Crl. Revision No. 816 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 816 of 2005 Date of decision: February 23, 2011 Gobind Singh ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. PPS Duggall, Advocate, for the petitioner. Mr. PS Paul, DAG, Punjab. GURDEV SINGH, J. The petitioner/accused, Gobind Singh, was the driver on bus of New Akal Land and United Transport Company, bearing registration No. PB-10V-9777. The marriage of Jugraj Singh of village Malke was fixed for 18.10.1999. Lachhman Singh complainant/injured (PW-1), Jita Singh (PW- 2) and Jaswant Rai deceased were also members of the marriage party. These persons, alongwith 2/3 members of the marriage party, were proceeding to village Hans Kalan, District Ludhiana in the Jeep bearing registration No. DL-ICC-0418. At about 6 p.m. when they had covered some distance from Police Station Mehna towards Moga, the accused came driving the said bus at a fast speed and struck the same in their jeep, as a Crl. Revision No. 816 of 2005 2 result of which the occupants thereof received injuries and Jaswant Rai succumbed to those injuries, while he was being removed to the hospital. On receiving the information about this accident, Santokh Singh, ASI (PW- 2) went to Civil Hospital, Moga and at that place he recorded the statement of the complainant Ex. PA. After recording the police proceedings Ex. PA/1, he sent the same to the police station, on the basis of which formal FIR Ex. PC was registered against the accused under Sections 279, 304-A, 337 and 427 IPC. The ASI prepared the inquest report Ex. PD in respect of the dead body of the deceased and sent the same for post-mortem, which was conducted by Dr. Vijay Kumar Goyal (PW-4), who found ante-mortem injuries on the same and gave his opinion that the cause of death was the injury to the vital organ/brain, which was sufficient to cause death in the ordinary course of nature. The bus and the jeep involved in the accident were impounded and the documents thereof were taken into possession. The same were mechanically tested on 19.10.1999 by Jaswant Singh, Mechanic (PW-3), who found those to be in mechanical order but found the dents on the front side thereof. About those tests, he gave reports Exs. PH and PJ. In the course of investigation, the accused was arrested and after completion of the investigation, challan was put in before the Judicial Magistrate Ist Class, Moga. The JMIC charged the accused for the offences under Sections 279, 304-A and 337 IPC, to which he pleaded not guilty and claimed trial. The prosecution examined Lachhman Singh (PW-1), Santokh Singh ASI (PW-2), Jaswant Singh (PW-3), Dr. Vijay Kumar Goyal, (PW-4), Dr. V.J.S. Dhillon (PW-5) and Jeeta Singh (PW-6), for proving the guilt of the accused. After the evidence was concluded by the prosecution, the Crl. Revision No. 816 of 2005 3 accused was examined by the trial court and his statement was recorded under Section 313 of the Code. All 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 and false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence. After going through the evidence, so produced and hearing Assistant Public Prosecutor for the State and the learned defence counsel for the accused, the JMIC convicted the accused of the aforesaid offence, and sentenced him as under:- 1 Gobind Singh (i) to undergo rigorous imprisonment for a period of three months under Section 279 IPC and to pay fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of fifteen days; (ii) to undergo rigorous imprisonment for a period of one year under Section 304A IPC and to pay fine of ` 1000/-, in default thereof to further undergo rigorous imprisonment for a period of one month; (iii) to undergo rigorous imprisonment for a period of three months under Section 337 IPC and to pay fine of ` 500/-, in default thereof to further undergo rigorous imprisonment for a period of fifteen days; Against that judgment of conviction, the accused preferred an appeal, but the same was dismissed by the Additional Sessions Judge, Moga, vide judgment dated 11.4.2005. Now the present revision has been preferred against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the accused Crl. Revision No. 816 of 2005 4 that no finding was recorded either by the trial court or the appellate court that the bus, at the time of the accident, was being driven in a rash and negligent manner. The driving of the vehicle on the G.T. Road at a fast speed does not amount to driving the same rashly and negligently. Even in the rough site plan, so prepared by the Investigating Officer, the place of accident has been shown in the middle of the G.T. Road. In these circumstances, the accused could not have been convicted for the offences under Sections 279, 337, and 304-A IPC and sine quo non for the commission of those offences is that causing of death or injury must be as a result of rash and negligent act of the accused. This court, while exercising revisional jurisdiction, cannot re-appreciate or re-appraise the evidence and it is only to go through the findings so recorded by the trial court and the appellate court and to decide whether those findings can be upheld or not. He has also challenged the finding recorded by the trial court and the appellate court regarding the identity of the accused on the ground that the accused was identified in the court for the first time. In the last, he submitted that if the conviction of the accused is to be maintained, he be given the benefit of probation as no previous conviction was proved against him and no reason whatsoever was recorded for not extending the benefit of probation to him. There is no denial of the fact that the trial court in its judgment did not record a categorical finding that the accused caused death of Jaswant Rai and the injuries to others by driving the bus rashly and negligently. However, it was specifically mentioned in the judgment that Lachhman Singh (PW-1) made a statement to that effect and that there was nothing on record to disbelieve the testimony of that witness. Re-appreciation and re- Crl. Revision No. 816 of 2005 5 appraisal of the evidence is permissible, in exercise of revisional jurisdiction, in order to determine if the findings of the trial court or appellate court are perverse or illegal or based on no evidence or misreading of evidence. The statement of Lcahhman Singh (PW-1) makes it very clear that this accident was caused on account of negligent driving of the bus by the accused. The position was made clear by him during the cross- examination, which was conducted by the accused, when he stated that the accused was driving the bus at a very fast speed and struck the same in their jeep. The accused himself suggested to him during the cross-examination that before the accident, the Jeep was being driven at its left side of the road and the bus was also being driven on the left side of the road. He admitted that fact. In the very next sentence, it is stated that when the bus came near the jeep, the driver of the jeep in order to save himself took it to the extreme left side and as a result thereof half of the jeep was taken to kacha portion of the road and it was right side of the bus which was struck against the jeep. In these circumstances, there was every possibility of the Investigating Officer having shown the bus in the middle of the road. The respective position of the vehicles was not shown by him in the rough site plan, though he was required to show the same. For that omission of the Investigating Officer, the prosecution is not to suffer. It was stated by that Investigating Officer during the cross-examination that he went to the place of accident but he did not find any sign of accident. Then how he recorded the place of accident in the rough site plan. The finding is to be recorded on the basis of the statement of Lachhman Singh that this accident took place on account of rash and negligent driving of the bus by the accused. He was sitting on front seat of the jeep when it was taken to the extreme left side of the road. Crl. Revision No. 816 of 2005 6 The accused could have avoided the accident if he was not driving this bus negligently and at a very fast speed. It is not the case of the prosecution that after arrest of the accused, test identification parade was held for getting him identified from the complainant and the other witnesses. It is an admitted fact that after the accident the accused was identified by the complainant in the court for the first time. In the present case, it can not be said to be a weak type of evidence. It was stated by the complainant during his cross-examination that after the accident, the accused stayed at the spot and disclosed his name also. Thus, he had sufficient opportunity to interact with the accused and to note his distinctive features. In those circumstances, reliance was to be placed on the identification made by him in the court, though for the first time. No ground is made out for interfering in the findings recorded by the trial court and the appellate court. Accordingly, the conviction of the accused is hereby upheld. The accused may not be a previous convict but only on that ground the benefit of probation cannot be given to him. That is only one of the factors to be taken into consideration by the court. It has also to look into the nature of the offences, the circumstances in which the same were committed and the position of the accused in life. As a result of the culpable act of the accused, a precious life was lost and injuries were caused to two other persons. He was not taking proper care while driving the bus on the highway and the circumstances of his driving were harsh. In these circumstances, no compassion can be shown to such like person who put the lives of other in peril, while driving the motor vehicle rashly and negligently. He does not deserve leniency at the hands of the court and is Crl. Revision No. 816 of 2005 7 required to be dealt with deterrently. I do not think it is proper and expedient to release him on probation. The revision is dismissed accordingly. Accused be taken into custody to serve the remaining sentence. Records of the trial court be returned forthwith. February 23, 2011 (GURDEV SINGH ) prem JUDGE