Crl. Revision No.922 of 1998 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Revision No.922 of 1998 Date of Decision: 21 - 1 - 2010 Keshav .....Petitioner v. State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA *** Present: Mr.Manoj Bajaj, Advocate for the petitioner. Mr.Deepak Jindal, DAG, Haryana. *** KANWALJIT SINGH AHLUWALIA, J. (ORAL) The present revision petition has been preferred by Keshav son of Gutti. He was named as accused in case FIR No.166 dated 26.5.1991 registered at Police Station Forozepur Jhirka under Sections 279/304-A IPC. The FIR was lodged on the basis of statement made by Nasru. He stated that he is a resident of village Niharka and do agriculture work. On 25.5.1991, he along with his wife Majidan and daughter Samsida aged 1½ years was waiting at Biwa Road for some conveyance to arrive. They had to return to their village after purchasing grocery from the Bazar. They were standing on the side of the road. At about 5.30 P.M., one private bus came in a rash and negligent manner and without blowing the horn, turned Crl. Revision No.922 of 1998 [2] towards the Bus Stand. At that time, his daughter Samsida came below the front tyre of the bus. The daughter of the complainant died at the spot. The bus was having registration No.RJD-1405 and name of the driver was Keshav son of Kutti. In the above said FIR, report under Section 173 Cr.P.C. was submitted. The Court of Judicial Magistrate Ist Class, Ferozepur Jhirka charged the petitioner for offence under Section 279 and 304-A IPC, for having caused death of Samsida on 25.5.1991 by driving the bus bearing registration No.RJD-1045. The petitioner pleaded not guilty and claimed trial. Nasru appeared as PW1, his wife Majidan as PW2, Constable Sher Singh as PW3 and Chhotu Ram, Mechanic of Haryana Roadway appeared as PW4 to prove medical test report Ex.PW4/A. Dr.J.K.Saini PW5 had conducted post-mortem examination of Samsida aged 1½ years and stated that cause of death was shock and hemorrhage due to injuries suffered by the deceased. The trial Court convicted the appellant for offence under Sections 279/304-A IPC. He was sentenced to undergo simple imprisonment for three months under Section 279 IPC and one year under Section 304-A IPC. Both the sentences were ordered to run concurrently. The appeal filed by the petitioner was also dismissed by the Court of Additional Sessions Judge, Gurgaon who upheld the conviction and maintained the sentence. Counsel for the petitioner has raised following two submissions before me:- Firstly, it has been contended that from the reading of Crl. Revision No.922 of 1998 [3] testimony of PW1 Nasru and PW2 Majidan, it is evident that they have no where stated that petitioner was driving the bus in a rash and negligent manner. Counsel submitted that only allegation levelled by these witnesses is that petitioner was driving the bus at a high speed. Therefore, counsel state that prosecution has failed to prove the necessary ingredients of offence under Section 279/304-A IPC. Secondly, it has been urged that it has come in the testimony of PW2 Majidan that when she was standing on the road side, waiting for the conveyance, she was carrying a Gathri (luggage tied in a piece of cloth). It is contended that in cross-examination she stated that she was carrying a Gathri on the head and on the road side she had kept one hen, whose feet were tied. Counsel further state that PW1 has stated that his daughter was under the care of his wife. Referring to the statement of Majidan PW2, it was stated that at that time their relative Mehmoodan met them. At that time girl slipped towards the road and the accident took place. Counsel state that it was the responsibility of the mother to watch that her daughter should remain on the pavement of road and should not go in the middle of the road which was frequented by heavy vehicular traffic. To lend support to this argument, counsel for the petitioner has submitted that prosecution has not examined the Draftsman or a Photographer. Therefore, whether the occurrence took place in the middle of the road or side of the road, cannot be comprehended by the Court, as the visual observations which are necessary to arrive at the conclusion, have been withheld by the prosecution. In support of the first argument, counsel for the petitioner has relied upon State of Karnataka v. Satish, (1998)8 SCC 493. Para 4 of the Crl. Revision No.922 of 1998 [4] judgment read as under:- “4. Merely because the truck was being driven at a “high speed” does not bespeak of either “negligence” or “rashness” by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by “high speed”. “High speed” is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by “high speed” in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of “rashness” or “negligence” could be drawn by invoking the maxim “res ipsa loquitur”. There is evidence to show that immediately before the truck turned turtle, there was big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.” Crl. Revision No.922 of 1998 [5] Counsel for the State, Mr.Deepak Jindal, Deputy Advocate General, Haryana has stated that PW1 Nasru and PW2 Majidan are truthful witnesses and they have been believed by the two Courts below, therefore, the findings of fact arrived at by two Courts below should not be set aside. It is further submitted that it has come in evidence that there was a curve on the road for going to the Bus Stand and driver was expected to slow down the vehicle. I have considered the submissions made by counsel for the parties before me. For arriving at a conclusion that petitioner was rash and negligent, first this Court has to examine whether the parents of the child had acted like a prudent person and had taken care of the child and watched her moments or not? From the evidence, it can be safely inferred that when couple was standing on the side of the road, Mehmoodan uncle of Nasru had arrived there. They started exchanging pleasantries with each other. Majidan was carrying a Gathri on her head and a hen was lying on the ground. The child could not be restrained and she moved towards the road. Since, in the present case neither the Draftsman nor the Photographer has been examined, this Court is unable to decide whether the accident took place on the side of the road or in the middle of the road. This Court cannot lose sight of the fact that witnesses in Court have not deposed that driver was driving the vehicle rashly or negligently. Thus, it can be safely inferred that Nasru PW1 and Majidan PW2 being parents had not taken care of their daughter aged 1½ years. Counsel has rightly relied upon case of Satish's case (supra) to say that mere driving at high speed will not constitute rash and negligent driving, unless the witnesses depose to this effect. Taking Crl. Revision No.922 of 1998 [6] totality of these circumstances, it will not be safe to upheld the conviction of the petitioner. Therefore, as a matter of abundant caution, petitioner is granted the benefit of doubt. For the reasons stated above, the present revision petition is accepted and petitioner is acquitted of the charges and sentence awarded to him by two Courts below is set aside. ( KANWALJIT SINGH AHLUWALIA ) January 21, 2010. JUDGE RC