Crl.Revision No.1577 of 2001 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Revision No.1577 of 2001 Date of decision: 2.8.2010 Hans Raj and another ... Petitioners versus Vinod Kumar and another ... Respondents CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Rahul Vats, Advocate, for the petitioners. Mr.Arshvinder Singh, DAG, Punjab. ... JORA SINGH, J. Crl. Revision was preferred by Hans Raj and Raj Kumar, revision petitioners, to impugn the judgment dated 14.5.2001 rendered by Sub Divisional Judicial Magistrate Ist Class, Abohar. By the said judgment, accused-respondent No.1 Vinod Kumar was acquitted of the charge levelled against him under Sections 304-A/279/427 IPC. Against acquittal, no appeal was preferred by the State. Prosecution story, in brief, is that on 28.4.1998, telephonic message was received from Civil Hospital, Ganganagar, to the effect that one Om Parkash r/o Village Kallarkhera has been admitted in the hospital with injuries on his person. As per message, police party headed by ASI Major Singh had gone to Civil Hospital, Ganganagar, where Om Parkash was lying admitted. In the hospital, Hans Raj had met the Investigating Officer. Statement of Hans Raj was recorded. He reported to the police that Crl.Revision No.1577 of 2001 2 he was resident of Village Kallarkhera. On 27.4.1998 at about 5.00 PM, he along with Harchand was going on foot towards their fields situated on the side of Ganganagar. They were at a distance of 1-1 /2 kms and were waiting for some vehicle. While standing on the metalled road, then sighted tractor No. PB-15-A-1850 driven by Om Parkash, r/o Village Kallarkhera, coming from the side of Village Kallarkhera. When tractor was at a distance of 15 karams from them, then a Tata Sumo No.DL-8-CB-5560 came from the back side. Tata Sumo was being driven in a rash and negligent manner and without blowing horn was struck against the tractor driven by Om Parkash. In the accident, both the vehicles had turned turtle. Om Parkash was found to be in critical condition. There were some passengers in Tata Sumo, who had received injuries. They had identified the driver of Tata Sumo, namely, Vinod Kumar Dhanik, r/o Dhanik Mohalla, near Indira Chowk, Ganganagar. After accident, driver of Tata Sumo had fled away from the spot. Om Parkash was got admitted in the hospital after making arrangement of a vehicle and in the hospital, Om Parkash had succumbed to his injuries. Statement was read over and explained to Hans Raj, 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. Investigating Officer had prepared inquest report and dead body was sent to mortuary for postmortem examination. Investigating Officer had gone to the spot. Rough site plan with correct marginal notes was prepared. Statements of the witnesses were recorded. Vinod Kumar was arrested and was ordered to be released on bail. After completion of investigation, accused-respondent was challaned. Crl.Revision No.1577 of 2001 3 Accused was charged under Sections 304-A/279/427 IPC, to which he pleaded not guilty and claimed trial. Prosecution examined PW1 HC Baljit Singh, who stated that on 28.4.1998, he had joined police party headed by ASI Major Singh. Dead body was handed over to him for postmortem examination and after postmortem examination, dead body was handed over to the relations of the deceased for cremation. PW2 Hans Raj, Mechanic, had mechanically tested Tata Sumo No.DL-8-CB-5560 on 28.4.1998. After mechanical test, front portion of Tata Sumo was found damaged. Tata Sumo was not in working condition. He had also mechanically tested Tractor No.PB-15-A-1850. It was also not in working condition. After mechanical test, report (Ex.P3) was sent to the higher authorities. PW4 Hans Raj and PW5 Harchand are the eye witnesses. Both stated that in their presence, there was an accident due to rash and negligent driving of Tata Sumo. PW5 Harchand stated that on 27.4.1998 at about 5.00 PM, they had gone towards their fields. When they were present at a distance of 1-1 /2 kms. from bus stand, and were waiting for the vehicle, then sighted one tractor driven by Om Parkash. One Tata Sumo was also seen while coming from the side of Abohar. Accused-respondent was driving Tata Sumo. Tata Sumo was struck against the tractor. Om Parkash had received multiple grievous injuries. He was shifted to the hospital. Vinod Kumar was driving Tata Sumo, but after accident, he had fled away from the spot. PW6 ASI Major Singh is the Investigating Officer. PW7 Dr. Brij Mohan had conducted postmortem examination Crl.Revision No.1577 of 2001 4 on the dead body of Om Parkash and found the following injuries on his person:- “1. Diffuse swelling right side skull & neck. 2. Contusion with abrasion 5' x 2-1 /2' right lateral side abdomen. 3. Contusion around right eye. 4. Multiple abrasion 3 /4' x 1/6' right forehead. 5. Contusion 2' x 1' right leg upper 1/3 medially.” After close of the prosecution evidence, statement of accused- respondent was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. No defence was led. After hearing learned Public Prosecutor for the State, learned defence counsel for the accused and from the perusal of evidence on the file, trial Court opined that prosecution failed to prove its case beyond doubt. Benefit of doubt was given to the accused and he was acquitted of the charge levelled against him. I have heard learned counsel for the petitioners and learned State counsel and gone through the evidence on file. Learned counsel for the petitioners argued that on 27.4.1998 at about 5.00 PM, Hans Raj and Harchand were going towards their fields and when they were at a distance of 1-1 /2 kms, then sighted one tractor No.PB- 15-A-1850 driven by Om Parkash. In the meantime, Tata Sumo No.DL-8- CB-5560 driven by Vinod Kumar was sighted while coming from the side of Abohar. Tata Sumo was being driven rashly and negligently and without blowing horn, had struck against the tractor. In the accident, Om Parkash Crl.Revision No.1577 of 2001 5 received multiple injuries and was shifted to hospital. In the hospital, Om Parkash had succumbed to his injuries. Vinod Kumar was named in the FIR and was identified in Court but evidence on file was not rightly scrutinized. Without any reason, accused-respondent was acquitted of the charge levelled against him. When judgment was perverse and evidence on file was misread, then Court has the power to interfere and reverse the judgment of acquittal. Learned State counsel argued that against acquittal, no appeal by the State. Evidence on file was rightly scrutinized. Case of the prosecution is that on 27.4.1998, Om Parkash on Tractor No.PB-15-A-1850 was seen by Hans Raj and Harchand when they were present at a distance of 1-1 /2 kms towards the side of Ganganagar from their Village Kallarkhera. Tata Sumo No.DL-8-CB-5560 was seen while coming from Abohar side. According to the witnesses, Tata Sumo was being driven rashly and negligently and without blowing horn, was struck against the tractor and in the accident, Om Parkash received multiple injuries. He was shifted to hospital by the eye witnesses, but in the hospital, Om Parkash had succumbed to his injuries. After accident, driver of Tata Sumo had fled away from the spot. Only question is whether Vinod Kumar was driving the Tata Sumo at the relevant time and secondly, whether the Tata Sumo was being driven rashly and negligently. Hans Raj complainant appeared as PW4. In cross-examination, Hans Raj admitted that second eye witness namely Harchand is also from his village. They were going towards their fields. Fields of Om Parkash were on the way. There is abadi in the village. Tractor was at a distance of 15-20 karams at the time of accident. There were 7-8 passengers in the Tata Crl.Revision No.1577 of 2001 6 Sumo. His statement was recorded on the next day at 7.30 PM. They had shifted Om Parkash to Civil Hospital, Ganganagar. Passengers travelling in the Tata Sumo had not gone to Civil Hospital, Ganganagar. He cannot tell number of Jeep in which Om Parkash was shifted to hospital. Number of persons had collected on the spot. Driver of Tata Sumo had fled away from the spot towards Ganganagar side. They had tried to catch hold the driver. Driver of Tata Sumo was earlier known to them because he was seen at the taxi stand of Ganganagar, but he cannot tell father's or brother's name of the driver. Residential address of the driver was not disclosed to the police. Statement of Hans Raj inspires no confidence because occurrence had occurred on 27.4.1998 at 5.00 PM. His statement was recorded on the next day. Evidence on file shows that name of driver was disclosed to the complainant party by the passengers travelling in Tata Sumo, but no passenger of Tata Sumo was examined by the prosecution to state that they had disclosed about the name of driver of Tata Sumo to the complainant party. After arrest of accused, no test identification parade was arranged. In the FIR, Hans Raj had stated that some of the passengers travelling in Tata Sumo also received injuries but no evidence on the file that any one travelling in Tata Sumo had received injuries. As per FIR,driver of Tata Sumo was identified on the spot by the eye witnesses. Name of the driver was Vinod Kumar Dhanik, r/o Dhanik Mohalla, near Indira Chowk, Ganganagar. After arranging vehicle, Om Parkash was shifted to hospital, but no evidence on file as to who was the owner of the vehicle, which was arranged to shift the injured to hospital. When father's name and complete address of the accused was not known to the complainant, then complainant had no reason to name the driver of offending vehicle and give his complete Crl.Revision No.1577 of 2001 7 address. Evidence rather shows that from the passengers travelling in Tata Sumo, complainant party came to know about the name of driver of Tata Sumo. Statement of Hans Raj was recorded on the next day, i.e., 28.4.1998 at about 7.30 PM in Civil Hospital, Ganganagar, but no record of the hospital that injured was shifted to hospital by Hans Raj or Harchand. As discussed earlier, if driver of Tata Sumo was earlier known to the complainant, then no idea to enquire from the passengers as to who was the driver of Tata Sumo. Contrary to the FIR, evidence was led that driver of offending vehicle was already known to complainant party. Second allegation was that name of driver was disclosed by the passengers travelling in the Tata Sumo. So, statement of Hans Raj dated 28.4.1998 at 7.30 PM when occurrence was at 5.00 PM on 27.4.1998, particularly when no test identification parade was arranged, was rightly ignored. Next witness is Harchand. He claimed to be the eye witness. But in Court, he stated that on 27.4.1998 at 5.00 PM, he along with Hans Raj was present on the spot. When they were present at a distance of 1-1 /2 kms from bus stand, then sighted tractor driven by Om Parkash. In the meantime, Tata Sumo from the side of Abohar came and was being driven by Vinod Kumar. Tata Sumo was struck against the tractor and in the accident, Om Parkash had received multiple injuries. Death of Om Parkash was in the hospital. Driver of Tata Sumo had fled away from the spot, but in the cross-examination, admitted that they were at a distance of 1 /2 killa when witnessed the occurrence. 5-7 persons were in the Tata Sumo and some of them had received injuries in the accident. After occurrence, they had gone to Village Kallarkhera to arrange a vehicle. After arranging vehicle, Om Parkash was shifted to hospital. After occurrence, at 10.00 AM Crl.Revision No.1577 of 2001 8 on the next day, police came and his statement was recorded. As per information supplied by the passengers, they had named Vinod Kumar. Vinod Kumar was not known to them earlier to the present occurrence. So, from the statements of both the eye witnesses, one thing is clear that there were passengers travelling in Tata Sumo and the passengers had disclosed about the name of driver of Tata Sumo. As per information supplied by the passengers, both the witnesses had named accused-respondent but no passenger was examined by the prosecution, who had disclosed name of accused-respondent to the complainant party. Accused-respondent was not not earlier known to the eye witnesses. Accused is from Ganganagar, whereas eye witnesses are the residents of Village Kallarkhera, District Ferozepur. When accused-respondent was not earlier known to the eye witnesses, then there was no reason to name the driver of Tata Sumo. Immediately after the occurrence, statement of complainant was not recorded. Statements of complainant and second eye witness were recorded on the next day. They had supplied information as per information given to them by the passengers travelling in Tata Sumo. After arrest of accused- respondent, test identification parade was not arranged. Some of the passengers had also received injuries in the accident but no one was examined. That means, identity of the respondent- accused is doubtful. When there are two versions, then the version favourable to the accused is to be accepted. Judgment of acquittal is to be set aside if the Court is of the opinion that evidence on file was not properly scrutinized or evidence was misread. Crl.Revision No.1577 of 2001 9 For the reasons recorded above, no ground to interfere. Revision without merit is dismissed. 2.8.2010 ( JORA SINGH ) pk JUDGE