Crl. Rev. No. 1738 of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- Crl. Rev. No. 1738 of 2005 Date of decision:- April 26, 2011 Harbhajan Singh ... Petitioner Versus State of Punjab ... Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Premjit Kalia, Advocate, for the petitioner. Ms. Gagan Mohini, DAG, Punjab. Gurdev Singh, J (oral) The petitioner/accused Harbajan Singh, was convicted for the offences under Sections 279 and 304A IPC by the JMIC, Jalandhar, vide judgment dated 18.9.2003 and was sentenced as under:- Under Section Sentence Fine In default 279 IPC R.I for three months ---- ----- 304-A IPC R.I for one year `1,000/- Imprisonment for 15 days. Aggrieved against that conviction and sentence, he preferred an appeal, which was dismissed by the Additional Sessions Judge, Jalandhar, vide judgment dated 8.7.2005. Now, he has come up with the present revision petition against that conviction and sentence. The prosecution story, in brief, is that on 22.4.1998 Malkiat Ram- complainant PW4 accompanied by his co-villager Dalbir Chand deceased had gone to Jalandhar on scooter bearing registration No. PBH 9018 for Crl. Rev. No. 1738 of 2005 -2- purchasing the electric goods. When they reached in front of Govt. Primary School for boys, Jandu Singha, accused came driving bus of Punjab Roadways bearing registration No. PB-12A-9114 rashly and negligently from the backside and without blowing any horn struck the same on the backside of their scooter as a result of which both of them fell down and received injuries. The front portion of the bus struck in the head of the deceased and he succumbed to the injuries at the spot itself. After stopping the bus the accused escaped from that place. The complainant approached Bhupinder Singh SI, who was present at the turning of Jandu Singha and made his statement Ex.PW4/A about this accident. The SI, after recording the police proceedings PW6/A, sent the same to the police station and on the basis thereof formal FIR PW6/B was recorded under Sections 279 and 304 A IPC. The SI came to the place of accident and after inspecting the same prepared the rough site plan Ex.PW6/D with correct marginal notes. He called Lakhbir Chand photographer PW5 to the spot, who took the photographs Ex.PW5/1 to PW5/8. The SI prepared inquest report PW6/C in respect of the dead body of the deceased and sent the same to the hospital for post mortem examination. The SI collected the blood stained earth from the spot, which was put in a small box. The same was converted into a parcel and was sealed by the SI. The sealed parcel was taken into possession vide memo Ex.PW6/E. Bus was taken into possession vide memo Ex.PW6/F. The autopsy on the dead body was performed by the doctor on 3.4.1998, who found ante mortem injuries on the same and gave his opinion that cause of death was fracture of scalp and hemorrhage. In the course of investigation, the documents, consisting of the duty register Crl. Rev. No. 1738 of 2005 -3- and the yard control register, were collected and it transpired therefrom that it was the accused who was driver on the offending bus at the time of accident. Both the vehicles involved in the accident were got tested from Krishan Kumar constable mechanic and about the test he gave his reports in writing. In the course of investigation the accused was arrested and after the completion thereof, the challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 279 and 304A IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused prosecution examined PW1 Dr. Sarveshwar Chander Sood, Gurmail Singh HC PW2, Kuldeep Singh Clerk PW3, Malkiat Ram complainant PW4, Lakhbir Chand PW5, SI Balwinder Singh PW6, Surjit Singh Clerk PW7 and Darshan Dyal Clerk PW8. After the evidence was closed by the prosecution the accused was examined by the learned trial Court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him 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 innocence and false implication. He has stated that on 22.4.1997, he was driving the bus bearing No. PB-12A-9114, but the same was not involved in any such accident. Balbir Chand was driving the scooter negligently and at fast speed and tried to over take his bus from the wrong side, but could not control the scooter and the same skid on the sand and gravels lying on the road and he received the injuries. The legal heirs of the deceased in order to claim compensation for his death made a false case against him. He was called upon to enter on his defence, Crl. Rev. No. 1738 of 2005 -4- but he did not produce any evidence in his defence. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner/accused that Malkiat Ram complainant was not present at the spot and was introduced into picture subsequently. Had he been present and received the injuries in this accident the prosecution must have proved on record his medico legal report, but no such evidence was produced, which creats doubt in his presence at the spot at the time of accident. The accused was not named in the FIR nor his description was given therein. In fact he was identified by the said complainant in the Court for the first time and no reliance is to be placed upon that identification, in the absence of any test identification parade. He further submitted that the version as put forward by the prosecution is highly improbable as in case the bus was being driven at fast speed and had struck the scooter from the backside the same must have been damaged totally. No evidence has been produced by the prosecution to prove the extent of the damage caused to that scooter. The non-damaging of the scooter to that extent makes probable the stand of the accused that in fact the deceased himself was driving negligently and scooter skid on the sand and gravels lying on the road when he tried to overtake the bus from the wrong side and received injuries. The investigating officer never entered the witness box to face the cross- examination and the statement made by him in the Court does not constitute legal evidence and amounts to his non-examination and as such an adverse influence is drawn against the prosecution. Even if it is believed that the complainant was driving the scooter, even then on the basis of his statement Crl. Rev. No. 1738 of 2005 -5- it cannot be held that the accident took place on account of rash and negligent driving of the bus by the accused as the bus had struck on the backside of the scooter and it was not his statement that he was looking at the backside at the same time. When he was driving the scooter and looking in the front, he could not noticed the speed of the bus. In these circumstances, the conviction of the accused so recorded by the trial Court and upheld by the appellate Court cannot be sustained. In the last he submitted that the accused is not a previous convict and is standing the trial from the last 13 years and has already undergone the sentence of imprisonment for a period of about two months. He is in the service of punjab roadways and is only bread winner of his family. The interest of justice requires that he be released on probation. The presence of Malkiat Ram at the spot cannot be doubted. It is a fact that the prosecution did not produce any documents on the record for proving that injuries were found on his person. The accused had the opportunity of testing the correctness of the statement of this witness on the touch stone of cross-examination. He was cross-examined at length by the accused, but in the process he has not been able to elicit any fact on the basis of which it may be held that he was not present at the spot and has been introduced in the picture subsequently. The evidence of the prosecution is to be scrutinized in the light of the stand taken by the accused in the statement under Section 313 Cr.P.C. He has not denied the fact that he was driver of the bus at the time of accident. The prosecution has also examined Darshan Dyal record clerk PW8 for proving that fact and the statement of that witness is based upon the entries made in the duty register Crl. Rev. No. 1738 of 2005 -6- and the yard register. Those documents are being maintained regarding the buses which leave the bus stand and entries are made therein regarding all the conductors and drivers deputed on those buses. From the evidence produced by the prosecution it stands proved beyond any reasonable doubt that it was the accused who was driver on the offending bus. In these circumstances the argument advanced by the defence counsel that identity of the accused has not been established and reliance is not been placed upon the statement of the complainant, regarding his identification, loses its relevance. There is no dispute about the fact that Bhupinder Singh SI entered the witness box as PW6. After his examination-in-chief was recorded his cross-examination was deferred and thereafter he never entered the witness box. The question arises whether the accused has been prejudiced on account of non-entering of that witness in the witness box for his cross- examination? He has not even denied the fact that the deceased had received the injuries by falling from the scooter and the presence of his bus at that place. He tried to take up the plea that the deceased himself was driving the scooter and while overtaking the bus from the wrong side slipped on the sand and gravels lying on the road and received the injuries. Therefore, it cannot be said that the accused was prejudiced by non-entering of Investigating Officer in the witness box for his cross-exmination. In view of the stand taken by the accused, the only question to be determined is, whether the deceased had fallen from the scooter after the bus struck the scooter from the back side or he himself had fallen after the scooter slipped on the road. The plea so taken by the accused was put to Crl. Rev. No. 1738 of 2005 -7- Malkiat Ram complainant PW4 during his cross-examination, but he denied that suggestion. Merely suggestion, in the absence of any other fact having been extracted from his statement or from the statement of any other prosecution witness, will not prove that plea of the accused. There is nothing on the record to disbelieve the testimony of Malkiat Ram complainant PW4 that it was the offending bus, which was struck in the scooter by the accused. After having examined the records, I do not find that the findings so recorded by the trial Court and the appellate Court while recording the conviction, are illegal or perverse or mis-reading of the evidence. Therefore, this conviction cannot be interfered while exercising the revisional jurisdiction and the same is upheld. The Court is to strike a balance between the Punitive theory and Reformative theory of releasing the offender on probation. Before releasing the accused on probation the Court is to keep in mind the nature of the offence, circumstances in which the same was committed, position of the accused in life and his future prospects, if any. It is a fact that the accused is serving in the Punjab Roadways Department. At the time his statement was recorded under Section 313 Cr.P.C, he stated his age to be thirty years. The case was registered in the year 1998 and the accused is facing agony of trial since then. It is not the case of the prosecution that he is a previos convict as neither any conviction was alleged against him nor proved. He is stated to be the only bread winner of his family. Any sentence imposed will certainly adversely affect his family members. Keeping in view all these facts, I think it expedient and proper to release him on probation. The legal heirs of the deceased can well be compensated. Crl. Rev. No. 1738 of 2005 -8- Accordingly, the sentence so imposed upon the accused is set aside and he is ordered to be released on probation on his executing a bond in the sum of `10,000/- with a surety in the like amount for the period of two years to appear and receive the sentence as and when called upon to do so during that period and to keep peace and be of good behavior in the meanwhile. He is directed to pay `1 lakh as compensation to the legal heirs of the deceased, which shall be paid/deposited by him in the trial Court within three months failing which this revision petition shall be deemed to be dismissed. Records be returned forthwith. April 26, 2011 (Gurdev Singh) tripti Judge Whether to be referred to the reporter?_______