Crl. Revision No. 1747 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1747 of 2005 Date of decision: March 3, 2011 Jamil ...Petitioner Versus State of Haryana ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. PR Yadav, Advocate, for the petitioner. Mr. Shekhar Mudgal, AAG, Haryana. GURDEV SINGH, J. (Oral) The petitioner/accused, Jamil, was charged for the offences under Sections 279 and 304-A IPC for having driving his canter bearing registration No. HR-47-3687 rashly and negligently, so as to endanger human lives and personal safety of the others and thereby having caused the death of Imrat and Sageer, not amounting to culpable homicide. He was tried by the Sub Divisional Judicial Magistrate, Nuh, and was convicted for those offences, vide judgment dated 1.4.2003 and was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of one month under Section 279 IPC and to undergo rigorous imprisonment for a period of one year and to pay fine of ` 1000/-, in default thereof to further undergo rigorous imprisonment for a period of two Crl. Revision No. 1747 of 2005 2 months under Section 304A IPC. He preferred an appeal against that conviction and sentence, which was dismissed by the Additional Sessions Judge, vide judgment dated 31.8.2005. It was on 19.7.1998 that Israil, complainant (PW-1) made a statement before Chandan Lal, ASI (PW-8) and on the basis of his statement, FIR Ex. PW6/A was recorded against the accused. He came up with the version that on the said date, at about 6.15 a.m. he, alongwith Mubeen, was going from his village to answer the call of the nature and at that time his father-in-law Imrat and Sageer were coming back on the kacha portion of the road to the village, after easing themselves. In the meanwhile, the accused came driving the said canter at a very fast speed and by driving the same rashly and negligently ran over Imrat and Sageer and thereafter he escaped from the spot, after leaving the canter. As a result of the injuries so received by both the injured, they died on the spot itself. The ASI accompanied by the complainant came to the place of accident and after inspecting the same prepared rough site plan Ex. PW8/A. He took the canter into possession, vide memo Ex. PW7/A. He called Madan Mohan, Photographer (PW-4) to the spot, who took photographs Exs. PW4/A to PW4/C. He prepared the inquest reports in respect of the dead bodies of both the deceased and sent those to the hospital for post-mortem examination, which was conducted by Dr. Bhuvnesh Arora (PW-10), who found ante-mortem injuries on the same and gave his opinion that the cause of death was shock and haemorrhage due to injuries to the vital organs, which were sufficient to cause death in the ordinary course of nature. Saddiq (PW-9), owner of the canter, produced the documents of the truck before the ASI on 20.7.1998 and those were taken into possession, vide Crl. Revision No. 1747 of 2005 3 memo PW5/A. His statement was recorded, wherein he disclosed that on the date of accident, it was the accused, who was driver on his canter. On the same day the canter was got mechanically tested from Ramdhan (PW-3), who found the same to be in mechanical order and gave his report Ex. PW3/A. In the course of investigation, the accused was arrested and after completion thereof, challan was put in before SDJM, Nuh. To prove the guilt of the accused, the prosecution examined Israil (PW-1), Mubeen (PW-2), Ramdhan C. (PW-3), Madan Mohan (PW- 4), Shamshuddin, H.C. (PW-5), Amrik Singh ASI (PW-6) Raj Kumar (PW- 7), Chandan Lal SI (PW-8), Saddiq (PW-9) and Dr. Bhuvnesh Arora (PW- 10). After the prosecution closed its evidence, the accused was examined by the trial court and his statement was recorded under Section 313 of the Code. All 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. 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 the learned counsel for the accused that the conviction of the accused has been recorded on the solitary statement of Israil complainant (PW-1). The name of the accused is 'Jamil son of Sule Khan', whereas the same was described as 'Jamil son of Lehar Khan' in the statement Ex. PW1/A made by the complainant to the police and when he was cross-examined he categorically stated that the accused was not known to him previously, which totally negatives the statement made by him before the police that the accused was already known to him. He has even gone to the extent of deposing that no such statement was made Crl. Revision No. 1747 of 2005 4 before the police by him and his signatures were obtained on blank papers. In these circumstances, conviction of the accused could not have been recorded on his statement. The prosecution relied upon the statement of Saddiq (PW-9), but he no where stated that on the date of the accident, it was the accused who was driving his canter. The Investigating Officer totally contradicted the prosecution case by deposing that the statement of the complainant was recorded in the police station itself and not at Ferozepur chowk, where the same is stated to have been recorded. In view of these contradictions, the conviction of the accused is liable to be set aside. He has also submitted that in case the conviction is to be maintained, then he be released on probation, keeping in view the fact that he has small children to look after and no previous conviction was proved against him and during the trial his conduct remained good and he stood protracted trial for all these years. Merely on the ground that the parentage of the accused is recorded as 'Lehar Khan' in the statement Ex. PW1/A made by the complainant before the police, it cannot be said that he was not the driver of the canter at the time of the accident. The position was made clear by Saddiq (PW-9), who categorically stated that he is owner of the canter involved in the accident and it was Jamil, who was driver on the same. Israil complainant (PW-1) during his examination-in-chief fully supported the prosecution case. No doubt, during his cross-examination he stated that he had never seen the accused on previous occasion and his signatures were obtained in the police station on the blank papers. It is now well settled that isolated answer given during the cross-examination by a witness cannot be Crl. Revision No. 1747 of 2005 5 the sole criteria for judging upon the value of his testimony. It is the cumulative effect of the statement of a witness made in the court which is to be seen. During his examination-in-chief, he specifically deposed that at the time of the accident, the tempo was being driven by Jamil. He saw the accused present in the court on that date and he duly identified him as such. He also stated during his examination-in-chief that the police recorded his statement Ex. PW1/A, which was duly signed by him. A minute reading of his statement makes it very much clear that on account of some influence exerted by the accused, he tried to wriggle out of the statement made by him during examination-in-chief. A cumulative reading of the statement makes it very much clear that the accused was already known to him, who was duly identified by him at the spot and he also made the statement Ex. PW1/A before the police, which was duly signed by him. It is well settled that conviction of the accused can be recorded on the solitary statement of a witness, if the same is found to be trust worthy and reliable. It is not the statement of the Investigating Officer that he had recorded the statement of the complainant in the police station, rather he denied that suggestion, when it was put to him during his cross- examination. He also stated that the statement of the complainant Ex. PW1/A was recorded by him and he was never cross-examined on that aspect of the case. After going through the record of the case, I do not find that the finding of conviction recorded by the trial court and upheld by the appellate court suffers from any infirmity or illegality. As such, the conviction of the accused is upheld. The circumstances pointed out by the counsel for the accused may be mitigating circumstances but keeping in view the nature of the Crl. Revision No. 1747 of 2005 6 offence and the circumstances in which the same was committed, I do not think it is expedient or proper to release the accused on probation. In the early hours of the morning, he ran over two innocent persons, while they were walking on the kacha portion of the road. As a result of his rash and negligent driving, those two innocent persons lost their lives. When such is the position, no compassion can be shown to such like a person. The sentence of the accused is hereby maintained. Revision petition is dismissed accordingly. Accused be taken into custody to serve the remaining sentence. Records of the trial court be returned forthwith. March 3, 2011 (GURDEV SINGH ) prem JUDGE