In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No.1806 of 2003 Date of decision: February 19, 2010 Krishan Singh .. Petitioner Vs. State (U.T. Chandigarh) .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Ashok Sharma Nabhewala, Advocate for the petitioner. Mr. Ram Pal Verma, Advocate for Mr. Rajiv Sharma, Advocate for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 23.8.2003 passed by the learned Additional Sessions Judge, Chandigarh, dismissing the appeal filed by the accused-petitioner Krishan Singh (herein referred as 'the accused') against the judgment dated 10.4.2000 passed by the Additional Chief Judicial Magistrate, Chandigarh, convicting and sentencing him to undergo rigorous imprisonment for three months under Section 279 IPC; rigorous imprisonment for one year and to pay fine of Rs.500/- under Section 304-A IPC. In nut shell, the prosecution case is that on 24.2.1998, when ASI Mangal Singh of Traffic Police, after his duty hours , at about 6.15 p.m. was proceeding towards his house in Sector 27 and reached just ahead of chowk of Sector 27, 28, 29 and 30, Chandigarh and was just in the mid of the road dividing Sector 29/30 Chandigarh, he noticed that the accused while driving bus bearing registration No. CH01G5192 at a fast speed and in a rash and negligent manner struck the cyclist Balak Ram from behind. Resultantly, he became unconscious and was removed to hospital where he died. On receipt of wireless message, SI Hazura Singh reached the place of occurrence and recorded statement of the complainant on the basis of which FIR was registered. He also got the place of occurrence photographed, offending bus was taken into possession; got the autopsy on the dead body Crl. Revision No.1806 of 2003 -2- of Balak Ram conducted; and on completion of the investigation challan against the accused was presented in the court. Accused was charged under Sections 279/304-A IPC to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Amar Dass (PW1), Jagdev Kumar, Duty Clerk, CTU Depot No.1, Chandigarh (PW2), C.. Vinod Kumar (PW3), SI Sukhwinder Singh (wrongly mentioned as PW3), Mangal Singh complainant (PW4), SI Hazura Singh (PW5) and Dr. Kamaljit Singh (PW6). When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication. He further explained that the accident did not take place on account of his fault. Mangal Singh complainant was not present at the spot and he is a procured witness. In defence, he examined MHC Sukhwinder Singh (DW1). The trial ended in conviction. His appeal also failed. Arguments heard. Record perused. The contentions of the learned counsel for the petitioner are three fold : (i) The presence of Mangal Singh PW at the place of accident on 24.2.1998 at 6.15 p.m is doubtful; (ii) the prosecution has failed to prove the elements of rashness and negligence which is the major feature to prove the offence; and (iii) the identity of the accused has not been established. As regards the presence of Mangal Singh complainant at the spot is concerned, the learned counsel has taken me through the statement of C. Vinod Kumar (PW3) who has stated that when he reached the spot for taking the photographs of the site of accident, he did not see ASI Mangal Singh. Similarly, he has referred me to the statement of MHC Sukhwinder Singh No.1146, Traffic Staff, Sector 29, Chandigarh (DW1), who has stated that ASI Mangal Singh was on duty on the relevant date from 8.00 a.m. To 1.30 p.m. then from 3.00 p.m. to 7.00 p.m., at Railway Light Point, Manimajra Complex turn, Kishangarh turn and Railway crossing of Manimajra. The court could take judicial notice of the fact that the railway light point at railway crossing Manimajra is about 4-5 kms from the place of accident and the accident admittedly took place at about 6.15/6.30 p.m., therefore, certainly, he could not be present at the place of accident. Had Crl. Revision No.1806 of 2003 -3- he been present, then C. Vinod Kumar (PW3) would have disclosed about his presence. Not only this, from the ruqa Ex.PC signed by SI Hazura Singh, it is revealed that it was recorded at 7.30 p.m. As such, it is evident that ASI Mangal Singh reached the spot after duty hours were over. Consequently, SI Hazura Singh, finding no other way introduced him as complainant as well as an eye witness to the occurrence. Even otherwise, SI Hazura Singh having dominus over Mangal Singh could direct him to act on his command. While taking the case from another angle, it has come in evidence that SI Hazura Singh had reached the place of accident within minutes on receiving the wireless message. Had Mangal Singh been present at the time of accident, then he would have recorded his statement there and then and not at 7.30 p.m. Nothing has come on record to show that the accused was driving the offending bus bearing registration No.CH01G5192 at the relevant time. Though, it was the duty of the prosecution to explain that the accused was driving the bus at the time of accident, yet, it has failed to prove the same. Mangal Singh (PW4) has not stated if he had identified the accused and what was the occasion for him to identify the accused. He only states that a bus bearing registration No.CH01G5192 came but the name of the person driving the vehicle as Krishan Singh he came to know later. He did not explain in his statement if the accused was seen by him at the spot. He also did not state if Mangal Singh had come to him and he had identified him. As such, his identification for the first time in the court is of no significance. A doubt has been created about his identity by Jagdev Singh Duty Clerk, CTU Depot No.1 who disclosed that on 24.2.1998, Krishan Singh was the driver over the bus No.CH01G5192 and this bus had started from Chandigarh to Delhi at 4.40 p.m. This shows that Krishan Singh had gone with the bus at 4.40 p.m. for Delhi and the bus stand is not at a much distance from the place of accident, therefore, Krishan Singh could in no circumstances have been present at the chowk of Sector 27, 28, 29 and 30 at the time of accident. Onus lays heavily on the prosecution to prove that if some body other than Krishan Singh had taken the other bus at 4.40 p.m. and Krishan Singh had started the bus at 6.00 p.m. for Delhi or Krishan Singh had not taken the bus on that day at 4.40 p.m. but at 6.00 p.m. Crl. Revision No.1806 of 2003 -4- The matter does not end here. The testimony of Mangal Singh is not worth reliance as he states counter to the documentary evidence by disclosing that he was present at 6.15/6.30 p.m. at the place of accident, whereas, the records reveal that his duty was to be over at 7.00 p.m. Further he has also told a lie while speaking that his duty was from 8.00 a.m. To 6.00 p.m. As such his testimony regarding his presence at the time of occurrence does not inspires confidence. Now coming to the third point with regard to element of rashness or negligence on the part of the driver. Mangal Singh has not stated a word if the accused was rash or negligent in any manner. He states only that the accused was driving at a high speed. He does not explain as to what was the actual speed which could be termed as rash or from where some inference with regard to negligence could be attributed. The mere fact that the accused was driving the bus at fast speed is not sufficient to hold that he was either rash or negligent. Though, it was a heavy traffic road pedestrians cyclists and other vehicles were passing by, but no independent witness from the locality, who had witnessed the occurrence, was joined by the Investigating Officer and he remained satisfied only with the testimony of SI Mangal Singh who is not actually proved to be present at the place of occurrence as his duty was to be over only at 7.00 p.m. i.e. much later to the time of the accident. The trial court as well as the First Appellate Court appear to have not appreciated the aforesaid aspects of the case. The court has also not appreciated the evidence of MHC Sukhwinder Singh (DW1). As such, the accused appears to have been seriously prejudiced, resultantly, the impugned judgment is rendered invalid warranting interference by this court. Resultantly, I accept the revision petition, set aside the impugned judgment, acquit the accused of the charges framed against him and he is directed to be set at liberty forthwith. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded. February 19, 2010 (A.N. Jindal) deepak Judge