IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.106 of 2003 Date of Decision: May 18, 2010 Kishan Chand ..... Petitioner Versus State of Haryana ..... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH Present: Mr. R.P. Daaria, Advocate for the petitioner. Mr. Kshitij Sharma, AAG, Haryana. JORA SINGH.J Petitioner has filed this revision to impugn the judgment dated 10.01.2003 passed by Additional Sessions judge, Fatehabad. Vide the said judgment, appeal filed by the petitioner against the judgment dated 15.12.1998 and order of sentence dated 16.12.1998 passed by JMIC, Tohana, was dismissed. Petitioner was convicted under sections 279 and 304-A of Code Indian Penal and sentenced to undergo rigorous imprisonment for three months under section 279 and to undergo rigorous imprisonment for one year under section 304-A of Code Indian Penal. Both these sentences were ordered to run concurrently. The prosecution story, in brief, is that on 27.08.1992, police party headed by ASI Partap Singh in connection with patrol duty was present in the Civil Hospital, Jakhal. Statement of Darshan Singh @ Jattu was recorded. Darshan Singh reported that on 27.08.1992, at 8.00 a.m. he was present in his fields and was spraying pesticides in the paddy crops, adjoining to the metalled road leading from Jakhal to Talwara. He saw Dharma while coming from the side of Talwara. In the mean time, a Haryana Roadways bus, Fatehabad Depot, bearing registration no.HRT-5366 came from the back side, which was being driven rashly and negligently and without blowing horn, was struck against Dharma. Dharma was run over under the rear tyre of the bus and died on the spot. Bus was got stopped with great difficulty. The driver and the conductor of the bus had fled away from the spot by leaving the bus. Thereafter, Natha Singh, Sarpanch came to the spot. Dharma was shifted to Jakhal Hospital in the same bus. On inquiry, driver of the bus had disclosed his name as Kishan Chand. After preparing the inquest report, dead body was sent for post mortem examination. After post mortem examination, the dead body was handed over to the relatives of Dharma for cremation. Investigation Officer had gone to the spot and after inspection prepared the rough site plan. Bus (No. HRT-5366) was taken into possession vide recovery memo Ex. PW3/A. Kishan Chand accused was also arrested on the same day and his driving licence was also taken into possession vide recovery memo Ex.PW5/A. Bus was produced before the mechanic for mechanical test. After completion of the investigation, challan was filed. After compliance of section 207 of Cr.P.C., a notice of accusation for the offences punishable under sections 279 and 304- A of Indian Penal Code was served upon Kishan Chand, accused- petitioner, but he pleaded not guilty and claimed trial. Prosecution examined Darshan Singh, eye witness of the occurrence as PW1, Dr. S.S. Garg, as PW2, who conducted the post mortem examination on the dead body of Dharma and proved post mortem report Ex.PW2/A. The cause of death was shock and haemorrhage due to injuries No.2 and 3 and all the injuries were ante mortem in nature and sufficient to cause death in the normal course of nature. Natha Singh, Sarpanch appeared as PW3 and supported the version of Darshan Singh, PW1. Dayal Singh, PW4 had identified the dead body. PW5 Bir Singh, conductor of the bus stated that at the relevant time, petitioner was the driver of the offending bus, there was an accident but the driver was not at fault. Ramesh Lal, Duty Clerk as PW6, stated that the petitioner was the driver of offending bus bearing no. HRT-5366. SI Partap Singh, Investigating Officer appeared as PW7, narrated various steps taken in the investigation. Statement of accused-petitioner under section 313 Cr.P.C. was recorded. Defence version was that he is innocent and was falsely implicated. An opportunity was given to lead defence evidence but no evidence was produced. After hearing learned APP for the State and learned defence counsel for the accused-petitioner, the petitioner was convicted and sentenced by the trial court as stated aforesaid. I have heard learned counsel for the parties and have also perused the record carefully. Learned counsel for the petitioner argued that Darshan Singh is the complainant/eye witness and as per his statement, the accident took place at 8.00 a.m. Conductor, Bir Singh, PW-5 stated that the bus was being driven at normal speed but suddenly Dharma (deceased) came in front of the bus, Driver had tried his best to avoid the accident. Argued that the evidence on record was not rightly scrutinised by the Trial Court and First Appellate Court. Occurrence is dated 27.08.1992 and at that time, petitioner was 35 years old. He is a poor man. He is having three children and old mother to support. Petitioner remained in custody for 10 days. Counsel for the petitioner requested that lenient view be taken and he be directed to undergo imprisonment already. Learned State counsel argued that the occurrence is an admitted fact and the only dispute is whether deceased suddenly came in front of the bus or the accident was due to rash and negligent driving of the bus. He also submitted that the evidence on record was rightly scrutinised by the trial court as well as by the Appellate Court and revisional court is not to reassess or re-evaluate the evidence on the record. If there is any illegality or evidence was misread or a legal question is involved only then revisional Court is to interfere. Darshan Singh, complainant while appearing in the Court Stated that he was spraying pesticides in the paddy crops adjoining the metalled road. Dharma was seen while coming from the Talwara side. He was on the correct side of the road. In the meantime, bus came, which was being driven by the petitioner rashly and negligently and without blowing horn was struck against Dharma. Petitioner had disclosed his name as Kishan Chand on the spot but taking the benefit of the situation, he along with conductor had fled away from the spot. PW-5 Bir Singh was the conductor and stated that petitioner was the driver at the relevant time. Bus was at normal speed. Suddenly a person jumped before the bus. So from the statement of Darshan Singh and Bir Singh, one thing is clear that petitioner was driving the bus at the relevant time. In the accident, Dharma deceased had received multiple injuries and had succumbed to his injuries on the spot. Darshan Singh stated that driver had given horn when bus was at a distance of 50 feet from the place of accident. Secondly, the bus was in the middle of the road. As per prosecution story, Dharma was run over under the rear tyre of the bus. PW-3, Natha Singh is also one of the eye witnesses and in cross-examination admitted that bus was on the left side of the road at the relevant time. Bus had not struck against Dharma. No doubt there are minor discrepancies in the statements of witnesses but the discrepancies are not material. Discrepancies were bound to occur with the passage of time. In case the petitioner had given horn from a distance of 50 feet then he should have slowed down the bus. By giving a horn from a distance of 50 feet, bus was not to be struck against Dharma. According to the conductor, Dharma had jumped in front of the bus but this fact is not correct one because the petitioner has not stated a word when examined under Section 313 Cr.P.C that when he was driving the bus then suddenly one person had jumped before the bus. Bir Singh, conductor after issuing the tickets was expected to be on the backside of the bus. No case that he was issuing tickets. While issuing tickets standing in the bus, it was not possible that he had seen the deceased while jumping before the bus and if conductor was in front of the bus and was in a position to see a person while coming on the road then the petitioner should have stated that Dharma had jumped before the bus. In case Dharma had jumped before the bus then he should have been run over under front tyres of the bus. Evidence shows that Dharma was run over under the rear tyre of the bus. Natha Singh, PW-3 stated that he was going from Talwara to Jakhal in his Maruti Car. Bus no. HRT- 5366 was going ahead of him. Dharma was seen while going before the bus. Bus was being driven rashly and negligently by Kishan Chand and struck against Dharma, who was run over under rear tyre of the bus. That means conductor of the bus namely, Bir Singh tried to support the petitioner by saying that Dharma had jumped before the bus and the petitioner was not at fault. As discussed earlier, if petitioner had seen the deceased from the distance of 50 feet and horn was given then petitioner could easily stop the bus. But speed of the bus was not slowed down. Bus was struck against the deceased then the deceased was run over under the rear tyre of the bus. So, discrepancies in the statements of the PWs are not sufficient to ignore the prosecution story. When a person was seen from a distance of 50 feet while coming on the road then driver was under duty to be more cautious to slow down the speed to avoid accident. But in the present case, if Darshan Singh PW-1 rightly stated that horn was given from a distance of 50 feet then petitioner should not have struck the bus against deceased. After the occurrence, bus was got stopped with great difficulty. Conductor and the Driver had fled away from the spot after leaving the bus. If the petitioner was not at fault and had tried to avoid accident while giving horn from a distance of 50 feet then petitioner should have shifted the injured to the nearest hospital for medical aid. Instead of shifting the injured to the nearest hospital for medical aid, petitioner and the conductor had fled away from the spot by leaving the vehicle. In the same vehicle, Dharma was shifted to the nearest hospital by the complainant. So the conduct of the petitioner shows that bus was being driven rashly or negligently by the petitioner. The revisional Court is not to reassess or re-evaluate the evidence on the file. Court is to interfere if the evidence on the file was misread or some legal question is involved. All the discrepancies pointed out by the learned counsel for the petitioner were taken into consideration by the Courts below. Presence of the eye witnesses at the time of occurrence was natural. Darshan Singh was spraying pesticides in the paddy crops. Place of occurrence was near the fields of Darshan Singh. Second eye witness namely, Natha Singh was following the bus in his car. Natha Singh was the Sarpanch of Village Talwara. Deceased Dharma was from village of Natha Singh. Place of occurrence was in the area of Village Talwara. Natha Singh or Darshan Singh were not related to the deceased. No passenger appeared in defence to state that petitioner was not at fault. No evidence on the file that deceased was mentally upset. When the deceased was hale and hearty and was not mentally upset and was going on the correct side of the road then there was no question to jump before the bus. That means evidence on the file was rightly scrutinised. So judgment of the trial Court on the point of conviction is upheld. Next submission of the learned counsel for the petitioner was that petitioner was 35 years old at the time of occurrence. He is a poor man, having three children and old mother to support. Petitioner remained in custody for 10 days. Requested to release on probation. No doubt occurrence is dated 27.8.1992 and at that time petitioner was 35 years old. But the petitioner remained in custody only for 10 days. Dependants of the deceased, who was only 27 years old at that time, have not received even a single penny till today. After the accident, petitioner had fled away from the spot along with the conductor. Something could be said if immediately after the occurrence, an effort would have been made by the petitioner to shift the injured to the nearest hospital for treatment. Keeping in view all these facts, I am of the view that already lenient view was taken while awarding the sentence. For the reasons recorded above, there is no infirmity or illegality in the impugned judgment of the First Appellate Court and the same is upheld. Revision without merit is dismissed. Petitioner is on bail. Bail order is cancelled. Petitioner is directed to surrender before the jail authorities immediately to undergo remaining portion of sentence as ordered by the Court failing which the concerned authority is to take appropriate action as per law. (JORA SINGH) 18.05.2010 JUDGE sarita/ritu