Crl. Rev. No. 1044 of 2001 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 1044 of 2001 (O&M) Date of decision:- 3.3.2011 Karambir ... Petitioner Versus State of Haryana ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Ram Chander, Advocate, for the petitioner. Mr. Shekhar Mudgal, AAG, Haryana. Gurdev Singh, J (oral) The petitioner/accused, Karambir, has preferred this revision petition against the judgment dated 10.7.2001 passed by Additional Sessions Judge, Karnal, vide which he dismissed the appeal preferred by the accused against the judgment dated 13.10.1999 passed by Judicial Magistrate, Ist Class, Karnal, convicting the accused for the offences under Section 279 and 304 IPC and sentencing him as under:- Under Section Sentence and fine 279 IPC To undergo R.I for six months and to pay a fine of `500/- and in default thereof to further undergo R.I for one month 304A IPC To undergo R.I for two years and to pay a fine of `1000/- and in default thereof to further undergo sentence for one month. The FIR, in this case, was registered on the basis of the statement of Hans Raj-complainant PW4. He came out with the version that on 19.10.1989 at about 12.00 noon, he was going to his fields situated in Village Brass on a scooter, which was being driven by him on the Kaithal Crl. Rev. No. 1044 of 2001 (O&M) -2- road. When he reached near the place from where the link road of Brass bifurcates, Om Parkash and Ombir came from the side of Village Brass on moped No. HNW 6515, which was being driven by Om Parkash. When they took a turn towards Nissing one young person came driving a tractor from the side of Nissing at a very fast speed. That driver on account of the fast speed could not control the tractor and struck the same in the moped of Om Parkash, as a result of which both the riders fell down and the back wheel of the tractor passed over Om Parkash and he died at the spot itself. Ombir also received injuries and was shifted to the hospital. After the registration of the case, the same was investigated by Rajbir Singh ASI. He went to the place of accident and after inspecting the same, prepared the rough site plan with correct marginal notes. He took the tractor and the moped into possession vide memos Ex.PW4/B and PW4/C. He prepared inquest report in respect of the dead body of Om Parkash and sent the same for post mortem examination. Ombir was medically examined by the doctor and three injuries were found on his person. The autopsy on the dead body of Om Parkash was performed by the doctor, who found ante mortem injuries and gave his opinion that the cause of death was shock and hemorrhage as a result of head injuries and all the injuries were sufficient to cause the death in the ordinary cause of the nature. Ombir died in the hospital on 21.10.1989. On the receipt of information ASI went to the hospital and prepared the inquest report in respect of the dead body and sent the same for post mortem, which was performed by the doctor who found ante mortem injuries on the same and gave his opinion that the cause of death was shock and hemorrhage due to head injury, which was sufficient to Crl. Rev. No. 1044 of 2001 (O&M) -3- cause death in the ordinary nature. In the course of investigation the accused was arrested and after completion thereof challan was put in before the Judicial Magistrate, Ist Class, who charged the accused for the offences under Sections 279 and 304A IPC, to which he pleaded not guilty and claimed trial. To prove his guilt the prosecution examined Jagdish Constable PW1,Gurmel Singh Constable PW2, Balbir Singh, ASI, PW3, Hans Raj PW4 and Sukhbir Singh PW5. After the conclusion of the evidence by the prosecution the accused was examined 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. He stated that neither he was owner nor the driver of the tractor and that he has been falsely implicated by Hans Raj,complainant, with the help of the police. He was called upon to enter on his defence and he examined Mahabir Singh DW1 in his defence evidence. I have heard learned counsel for both the sides. Learned counsel for the accused assailed the finding of conviction and sentence of the accused recorded by the trial Court and upheld by the appellate Court. He has submitted that the complainant while making a statement in the Court categorically stated that the driver of the tractor was known to him before the accident and had been coming to him for getting medicines for his animals and still he never disclosed the name of the accused in the statement made by him before the police. That omission in his statement was very material and cause goes to show that the accused has Crl. Rev. No. 1044 of 2001 (O&M) -4- been falsely involved in this case. He further submitted that the prosecution did not examine the investigating officer and his non-examination is fatal to it. No evidence was produced for proving that Om Parkash and Ombir died of the injuries received by them in the accident. No doctor was examined either to prove the injuries on their person or to prove that ante mortem injuries were found on their bodies, which were sufficient to cause their death. Therefore, the accused is entitled for acquittal. He also submitted that in case the conviction of the accused is to be maintained then he is to be released on probation as he had been facing trial for the last 12 years and is the only bread earner of his family. Learned State counsel tried to controvert these arguments raised by the counsel for the accused by submitting that the accused was duly identified in the Court by Hans Raj- complainant and in view of the fact that he was already known to him reliance is to be placed on his testimony. It was for the accused to show as to how he was prejudiced in is defence on account of the non-examination of the investigating officer. Therefore, his non-examination is not fatal. From the statement of the complainant itself it stands proved that the deceased had come on the link road from the side of Brass and while stepping on the main road, himself struck the moped in the tactor-trolley. On re-appreciation and re-appraisal of the evidence, while exercising the revisional Court jurisdiction, this Court has come to the conclusion that the findings recorded by the trial Court and upheld by the appellate Court are perverse, illegal and are a result of misreading of the evidence. The prosecution has relied on the sole testimony of Hans Raj PW4 so far the accident is concerned. During his cross-examination he has stated Crl. Rev. No. 1044 of 2001 (O&M) -5- that Om Parkash was the son of the sister of his father. Thus he is related to the deceased and being a relative his statement is liable to be scrutinised with care and caution. In the statement made before the police he deposed that both the deceased had come on the moped on the link road from the side of Brass and took turn towards Nissing, but while making his statement in the Court as PW4 he has stated that those deceased came on moped from the side of Brass and had been proceeding on the road on the left side at a slow speed when the tractor was struck in them by the accused by driving the same rashly and negligently and taking it on the wrong side of the road. In case his statement is read minutely, it becomes clear that the accident had taken place on the Kaithal road after the deceased had come on the link road from the side of Brass. Before stepping on the main road they were bound to take precaution and were to see on their left and right side in order to ensure that no vehicle was coming on the main road. The position was to be depicted by the investigating officer, who had the occasion to inspect the spot. The rough site plan so prepared by the investigating officer was filed along with the challan but he was not examined in the Court for proving the same. The circumstances in the present case are such that the accused has been materially prejudiced on account of the non-examination of the investigating officer. In the said rough site plan the tractor-trolley has been shown on the left hand side of the road whereas the dead body of Om Parkash and the moped are found lying in the middle of the road, just opposite to the link road which come from the side of Brass. From that rough site plan it becomes clear that the deceased came on the moped from the side of Brass and while stepping on the main road struck that moped in Crl. Rev. No. 1044 of 2001 (O&M) -6- the tractor-trolley. If the driver of the tractor-trolley had the duty to be cautious near the link road, the deceased had also the corresponding duty of taking the precautions before stepping on the main road and to see that no fast moving vehicle was moving on the main road. In these circumstances, it cannot be held that the accident had taken place on account of the sole negligence of the driver of the tractor. The name of the driver of the tractor was never disclosed by the complainant in his statement made before the police. He simply stated that one young boy was driving this tractor. In the Court he has stated that the driver of the tractor was already known to him as had been coming to him for getting medicines for his animals. In that eventuality he must have stated in the statement before the police that the driver of the tractor was already known to him. This is the improvement made by the complainant while making a statement in the Court and no reliance can be drawn thereupon. From that statement, in the absence of any test identification parade, it cannot be held that the identity of the driver of the tractor stands established. Therefore it is to be held that the findings recorded by the trial Court and the appellate Court are perverse and suffer from illegality. The conviction of the accused could not have been recorded on the basis of the evidence so produced by the prosecution. In the result, this revision petition is accepted. The conviction and sentence so imposed is set aside and fine, if already deposited, be refunded. Records be returned forthwith. March 3, 2011 (Gurdev Singh) tripti Judge