CRR No. 2334 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 2334 of 2008 Date of decision: 11.8.2011 Sukhdial Chand ........ Petitioners Versus State of Punjab ........ Respondent CORAM: HON'BLE MR.JUSTICE JORA SINGH PRESENT: Mrs. G.K. Mann, Advocate, for the petitioner. Mr. S.S. Chandumajra, Deputy Advocate General, Punjab. JORA SINGH, J. Sukhdial Chand-petitioner, preferred this revision to impugn the judgment dated 15.10.2008, rendered by the learned Additional Sessions Judge, Ludhiana, in Criminal appeal No. 76 of 6.7.2007. By the said judgment, appeal against the judgment of conviction and order of sentence dated 6.6.2007, passed by the learned Judicial Magistrate Ist Class, Ludhiana, in Criminal Case No. 205/1 of 1.9.2001, arising out of FIR No. 118 dated 28.6.2001, registered under Sections 279/304-A of the Indian Penal Code ('IPC' for short) at Police Station Basti Jodhewal, was dismissed. Vide judgment of conviction and order of sentence dated 6.6.2007, petitioner was convicted under Sections 279/304-A IPC and CRR No. 2334 of 2008 -2- was sentenced as under: 1. Under Section 279 IPC To undergo rigorous imprisonment for a period of six months. 2. Under Section 304-A IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 30 days. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that on 28.6.2001, ASI Bakshish Singh, Incharge Police Post Meharban, Police Station Basti Jodhewal, along with other police officials was present near petrol pump, Meharban Chowk, in connection with patrol duty where Baldev Singh and Surinder Singh, had met him. Baldev Singh, lodged report with the police on the allegation that he is the resident of Prem Colony, Police Station Basti Jodhewal, Ludhiana and is driving three-wheeler of Sigma Factory. At about 7.00 p.m. he used to return to his house daily. Sudesh Kumar (deceased) along with his family was residing in his house as a tenant. Surinder Singh, brother of Sudesh Kumar is also his tenant. Sudesh Kumar and Surinder Singh are the employees of M/s Friends Dyeing Factory. On 27.6.2001 at about 7.15 p.m. he was returning to his house and was near the turning of his street then sighted Sudesh Kumar and his brother Surinder Singh, while coming on foot from the opposite side. They were near the turning of the street then Dr. Vir Singh, came on a scooter from their backside. He was CRR No. 2334 of 2008 -3- already known to him. Scooter was being driven rashly and negligently and without blowing horn was struck against Sudesh Kumar. Sudesh Kumar, fell down and received injuries in the accident. After arranging the vehicle, he along with Surinder Singh had shifted Sudesh Kumar to Rose Hospital but keeping in view the nature of injuries, Sudesh Kumar was referred to Arora Neuro Center, Fountain Chowk, Ludhaina. Doctor of Arora Neuro Center, after checking declared Sudesh Kumar as dead. Dead body was brought to house. Intimation was given to Mohan Lal, Panch. Near Meharban Chowk, statement of Baldev Singh Ex. PA, was recorded at 12.10 a.m. during the night time. Statement was read over and explained to Baldev Singh, who had signed the same in token of its correctness. After making endorsement, statement was sent to the police station on the basis of which formal FIR was recorded. Special report was delivered to the Illaqa Magistrate at 3.10 p.m. on 28.6.2001. Investigating Officer along with the complainant party had gone to the spot. Rough site plan Ex. PE was prepared with its correct marginal notes. Inquest report Ex. PG was prepared. Dead body was handed over to HC Manjit Singh, for post-mortem examination and after post-mortem examination dead body was handed over to Surinder Singh, for cremation. On 5.7.2001, petitioner was arrested. Scooter bearing registration No. PB-10-AQ-9878 along with RC Ex. P-1, was produced by Rakesh Kumar and the same was taken into police possession vide memo Ex. PK. On 7.7.2001, scooter was produced before the mechanic and after mechanical test report was collected. After completion of investigation, challan was presented in Court. CRR No. 2334 of 2008 -4- After hearing learned APP for the State, learned defence counsel and from the documents on file, petitioner was charge-sheeted under Sections 279/304-A IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW-1 Baldev Singh, is the complainant and has reiterated his stand before the police in view of his statement Ex. PA. PW-2 Surinder Singh, is the brother of the deceased and is the eye-witness. He has also supported the version of Baldev Singh by saying that accident was due to rash and negligent driving of scooter bearing registration No. PB-10-AQ-9878, by the petitioner. In the accident, Sudesh Kumar, received injuries. He was shifted to Arora Neuro Center, Ludhiana where he was declared dead. PW-3 Surinder Singh, Clerk, DTO Office, stated that as per record scooter bearing registration No. PB-10-AQ-9878, was registered in the name of Surinder Chauhan. Ex. PW-3/A is the copy of RC. PW-4 Constable Sukhdarshan Singh, Mechanic, stated that on 7.7.2001, scooter bearing registration No. PB-10-AQ-9878, was mechanically tested and his report is Ex. PW-4/A. PW-5 Dr. Ashok Rajwant, stated that on 28.6.2001, he had conducted post-mortem examination on the dead body of Sudesh Kumar and found the following injuries: “1. Lacerated wound 1 ½ inch x ½ inch on the occipital region. 2. Abrasion 2 inch x 1 inch on the top of left CRR No. 2334 of 2008 -5- shoulder. 3. Abrasion 3 inch x 2 inch on the left side of chest on the back” Cause of death was due to shock and haemorrhage as a result of head injury which was sufficient to cause death in the ordinary course of nature. PW-6 SI Bakshish Singh, is the Investigating Officer. After close of the prosecution evidence, statement of the petitioner under Section 313 Cr.P.C. was recorded. He denied all the allegations of the prosecution and pleaded to be innocent. Opportunity was given to lead defence evidence but no defence evidence was led. After hearing learned APP for the State, learned defence counsel and from the perusal of evidence available on file, petitioner was convicted and sentenced as stated aforesaid. Against the judgment of conviction and order of sentence dated 6.6.2007, appeal was preferred by the petitioner but the same was dismissed vide the impugned judgment. I have heard learned counsel for the petitioner, learned State counsel and carefully gone through the evidence available on the file. Learned counsel for the petitioner argued that prosecution has suppressed the genesis of the occurrence. In fact Rakesh Kumar was driving the scooter and in the accident he had also received injuries. Case was registered in view of the statement of Baldev Singh but he did not support the prosecution story. Further submitted that CRR No. 2334 of 2008 -6- occurrence was in the month of June, 2001. Petitioner has already undergone 3 months and 16 days as per custody certificate. Petitioner is the first offender and belongs to a poor family. LR's of the deceased have been duly compensated under the Motor Vehicles Act. Requested to take lenient view. Learned State counsel argued that Baldev Singh and Surinder Singh, have witnessed the occurrence. Surinder Singh, has fully supported the prosecution story. Baldev Singh, in his examination- in-chief, supported the prosecution story. His cross-examination was deferred then on the next date he stated that accused present in Court is not the same person who had caused the accident in his presence. Some other person had caused the accident. Baldev Singh, did not state a word that he had not witnessed the occurrence. He simply stated that somebody else had caused the accident. Baldev Singh, was won over by the petitioner. No suggestion to the witnesses that Rakesh Kumar, was driving the scooter and in the accident he had also received injuries. No proof on the file that compensation was paid by the petitioner. Keeping in view the nature of offence lenient view be not taken. First submission of the learned defence counsel for the petitioner is that genesis of the crime was suppressed by the prosecution. In fact, Rakesh Kumar, was driving the scooter at the relevant time. Rakesh Kumar, had also received injuries but instead of taking action against Rakesh Kumar, the present petitioner was challaned but after going through the evidence on file, I am of the opinion that submission of the learned defence counsel for the petitioner CRR No. 2334 of 2008 -7- is without any force. Baldev Singh-complainant and Surinder Singh, brother of the deceased who is the second eye-witness have stated that they were present at the time of accident near the turning of their street. Scooter bearing registration No. PB-10-AQ-9878, was being driven rashly and negligently by the petitioner and without blowing horn scooter was struck against the deceased (Sudesh Kumar). In the accident, deceased received injuries. After the occurrence, deceased was firstly shifted to Rose Hospital and from there deceased was referred to Arora Neuro Center, Ludhiana, where he was declared dead. No suggestion of Baldev Singh or Surinder Singh, that in fact Rakesh Kumar was driving the scooter at the relevant time and in the accident he had also received injuries. No question was put to the Investigating Officer that in fact Rakesh Kumar was driving the scooter and in the accident he had also received injuries. Doctor was not examined that Rakesh Kumar, was medico-legally examined and number of injuries were noticed on his person. Copy of the statement of Rakesh Kumar, arrest memo or MLR are not on the file, so, at this stage learned counsel for the petitioner cannot argue that scooter was being driven rashly and negligently by Rakesh Kumar and in the accident he had also received multiple grievous injuries. Next submission of the learned counsel for the petitioner was that Baldev Singh is the complainant but he did not support the prosecution story. He stated that somebody else had caused the accident and not by the petitioner. Surinder Singh is the real brother of the deceased. Statement of Surinder Singh, is of interesting nature but CRR No. 2334 of 2008 -8- submission of the learned counsel for the petitioner is not correct one. As per evidence on file, on 27.6.2001 at about 7.15 p.m. Sudesh Kumar deceased along with his brother Surinder Singh, was returning to his house. They were near the turning of their street. Surinder Singh and Sudesh Kumar were the employees of M/s Friends Dyeing Factory and after duty they were returning to their house. They were the tenants of Baldev Singh-complainant. Baldev Singh, was the driver of three-wheeler of Sigma Factory. On the day of occurrence, after duty hours Baldev Singh was returning to his house. Place of occurrence is near the turning of the street of Baldev Singh. Baldev Singh, appeared as PW-1 and in examination-in-chief has fully supported the prosecution story. His cross-examination was deferred. When he was cross-examined on 4.6.2007, then stated that accident was in his presence. His statement was also recorded by the police but he stated that petitioner had not caused accident. Somebody else had caused the accident. Baldev Singh, admitted that his statement was recorded by the police. He also admitted that accident was in his presence. Surinder Singh, is the second eye-witness but the only dispute is whether accident was due to rash and negligent driving of the scooter by the petitioner or somebody else. Baldev Singh, has admitted his signatures on his statement Ex. PA. In examination-in-chief, he has fully supported the prosecution story. If Baldev Singh, had not witnessed the occurrence and the accident was not due to rash and negligent driving of scooter bearing registration No. PB-10-AQ-9878, by the petitioner then there was no reason to sign the statement Ex. PA. In fact, Baldev Singh, was won CRR No. 2334 of 2008 -9- over by the petitioner and that is why on the next day when he was cross-examined then stated that somebody else was driving the scooter and not the petitioner. Before the present occurrence, Baldev Singh or Surinder Singh, were not inimical towards the petitioner. There was no reason to leave the real culprit and name the petitioner. Occurrence was at 7.15 p.m. near the house of Baldev Singh. Deceased (Sudesh Kumar) and Surinder Singh, were the tenants of Baldev Singh. So, presence of Surinder Singh and Baldev Singh at the time of occurrence cannot be doubted. In cross-examination, Baldev Singh stated that he had deposed in Court under the influence of police but this fact is not correct one. If police was pressurizing Baldev Singh to depose in Court then this fact should be disclosed by Baldev Singh when his examination-in-chief, was recorded. To support the petitioner it is very easy to state in cross-examination that under the pressure of police he had deposed in Court. No allegation why Baldev Singh, had signed his statement Ex. PA. No allegation of Baldev Singh that when he signed Ex. PA then at that time he was under the pressure of police. Before the present occurrence, petitioner was known to both of the eye- witnesses. PW-3 Surinder Kumar, Clerk in the office of DTO Office, Ludhiana, stated that scooter No. PB-10-AQ-9878, was registered in the name of Surinder Chauhan. If the petitioner was not driving the scooter at the relevant time then Surinder Chauhan could easily be produced in defence to state that on the relevant date scooter bearing registration No. PB-10-AQ-9878, was not in the custody of the petitioner. As per Dr. Ashok Rajwant, three injuries were noticed on the person of CRR No. 2334 of 2008 -10- deceased. One of the injury was on the head. Injury on the head cannot be self-suffered or self-inflicted. Death was within three hours. Where there was no dispute amongst the parties then after death there was no reason to name the petitioner by leaving the real culprit. On 5.7.2001, petitioner was arrested along with scooter bearing registration No. PB-10-AQ-9878. If the petitioner had no concern with the scooter then petitioner should have cross-examined the witnesses to the effect that scooter is of Rakesh Kumar and at the relevant time he (Rakesh Kumar) was driving the scooter. Petitioner was produced by Rakesh Kumar along with the scooter. If petitioner was not driving the scooter at the relevant time then no question of production of the petitioner before the police by Rakesh Kumar. Till today no complaint to any authority regarding false implication. If case was false then petitioner should have raised hue and cry. There was no reason to remain silent. On 7.7.2001, scooter was produced before the Mechanic and as per report of the Mechanic Ex. PW-4/A scooter was found to be damaged. In case, there was no accident then no question of damage to the scooter. Owner of the scooter should have been produced in defence to state that damage to the scooter was in some other accident on a different date. Statements of the eye-witnesses, doctor and report of the mechanic leads to this conclusion there was an accident by rash and negligent driving of the scooter bearing registration No. PB-10-AQ-9878 by the petitioner and in the accident Sudesh Kumar, received injuries and ultimately he had succumbed to his injuries when shifted to the hospital. At the time of accident on 27.6.2001, petitioner was the first CRR No. 2334 of 2008 -11- offender. As per custody certificate petitioner has already undergone 3 months and 16 days out of the actual sentence. Except the present case, no other case is pending against the petitioner. Claim petition was filed by the LRs of the deceased and as per award dated 29.9.2003, present petitioner along with the owner of the scooter namely Surinder Chauhan and Insurance Company were directed to pay compensation to tune of ` 2,59,000/- with interest at the rate of 9% per annum from date of filing of the claim petition on 14.8.2001 till the payment. Owner of the vehicle, driver and Insurance Company were also liable jointly and severely because vehicle was insured but petitioner was not holding a driving licence. Regarding payment no documentary proof on the file but petitioner is facing trial for the last about 10 years. In 2006 (3) RCR (Criminal) 550, “Sudh Ram Vs. State of Punjab”, accident was due to rash and negligent driving of a bus. Accused had already undergone 2½ months of imprisonment and was ordered to be released on probation on the ground that accused faced the trial for about 5 years. He is the sole bread winner of his family and is the first offender. The heirs of the deceased have been duly compensated under the Motor Vehicles Act. In 2007 (1) RCR (Criminal) 988, “Girdhari Lal Vs. State of Punjab”, Conviction was under Section 304-A and 279 IPC. Accused faced criminal proceedings for 12 years and not involved in any accident earlier. Accused is the sole bread winner of his family and his wife is suffering from heart trouble. Heirs of the deceased got compensation to the tune of ` 1.44 lacs under the Motor Vehicles Act. CRR No. 2334 of 2008 -12- Ultimately, he was released on probation. In 2010 (1)RCR (Criminal) 776, “Kishan Vs. State of Haryana”, conviction was under Section 304-A IPC with a direction to undergo RI for one year and to pay a fine of ` 800/-. Accused faced criminal proceedings for 9 years. Family of the deceased was compensated by the Motor Accident Claims Tribunal. Sentence was reduced to already undergone (3 and a half months). In the present case petitioner is the first offender. He is facing trial for the last about 10 years. Petitioner is the sole bread winner of his family. Award was passed in favour of the heirs of the deceased but no proof regarding payment. Ends of justice would be fully met if lenient view is taken. Keeping in view the facts and circumstances of the case, I take lenient view and direct the petitioner to undergo imprisonment already undergone (3 months and 16 days). He is further directed to deposit ` 40,000/- more as fine within three months before the trial Court payable to the LRs of the deceased as compensation. For the reasons recorded above, instant revision petition without merits is dismissed with modification on the point of sentence. August 11, 2011 ( JORA SINGH ) rishu JUDGE