Criminal Revision No. 820 of 2009 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 820 of 2009 Date of Decision: 28.4.2009 Kulwinder Singh …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Puneet Sharma, Advocate for the petitioner. Kanwaljit Singh Ahluwalia, J. (Oral) Criminal Misc. No. 21150 of 2009 Criminal Misc. Application is allowed. Documents (Annexure P8 to P11) are taken on record. Criminal Revision No. 820 of 2009 Kulwinder Singh son of Angrej Singh, resident of village Data Chela, Police Station Mahalpur, District Hoshiarpur, has filed the present revision petition. He was convicted and sentenced by the Court of the Additional Chief Judicial Magistrate, Bathinda, to undergo rigorous imprisonment for six months and to pay a fine of Rs.500/- under Section 279 IPC. He was also convicted and sentenced under Section 304-A IPC to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-. In default of payment of fines, he was ordered to further under Criminal Revision No. 820 of 2009 2 rigorous imprisonment for two months. Both the sentences were ordered to run concurrent. Aggrieved against the order of Additional Chief Judicial Magistrate, Bathinda, the petitioner had filed an appeal. The appeal was decided by the Court of Additional Sessions Judge (Fast Track Court), Bathinda. The appeal preferred by the petitioner was dismissed. Conviction and sentence awarded by the trial Court were upheld. In the present revision petition, on 27.3.2009, records of two Courts below were requisitioned. Hence, today, counsel for the petitioner has read the FIR, testimony of witnesses i.e. PW.4 Raj Singh and PW.5 Balwant Singh. Counsel for the petitioner has stated that there is a misreading of the evidence and the two Courts below have committed patent illegality and have not appreciated the argument that the prosecution had failed to establish the identity of the accused. Counsel for the petitioner has raised another argument that in the present case, deceased was 15/16 years old and he was not having a requisite license to drive the Rickshaw. Therefore, the petitioner cannot be attributed rash and negligent driving. Since this argument has not developed in the cross-examination of witnesses, counsel has not proceeded with this argument and has confined himself to the failure of the prosecution to prove the identity of petitioner as one who was driving the truck at the relevant time when the accident took place. Having noticed the argument raised before me, it becomes imperative for me to notice brief facts of the case. Criminal Revision No. 820 of 2009 3 PW.5 Balwant Singh made a statement Ex. PF to Jugraj Singh, Assistant Sub Inspector, on 26.9.2003. In the statement Ex.PF, he stated that he is a resident of Bathinda. He has got two sons, namely Raj Singh and Mangat Singh. Both his sons were running a Rehri Vend of selling tea and milk near Dana Mandi, Bathinda. On the day of occurrence i.e. 26.9.2003 at about 3.00 P.M. his younger son Mangat Singh was plying rickshaw to fetch water from the tap of Haji Rattan Gurudwara. When his son Mangat Singh was at a distance of eight/nine karams, then from back side from Rajindra College, one Tralla bearing No. PB-13J-1718 came in a rash and negligent manner without blowing horn and due to rash and negligent driving by its driver, the Tralla hit the rickshaw and Mangat Singh was crushed by the middle tyre of the Tralla. He died at the spot. It is stated that driver of the tralla ran away from the spot. In the FIR, it was stated that driver was aged 40 years; he was clean shaved; he was having trimmed beard; having a well built body and tall height. He was wearing Kurta-Pajama. It was stated that complainant and his son Raj Singh can identify the driver of the tralla in case he is produced before them. FIR was investigated. Report under Section 173 Cr.P.C. was submitted. Petitioner was charged for the offences. He pleaded not guilty and claimed trial. Prosecution examined PW.1 Dr. Kuldeep Rai, who conducted autopsy on the dead body of Mangat Singh on 27.9.2003 at 10.25 A.M.. A perusal of the Post Mortem Report show that head, face and chest of the deceased was crushed and his brain matter was coming out. PW.2 Charanjit Singh, Head Constable, was Police Criminal Revision No. 820 of 2009 4 Photographer, who had taken four photographs at the spot. He had proved photographs and negatives. Nothing substantial has been gained by the petitioner in cross-examination. PW.3 Harjinder Singh, Constable, who conducted mechanical examination of Tralla bearing No. PB-13J-1718 and he proved his Mechanical Report Ex.PB. PW.4 Raj Singh and PW.5 Balwant Singh are the eye witnesses to the occurrence. Before their evidence is discussed and dealt with, it will be necessary to take into consideration the testimony of other witnesses. PW.6 Rattan Singh, Clerk from the office of the District Transport Officer, Sangrur, was examined to prove the ownership of the Tralla. The Tralla was registered in the office of the District Transport Officer, Sangrur. He stated that Tralla belongs to one Jasbir Singh son of Harpal Singh, resident of Malerkotla Road, Sangrur. PW.7 Jugraj Singh, Assistant Sub Inspector, had recorded statement Ex.PF on basis of which FIR was registered. He also deposed regarding various facets of investigation. Thereafter, the prosecution closed its evidence. Statement of accused under Section 313 Cr.P.C. was recorded and all the incriminating evidence was put to him. As noticed above, Mr.Puneet Sharma, Advocate, counsel for the petitioner, has advanced two arguments, one that the prosecution had failed to proved rash and negligent driving on the part of the driver of the Tralla and secondly prosecution had failed to prove that the petitioner was driving the Tralla, offending vehicle, as prosecution has Criminal Revision No. 820 of 2009 5 miserably failed to prove the identity of the petitioner as driver of the Tralla. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, has submitted that in the present case, police officials have not enmity to falsely implicate the petitioner. It has been further submitted that rash and negligent driving on the part of the driver of the Tralla is proved. Before evidence of PW.4 Raj Singh and PW.5 Balwant Singh is discussed and considered threadbare, it will be necessary to take into account findings of two Courts below and the arguments raised before me. The Appellate Court noticed the contention of defence counsel that the accused was wrongly arrested in the case, and dealt with this argument by observing as under:- “...But, there is nothing on record on the basis of which it can be believed that the accused was wrongly arrested. Had it been so, the accused would have left no stone unturned to prove his false implication. No enmity of the police or that of the complainant has been attributed towards the accused”. Regarding identity, the Appellate Court also observed as under:- “Statement of eye witness namely Raj reveals that he has got it noted to the police as to what was the description of the driver. Subsequently, the accused has been identified by the eye witness, Criminal Revision No. 820 of 2009 6 though in the Court. But fault cannot be found with the complainant/eye witness. Suggestion given to Balwant Singh also shows that he identified the accused in Kotwali. There is some lacuna in the investigation”. The trial Court discussed the arguments and rejected the same by observing as under:- “...I appreciate the evidence led by the Ld. Addl. Public Prosecutor of the State, that the accused was identified by the PW-4 Raj Singh and PW-5 Balwant Singh. A tralla bearing No. PB-13J-1718 came from the side of Rajindera College, with rash and negligent manner and without blowing horn and gave a struck with the rickshaw which was being driven by Mangat Singh and the tralla rammed over the rickshaw with the result that Mangat Singh died at the spot. The tralla was being offended by the accused Kulwinder Singh at the time of accident. The accused was identified in the Court by PW-4 Raj Singh and PW-5 Balwant Singh who was offending the vehicle at the time of accident. The testimony of PW-1 Dr. Kuldeep Rai, Medical Officer corroborated with the testimony of PW-4 Raj Singh and PW-5 Balwant Singh”. Testimony of PW.5 Balwant Singh in vernacular has been read. Criminal Revision No. 820 of 2009 7 PW.5 Balwant Singh, in the Court has not given the description which was given in the FIR to determine the identity of the accused. Therefore, there was no substantive evidence available before the Court regarding description of the accused. The version given in the FIR that accused was heavily built and was having a tall height with trimmed beard, clean shaved were not before the Court as PW.5 Balwant Singh has not deposed on this aspect in the trial Court. These essential marks of identity were conveniently left. The counsel has a valid argument that had PW.5 Balwant Singh stated so in the Court, the case of the prosecution would have fallen on the ground as the accused present in the Court was different from those marks of identity. It has been further submitted that since PW.5 Balwant Singh has not stated what was stated by him in the FIR, therefore, there was no necessity for the defence to confront him. This Court cannot loose sight of the fact that petitioner was not arrested at the spot. No test identification report was conducted to corroborate identification of the accused when he was standing in the dock. Cross-examination of PW.5 Balwant Singh reveal that he admitted that in his statement Ex.PF he had not named the truck driver. He further stated that driver of the tralla and his family members were not known to him. He further stated that the address of the driver is also not known to him. He further stated that it is correct that after the accident tralla driver was not got identified and he later stated that in the Police Station Kotwali, test identification parade of the tralla driver was got done. He further stated that he cannot tell the date when in the Police Station accused was got identified. He denied the suggestion Criminal Revision No. 820 of 2009 8 that petitioner was not got identified as a driver in the Kotwali. Prosecution has examined PW.6 Rattan Singh, Clerk from the office of the District Transport Officer, Sangrur, who stated that Jasbir Singh was the owner of the tralla. There is no explanation with the prosecution as to why Jasbir Singh owner of the tralla has not been examined. There is no evidence that petitioner was employed as driver on the tralla or was owner; no driving license or any other document has been taken into possession by the police from the spot or vehicle to prove that petitioner was driver of the tralla at the relevant time when the accident took place. No name has been given by the witnesses as to who disclosed the name of the petitioner. How, why and when accused was arrested as a driver of the tralla, prosecution is lacking in all details. Therefore, there is no option with this Court except to grant benefit of doubt to the petitioner. Accordingly, the present petition is accepted and the petitioner is acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge April 28, 2009 “DK”