Crl. Rev. No. 513 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 513 of 2005 (O&M) Date of decision:- 14.2.2011 Jagdish Lal ... Petitioner Versus State of Punjab ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. G.S.Sandhu, Advocate, for the petitioner. Mr. P.S.Paul, Deputy Advocate General, Punjab. Gurdev Singh, J (oral) The petitioner/accused, Jagdish Lal, was tried for the offences under Sections 279 and 304-A IPC and was convicted for those offences by Sub Divisional Judicial Magistrate, Samana, vide judgment dated 19.5.2004 and was sentenced as under:- Sr. No. Under Sections Conviction and Sentence 1 304-A To undergo rigorous imprisonment for two years and to pay a fine of `1000/-. 2 279 To undergo rigorous imprisonment for a period of four months and to pay a fine of `300/-. He preferred an appeal against that conviction and sentence, which was decided by the Additional Sessions Judge, Patiala, vide judgment dated 14.2.2005. The conviction of the accused was maintained. However, the sentence of imprisonment under Section 304-A IPC was reduced from two years to one year. On 31.1.2000, Karam Chand – complainant PW2, along with his Crl. Rev. No. 513 of 2005 (O&M) -2- brother Charna Ram PW3 and servant Sarwan Ram-deceased had gone to the brick-kiln in order to take bricks in tractor make Swaraj bearing registration No. PB-42A-2098, to which a trolley had been attached. Thereafter, he was coming back after loading the bricks in the trolley and at that time the deceased was sitting on the bricks. When they reached near the bus stand of Ram Nagar the accused came driving the truck bearing registration No. PB-11-C-7765 at a very fast speed and without blowing any horn struck the same in the backside as a result of which the deceased was thrown out of the trolley and the wheel of that trolley passed over him, resulting in his death at the spot. Karnail Singh ASI PW7 and other police officials were already present in the bus stand. The complainant made his statement Ex. PB before the ASI, who after recording his police proceedings sent the same to the police station, on the basis of which formal FIR PW7/A was recorded under Sections 279 and 304-A IPC. The ASI inspected the spot and prepared a rough site plan Ex.PW7/E with correct marginal notes. He prepared inquest report Ex.P17/D in respect of the dead body and sent the same for post mortem examination. He got place of accident photographed from Didar Singh photographer and took the vehicles involved in the accident into possession vide separate recovery memos. The autopsy on the dead body was performed by Dr. Karan Singh PW1, who found ante mortem injuries on the same and gave his opinion that cause of death was due to extensive injuries to the vital organs of the body. The accused was arrested and after the completion of the investigation the challan was put in before the Sub Divisional Judicial Magistrate, Samana, who found sufficient grounds for presuming that the accused committed Crl. Rev. No. 513 of 2005 (O&M) -3- offences under Sections 279 and 304A IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused prosecution examined Dr. Karan Singh PW1, Karam Chand PW2, Charna Ram PW3, CII Rajinder Kumar PW4, Kaish Kumar PW5, Bhag Singh PW6, ASI Karnail Singh PW7, Santokh Singh PW8 and Didar singh PW9. After the prosecution concluded its evidence the accused was examined by the trial Court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and stated that he never caused any such accident. He was called upon to enter on his defence, but he did not produce any evidence in his defence. After going through the evidence so produced and hearing learned Assistant PP for the State and the defence counsel for the accused, the Sub Divisional Judicial Magistrate convicted and sentenced the accused, as the aforesaid. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the accused that from the perusal of the statements of the Karam Chand PW2 and eye-witness Charna Ram PW3, it stands proved that the deceased never died as a result of rash and negligent driving of the accused. Both of them have stated that at the time of accident they were looking on the front side and they did not know what happened on the backside in the trolley and that the police itself had recorded in their statements that the deceased was thrown out from the trolley and came under the wheel of that trolley. Therefore, it cannot be Crl. Rev. No. 513 of 2005 (O&M) -4- said that the accused is guilty of causing the death of the deceased. He also submitted that in case the Court does not find any ground for setting aside the conviction of the accused, he be granted the benefit of probation as he stood agony of protracted trial for 16 years. On the other hand, it has been submitted by learned State counsel that from the reading of the statements of the complainant and eye-witness it stands proved that it was due to negligent driving of the truck that the deceased died. There is no ground for setting aside the well reasoned finding of conviction recorded by the trial Court and upheld by the appellate Court. He further submitted that keeping in view the nature of the offence the accused is not entitled to the benefit of probation. Karam Chand-complainant PW2 and Charna Ram PW3 fully supported the prosecution evidence while making their statements in the Court. They categorically stated that before the accident Sarwan Singh- deceased was sitting on the tractor-trolley and after the accused struck the truck by driving the same at a fast speed, he was thrown out of their trolley and he died at the spot. However, during cross-examination, it was stated by Karam Chand- complainant that he did not see what passed over the deceased and he never got written in a statement Ex.PB that the wheel of the trolley passed over him. Similarly, it was stated by Charna Ram PW3, during his cross-examination, that he was sitting on the tractor while looking on the front side and did not know what happened on the backside of the trolley. He admitted that he never stated before the police that Sarwan Ram was thrown out of the trolley and wheel thereof was passed over him. Crl. Rev. No. 513 of 2005 (O&M) -5- It is well settled rule of appreciation of evidence that the statements of the witnesses are to be read as a whole. It is cumulative effect on their statement, which is to be seen and a fact stated by them at random cannot wash out from the record the other part of the statement. It may be said, from the combined reading of the statements of the complainant and the eye-witness, that they themselves had not seen the wheel of the trolley passing over the deceased, but the fact remains that the deceased was thrown out of the trolley after the truck was struck on the backside thereof by the accused while he was driving it at a very fast speed. Applying the principle of "res ipsa loquitor", it can easily be concluded from the statements made by these witnesses that the direct cause of death of the deceased was the negligent act of the accused who by driving the truck at a very fast speed struck it on backside of the tractor-trolley. From the evidence so produced by the prosecution, it stands proved that it was the accused who caused the death of the deceased not amount to culpable homicide by driving the truck negligently and there is no ground for setting aside the conviction so recorded by the trial Court and upheld by the appellate Court. There is no denial of the fact that the accused is standing his trial since the year 2000 and it may be said that he faced the agony of the protracted trial. However, that fact alone cannot be made a ground to extend the benefit of probation to him. If he has stood the said agony, the family of the deceased who was deprived of one earning hand must have stood much more agony. In such like cases where life has been lost and manner of driving is harsh no compassion can be shown. The imprisonment so Crl. Rev. No. 513 of 2005 (O&M) -6- prescribed for the offence punishable under Section 304A IPC is already on the lower side and the appellate Court reduced that imprisonment from two years to one year. I do not find proper and expedient to release the accused on probation. There is not merit in the revision petition and the same is hereby dismissed. The accused be taken into custody for undergoing the sentence so imposed upon him. Records be returned forthwith. February 14, 2011 (Gurdev Singh) tripti Judge