Criminal Revision No. 2412 of 2002 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 2412 of 2002 Date of Decision: 29.3.2010 Ranbir Singh …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Jai Vir Yadav, Advocate for the petitioner. Mr. Manish Deswal, Deputy Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been filed by Ranbir Singh son of Faqira Singh, who was tried in case FIR No. 24 dated 15.1.1999, registered at Police Station Nuh, under Sections 279 and 304-A IPC. The Court of Judicial Magistrate Ist Class, Nuh, vide its judgment dated 14.7.2001, held the petitioner guilty of an offence under Sections 279 and 304-A IPC and vide separate order dated 16.7.2001, he was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,000/-, for an offence under Section 304-A IPC. In default of payment of fine, to further undergo rigorous imprisonment for a period of 15 days. No separate sentence was imposed for the offence under Section 279 IPC. Criminal Revision No. 2412 of 2002 2 Aggrieved against the judgment of conviction and order of sentence, passed by the trial Court, the petitioner has filed an appeal. The Appellate Court, finding no merit, dismissed the appeal vide its judgment dated 30.11.2002. In the present case, FIR Ex.PW.8/B was lodged on the statement made by PW.1 Sunita, wherein she stated that she was a student of J.B.T. School at Ferozepur Namak and on 15.1.1999, after finishing her classes, she had come to bus stand at Nuh to take a bus for going to her village. Along with her, Santosh, Sita and PW.2 Sajid Hussain were also waiting to board the bus. At that time, the offending bus bearing registration No. HR-29-6558, driven by the petitioner, came at a high speed in a rash and negligent manner and hit Sita, due to which she died at the spot. The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. The petitioner was charged for an offence under Sections 279 and 304-A IPC for having driven the bus in a rash and negligent manner endangering the life of Sita and causing her death. PW.1 Sunita had not supported the prosecution case and was declared hostile. PW.2 Sajid Hussain deposed that the accident had taken place due to negligent driving of the petitioner who was driving the offending bus at a very high speed. However, he stated that the driver of the bus was not known to him prior to the accident and was not in a position to identify the person who was driving the bus. PW.3 Dr. D.V. Yadav had proved the post mortem report Ex.PW.3/A and opined that deceased Sita died due to the injuries Criminal Revision No. 2412 of 2002 3 suffered in the accident. PW.4 Sher Singh, Duty Clerk of Haryana Roadways, proved duty roster, according to which, on the date of occurrence i.e. 15.1.1999, petitioner was appointed as driver of the offending bus. PW.5 Phool Singh, Motor Mechanic, proved Mechanical Test Report of the bus as PW.5/A. PW.6 Pawan Kumar, Photographer, proved photographs of the spot Ex.PW.6/A to Ex.PW.6/D and the negatives Ex.PW.6/A1 to Ex.PW.6/D1. PW.7 Ravi Kant was the husband of deceased Sita. PW.8 Amar Chand, Constable, deposed regarding the recovery of the bus and taking of the dead body of Sita to the hospital for getting the post mortem conducted. Thereafter, the prosecution had closed its evidence. The statement of accused was recorded under Section 313 Cr.P.C. He denied all the incriminating circumstances and pleaded innocence. Both the Courts below have concluded that from the testimony of PW.2 Sajid Hussain, it is proved that the petitioner was guilty of rash and negligent driving. Further, petitioner was the driver of the offending bus is proved from the testimony of PW.4 Sher Singh, Duty Clerk of Haryana Roadways. Mr. J.V. Yadav, Advocate, appearing for the petitioner, has raised the following arguments before this Court:- a) That PW.1 Sunita had not supported the prosecution case. Criminal Revision No. 2412 of 2002 4 b) That PW.2 Sajid Hussain had not proved the identity of the petitioner as driver of the offending bus. c) That both the Courts below have travelled beyond the settled principles by concluding that the petitioner was a driver of the offending bus after relying upon the testimony of PW.4 Sher Singh. It is further submitted that even if it is assumed that the petitioner was driver of the offending bus, possibility cannot be ruled out that on the date of occurrence, the conductor or any other person was driving the offending bus. I have given my thoughtful consideration to the rival submissions made by learned counsel for the petitioner. A perusal of the statement of accused/petitioner, recorded under Section 313 Cr.P.C., reveals that the accused had not taken any stand that the bus was being driven by the Conductor or somebody else and was not driver of the bus on the date of occurrence. In the accident, the witnesses normally are not aware regarding the identity of the driver. In a case where the bus belongs to Public Transport System, from the record, it is proved as to who was driving the offending vehicle. Once this fact was proved by the prosecution, a presumption can safely be raised against the accused that he was driving the offending vehicle unless it is rebutted by a probable or cogent explanation. In the present case, same is lacking, therefore, this Court exercising the revisional jurisdiction will not disturb the findings of both the Courts below on this score. Criminal Revision No. 2412 of 2002 5 Mr. Yadav has further submitted that from the evidence of witnesses especially from the testimony of PW.2 Sajid Hussain, it cannot be concluded that the petitioner was driving the vehicle in a rash and negligent manner. This is a question of fact which has been determined by both the Courts below. The revisional Court will not re-appreciate and do re-appraisal of the evidence. Therefore, this contention is also rejected. It is further submitted that in the present case, the Investigating Officer has not been examined, therefore, there is no rough site plan from which this Court could have assistance of the visual observation to corroborate the testimony of PW.2 Sajid Hussain. In a case of accident, what the Investigating Officer has to do? This Court has to ponder over this question. The prosecution has examined PW.6 Pawan Kumar, Photographer, who had proved the photographs of the scene of occurrence. The prosecution has also examined PW.5 Phool Chand, Motor Mechanic, who had proved the mechanical test report. The prosecution had also examined PW.8 Amar Chand, Constable, who took the bus from the place of occurrence to the Police Station and the dead body was carried by him to the Police Station for the purpose of post mortem. PW.8 Amar Chand, Constable, had also proved the registration of FIR. Therefore, mere non- examination of the Investigating Officer will not be fatal to the prosecution until a specific allegation of prejudice is made out. No such plea has been raised before both the Courts below. Therefore, there is no merit in the present petition and the same is dismissed. However, this Court is of the view that in the present case, the Criminal Revision No. 2412 of 2002 6 accident had taken place in the year 1999. The petitioner has already suffered a protracted trial of more than 11 years. Learned counsel submits that the petitioner has undergone four months out of one year's sentence awarded to him. He is a sole bread earner of his family and has not committed any offence before or after the present occurrence. Therefore, this Court is of the view that sending the petitioner behind the bars, at this stage, will not serve any useful purpose and in case, some monetary compensation is awarded to the family of deceased Sita, it may provide them solace. Accordingly, sentence awarded to the petitioner is reduced to already undergone, however, sentence of fine is enhanced to Rs.35,000/-. The petitioner shall deposit the enhanced amount of fine in the trial Court, within three months, from the date of receipt of certified copy of this order. The amount, so deposited, shall be disbursed to the legal heirs of the deceased. In case the amount of fine is not deposited, no benefit in reduction of sentence shall accrue to the petitioner. With the observations made above, the present petition is disposed of. (Kanwaljit Singh Ahluwalia) Judge March 29, 2010 “DK”