Crl.Revision No. 184 of 2002 {1} In the High Court of Punjab and Haryana at Chandigarh Crl.Revision No. 184 of 2002 Date of Decision:December 08, 2009 Bachittar Singh ---Petitioner versus State of Punjab ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr. H.S.Gill, Senior Advocate, with Mr. K.B.S.Mann, Advocate, for the petitioner Mr.Abhishek Chautala, Asstt. Advocate General, Punjab. *** GURDEV SINGH, J. Petitioners-accused Bachittar Singh has preferred this revision petition against the judgment dated 15.1.2002 passed by Sh. Raj Shekhar Attri, Additional Sessions Judge, Jalandhar, dismissing the appeal filed against the judgment dated 15.9.2001 passed by Sh. S.K.Goel, Judicial Magistrate Ist Class, Jalandhar, vide which he convicted the petitioner for the offences under Sections 279 and 304-A IPC and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine Rs. 1000/- and in default thereof to further undergo rigorous imprisonment Crl.Revision No. 184 of 2002 {2} for six months under Section 304-A IPC and to undergo rigorous imprisonment for six months under Section 279 IPC. The prosecution story, in brief, is that on 30.4.1998, at about 5.30 p.m., Satpal Singh, deceased was going on his scooter bearing registration No. PB-08-P-6104 towards Reru Chowk from the side of Kartarpur and was followed on another scooter bearing registration No. PB -08-P-7582 by his brother-Amarjit Singh-complainant, PW-3. After collecting the money from Reru Chowk, they started back for vegetable market. When the deceased took a turn towards Amritsar road, the petitioner came driving truck No. PIB-7949 at a fast speed from the side of Pathankot road. By driving that truck rashly and negligently, struck the same in the scooter of his brother, as a result of which, he fell down and his head was crushed under the rear wheel thereof resulting in his death at the spot. The accused after passing through the crossing, parked his truck on one side and then escaped from the spot. This accident was also witnessed by Kashmir Singh, PW-4. The complainant accompanied by that Kashmir Singh was proceedings to police station to lodge a report, when Sewak Singh ASI, PW-7, met him in Reru Chowk. He made his statement Ex. PB to the ASI, who after making his endorsement Ex. PB/1 sent the same to the police station, on the basis of which, formal FIR Ex. PB/2 was recorded against the accused under Sections 279, 304-A IPC. Accompanied by the complainant, the ASI came to the spot. Manoj Kumar Rinku, Photographer, PW-6, was called to that place, who took the photographs Ex. P-1 to P-6, which were subsequently produced, along with negatives Ex. P-7 to P-11, before the police and were taken into possession vide memo Ex. PW6/A. The ASI inspected the spot and prepared the rough site plan Ex. PW7/A Crl.Revision No. 184 of 2002 {3} with correct marginal notes. The inquest report, Ex. PW7/B, in respect of the dead body of the deceased was prepared and the same was sent for post mortem examination to the hospital. The truck and the scooter involved in the accident were taken into possession vide memo Ex. PD. The registration certificate of that truck and the driving licence of the petitioner were recovered from the truck and were taken into possession vide memo Ex. PC. The autopsy on the dead body was performed on 1.5.1998 by Dr. Jasvir Singh, PW-1, who found ante mortem injuries on the same and gave his opinion that the cause of death was shock and haemorrhage resulting from those injuries, which were sufficient to cause death in the ordinary course of nature. After the post mortem, the wearing apparels found on the dead body of the deceased, were produced before the ASI, who took the same into possession vide memo Ex. PW7/D. The accused was arrested on 2.5.1998. After completion of the investigation, police report was submitted under Section 173 Cr.P.C. before the Judicial Magistrate Ist Class, Jalandhar, for the trial of the accused. Learned JMIC found prima facie case against the petitioner for the offences under Sections 279, 304-A IPC and charged the accused accordingly. He pleaded not guilty and claimed trial. To bring home the guilt of the accused, prosecution examined Jasvir Singh, PW-1, Malkiat Singh,PW-2, Amarjit Singh, PW-3, Kashmir Singh, PW--4, Sukhdyal Singh, PW-5, Manoj Kumar Rinku,PW-6 and ASI Sewak Singh, PW-7. After the evidence was closed by the prosecution, the accused was examined by learned JMIC and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him Crl.Revision No. 184 of 2002 {4} in the prosecution evidence were put to him in order to enable him to explain the same. He denied all the circumstance and pleaded his innocence and false implication. He was called upon to enter on his defence. He examined Maghar Singh DW-1 in his defence. After hearing Assistant Public Prosecutor for the State and learned defence counsel for the accused and going through the record of the case, learned JMIC convicted and sentenced the petitioner as aforesaid. The petitioner preferred an appeal against the conviction and sentence but the same was dismissed by learned Additional Sessions Judge. Notice of the revision was given to the State. I have heard learned senior counsel for the petitioner and Assistant Advocate General, Punjab, for the State and have carefully gone through the records of the case. Learned Senior counsel for the petitioner has assailed the conviction and sentence of the petitioner on the ground that the learned JMIC and the learned Additional Sessions Judge committed an illegality while placing reliance on the statements of the eye witnesses regarding the identity of the accused who was not known to them previously and who was not arrested at the spot itself. According to him, no reliance is to be placed on the identity of the petitioner made by the witnesses in the court for the first time. No test identification parade was held during the investigation for getting the petitioner identified from the witnesses. When the identity itself has not been established, he cannot be convicted or sentenced. He also submitted that in case this Court is not inclined to set aside the conviction of the petitioner, he be released on probation as he has been standing prolonged trial for all these years and no previous conviction was Crl.Revision No. 184 of 2002 {5} proved against him. He has placed reliance on Satpal vs. State of Haryana 2000(2) RCR (Criminal) 720 and Krishan Kumar vs. State of Punjab 2005(3) RCR (Criminal)579. On the other hand, it has been submitted by Assistant Advocate General, Punjab, that the eye witnesses examined by the prosecution duly identified the petitioner in the court as the same person, who was driving the truck at the time of accident. In addition to that the prosecution also examined the owner of the truck who has come out with a categorical statement that he was informed by the petitioner on the telephone that the truck has met with an accident. There is nothing on the record to conclude that the identity of the petitioner is not established. For such like offences, the petitioner cannot be released on probation. In Satpal’s case (Supra) some of the eye witnesses identified the accused as a driver of the truck in the court but it was not in their evidence that they were knowing the accused before the accident. The driver of the truck had ran away from the spot and was not taken to the police station by any of those witnesses. It was held therein that the absence of the test identification parade assumes importance and identification of the petitioner in the court by the witnesses will not serve the purpose of the prosecution. In the present case also, the petitioner was never apprehended at the spot nor was produced before the police by any of the witnesses. It is also a fact that no test identification parade was held and the petitioner was not known to any of the eye witnesses. However, they identified the petitioner in the Court as the same person, who was driving the truck at the time of the accident. In view of the above stated judgment of this court, on Crl.Revision No. 184 of 2002 {6} the basis of their statements it may be said the identity of the petitioner does not stand established. However, there is other evidence on the record for establishing the identity of the petitioner. Sukhdayal Singh, PW-5, has categorically stated that the accused was employed as a driver by him on the truck, in question, which was involved in the accident and he was informed by the petitioner, on telephone, that the truck has met with an accident. No doubt, he admitted during his cross -examination that the accused met him in the police station after 3-4 days of the accident and told him that he had been illegally arrested and no such accident was caused by him. He was never cross -examined on the aspect that the accused himself had told him on telephone that the truck has met with an accident. That part of the statement had not made unchallenged during cross -examination. From that evidence it stands proved that it was the petitioner who was the driver of the truck, in question , and the same had met with an accident. In these circumstances learned trial court and the learned Appellate Court were justified in recording a finding that the identity of the accused stands established. Therefore, the finding regarding the conviction of the accused cannot be set aside. Now, coming to the order of sentence. In Krishan Kumar’s case (supra) , the occurrence had taken place on 10.9.1985 and criminal revision was filed before this Court on 29.4.1991 and was decided on 25.5.2005. It was observed by the Single Bench that the sword had been hanging on the head of the petitioner for the last 14 years, which itself is a punishment. It was held by Hon’ble the Supreme Court in Dalbir Singh vs. Crl.Revision No. 184 of 2002 {7} State of Punjab 1980 Chandigarh Law Reporter 1 that a decision on the question of sentence, depending upon the facts and circumstances of a particular case, can never be recorded as a binding precedents much less “law declared” within the meaning of Article 141 of the Constitution so as to bind all courts within territory of India. Therefore, the petitioner cannot make any use of the above said judgment. It is one of the submissions of the learned counsel for the petitioner that the petitioner be released on probation as he has been under trauma of trial for so many years. Merely because the sword of conviction was hanging on the petitioner for so many years, cannot itself be made a ground for releasing him on probation. It was held by Hon'ble the Supreme Court in State of Karnataka v. Sharanappa Basnagouda Aregoudar 2002(2) RCR(Crl.) 271 that “if the accused are found guilty of rash and negligent driving, courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent effect on potential wrong doers and it should commensurate with the seriousness of the offence. Of course Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts, those might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to larger interests of society and it is needless to add that passing of sentence on the offender is probably the most public fact of the criminal jurisprudence.” In Dalbir Singh vs. State of Haryana 2000(2) RCR (Criminal) 817 it was held by Hon'ble the Supreme Court that the court cannot treat the nature of offence under Section 304-A IPC as attracting the benevolent provisions of the Probation of Offenders Act. The courts can Crl.Revision No. 184 of 2002 {8} can play an important role in lessening high rate of murder cases due to callous driving of automobiles.” In Rattan Singh vs. State of Punjab 1979 Crl. Law Times 404 for offence under Section 304 -A IPC the accused was sentenced to rigorous imprisonment for two years. That sentence was maintained up to the Hon'ble Supreme Court and it was held that when a life has been lost and circumstances of driving are harsh, no compassion can be shown. Recently, it has been held by Hon'ble the Supreme Court in B.Nagabhushannam v. State of Karnataka 2008 (3) RCR (Criminal) 50 that bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as attracting benevolent provisions of Section 4 of the Probation of Offenders Act.” Therefore, there is no question of releasing the accused on probation. There is no merit in this revision and the same is hereby dismissed. If the petitioner is on bail, he be taken into custody for undergoing the remaining part of his sentence. (GURDEV SINGH) JUDGE December 08, 2009 PARAMJIT `