Crl. Revision No.793 of 2005 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revision No. 793 of 2005 Date of decision. 21.04.2010 Dina Nath s/o Ranjit Singh r/o H.No. 224, Sarai Pipilthala, New Delhi, now r/o H.No. 267, Sarai Pipilthala, Adarsh Nagar, New Delhi. ....... Petitioner Versus State of UT, Chandigarh ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present:- Mr. Puneet Sharma, Advocate(Amicus-Curiae) for the petitioner. Mr. Hemant Bassi, APP for U.T. Chandigarh. Sham Sunder, J. This revision-petition is directed against the judgment dated 01.03.2005, rendered by the Court of Additional Sessions Judge, Chandigarh, vide which it dismissed the appeal against the judgment dated 22.1.2002, rendered by the Court of Judicial Magistrate Ist Class, Chandigarh, vide which it convicted the accused (now revision-petitioner) for the offences, punishable under Sections 279 and 304-A of the Indian Penal Code, and sentenced him to various terms of imprisonment. Crl. Revision No.793 of 2005 --2-- 2. On 24.4.1999 at about 10.45 PM Gulshan Kumar, a Vendor of Betel Leaves and Cigarettes, came to Ramesh Kumar, complainant, at his Tent House, situated in Sector 23, Chandigarh. Both of them decided to proceed towards Sector 37, Chandigarh, on their respective scooters and set out for the journey. Gulshan Kumar was on his scooter bearing registration No. CH-01-II-4927 and was going a little ahead of the scooter of Ramesh Kumar. When they reached at the junction of Sectors 36-37, Chandigarh, Gulshan Kumar, gave a signal for taking a turn towards his right side, and thereafter turned his scooter towards that side. In the meanwhile, a bus bearing registration No. DL-IPA 2828 came from behind in a rash or negligent manner. The bus struck against the scooter of Gulshan Kumar, as a result whereof, he was run over by the same. The driver of the offending bus, abandoned the bus, at the site, and fled therefrom. Ramesh Kumar, with the help of others removed Gulshan Kumar, from beneath the bus. He sent Gulshan Kumar to Post Graduate Institute in a vehicle and himself rushed to inform his (Gulshan Kumar) family members about the accident. When Ramesh Kumar and others reached PGI, they came to know that he (Gulshan Kumar ) succumbed to the injuries, sustained by him, in the accident. The matter Crl. Revision No.793 of 2005 --3-- was brought to the notice of the Police, as a result whereof, an FIR was registered. The statements of the witnesses were recorded. Site plan of the place of accident was prepared. The accused was arrested. After the completion of investigation, the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 279 and 304-A of the Indian Penal Code, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial. 4. The prosecution, in support of its case, examined, Ramesh Kumar, complainant-eye witness,(PW1), Dr. Meenu Sasan, AMO, General Hospital, (PW2), Inderpal Singh, Head Constable, (PW3), Paramjit Singh, Constable,(PW4), Vachaspati, Traffic Inspector, (PW5), Ram Dhari, Sub Inspector,(PW6), and Harbhajan Singh, Sub Inspector, (PW7). Thereafter, the Assistant Public Prosecutor for the State, closed the prosecution evidence. 5. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. It was further stated by him, that he was falsely Crl. Revision No.793 of 2005 --4-- implicated, in the instant case. He, however, did not lead any evidence in his defence. 6. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, an appeal was preferred by the appellant, which was dismissed by the Court of Additional Sessions Judge, Chandigarh, vide its judgment dated 01.03.2005. 8. Still feeling dis-satisfied, the instant Crl. Revision Petition, has been filed by the revision petitioner. 9. I have heard the Counsel for the parties, and have gone through the documents, on record, carefully. 10. The Counsel for the revision-petitioner, submitted that the identity of the accused as the driver of the vehicle, at the relevant time, which allegedly struck against the scooter of Gulshan Kumar, was not proved. He further submitted that the name of the accused was not mentioned by Ramesh Kumar, in his statement. He further submitted that even the description of the accused, as the driver of the bus, was not given by Ramesh Kumar in his statement. He further submitted that since Ramesh Kumar was not earlier known to the accused, he Crl. Revision No.793 of 2005 --5-- could not possibly, identify him especially when he saw him only for a split second. He further submitted that the statement of Vachaspati, Traffic Inspector, (PW5), that the accused was deputed as a driver of the bus bearing registration No.DL- IPA/ 2828 on route from Delhi to Baijnath, was not sufficient to prove that it was the accused, who was driving the bus at the relevant time. He further submitted that, even it was not proved by the prosecution beyond a reasonable doubt that the driver of the vehicle, which allegedly struck against the scooter of Gulshan Kumar, was rash or negligent, in driving the same. He further submitted that, as per the evidence, Gulshan Kumar took a sharp turn towards his right side, when the bus, in question, struck against him. He further submitted that it was for Gulshan Kumar to see the vehicles coming from both the sides before taking turn, to his right side, so as to avoid any sort of accident. He further submitted that the mere fact that a heavy vehicle struck against the scooter, could not be said to be sufficient, that the driver, thereof, was rash or negligent. He further submitted that even the presence of Ramesh Kumar, complainant-cum-eye witness, at the time of the alleged accident, was highly improbable. He further submitted that the Courts below did not properly read the evidence and Crl. Revision No.793 of 2005 --6-- appreciate the same, and, therefore, fell into a grave error, in recording conviction and awarding sentence. 11. On the other hand, the Counsel for the respondent submitted that, no doubt, the name of the accused, as driver of the bus, in question, was not mentioned in his statement before the Police by Ramesh Kumar, as he was not expected to know the same, yet he identified him in the Court for the first time. He further submitted that the statement of Vachaspati, (PW5), Traffic Inspector, Delhi Transport Corporation, proved the duty chart of the accused and according to the same, he(accused) was the driver of the bus, at the relevant time. He further submitted that the presence of Ramesh Kumar, complainant- cum-eye witness, at the time of accident, stood duly proved. He further submitted that the Courts below, rightly convicted and sentenced the accused-petitioner. 12. After giving my thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, in my considered opinion, it is a fit case, in which the revision petition, should be accepted, for the reasons to be recorded hereinafter. It is settled principle of law, that this Court cannot interfere with the concurrent findings, recorded by the Courts below, until and unless, it comes to the conclusion, that the Crl. Revision No.793 of 2005 --7-- same were based on complete mis-reading of evidence or mis- appreciation thereof, or non-consideration of the material piece of evidence. First coming to the identity of the accused at the time of alleged accident, as the driver of the bus, in question, it may be stated here, that the evidence produced by the prosecution, could not be said to be trust-worthy. Ramesh Kumar, complainant, is the only eye witness, in the instant case. He did not name the accused, in his statement, made first in point of time, before the Police, on the basis whereof, the FIR was recorded. He also did not give description of the driver of the bus. The driver of the bus was not arrested at the spot, but he allegedly absconded . It was not at all possibly by Ramesh Kumar, to identify the accused properly, especially when he had only his glimpse at the time he was allegedly driving the bus. No identification parade, was held, by the Investigating Officer during the course of investigation, to pin- point the identity of the accused. The statement of Vachaspati, (PW5), Traffic Inspector, Delhi Transport Corporation, that as per the duty chart, the accused was supposed to be at the steering of the bus, at the relevant time, could not be said to be sufficient that he(accused) was driving the bus at the relevant time. Vachaspati, (PW-5) was not Crl. Revision No.793 of 2005 --8-- present at the time of the alleged accident. Only the person, who was driving the bus, at the relevant time, could be fastened with criminal liability, for causing the accident. Who was at the steering of the bus, at the relevant time, is not known. No passenger of the bus was examined to prove the identity of the accused. The criminal case, is required to be proved beyond a reasonable doubt. The Courts cannot act on mere conjectures, surmises and suppositions. In these circumstances, identification of the accused, for the first time, in the Court, by Ramesh Kumar, could not be said to be sufficient to fasten the criminal liability, upon him. It is, therefore, held that the prosecution miserably failed to prove the identity of the accused, as the driver of the bus, which allegedly struck against the scooter , resulting into the death of Gulshan Kumar. The Courts below, were wrong in recording findings to the contrary. 13. Now coming to the next question, as to whether, Ramesh Kumar was present, at the spot or not, it may be stated here, that the prosecution also miserably failed to prove his presence, at the time of the alleged accident. Had Ramesh Kumar been present, at the spot, as soon as, the accident took place, he would have himself immediately accompanied Crl. Revision No.793 of 2005 --9-- Gulshan Kumar, injured to the PGI. He did not accompany him. After accompanying him to the PGI and getting him admitted there, he could certainly give a telephonic message to the family members of Gulshan Kumar, or could go to inform them. His first duty was to provide the best medical aid to Gulshan Kumar. He also did not meet the Police party at the site of the accident and was brought to the scene 3-4 hours after the accident. The persons who allegedly took Gulshan Kumar to the PGI, was not examined, Why Ramesh Kumar did not go to the Police immediately after allegedly informing the members of the Gulshan Kumar, about the accident, is not known. Where he spent 3-4 hours, after the accident, is not known. Why he did not come to the place of accident, immediately, after allegedly informing the family members of Gulshan Kumar, is not known. The conduct of Ramesh Kumar, complainant-cum-eye witness does not fit in with the normal human behaviour. The presence of Ramesh Kumar, at the time of the alleged accident, therefore, did not stand proved beyond a reasonable doubt. It appears that he was introduced lateron, just with a view to provide strength to the case of the prosecution. The Courts below did not take into consideration, this aspect of the matter, as a result whereof, they fell into a Crl. Revision No.793 of 2005 --10-- grave error, in recording conviction, and awarding sentence. 14. The next question, that arises for consideration, is as to whether, the driver of the vehicle, which struck against the scooter of Gulshan Kumar, was rash or negligent. At what speed the vehicle was being driven, at the relevant time, was not deposed to by Ramesh Kumar. No other evidence, was also produced, that the bus was being driven, in a rash or negligent manner. According to the prosecution story, Gulshan Kumar , suddenly took a sharp turn, towards his right side. The bus was already coming. He did not see the vehicles, which were coming, on the road, before taking the turn. It was required of him to satisfy himself, as to whether, any vehicle was coming on the road from either side. If the bus was coming at a normal speed, and all of a sudden, a person entered the road and takes a sharp turn, towards the right side, resulting into accident, then the driver of the heavy vehicle, could not be said to be rash or negligent.The mere fact that the bus, being a heavy vehicle, struck against the scooter, it could not be presumed that the driver thereof,was rash or negligent. The prosecution miserably failed to prove that the driver of the bus, was rash or negligent,in driving the same, resulting into accident, and leading to the death of Gulshan Kumar. The Crl. Revision No.793 of 2005 --11-- Courts below were wrong, in holding to the contrary. The judgments of conviction and the order of sentence of the Courts below, are,thus, liable to be set aside. 15. For the reasons, recorded above, the instant revision-petition, is accepted. The judgments of conviction and the order of sentence of the Courts below, are set aside. The petitioner shall stand acquitted of the charge, framed against him. If the petitioner is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case. (SHAM SUNDER) JUDGE April 21,2010 dinesh