Crl.Revision No.1081 of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Rev.No.1081 of 2003 Date of decision: 25.5.2010 Surinder Kumar ... Petitioner versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.S.N.Gaur, Advocate, for the petitioner. Mr.Kshitij Sharma, AAG, Haryana. ... JORA SINGH, J. Surinder Kumar son of Prem Chand was sent up for trail by the SHO, Police Station Shahabad, on the allegation that on 10.10.1994, near brick kiln of Village Deeg, there was an accident due to rash and negligent driving of Jeep No.DL-2CF-5753 by Surinder Kumar and in that accident, Sunil Kumar received grievous injuries. Sunil Kumar was shifted to the hospital and ultimately, on 13.10.1994, he had succumbed to his injuries, while lying admitted in PGI, Chandigarh. Prosecution story, in brief, is that Ravinder Kumar, owner of brick kiln,and Satpal were talking with each other on 10.10.1994 at about 5.30 PM, then sighted Scooter No.HR-01-C-1340, being driven by Sunil Kumar. In the meantime, Jeep No.DL-2CF-5753, driven by Surinder Kumar rashly and negligently, came from the side of Shahabad. Jeep was at a very high speed and without blowing horn was struck against Scooter No.HR-01- C-1340. In the accident, Sunil Kumar received injuries. Injured was shifted to Civil Hospital, Shahabad in the said jeep by its driver. Crl.Revision No.1081 of 2003 2 After admission of Sunil Kumar in the hospital, ruqa (Ex.PC) was sent to the police station at 7.10 PM. On receipt of ruqa, police party headed by HC Krishan Singh had gone to Civil Hospital, Shahabad. Opinion was sought from the doctor regarding fitness of the injured to make statement, but injured was declared unfit at 8.00 PM. Ravinder Kumar, eye witness, was present in the hospital then his statement was recorded and after making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. On 11.10.1994, patient was referred to PGI, Chandigarh, for treatment, but unfortunately on 13.10.1994, injured had succumbed to his injuries in PGI, Chandigarh. Intimation was sent to the concerned police station regarding death of Sunil Kumar. Investigating Officer came to PGI, Chandigarh. Inquest report was prepared. After postmortem examination on the dead body of Sunil Kumar, dead body was handed over to his relatives for cremation. Investigating Officer had gone to the place of occurrence. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. Scooter and jeep were also taken into police possession vide different memos. Both the vehicles were produced before the mechanic and got the same examined mechanically. After completion of investigation, challan was presented in the Court. Accused was charged under Sections 279/304-A IPC, to which he pleaded not guilty and claimed trial. Prosecution examined PW1 Satpal and PW3 Ravinder Kumar, complainant, both the eye witnesses. They stated on oath that they were present near the brick kiln on 10.10.1994 at about 5.30 PM. Sunil Kumar Crl.Revision No.1081 of 2003 3 was noticed while coming on Scooter No.HR-01-C-1340. In the meantime, Jeep No.DL-2CF-5753, came from Shahabad side, being driven rashly and negligently by Surinder Kumar. The jeep without blowing horn had struck against the scooter. In the accident, Sunil Kumar received injuries and he was shifted to the hospital. PW2 Dr.Sunil Kumar Midha had medico legally examined Sunil Kumar and found the following injuries on his person:- “1. Lacerated wound irregular shape on the left parietal region of scalp. Bone was exposed. Bleeding was present. X-ray was advised. 2. Lacerated wound 1.5 x 1.5 cms in size on the left eye brow. X-ray was advised. 3. Lacerated wound over the left angle of mandible. Bleeding was present. X-ray was advised. 4. Superficial incised wound 2.5 cms long skin deep on left side of cheek. 5. Multiple abrasions over the right knee were present.” PW4 Constable Ashok Kumar had mechanically tested both the vehicles. PW5 Prem Chand had taken the jeep on superdari. PW6 Balak Ram is the Photographer, and proved photographs (Ex.P1 to P4). PW7 Jai Pal is a formal witness. After the close of prosecution evidence as per the order of the Court, statement of the accused was recorded under Section 313 Cr.P.C.. He denied all the incriminating allegations appearing against him in the Crl.Revision No.1081 of 2003 4 prosecution evidence and claimed to be innocent. In defence, DW1 Baldev and DW2 Pawan Kumar appeared. After hearing learned PP for the State, defence counsel for the accused-petitioner and from the perusal of evidence on the file, Surinder Kumar was convicted under Sections 279/304-A IPC and sentenced to undergo SI for three months and to pay a fine of Rs.500/-, in default of payment of fine, to further undergo SI for one month under Section 279 IPC and to undergo RI for one year and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo SI for three months under Section 304-A IPC. Both the sentences were ordered to run concurrently. Judgment of conviction dated 10.7.2002 and order of sentence dated 12.7.2002 were challenged before the first Appellate Court, but vide impugned judgment dated 7.5.2003 rendered by Sessions Judge, Kurukshetra, appeal preferred by Surinder Kumar was rejected. I have heard learned counsel for the petitioner, State counsel and gone through the evidence on the file. Learned counsel for the petitioner argued that presence of Satpal and Ravinder Kumar at the time of occurrence is doubtful. Satpal is related to the deceased. Ravinder Kumar is also very much interested in the success of this case being close to Satpal. If the occurrence was in the presence of Satpal and Ravinder Kumar, then Satpal being relative of the deceased should have accompanied him to Civil Hospital, Shahabad, for treatment, but Satpal remained at the spot near the scooter. Ravinder Kumar, complainant, did not accompany the injured to Civil Hospital, Shahabad. Evidence shows that injured was shifted to the hospital in the Crl.Revision No.1081 of 2003 5 jeep by the petitioner. At the time of medico legal examination, name of the injured was not disclosed to the doctor. MLR shows that one unknown person was brought to the hospital by Surinder Kumar. When accident is in the presence of close relation, then first priority of the relation is to shift the injured to the nearest hospital for medical aid. Relation is not to stay on the spot simply to guard the vehicle. If the accident was witnessed by Satpal and Ravinder Kumar, then at the time of medico legal examination, they should have disclosed their names to the doctor. Injured was medico legally examined at 6.30 PM, whereas statement of the complainant was recorded at 8.15 PM. Statement is ante time. In fact, there was an accident with some other vehicle. Petitioner with some passengers came in a jeep and at that time, noticed the injured lying on the road while crying. On humanitarian ground, injured was shifted to the hospital by the petitioner. That is why, name of the petitioner was written by the doctor at the time of medico legal examination, but later on when the complainant came to know that injured was shifted to the hospital by the petitioner, then petitioner was named in the FIR. There are number of discrepancies which cannot be reconciled. PW Satpal stated that he did not accompany the injured to the hospital, whereas Ravinder Kumar stated that he along with Satpal had gone to Civil Hospital, Shahabad, on his motorcycle. Petitioner was arrested on 15.10.1994 and jeep was also taken into police possession, but Constable Ashok Kumar, Mechanic, stated that vehicles were mechanically tested on 14.10.1994. When evidence on the file was not rightly scrutinized and the evidence was misread, then revisional Court has the power to re-evaluate and re-assess the evidence on the file to opine whether the accident was due to rash and negligent driving of Jeep No.DL-2CF-5753 driven by the Crl.Revision No.1081 of 2003 6 petitioner or was with some other vehicle, and the petitioner had simply shifted the injured to the nearest hospital. Learned State counsel argued that occurrence was witnessed by Satpal and Ravinder Kumar. Ravinder Kumar is not related to the deceased. Sunil Kumar was shifted to the nearest hospital by the petitioner and this fact is clear from the statement of PW5 Prem Chand, who is father of the petitioner. Earlier to the occurrence, complainant party had no enmity with the petitioner. So, there was no reason to leave the real culprit and name the petitioner. Admittedly, petitioner was convicted and sentenced by the trial Court and against the judgment of conviction and order of sentence, appeal preferred by the petitioner was dismissed by the first Appellate Court. Revisional Court is not to re-assess or re-evaluate the evidence on the file. Impugned judgment of first Appellate Court is to be set aside if legal question is involved or the Court is of the opinion that evidence on the file was misread. Satpal and Ravinder Kumar are the eye witnesses. Both appeared as PW1 and PW3, respectively, and categorically stated on oath that they were present near the brick kiln, then sighted Sunil Kumar while coming on the scooter. In the meantime, jeep came from Shahabad side being driven rashly and negligently by Surinder Kumar. Without blowing horn, jeep was struck against the scooter driven by Sunil Kumar. Sunil Kumar received injuries and was shifted to Civil Hospital, Shahabad, in the same jeep by the petitioner. Accident was at 5.30 PM. Immediately after the accident, injured was shifted to Civil Hospital, Shahabad, by Surinder Kumar. Sunil Crl.Revision No.1081 of 2003 7 Kumar was admitted in the hospital at 6.20 PM and was medico legally examined at 6.30 PM. According to the MLR, one unknown person was brought to the hospital by Surinder Kumar. Sunil Kumar was on the scooter. There were number of passengers in the jeep and in the same jeep, Sunil Kumar was shifted to the hospital. Only grievance of the petitioner is that Satpal or Ravinder Kumar did not accompany Sunil Kumar to the nearest hospital. So, on account of failure of both the eye witnesses to accompany the injured to the nearest hospital, their presence is doubtful. But all these facts were taken into consideration by the first Appellate Court. Suggestion was given to the witnesses that injured was shifted to the hospital by the petitioner but petitioner when examined under Section 313 Cr.P.C. did not state a word that he had shifted the injured to the nearest hospital for medical aid. Prem Chand (PW5), who is the father of the petitioner, stated that on the day of occurrence, Jeep No.DL-2CF-5753 owned by him had met with an accident. Jeep was being driven by Surinder Kumar. PW5 has not stated a word that Surinder Kumar was not driving the jeep. If there was no accident with the jeep and Surinder Kumar while driving the jeep had simply shifted Sunil Kumar to the nearest hospital, then suggestion should have been put to the eye witnesses that jeep was being driven by some body else, but Surinder Kumar on humanitarian ground had shifted Sunil Kumar to the nearest hospital. In case, accident was with some other vehicle, then Prem Chand could easily state that when Surinder Kumar was going from Shahabad side, then injured was noticed lying on the ground and Surinder Kumar on humanitarian ground, had shifted Sunil Kumar to the nearest hospital. Crl.Revision No.1081 of 2003 8 Occurrence was on 10.10.1994. Petitioner was arrested on 15.10.1994. Jeep in question was also taken into police possession on that very day. But jeep was mechanically tested on 15.10.1994, whereas scooter of the deceased was mechanically tested on 14.10.1994. While appearing in Court, PW4 Constable Ashok Kumar, Mechanic, stated that he had mechanically tested the vehicles on 14.10.1994, but report on the file shows that jeep was mechanically tested on 15.10.1995 and scooter on 14.10.1994. Admittedly, Satpal and Ravinder Kumar did not accompany Sunil Kumar to the nearest hospital in the same jeep driven by Surinder Kumar, but Sunil Kumar was on a scooter and in the accident, scooter was damaged. Immediately after the occurrence, Satpal and Ravinder Kumar had gone to the hospital on motorcycle. When there were number of passengers in the jeep, then all were not to be accommodated. First priority is to shift the injured to the nearest hospital for medical aid. So, presence of Satpal and Ravinder Kumar is not to be doubted if they did not accompany Sunil Kumar to the nearest hospital in the jeep. Ravinder Kumar, who was not related to the deceased, was present near his brick kiln. Accident had also taken place near the brick kiln. So, presence of Ravinder Kumar was natural at the time of accident. If there was no accident with the jeep, then petitioner was required to explain how dent on the left side of the jeep was noticed at the time of mechanical test on 15.10.1994. No case of the petitioner that after 10.10.1994, jeep had met with an accident on 11.10.1994 or 12.10.1994. Dent on the left side of the jeep noticed by the Mechanic corroborates the prosecution story that occurrence was with the jeep driven by the petitioner. Suggestion was given to Satpal that jeep was going on its left side and the scooterist came to wrong side and struck with Crl.Revision No.1081 of 2003 9 the jeep. That means, petitioner admitted that there was an accident between jeep and scooter. Occurrence was at 5.30 PM. Statement of Ravinder Kumar was recorded at 8.15 PM. Petitioner is the resident of Village Kalal Majra, whereas, Sunil Kumar was the resident of Village Deeg. Immediately after the occurrence, Sunil Kumar was shifted to the hospital. After admission at 6.20 PM, ruqa was sent to the concerned police station at 7.10 PM. Without previous enmity, when Ravinder Kumar was not related to the deceased, then there was no idea to concoct the story to name the petitioner. Dr. Sunil Kumar Midha admitted that probable duration of injuries was within six hours. Bleeding was noticed in case of injuries No.1 to 3. Learned counsel for the petitioner argued that if accident was at 5.30 PM, then at the time of medico legal examination at 6.30 PM, doctor should have written that probable duration of injuries was within two hours, but submission of learned counsel for the petitioner seems to be not reasonable because doctor was not the eye witness. Eye witnesses gave the approximate time of accident. Doctor nowhere stated that probable duration of injuries was more than two hours. If doctor would have stated that probable duration of injuries was more than two hours, and the injuries were not possible within two hours, then defence version of the petitioner would have carried some weight that Sunil Kumar had received injuries earlier to 5.30 PM, i.e., the accident was with some other vehicle. Investigating Officer was not examined by the prosecution, and the reason for not examining the Investigating Officer was given that evidence was closed by the order. But due to non-appearance of the Investigating Officer, prosecution story is not to be doubted, because Crl.Revision No.1081 of 2003 10 Investigating Officer was not an eye witness. He had simply recorded the statement of the complainant and prepared inquest report. After inquest, dead body was sent for postmortem examination and after that, had prepared rough site plan with correct marginal notes. Statement of Investigating Officer was of formal nature. No prejudice was caused to the petitioner due to non-appearance of the Investigating Officer, because the case is based on the statements of eye witnesses. Both the eye witnesses have supported the prosecution story. Injuries noted on the person of the deceased were ante mortem in nature and sufficient to cause death in the ordinary course of nature. As per defence version, petitioner had shifted the injured to the nearest hospital on humanitarian ground but to solve the case, he was falsely named. But submission of learned defence counsel for the petitioner is not correct one when father of the petitioner categorically stated that on the day of occurrence, there was accident with the jeep. Secondly, the petitioner in his statement recorded under Section 313 Cr.P.C. did not state a word that while driving the jeep, when he had gone to the spot, then Sunil Kumar was noticed while lying on the ground in injured condition, and he (petitioner) on humanitarian ground had shifted Sunil Kumar to the nearest hospital. Defence version of the petitioner is that the case is false. Further, suggestion was given to the eye witnesses that there was an accident between the jeep and scooter. After that, question was that as to whether accident was due to rash and negligent driving of the jeep by the petitioner or due to the fault of the deceased. Defence version of the petitioner was also taken into consideration while appreciating the evidence on the file. Impugned judgment is to be set aside if the same is perverse Crl.Revision No.1081 of 2003 11 and against law and facts. But after going through the evidence on the file, I am of the opinion that evidence was rightly scrutinized by the trial Court. No question of misreading the evidence. Accident was due to rash and negligent driving of jeep No.DL-2CF-5753 by the petitioner. Impugned judgment on the point of conviction is upheld. Occurrence is dated 10.10.1994 and at that time, the petitioner was 28 years of age. He is the first offender. Petitioner has already undergone two months and twelve days out of actual sentence of one year awarded by the trial Court. Deceased was 18 years' old. Petitioner is to become hard criminal if again sent to jail to undergo remaining sentence. 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. Hence, I order the petitioner to undergo imprisonment already undergone (two months and twelve days) and deposit Rs.50,000/- more as compensation payable to the parents of the deceased. Rs.50,000/- is to be deposited within two months before the trial Court, failing which, revision would stand dismissed automatically. With this modification on the point of sentence, revision without merit is dismissed. 25.5.2010 ( JORA SINGH ) pk JUDGE