IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 819 of 2009 (O&M) Date of decision: 12th May, 2009 Avtar Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. K.S. Sidhu, Senior Advocate with Mr. G.S. Sidhu, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been preferred by Avtar Singh son of Shisha Singh, resident of Shatrana, Police Station Patran, District Patiala. He has been convicted by the trial Court under Section 304-A IPC and sentenced to undergo two years rigorous imprisonment and to pay fine of Rs.5000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. Petitioner was driver of offending bus belonging to Pepsu Road Transport Corporation, bearing registration No.PB-11F-9734. In the accident, two persons namely Bhajan Singh and Jarnail Singh had died. Case FIR No. 72 dated 08.03.1997 was registered at Police Station Sadar Patiala under Sections 279, 337, 428, 338, 304-A IPC. FIR was recorded on the basis of statement, Ex.PW-14/J made by Balkar Singh son of Jit Singh. In the statement, he stated that he is resident of village Tarora, Criminal Revision No. 819 of 2009 Tehsil Samana and do agricultural work. On 7th March, 1997, he along with Sajjan Singh son of Isher Singh, Dyal Singh son of Dara Singh, Jarnail Singh son of Dara Singh, Baba Sant Bhajan Singh, Sukhbir Singh son of Wasawa Singh, Banta Singh and Darshan Singh were going in a gypsy of his friend Hardev Singh, bearing registration No.DAE-5541 from Chandigarh to Patiala. He was driving gypsy. When, on Rajpura – Patiala G.T. Roar, they reached near village Kauli at about 10.00 p.m., from the side of Patiala, one PRTC bus came in a very high speed. The bus was being driven by its driver in a very rash and negligent manner. The side of the bus hit gypsy, due to which complainant Balkar Singh, Jarnail Singh, Sajjan Singh, Sant Bhajan Singh and Dyal Singh received many injuries. Gypsy was also badly damaged. The number of bus was PB-11F-9734. After parking the bus at the spot, driver of the bus ran away from the place of occurrence. Injured were brought to Rajindra hospital at Patiala. FIR was investigated. Report under Section 173 Cr.P.C. (challan) was submitted. Petitioner was charged by the Court of Additional Chief Judicial Magistrate on 16th January, 1998 for offence under Section 279 IPC. Petitioner was also charged by the Court under Section 337 IPC for causing injuries to Sajjan Singh, Balkar Singh, Bhajan Singh and under Section 338 IPC for causing grievous injury to Dyal Singh. Petitioner was further charged under Section 304-A IPC for causing death of Jarnail Singh and Bhajan Singh. Petitioner pleaded not guilty and claimed trial. Prosecution examined Dr.S.S. Oberoi as PW-1, who conducted autopsy on the dead body of Bhajan Singh. PW-5 Dr.Gurpal Singh was examined. He had medico-legally examined Bhajan Singh, Balkar Singh and Sajjan Singh. He had also medico-legally examined Jarnail Singh. PW-6 Dr.Rajinder Kumar had medico-legally examined Dyal Singh. PW-7 Dr.Harpreet Singh 2 Criminal Revision No. 819 of 2009 declared Dyal Singh medically fit to make statement. PW-11 Dr.Rommel Singh, Medical Officer proved bed head ticket of Bhajan Singh. PW-15 Dr.Ranjit Singh had declared Jarnail Singh unfit to make statement. PW-2 HC Gurmail Singh on 8th March, 1997 had recorded statement of the injured. He also proved that SI Satpal Singh had taken into possession the bus bearing registration No. PB-11F-9734. PW-3 Bhajan Singh had identified the dead body of Jarnail Singh. PW-4 Rakesh Kumar SI had proved the post-mortem report of Jarnail Singh. PW-8 Om Parkash was the photographer and he proved photographs and negatives of the spot. PW-9 Gurmeet Singh was a motor mechanic. He proved mechanical report regarding the vehicle, Ex.PW-9/A. PW-10 ASI Jawahar Singh had mechanically examined the gypsy and has given his report as Ex.PW- 10/A. PW-12 Rakesh Kumar SI had partly investigated the case. PW-13 Baljit Singh proved the record relating to bus No.PB-11C-9734. He stated that on the day of occurrence, Avtar Singh was driving the bus and Balbir Singh was conductor. PW-14 SI Satpal Singh had investigated the case. PW-16 Bhajan Singh is eye witness of the occurrence. PW-17 Dyal Singh, another injured was examined as eye witness along with Banta Singh PW-18. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded. After the conviction and sentence was recorded by the trial Court, petitioner had filed an appeal. The appeal was also dismissed by the Court of Additional Sessions Judge, Patiala. Dismissal of the appeal led the petitioner to file present revision petition. In the present case, notice of motion was issued. Record of the courts below was requisitioned. 3 Criminal Revision No. 819 of 2009 I have heard Mr. K.S. Sidhu, Senior Advocate assisted by Mr.G.S. Sidhu. Senior Counsel appearing for the petitioner has raised following four arguments before this Court: (i) That driver of the bus was not known to the injured, therefore prosecution has failed to prove the identity. (ii) That PW-13 Baljit Singh has proved record of bus bearing No.PB-11C-9734, whereas the registration No. of bus, which was found at the spot was PB-11F-9734. Therefore, prosecution has failed to prove that petitioner was driver of the bus, with which accident had taken place. (iii) That author of the FIR and driver of gypsy Balkar Singh has not been examined by the prosecution, therefore, adverse inference should be drawn against the prosecution as driver of the gypsy was the best person to depose regarding rash and negligent driving by the petitioner, i.e. driver of the offending bus. (iv) Learned counsel has referred to the rough site plan, Ex.PW- 14/M to urge that perusal of the site plan and the photographs exhibited as Ex.PW-8/1 to 8/5 reveal that it was the driver of the gypsy, who was driving the vehicle in a rash and negligent manner. These arguments were raised before the trial Court also. The trial Court had taken note of the time-table of the bus and has reconciled the same to the bus, which was driven by the petitioner. I have also perused the duty roster, Ex.PW-13/B. There is a cutting against 9733 to make it 9734. The report belongs to the organization, in which petitioner is employed. Therefore, petitioner cannot draw advantage of the same. 4 Criminal Revision No. 819 of 2009 The finding of the trial Court is well justified on the ground that time-table of the bus prove that the petitioner was the driver of the offending bus. The appellate Court, while rejecting this argument, believed the testimony of PW-13 Baljit Singh, as he identified Avtar Singh in Court, as driver of the bus. Next argument that driver of gypsy was not examined, is fatal to the prosecution, is not acceptable, as PW-16 Bhajan Singh, PW-17 Dyal Singh and PW-18 Banta Singh have categorically stated that accident had taken place due to rash and negligent driving of the petitioner. A very lackluster cross-examination was carried. No dent was caused in the testimony of the witnesses. Therefore, non-examination of the driver of gypsy, i.e. Balkar Singh, will pale into insignificance. The appellate Court held that offending bus and the damaged gypsy shown in photographs, Ex.PW-8/1 to 8/5 prove rash and negligent driving on the part of driver of the bus. I have also seen the site plan and the photographs. There is nothing to infer that driver of the bus was not rash and negligent. Two courts below have returned a finding of fact, therefore, there is no sufficient material before the revisional Court to differ with the findings recorded by two courts below. This Court is conscious of the fact that while exercising revisional jurisdiction, this Court cannot tread on the path of re-appreciation and re-appraisal of evidence. Lastly, Mr. Sidhu appearing for the petitioner has stated that in the present case, occurrence has taken place in March 1997, Petitioner has suffered a protracted trial or more than 12 years. Protracted trial is one mitigating circumstance, but this Court, at the same time, cannot become oblivious of the fact that in the present case, two persons have died. Therefore, taking into consideration 5 Criminal Revision No. 819 of 2009 mitigating and aggravating circumstances, sentence awarded upon the petitioner is reduced from two years to one year. However, sentence of fine is maintained. With these modifications in the sentence, present petition is disposed off. [KANWALJIT SINGH AHLUWALIA] JUDGE May 12, 2009 rps 6