IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1807 of 2006 Date of Decision:25.11.2011 Jagmohan Singh alias Jaswinder Singh .... Petitioner Versus State of U.T., Chandigarh .... Respondent CORAM: Hon'ble Mr. Justice Kanwaljit Singh Ahluwalia Present: Mr. D.S. Sandhu, Advocate for the petitioner. Mr. D.D. Sharma, Advocate for U.T. Chandigarh. **** 1.Whether Reporters of Local Newspapers may be allowed to see the judgment? 2.To be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? KANWALJIT SINGH AHLUWALIA J.(Oral) The petitioner was tried in a case arising out of FIR No.387 dated 20.8.2002 registered at Police Station Sector-39, Chandigarh under Sections 279/304-A IPC by the Court of Judicial Magistrate Ist Class, Chandigarh. The charges against the petitioner are that on 20.8.2002 at about 7.25 a.m. in the area of Bus Stand Maloya, Chandigarh, he was driving a school bus bearing registration No.PB-12-E-8110 in a rash and negligent manner and thereby caused the death of Ajra. As such, the petitioner was tried for the offence under Sections 279/304-A IPC. The petitioner had pleaded not guilty. The prosecution case was unfolded by Ravi Kumar-PW-4 in a statement on the basis of which formal FIR Ex.PW-2/D was registered. This witness stated that he was resident of Maloya Colony and was engaged in the business of clothes. On 20.8.2002, his niece aged about 17 years was going to school on a bicycle. She was student of 10+1. The petitioner was following her. When his niece Criminal Revision No.1807 of 2006 -2- Ajra, deceased reached Maloya Chowk near Maloya Bus Stand, opposite the Balmiki Temple at about 7.25 a.m. a school bus came at a very high speed being driven in a rash and negligent manner. The bus colluded with his niece due which she died. The driver of the bus disclosed his name as Jaswinder Singh son of Dayal Singh resident of village Jandpur, Tehsil Kharar District Ropar. The driver of the bus was apprehended at the spot. The prosecution examined Ravi Kumar-complainant as PW-4. Ravi Kumar- complainant had not supported the prosecution case as he stated in the Court that the person present in the Court is not the one who was driving the bus. Another eye witness namely Subhash PW-5 had also not supported the prosecution case as he was declared as hostile. In his cross examination, he stated that neither the accident had occurred in his presence nor had he seen the accused at that time. The Court of Judicial Magistrate Ist Class, Chandigarh stated that even though the eye witnesses turned hostile but part of their evidence can be relied upon to hold that the accused was guilty of the offence. The findings given by the trial Court read as under: “12. I have given considered thought to the arguments of the learned counsel for the accused and thereafter, I find it without any force. While appearing as PW4-Ravi Kumar complainant specifically stated that the bus was being driven by the accused in a rash and negligent manner and the same hit the cycle of Ajra, due to this accident, the injured was crushed under the front tyre of the bus. He further identified the driver of the bus present in the Court. Similarly, PW-5- Subhash also stated that Ajra was crushed under the bus. He Criminal Revision No.1807 of 2006 -3- also identified the driver of the bus in the Court. Though both these witnesses turned hostile regarding taking the possession of the documents from the accused but as far as the occurrence is concerned, both these witnesses have deposed categorically that it was the accused who was driving the vehicle rashly and negligently and by this act of rash and negligent driving, he caused the accident and killed Ajra-injured. Accordingly, the hostile nature of these witnesses regarding some of the points does not make the case of the prosecution doubtful. Accordingly, this point of determination is decided in favour of the prosecution and against the accused.” The lower Appellate Court concurred with the above-said finding and held as under: “Even if PW-4 Ravi Kumar was declared hostile at the request of the PP for not supporting its case in entirety yet the testimony of PW Ravi Kumar cannot be thrown out altogether for not having supported whole of the case of the prosecution. It is well settled that testimony of a hostile witness can still be taken into consideration as much as it is in consonance with the case of prosecution and inspires confidence in the Court. The ld. Counsel for the accused has tried to find faults in the claim made by PW-4 Ravi Kumar in his statement Ex.PW2/A that Ajra was his niece but in his statement as PW-4 Ravi Kumar has reiterated of having informed the police that Ajra was his niece on Criminal Revision No.1807 of 2006 -4- humanitarian grounds as he knew Ajra's family for the last 4-5 years and for this reason, I do not find it to be a ground to disbelieve Ravi Kumar. Said Ravi Kumar has introduced himself to be unmarried and without there being any reason to say so the accused has gone to the extent of suggesting that Ravi Kumar has married mother of Ajra. When Ashfaq Khan, brother of Ajra appeared as PW-9, the accused could not gather courage to suggest Ashfaq Khan that his mother has married Ravi Kumar. The fact that Jagmohan Singh was arrested at the spot is amply borne out from the memo of his personal search Ex.PW2/H, notwithstanding denial of PW-4 Ravi Kumar and Ashfaq Khan to admit this aspect because the accused has not given any other version of his arrest other than the one projected by PW ASI Sarwan Singh. Admission of Ravi Kumar of some other persons having assembled to rescue the injured before he reached cannot be read so as to mean that Ravi Kumar did not witness the accident.” As per the evidence of PW4-Ravi Kumar and PW-5-Subhash, it is clear that Ravi Kumar has stated that the accident was caused by a bus bearing registration No. PB-12-E-8110, which was coming from the side of Bus Stand Maloya. The following line in examination in chief is to be noticed “Accused-driver of the bus is today present in the Court was driving the bus” later he stated that the accused was not present at the spot and he was declared hostile. That being so, it cannot be said that the relevant portion of the evidence of the hostile witness cannot be relied upon. Criminal Revision No.1807 of 2006 -5- Since two courts below have appreciated the evidence which is incriminating to the accused, no ground is made out to cause interference. Learned counsel for the petitioner, in the alternate, has made a statement that the petitioner at the time of accident was 34 years old and a period of more than 9 years have passed and the petitioner has been facing protracted trial since then. It is further submitted that the petitioner is a sole bread earner of his family and has committed no offence before or after the registration of the present case. It is further stated that the petitioner is ready and willing to compensate in monetary terms which can provide some solace to the family of the deceased. Taking into consideration the age of the petitioner, his antecedents, sufferance of protracted trial as well as the fact that he is ready and willing to compensate the family of the deceased, this Court is of the view that no useful purpose would be served by sending the petitioner behind the bars, who has already undergone according to the learned counsel for the petitioner 3 months of actual sentence. As such, the sentence of the petitioner is reduced to the period already undergone subject to enhancement in the payment of fine to Rs.35,000/- as compensation to be paid to the family of the deceased. The said amount shall be deposited within 3 months from the date of receipt of a certified copy of this order, failing which no benefit of reduction in sentence will be accrued to the petitioner. The amount of fine, if any, deposited earlier under the directions of this Court shall be adjusted. In view of this, the present petition is disposed of. 25.11.2011 ( Kanwaljit Singh Ahluwalia) rajeev Judge