Crl. Rev. No. 562 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Rev. No. 562 of 2009 Date of decision: 17.4.2009 Suman Kumar Rana ….. Petitioner Versus State of Punjab ….. Respondent Present: Mr. Vikram Singh, Advocate for the petitioner. Mr. Sudhir Nehra, Addl. A.G., Punjab. **** S.S. SARON, J. The revision petition has been filed by the petitioner Suman Kumar Rana against the judgment and order dated 26.2.2009 passed by the learned Additional Sessions Judge, Bathinda, whereby the appeal of the petitioner against the judgment and order dated 19.12.2007 passed by the learned Chief Judicial Magistrate, Bathinda convicting the petitioner for the offence under Section 304-A Indian Penal Code (“IPC” – for short) and sentencing him to undergo rigorous imprisonment for a period of 2 years and also pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months has been dismissed. The records have been received. Heard counsel for the parties. The FIR (Ex. PW5/B) was registered on 14.11.2004 on the statement of Naik Raj Singh of Medium Regiment, Ambala Cantt. It is stated that he is working as Naik in 79 Medium Regiment, Ambala Cantt. The convoy of his regiment left Crl. Rev. No. 562 of 2009 -2- Ambala Cantt. at about 6.30 a.m. on 14.11.2004 for Suratgarh in Rajasthan for military exercises. Lt. Col. R.K. Malhotra was leading the convoy. The convoy also comprised of Captain Narinder Kumar Dahia (deceased). When the convoy reached 300 yards ahead of Reliance Petrol Pump towards Rampura Mandi, one 2.5 tonnes military vehicle got air locked. The complainant Naik Raj Singh and Captain Narinder Kumar Dahia (deceased) stopped there. The complainant Naik Raj Singh, Constable Gurwinder Singh and Captain Narinder Kumar Dahia reached near the air- locked military vehicle which was parked on the edge of the road on the un-mettaled (katcha) path thereof. Constable Sawinder Singh started examining the air-locked vehicle. Captain Narinder Kumar Dahia (deceased) was standing on the unmettaled (katcha) path on the left side towards the pits. At about 1.00 p.m. in the afternoon one Maruti car of white colour (offending vehicle) being driven rashly and negligently by its driver (petitioner) came from the side of Rampura. The said Maruti car crossed the road on the wrong side and struck against Captain Narinder Kumar Dahia. The car dragged Captain Narinder Kumar Dahia and when it stopped, he (Capt. Dahia) fell down. The wind screen of the offending car fell. The complainant reached near Captain Narinder Kumar Dahia and started taking care of him. The driver (petitioner) of the offending car got down from the same and came there. The wife of the driver namely Nishi Rana and his sons Karanbir Rana aged 12 years and Paramveer Rana aged 6 years were also traveling in the Maruti car. The driver disclosed his name as Suman Rana (petitioner). Captain Narinder Kumar Dahia had become unconscious. He was shifted to Civil Hospital, Rampura in some other vehicle. He succumbed to his injuries after sometime. The accident had occurred on account of the rash and negligent driving by the petitioner Suman Rana who crossed the road while driving the offending vehicle and came on the wrong side of the road. The statement of the complainant was recorded by ASI Darshan Singh. He made his endorsement and sent it to the Police Station Rampura, where FIR (Ex.PW5/B) was registered. The police investigated the case. The statement of Crl. Rev. No. 562 of 2009 -3- witnesses under Section 161 of the Code of Criminal Procedure (“CrPC” – for short) were recorded. The photographs of the accident were taken. The driving licence and Registration Copy of the Maruti car was taken in possession by the Police. The petitioner was arrested and later released on bail. After completion of investigation, charge report (challan) was filed by the police in terms of Section 173 CrPC. The learned Trial Magistrate charged the petitioner for having committed the offence punishable under Section 304-A IPC. The prosecution examined the complainant Naik Raj Singh (PW1), Constable Gurwinder Singh (PW2), Dr. Narinder Bansal (PW3), Head Constable Satpal Singh (PW4), Gurtej Singh (PW5) and ASI Darshan Singh (PW6). Three witnesses were given up as unnecessary. Besides, documents were tendered in evidence. The statement of the petitioner in terms of Section 313 CrPC was recorded and the evidence and material appearing against him was put to him. The petitioner denied the occurrence and pleaded false implication. In defence the petitioner examined, Gursewak Singh (DW1) and Sukhwinder Singh (DW2). The learned Chief Judicial Magistrate, Bathinda after considering the evidence and material on record convicted the petitioner for the offence under Section 304-A IPC. He was sentenced to undergo rigorous imprisonment for two years, besides, to pay a fine of Rs.10,000/- and in default of payment of fine to undergo simple imprisonment for a period of three months. The petitioner aggrieved against the order of his conviction and sentence passed by the learned Chief Judicial Magistrate, Bathinda filed an appeal. The learned Additional Sessions Judge, Bathinda to whom the appeal was assigned, finding no merit, dismissed the same vide order dated 26.2.2009. The petitioner aggrieved against the orders of his conviction and sentence has filed the present petition. Learned counsel for the petitioner has contended that there has been a mis-appreciation of the evidence on record. It is submitted that a perusal of the photographs show that there is a dent on the roof of the offending car, whereas there is no damage on the front side of the car or on the bonnet and grill or the head lights Crl. Rev. No. 562 of 2009 -4- or radiator. It is submitted that due to caving in of the roof, the front wind shield glass of the car had broken. This it is submitted is evident from the photographs. Besides, it is submitted that the site plan shows the military vehicle is standing on the unmettled (katcha) portion of the road at point ‘C’, whereas Capt. Narinder Kumar Dahia (deceased) is shown at point ‘B’. Point ‘C’ is just near the road, whereas point ‘B’ is further away in the middle of the unmettaled (katcha) portion. Therefore, according to the learned counsel, the military vehicle was near the road, where Captain Narinder Kumar (deceased) according to FIR was also standing. As such, it is submitted that the site plan does not tally with the statement of the complainant as recorded in the FIR. It is further submitted that Sukhwinder Singh (DW2) who was a nearby agriculturists had stated that a Roadways Bus being driven in a rash and negligent manner came from Barnala side and it struck against the military officer who was standing on the road. The body of the military officer was lifted in the air due to its impact with the bus and it fell on the roof of the car and the car went towards the right side. In cross-examination it was stated that the bus was of PEPSU Road Transport Corporation (PRTC). Therefore, it is submitted that the actual accident in the manner which it occurred has not been appreciated and there are glaring discrepancies in the evidence of the prosecution on account of which the petitioner is liable to be acquitted. In response, learned counsel appearing for the State has submitted that the learned trial Magistrate and the learned First Appellate Court have correctly appreciated the evidence and material on record and in appreciation of the same no miscarriage of justice is shown to have been caused to the petitioner. It is submitted that this Court is not to re-appreciate the evidence and material on record. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the respective parties. As has already been noticed, the accident in the case was reported by the complainant Naik Raj Singh who has appeared in the witness-box as PW1. In his deposition, it is stated that their Crl. Rev. No. 562 of 2009 -5- mechanic was repairing the 2.5 tonne vehicle of which there had been a breakdown. He and Constable Gurwinder Singh as also Captain Narinder Kumar Dahia (deceased) were standing near the vehicle on the left side. The mechanic was repairing the vehicle and at that time one Maruti car came from Bathinda side which was being driven by the petitioner. The car was at a high speed and the petitioner after making a cut by the said vehicle and by coming on the wrong side, struck the same into Capt. Narinder Kumar Dahiya. It struck against Capt. Narinder Kumar Dahiya by coming on the unmettaled (katcha) path. Capt. Narinder Kumar Dahiya then hit against a tree. Due to the injuries, he became unconscious and was shifted to the hospital. In the car the petitioner was accompanied by his wife and two children. The petitioner stayed at the spot after committing the accident. Captain Narinder Kumar Dahiya was taken to Civil Hospital, Rampura. The accident had occurred due to the fault of the petitioner. Capt. Narinder Kumar Dahiya died due to accidental injuries after about 20-25 minutes. Naik Raj Singh was cross-examined by the accused. However, nothing favourable from him could be brought out from the cross-examination. OPR Gurwinder Singh (PW2) was examined who had narrated the occurrence as was narrated by Naik Raj Singh (PW-1). He has supported the prosecution case. It is stated that the car driven by the petitioner came on the right side of the road and struck into Capt. Narinder Kumar Dahiya. OPR Gurwinder Singh (PW-2) was also cross-examined. However, nothing favourable for the petitioner could be brought out. He denied the suggestion that a bus came from Barnala side at a very high speed and struck against Capt. Narinder Kumar Dahiya and lifted him in the air. It is also denied that the car of the accused accidentally arrived at that place at the same time and the body of Capt. Narinder Kumar Dahiya was lifted by the bus and it fell on the car and the car went out of control due to the impact of the body of Capt. Narinder Kumar Dahiya striking against it. The car went towards the right, where it was stopped by the driver. It is also denied that the accident took place due to rash and negligent driving of the bus but since the body Crl. Rev. No. 562 of 2009 -6- fell on the car of the petitioner, he had been falsely involved in the case. It may be noticed that the suggestion that a bus had hit Capt. Narinder Kumar Dahiya on account of which his body was lifted in the air and it fell on the roof of the car being driven by the petitioner has not been put to Naik Raj Singh (PW1). In the statement of Gurtej Singh, Photographers (PW5), a reference is made to the photographs, which are exhibited as Exhibit P1 to P20 along with the negatives. The photographs on record show that car No. CH01C 0641 is completely on its wrong side on the berm of the road on its right side. The truck is parked on its left side of the road with its right tyres on the berm of the road and the left tyres away from the berm. In other words, it is parked mostly on the unmettaled portion. The photographs also show that the roof of the car has caved in substantially but there is a dent even on the bonnet of the car. Satpal Singh Head Constable Mechanic Police Lines, Bathinda (PW4) has stated that on 18.11.2004, he checked the Maruti car No.CH01C 0641 and gave his test report Ex.PW3/A. In cross-examination, he denied that he had given a wrong report at the instance of the Investigating Officer being a Police official. The vehicle was standing at Police Station Rampura. A perusal of the test report shows that it is mentioned that on checking the vehicle a dent and scratches were found on the bonnet of the vehicle. The front wind shield glass was broken. Besides, the car is compressed with a dent. It may be noticed that no suggestion was put to Head Constable Satpal Singh (PW4), Mechanic Police Lines as to the defence that had been set up that could a dent be caused on the roof of the car by the body of the Capt. Narinder Kumar Dahiya being thrown on it. ASI Darshan Singh (PW-6) was examined. He has proved the rough site plan Ex.PW5/C. A rough site plan of the place of accident with correct marginal notes was prepared. The accused was arrested vide memo Ex.PW5/G. Besides, the car was taken in possession vide memo Ex.PW2/B. A perusal of the site plan Ex.PW5/C shows that point ‘A’ is the place where the offending car No.CH01C 0641 was parked. The car is completely on the its right side of the road and on the unmettaled portion of the road towards its right. Crl. Rev. No. 562 of 2009 -7- Mark ‘B’ is the point where Capt. Narinder Kumar Dahiya has been stated to be standing. The said point is also on the unmettaled portion of the road between the road and the truck that is parked. Mark ‘C’ is the point where the military truck is shown to be standing. It is on the left side of the road. Mark ‘D’ is the place where Naik Raj Singh (PW1) had seen the occurrence. The said point is between the truck and the place where Capt. Narinder Kumar was standing. Point ‘E’ is the place where witness Gurwinder Singh (PW2) had seen the occurrence. It is also of a vantage point from where he could see the occurrence. Mark ‘F’ is the place from where the broken front wind shield glass was lifted. The said point is in front of the car which is indicative of the fact that the car was on its wrong side. The position therefore, is that towards East, Barnala town has been shown and towards West, Rampura town is shown. The truck was going from Barnala to Rampura. It is parked on the Southern side of the edge of the road which means it was on its left side. The offending car is coming from Rampura to Barnala which means from West to East and is on its wrong side as it is even beyond the edge of the road on its Southern side. The place where Captain Narinder Kumar Dahiya is stated to be standing is at Point ‘B’ which is on the South of the road and between the truck and the car, which means that the car came so much towards its right side that it hit Capt. Narinder Kumar Dahiya on the unmettaled portion of the Southern end of the road which is completely on its wrong side. The defence set up by the petitioner in his statement under Section 313 CrPC is that he was going from point ‘B’ which would mean as per the site plan from Rampura to Barnala i.e. from West to East. When he reached near the place of occurrence, he was driving his car at normal speed. There was a vehicle of the military standing on the road. When he reached near that place, the military officer was standing on the road with his back towards the road and facing the military vehicle. At that time, the bus cam from the opposite side i.e. from West to East at a fast speed and struck the officer and the body of the officer was lifted and he fell on Crl. Rev. No. 562 of 2009 -8- the roof of his car. The petitioner could not control the car due to the impact of falling of the officer on his car and his car went towards the right side where he stopped it. It is also stated that the prosecution witnesses were not present there at that time. Sukhwinder Singh (DW2), Ram Kumar and Sukhpal Singh it is stated by the petitioner in his statement under Section 313 CrPC were standing near the place of the accident and they had seen the entire occurrence. Later some other vehicle of the Army came there and the petitioner was falsely involved in the case. In defence, the petitioner examined Gursewak Singh (DW1) and Sukhwinder Singh (DW2). Gursewak Singh (DW1) stated that he was earlier serving in the Indian Miliarty and he remained in the Army upto 2006. About three years earlier their convoy was coming from Ambala and going to Suratgarh for exercise. This would mean that it was coming from Barnala towards Rampura. Capt. Narinder Kumar Dahiya according to Gursewak Singh (DW1) was traveling in a jeep driven by him. They were still behind Rampura Phul and they found a military truck was out of order. The driver of that truck namely Surinder Singh was trying to find fault in the Engine of the truck. Gursewak Singh (DW1) stopped the jeep behind the truck. Capt. Narinder Kumar Dahiya alighted from the jeep and went towards the driver of the truck who was finding fault in the truck. One of the tyre of the truck was on the unmettaled side by the side of the road and the main truck was standing on the road. Capt. Narinder Kumar Dahiya stood on the road having his back towards the main road and having his face towards the truck. None else was present there except Capt. Narinder Kumar Dahiya himself and Surinder Singh, the driver of the truck. A bus being driven at a very high speed, it is stated, came from the side of Barnala moving towards Rampura Phul. The said bus struck against the Captain as a result of which, the body of the Captain was lifted in the air. In the meantime, a car was coming from the side of Bathinda side (Rampura side) and the lifted body of the Captain fell on the roof of the car. The balance of the car got upset and the driver of the car could not control the car due to impact of the body. The car went towards the unmettaled Crl. Rev. No. 562 of 2009 -9- portion of the road. The body of the Captain fell on the road. The driver of the car stopped his car. In the meantime, officers of the Army came there and he (Gursewak Singh DW-1) told them the manner in which the accident took place. The officers prevailed upon the other Army personnel to make a false complaint against the accused (petitioner) as he was driving the car at that time. It is stated by Gursewak Singh (DW1) that the accident took place due to the rash and negligent driving of the bus driver who driving the bus. There was no fault on the part of the driver of the car for the death of the Captain. So a false case had been planted against the accused (petitioner). It is also stated that Naik Raj Singh (PW1) and Constable Gurwinder Singh (PW2) had not seen the accident but they came later. In cross-examination it is stated by Gursewak Singh (DW1) that police had interrogated him but his statement was not recorded. Naik Raj Singh (PW1) was in their unit on the day of the occurrence but he was not present at the spot. He did not note the number of the bus. The bus was private but he did not know the company of the bus. It is stated that it was incorrect to suggest that the accident took place with car No.CH01C 0641. A perusal of the statement shows that Gursewak Singh (DW1) though was of the army and is alleged to be present at the time of the accident, however, his statement was not recorded by the Police. However an important aspect to be noticed is that the petitioner in his statement under Section 313 CrPC does not name Gursewak Singh (DW1) as one of the witnesses who was present at the time of accident. He names Sukhwinder Singh (DW2), who has been examined besides he names Ram Kumar and Sukhpal to be present at the time of accident who have not been examined. It may also be noticed that Gursewak Singh (DW1) stated that a private bus had hit the car, the number of which he could not note down. However, Sukhwinder Singh (DW2) in his deposition in Court has stated that a Roadways bus came from Barnala side which was being driven rashly and negligently at very fast speed and it struck against the military officer who was standing on the road. A Maruti car, it is further stated, was coming from Bathinda side at the relevant time Crl. Rev. No. 562 of 2009 -10- and the body of the military officer which was lifted fell on the roof of the Maruti car coming from Bathinda side. The driver of the Maruti car could not control the car due to the falling of the body on the roof of the car which went towards the ‘khatan’ (pit) on its right side. A significant feature to be noticed is that Gursewak Singh (DW1) is not shown to be present at any time at the time of occurrence and his statement even has not been recorded at any stage by the police. It is only during his deposition in Court on 18.9.2007 as DW1 that he stated that a private bus had come and hit Captain Narinder Kumar Dahiya, whereas Sukhwinder Singh (DW2) states that a Roadways bus had hit Captain Narinder Kumar Dahiya. So much so the name of Gursewak Singh (DW1) does not even figure in the statement of the petitioner recorded under Section 313 CrPC in which he has stated that Sukhwinder Singh (DW2), Ram Kumar and Sukhpal Singh were standing at the place of the accident and they had seen the entire occurrence. Therefore, the possibility of Gursewak Singh (DW1) being introduced as a witness cannot be ruled out. Both the courts below have held the case to be established on the basis of evidence and material on record and it is not a case of misappreciation of the evidence on record which can be said to have occasioned a failure of justice. 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 an appellate jurisdiction. There is no glaring feature in the appreciation of the evidence on record by the Courts below which would warrant interference by this Court in exercise of its revisional jurisdiction. Besides, no such circumstances has been brought to the notice of this Court from which it can be said any miscarriage of justice has been occasioned. Therefore, the findings and conclusions reached at by the learned Courts below in convicting the petitioner cannot be said to be, in any manner, erroneous. Crl. Rev. No. 562 of 2009 -11- Learned counsel for the petitioner has, however, submitted that the petitioner may be released on probation or in any case his sentence be reduced. Learned counsel for the State has opposed the said prayer and submitted that keeping in view the facts and circumstances of the present case, the petitioner is not entitled to either of his prayer. It may be noticed that at the time of accident, the conduct of the petitioner has been such that he remained at the spot and was arrested from there. Besides, he was travelling with his wife and children. He has also undergone the travails of prosecution and trial about four and a half years from the date of occurrence i.e. on 14.11.2004. He has been sentenced