In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 771 of 1998 Date of decision: May 22, 2009 Madho Ram ... Petitioner vs. State of Haryana ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. P.S. Ahluwalia, Advocate Amicus Curiae for the petitioner. Mr. Dilbagh Singh, AAG, Haryanan for the respondent. A.N. Jindal, J Assailed in this petition is the judgment dated 15.7.1998 passed by the learned Additional Sessions Judge, Gurgaon, dismissing the appeal filed by the accused-petitioner Madho Ram (herein referred as 'the petitioner') against the judgment dated 9/10.7.1997 passed by the Judicial Magistrate Ist Class, Gurgaon, convicting and sentencing him to undergo rigorous imprisonment for three months and to pay fine of Rs.500/- under Section 279 IPC, and to further undergo rigorous imprisonment for 1- ½ years and to pay fine of Rs.1500/- under Section 304-A IPC. In nutshell, the allegations are that on 26.5.1993, Bir Singh (PW4) along with Jagdish (PW3) were present near the main gate of Anaz Mandi, on the shop of Bhakhtawar barber, and were exchanging talks, in the meanwhile, Parwati wife of Babu Ram brother of the complainant along with her daughter Chamo was seen coming from the side of tubewell after fetching water. They were going to their house, in the meanwhile, the petitioner while driving a truck bearing registration No.HRE-9397 came at a high speed and driven in a rash and negligent manner and hit Chamo, aged about 8 years, resultantly, she fell down and died at the spot. However, Parwati had a narrow escape. On the basis of the aforesaid statement of Bir Singh, case was registered and investigated. Rough site plan of the place of accident and recovery memo of vehicle were prepared. On completion of the investigation challan was presented in the court. Crl. Revision No. 771 of 1998 -2- The petitioner was charged for the offences punishable under Sections 279/304-A IPC, to which he denied and opted to contest. In order to substantiate the charges, the prosecution examined Balwan Singh (PW1), Parshotam Lal (PW2), Jagdish Chand (PW3), Bir Singh (PW4), Dr. Suresh Bakshi (PW5), Siri Ram (PW6) and SI Babu Ram (PW7). In his statement under Section 313 Cr.P.C. he denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. Ultimately the trial ended in conviction. His appeal also failed. Arguments heard. Parwati, mother of the deceased; the most material witness who was allegedly accompanying the deceased minor, at the time of accident, was not examined by the prosecution for the reasons best known to it. Now we are left with the testimony of two witnesses namely Jagdish Chand and Bir Singh. As regards Bir Singh, he being the brother of the complainant is an interested witness. In any case, without commenting further upon the interestedness, he as well as Jagdish Chand (PW3) cannot be said to be reliable witnesses as both of them have made statements contradictory to the prosecution version. Both of them have stated that they had manhandled the petitioner and handed him over to the police at the spot, whereas, the prosecution story is to the contrary. According to SI Babu Ram (PW7), the petitioner was arrested on 27.5.1993. Had the accused been arrested at the spot, then the Investigating Officer would have no difficulty to show his arrest on the same day or he could postpone his arrest. In any case, none of the witnesses have stated as to how the petitioner was rash and negligent while driving the vehicle. They did not describe as to at what speed he was driving the truck; at which side the deceased was going and which side of the road the truck was going. The only testimony of the witnesses that the petitioner was at a high speed does not prove the offence either under Section 279 or 304-A IPC. The prime essential ingredient constituting the aforesaid offences is proof of driving the vehicle rashly or negligently, but none of the witnesses have stated that the petitioner was driving the vehicle rashly and negligently. No such circumstances have been established by the prosecution from where the Crl. Revision No. 771 of 1998 -3- inference could be drawn regarding his rashness or negligence. The witnesses had nothing to say as to what sort of negligence the petitioner had committed on account of which this casualty took place. It appears from the circumstances that the deceased being of prone age i.e. 8 years and a rustic villager knowing nothing about the traffic rules abruptly came on the road and was crushed under the on coming truck. The testimony of the witnesses appears to be manipulated while they say that they apprehended the accused obviously for avoiding the defence. A prime argument that no test identification parade was conducted. Neither the witnesses nor the petitioner knew each other earlier. Had the witnesses not stated that the petitioner was arrested at the spot, then question of identification would have arisen. We are to believe and rely that official act so done are done in the ordinary course of their official duties, therefore, it cannot be belied that the petitioner was arrested on 27.5.1993. According to the Investigating Officer he was actually arrested on 27.5.1993, therefore, the testimony of the witnesses that the petitioner was arrested on 26.5.1993 is bound to be disbelieved. Any way, when there is a serious contradiction between the statements of two witnesses and that of Investigating Officer regarding arrest of the petitioner, then the benefit should go to the petitioner. Having scrutinized the impugned judgment, it could be observed that the trial court did not touch the issue of rashness and negligence. It was moved by emotions that since the deceased died while coming under the truck, therefore, certainly the petitioner was at fault, but this view formed by the courts below is not correct in the absence of definite evidence to prove the same. For establishing the offences for which he was charged, it was essential for the prosecution to establish on record if the petitioner was actually rash or negligent in the commission of the act. Resultantly, I accept the petition, set aside the impugned judgment and acquit the petitioner of the charges framed against him. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded. May 22, 2009 (A.N. Jindal) deepak Judge