Crl. Rev. No. 1935 of 2004 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH * * * * * Crl. Rev. No. 1935 of 2004 Date of decision : April 30, 2010 * * * * * Sukha Singh ............Petitioner Versus State of Punjab ...........Respondents * * * * * CORAM: HON'BLE MR. JUSTICE JORA SINGH * * * * * Present: Mr. V.K Shukla, Advocate for the petitioner. Mr. Kirat Singh Sidhu, DAG, Punjab. * * * * * JORA SINGH, J. Sukha Singh son of Shangara Singh was sent up for trial by the Station House Officer, Police Station, Zira on the allegation that on 19.5.1998 at about 4:30 p.m, he was driving canter bearing Engine No. 4-D-31-C-70840735 and Chassis No.14-EC-70848018 rashly and negligently and the same was struck against the scooter of Rajnish. In the accident, Harvinder Singh had succumbed to his injuries on the spot. Rajnish received multiple grievous injuries and later on had succumbed to his injuries. FIR No.95 dated 19.5.1998 Crl. Rev. No. 1935 of 2004 [2] under Section 279/304-A, 427 IPC was registered at Police Station Zira in view of the statement of Sarabjit Singh dated 19.5.1998. Vide judgment of conviction and order of sentence dated 8.1.2003, petitioner was convicted under Sections 279, 304-A IPC and was sentenced as under: I) To undergo rigorous imprisonment for two years and to pay a fine of Rs.500/- under Section 304-A IPC. In default of payment of fine, to further undergo rigorous imprisonment for a period of two months . II)To undergo rigorous imprisonment for a period of two months under Section 279 IPC. Both the sentences were ordered to run concurrently Against the trial Court judgment dated 8.1.2003, appeal was preferred but the same was rejected vide judgment dated 15.7.2004. The prosecution story, in brief, is that on 19.5.1998, Sarabjit Singh, complainant was going from the side of Kot Ise Khan towards Zira. His brother-in-law Havinder Singh on a separate scooter with Rajnish on the pillion was also going towards Zira. At about 4:30 p.m, scooter driven by Harvinder Singh was 40-50 yards ahead of his scooter. When they were at a distance of one kilometer short of village Sukhewala, then they sighted one canter while coming from the front side. Canter was being driven rashly and negligently. Scooter driven by Harvinder Singh was on the correct side of the road. Another canter was also coming from the front side. While overtaking that canter, canter driven by Sukha Singh struck Crl. Rev. No. 1935 of 2004 [3] against the scooter of Harvinder Singh. After the accident, canter had overturned. Canter was owned by Angrej Singh, resident of Dharamkot, who was already known to Sarabjit Singh, complainant. Driver of the canter was also known to the complainant, but, at the time of accident, complainant failed to recollect his name. After the accident, driver had fled away from the spot. Harvinder Singh had succumbed to his injuries on the spot. Rajnish was shifted to civil hospital, Zira. Later on Rajnish had also succumbed to his injuries. After recording the statement of Sarabjit Singh on 19.5.1998, the same was sent to the police station, on the basis of which formal FIR was recorded. Surinder Mohan, ASI had gone to the spot. Inquest report was prepared. Dead body was sent to hospital for post mortem examination. Scooter no. PB-04F-4063 was taken into police possession vide memo attested by the witnesses. Canter was also taken into police possession vide separate memo attested by the witnesses. After the death of Rajnish, inquest report was prepared and post mortem examination was got conducted. Clothes worn by the deceased were taken into police possession vide separate memo attested by the witnesses. After the completion of investigation, challan was presented in the Court. Accused was charged under Sections 279/304-A IPC, to which the accused did not plead guilty and claimed trial. Prosecution examined ten witnesses. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. Accused denied Crl. Rev. No. 1935 of 2004 [4] all the allegations of the prosecution and pleaded to be innocent. Opportunity was given to lead defence but no defence was led. After hearing learned Public Prosecutor for the State, learned defence counsel for the accused and from the perusal of the evidence on the file, accused was convicted and sentenced under Sections 279, 304-A IPC 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 petitioner was not named in the FIR. No test identification parade was held. Owner of the canter was not examined to state that petitioner was driver of the canter at the relevant time. Learned counsel for the petitioner lastly argued that occurrence is dated 19.5.1998. At that time, petitioner was 22 years old and was the only bread winner of his family. Claim petition was filed by the LRs of the deceased and they got compensation from the Insurance company. Petitioner has already undergone imprisonment for a period of more than 4 months and requested to take lenient view. Learned State counsel argued that accident was on 19.5.1998. Owner and the driver of the canter were known to the complainant but at the time of accident, complainant became nervous and failed to disclose the name of the driver. Owner was not examined in defence to state that petitioner was not the driver of the canter. At the time of arrest, petitioner did not request to arrange test Crl. Rev. No. 1935 of 2004 [5] identification parade. First submission of the learned counsel for the petitioner was that as the petitioner was not named in the FIR and no test identification parade was held, hence identification of the petitioner in the Court for the first time is without any evidentiary value. But after going through the evidence on the file, I am of the opinion that submission of the learned counsel carries little weight. Evidence on the file shows that owner of the canter and driver were already known to the complainant. Complainant and the petitioner are from same area. Accident had taken place on 19.5.1998. After the accident, petitioner had fled away from the spot. Complainant when appeared in the Court then categorically stated that petitioner was driving the canter at the relevant time. If petitioner was not named in the FIR and he was not driving the canter at the relevant time then there was no idea to surrender on 25.5.1998. At the time of surrender, he could easily cover his face and request to arrange test identification parade but no request was made to arrange test identification parade. Owner of the vehicle not examined in defence to state that at the relevant time, petitioner was not the driver. Petitioner when examined under Section 313 Cr.P.C then simply stated that he is innocent and no accident had taken place. He has not stated that he was not driver of the canter which had met with an accident. He stated that owner and driver of the canter were already known to the complainant and the complainant while lodging report had stated that canter is owned by Angrej Singh resident of Dharamkot who was already known to him. Then stated that driver of the canter was also Crl. Rev. No. 1935 of 2004 [6] known to him but now he has forgotten the name of the driver. Occurrence was at about 4:30 p.m. Immediately, after the occurrence, statement of Sarabjit Singh was recorded. At 5:50 p.m, after endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. On the same day, supplementary statement of the complainant was recorded and in the supplementary statement, complainant has specifically named the petitioner. At about 4:30 p.m, complainant on separate scooter was following the scooter of the deceased. Deceased was only 40/50 yards ahead of the complainant. No suggestion to the complainant that he had not witnessed the occurrence. Only dispute is regarding identity of the driver of the canter. After the occurrence at 4:30 p.m, statement of the complainant was recorded at 5:50 p.m. So, within one and a half hour, police was not expected to contact the complainant to become a witness. Statement of PW-2, Sarbjit Singh is natural because he was serving in a Laboratory at Ferozewala. In the evening he was to return to his village. When presence of Sarabjit Singh at the time of accident is natural and within one and a half hour, he had named as to who is the owner of the canter and who was the driver then I am of the opinion that failure to arrange test identification parade is not fatal when the complainant and the petitioner are the residents of same area. If the petitioner was sure that he was not the driver then there was no idea to surrender. At the time of surrender, petitioner could cover his face and request to arrange test identification parade. But, no such request was made. Crl. Rev. No. 1935 of 2004 [7] When petitioner was not named in the FIR and police was not after him, then question arises as to what was the urgency to surrender. Accident was on 19.5.1998. At that time, petitioner was about 22 years old. He is the first offender and belongs to a poor family. He was a driver. Petitioner has already undergone sentence of about 4 months and 7 days. Petitioner has already suffered mentally and physically while appearing in the Court since 1998. Keeping in view the nature of offence and antecedents of the petitioner, I am of the opinion that ends of justice would be fully met if lenient view is taken. Petitioner is directed to undergo imprisonment already undergone ( 4 months and 7 days) and to pay Rs.50,000/- more payable as compensation in equal share to the LRs of the deceased. Payment is to be deposited within two months before the trial Court failing which revision petition would stand dismissed automatically. April 30, 2010 ( JORA SINGH ) ritu JUDGE