IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 634 of 1997 Date of Decision : January 07, 2010 Mohinder Singh ...Petitioner Versus State of Haryana ....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Ashish Aggarwal, Advocate with Mr. Kulwant Singh, Advocate Mr. Y.P.Malik, Deputy Advocate General, Haryana T.P.S. MANN, J. (Oral): The petitioner was tried by Judicial Magistrate Ist Class, Karnal, for offences under Sections 279/337/338/304-A IPC. Vide judgment dated 18.7.1994, the trial Court acquitted the petitioner of offences under Sections 337 and 338 IPC on account of non- examination of any of the injured but convicted him for offences under Sections 279 and 304-A IPC. Vide order dated 19.7.1994, the petitioner was sentenced to undergo RI for 18 months and to pay a fine of Rs.500/- for offence under Section 304-A IPC. In default of payment, he was to undergo RI for a further period of three months. He was also sentenced to RI for three months for offence under Section 279 IPC. The sentences were ordered to run concurrently. Aggrieved of the same, the Crl Revision No. 634 of 1997 -2- petitioner filed an appeal, which was, however, dismissed by Additional Sessions Judge, Karnal, on 11.7.1997. The petitioner is now before this Court by way of revision for challenging his conviction and sentences. According to the case of the prosecution, complainant-Amir Singh was present near bus stand Chirav on 19.5.1986 at 12 noon. He saw a truck bearing registration No. RJI-1506 coming from the side of village Jundla at a very high speed and being driven in a rash and negligent manner. Its driver lost the control as a result of which the truck overturned. The persons, who were sitting in the truck received injuries. Out of them Jagdish, Harbhajan Singh and Malu succumbed to their injuries at the spot whereas Ram Phal and Bhima died in the hospital. ASI Sardara Ram was present at village Jundla alongwith the police party in connection with patrol duty. He received an information regarding the accident. He immediately went to the spot and met complainant-Amir Singh there, who made statement before him on the aforementioned lines. On the basis of the said statement, formal FIR was registered at Police Station Sadar, Karnal. After completing the investigation, the police presented the final report under Section 173 Cr.P.C., against the petitioner. Lateron vide order dated 19.2.1987 he was charge-sheeted for offences under Sections 279/337/338/304-A IPC, to which he pleaded not guilty and Crl Revision No. 634 of 1997 -3- claimed trial. In support of its case, the prosecution examined PW1 Ram Kumar, PW2 Inder Singh, PW3 Dr.J.C.Bhatla, PW4 Dr.Sushil Kumar, PW5 Dr.K.B.Kanwal, PW6 Puran, PW7 Jiwan Kumar, PW8 Gian Singh and PW9 Pala. Despite availing numerous opportunities, the prosecution could not examine the remaining witnesses and, therefore, its evidence was closed on 28.5.1993. When examined under Section 313 Cr.P.C., the petitioner stated that an ox had come in front of his truck all of a sudden and when he tried to save it the truck overturned. The road had also become slippery due to rains. In his defence, the accused examined complainant-Amir Singh as DW1. The trial Court believed the prosecution case regarding the driving of the truck in a rash and negligent manner on a public road so as to endanger human lives and for causing the death of five persons by doing so. Accordingly, he was convicted and sentenced for offences under Sections 279 and 304-A IPC but acquitted of offences under Sections 337 and 338 IPC as the prosecution had not examined any of the injured persons. Learned counsel for the petitioner has submitted that the prosecution did not examine the complainant-Amir Singh in support of Crl Revision No. 634 of 1997 -4- its case although he was its star witness as it was on his statement that the FIR was registered against the petitioner. Said Amir Singh stepped into the witness box on behalf of the petitioner and deposed that he had not made any statement to the police whereas his signatures were obtained on a blank paper, which were lateron used to fabricate the statement on his behalf. Right from the day when his statement was recorded by the police on the basis of which formal FIR was registered against the petitioner till the time he appeared before the trial Court as DW1, complainant-Amir Singh did not take any step to inform the higher authorities about the police having obtained his signatures on some blank paper. Apparently, he had been won over by the accused and for that reason he did not step into the witness box on behalf of the prosecution. Instead, he waited till the defence sought his appearance in the Court and then to deny what he had earlier stated before the police on 19.5.1986. Learned counsel for the petitioner further submitted that the prosecution had not examined the Investigating Officer. His non- examination was fatal to the prosecution case. Therefore, the petitioner deserves to be acquitted of the charges against him. It is a fact that the prosecution did not examine the Investigating Officer in support of its case. However, his testimony was Crl Revision No. 634 of 1997 -5- not material on account of the fact that PW7 Jiwan Kumar, Photographer, had already placed on record various photographs of the place of occurrence, which showed that the truck was lying overturned. The petitioner had also admitted the overturning of the truck resulting in death of five persons and injuries to some other although he had come up with an explanation as to under what circumstances the truck had overturned. Therefore, the non-examination of the Investigating Officer cannot be considered to be fatal so as to exonerate the petitioner of the charges against him. According to the plea of the accused when he was driving the offending truck, an ox had come in front of his truck all of a sudden. When he tried to save it, the truck overturned. Even the road had become slippery due to rains. The plea of the accused that his truck had overturned on account of the fact that an ox had come in front of his truck is not substantiated by any material on the record. Such a plea was taken for the sake of taking one such plea and nothing beyond. If Amir Singh- complainant had seen the occurrence as deposed by him while appearing as DW1 and in the occurrence the truck overturned on account of ox coming in front of it, he would have raised hue and cry about false implication of the petitioner in the crime. No such steps were taken by him. Therefore, the plea of the accused is neither here nor there. Crl Revision No. 634 of 1997 -6- It is finally submitted that the petitioner is not a previous convict. He is the sole bread earner of his family, which consists of his wife, his three minor children besides old parents. Therefore, a case is made out for granting the benefit of probation to him instead of requiring him to serve the sentences of imprisonment imposed. Learned State counsel has opposed the prayer by submitting that in the accident in question five innocent persons, who were sitting in the offending truck, had lost their lives on account of its rash and negligent driving by the petitioner and, therefore, no case is made out for extending the benefit of probation to him. It was the case of the prosecution that the petitioner was driving the offending truck at a very high speed and, that too, in a rash and negligent manner and on account of the same the petitioner could not control the truck, which resulted in its overturning. The truck was carrying a number of persons. Most of them received injuries. Three of them succumbed to the injuries at the spot while two more breathed their last on reaching the hospital. Under these circumstances, mere fact that the petitioner was not a previous offender, is no ground to extend the benefit of probation to him. However, keeping in view the fact that the accident in question had taken place about 24 years ago and all this while the petitioner had been facing the agony of criminal prosecution, this Court is of the view that the sentence of RI for a period of 18 Crl Revision No. 634 of 1997 -7- months imposed upon the petitioner requires to be reduced to RI for a period of one year. Resultantly, the conviction of the petitioner for offences under Sections 304-A and 279 IPC is maintained. The sentence of imprisonment for offence under Section 304-A IPC is reduced to RI for 12 months. The amount of fine of Rs.500/- imposed for the said offence as well as the RI for three months for the offence under Section 279 IPC are maintained. The substantive sentences of imprisonment shall run concurrently. The revision is, accordingly, disposed of. ( T.P.S. MANN ) January 07, 2010 JUDGE ajay-1