Crl. Revision No. 332 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No.332 of 2010 (O&M) Date of Decision: October 1, 2010 Harjinder Singh ........Petitioner Versus State of Punjab ........Respondent ****** CORAM : HON'BLE MRS. JUSTICE SABINA Present: Mr. H.N.S. Gill, Advocate, for the petitioner. Mr. Amandeep Singh Rai, AAG, Punjab. SABINA, J. The petitioner was convicted for an offence under Sections 304A/279/337 of Indian Penal Code (in short 'IPC') by Sub Divisional Judicial Magistrate, Dasuya vide judgment dated 19.1.2006. Vide order of the even date, the petitioner was sentenced to undergo rigorous imprisonment for a period of 1 year and to pay a fine of Rs.500/- under Section 304-A IPC. Petitioner was also sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.100/- under Section 279 IPC. Petitioner was also sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.100/- under Section 337 IPC. Aggrieved by the same, petitioner preferred an appeal and the same was dismissed by Additional Sessions Judge, Hoshiarpur vide judgment dated 17.12.2009. Hence, the present revision petition. Crl. Revision No. 332 of 2010 (O&M) 2 The prosecution story in brief as noticed by the trial Court in para 3 of the impugned judgment reads as under :- “ Complainant Sewa Singh in his statement has stated that on 24.8.1997, he alongwith his wife Surinder Kaur, his son Manmohan Singh, his daughters Mohani and Raji his mother Amar Kaur were going from Mukerian towards Amritsar in vehicle/TATA SUMO PB-8/C/732. They had hardly crossed, Gurdwara Takkar Sahib, in the area of Police Station Dasuya, then bus bearing no.PB/12/8220 came from the opposite direction i.e. from the side of Dasuya town. The driver of the said bus was driving the bus in a rash and negligent manner and after bringing the said bus on wrong side, struck the same against their vehicle/TATA Sumo in which he and his other family were travelling, as a result of which his mother Amar Kaur died on the spot and other occupants of the TATA SUMO suffered injuries on their persons. They were shifted to Civil Hospital Dasuya and got admitted there. On the basis of this statement of the complainant FIR of the present case was got recorded and investigation was started. Inquest report of the dead body of Amar Kaur was prepared and the dead body was sent for post mortem examination. Occurrence place visited. Rough site plan of the occurrence place got prepared, place of accident was got photographed and photographs and their negatives were taken into police possession after preparing recovery memo R.C. of the Bus and driving licence of the accused were also taken into police Crl. Revision No. 332 of 2010 (O&M) 3 possession. Both the vehicles i.e. TATA SUMO and the Bus involved in the accident were also taken into police possession and their mechanical testing was got conducted. Arrest of the accused also got effected. Statements of the witnesses got recorded. After completion of necessary formalities of the investigation, the instant challan was presented in the Court for the trial of the accused.” Learned counsel for the petitioner has submitted that the prosecution had miserably failed to prove its case. The investigating Officer has not been examined in this case. The petitioner was performing the duties as a driver for the last 21 years and had an unblemished record. In support of his arguments, learned counsel for the petitioner has placed reliance in the case of State of Karnataka Vs. Satish, (1998) 8 SCC 493, wherein the Apex Court in para 4 has held as under :- “4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden by providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Crl. Revision No. 332 of 2010 (O&M) 4 Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maximum “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.” Learned State counsel, on the other hand, has submitted that the prosecution witnesses have duly established that the accident in question had taken place due to rash and negligent driving of the petitioner. PW2 Subhash Chand had conducted mechanical test of both the vehicles and proved the reports Ex.PW.2/A and Ex.PW 2/B. As per the said reports, the front portion of Tata Sumo in question and the roof was damaged. The front right side of the bus was damaged. P.W.5 Sewa Singh-complainant deposed that on 24.8.1997 he was travelling in the Tata Sumo, vehicle driven by Harjinder Singh, alongwith his mother Amar Kaur and his wife and children. At about 11 AM when they reached near Gurdwara Takkar Sahib bus in question belonging to Punjab Roadways came from the opposite direction, driven by petitioner Harjinder Singh, at a high speed in a rash and negligent manner and struck Crl. Revision No. 332 of 2010 (O&M) 5 against their Tata Sumo. As a result of this Tata Sumo turned turtle. He suffered fracture of his left arm and wrist. The other passengers in the Tata Sumo also suffered injuries. His mother, however, succumbed to her injuries. PW7 Surinder Kaur, wife of the complainant, has corroborated the statement of her husband-complainant. The complainant as well as his wife have duly proved the prosecution case. The fact that the Investigating Officer has not been examined in this case is not fatal to the prosecution case. Both the Courts below, after carefully examining the record, have given sound reasons ordering the conviction of the petitioner under Section 304-A,279 and 337 IPC. The judgments of the Courts below thus call for no interference. The judgment relied upon by the counsel for the petitioner fails to advance the case of the petitioner as it is based on different facts. Dismissed. (SABINA) October 1, 2010 JUDGE Anand