IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 1909 of 2004 Date of Decision : January 29, 2010 Malkiat Singh ....Petitioner Versus State of Punjab .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. S.C.Chhabra, Advocate Mr. P.S.Grewal, Assistant Advocate General, Punjab T.P.S. MANN, J. The petitioner was tried for the offences under Sections 279 and 304-A IPC on the allegations that on 29.11.1995 he drove bus bearing registration No. PB-12-B-8206 rashly and negligently on a public way and thereby caused the deaths of Smt. Neelam Manchanda and Smt.Bimla Manchanda, who were travelling in the said bus. Vide judgment and order dated 19.2.2001, learned Additional Chief Judicial Magistrate, Ferozepur convicted the petitioner for the aforementioned offences and sentenced him to undergo rigorous imprisonment for six months and to pay a fine of Rs.1,000/- under Section 279 IPC and in Crl. Revision No. 1909 of 2004 -2- default of payment of fine to undergo further rigorous imprisonment for fifteen days, and, to undergo rigorous imprisonment for one year and to pay a fine of Rs.5,000/- under Section 304-A IPC and in default of payment of fine to undergo further rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. Aggrieved of his conviction and sentence, the petitioner filed an appeal but the same was dismissed by learned Additional Sessions Judge-cum-Fast Track Court, Ferozepur on 6.5.2004. Still not satisfied, the petitioner filed the present revision. According to the prosecution, on 29.11.1995 complainant Bhagwan Chand Khurana alongwith his wife Smt. Neelam Manchanda and one Smt. Bimla Manchanda besides, other relatives, was returning from Abohar after attending last rites of his brother-in-law. All of them boarded the aforementioned bus from Abohar for Ferozepur. The bus started at 3.00 p.m. The driver stopped the bus at Fazilka for half an hour. When the bus reached Jallalabad at 5.15 p.m., both Malkiat Singh driver and Sadhu Singh conductor started taking liquor. The complainant requested them to stop taking liquor and, instead, move the bus. Malkiat Singh started driving the bus for Ferozepur and in doing so he was rash and negligent. The bus was being driven at a high speed. He was asked by the passengers sitting in the bus not to drive at a high speed. When the bus reached near Bhargo Tyre Company, it struck Crl. Revision No. 1909 of 2004 -3- against a tractor trolley coming from the opposite side as a result whereof Smt. Neelam Manchanda and Smt.Bimla Manchanda received injuries. There was a lot of hue and cry upon which both Malkiat Singh, driver and Sadhu Singh, conductor ran away after leaving the bus. The complainant removed both Smt. Neelam Manchanda and Smt. Bimla Manchanda in injured condition to Civil Hospital, Ferozepur but they succumbed to their injuries. When complainant-Bhagwan Chand Khurana was going towards the Police Station, he met ASI Labh Singh before whom he made statement Ex.P18, which was completed at 8.30 p.m. On its basis, FIR No. 360 dated 29.11.1995 was registered at Police Station Saddar, Ferozepur. During investigation of the case, the dead bodies of Smt. Neelam Manchanda and Smt. Bimla Manchanda were subjected to post-mortem examination. The said examination was conducted by Dr.Rachhpal Singh. According to him, the deaths of both the deceased were result of shock and haemorrhage resulting from multiple injuries received on vital organs in an accident. The injuries were ante-mortem in nature and sufficient to cause deaths in the ordinary course of nature. The petitioner was arrested on the day of the accident and taken to Dr.H.L.Garg, Civil Hospital, Ferozepur, who found no external mark of injury on his body. However, smell of alcohol was present. In his opinion, the petitioner had consumed alcohol but he was not under its effect. The medico legal examination was conducted on 29.11.1995 at Crl. Revision No. 1909 of 2004 -4- 11.50 p.m. Upon completion of the investigation and presentation of challan, the petitioner was charged for the offences under Sections 279 and 304-A IPC, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined Constable Jagir Singh PW1, Dr. H.L.Garg, Medical Officer PW2, ASI Rajinder Kumar, Photographer, PW3, Bhagwan Chand Khurana-complainant PW4, Major Singh PW5, Head Constable Amarjit Singh PW6, Inspector Gurcharan Singh, Punjab Roadways PW7, Amarjit Singh, Clerk, office of District Transport Officer, Ferozepur PW8, Dr. Rachhpal Singh, Medical Officer PW9, Mohinder Singh, Junior Assistant, office of District Transport Officer, Ferozepur PW10 and Constable Amarjit Singh PW11. When examined under Section 313 Cr.P.C., the petitioner denied the circumstances and material pieces of evidence appearing against him on the file. In defence, he examined Mulakh Raj, President of All India Trade Union Congress (Regd.), Punjab Roadways, Ferozepur as DW1 and Sadhu Singh, Conductor as DW2. As mentioned above, both the Courts below believed the prosecution case and convicted and sentenced the petitioner, accordingly. Crl. Revision No. 1909 of 2004 -5- Learned counsel for the petitioner has submitted that there is no evidence on the file to show that the petitioner was drunk at the time of the accident. Further, the accident took place on account of the tractor trolley carrying iron girders suddenly coming on the main road and despite the petitioner trying his level best to avert the accident, the girders peered the bus and as a result both Smt. Neelam Manchanda and Smt.Bimla Manchanda received injuries. It has also been submitted that the prosecution did not examine ASI Labh Singh, who was the Investigating Officer of the case. Finally, it is submitted that the petitioner is a first offender and, therefore, he be granted the benefit of probation. As per the evidence, the accident in question had taken place on 29.11.1995 at 6.15 p.m. Before that the petitioner stopped the bus at Jallalabad at 5.15 p.m., where he, alongwith Sadhu Singh, Conductor of the bus, started taking liquor. The complainant requested them to start moving the bus and desist from taking liquor. The petitioner did start the bus for Ferozepur but drove it at a high speed and in a rash and negligent manner. When the bus reached near Bhargo Tyre Company, it struck against a tractor trolley coming from the opposite side as a result of which Smt. Neelam Manchanda and Smt. Bimla Manchanda, who were travelling in the said bus received injuries. After causing the accident, the petitioner and Sadhu Singh ran away from the place of the accident while leaving the bus there. Once, Crl. Revision No. 1909 of 2004 -6- the FIR was registered, the petitioner was arrested. He was then produced before PW1 Dr. H.L.Garg on 29.11.1995 at 11.50 p.m. According to the doctor, the petitioner was smelling of alcohol although he was not under its effect. According to the prosecution, the petitioner had taken liquor at 5.15 p.m. at Jallalabad. The accident had taken place an hour later, i.e. at 6.15 p.m. However, the medico legal examination of the petitioner was conducted after about seven hours of the taking of liquor by him. Even at that time he was smelling of alcohol. It may be that he was not under the effect of alcohol at that time but considering the fact that he was still smelling of alcohol, it can safely be concluded that at the time of accident, he must be dead drunk. The manner in which the accident had taken place was described by PW4 Bhagwan Chand Khurana. He deposed that the petitioner was driving the bus in a rash and negligent manner as at that time he was under the influence of liquor. When the bus reached near Bhargo Tyre Company, it struck against a tractor trolley coming from the opposite side as a result of which Smt. Neelam Manchanda and Smt.Bimla Manchanda received injuries. The testimony of Bhagwan Chand Khurana was corroborated by that of PW5 Major Singh, who, at the relevant time, was occupant of tractor trolley driven by Swaran Singh and coming from the opposite direction. According to him, the tractor trolley was being driven on its correct side and it was the bus driver, who was rash and negligent in driving the bus and in the process Crl. Revision No. 1909 of 2004 -7- struck with the tractor trolley. As per Mechanic's reports Exs.P19 and P20, the body of the bus from seat No.4 till the last seat was totally damaged. The trolley carried by the tractor was hit on its right corner. As per the site-plan and the photographs available on the file, the bus stopped at a distance of 98 karmas ahead of the place of the occurrence. That is sufficient indication of the speed at which it was driven by the petitioner at the time of the accident. Under these circumstances, this Court is left with no other option but to hold that it was the petitioner, who was driving the bus in a rash and negligent manner as a result of which the accident took place and injuries caused to Smt. Neelam Manchanda and Smt.Bimla Manchanda, to which they succumbed lateron in the hospital. It is true that ASI Labh Singh was not examined. It had come on the record that he had met with a serious accident and was undergoing treatment with Neuro Surgeon. He was on the bed and unable to walk and talk properly. Therefore, it cannot be said that the prosecution intentionally withheld ASI Labh Singh from producing him in the Court as its witness. In the accident in question, two married ladies lost their lives. At the time of the accident, the petitioner was drunk. Mere fact that he knew driving since 1976 and had joined the service of Punjab Roadways in the year 1985 and that he had already lost his thirteen Crl. Revision No. 1909 of 2004 -8- years' old son, is no ground to extend the benefit of probation to him. Even the sentences of imprisonment imposed upon the petitioner by the Courts below are not excessive. In view of the above, there is no merit in the present revision. The same is, accordingly, dismissed. ( T.P.S. MANN ) January 29, 2010 JUDGE ajay-1