Crl. Revision No. 1722 of 2005 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 1722 of 2005(O&M) Date of Decision: March 11, 2011 Panchhi Ram ---Petitioner versus State of Haryana ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Ashwani Kumar, Advocate, for the petitioner Mr.J.S.Rattu, Deputy Advocate General, Haryana *** GURDEV SINGH, J. After the trial of the petitioner-accused, Panchhi Ram, he was convicted by Judicial Magistrate Ist Class, Kaithal, vide judgment dated 13.5.2002 for the offences under Sections 279, 337 and 338 IPC and was sentenced as under:- Sr. No. Under Section Sentence imposed fine 1 279 IPC To undergo rigorous imprisonment for a period of six months ` 500/- In default of payment of fine to further undergo rigorous imprisonment for 15 days 2 337 IPC To undergo rigorous imprisonment for a period of six months ` 500/- In default of payment of fine to further undergo rigorous imprisonment for one month 3 338 IPC To undergo rigorous imprisonment for one year ` 500/- In default of payment of fine to undergo rigorous imprisonment for one month Crl. Revision No. 1722 of 2005 -2- Against that conviction and sentence, he preferred an appeal, which was dismissed by Additional Sessions Judge, Kaithal, vide judgment dated 31.8.2005. Now, that conviction and sentence has been challenged by him by way of this revision. There was head on collusion between bus bearing Registration No. HR 02A 8870, which was being driven by Sohan Lal, complainant, and truck bearing Registration No. HYF -1105 B, which was being driven by the accused. About this accident, FIR Ex. PW4/B was registered on the basis of the statement of the complainant, Ex. PW 4/A, which was made by him before Hari Singh ASI. According to the complainant, he was taking this bus from Yamunanagar to Sirsa. At about 8.30 a.m., when he was in between village Pindarsi and Pabnawa, the accused came driving the truck from the opposite side at a very fast speed and while driving that truck rashly and negligently struck the right side thereof in the right side of his bus, as a result of which both of them and the passengers of the bus received the injuries. After the accident, both of them and the other injured were removed to the hospital where they were medically examined by Dr. D.S.Saini, PW-1. Five injuries were found on the person of the complainant and six injuries were found on the person of the accused. The ASI went to the place of occurrence and after inspecting the same prepared the rough site plan with correct marginal notes. He called Ravinder Kumar, Photographer, PW-7, to the spot, who took the photographs of the bus and the truck, Exs. PW7/A to PW7/D. Those vehicles were taken into possession, vide separate Recovery memos, Exs. PY and PZ. The same were mechanically tested by Rameshwar Dass, Mechanic, PW-5, and about those tests he gave his reports Ex. PW5A and PW5/B. The accused was arrested and he produced his driving licence, route permit of the truck, Ex. Crl. Revision No. 1722 of 2005 -3- PW6/B and photostat copy of the challan slip before the ASI, in the presence of Sunder Lal, PW-6, and those were taken into possession, vide Memo Ex. PW-6/A. After the completion of the investigation, the challan was put in before the JMIC, Kaithal, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 279, 337 and 338 IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Dr. D.S.Saini, PW-1, Shyam Sunder HC, PW-2, Dr. K.K.Chawla, PW-3, Jai Singh ASI, PW-4, Rameshwar Dass, Mechanic, PW-5, Sunder Lal, Constable, PW-6, Ravinder Kumar, Photographer, PW-7, Jasmer Singh, PW-8 and Sohal Lal, complainant, PW-9. After the close of the prosecution evidence, the accused was examined and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence. I have heard learned counsel for both the sides. It has been submitted by counsel for the accused that the trial court and the appellate court committed an illegality while recording the conviction of the accused on the statement of the solitary witness; namely Jasmer Singh, PW-8, in the absence of the examination of the complainant and the Investigating Officer. It is very much clear from the statement of that witness that it was not possible for him to witness the accident from the place, where he was standing in the bus, as it was full of passengers and some of them were standing in the bus, thereby obstructing his view. Moreover, this witness himself has stated that he cannot tell what was the cause of this accident and how the same took place. Therefore, it cannot be said that it was the accused Crl. Revision No. 1722 of 2005 -4- who had struck his truck in the bus, while driving the same negligently and rashly, thereby causing hurt to the driver and the passengers of the bus. Therefore, he is liable to be acquitted. He placed reliance on the following judgments of this Court:- 1. Ashok Kumar vs. State of Haryana 2001(3)RCR(Criminal)17 2. Thana Ram vs. State of Haryana 1996(1)RCR(Criminal)678 On the other hand, it has been submitted by State counsel that the identity of the accused stands established from the evidence produced by the prosecution and medical evidence was also produced for proving that the driver and the passengers of the bus received the injuries in this accident. Jasmer Singh, PW-8, made categorical statement that this accident took place on account of rash and negligent driving of the truck by the accused. There is no ground for concluding that the finding of conviction recorded by the trial court and upheld by the appellate court is illegal. Sohan Lal, complainant, entered the witness box as PW-9. He proceeded to make his statement but after the very first answer given by him, it was found by the court that he was not feeling well and was unable to make statement. On the request made, his further statement was deferred. Thereafter, the prosecution never produced that witness in the court for recording his further statement. It also failed to examine the Investigating Officer. The circumstances of the case are such that for the non-examination of the complainant an adverse inference is to be drawn against the prosecution. It is relying on the statement of Jasmer Singh, PW-8, who was Conductor on the bus. No doubt, during his examination-in-chief, he supported the prosecution version, but the way he has given answers to the questions put to him during the cross examination, it becomes very much clear that he was not in a position to witness this accident and reliance is not to be placed on his statement that Crl. Revision No. 1722 of 2005 -5- the same was caused on account of rash and negligent driving of the truck by the accused. He has stated that it was a two seater bus, on account which some of the passengers could have occupied those seats and all other passengers were standing. He was issuing tickets to the passengers when the accident took place and at that time he was standing in the front window of the bus. In that situation, he could not have witnessed as to what was happening in front of the bus as his view was being obstructed by the passengers, who were standing in front him. After having cornered during his cross examination, he stated that he did not know the cause of this accident or the manner in which the same took place. Then how it could have been held, on the basis of his solitary statement, that the accident took place on account of rash and negligent driving of the truck by its driver.. It was held in Thana Ram's case (supra), that the Investigating Officer is very material witness in cases of accidents and his non-examination by the prosecution, is a serious lapse on its part. In Ashok Kumar's case (supra), the non-examination of the Investigating Officer was held to have caused prejudice to the accused as he was deprived of an opportunity to get the disputed facts cleared from that Investigating Officer. The rough site plan prepared by the Investigating Officer, is very much helpful to the court for adjudicating upon the question as to which driver of the vehicle was rash and negligent, in cases of head on collusion. On account of non-examination of the Investigating Officer, the rough site plan was not proved on the record. The accused has been materially prejudiced on accunt of his non-examination. It becomes very much clear from the evidence proved on the record and the reports of Rameshwar Dass, Mechanic, PW-5, that it was a head on collusion, in which the right side of the truck was struck in the right side of Crl. Revision No. 1722 of 2005 -6- the bus. That shows that this accident could have been avoided if the driver of the bus had taken the same on the left side of the road. Merely from the statement of Jasmer Singh, PW-8, it is not safe to conclude that this accident took place on account of the rash and negligent driving of the truck by the accused. Prosecution was required to prove that it was the accused, who brought his truck on the wrong side of the road and struck the same in the bus and that the driver of the bus was not at fault. It has failed to prove that aspect of the case. In these circumstances, it is held that the finding so recorded by the trial court and upheld by the appellate court is perverse and illegal. In the result this revision is hereby accepted and conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded to him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE March 11, 2011 PARAMJIT