IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.671 of 2002 Date of Decision: 10.03.2009 Krishan Kumar Petitioner Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH Present: Mr.R.N.Lohan, Advocate for the petitioner Mr.S.S.Randhawa, Addl.A.G. Haryana for the respondent-State …. Jasbir Singh, J. (Oral) It was allegation against the petitioner that on 25.8.1995, he and one Kanwaljeet Singh, had caused death of Subhash by rashly driving Gypsy bearing No.DNH-0243 and three-wheeler bearing No.HR-46-4624, respectively. Vide judgment and order dated 30.1.1999, both were convicted for commission of offences under Sections 279 and 304-A IPC. They were ordered to undergo six months rigorous imprisonment for commission of an offence under Sections 279 IPC and two years rigorous imprisonment for commission of an offence under Section 304-A IPC. They were ordered to pay a fine of Rs.5000/- each with a default clause. Both went in appeal. Criminal Revision No. 671 of 2002 2 Appeal filed by co-accused Kanwaljeet Singh was accepted, however, one filed by the petitioner was dismissed. Hence, this revision petition. Case of the prosecution, as noticed by the appellate Court below in paragraph No.3 of its judgment, reads thus:- “Prosecution case, in brief, is that on 25.8.95 Sh.Sri Niwas Head-Constable alongwith Bhudev Singh Constable was on patrolling duty in front of Bus-Adda Jind and he, on receipt of rukka alongwith copy of M.L.R. pertaining to Subhash and Kailash, reached Civil Hospital, Jind and obtained the opinion of the doctor regarding condition of the injured but it was reported by the doctor that the injured were referred to Medical College and Hospital Rohtak. Then the Head-Constable reached the place of occurrence and he recorded the statement of Sukhdev Singh Constable No.826. It was stated by the Constable that he was on general duty alongwith Bijender Singh constable. They were going towards Police Lines Jind via bus- stand Jind and when they reached near Jind Public School, one motor-cycle Hero Honda bearing No.HR-20/2123 on which two persons were sitting came at a proper speed from the side of bus-stand and Subhash was driving that motor cycle while Kailash was pillion rider. It is further alleged that Subhash crossed a rehri and took his motor cycle on the right side and in the meantime a three wheeler came from the side of Pindara and that three wheeler was being driven by Kanwaljeet Singh accused-appellant in a rash or negligent manner. The same Criminal Revision No. 671 of 2002 3 struck against the motor-cycle. Consequently, mud-guard was broken. The occupants of the motor cycle fell down and sustained injuries. Both the injured were removed to the hospital. It is also stated that the complainant-constable and Bijender Singh remained at the spot to control the traffic. On this report, present case was registered and investigated. Rough site plan of the place of occurrence was prepared. Three wheeler and motor cycle etc were taken into possession. As a result of injuries sustained in the accident Subhash died in Medical College and Hospital Rohtak. His body was subjected to post mortem examination. The vehicles were got mechanically examined. During investigation, it has transpired that Krishan accused-appellant was driving the gypsy bearing No.DNH-0243 in a rash and negligent manner and struck against the motor cycle from behind and consequently, the accident was caused resulting in death of Subhash and injuries to Kailash pillion rider. Both the accused were arrested and on completion of investigation, challan was put up.” On completion of investigation, final report was put in Court for trial. The petitioner and his co-accused were charge sheeted for commission of offences under Sections 279 and 304-A IPC, to which they pleaded not guilty and claimed trial. Prosecution produced 8 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the petitioner and accused were recorded under Section 313 Cr.P.C. Criminal Revision No. 671 of 2002 4 Incriminating material existing on record was put to them, which they denied, pleaded innocence and false implication. However, they led no evidence in defence. The trial Court on appraisal of evidence found them guilty and accordingly, he was convicted and sentenced as found mentioned in earlier part of this order. He also failed in appeal. Counsel for the petitioner has vehemently contended that the petitioner was wrongly framed in this case. In the First Information Report, his name was not mentioned as an accused. During investigation, after about two days, it was alleged against him that he had hit the deceased’s motorcycle from behind by rashly and negligently driving the offending vehicle bearing No.DNH-0243. Counsel further argued that accident was caused by Kanwaljeet Singh, who was wrongly let off by the appellate Court below. By making reference to the discrepancies in the statements made by the prosecution witnesses, counsel prayed that the revision petition be allowed and judgments under challenge be set aside acquitting the petitioner of the charges framed against him. Prayer made has vehemently been opposed by Mr.Randhawa the State counsel. He supported judgments passed by the Courts below and prayed that appeal having no substance be dismissed. After hearing counsel for the parties, this Court feels that in view of evidence on record, it is not possible to interfere on merits. Registration of FIR, in this case was very prompt. It has come on record that during investigation, it transpired that it was the petitioner who had hit the motorcycle from behind, which resulted into death of Subhash and causing Criminal Revision No. 671 of 2002 5 injuries to Kailash (PW1). The trial Court on appraisal of evidence has come to a conclusion that if the vehicle driven by the petitioner had not struck, from behind the motorcycle driven by the deceased, it would not have further struck against the three-wheeler and the accident in question could have been avoided. Involvement of the petitioner in the accident was affirmed by Rajinder Singh (PW2) and Surender (PW3), who were the eye witnesses. It has come on record that when inquest report was prepared, above mentioned witnesses had mentioned name of the petitioner as an accused. Merely because, Sukhdev Singh (PW7) has not mentioned name of the petitioner, will not absolve him of the criminal liability. This witness has clearly stated that report (Ex.PW7/A) was not correct, because of accident, he was perplexed and nervous and failed to give name of the petitioner in the FIR. Otherwise also, their Lordships of the Hon’ble Supreme Court in Raj Kumar v. State of H.P., 2008(3) R.C.R. (Criminal) 611, has opined that scope to interfere in revision, in judgments passed by the Courts below involving offences under Sections 304-A and 279 IPC, is very limited. Faced with the situation, Mr.Lohan argued that the accident had taken place in the year 1995. The petitioner, who is a young Engineer, is suffering agony of criminal prosecution for the last about more than 14 years. On account of his conviction in this case, he has failed to get entry in the government job. Now he has a grown up family and is the only bread winner of the family. If at this stage, the petitioner is sent behind the bars, not only he, but his entire family will suffer. He also assured this Court that in future the petitioner will drive the vehicle in a very cautious manner. After conviction in this case, the petitioner has not indulged himself in any other Criminal Revision No. 671 of 2002 6 crime of the like nature. He prayed that an opportunity to reform himself be awarded to the petitioner. It was also brought to the notice of the Court that he has already undergone about four months of actual sentence. Prayer made has vehemently been opposed by the State counsel. He states that these days, it has become a fashion to drive fast and in a careless manner and if leniency is shown to the petitioner, it will give a wrong message to the society and encourage others to commit similar offence (s). He further states that the case against the petitioner is proved on record and as such, he deserves no sympathy. Purpose of criminal law justice system is not only to punish an erring individual but is also to give an opportunity to him to reform himself. Their Lordships of the Supreme Court in Karamjit Singh versus State(Delhi Admn.), 2001 (9) Supreme Court Cases 161, in paragraph No.7 observed as under:- "Punishment in criminal cases is both punitive and reformative. The purpose is that the person found guilty of committing the offence is made to realise his fault and is deterred from repeating such acts in future. The reformative aspect is meant to enable the person concerned to relent and repent for his action and make himself acceptable to the society as a useful social being. In determining the question of proper punishment in a criminal case, the court has to weigh the degree of culpability of the accused, its effect on others and the desirability of showing any leniency in the matter of punishment in the case. An act of balancing is, what is needed in such case: a balance between the interest of the individual and the concern of Criminal Revision No. 671 of 2002 7 the society; weighing the one against the other. Imposing a hard punishment on the accused serves a limited purpose but at the same time, it is to be kept in mind that relevance of deterrent punishment in matters of serious crimes affecting society should not be undermined. Within the parameters of the law an attempt has to be made to afford an opportunity to the individual to reform himself and lead the life of a normal, useful member of society and make his contribution in that regard. Denying such opportunity to a person who has been found to have committed offence in the facts and circumstances placed on record, would only have a hardening attitude towards his fellow beings and towards society at large. Such a situation, has to be avoided, again within the permissible limits of law." Counsel for the petitioner has relied upon two judgments of the Hon’ble Supreme Court in Sukhdev Singh v. State of Punjab, 1982 C.A.R. 280(SC) and Aitha Chander Rao v. State of Andhra Pradesh, 1982 C.A.R. 5 (SC), to contend that petitioner be released on probation. Their Lordships of the Hon’ble Supreme Court in Paul George v. State of NCT of Delhi, (2008) 4 Supreme Court Cases 185, by taking note of a fact that accident had occurred 20 years earlier, ordered that the convict be released on probation. Keeping in view facts and circumstances of this case and ratio of judgments mentioned above, conviction of the petitioner is upheld, however, sentence of imprisonment awarded to him is set aside and he is ordered to be released on probation under Section 4(1) of the Probation of Offenders Act, 1958, for a period of six months. By taking note of a fact that due to rash and Criminal Revision No. 671 of 2002 8 negligent driving by the petitioner, one valuable human life has lost and also in view of ratio of judgments of the Hon’ble Supreme Court in Baldev Singh and another v. State of Punjab, AIR 1996 Supreme Court 372 and Manish Jalan v. State of Karnataka, (2008) 8 Supreme Court Cases 225, fine imposed upon him is enhanced to Rs.50,000/- over and above the fine already imposed by the trial Court. The petitioner is directed to deposit the above said amount, within three months from today, with the trial Court. On deposit so being made, the trial Court shall issue notice to the legal heirs of the deceased and disburse the above said amount to them forthwith. It is made clear that in case enhanced amount is not deposited, as directed above, this revision petition shall be deemed to have been dismissed. The petitioner shall also execute bail bonds and file an undertaking before the trial Court that he would act like a disciplined citizen and will not indulge in any crime of the same nature during the period of probation. He is directed to furnish bail bonds and file an undertaking before the trial Court within three months from today. With above mentioned modification, this revision petition stands disposed of. 10.03.2009 (Jasbir Singh) gk Judge