IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Revision No.1816 of 2003 Date of decision : 10.3.2009 Ram Parkash … Petitioner Versus State of Haryana …Respondent Coram : Hon’ble Mr.Justice A.N.Jindal. Present :- Mr.R.D.Bawa, Advocate for the petitioner. Ms.Rajat Goyal, AAG, Haryana. A.N.Jindal, J. This revision petition is directed against the judgment dated 11.8.2003 passed by Additional Sessions Judge, Yamunanagar at Jagadhri against the judgment dated 22/23.3.2001 passed by Judicial Magistrate, 1st Class, Jagadhri convicting the accused and sentencing him to undergo RI for a period of six months and to pay a fine of Rs.200/- for the offence under section 279 IPC and to further undergo RI for a period of two years and to pay a fine of Rs.1000/- for the offence under Section 304-A. However, in appeal, the sentence was reduced to 1-1/2 years without alternation in the sentence of fine. In nutshell, the prosecution version as unfolded during trial, is that Prabhunath, (hereinafter referred to as the “Complainant”), disclosed that he was working in the Sunrise Paper Mill, Aurangabad. On 2.7.1993 at about 11:30 a.m., he was going to Yamuna Nagar alongwith his nephew Rakesh Kumar aged about 13-14 years for making purchases. When they reached near the turning of Ishopur village, his nephew Rakesh Kumar after giving indication, turned his cycle towards the cycle shop for filling of air in the cycle tyres. In the meantime, Ram Parkash which driving a truck bearing Crl.Revision No.1816 of 2003 No.HR-3308 rashly and negligently came and struck with Rakesh Kumar. Resultantly Rakesh Kumar alongwith his cycle fell down and came under the front and rear tyres of the truck and was crushed. On the basis of the aforesaid statement Ex.PW5/A, FIR was registered under Section 279/304- A IPC against the petitioner. Charges against the petitioner under Sections 279/304-A IPC were framed to which he pleaded not guilty. In order to substantiate the charges, the prosecution examined Atma Parkash PW-1, Partap Narayan PW-2, Shiv Kumar PW-3, Dr.Prem Chand PW-4, HC. Satbir Singh PW-5, ASI Kuldip Singh PW-6. In his statement under Section 313 of the Code of Criminal Procedure, the petitioner denied the allegations and pleaded his false implication in the case. No evidence was led in defence. Ultimately, trial ended in conviction and his appeal also failed. Arguments heard and the record perused . Argument put forthwith by the learned counsel for the petitioner is that no person from nearby the shop or the shop keeper from the cycle shop was examined. The name of Partap Narayan PW-2, does not figure in the FIR and he being the uncle of the deceased could go to any extent in supporting the case of the complainant. According to PW-2, 50 people had gathered at the spot, but none has been examined. The petitioner was not even given a reasonable time by the deceased to apply his brakes while crossing the road. After coming from the road side, he suddenly came in front of the truck. Such an act on his part cannot be attributed to the petitioner for holding him rash and negligent. Having scrutinized the record, it transpires that the only eye witness to the occurrence is Partap Narayan, PW-2, who has stated that the 2 Crl.Revision No.1816 of 2003 truck came at a high speed due to which it struck against Rakesh Kumar. Though, he has stated that the petitioner was rash and negligent but he has not described as to in what manner he was rash and negligent. No reliance can be placed on his testimony. His presence at the spot appears to be doubtful, inasmuch as, had he been present at the spot, then the complainant must have introduced him as eye witness to the occurrence in the FIR. His statement having been recorded after a week, is of no consequence. Prabhu Nath the main eye witness who was following the deceased, has not been examined. He was the best witness to narrate the occurrence. No reasons as to why he was not examined, has been set forth. The other best witness in order to establish the case against the petitioner was the shopkeeper working in the cycle shop where Ramesh Kumar was to filling the air in the cycle tyres but he has also been withheld. Partap Narayan, PW-2 being the uncle of the deceased and his statement under Section 161 Cr.P.C. having been recorded after a week is an interested witness, introduced to strengthen the prosecution case. The circumstances surrounding the case also reveal that petitioner solely was not responsible for the accident. Admitted facts are that the petitioner was going on the main road and the deceased while on cycle came from the wrong side and suddenly tried to cross the road. It was not a permissible area for crossing the road. Nothing has been disclosed by Partap Narayan as to what was the distance between the truck and whether the deceased had watched on his right side before he crossed the road. On seeing the truck coming from the opposite side, it was the duty of the deceased to wait and watch and then cross the road. It appears that the deceased, on seeing the cycle shop, struck an idea to have filled air in the cycle tyres, immediately turned his cycle towards shop and was involved in the accident for which fault could not lay 3 Crl.Revision No.1816 of 2003 with the petitioner. Both the courts below have not made critical analysis of the factual scenario prevailing at the time of occurrence but they have been moved by emotions while holding the petitioner responsible for the accident, but factual fact and situation and circumstances were not taken into consideration by the courts below. As such, the interference in the impugned judgment has become inevitable. Resultantly, this petition is accepted and the impugned judgment is set aside. The bail bond and security bond furnished by the petitioner are discharged. The fine if any, deposited by him, be refunded. [ A.N.Jindal ] Judge 10 .03.2009 sd 4