IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1164 of 1999 Date of decision: 1st May, 2009 Surjit Singh … Petitioner Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. S.S. Hira, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present revision petition has been filed by Surjit Singh son of Munshi Ram, resident of Mandir, Tehsil Zira, District Ferozepur. Case FIR No. 10 dated 11.02.1995 was registered at Police Station Subhanpur under Section 304-A, 279 and 427 IPC. FIR was registered on the basis of statement (Ex.PL) made by Hardial Singh son of Avtar Singh, resident of village Bhusey. He stated in his statement that on 11th February, 1995, he along with his father’s younger brother Resham Singh, father’s sister’s husband Dara Singh, cousin Gurvinder Singh, father’s sister Jagir Kaur and another relative Sardool Singh was traveling in Tempo traveler bearing registration No. DL-IC-C8750, which was being driven by Charan Singh, son of Bhag Singh resident of 414/A, New Partap Nagar, Amritsar. They were going from Delhi to Amritsar. At 1.30 p.m., when they were little ahead of village Dialpur, then one truck bearing Criminal Revision No. 1164 of 1999 registration No. PB-09-6001 came from front side. Name of the driver was later learnt as Surjit Singh son of Munshi Ram, resident of Mandir, Tehsil Zira, District Ferozepur. The truck was coming from the side of Subhanpur at a very high speed and was overtaking one car. At that time, driver of the Tempo traveler, Charan Singh, to save himself, took Tempo traveler on the left side. Then driver of the truck Surjit Singh, without blowing any horn, in a rash and negligent manner, from rear side of the truck, hit the Tempo traveler. Due to the impact of the collusion, driver side of the Tempo traveler was badly damaged and the Tempo traveler went out of control and fell in the ditches on the left side, after hitting the eucalyptus tree. Due to this accident, Dara Singh husband of sister of the father of the complainant died at the spot. Other injured were taken to hospital at Hamira. In the way, driver of the Tempo traveler Charan Singh also died. It was stated in the FIR that due to rash and negligent driving of the truck driver, Dara Singh and Charan Singh had died in the accident. Thereafter, prosecution case was investigated. Report under Section 173 Cr.P.C. (challan) was submitted. Petitioner was charged by the Court of Additional Chief Judicial Magistrate, Kapurthala that on 11th February, 1995 at about 1.30 p.m. in the area of village Dayalpura, he has caused death of Dara Singh and Charan Singh, due to rash and negligent driving of truck No. PB-09-6001 and thereby he has committed an offence under Section 304-A IPC. Prosecution thereafter, examined PW-1 Contable Gurmej Singh. He had mechanically examined the Tempo traveler bearing registration No. DL-IC-C8750 and submitted his report (Ex.PA). He also mechanically examined offending truck Tata 1210 bearing registration No. PB-09-6001. Mechanical report of the truck was submitted as Ex.PB. Purshotam Singh Photographer appeared as PW-2. He proved photographs (Ex.P1 to P-10) along with negatives (Ex.P-11 to P- 2 Criminal Revision No. 1164 of 1999 15). In cross-examination, he stated that truck and Tempo traveler at the site of accident were at a distance of 60/70 yards. The truck was standing on the metalled road on its left side, whereas Tempo traveler was standing on Kachha Path, where eucalyptus trees were standing. Head Constable Lakhwinder Singh appeared as PW-3. He stated that on 11th February, 1995, he was joined by the investigating team. In his presence, ASI Gurmeet Singh had taken glass window panes into possession vide recovery memo (Ex.PD). He proved memo regarding recovery of the truck and Tempo traveler (Ex.PE and PF, respectively). He has stated that on 13th February, 1995, driving license of Surjit Singh accused (Ex.P-16) and registration of the truck (Ex.P-17) were taken into possession vide recovery memo (Ex.PJ). In cross-examination, he stated that distance between truck and Tempo traveler was 50 yards. PW-4 Dr. S.P. Surila had conducted autopsy on the dead body of Dara Singh and Charan Singh. Magh Singh Clerk from the office of DTO appeared as PW-5. He stated that offending truck was registered on the name of Assistant Engineer, STP, Northern Railway, Dhilwan. Avtar Singh Clerk from the office of DTO, Jalandhar proved driving license, which was on the name of accused Surjit Singh. PW-7 Hardial Singh was occupant of Tempo traveler and complainant. While appearing as witnesses, he has reiterated the version given by him in the FIR. In cross-examination, he has stated that they had gone to Delhi as her father’s sister had arrived from America and her flight had boarded at right time at 11.00 p.m. and she came out of the Airport after 2.30/3 hours. They started their journey from Delhi to Amritsar at 3.30/4 a.m. They had stopped in between at Rajpura for taking their food. At about 10/10.30 a.m. they stopped there for 1 ½ hours. Charan Singh driver was not related to them as the vehicle was hired by them. He admitted that at the place of accident, metalled road was 20 – 25 feet 3 Criminal Revision No. 1164 of 1999 wide. Three vehicles can ply at the same time on the road. He admitted that on the day of occurrence, it was not foggy but was cloudy. It was not raining at that time, but drizzling was there. In further cross-examination, he stated that driver of the truck, after accident had not run away but he had come to meet them. At that time, injured were taken to hospital in a vehicle belonging to Army. Resham Singh PW-8 corroborated the testimony of PW-7 Hardial Singh. He further stated in cross-examination that the eucalyptus trees, where Tempo traveler hit, were at a distance of 10/11 karm from the metalled road. He further stated that the truck driver remained with them for 5/7 minutes and they left the spot. He further stated that truck driver had given his address also. PW-9 ASI Gurmit Singh, Investigating Officer appeared and stated regarding investigation carried by him. Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded and all incriminating evidence was put to him. He stated in his statement recorded under Section 313 Cr.P.C. that he was innocent. He was driving the truck at a very low speed and from the front side a jeep (Tempo traveler) came at a very high speed in rash and negligent manner. The jeep (Tempo traveler) driver had made an attempt to overtake the cart and thereby had hit the back side of the truck. Therefore, the driver of the vehicle lost balance and the vehicle went towards the bushes and had hit eucalyptus tree. It is stated that accident had taken place due to rash and negligent driving of the Tempo traveler. In defence, he examined Dalbir Singh son of Gurdas Singh, Skilled Painter from the office of Northern Railway, Jalandhar. He deposed to lend corroboration to the statement made by the accused under Section 313 Cr.P.C. Petitioner was tried by the Court of Additional Chief Judicial Magistrate, Kapurthala, who found him guilty of offence under Section 4 Criminal Revision No. 1164 of 1999 304-A IPC and sentenced him to undergo rigorous imprisonment for 1 ½ years and to pay fine of Rs.1,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 ½ months. The trial Court held that the defence version is an afterthought and such a plea can be easily coined. The Court further held that since the accident has been committed by the accused petitioner, taking into consideration the testimony of witnesses, petitioner was held to be guilty. Thereafter, the petitioner had filed an appeal. The appellate Court found no merit in the appeal and the same was dismissed. Conviction and sentence of the petitioner was upheld. Counsel for the petitioner has submitted that it has come in evidence that Charan Singh driver of the Tempo traveler, on the same day i.e. 11th February, 1995 had started his journey from Amritsar to Palam Airport, Delhi and the distance from Amritsar to Palam Airport Delhi is 450 km. Therefore, counsel has submitted that it can be safely inferred that the driver went to the parking area and after the arrival of the sister of father of the complainant at the airport, return journey was undertaken. They started their journey at 4.00 in the morning. It is stated that at Rajpura they had taken a break for 1 ½ hours and after taking their food they started the journey towards Amritsar. Counsel has submitted that driver had been driving the vehicle for the whole night and he was not only tired was sleepy also. Counsel for the petitioner has further submitted that it has also come in evidence that on the day of occurrence, it was cloudy and it was drizzling. Counsel has further submitted that prosecution has failed to prove that Charan Singh was possessing a valid driving license and no witness to this effect has been examined by the prosecution. Counsel has submitted that on the photographs, it is apparent that truck is standing on 5 Criminal Revision No. 1164 of 1999 the road at its own right side. Therefore, it cannot be said that the driver of the truck committed breach of the road rules. Counsel for the petitioner has relied upon ‘Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra’ AIR 1965 Supreme Court 1616, to say that for imposing criminal liability under Section 304-A IPC, it is necessary that death should have been the direct result of rash and negligent acts of the accused and the act must be proximate and efficient cause without intervention of another’s negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. In that case, it was held that death was not direct result of rash and negligent act on the part of the accused. Counsel for the petitioner has submitted that from the mechanical report, it is evident that truck was in the perfect condition, except minor scratches on the rear portion. Offending truck had suffered no damage. Therefore, counsel for the petitioner has submitted that Tempo traveler driver, after loosing control, had gone into the ditches and hit the eucalyptus tree. Counsel has submitted that taking all the submissions cited above, the only inference which can be drawn is that accident was not due to the rash and negligent driving of the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab has stated occupants of the vehicle, Hardial Singh PW-7 and eye witness Resham Singh PW-8 have categorically stated that accident had taken place due to rash and negligent driving of the petitioner. Therefore, implicit reliance should be placed upon them. He has further stated that it has come in evidence that the truck driver was overtaking the car, therefore the accident took place. I have heard counsel for the parties. Certain broad features of this case assume importance. In the present case, it has come in evidence 6 Criminal Revision No. 1164 of 1999 that road, where the accident had taken place, was 25 feet wide. Three vehicles can ply on the road at the same time. From the photographs, it has come in evidence that truck was on the right side and when it stopped it was right on the berm of the metalled road, whereas the vehicle which was coming from the opposite side, after crossing Kachha path had fallen into the ditches and had hit the eucalyptus tree. In the facts and circumstances, no scratch marks are visible. It has also come in evidence that driver of the Tempo traveler had started journey from Amritsar and had reached Palam Airport at Delhi, thereafter, after waiting on arrival of travelers from America, on the same night, he had proceeded from Palam Airport, Delhi, to Amritsar. The driver had undertaken driving for the whole night. It is after crossing about 300 kms from Delhi, the accident had taken place. Fatigue syndrome cannot be overruled as from Amritsar to Palam (New Delhi) Airport – 450 kms, therefore, return journey on the same night, would have exhausted the driver. The direct cause of accident in the present case is hitting of the Tempo traveler with eucalyptus tree and that too due to falling in the ditches. It is also come in the evidence that petitioner, after stopping the truck, had contacted the occupants of the vehicle and offered his help and also has given his address. It is only after the injured and the deceased were taken to hospital in the vehicle of Army, he left the spot. From the conduct of the petitioner also, it cannot be inferred that he was responsible for the accident. Taking into consideration these very facts cumulatively, I am of the view that petitioner is entitled to benefit of doubt and hence, present petition is accepted and the petitioner is acquitted of the charges. [KANWALJIT SINGH AHLUWALIA] JUDGE May 1, 2009 rps 7