Crl. Revision No. 516 of 2005 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 516 of 2005 Date of Decision: February 16, 2011 Shyam Sunder ---Petitioner versus State of Haryana ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.J.P.Dhull, Advocate, for the petitioner Mr.J.S.Rattu. Deputy Advocate General, Haryana for the respondent-State *** GURDEV SINGH, J. This revision petition has been preferred by the petitioner-accused, Shyam Sunder, against the judgment dated 3.3.2005 passed by Additional Sessions Judge, Kurukshetra, vide which he dismissed the appeal preferred by the accused against the judgment dated 9.11.2004 passed by Sub Divisional Judicial Magistrate, Pehowa, convicting the accused for the offences under Crl. Revision No. 516 of 2005 -2- Sections 279 and 304-A IPC and sentencing him as under:- Sr. No. Under Section Sentence imposed Fine 1 304-A IPC To undergo rigorous imprisonment for a period of two years ` 500/- In default of payment of fine to undergo rigorous imprisonment for 15 days 2 279 IPC To undergo rigorous imprisonment for a period of two months ` 200/- In default of payment of fine to undergo simple imprisonment for seven days As per the prosecution version, Ramesh Pal, complainant, PW-3, had been working as Muneem in Grain Market, Thol. On 14.11.1999, his paternal uncle Roshan Lal and Madan Lal, PW-1 had come to meet him at that place. Thereafter, they started for their village on foot. When at about 6.15 P.M., they reached near the crossing of Thol, after crossing the dhaba of Mahender Singh, the accused came driving bus bearing Registration No. HR 39-7080 from the opposite side negligently, rashly and at a fast speed. He struck that bus in the deceased, who was going on his left hand side of the road. The wheels of the bus passed over the deceased, who died at the spot. The accused escaped from the spot with the bus. The complainant made his statement, Ex. PW-3/A about this accident before Bharat Lal ASI, PW-8, who recorded his police proceedings, Ex. PW 8/A and sent that statement to the police station, on the basis of which formal FIR, Ex. PW8/B was recorded against the accused under Sections 279 and 304-A IPC. The ASI went to the place of accident, inspected the same and prepared the rough site plan, Ex. PW8/D, with correct marginal notes. He called Raj Kumar, photographer PW- 2, to the spot, who took the photographs Ex. P-1 to P-4. He prepared the inquest report, Ex. PW8/E in respect of the dead body of the deceased and sent the same for post mortem examination. The bus involved in the accident was impounded by Amar Singh HC, PW-5, on 15.11.1999 and was taken into possession, vide Memo Ex. PW 5/A. The autopsy on the dead body of the Crl. Revision No. 516 of 2005 -3- deceased was conducted by Dr.O.P.Gogia, PW-9, on 15.11.1999, who found ante mortem injuries on the same and gave his opinion that the cause of death was due to the injuries to the vital organs leading to shock and hemorrhage and all the injuries were sufficient to cause death in the ordinary course of nature. The bus was mechanically tested by Seth Pal HC, Mechanic, PW-6, who found the same to be in mechanical order and gave his report Ex. PW-6/A. In the course of investigation, the accused was arrested. It was found that he was working as a Driver in Haryana Roadways, Hisar. Records were collected from his office regarding his duty on the bus, involved in the accident, which was first brought by him from Hisar to Chandigarh and thereafter, the same was taken back by him from Chandigarh to Hisar. After the completion of the investigation, the challan was put in before SDJM, Pehowa, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 279 and 304-A IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To bring home the guilty of the accused, prosecution examined Madan Lal HC, PW-1, Raj Kumar, PW-2, Ramesh Pal, PW-3, Chandi Ram, Duty Clerk, PW-4, Amar Singh HC, PW-5, Seth Pal HC, PW-6, Suraj Bhan ASI, PW-7, Bharat Lal ASI, PW-8 and Dr. O.P.Gagia, PW-9. After the close of the prosecution 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 and false implication. He was called upon to enter on his defence, but he did not produce any evidence in his defence. After going through the evidence, so produced on the record, and hearing Assistant PP for the State and learned defence counsel for the accused, the Sub Divisional Judicial Magistrate, Pehowa, convicted and Crl. Revision No. 516 of 2005 -4- sentenced the accused, as aforesaid. Against that conviction and sentence, the accused preferred appeal, in which he moved an application under Section 311 Cr.P.C. for leading additional evidence. That application was allowed and thereafter, he examined Baldev Singh, Constable, DW-1, in his defence evidence, who produced the records for proving the fact that Madan Lal, Head Constable, PW-1, was not on leave on 14.11.1999. However, the Appellate Court finding no illegality in the order of conviction passed by the trial court, maintained the same but reduced the sentence of imprisonment from two years to one year for the offence punishable under Section 304-A IPC. I have heard learned counsel for both the sides. It has been submitted by counsel for the accused that the prosecution case was not supported in the Court by Ramesh Pal, complainant,PW-3, and according to him he was not present at the time of accident and had come to the spot subsequently. No doubt, the prosecution case was supported by Madan Lal HC, PW-1, but his presence at the spot was highly improbable as he was posted as a Head Constable in the District at Kurukshetra and was not on leave on the date of the accident. It is not the case of the prosecution that the accused was already known to this witness and as such, no reliance can be placed upon the identification of the accused made by this witness in the court for the first time, in the absence of any test identification parade. He also referred to the duty slip proved on the record, by Chandi Ram, Duty Clerk, PW-4. According to him, as per that slip, the accused was to start with the bus at 5.20 p.m. It was not possible for him to reach at the place of accident at 6.15 p.m., which is at the distance of 100 Kms from Chandigarh. Therefore, it cannot be said that it was the bus of the accused, which was involved in this accident. To counter these arguments of the counsel for the accused, it has Crl. Revision No. 516 of 2005 -5- been submitted by State counsel that even if Ramesh Pal, complainant,PW-3, turned hostile in the court, even then there is statement of Madan Lal, HC, PW-1, which is sufficient to sustain the conviction of the accused, as he categorically stated that it was the accused, who by driving the bus rashly and negligently, caused the death of Roshal Lal. That witness had the opportunity to see the accused at the time of accident and, as such, reliance is to be placed on his testimony so far as the identification of the accused is concerned, though he identified him in the court for the first time. Reliance is to be placed on his statement even in the absence of any test identification parade. No doubt, as per the duty slip, the bus was to start from Chandigarh at 5.20 p.m. but there was every possibility that the accused started the bus before that time. It stands proved from the evidence produced by the prosecution that it was bus No. HR-39 7080, on which the accused was deputed as a driver, which was involved in this accident. Ramesh Pal, PW-3, was one of the material witnesses of the prosecution, as it was he who set the criminal machinery in motion in this case by making statement Ex. PW3/A before the Investigating Officer. He did not support the prosecution case in the Court. He came out with the version that he had come to the spot after the accident itself and he never witnessed the accident with his own eyes. No doubt, it has been stated by Bharat Lal ASI, PW-8, that this witness had made the statement, Ex. PW3/A before him and after admitting the contents thereof, put his signatures thereon, but that fact was never put to this witness by Assistant Public Prosecutor, after he was given an opportunity to put leading question to him, after he was declared hostile. When his statement Ex. PW3/A was put to him, he admitted his signatures but denied that such statement was made by him before the police. Assistant Public Prosecutor himself suggested to this witness that the police Crl. Revision No. 516 of 2005 -6- had obtained his signatures on a number of blank papers, and that suggestion was admitted by him. If that was the stand of the prosecution then, how, in view of the statement of Bharat Lal, ASI, DW-8, and denial of this witness, it can be held that the statement Ex. PW3/A was made by this witness. The prosecution examined the other alleged eye witness; namely, Madan Lal, PW-1, who supported its version in the court. However, from the evidence produced in defence by the accused, the presence of this witness at the spot becomes highly doubtful. He was employed as Head Constable and this fact was not denied at the time of arguments that he was posted in Kurukshetra District on the date of the accident. In order to make his presence at the spot probable, he stated during his cross examination that on the date of accident, he was on leave. He stands totally contradicted by the records of his office, which were produced in the court by Baldev Singh, Constable, DW-1. As per those records, he was not on leave on that date. He had a motive to depose in favour of the prosecution, as it was admitted by him during his cross examination that the deceased was from his village and was from his caste. Even if, for arguments sake, it is assumed that this witness was present at the spot at the time of the accident even then, it cannot be held that the bus, at the time of accident, was being driven by the accused. It is not his statement that accused was known to him previously also. He had seen the accused for the first time on the date of the accident and thereafter had identified him in the court for the first time. Admittedly, no test identification parade was held during the investigation. It is not his statement that the bus was slowed down or stopped at the place of the accident. He himself stated that the bus was being driven at a very fast speed and after the accident, the accused fled away from the spot along with the bus. Then how it can be said that he was in a position to note the distinctive features of the accused so as to enable him Crl. Revision No. 516 of 2005 -7- to identify him in the court for the first time. The identity of the accused does not stand established from the evidence produced by the prosecution. Therefore, the accused is given the benefit of doubt. The revision petition is hereby accepted. The conviction and sentence of the accused is set aside and he is acquitted of the offences under Sections 279 and 304-A IPC. The fine, if already paid, be refunded to him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE February 16, 2011 PARAMJIT