Criminal Revision No.702 of 2005(O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.702 of 2005(O&M) Decided on : December 06, 2010 Bir Bhan ... Petitioner VERSUS State of Haryana ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.Jagdeep S.Virk, Advocate for the petitioner. Mr.J.S.Rattu, Deputy Advocate General for the respondent – State of Haryana. A.N.JINDAL, J.- Bir Bhan, accused – petitioner (herein referred as `the petitioner') has challenged the correctness, legality and propriety of the judgment dated 23.03.2005 passed by Appellate Court (Additional Sessions Judge, Kurukshetra) dismissing his appeal against the judgment dated 14.10.2004 passed by Judicial Magistrate Ist Class, Kurukshetra convicting and sentencing him to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- under Section 304-A of the Indian Penal Code 1860 (for brevity `IPC'); and to further undergo rigorous imprisonment for three months under Section 279 IPC. The version of the prosecution is that on 19.5.1995, Sahid – complainant got his statement recorded that he along with his father Criminal Revision No.702 of 2005(O&M) [2] Shamshad had come to Babain area in connection with sale and purchase of cattle and they had stayed with Ajaib Singh. On that day, at about 5.00 PM, he along with his father and Ajaib Singh was coming from village Sanghor and going to village Babain on foot and when they reached near turning of village Jandola in the area of village Ghisarpari, then the petitioner while driving a motorcycle bearing Reg.No.HNL-9257 rashly and negligently came from behind and hit his father, as a result of which he fell down on the road and suffered multiple injuries. Consequently, he died on the spot. On the aforesaid statement made by the complainant, the First Information Report was registered against the petitioner; he was arrested and statements of the witnesses were recorded and on submission of the report, the petitioner was charged under Sections 304-A and 279 IPC. In order to substantiate its charges, the prosecution examined HC Dharam Pal (PW1), photographer Rameshwar Dass (PW2), Dr.C.R.Khatri (PW3), eye witness Ajaib Singh (PW4), Ashok Kumar mechanic (PW5), the complainant (PW6) and Jai Bhagwan (PW7). When examined under Section 313 of the Code of Criminal Procedure, 1973, the petitioner denied the allegations and pleaded his false implication. The trial ended in conviction. His appeal also failed. Having scrutinised the impugned judgment as well as the judgment passed by the Trial Court, no exception could be made to the view expressed by both the courts below. There are concurrent findings of fact that on 19.5.1995, the complainant (PW6) along with his father Shamshad (deceased) and Ajaib Singh (PW4) was going from village Sanghor to Babain and at about 5.00 PM, when they reached on the turning of Jandola Criminal Revision No.702 of 2005(O&M) [3] in the area of village Ghisarpari, the petitioner while driving his motorcycle rashly and negligently hit Shamshad, as a result of which he had fallen down, suffered injuries and died. The question of mistaken identity does not arise. The eye witness – complainant Sahid (PW6) had duly identified the petitioner and he had the opportunity and occasion to see him. More so, the petitioner has not alleged any previous enmity with the complainant party, so as to think over the issue of false implication. The complainant had lost his father within twinkling of an eye and in such circumstances, no person would replace the original culprit with an innocent person. HC Dharam Pal Investigating Officer (PW1) and the complainant Sahid (PW6) have also stated that the petitioner himself also suffered injuries in the accident and had to remain admitted in Primary Health Centre, Babain for treatment. Thus, the complainant had sufficient time to see him. Hence, the identity of the petitioner stands proved beyond doubt. The medical evidence also proves the accidental injuries on the person of the deceased. Merely because the eye-witness/ complainant is relative of the deceased, is hardly sufficient to doubt the veracity of his statement, so as to ignore it by declaring him as interested witnesses. Even otherwise, the scope of interference at the revisional stage is very restricted in nature. It was observed in case Duli Chand vs. Delhi Administration, AIR 1975 SC 1960 as under:- “The question whether the accused was guilty of negligence in driving the bus and death of the deceased was caused due to negligent driving is a question of fact which depends for its Criminal Revision No.702 of 2005(O&M) [4] determination on appreciation of the evidence. While the Magistrate, and the Additional Sessions Judge arrived on assessment of the evidence at a concurrent finding of fact that the death of the deceased was caused by negligent driving of bus by the accused and the High Court even though justified in refusing to re-appreciate the evidence reviewed the same in order to justify itself that there was evidence in support of the finding and that the finding was not perverse, came to the conclusion that the evidence established the death of the deceased was caused by the negligent driving of the bus by the accused, the Supreme Court on an appeal under Article 136 refused to interfere.” Four years later, in case State of Orissa vs. Nakula Sahu and others, AIR 1979 SC 663, it was held that the High Court should not have interfered with the concurrent findings recorded by the Trial Court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the Trial Court or the Sessions Judge. Once again, in 1999, in case State of Kerala vs. Puttamana Illath Jathavedan Namboodiri, 1999(1) RCR(Criminal) 808, the Apex Court held that the revisional jurisdiction is one of the supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same unless any glaring feature is Criminal Revision No.702 of 2005(O&M) [5] brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. Similar observations were made in case Jayakanth vs. State of Karnataka , 2009(5) RCR(Criminal) 896 (Karnataka), wherein, it was observed that unless the petitioner establishes that there is an error apparent on the face of the record or there is such illegality or perversity in the order of the courts below, the High Court cannot disturb the finding recorded by the lower court. Keeping in view the above, the findings of guilt of the petitioner concurrently recorded by both the courts below, are upheld. Now, coming to the quantum of sentence, it is observed that one valuable life has been lost due to rash and negligent act of the petitioner, therefore, keeping in view the nature of the allegations and the gravity of the offence, the sentence awarded, appears to be in commensuration with the offence committed. Hence, the same also needs no interference. Consequently, the petition is dismissed. Copy of this order be sent to Chief Judicial Magistrate, Kurukshetra for compliance. December 06, 2010 ( A.N.JINDAL ) `gian' JUDGE