Crl. Rev. No. 867 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HAYRANA AT CHANDIGARH Crl. Rev. No. 867 of 2009 Date of decision: May 15, 2009 Mohammad Farook ….. Petitioner Versus State of Punjab ….. Respondent Present: Mr. H.S. Diwana, Advocate for the petitioner. Mr. Kamaldeep Singh Sidhu, DAG, Punjab. *** S.S. SARON, J. This revision petition has been filed by the petitioner Mohammad Farook against the judgment and order dated 29.1.2009 passed by the learned Additional Sessions Judge, Fast Track Court, Ludhiana, whereby the appeal of the petitioner against his conviction for the offences under Sections 279 and 304-A of the Indian Penal Code (“IPC” – for short) and his sentences to rigorous imprisonment for three months, besides to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for 20 days for the offence under Section 279 IPC and rigorous imprisonment for one and a half years, besides to pay a fine of Rs.3,000/- and in default of payment of fine, to undergo rigorous imprisonment for four months for the offence under Section 304-A IPC passed by the learned Sub Divisional Judicial Magistrate, Samrala, has been dismissed. Crl. Rev. No. 867 of 2009 2 Jail Singh complainant who is a retired Teacher got his statement recorded on 29.1.2004 with SI Jasdev Singh who along with other police officials was present at the main chowk, Samrala. It is alleged by the complainant Jail Singh that his nephew Kulwinder Singh @ Satti (deceased) was a milk vendor. On 29.1.2004 Kulwinder Singh @ Satti (deceased) was going on his Boxer motorcycle on the Neelon bridge towards village Mundian. The complainant along with Avtar Singh son of Karnail Singh on their motorcycle were going towards village Kuhara in connection with their domestic work. At about 7 am, Kulwinder Singh @ Satti (deceased) was just ahead of them on the Neelon bridge. At that time a truck bearing registration No.PB-11 B-9848 came in a rash and negligent manner at a very high speed and without blowing any horn or giving any indicator hit the motorcycle of Kulwinder Singh @ Satti (deceased) while coming on the wrong side of the road. The motorcycle of Kulwinder Singh @ Satti was dragged by the truck and Kulwinder Singh @ Satti (deceased) received multiple injuries on his head and right thigh. The truck driver came down from his truck and disclosed his name as Mohammad Farook (petitioner). While the complainant Jail Singh and Avtar Singh were attending the injured Kulwinder Singh @ Satti, the petitioner ran away from the spot. The complainant and Avtar Singh after arranging some vehicle got the injured admitted at Sidhu Hospital, Doraha. The doctor there referred the patient to Civil Hospital, Samrala. However, on the way, Kulwinder Singh @ Satti (deceased) died. The accident according to the complainant had occurred due to the rash and negligent driving of the truck driver (petitioner). After recording the statement of the complainant, ruqa (memo) was sent by SI Jasdev Singh to the Police Station for registration of FIR on the basis of which formal FIR was registered. The investigations were carried out at the spot. The site plan of the place of occurrence was prepared. Crl. Rev. No. 867 of 2009 3 Thereafter, the post mortem on the dead body of Kulwinder Singh @ Satti was conducted. The prosecution after completing its investigation, filed a chargesheet (challan). The learned Sub Divisional Judicial Magistrate, Samrala finding a prima facie case for the offences under Sections 279 and 304-A IPC having been committed, charged the petitioner for the said offences to which he pleaded not guilty and claimed trial. The prosecution examined Jail Singh (PW1), Avtar Singh, eye-witness (PW2), Gagandeep Singh (PW3), Dr. Major Singh, Medical Officer, Civil Hospital, Khanna (PW4), Sukhdev Singh (PW5) and ASI Jagdev Singh (PW6). The statement (Ex.P1) of Jail Singh – complainant (PW1), photographs (Exs.PW3/A to PW3/D), the post mortem report (Ex.PW4/A), the pictorial diagram (Ex.PW4/B), memo (Ex.PW5/A), mechanical test report (Ex.PW5/B), police proceedings (Ex.PW6/A), FIR (Ex.PW6/B), inquest report (Ex.PW6/C), statement (Ex.PW6/D), statement of Malkit Singh (Ex.PW6/E), the site plan (Ex.PW6/G), recovery memos (Exs.PW6/H and PW6/I) and personal search (Ex.PW6/J) were tendered in evidence. The statement of the petitioner in terms of Section 313 of the Code of Criminal Procedure (“CrPC” – for short) was recorded. The evidence appearing against him was put to him, which was denied by him. He pleaded his false implication. The learned trial Magistrate considered the question whether the petitioner in the area of Neelon bridge had driven his truck in a rash and negligent manner resulting in the death of Kulwinder Singh on 29.1.2004 at 7.00 a.m. After considering the material on record, the petitioner was convicted for the offence under Section 279 IPC and sentenced to undergo rigorous imprisonment for three months, besides to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for 20 days for the said offence. He was also convicted to rigorous imprisonment for one and a half years, besides, to pay a fine of Rs.3000/- and in default of Crl. Rev. No. 867 of 2009 4 payment of fine, to undergo further rigorous imprisonment for four months for the offence under Section 304-A IPC. Both the sentences were ordered to run concurrently. In appeal the learned Additional Sessions Judge, Fast Track Court, Ludhiana found no illegality in the judgment of conviction and order of sentence passed by the learned Trial Magistrate. Accordingly, the same was upheld and the appeal dismissed in its entirety being without any merit. The petitioner aggrieved against the same has filed the present revision petition. Learned counsel for the petitioner has submitted that the prosecution has failed to establish the place and time of the alleged accident. According to the learned counsel, the place of accident according to the eye- witnesses Jail Singh – complainant (PW1) and Avtar Singh (PW2) is near the Neelon bridge, whereas in the inquest report (Ex.PW6/C) it is shown to have taken place near Doraha Railway crossing which is at a distance about 9-10 kms from the alleged place of occurrence according to ASI Jagdev Singh (PW6). It is submitted that the rough site plan (Ex.PW6/G), according to the Investigating Officer was prepared on the date of the alleged occurrence. However, the same did not depict about the place of the alleged accident; inasmuch as it is not mentioned as to in which direction is Village Ghulal and from where the injured and the alleged eye-witnesses came. Even Gagandeep Singh (PW3) Photographer has not mentioned regarding the place of occurrence of which he took photographs. It is also submitted that according to the eye-witnesses they had arranged a private vehicle for taking injured Kulwinder Singh @ Satti to Sidhu Hospital, Doraha. However, in the meantime, a police van (Ambulance) reached there and they shifted Kulwinder Singh @ Satti to the police van. The said fact is not recorded by the Investigating Officer in the statement that was recorded soon after the alleged Crl. Rev. No. 867 of 2009 5 occurrence on 29.1.2004. The police officials had accompanied the eye- witnesses to Sidhu Hospital, Doraha and thereafter to the Civil Hospital, Samrala in the police van. However, the statements of the police officials were not recorded. No independent witness was examined even though about 50-60 persons are stated to have gathered at the place of occurrence. It is also stated that as per the post-mortem report, the injured Kulwinder Singh @ Satti died immediately within minutes after the accident, however, according to the eye- witnesses, he was taken to Sidhu Hospital, Doraha and the doctor there referred the injured to Civil Hospital, Samrala and when they reached there at about 11.00/11.15 a.m., he was found dead. It is submitted that Jail Singh complainant (PW1) and Avtar Singh (PW2) are close relations of Kulwinder Singh (deceased) and they have been introduced and they were in fact not present at the time of occurrence. They have been examined to help the LRs of the deceased Kulwinder Singh for claiming compensation. In the circumstances, it is submitted that the charges against the petitioner for the offences under Sections 279 and 304-A IPC are not made out. In response, learned counsel for the State has submitted that the prosecution has proved its case against the petitioner in all material aspects and both the Courts below have concurrently found the petitioner to be guilty of the offences for which he was charged. Therefore, this Court in exercise of its revisional jurisdiction is not to re-appreciate the evidence and come to a conclusion different from that recorded by the learned Courts below. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties. Jail Singh complainant (PW1) has stated that on 29.1.2004, he was going to village Kuhara along with Avtar Singh on a scooter. On that day, Kulwinder Singh @ Satti (deceased) who is a nephew of the complainant Jail Singh (PW1) was going on his Boxer Crl. Rev. No. 867 of 2009 6 motorcycle on the Neelon bridge from village Ghulal to village Mundian for selling milk. At about 7 am, the complainant Jail Singh (PW1) and Avtar Singh (PW2) reached near Neelon bridge, then the offending truck being driven in a rash and negligent manner and without blowing any horn or giving any indicator hit the motorcycle of Kulwinder Singh @ Satti (deceased) by coming on the wrong side of the road. The motorcycle of Kulwinder Singh @ Satti was dragged by the truck to a distance of about 12 feet ahead of the accident. Kulwinder Singh @ Satti (deceased) suffered multiple head injuries. When the truck driver stopped his truck at a distance of about 12 feet ahead of the accident, he came down from his truck and disclosed his name as Mohammad Farook (petitioner). Jail Singh complainant (PW1) was cross- examined by the learned counsel for the petitioner. Avtar Singh (PW2) also deposed on the same lines as the complainant Jail Singh (PW1) and he was also cross-examined at length. However, nothing favourable for the petitioner could be brought out from the depositions of the said witnesses. Gagandeep Singh (PW3) Photographer had taken photographs of the place of occurrence and he produced the photographs as Exs.PW3/A to PW3/D. Learned counsel for the petitioner has submitted that the negatives of the photographs were not exhibited and therefore, the photographs were inadmissible in evidence. The primary evidence in the case is that of the negatives, however no objection was raised by the learned counsel for the petitioner when the photographs (Exs. PW3/A to PW3/D) were tendered in evidence. Gagandeep Singh, Photographer (PW3) was not even cross-examined in this regard. Therefore, the objection that the negatives of the photographs were not exhibited and in their absence the photographs were inadmissible in evidence is without basis. The objection as to the inadmissibility of the documents in the absence of cross-examination in this regard and in the absence of any objection when Crl. Rev. No. 867 of 2009 7 these were exhibited, is without substance. Dr. Major Singh, Medical Officer, Civil Hospital, Khanna (PW4) was examined. He received the dead body of Kulwinder Singh and he conducted post-mortem on the same. The cause of death in the opinion of the doctor was head injury due to injury No.1 which was sufficient to cause death in ordinary course of nature. Injury No.1 was a lacerated wound , ‘V’ shaped of the size 7cm x 7 cm present on the right side of forehead near hair line. Blood was present all over the scalp and neck, the underlying bone was fractured through wound and brain matter was coming out. On dissection, right frontal bone was crushed, brain was lacerated and underlying hematoma was present in the left occipital area (4 cm x 3 cm). There were six other injuries, besides the said injury, which were on the right eye brow, right side of chin, right thigh, right knee cap and left wrist. Probable time that had lapsed between death and injury is stated to be six hours. The contention of the learned counsel for the petitioner is that in case the death of Kulwinder Singh @ Satti had occurred immediately then it cannot be said that, when the injured Kulwinder Singh @ Satti was taken to Sidhu Hospital at Doraha he was referred to Civil Hospital, Samrala. In the event of immediate death, it is contended, there was no time to refer the injured to Civil Hospital as he had died. The said contention, however, is without basis as the present is a case where death has occurred due to an accident. The possibility of the doctor at Sidhu Hospital, Doraha referring the injured to Civil Hospital, Samrala so as not to be involved and the matter rather be considered by the Government doctor cannot entirely be ruled out. Besides, there is no cross-examination of Dr. Marjor Singh (PW4) in this regard. This aspect was liable to be put to him so as to get a clear picture in this regard. In the absence of cross-examination, Crl. Rev. No. 867 of 2009 8 the contention as raised is without any basis. A party is to put its case to a witness under cross-examination and failure to do so is deemed to be admitted. Sukhdev Singh (PW5) examined the motorcycle of the deceased that was involved in the accident and also the offending vehicle. His report is Ex.PW5/A of the motorcycle and Ex.PW5/B of the offending truck which have been tendered in evidence. ASI Jagdev Singh (PW6) who conducted the investigations was examined. He was cross-examined by the learned counsel for the petitioner. The discrepancies and contradictions which have been highlighted by the learned counsel for the petitioner have been duly considered by the Courts below. The place and time of accident have been established by the deposition of the eye-witnesses Jail Singh complainant (PW1) and Avtar Singh (PW2). The accident had occurred at Neelon bridge at about 7.00 a.m. while Kulwinder Singh @ Satti was going to sell milk. He was dealing in the sale of milk. The contention that the accident is shown to have occurred near Doraha Railway crossing in the inquest report (Ex.PW6/C) is without basis. The basic purpose of holding an inquest is to determine regarding the apparent cause of death, i.e. whether it is homicidal, suicidal, accidental or on account of some other mode. It is not to be used for other purposes except to contradict the maker thereof. In the face of the eye-witnesses account as to the place of the occurrence, the mere fact that a different place has been mentioned in the inquest report is inconsequential. In fact it was neither necessary nor obligatory on the part of the Investigating Officer to record in the inquest report as to the place of the accident. The contention that the rough site plan (Ex.PW6/G) does not depict the place of occurrence is also not tenable. The site plan has been seen from the brief of the counsel. The site plan depicts the road from Ludhiana to Samrala. The North, South, East and West have also been mentioned. Mark Crl. Rev. No. 867 of 2009 9 ‘A’ is the point along the Ludhiana from Samrala road towards the old bridge road where the motorcycle make Boxer bearing No.PB-26B- 6860 was hit by truck bearing No.PB-11B-9848. The fact that village Ghulal has not been depicted is inconsequential and no prejudice has been caused to the petitioner on this account. Gagandeep Singh, Photographer has proved the photographs about the place of occurrence. The fact that he did not identify the location is inconsequential and it was for the learned counsel for the defence (petitioner) to cross-examine him in this regard. The evidence and material on record is cogent and convincing and both the Courts below have held the petitioner guilty of the offence. This Court in exercise of its revisional jurisdiction is not to re-appreciate the evidence that has been recorded. This Court in exercise of its revisional jurisdiction can call for the records of any proceedings for the purposes of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. The revisional jurisdiction is supervisory in nature and is to be exercised for correcting miscarriage of justice. However, it cannot be equated with the power of an appellate jurisdiction nor can it be treated as a second appellate jurisdiction. Ordinarily this Court is not to re-appreciate the evidence and come to a conclusion on the same when the evidence has already been appreciated by the Magistrate as well as by the learned Additional Session Judge in appeal. The evidence may be re-appreciated if there are glaring features which are brought to the notice of this Court, which would otherwise tantamount to miscarriage of justice. No such glaring feature has been brought to the notice of this Court from which it can be said that a failure of justice has been occasioned. Therefore, the findings and conclusions recorded by the Courts below are not such which would warrant any interference by this Court in exercise of its revisional jurisdiction. Crl. Rev. No. 867 of 2009 10 It may, however, be noticed that the petitioner has been sentenced to undergo rigorous imprisonment for one and a half years for the offence under Section 304-A IPC. The accident in the case had occurred on 29.1.2004 and the petitioner has undergone the travails and prosecution for five years. The gross and negligent act on his part has resulted in the death of Kulwinder Singh @ Satti who was a Milk vendor. In the facts and circumstances, the ends of justice would be met if the sentence of imprisonment of the petitioner for the offence under Section 304-A IPC is reduced from one and a half years to one year. However, the said sentence shall run concurrently with the rigorous imprisonment of three months for the offence under Section 279 IPC. Besides, the sentence of fines as imposed and the consequences in the event of default shall remain intact as they are. With the modification in the sentence of imprisonment of the petitioner by reducing it from one and a half year to one year for the offence under Section 304-A IPC, the criminal revision petition stands dismissed. (S.S. SARON) JUDGE May 15, 2009 amit