Crl. Rev. No.437 of 2002 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * Crl. Rev. No.437 of 2002 Date of decision : February 25, 2010 * * * * * Kewal Ram ............Petitioner Versus State of Punjab ...........Respondent * * * * * CORAM: HON'BLE MR. JUSTICE JORA SINGH * * * * * Present: Mr. Vijay Lath, Advocate with Mr. Naveen Sharma, Advocate for the petitioner. Mr. Jaspreet Singh, AAG, Punjab. * * * * * JORA SINGH, J. Kewal Ram was sent for trial by the SHO, Police Station, Mohali on the allegation that on 1.10.1996, in the area of Phase-VI, Mohali, vehicle No.HP-09-0872 being driven rashly and negligently by him was struck against the scooter of Harnek Singh and in that accident, Harnek Singh received multiple grievous injuries who later on had succumbed to his injuries when shifted to PGI, Chandigarh. Vide judgment dated 11.4.2001, he was convicted under Crl. Rev. No.437 of 2002 [2] Sections 279 and 304-A IPC. He was directed to undergo rigorous imprisonment for a period of three months and to pay a fine of Rs.1000/- for the offence punishable under Section 279 IPC. In default of making payment of fine, he was further directed to undergo rigorous imprisonment for a period of 15 days. Accused was directed to undergo rigorous imprisonment for a period of one year and a fine of Rs.2000/- for the offence punishable under Section 304-A IPC. In default of payment of fine, he was further directed to undergo rigorous imprisonment for a period of one month. Both the sentences were ordered to run concurrently. Against judgment/order dated 11.4.2001 passed by Judicial Magistrate Ist Class, Kharar, appeal was preferred by Kewal Ram, but the same was dismissed by the Sessions judge, Rupnagar vide his judgment dated 29.1.2002. Prosecution story, in brief, is that on 1.10.1996, Jaspal Singh, complainant along with his brother, Harnek Singh deceased on different scooters came to Chandigarh in connection with domestic work. At about 7 p.m, they were going back to their village. Harnek Singh was on scooter No. CH01M-0537 and was ahead of the scooter of the complainant. Harnek Singh was near T-point, Gurdwara Sahib, Phase-VI, Mohali when a truck Tata 709 bearing no. HP-09-0872 was noticed while coming from the side of Dara Studio. Vehicle was being driven rashly and negligently without blowing horn or giving indicator. Vehicle was struck against the scooter driven by Harnek Singh. In the accident which occurred due to rash and negligent driving of vehicle no.HP-09-0872, Harnek Singh Crl. Rev. No.437 of 2002 [3] received multiple grievous injuries. After arranging a vehicle, Harnek Singh was shifted to Civil Hospital, Phase VI, Mohali. After medical aid patient was referred to PGI, Chandigarh. Offending vehicle no. HP-09-0872 was being driven rashly and negligently by Kewal Ram son of Surat Ram. In view of the statement of Jaspal Singh recorded by Head Constable Mulakh Raj at 7:30 p.m in PGI, Chandigarh, formal FIR no.135 dated 3.10.1996 was registered under Sections 279/337/427. Head Constable, Mulakh Raj had gone to the place of occurrence. Rough site plan with correct marginal notes was prepared. Scooter no. CH01M-0537 was taken into police possession vide memo attested by the witnesses. Truck No. HP-09- 0872 with DL from Superfast Union was taken into police possession vide separate memo attested by the witnesses. On 8.11.1996, Harnek Singh had succumbed to his injuries while lying admitted in PGI, Chandigarh. Inquest report was prepared. After post mortem examination, dead body was handed over to the relations of the deceased for cremation. After completion of investigation, challan was presented. Accused was charged under Sections 279 and 304-A IPC. Accused did not plead guilty and claimed trial. Prosecution examined following witnesses. PW-1 Karam Chand Mechanic stated that on 5.10.1996, Tata 709 bearing no. HP-09-0872 was mechanically tested. On the front mudguard, dent was noticed. Scooter no. CH01 M-0537 was also tested mechanically. Ex.PA is report regarding mechanical test Crl. Rev. No.437 of 2002 [4] of HP-09-0872 and Ex.PB is the report regarding scooter No. CH01 M-0537. PW-2 HC Mulakh Raj is the Investigating Officer. PW-3 Jaspal Singh is the complainant, PW-4, Dr. Dalbir Singh had conducted post mortem examination on the dead body of Harnek Singh on 8.11.1996 at 2:30 p.m. PW-5 Rajnish Kumar Clerk stated that scooter no. 0537 was registered in the name of Jaspal Singh. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent. Defence version of the accused is that case is false. Opportunity was given to lead defence but no defence was led. After hearing learned Public Prosecutor for the State, learned counsel for the accused and after perusing the evidence on the file, trial Court had convicted and sentenced the petitioner as stated aforesaid. I have heard learned counsel for the petitioner, learned State counsel and have gone through the evidence on the file. Learned counsel for the petitioner argued that accident took place on 1.10.1996 at about 7:00 p.m near T-point, Gurdwara Sahib, Phase-6, Mohali. Petitioner is from Himachal Pradesh and was not known to the complainant. Identity of the petitioner is doubtful whether at the relevant time he was driving the offending vehicle. In fact, after the occurrence, simply to get compensation, Crl. Rev. No.437 of 2002 [5] truck no.HP-09-0872 was brought from the truck union. Petitioner was implicated in this case because DL of the petitioner was valid and the vehicle was insured. No test identification parade was arranged. Owner of the vehicle was also not produced to state that at the relevant time, vehicle was in the area of Mohali and the petitioner was the driver. Failure to examine the owner of the vehicle and to arrange test identification parade shows that story is not genuine one. State counsel argued that deceased and the complainant on different scooters came to Chandigarh in connection with some domestic work. After completing their work, they were going back to their village on different scooters. Harnek Singh was ahead of the complainant. When they were present near T-point, Gurdwara Sahib, Phase-VI, Mohali, Truck no.HP-09-0872 was sighted while coming from main road of Dara Studio side. Same was being driven by the petitioner rashly and negligently and was struck against the scooter of Harnek Singh. Harnek Singh had received multiple grievous injuries. First priority of the complainant was to shift the injured to the nearest hospital for medical aid. From Civil Hospital, Phase-VI, Mohali, patient was referred to PGI, Chandigarh. On 1.6.1996, statement of Jaspal Singh was recorded. Petitioner had fled away from the spot with the vehicle but petitioner is from Himachal Pardesh. There was no reason to falsely implicate the petitioner. Petitioner could easily produce the owner of the vehicle to state that petitioner was not the driver of truck no. HP-09-0872. Truck No.HP- 09-0872 was taken into police possession on 3.10.1996. RC and DL Crl. Rev. No.437 of 2002 [6] were also recovered. Petitioner had surrendered on 4.10.1996. If the petitioner was not the driver of truck no. HP-09-0872 at the relevant time and was not at fault then no reason to surrender. Secondly, no request to arrange test identification parade. After the occurrence, petitioner had fled away from the spot. Harnek Singh had received multiple grievous injuries. He was shifted to Civil Hospital, Phase-VI, Mohali. Keeping in view the condition of Harnek Singh, doctors at Phase-VI, Mohali referred him to PGI, Chandigarh. At PGI, Chandigarh, Harnek Singh was declared unfit to make a statement and this fact is clear from the report of the doctor dated 2.10.1996 at 10:00 a.m. Again on 3.10.1996, Harnek Singh was found unfit to make a statement. Ultimately, statement of Jaspal Singh was recorded by head Constable, Mulakh Raj at 7:30 p.m. In the statement, Jaspal Singh had disclosed about the number of the vehicle and name of the driver. Truck No.HP-09-0872 was taken into police possession on 3.10.1996. As per report of the mechanic, dent was noticed on the left side of front mudguard including dicki. If there was no accident, while driving the vehicle then how dent on the left side of front mudguard and dicki. Owner of the vehicle should have been examined by the prosecution to state that at the relevant day, vehicle was in the area of Mohali and such and such person was the driver but prosecution failed to examine the owner of the vehicle. Prosecution story cannot be ignored because petitioner is from Himachal Pardesh and there is an eye witness. Before the present Crl. Rev. No.437 of 2002 [7] occurrence, complainant had no enmity with the petitioner so there was no idea to choose the petitioner from Himachal Pardesh simply to get compensation. On 4.10.1996, petitioner had surrendered before the police. In case he was not the driver of vehicle no. HP-09- 0872 then there was no need to surrender before the police. Petitioner when examined under Section 313 Cr.P.C then did not state as to why he surrendered and how his DL was recovered. Recovery of DL from the truck and surrender before the police on 4.10.1996 shows that petitioner was the driver. In defence, petitioner could also produce the owner of the vehicle to state that on 1.10.1996, vehicle was not in the area of Mohali and on the above said vehicle, he was not the driver but the vehicle was driven by somebody else. After the occurrence on 1.10.1996, Harnek Singh was shifted to Civil Hospital, Mohali then to PGI, Chandigarh. Condition of Harnek Singh was critical. Intimation was sent to police station, Chandigarh. Harnek Singh was declared unfit to make statement. Statement of Jaspal Singh, complainant was recorded by the Investigating Officer. Vehicle no. and name of the driver were disclosed to the police. If petitioner was not the driver then he could easily surrender with muffled face with a request to arrange test identification parade. If identification parade was not arranged by the prosecution, then on this short ground petitioner is not to be acquitted when occurrence was witnessed by the complainant. Claim petition was also filed. But in the claim petition, Kewal Ram failed to appear in the Court to state that he was not driving vehicle Crl. Rev. No.437 of 2002 [8] no. HP-09-0872 at the relevant time or he was driving the vehicle but there was no accident. Kewal Ram, petitioner was the best witness to state on oath that he was not the driver at the relevant time. Non- appearance of Kewal Ram in the claim petition is one of the circumstance to hold that he was driving the vehicle at the relevant time. The owner of the vehicle was also not examined to state that petitioner was not the driver at the relevant time. In State of Punjab vs. Balraj Singh, 2000(1) RCR (Criminal) 822, accused driving a truck and due to rash and negligent driving caused death of person. Accused fled away from the spot but no identification parade was held. Identification for the first time in the Court is without any evidential value but the judgment is silent as to what were the facts and circumstances whether there was a request of the accused to arrange test identification parade or the accused had surrendered with muffled face. When there is an accident during night time and after the accident, driver had fled away from the spot with the vehicle then question is whether accused arrested in the case later on cannot be convicted on the basis of circumstantial evidence. In the present case, offending vehicle was recovered on 3.10.1996. After mechanical test, dent was noticed on the front side of the mudguard and dicky. From the vehicle, DL of the petitioner was recovered. Owner or driver of the vehicle failed to explain how dent had occurred on the vehicle. On 4.10.1996, petitioner had surrendered before the police. As discussed earlier, petitioner is from Himachal Pardesh and if he was not driving the vehicle at the relevant time then Crl. Rev. No.437 of 2002 [9] question is why the petitioner was chosen simply to implicate him in the present case. Petitioner could surrender in court with muffled face and request to arrange test identification parade. No allegation of the petitioner that police brought him from his house to Mohali and his arrest was shown on 4.10.1996. Vehicle no.HP-09-0872 was not owned by the petitioner. Owner of the vehicle could easily approach higher authorities that at the relevant time and date vehicles was not in the area of Mohali and the petitioner was not the driver and in fact somebody else was the driver. When there is circumstantial evidence on the file to connect the petitioner with the crime, then petitioner should have produced some defence to create doubt. If the case was false then there was no idea to remain silent. Number of complaints could easily be sent to different authorities. Owner of the vehicle can also file application that his vehicle was wrongly involved in the accident case. No defence version that the vehicle was brought from Himachal Pardesh. When the police had not gone to Himachal Pardesh to bring the vehicle and the petitioner then how the vehicle in question was found in the truck union and why on the next date petitioner from Himachal Pardesh had surrendered before the concerned police station. In Rattan Baxi vs. The State,1998(4) RCR (Criminal) 108, accident occurred due to rash and negligent driving of the driver of the bus. After accident, driver had fled away from the spot with the bus. He was arrested on the next date. Defence version of the accused was that he was not driving the bus and no test identification Crl. Rev. No.437 of 2002 [10] parade was held. Identification for the first time in the Court is without any evidential value. As discussed earlier, before the present occurrence, complainant-party had no enmity with the petitioner. There was no idea to name the petitioner in the FIR and number of vehicle. In Court, complainant had identified the petitioner and if the petitioner was to be implicated with some political motive then immediately, after the occurrence, name of the petitioner and vehicle no.HP-09-0872 could easily be mentioned in the statement. In Bollavaram Pedda Narsi Reddy and others vs. State of Andhra Pardesh, AIR 1991 SC 1468, it was observed that witnesses were strangers to the accused. No natural light was available and street light was at a distance from place of occurrence. No cogent evidence that witnesses had clear vision of action of accused persons in order that their feature could get impressed in their mind to enable them to recollect the same and identify accused even after lapse of long time. Identification parade was not conducted properly. Testimony of witnesses not acceptable. Identity and involvement of accused not established beyond reasonable doubt. Accused was held to be entitled to acquittal. In this case occurrence took place at 9:30 p.m but in the present case, occurrence was at about 7:00 p.m. Occurrence was witnessed by the complainant when he was at a distance of few karams. After the occurrence, vehicle was stopped by the petitioner and after short stay at the place of occurrence, then petitioner had fled away from the place with the vehicle. After surrender, no request to arrange test identification parade. If the petitioner was very much sure that he Crl. Rev. No.437 of 2002 [11] was not the driver then he could easily surrender with muffled face with request to arrange test identification parade. If sole idea of the complainant was to get compensation then any vehicle from Mohali with driver having valid DL could easily be named in the FIR. There was no idea to name driver and the vehicle from Himachal Pardesh. Petitioner had stayed for about 15 minutes near the place of occurrence. Jaspal Singh, complainant is the real brother of the deceased and was near the place of occurrence. Complainant had the opportunity to see the driver and recognize him when appeared in the Court. Report of mechanic, recovery of driving licence and surrender of the petitioner before the IO shows that no dispute regarding the identity of the petitioner. Learned counsel for the petitioner states that occurrence was on 1.10.1996 and at that time, the petitioner was about 28/29 years old. If the Court is of the view that the crime was committed by the petitioner then petitioner is ready to pay compensation. Petitioner is the first offender and belongs to a poor family. Petitioner has already remained in custody for about one month. So ends of justice would be fully met if the sentence of the petitioner is reduced to already undergone. Submission of defence counsel seems to be reasonable. Petitioner was about 28/29 years old at the time of occurrence i.e on 1.10.1996. He is the first offender and poor man. He remained in custody for more than one month. By filing claim petition, legal representatives of the deceased have already received compensation of Rs.2,41,600/- with interest @ Rs.12% annum vide award dated 7.6.1999. In view of the aforesaid reason, impugned Crl. Rev. No.437 of 2002 [12] judgment is upheld with modification on the point of sentence i.e the sentence of the petitioner is reduced to already undergone with direction to deposit Rs.30,000/- more as compensation with two months with trial Court payable to Baljit Kaur, widow of the deceased failing which the revision would stand dismissed automatically. February 25, 2010 ( JORA SINGH ) ritu JUDGE