CRIMINAL REVISION NO. 98 OF 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: February 10, 2009. Parties Name Suresh Kumar ..PETITIONER VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH PRESENT: Mr. Anil Ghangas, Adv., for Mr. Sunil Panwar, Advocate, for the petitioner. Mr. S.S.Randhawa, AAG, Haryana; JASBIR SINGH, J. (oral) JUDGMENT: The petitioner was working as a Driver, on a bus owned by the the Transport Department in the State of Haryana. It was allegation against him that on November 20, 1990, by driving bus bearing No. HNB 2386 in a rash and negligent manner, he had caused death of Niwasa son of Arjun. Vide judgment dated March 8/ 10, 1999, the trial Court held the petitioner guilty of the charges framed against him and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 3500/- with a default clause, for commission of an offence under Section 304-A IPC and to undergo rigorous imprisonment for a period of CRIMINAL REVISION NO. 98 OF 2002 -2- six months for commission of an offence under Section 279 IPC. Both the sentences were ordered to run concurrently. Petitioner went in appeal, which was dismissed by the appellate Court below on January 4, 2002. Hence this revision petition. Case of the prosecution, as noticed by the trial Court in para No. 2 of the judgment, reads thus: “2. In brief, the case of the prosecution is that on 20.11.1990, Assistant Sub Inspector Mohar Singh of Police Station Sadar Bhiwani with Head Constable Azad Singh, Head Constable Vijay Kumar No. 475, Constable Rajmal No. 700, in Govt. Jeep driven by Constable Raghbir Singh, was present at Tigrana T. point in the area of village Tigrana, in connection with patrolling, where Mahender Singh son of Hardewa, caste Harijan, resident of village Tigrana (PW1) met the police party and got recorded his statement, which inter alia runs as under: That the complainant Mahender son of Hardewa, caste Harijan, is resident of village Tigrana. He is an agriculturist. On the date of occurrence, 20.11.1990, at about 9.30 AM, the complainant Mahender Singh with Hawa Singh son of Devi Singh, resident of village Tigrana (PW2) and his cousin Niwasa son of Arjun Caste Harijan, resident of village Tigrana, were going to their fields. While they were crossing the road, at the same time, one Haryana Roadways Bus bearing registration No. HNB 2386 was seen coming, which was driven in a very fast speed, rashly and negligent, without giving horn. The complainant Mahender Singh and Hawa Singh had crossed the road. The bus came on CRIMINAL REVISION NO. 98 OF 2002 -3- the wrong side and hit in Niwasa. The front right hand wheel of the bus crushed his head. Niwasa died on the spot. His right hand was separated from the body. The bus driver escaped. Lateron it came to their notice that Suresh Kumar resident of village Dhanana, was driving the Bus, at the time of accident. He knows the driver as he is running his bus, on the same route since long. The bus driver drove Bus No. HNB 2386 rashly and negligently, without giving any horn in a very fast speed and caused accident, wherein Niwasa son of Arjun died.” On completion of investigation, final report was put in Court for trial. Petitioner was charge-sheeted for commission of offences under Sections 279 and 304-A IPC, to which he pleaded not guilty and claimed trial. Prosecution produced five witnesses and also brought on record documentary evidence to prove its case. On conclusion of the prosecution evidence, statement of the petitioner was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He, however, led no evidence in defence. The trial Court, on analysis of evidence on record, found the petitioner guilty of the offences with which he was charged and accordingly convicted and sentenced him as found mentioned in earlier part of this order. While convicting him, the trial Court observed as under: “12. After hearing both the sides at length and going through the case file very carefully, I am of the considered view that the arguments advanced by the learned Assistant Public Prosecutor CRIMINAL REVISION NO. 98 OF 2002 -4- for the State are forceful, whereas the arguments advanced by the learned defence counsel are devoid of force. Non- examining of the Investigating Officer in itself is not sufficient to discard the prosecution case. In the case in hand, the Investigating Officer was not an eye witness. He has simply investigated the case and only recorded statements of prosecution witnesses, under section 161 of the Code of Criminal Procedure. He has no personal knowledge of the occurrence. So, mere non-examining of the Investigating Officer is not sufficient to discard the statements of two eye- witnesses, namely, Mahender (PW1) and Hawa Singh as PW2. 13.There are no discrepancies in the statements of PW1 Mahender and PW2 Hawa Singh. They have specifically deposed that the accused facing trial was driving the Bus No. HNB 2386 at the time of accident. Their statements have been well corroborated by the statement of P.W.4 Sube Singh, who has specifically deposed that on 20.11.90, the accused was on duty as Driver on Bus No. HNB 2386. So, from the statements of PW1 Mahender and PW2 Hawa Singh and P.W.4 Sube Singh, it is established beyond doubt that at the time of accident, the accused was driving the Bus bearing registration No. HNB 2386. In the cross-examination, the learned defence counsel has suggested to P.W.1 Mahender and P.W.2 Hawa Singh that at the time of accident, the accused was not present and the accident took place by some other vehicle, but there is no defence evidence to prove that CRIMINAL REVISION NO. 98 OF 2002 -5- at the time of accident, the accused was not driving the Bus bearing No. HNB 2386. Arguments raised by the learned defence counsel that both eye witnesses are related to the accused, hence not reliable, is also not tenable. There is no reason to disbelieve their statements. They were the best witnesses, who saw the occurrence. There is nothing on record to prove that at the time of accident, some other eye witnesses were also available. Shri Anil Ghangas, Advocate, for the petitioner has made an attempt to lay challenge to the judgments passed by the Courts below by making reference to discrepancies here and there in the evidence led by the prosecution. However, he has failed to show that there was any misreading of evidence on the part of the Courts below. The case of the prosecution is fully proved by the witnesses and also with documentary evidence on record. Otherwise also, in view of the judgment of the Hon'ble Supreme Court in Raj Kumar v. State of H.P., 2008(3) R.C.R. (Criminal ) 611: 2008 (4) R.A.J. 371, it is not possible for this Court to interfere on merits, except in exceptional circumstances where glaring mistake might have been committed by the Courts below. Nothing of the sort has been indicated in this case. Faced with the situation, Shri Ghangas states that the petitioner is a first offender. He is a poor person and that he is the only bread winner of the family. Prayer for release of the petitioner on probation has been made. Prayer made by counsel for the petitioner has been vehemently opposed by the State counsel. He stated that the rash and negligent driving has virtually become a habit of the truck Drivers and if leniency is shown to CRIMINAL REVISION NO. 98 OF 2002 -6- the petitioner, it will encourage others to commit similar offence. He further states that the punishment awarded to the petitioner is in proportion to the offence committed by him and that the revision petition be dismissed. After hearing counsel for the parties, this Court is of the opinion that the purpose of Criminal Law justice is not only to bring peace , discipline and harmony in the Society but is also to give an opportunity to the erring individual to reform himself. Keeping in view facts and circumstances of the case, especially a fact that the accident had taken place in the year 1990, petitioner continued to face agony of trial, thereafter appeal and this revision petition, which is pending since the year 2002, this Court is of the opinion that he deserves lenient treatment. He has grown up family members and if sent in jail at this stage, it is likely to prove counter productive. He is a first offender. Their Lordships of the Supreme Court in Karamjit Singh v. State (Delhi Admn.) , 2001(9) Supreme Court 161, in paragraph No. 7, observed as under:- “Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repeat for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the court has to weight the degree of culpability of the accused. Its effect on others and the desirability of showing any leniency in the matter of punishment in the case. CRIMINAL REVISION NO. 98 OF 2002 -7- An act of balancing is, what is needed in such case: a balance between the interest of the individual and the concern of the society: weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law, an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation has to be avoided, again within the permissible limits of law.” Counsel for the petitioner has relied upon two judgments of the Supreme Court in Sukhdev Singh v. State of Punjab, 1982 CAR 280(SC) and Aitha Chander Rao v. State of Andhra Pradesh, 1982 C.A.R. 5 (SC), to contend that petitioner be released on probation. Keeping in view facts and circumstances of this case and ratio of the aforesaid judgments, conviction is upheld. However, sentence of imprisonment of the petitioner is set aside and he is ordered to be released on probation under Section 4(1) of the Probation of Offenders Act, 1958, for a period of six months. Keeping in view ratio of the judgment of the Hon'ble Supreme Court in Baldev Singh and another v. State of Punjab, AIR CRIMINAL REVISION NO. 98 OF 2002 -8- 1996 SC 372, and to settle equity between the parties, fine imposed is enhanced to Rs. 60,000/-. The petitioner is directed to deposit the amount of fine with the trial Court within three months from today and on deposit so being made, trial Court will issue a notice to legal heirs of the deceased Niwasa and disburse this amount to them forthwith. In case amount is not deposited, this revision petition shall be deemed to have been dismissed. The petitioner shall execute bail bond and undertaking before the trial Court that he would act like a disciplined citizen and will not indulge in any crime of the like nature during the period of six months. Requisite bail bonds and undertaking be furnished within three months. With above said modification, this revision petition stands disposed of. February 10, 2009 ( Jasbir Singh ) DKC Judge