Crl. Revision No. 18 of 2002 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 18 of 2002 Date of Decision:December 08, 2009 Dial Hussain ---Petitioner versus State of Punjab ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Rajiv Godara, Advocate, for the petitioner Mr.Abhishek Chautala, Asst. Advocate General, Punjab. *** GURDEV SINGH, J. This revision has been preferred by Dayal Hussain-petitioner accused against the judgment dated 6.11.2001 passed by learned Additional Sessions Judge, Mansa, dismissing the appeal preferred by the petitioner against the judgment dated 6.7.2000 passed by Shri Raj Kumar Garg, Judicial Magistrate Ist Class, Mansa, vide which he was convicted for the offences under Sections 279, 304-A of the Indian Penal Code and was sentenced as under:- (i)To undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 200/- and in default thereof to further Crl. Revision No. 18 of 2002 -2- undergo rigorous imprisonment for a period of 10 days under Section 304-A IPC (ii) To undergo rigorous imprisonment for a period of three months under Section 279 IPC The facts, in brief, are that on 14.12.1995, Harnek Singh ASI, PW-2 along with Gurtej Singh HC, PW-3 and other police officials was present in bus stand, Ralla, in connection with patrolling. At about 11-00 a.m., he found that Malkiat Singh, deceased, along with his son Bhim Singh, PW-4, was coming towards the bus stand on foot on the left side of the road. The accused came driving truck No. RSG 8537 from the side of Mansa negligently and at a fast speed. The accused struck the truck in Malkiat Singh and after stopping the same tried to escape into the fields. He was apprehended by the ASI with the help of his companions. As a result of the injuries received by Malkiat Singh, he died at the spot itself. The ASI sent Ruqa Ex. PB to the police station and on the basis thereof formal FIR Ex. PB/1 was recorded against the petitioner under Section 304-A IPC. The ASI inspected the spot and prepared the rough side plan Ex. PK with correct marginal notes. The truck was taken into possession vide memo Ex. PD. The registration certificate of the truck was recovered from the possession of the petitioner and the same was taken into possession vide memo Ex. PH. The ASI prepared the inquest report Ex, PC in respect of the dead body of the deceased and sent the same for post mortem examination to Civil Hospital, Mansa. The turban and Chapples of the deceased were found on the spot and those were taken into possession vide memo Ex. PH . The autopsy on the dead body of the deceased was performed by Dr. Tarlok Singh, PW-6, who found ante mortem injuries on the same and gave his Crl. Revision No. 18 of 2002 -3- opinion that the cause of death was shock and haemorrhage due to those injuries, which were sufficient to cause death in the ordinary course of nature. After the completion of the investigation, the challan was put in before the learned JMIC for the trial of the accused, who found sufficient grounds for presuming that the accused committed offences under Sections 279 and 304 -A IPC. The accused was charged accordingly, to which he pleaded not guilty and claimed trial. To prove guilt of the accused, prosecution examined Mukhtiar Singh, PW-1, ASI Harnek Singh, PW-2, HC Gurtej Singh, PW-3, Bhim Singh, PW-4, PW-5 and Tarlok Singh, PW-6. After the close of evidence by the prosecution, the accused was examined by the learned Judicial Magistrate Ist Class and his statement was recorded under Section 313 Cr.P.C. All the incriminating circumstances appearing in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his false implication. He was called upon to enter on his defence but did not produce any evidence in defence. After hearing Assistant Public Prosecutor for the State and learned defence counsel for the accused and going through the records, learned JMIC convicted and sentenced the accused as aforesaid. The petitioner preferred an appeal against his conviction and sentence, but the same was dismissed by learned Additional Sessions Judge. Notice of the revision was given to the State. I have heard learned counsel for the petitioner and Assistant Advocate General, Punjab, for the State and have carefully gone through the records of the case. Crl. Revision No. 18 of 2002 -4- It has been submitted by learned counsel for the petitioner that the learned trial court and learned Additional Sessions Judge, committed an illegality by convicting the accused on the basis of the statements of the official witnesses, who were having enmity with the petitioner, when the case of the prosecution was not at all supported by the son of the deceased who was with him at the time of alleged accident. From the evidence of the prosecution itself, it stands proved that the truck was being driven at a slow speed, which negatives the contention of the prosecution that the same was being driven at a fast speed. The official witnesses, who have been termed as eye witnesses, had asked for illegal gratification from the petitioner in the form of entry fee, but he refused to pay the same. It was on that account that the petitioner was falsely implicated. He has placed reliance on Partap Singh vs. State of Punjab 1998(1) RCR (Criminal) 740 and Niranjan Singh vs. State (Delhi Administration) 1997 (1) RCR (Criminal) 320 On the other hand, it has been contended by Assistant Advocate General, Punjab, that the presence of the police officials at the time of the accident was very much probable and there is nothing on the record that they were having any grudge against the petitioner. The petitioner has not substantiated his plea by producing any evidence. Non- supporting of the case of the prosecution by the son of the deceased, cannot be made a ground for acquittal, when there is sufficient evidence on the record in the form of the other two eye witnesses, who had made categorical statements that it was on account of rash and negligent driving of the truck by the petitioner, that he endangered the personal safety of others and cause death of Malkiat Singh, not amounting to culpable homicide. Crl. Revision No. 18 of 2002 -5- There is no denial of the fact that Bhim Singh,PW-4 son of the deceased, did not support the prosecution case in the court, though he deposed that the truck was brought from their back side and was struck in his father. According to him, the driver of the truck ran away from the spot after stopping the same. He did not identify the petitioner as the same person, who was driving the truck at that time. The statement of this witness in no way affects the merits of the prosecution case. Mere non- supporting of the prosecution case by one of the witnesses cannot be made a ground to reject the other trust worthy evidence on the record. It was Harnek Singh, ASI, PW-2, who along with other police officials witnessed the accident with his own eyes and it was he, who got the FIR lodged. He made categorical statement in the Court that it was the petitioner, who was driving the truck at the time of accident and by driving the same rashly, he crushed the deceased under the wheel thereof. The statement of that ASI has been fully corroborated by HC Gurtej Singh-PW-3. The question to be determined is “whether the accused has been able to prove on the record that both these police officials were inimical towards him and on that ground have made false statements.” No doubt, he suggested to both these witnesses that they demanded entry fee from him, which he refused to pay and on that account they made false case against him. That suggestion was denied by both of them. No such plea was taken by the petitioner when his statement was recorded under Section 313 Cr.P.C. nor he has been able to make his stand probable by eliciting any fact during the cross examination of the witnesses. Mere putting of suggestions will not prove his plea nor would make the same probable. The learned trial court and learned Appellate Crl. Revision No. 18 of 2002 -6- Court did not commit any illegality by recording the conviction of the petitioner on the basis of the statements of these police officials, who witnessed the accident with their own eyes. According to Gurtej Singh HC, PW-3, the truck was stopped by the petitioner at a distance of 4/5 karams. That was the distance covered by the truck after the accident. Merely on that ground, it cannot be concluded that the truck was being driven at a slow speed. One karam is equal to 5 feet and as such, the truck had covered the distance of 20/25 feet before it was stopped. In Niranjan Singh's case (supra) the bus stopped at a distance of 8/10 feet and from that fact it was concluded that the accused was driving the bus at normal speed. In the present case , the truck had covered more than double the said distance. That itself shows that the same was being driven at a fast speed. There is nothing on the record from which it may be concluded that the truck was not being driven in rash and negligent manner. Both the above said witnesses have made reliable statement that it was being driven rashly and negligently. The prosecution was able to prove beyond any shadow of doubt that it was the petitioner who was driving the truck at the time of accident. In these circumstances, the judgment of Partap Singh's case (supra) has no application to the facts of the present case. It is one of the submissions of the learned counsel for the petitioner that the petitioner be released on probation as he has been under trauma of trial for so many years. Merely because the sword of conviction was hanging on the petitioner for so many years, cannot itself be made a ground for releasing him on probation. It was held by Hon'ble the Supreme Court in State of Karnataka v. Sharanappa Basnagouda Crl. Revision No. 18 of 2002 -7- Aregoudar 2002(2) RCR(Crl.) 271 that “if the accused are found guilty of rash and negligent driving, courts have to be on guard to ensure that they do not escape the clutches of law very lightly. The sentence imposed by the courts should have deterrent effect on potential wrong duers and it should commensurate with the seriousness of the offence. Of course Courts are given discretion in the matter of sentence to take stock of the wide and varying range of facts, those might be relevant for fixing the quantum of sentence, but the discretion shall be exercised with due regard to larger interests of society and it is needless to add that passing of sentence on the offender is probably the most public fact of the criminal jurisprudence.” In Dalbir Singh vs. State of Haryana 2000(2) RCR (Criminal) 817 it was held by Hon'ble the Supreme Court that the court cannot treat the nature of offence under Section 304-A IPC as attracting the benevolent provisions of the Probation of Offenders Act. The courts can can play an important role in lessening high rate of murder cases due to callous driving of automobiles.” In Rattan Singh vs. State of Punjab 1979 Crl. Law Times 404 for offence under Section 304 -A IPC the accused was sentenced to rigorous imprisonment for two years. That sentence was maintained up to the Hon'ble Supreme Court and it was held that when a life has been lost and circumstances of driving are harsh, no compassion can be shown. Recently, it has been held by Hon'ble the Supreme Court in B.Nagabhushannam v. State of Karnataka 2008 (3) RCR (Criminal) 50 that bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304-A IPC as Crl. Revision No. 18 of 2002 -8- attracting benevolent provisions of Section 4 of the Probation of Offenders Act.” Therefore, there is no question of releasing the accused on probation. There is no merit in this revision and the same is hereby dismissed. If the petitioner is on bail, he be taken into custody for undergoing the remaining part of his sentence. (GURDEV SINGH) JUDGE December 08, 2009 PARAMJIT