Crl. Rev. No.1935 of 2002 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.1935 of 2002 Date of Decision: 05 - 5 – 2010 Sukhminder Singh through L.Rs. .....Petitioner v. State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Ms.Rakhi Sharma, Advocate for the petitioner. Mr.J.S.Bhullar, AAG, Punjab. *** KANWALJIT SINGH AHLUWALIA, J. Sukhminder Singh was named as accused in a case FIR No.141 dated 7.9.1996 registered at Police Station Sadar Abohar, under Sections 304-A, 427, 338, 337 IPC. The Court of Sub Divisional Judicial Magistrate, Abohar found the petitioner guilty of offence under Sections 279, 304-A IPC vide judgment dated 2.11.2001 and vide separate order dated 3.11.2001 sentenced him as under:- Name of the accused Offence Sentence Sukhminder Singh U/s 279 IPC RI for six months & to pay Rs.500/- as fine and in default to further undergo RI for one week. Crl. Rev. No.1935 of 2002 [2] U/s 304-A IPC RI for two years and to pay Rs.2000/- as fine and in default to further undergo R.I. for one month. Both the sentences were ordered to run concurrently. Aggrieved against the same, an appeal was filed. The Court of Additional Sessions Judge, Ferozepur dismissed the appeal and maintained the conviction and sentence vide judgment dated 5.9.2002. Hence, the present revision petition. During the pendency of the present revision petition, Sukhminder Singh petitioner expired on 28.12.2006. Sukhjinder Kaur widow, Beant Kaur daughter, two other minor daughters and a minor son filed an application to continue with the revision petition as legal representatives of the deceased-accused-petitioner. That application was allowed. On 7.9.1996 ASI Harbans Singh along with other police officials was present in Police Post when a questy was received from Moharrir Head Constable, Sadar, Abohar that one lady named Dimple, a person named Vijay Kumar and another unidentified person had been admitted in Civil Hospital, Abohar in an injured condition. ASI Harbans Singh reached Civil Hospital, Abohar where the doctor disclosed that injured Dimple had been referred to Civil Hospital, Ludhiana. Vijay Kumar son of Hans Raj and Ramesh Kumar son of Hira Lal residents of Fazlika had died in Civil Hospital, Abohar. Surinder Kumar son of Hans Raj was present along with the dead bodies who got recorded his statement Ex.P11, on the basis of which formal FIR Ex.P15 was registered. Surinder Kumar stated that he was a resident of Fazilka. He Crl. Rev. No.1935 of 2002 [3] along with his brother Vijay Kumar and his family were going to meet their sister Vinod Kumari wife of Parshotam Mohan at Malout from Fazilka. In Maruti Car No.HR-24-B-8298 Vijay Kumar along with his wife Vanita alias Dimple, son Kakku aged about 3 years and daughter Guddu aged about 4½ years were passengers and Ramesh Kumar son of Hira Lal resident of Fazilka was the driver. Another car No.PCV-523 was driven by complainant Surinder Kumar. In his car Inder Dev Kukkar son of Harbans Lal and Paramjit son of Mahant Ram Sharma, residents of Fazilka were traveling. Car of Vijay Kumar was going ahead, followed by the car of complainant. When they crossed Village Balluana, then from front side one bus belonging to P.R.T.C. Bathinda II Depot, bearing registration No.PB-11-A-9249 came at a very high speed. Driver of the car in which Vijay Kumar was sitting slowed down his vehicle. Complainant also slowed down his vehicle. But driver of P.R.T.C. Bathinda II Depot at a very high speed, in a rash and negligent manner had hit the car of Vijay Kumar, due to which car was badly damaged. A girl aged 5-6 years resident of Balluana who was standing on the side of the road was also crushed beneath the bus. Complainant and others went near the car of Vijay Kumar and found that both the children of his brother Vijay Kumar, son Kakku and daughter Guddu had died in the car and his brother Vijay Kumar and driver Ramesh Kumar had suffered multiple injuries. Vanita wife of Vijay Kumar due to injuries suffered by her had become unconscious. The girl who was standing on the road side and had suffered injuries also died. At that time, it was about 1.00 P.M. Complainant and others brought Vijay Kumar, his wife Vanita and driver Ramesh Kumar in injured condition in another car to Civil Hospital, Abohar where Vijay Kumar and driver Ramesh Kumar were Crl. Rev. No.1935 of 2002 [4] declared dead. Driver of the bus of P.R.T.C. Bathinda II by driving the bus at a very high speed in a rash and negligent manner caused loss of lives and damaged the car. The above-said FIR was investigated and report under Section 173 Cr.P.C. was submitted. The Court of Sub Divisional Judicial Magistrate, Abohar on 5.2.1997 charged Sukhminder Singh for having committed offence under Sections 279 and 304-A IPC. The charge stated that on 7.9.1996 at 1.00 P.M. in the area of Village Balluana, accused Sukhminder Singh drove bus No.PB-11-A-9249 rashly and negligently on the public way so as to endanger human life and caused the death of Vijay Kumar, Ramesh Kumar, Vanita, Kakku, Guddu and Rekha Rani. Prosecution commenced its evidence. Dr.Ramesh Kumar PW1 on 7.9.1996 at 5.40 P.M. conducted the post-mortem of Vijay Kumar. On the same day at 5.50 P.M. autopsy on the dead body of Ramesh Kumar was conducted. At 6.00 P.M. autopsy on the dead body of Rekha Rani was conducted. According to the doctor all these persons had died due to injuries suffered by them in the accident. Surinder Kumar complainant appeared as PW3. He reiterated as to what was stated in his statement Ex.P11. In cross-examination he stated that they had left Fazilka at 11.30/11.45 A.M. Inder Dev Kukkar PW2 was not related to him. He was going to Malout in order to see his sister. There was no function in the house of his sister on that day. 7.9.1996 being Saturday was a working day. They were not invited by their sister at lunch. This witness stated that he was going to Malout to meet his customers as he was running a factory making utensils. The car in front of him had slowed down. The bus at first had hit the girl standing on the road Crl. Rev. No.1935 of 2002 [5] side. This witness had seen the bus hitting the girl from a distance of 250/300 feet. They were the first persons to reach the accident site. The witness had not rushed after the driver but had attended the injured. He had brought Vijay Kumar and Vanita in his car to the hospital. Driver Ramesh Kumar was brought to the hospital in a jeep. This witness came to know the name of the accused when a deputation of drivers met his family at Fazilka to mourn the death of his brother and family members. Inder Dev Kukkar another eye witness appeared as PW2 and corroborated the statement of Surinder Kumar PW3. This witness had also attested the inquest proceedings. In cross-examination, it was stated by Inder Dev Kukkar PW2 that he had got no particular relationship with Surinder Kumar complainant. He was owner of the petrol pump and the complainant was having his account with him. He was going to Malout to purchase parts for the truck of Paramjit but when they were going to leave Fazilka, Surinder came at the petrol pump to get the petrol. He told that he was going to Malout and asked them to accompany him in his car, otherwise the witness alongwith Paramjit had to travel in his own car. Both the cars were driven at the speed of 60 Kilometer per hour. However, this witness was not able to tell the speed on which the bus was driven. The parents of girl Rekha who died at the spot were also present at the spot. After the accident the bus was on the left side of the road and the car was on the right side of the road. This witness stated that he came to know the name of the driver of the bus when he received summons from the Court. Dr.R.S.Attwal PW4 stated that on 7.9.1996 vide endorsement Ex.P1/1, he had informed the police that Vijay Kumar had already expired. He also informed vide endorsement Ex.P2/1 to S.H.O., Police Station Sadar, Crl. Rev. No.1935 of 2002 [6] Abohar regarding admission of Vijay Kumar, Dimple and an unknown person who have been brought dead. ASI Harbans Singh PW5 proved various facets of the investigation. Dr.L.C.Thakral PW6 had conducted autopsy on the dead body of Guddo aged about 4½ years female child, daughter of Vijay Kumar and Kaku aged about 3 years son of Vijay Kumar. According to the doctor, they died due to injuries suffered by them. Chand Ram PW7 proved photographs Exs.P27 to P34 and negatives Exs.P35 to P42. Hans Raj, Mechanic PW8 proved the test mechanical reports of the bus No.PB-11-A-9249 and car No.HR-24-B-8298 as Exs.P43 and P44. PW9 Vishlesh Kumar, PW10 HC Major Singh were the attesting witnesses to the recovery memos. ASI Davinder Pal Singh PW13 was deputed to get the post- mortem conducted on the dead body of Vanita @ Dimple. Raj Kumar PW11 and Harminder Singh PW12 employees of P.R.T.C. Bathinda II proved that the accused was deputed on the offending bus as driver. They proved yard control register Ex.PW12/1. From their statements, it has been proved that Sukhminder Singh had commenced the journey from Bathinda to Abohar at 11.00 A.M. Dr.S.K.Sharma PW14 had conducted the autopsy on the dead body of Vanita @ Dimple. Thereafter the prosecution closed its evidence. Statement of the accused was recorded under Section 313 Cr.P.C and all incriminating circumstances were put to him. He denied the Crl. Rev. No.1935 of 2002 [7] same and pleaded false implication. In defence Krishan Kumar was examined as DW1. This witness stated that he was the passenger of the bus. At the place where the accident took place, the bus was stopped for de-boarding of the passengers. A Maruti car came in a rash and negligent manner and had crushed the girl aged 6/7 years. The driver became perplexed and went away from the road towards right hand and struck against the tree due to which passengers of the car received injuries. The trial Court held that from the testimonies of officials of the P.R.T.C., it stood proved that accused Sukhminder Singh was the driver of the bus. This fact was also corroborated by DW1. Relying upon the testimonies of witnesses PW3 Surinder Kumar and PW2 Inder Dev Kukkar, the Court held the accused guilty of rash and negligent driving and convicted and sentenced him as stated above. The Appellate Court also held accused Sukhminder Singh to be the driver of the bus and reposed confidence and trust in the testimonies of Inder Dev Kukkar PW2 and Surinder Kumar PW3. The Appellate Court also noticed that in the statement made by the accused under Section 313 Cr.P.C., he denied the accident but defence witness Krishan Kumar DW1 stated that at the time of accident the bus was there at the spot and the driver of the car had hit the girl and thereafter hit the trees. The Court had not accepted the argument that from the rough site plan Ex.P16 it is proved that it was driver of the car who was driving the vehicle rashly and negligently. I have heard Ms.Rakhi Sharma, counsel for the petitioner and Mr.J.S.Bhullar, Assistant Advocate General, Punjab. In the present case, the occurrence had taken on 7.9.1996 at Crl. Rev. No.1935 of 2002 [8] 1.00 P.M. Statement of Surinder Kumar PW3 was recorded at Civil Hospital, Abohar at 4.30 P.M. FIR was registered at Police Station Sadar Abohar at 4.50 P.M. In the accident Rekha Rani daughter of Raj Kumar resident of Balluana had also died. According to Inder Dev Kukkar PW2, the parents of deceased Rekha Rani were standing at the spot. Parents of Rekha Rani have not been examined as witnesses. Raj Kumar father of Rekha Rani was cited as a witness. Raj Kumar was given up as unnecessary by the Additional Public Prosecutor on 28.5.1998. According to the prosecution, Raj Kumar father of Rekha Rani was an eye witness. He was the main independent witness. No other person from the site of accident has been examined as eye witness. A perusal of Ex.P12 sent to S.H.O., Police Station Sadar Abohar reveals that dead bodies of Dimple, Vijay Kumar and unknown persons were brought by Des Raj son of Fauja Singh resident of Village Trobrhi, Tehsil Fazilka at 1.30 P.M. on 7.9.1996. Therefore, two witnesses examined by the prosecution PW2 Inder Dev Kukkar and PW3 Surinder Kumar complainant had not surfaced till 1.30 P.M. Complainant Surinder Kumar PW3 is the real brother of Vijay Kumar. Surinder Kumar had stated in his statement Ex.P11 that he was following the car of Vijay Kumar along with Inder Dev Kukkar and one Paramjit. In Ex.P11 it was stated that they were going to meet their sister at Malout. In cross- examination PW3 Surinder Kumar disclosed that there was no function at the house of his sister at Malout. There was no special occasion for the two brothers to visit their sister Vijay Kumari at Malout. Surinder Kumar PW3 could not stick to his version in his cross-examination and changed the track by saying that on that day he was going to meet his customers at Malout as he was having a utensil factory at Ladhuka. They were not invited by the Crl. Rev. No.1935 of 2002 [9] sister at lunch. Following portion of the cross-examination is necessary to be noticed to determine whether the presence of Surinder Kumar PW3 at the spot was probable or not:- “We left Fazilka at 11.30/11.45 AM. Inder Dev, PW is not related to me. I was going to Malout in order to see my sister. There was no function in the house of my sister on that day. It is a working day on 7.9.1996 being Saturday. On that day we were not invited at lunch by my sister. Volunteered I had a Bartan Factory at Ladhuka and I some time visit Malout in order to meet my customers. I was going to meet my customers on that day. Inder Dev and Paramjeet met me at the Petrol Pump and were going to Malout for their own work. They had requested me Again said I had told them that I am going to Malout and as they were also to go to Malout....” There was no specific reason for the witnesses to follow the car of Vijay Kumar. It seems that accident of the car in which Vijay Kumar was traveling had taken place at the spot. At that time, PW2 Inder Dev Kukkar and PW3 Surinder Kumar were not present at the spot. It was later on when the information regarding the accident was relayed, they were introduced as witnesses. Having doubted the presence of the witnesses, this Court will venture to examine the documents relied by the prosecution. A perusal of photographs Exs.P27 to P34 reveals that the car had hit the tree and bus was also standing there. The car was not on its right side. The case of the prosecution is that the bus was coming from the opposite side. If that was so, how the car had gone towards the side from which the bus was coming. In the photographs, it is evident that front grill Crl. Rev. No.1935 of 2002 [10] of the bus is damaged from the middle. Car has left the road and after leaving the berm had hit the tree. Car is seen coming from opposite direction of the bus. The photographs justify the version given by DW1 Krishan Kumar, a passenger of the bus. The mechanical test report Ex.P43 reveals that the bus was in a running condition and had no mechanical defect. Its steering and breaks were found in order. Its front grill was broken from the left side, whereas mechanical test report Ex.P44 pertaining to the car reveals that the car was badly damaged, therefore, the mechanical defect could not be checked. From the rough site plan Ex.P16, it is evident that near the place of occurrence, there was a Dhabha of one Jaswant Singh. No person from the Dhabha has been examined as a witness. In the rough site plan, the car is shown at point `A' and the bus at point `B'. The distance between the bus is 5½ feet (one karam). The bus was going towards Abohar. Therefore, it was on its own side. The car had to go to Malout. In no way, it can be comprehended as to how the car went towards wrong side at point `A'. Therefore, the explanation furnished by Surinder Kumar PW3 is that the car had been pushed back by the bus to a distance of 30/40 feet after the accident. After the accident the bus had pushed the car to its left side. It in no way seems justifiable. Therefore, the documents relied upon by the prosecution also prove fault of the car driver. Once this Court doubts the presence of PW2 Inder Dev Kukkar and PW3 Surinder Kumar, there was nobody to explain as to how the accident had taken place, especially when the documents also belie the prosecution case. In view of the discussion made above, the present revision petition is allowed. As a matter of abundant caution, the accused is granted Crl. Rev. No.1935 of 2002 [11] the benefit of doubt and acquitted of the charge. ( KANWALJIT SINGH AHLUWALIA ) May 05, 2010. JUDGE RC