Criminal Revision No. 1238 of 2001 -1- .... IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1238 of 2001 Date of decision:- 16.12.2010 Gurdip Singh ......Petitioner versus The State of Punjab ......Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: - Mr. S.C. Chhabra, Advocate, for the petitioner. Mr. O.P. Dabla, D.A.G., Punjab, for the respondent – State. A.N. JINDAL, J (ORAL) The trial Court vide judgment dated 23.04.2001 convicted and sentenced the accused-petitioner (hereinafter referred to as the 'petitioner') to undergo rigorous imprisonment for six months under Section 279 of Indian Penal Code (for brevity the 'IPC') and rigorous imprisonment for two years and to pay a fine of ` 2000/- under Section 304-A of IPC. The Appellate Court at Ferozepur dismissed his appeal on 20.07.2001. In nut-shell, the allegations are that on 18.03.1996, Hardip Singh (brother of the complainant) alongwith Paramjit Singh, Nihala Ram and Raghunath was going from his village Eena Khera to Ferozepur via Fazilka on a maruti Car bearing registration No. PB- 30-0034. On the same day, Jaswinder Singh-complainant (hereinafter referred to as the 'complainant') along with his uncle Pala Singh and his cousin Jasbir Singh was also following Hardip Singh in a car. At about 12.30 pm, when they reached 1 ½ furlong short of Criminal Revision No. 1238 of 2001 -2- .... bridge of Canal minor situated at village Sekhan, they saw Hardip Singh was making an effort to save a bicycle rider going ahead of his car, in the meantime, the petitioner while driving the canter bearing registration No. PCE-3064 rashly and negligently struck against the car of Hardip Singh. The driver of the canter ran away after leaving the canter. They took out all the injured from the car. His brother Hardip Singh had died on the spot. Remaining three occupants had also suffered injuries. They were admitted to Civil Hospital, Ferozepur. On the aforesaid statement made by Jaswinder Singh- complainant, F.I.R. was registered and investigated. On completion of investigation, charge report was submitted against the petitioner. The petitioner was charged under Sections 279 and 304- A IPC to which he pleaded not guilty and claimed trial. In order to substantiate the charges, prosecution examined Dr. K.K. Khatri PW-1, Manohar Lal PW-2, Jaswinder Singh PW-3, Jasbir Singh PW-4, Dr. Daljit Singh PW-5, Head Constable Darshan Singh PW-6, Constable Gurmej Singh PW-7, Gian Singh PW-8, ASI Surjit Singh PW-9, ASI Satnam Singh PW-10, ASI Sukhdev Singh PW-11, Head Constable Ashok Kumar Pw-12, Anil Kumar Photographer PW-13 and Mulkh Raj Sr. Asstt. PW-14. When examined under Section 313 of the Code of Criminal Procedure, the petitioner denied all the incriminating circumstances and pleaded his false implication in the case. He further explained that he is not the owner of the offending vehicle. He does not know driving. On the fateful day, Roop Lal was driving the Criminal Revision No. 1238 of 2001 -3- .... canter. Since he could not produce the driver before the Police, therefore, he was implicated in the case. The trial resulted into conviction. The appeal preferred by him also failed. Arguments heard. Record perused. In this case, the occurrence took place on 18.03.1996 at about 12.30 pm. The case was registered on the statement of Jaswinder Singh at 4.15 pm on the same day. The FIR was recorded at 5.15 pm. In the Ruqa as well as in the FIR Jaswinder Singh (PW- 3) had stated that he came to know about the name of the driver later-on. The petitioner has taken specific plea that he was not present at the time of occurrence but since the registration book relating to him was lying in the canter, he was named as accused. The petitioner was arrested some time later. Thereafter no identification parade was got conducted by the Investigating Officer in order to prove his identity. In these circumstances, the identification of the petitioner for the first time in Court does not attach any significance in order to connect the petitioner with the crime. The next contention raised by learned counsel for the petitioner is that it was about 100 feet wide road. The petitioner was coming on his correct side of the road whereas the car driver was at fault as he, in a bid to save the bicycle rider, took his car on the wrong side and could not see that the canter was coming from the opposite side as such the accident took place. Criminal Revision No. 1238 of 2001 -4- .... Having pondered over the arguments and having gone through the statements of Jaswinder Singh (PW-3), Anil Kumar Photographer PW-13, photographs (Exhibit PW-13/A to PW13/F) and negatives (Exhibit PW-13/G and PW-13/H), it transpires that both the Courts below have not appreciated the evidence in the right perspective. As regards the saving of the cyclist by Hardip Singh (deceased-driver of the car), ruqa as well as FIR and Jaswinder Singh (PW-3) in his substantive statement has stated that at about 12.30 pm, when they reached near the plots of Bagga Singh and they were following the car bearing registration No. PB-30-0034 driven by Hardip Singh (deceased), Hardip Singh made a bid to save aforesaid cyclist, in the meantime, the petitioner came with the canter and struck against the car. During the cross examination, Jaswinder Singh (PW-3) has admitted that the petitioner was coming on his correct side i.e., on left side and the car went on wrong side. The relevant extract (english transcription) of the statement is reproduced as under: - “It is correct that in the photographs mark 'A', there is a Kacha Berm at the place of occurrence. The photograph mark 'A' depicts that the canter is standing on the Kacha Berm at its right side and the car in which the deceased was sitting is on its wrong side.” Now it is time to examine the statement of Anil Kumar Photographer (PW-13) who had visited the place of occurrence on the same day and proved six photographs (Ex. PW-13/A to PW-13/F) Criminal Revision No. 1238 of 2001 -5- .... and their negatives (Ex. PW-13/G and PW-13/H). He had prepared the photographs without any tampering and touching. On perusal of the photograph Ex. PW-13/A, it transpires that the car went to the wrong side and struck against the cleaner side of the canter. Anil Kumar (PW-13) has also admitted that the photographs (Ex. D-1 to D-5) also relate to the place of occurrence. From the perusal of the photographs (Ex.D-1 to D-5), it transpires that road at the place of occurrence is very wide. The car left the entire road and came in spate of the canter. The petitioner appears to have taken the canter on the extreme left side of the road, in order to save the accident, but he could not avoid it. ASI Sukhdev Singh also could not collect any such evidence which may show any fault on the part of the petitioner. He neither collected the skid marks nor any witness, who may be present at the spot, was examined to disclose that it was the petitioner who was at fault. Jaswinder Singh (PW-3) who is the brother of the deceased, is stated to be following the car of the deceased and he has not stated in his statement as to if he could see the event going in front of his car. When once it is established that the petitioner was on its correct side and the deceased was on the wrong side then the petitioner cannot be saddled with the rash and negligent driving. Similarly, it was observed in case Baldev Singh vs. State of Haryana, 2000 (2) RCR (Criminal) 826, that photographs show head-on collusion of the two vehicles. However, it is not possible to infer from the photographs that a truck had left its side and gone on Criminal Revision No. 1238 of 2001 -6- .... the wrong side. On the contrary, in some photographs some shrubs appear on the left side of the truck showing thereby that the truck was on the extreme left side of the road. In such a situation, the Court did not hold the petitioner rash and negligent. In the instant case also, the petitioner appears to have been on the left side of the road. He did not leave that side and came on wrong side and caused accident. In such a situation, accident cannot be said to have the direct result of rash and negligent driving of the petitioner. It was also observed in Nirmal Singh vs. State of Haryana, 1996 (1) RCR (Criminal)406, mere facts that the petitioner did not stop his truck at that point and sped away, does not show that he is guilty of an offence under Section 304-A of IPC. In the given circumstances of the case, if the accused had sped away out of fear then no inference could be drawn that he was negligent. In order to prove the guilt against the person regarding his rashness and negligence, the evidence must establish that there was an element of rashness and negligence. In the instant case, even if prosecution version is accepted then this element cannot be said to be established as in this case, even according to the prosecution, the car in a bid to save the cyclist, lost its balance and the accident took place. Both the Courts below have not taken note of the aforesaid aspects of the case. As such, the impugned judgments have been rendered as invalid and perverse, warranting interference by this Court. Criminal Revision No. 1238 of 2001 -7- .... For the aforesaid reasons, this petition is accepted, the impugned judgment is set aside,the petitioner is acquitted of the charges framed against him and is directed to be set at liberty forthwith. His bail bonds and surety bonds stand discharged. Fine if any deposited by him, be refunded. Copy of the order be sent to the Chief Judicial Magistrate, Ferozepur for compliance. 16.12.2010 (A.N.JINDAL) neetu JUDGE