Crl. Rev. No. 1723 of 2004 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 1723 of 2004 (O&M) Date of decision:- 25.2.2011 Sarabjit Singh ... Petitioner Versus State of Punjab ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. A.S.Cheema, Advocate, for the petitioner. Mr. P.S.Paul, DAG, Punjab. Gurdev Singh, J (oral) In this case of head on collusion of the two motor vehicles the petitioner/accused-Sarabjit Singh was charged for the offences under Section 279, 304-A and 338 for having driving his car make Maruti bearing registration No. DL-4CB-5515 rashly and negligently so as to endanger the hman life and personal safety of others and thereby having caused the death of Bindu Pal Kaur, not amounting to culpable homicide and grievous hurt to her daughter Jasmin, who were travelling in their car make Maruti bearing registration No. PB-03-A-7973. He was tried by Judicial Magistrate Ist Class, Bathinda and was convicted for the said offences vide judgment dated 28.4.2003 and was sentenced as under:- Under Sections Imprisonment Fine In Default 304 A IPC To undergo rigorous imprisonment for a period of two years To pay a fine of Rs.1000/- To further undergo R.I for a period of three months Crl. Rev. No. 1723 of 2004 (O&M) -2- Under Sections Imprisonment Fine In Default 279 IPC To undergo rigorous imprisonment for a period of six months --- --- 338 IPC To undergo rigorous imprisonment for a period of six months --- --- Against that conviction and sentence the accused preferred an appeal, which was dismissed by Additional Sessions Judge, Bathinda, vide judgment dated 20.8.2004. The revision petition is directed against that conviction and sentence. On the fateful day, Bindu Pal Kaur-deceased and her daughter Jasmin were going to Village Talwandi from Bathinda in their car. The accused came driving his car from the opposite side and there was head on collusion in which the deceased and her daughter received the injuries. The injured were removed to Badial Hospital, Bathinda and were admitted to that place. The deceased was medically examined by Dr. Rajesh Badyal PW7, who found the following injuries on the person of the injured:- 1.Evidence of abnormal mobility/crepitus/swelling upper mid- third thigh. No neururo vascular deficit. X-ray shows fracture sharp femur upper and mid third. 2. Right shoulder swelling present on shoulder No neururo vascular deficit. 3. Left hand evidence of fracture distal phalanx middle finger. Information regarding this accident was given to Kaur Singh ASI PW6 on the wireless and on the receipt thereof he came to the said hospital and made an application PW6/A to enquire about the fitness of the injured Crl. Rev. No. 1723 of 2004 (O&M) -3- to make her statement. She was declared unfit to make her statement by that doctor vide his endorsement PW6/B. On 26.12.1998 Kaur Singh ASI again made an application Ex.PW6/C to enquire about her fitness to make her statement. That time she was declared fit to make her statement by doctor, vide his endorsement Ex. PW6/D. Thereafter the ASI recorded her statement mark 'X'. She narrated therein that when they were proceeding from Bathinda to Village Talwandi one car came from the opposite side, which was being driven at a fast speed and rashly. The driver thereof by driving that car negligently struck the same in her car, as a result of which she and her daughter received the injuries. The driver of that car came out and confessed that the accident had taken place on account of his negligence and also disclosed his name and other particulars. On the basis of that statement mark 'X', formal FIR Ex.PW6/F was recorded against the accused under the aforesaid sections. The ASI went to the place of accident and after inspecting the same prepared the rough site plan Ex.PW6/J with correct marginal notes. Jaswinder Singh, photographer, came to the spot, who took the photographs Ex.P11 to Ex.P20 of the vehicles involved in the accident. Both those vehicles were taken into possession by the ASI. On 29.12.1998, the accused was arrested by ASI. He produced his driving license before the ASI and the same was taken into possession vide Ex.PW6/L. On account of the serious condition of the deceased she was referred to Medical College, Chandigarh, where she died on 1.1.1999. On receipt of the information regarding her death the ASI went to that place and prepared the inquest report Ex.PW6/M in respect of her dead body and sent the same for post mortem examination. The autopsy on the dead boty was Crl. Rev. No. 1723 of 2004 (O&M) -4- performed by Dr. Satish Kumar PW9, who found ante mortem injuries on the same. He deferred his opinion regarding the cause of death till the receipt of report of histopathological examination. After the receipt of that report, he gave his opinion that the cause of death was due to shock which was as a result of the complications arising subsequently to the receipt of injuries by the deceased. In the course of investigation statements of witnesses were recorded and after the completion thereof, the challan was put in before the Judicial Magistrate, Ist Class. To prove the guilt of the accused, prosecution examined Pritpal Singh PW1, HC Hans Raj PW2, Jasmin PW3, Jai Deep Singh PW4, Jaswinder Singh PW5, ASI Kaur Singh PW6, Dr. Rajesh Badyal PW7, C- Balwinder Singh PW8, Des Raj PW9, Dr. Satish Kumar PW9, C-Jugraj Singh PW10 and Gurmukh Singh PW11. After the prosecution closed its evidence the accused was examined by the trial Court 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 innocence. He stated that neither the car involved in the accident was owned or possessed by him nor the accident was caused by him. 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 learned counsel for the accused that the prosecution examined only one eye-witness namely; Jasmin PW3, who nowhere stated that at the time of accident the car was being driven by the Crl. Rev. No. 1723 of 2004 (O&M) -5- accused rashly and negligently. In addition to that she stated during her cross-examination that this accident had taken place on the right hand side of the road. Therefore, the findings of conviction recorded by the trial Court and upheld by the appellate Court cannot be sustained. He also tried to refer to the statement of Jaswinder Singh Photographer PW5 wherein he stated that the car of the deceased was lying on the right side of the road and contended that it was the deceased who brought the car on the wrong side of the road and struck the car in the accused. He also submitted that no evidence was produced by the prosecution that Jasmin PW3 was ever admitted in the hospital, which falsifies its story that she was in the car with the deceased and received the injuries. It cannot be said that the death of the deceased was direct cause of the injuries as according to the doctor the death of the deceased took place on account of the complications arising subsequent to the receipt of the injuries and those complications were never listed by him in the statement or the documents prepared by him. According to him the conviction and sentence of the accused is liable to be set aside. On the other hand, it has been submitted by learned State counsel that the conviction and the sentence of the accused was recorded not only on the statement of Jasmin PW3, but also on the statement of the deceased herself, which was recorded by the ASI and is to be treated as dying declaration after her death. Even if, the statement of Jasmin PW3 is excluded or is not relied upon even then the manner in which the accident took place, this dying declaration of the deceased should be relied. The statement of Jaswinder Singh PW5 is of no help to the accused as the Crl. Rev. No. 1723 of 2004 (O&M) -6- position of the cars was seen by him after the accident and only the witnesses, who had witnessed this accident with their own eyes could have disclosed as to how the accident took place. It is very much clear from the statement of the doctor, who conducted the post mortem examination, that the death of the deceased was caused by the injuries received by the injured. There is no ground for setting aside the conviction and sentence of the accused. In this case the trial Court based the conviction of the accused on the statement of Jasmin PW3, who has admittedly a child witness. Reasons were recorded by the trial Court as to why the reliance was placed upon her testimony and how her statement is trustworthy and reliable. However the appellate Court did not take into consideration the statement of that eye- witness and recorded the conviction of the accused on the basis of the statement made by the deceased herself before the police by treating that as dying declaration, being admissible under Section 32 of the Evidence Act. There cannot be a second opinion that after the death of the deceased her statement made before the police is to be treated as dying declaration as she deposed about the detailed facts leading to the cause of her death. A question arises whether the conviction of the accused, in the facts of the present case, could have been recorded on the basis of this dying declaration? That part of the dying declaration that she received injuries as a result of the driving of the car by the accused is to be relied upon without any corroboration. However the second part of her statement that the car was being driven rashly and negligently by the accused could have been relied upon only in case the prosecution had produced some corroborative Crl. Rev. No. 1723 of 2004 (O&M) -7- evidence. This rule of corroboration requires that the dying declaration be subjected to closer scrutiny since the evidence is untested by cross- examination. It is only if the dying declaration is found to be truthful that it can form basis of the conviction without any further corroboration. The prosecution itself is relying upon the statement of Jasmine PW3 for proving that the accident had taken place on account of the rash and negligent driving of the accused. It is pertinent to note that the said witness is a child witness as she was hardly six years old at the time the accident took place. The Court before placing reliance on the statement of the child witness is to see whether the possibility of the tutoring of the child witness is completely ruled out or not as the child of tender age can be easily tutored to make his or her statement. The Courts have always asked for corroboration before placing reliance on the statement of the child witness. It is in the cross-examination of Jasmin PW3, itself that before she made her statement she was tutored to make her statement in a particular manner. Thus the tutoring of that child witness to make said statement in the Court is not ruled out. She has stated during cross-examination that this accident had taken place on their right side, which totally negates the dying declaration of the deceased that she was driving the car on left side of the road. The position becomes further clear from the photographs Ex.P12, P14, P16 and P18 and the statement of Jaswinder Singh-photographer PW5. In the first two photographs the position of each of the car on the road has been shown. The car of the deceased was not on the extreme left side of the road and was more on the right hand side of the road whereas the offending car is more on its left hand side. The respective position of both the cars has Crl. Rev. No. 1723 of 2004 (O&M) -8- been shown in the other two photographs. From the position of those cars and the damage caused to those, it becomes very much clear that it was deceased herself, who was at fault and accident took place on account of her own negligence. The findings to the contrary recorded by the trial Court and the appellate Court are perverse and illegal. Accordingly, this revision petition is hereby accepted. The conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded. Records be returned forthwith. February 25, 2011 (Gurdev Singh) tripti Judge