CRR No.828 of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No.828 of 2002 Date of Decision: 17th August, 2009 Sadhu Singh (now dead) through his Legal Representatives …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE HARBANS LAL Present: Mr.V.K.Shukla, Advocate for the petitioner. Mr.Arshvinder Singh, Deputy Advocate General, Punjab ** JUDGMENT HARBANS LAL, J. This revision is directed against the judgment dated 8.4.2002, whereby the learned Additional Sessions Judge, Moga dismissed the appeal filed by Sadhu Singh accused against the judgment/order of sentence dated 21.5.2001 rendered by the court of learned Judicial Magistrate, 1st Class, Moga, vide which he convicted and sentenced the aforesaid accused to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2,000/- under Section 304-A of IPC and in default of payment of fine, to further undergo rigorous imprisonment for three months and also sentenced him to undergo rigorous imprisonment for six months under Section 279 of IPC with a further direction that the substantive sentences shall run concurrently. CRR No.828 of 2002 2 Shortly put, the facts of the prosecution case are that on 26.8.1996 ASI Balbir Singh among other police officials happened to be present at Bus Stand of village Ajitwal in connection with patrolling, where he received an information that an accident has taken place between bus and tractor-trolley near village Chuhar Chak. On receipt of this information, he reached at the spot and came to know that the injured had been removed to the Civil Hospital, Jagraon. He went to the said hospital and recorded the statement of Lakhvir Singh injured, who stated that on that day at 5 A.M. they were going from village Sada Singh Wala to Nanaksar on tractor trolley being driven by Darshan Singh. He, his wife Swaran Kaur (now deceased) wife of Dalbara Singh, Piara Singh, Chhinderpal Kaur, Harbans Kaur and some other persons were sitting in the trolley. When the tractor- trolley reached ahead of village Chuhar Chak, then they stopped the same on the katcha berm of the road for urinating. Around 7.15 A.M. a bus bearing registration No. PB12A-8628 of Punjab Roadways, Moga Depot being driven by the accused came rashly and negligently and struck against their tractor-trolley from behind. As a result of its impact, the tractor-trolley got overturned. Swaran Kaur wife of Dalbara Singh received grievous injuries. He alongwith other persons also sustained injuries. On the basis of this statement, the case was registered. In due course of time, the accused was arrested. After completion of investigation, the charge-sheet was laid in the court for trial of the accused. The accused was charged under Sections 304A/337/279 of IPC, to which he did not plead guilty and claimed trial. On close of the prosecution evidence, when examined under Section 313 of Cr.P.C. the CRR No.828 of 2002 3 accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. After hearing the learned Assistant Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/sentence, he went up in appeal, which was dismissed by the court of learned Additional Sessions Judge, Moga as noted supra. Being undaunted and dissatisfied with the judgments recorded by both the courts below, he has preferred this revision. It is pertinent to point out here that during the pendency of this revision, the petitioner breathed his last. Vide order dated 17.8.2006 passed in CRM No.71204 of 2005, his legal representatives were substituted in his place. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. Learned counsel for the petitioners submitted with a good deal of force that PW6 Hakam Singh Mechanic, Punjab Roadways, Jagraon has admitted in his cross-examination that “he had not driven the bus while testing and that while the bus is moving missing brakes cannot be noticed”. It is probable that all of a sudden, the brakes of the bus failed and for that reason, the same dashed against the tractor-trolley. This contention is unsustainable for the simple and obvious reason that there is no evidence in support of this contention. So, it is very difficult to say that the accident had ensued as a consequence of failure of brakes. Tthis contention being bereft CRR No.828 of 2002 4 of any merit is overruled. It has been further argued that PW1 Lakhbir Singh has stated in his cross-examination that “police arrived at the spot about 5-7 minutes after the accident took place and he was present there at that time and that his statement was recorded at Civil Hospital”, whereas on the other hand, PW5 Balbir Singh, Investigator has stated that “this PW had met him at Civil Hospital, as they had already left from the spot when the police party reached there”. This material discrepancy knocks down the prosecution case. I regret my inability to be one with the learned counsel for the petitioners. The accident took place on 26.8.1996, whereas PW1 Lakhbir Singh was examined on 16.9.1998. By all probabilities, during this interregnum, his memory would have hazed and that being so, no serious note cannot be taken of this minor discrepancy. Last of all, it has been argued that as appears in the prosecution evidence, the rear tyre on right side of the tractor trolley had got burst, but this fact has not been disclosed by the prosecution witnesses in their examination-in-chief. This proprio viogre cast a cloak of suspicion over their veracity. The petitioner -accused has taken up a plea in his statutory statement that the accident took place on account of tractor having gone out of control due to bursting of rear tyre. In view of this plea, no rashness or negligence can be attributed to the deceased petitioner. I have well considered this submission. Of course, Balbir Singh PW5 Investigator has admitted in his cross-examination that the tractor, which was taken into possession vide Memo Ex.PE, the right big tyre of the same was in burst condition, but in his next breath, he has stated that the tractor was not got CRR No.828 of 2002 5 tested mechanically. It is apt to be borne in mind that the plea taken up by the deceased petitioner in his statement recorded under Section 313 of Cr.P.C. is that the accident took place on account of the tractor having gone out of control due to burst of the rear tyre on right side of tractor. Mere this plea in the absence of any cogent evidence on the record can not take the place of proof. There is no clear and convincing evidence on the record to prove that the rear tyre of the tractor had got burst and resultantly, the tractor-trolley had struck against the bus. The prosecution case is that the Bus in question had dashed against the stationary tractor-trolley from behind. This fact nullifies the plea adopted by the petitioner-deceased. No other material point has been urged or agitated by either counsel. In consequence of the preceding discussion, the conviction is upheld. As per the custody certificate taken on record, the deceased petitioner has undergone 5 months and 18 days of the actual sentence. Taking into consideration the fact that the petitioner /accused is no more in this world, the sentence is reduced to the already undergone. With this modification in the order of sentence, this revision petition stands dismissed. 17th August, 2009 (HARBANS LAL) gsv JUDGE Whether to be referred to the Reporter? Yes/No.