IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 523 of 2003 Date of Decision : August 30, 2010 Narinder Singh ....Petitioner Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Sandeep Majithia, Advocate Mr. P.S. Sidhu, Additional Advocate General, Punjab T.P.S. MANN, J. Vide judgment and order dated 12/13.6.2000, learned Judicial Magistrate 1st Class, Amritsar convicted the petitioner for offences under Sections 279, 304-A and 338 IPC and sentenced him as under:- i) Simple imprisonment for six months and fine of Rs.100/- for the offence under Section 279 IPC; ii) Simple imprisonment for two years and fine of Rs.500/- for the offence under Section 304-A IPC; and iii) Simple imprisonment for six months and fine of Rs.200/- for the offence under Section 338 IPC. Crl. Revision No. 523 of 2003 -2- The petitioner was also directed to undergo different sentences of imprisonment in default of payment of fine. All the sentences were ordered to run concurrently. Aggrieved of his conviction and sentence, the petitioner filed an appeal but the same was dismissed in toto by learned Additional Sessions Judge, Amritsar on 8.1.2003. Hence, the present revision. According to the prosecution, SI Gajinder Singh, SHO, Police Station Chheharta alongwith fellow officials was present on 8.11.1995 in Chheharta Chowk when he received an information that a private bus bearing registration No. PAB-1847 had caused an accident with a rickshaw carrying school children and killed occupants of the rickshaw. SI Gajinder Singh immediately rushed to the spot and found four of the children, namely, Shelly, Shikha, Shilpa and Palavi and the rickshaw puller Pal Singh lying dead there. Other occupants of the rickshaw, namely, Shikha d/o Ravi Kumar, Punam d/o Chiman Lal, Shelly d/o Jaswant Rai and Ruchi d/o Darshan Kumar, were lying there in injured condition. Sub Inspector Gajinder Singh recorded statement of Jasbir Kaur, who claimed to have witnessed the occurrence, on the basis whereof instant FIR No. 149 dated 8.11.1995 was registered for offences under Sections 304-A/279/337/338/427/428 IPC at Police Station Chheharta. After completion of investigation and presentation of challan Crl. Revision No. 523 of 2003 -3- by the police followed by framing of charges by the trial Court, the prosecution examined complainant Jasbir Kaur and her mother Jagir Kaur, eye-witnesses as PW1 and PW2 respectively, SI Gajinder Singh, Investigating Officer as PW2 (wrongly numbered), Onkar Nath, Clerk, D.T.O. Office, Amritsar as PW3, C. Jasbir Singh as PW4, Kirpal Singh, Photographer as PW5, LC Jasbir Singh, who mechanically tested the accidented vehicles as PW6, Dr. Gurmanjit Rai, who had conducted the post mortem of the deceased persons as PW7, ASI Kulwant Singh as PW8, Smt. Sunita Arora, Judicial Magistrate 1st Class, as PW9, ASI Jaswant Singh as PW10 and Dr.Sukhwinder Singh, Medical Officer, ESI Hospital, Amritsar, who had medically examined the injured children as PW10 (wrongly numbered). The petitioner was, thereafter, examined under Section 313 Cr.P.C. He denied the entire incriminating evidence brought on record by the prosecution. He pleaded that he was falsely implicated at the instance of complainant Jasbir Kaur, who had connived with the police as well as owner of the bus. However, he did not examine any evidence. Both the Courts below believed the prosecution version and convicted and sentenced the petitioner, as mentioned above. Learned counsel for the petitioner has submitted that the prosecution had not been able to establish the identity of the petitioner as the one, who was driving the offending vehicle at the time of the Crl. Revision No. 523 of 2003 -4- occurrence. PW1 Jasbir Kaur, who claimed herself to be an eye witness of the occurrence and examined by the prosecution in support of its case, had admitted in her cross-examination that she had become unconscious within 2/3 minutes of the occurrence and regained consciousness 2/3 days later. Therefore, she could not have made any statement before the police on the day of the accident itself. She had also stated of having received injuries in the accident but there is no medical evidence brought on record by the prosecution regarding the same. From the testimonies of PW1 Jasbir Kaur and PW2 Jagir Kaur, it stood established that Jagir Kaur used to run a tea shop near the place of the accident and she was being helped by her daughter Jasbir Kaur. Therefore, their presence near the place of the accident could not be doubted. Even Jasbir Kaur herself received injuries on her leg and hips. Immediately after the occurrence, a message was received by SI Gajinder Singh that the petitioner while driving the bus bearing registration No. PAB-1847 in a rash and negligent manner had run over school going children, who were sitting in a rickshaw. SI Gajinder Singh rushed to the spot and noticed the dead bodies of four children and the rickshaw puller at the spot. He then recorded statement Ex.PA of Jasbir Kaur and made an endorsement thereupon at 9.40 a.m. for sending the same to the Police Station and resultantly FIR Ex.PW2/B came to be recorded at Police Station Chheharta on the same day at 9.50 a.m. The special report was received by the Magistrate on 9.11.1995 at 10.10 a.m. Crl. Revision No. 523 of 2003 -5- It was specifically mentioned by Jasbir Kaur in her statement Ex.PA that the offending bus was being driven by Narinder Singh petitioner in a rash and negligent manner as a result of which the accident had taken place. Therefore, no benefit can be extended to the petitioner when PW1 Jasbir Kaur during her cross-examination stated that she had become unconscious and had regained consciousness after 2/3 days. It appears that under the stress of cross-examination PW1 Jasbir Kaur had stated that she had become unconscious after receiving injuries in the accident. As the petitioner had been named as the one, who was driving the offending vehicle at the time of the accident, the prosecution was not required to hold test identification parade. While appearing as PW1 and PW2, both Jasbir Kaur and Jagir Kaur, had identified the petitioner in the Court as the one, who was driving the offending vehicle at the time of accident. Learned counsel for the petitioner has further submitted that the testimony of PW10 Dr. Sukhwinder Singh could not be read in evidence as he was never offered for cross-examination by the defence. In his examination-in-chief, PW10 Dr. Sukhwinder Singh has stated that he had medico legally examined Shikha d/o Ravi Kumar and Punam, aged ten years and four years respectively on 13.11.1995. However, a perusal of the statement of PW10 would reveal that after he was examined-in-chief, he was offered for cross-examination and the defence counsel did not put even a single question to him to challenge his Crl. Revision No. 523 of 2003 -6- testimony. Therefore, from the testimony of PW10 Dr. Sukhwinder Singh, it stands established that Shikha daughter of Ravi Kumar and Punam had also received injuries in the accident in which Shelly Mehta, Shikha d/o Varinder Kumar, Shilpa and Palavi as well as Pal Singh, the rickshaw puller, had received fatal injuries. PW6 LC Jasbir Singh had mechanically tested the offending bus on 8.11.1995. As per his report Ex.PW6/A, the steering assembly, gear assembly, clutch assembly, foot broke and accelerator joint and links were found to be in order. The vehicle was still in working condition. Both the Courts below placed reliance upon the confessional statement Ex.PW9/A made by the petitioner before PW9 Ms.Sunita Arora, Judicial Magistrate 1st Class, Amritsar, which she recorded on 8.1.1996. Statement Ex.PW9/A was found to be reliable piece of evidence and when coupled with the testimonies of PW1 Jasbir Kaur and PW2 Jagir Kaur, is sufficient to sustain the conviction of the petitioner for the offences under Sections 279, 304-A and 338 IPC. Last submission made by learned counsel for the petitioner is that the petitioner has been facing the agony of criminal proceedings for the last about fifteen years. The petitioner is not a previous convict and the sole bread earner of his family. He has already undergone a substantive sentence of more than 4½ months out of the sentence of two years imposed upon him. Therefore, the petitioner be extended the Crl. Revision No. 523 of 2003 -7- benefit of probation, or, in any case, his substantive sentence of imprisonment be reduced to that already undergone by him. On account of the rash and negligent driving of the bus by the petitioner, four school going children as well as the rickshaw puller, in whose rickshaw they were traveling to their school, lost their lives while a few more children received injuries. Therefore, the petitioner does not deserve the benefit of probation. However, the substantive sentence of the petitioner for the offence under Section 304-A IPC deserves to be reduced from two years to 1½ years. Resultantly, the conviction of the petitioner for the offences under Sections 279, 304-A and 338 IPC is maintained. His substantive sentence of simple imprisonment of two years under Section 304-A IPC is reduced to simple imprisonment for 1½ years. The sentences of imprisonment and fine imposed upon the petitioner for the offences under Sections 279 and 338 IPC and so also the sentence of fine for the offence under Section 304-A IPC alongwith their default clauses are maintained. But for the reduction in the substantive sentence of the petitioner to the extent indicated above, the revision fails and is, accordingly, dismissed. ( T.P.S. MANN ) August 30, 2010 JUDGE ajay-1