.2001 in the present case at the instance of Sandip Kumar complainant (PW1) had remained unrebutted. Both the eye-witnesses Sandip Kumar (PW1) and Ramesh Kumar (PW2) are consistent with their statements. The evidence of Sandip Kumar (PW1) and Ramesh Kumar (PW2) was considered even by the learned Sessions Judge, Patiala in his impugned order dated 14.1.2009. After considering the evidence and material on record, it was observed by the learned Sessions Judge that the judgment of the learned Judicial Magistrate Ist Class Samana convicting and sentencing the petitioner was correct and as per law and did not require any interference. Therefore, there being cogent and convincing evidence on record from the statements of Sandip Kumar (PW1) and Ramesh Kumar Crl. Rev. No. 171 of 2009 8 (PW2) with regard to the manner in which the accident occurred, there is little scope for this Court to interfere with the same. The fact that no postmortem of Tejinder Singh (deceased) had been conducted is inconsequential. It has come on record that Tejinder Singh (deceased) was driving the motorcycle while Rohit Sood (deceased) was riding pillion. The post mortem of Rohit Sood (deceased) has been conducted and the body of Tejinder Singh (deceased) who died at the spot was taken by his relatives. Head Constable Paramjit Kumar (PW6) went the house of Tejinder Singh and asked for his body to be handed over for the purposes of post mortem. However, his family members stated that they did not want any action. It is not uncommon for the members of the bereaved family whose one’s own has died not wanting to hand over the body for the purposes of post mortem. In the hour of grief they resign themselves to their fate. Therefore, merely because the dead body of Tejinder Singh was not subjected to post-mortem examination is by itself, no ground to dislodge the concurrent findings and conclusions reached at by the two learned Courts below. The dead body of Rohit Sood, the other deceased was subjected to post mortem. Dr. Ram Lubhaya (PW5) who conducted the post mortem has proved the injuries on the person of Rohit Sood. He also proved the post mortem report (Ex.PW5/A) in which he opined that the death of Rohit Sood had occurred due to head injury which was ante-mortem in nature and was sufficient to cause death in the ordinary course of nature. In a case where two deaths have occurred, the endeavour of the family and friends of the victims would be to ensure that the actual and the real culprit is punished rather then an innocent person being involved in the case. Therefore, there is no reason for the prosecution to falsely involve the petitioner in the case. It is even not a case where the police was inimical to him. In the circumstances, even Crl. Rev. No. 171 of 2009 9 if no test identification parade was conducted is hardly of any significance. The site plan Ex.PW6/C which was prepared regarding the place of occurrence has been produced. It terms of the site plan, the road on which the accident occurred is from Khanauri to Patran with Patran being on the Northern side and Khanauri on the Southern side. Mark ‘A’ in the site plan is the point where the accident is shown to have occurred. Mark ‘B’ is the point where the Tata Sumo vehicle which is the offending vehicle was standing. Mark ‘C’ is the point where the motorcycle was parked after the accident. As per the prosecution case, Tejinder Singh and Rohit Sood were going on the motorcycle with Sandip Kumar and Ramesh Sood (PW1 and PW2) following them. All of them were going from Khanauri to Patran, which would mean that they were going from South to North according to the site plan Ex.PW6/C. Point ‘A’ where the accident occurred is on the western side of the road i.e. on the left side of the road on which the motorcycle driven by Tejinder Singh with Rohit Sood riding pillion were going. There is no turn or crossing on the road near the place where the accident occurred. It is in fact a straight road. Therefore, the accident had occurred when the Tata Sumo vehicle came completely on its right side i.e. on its wrong side and hit the motorcycle which was on its left side of the road. Thereafter, the Tata Sumo vehicle was found standing at point ‘B’ which is on its left side and point ‘C’ which is in front of point ‘B’ is the place where the motorcycle is depicted as parked after the accident. The photograph (Ex.P3) shows that the right side of the Tata Sumo vehicle is damaged which means that the Tata Sumo vehicle had come on the right side of the road at point ‘A’ of the site plan (Ex.PW6/C) and hit the motorcycle. As such, the findings and conclusions reached at by the learned trial Court and affirmed by the learned Sessions Judge are in accordance Crl. Rev. No. 171 of 2009 10 with the actual position at the spot and warrant no interference by this Court in exercise of its revisional jurisdiction. It is well-known that the revisional jurisdiction of this Court which is supervisory in nature cannot be equated with the power of an appellate Court nor can it be treated as a second appellate jurisdiction. This Court in exercise of its revisional jurisdiction is not to reappreciate the evidence and come to conclusions on the same, which are different from those recorded by the Courts below especially when the evidence has already been appreciated by the Magistrate as well as by the learned Sessions Judge unless any glaring feature is brought to the notice of this Court which would otherwise tantamount to miscarriage of justice. There is no such glaring feature in the appreciation of the evidence on record by the learned Courts below, which would warrant interference by this Court in exercise of its revisional jurisdiction. Therefore, the findings and conclusions reached at by the learned Courts below in convicting the petitioners cannot be said to be, in any manner, erroneous. Insofar as the sentence of the petitioner is concerned, the learned counsel for the petitioner has submitted that the son of the petitioner has been suffering from Pneumonia. He has placed on record the medical reports in order to substantiate and show that the son of the petitioner namely Vansh whose age is 3 years has been ill and he needs immediate care of his father. It may, however, be noticed that two deaths in the case have occurred and the petitioner has been sentenced to one year rigorous imprisonment. Therefore, it is not a case where the benefit of the provisions of the Probation of Offenders Act, 1958 or Section 360 CrPC can be extended. In any case, keeping in view the fact that the son of the petitioner Crl. Rev. No. 171 of 2009 11 has been suffering from Pneumonia, the ends of justice would be met if the sentence of imprisonment of one year is reduced to nine months. In the circumstances, while maintaining the conviction, it is ordered that the sentence of imprisonment of the petitioner of rigorous imprisonment for one year shall stand reduced to nine months. However, the fine that has been imposed and the imprisonment to be undergone in the event of default of payment of fine shall remain intact. With the modification in the reduction of sentence of imprisonment from one year to nine months, the Crl. Revision petition is dismissed. (S.S. SARON) March 26, 2009 JUDGE amit