Crl. Revision No. 2395 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 2395 of 2005 Date of decision: March 9, 2011 Ram Avtar ...Petitioner Versus State of Haryana ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Sandeep Jasuja, Advocate, for the petitioner. Mr. JS Rattu, DAG, Haryana. GURDEV SINGH, J. (Oral) The prosecution version, as incorporated in the statement of Sakir-complainant, Ex. PB and on the basis of which FIR was recorded on 2.5.1997, is that the said complainant, alongwith Jagdish Kumar, Vijay Kumar and Singh Ram, was travelling in Maruti car bearing registration No. DL-4CE-6849, which was being driven by Om Parkash. They were coming from the side of Ramgarh and were proceeding towards Sohana. When they reached near Thikri, the accused came driving the truck bearing registration No. RJ-02G-3599 from the opposite side rashly and negligently and struck the same in their car, as a result of which all the occupants thereof received the injuries and Vijay Kumar died at the spot. All the injured were removed to the hospital, where they were medically examined. After receipt of written information from the hospital, Kanhiya Lal, ASI (PW-6) went to that Crl. Revision No. 2395 of 2005 2 place and after obtaining the opinion of the doctor about the fitness of the complainant recorded his above said statement. Thereafter, he proceeded to the place of accident and after inspecting the same, prepared rough site plan Ex. PW6/D with correct marginal notes. The photographer was called to the spot by the ASI, who took the photographs. The vehicles involved in the accident were taken into possession. The ASI prepared the inquest report in respect of the dead body of Vijay Kumar and sent the same for post-mortem examination. The autopsy on the dead body was performed by Dr. Santosh Jain (PW-1), who found ante-mortem injuries on the same and it was opined by him that the cause of death was due to haemorrhage and shock, as a result of those injuries. The truck was mechanically tested by Nand Lal, Mechanic (PW-2), who gave his report Ex. PA. In the course of the investigation, the accused was arrested and after completion thereof, challan was put in before the SDJM, Ferozepur Jhirka, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 279, 337 and 304A IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, the prosecution examined Dr. Santosh Jain (PW-1), Nand Lal, Mechanic (PW-2), Sakir, complainant (PW- 3), Prem Singh (PW-4), Jagmender Singh, HC (PW-5), Kanhiya Lal, ASI (PW-6) and Mahender Kumar (PW-7). After the close of the prosecution evidence, the accused was examined by the trial court and his statement was recorded under Section 313 of the Code. All 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 false implication. He was called upon to Crl. Revision No. 2395 of 2005 3 enter on his defence but he did not produce any evidence in his defence. After going through the evidence, so produced and hearing Assistant Public Prosecutor for the State and the learned defence counsel for the accused, the SDJM convicted the accused for the offences under Sections 337 and 304A IPC, vide judgment dated 7.10.2004 and sentenced him as under:- 1 Ram Avtar (i) to undergo rigorous imprisonment for a period of six months under Section 337 IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of fifteen days; and (ii) to undergo rigorous imprisonment for a period of one year and six months under Section 304-A IPC and to pay fine of ` 1500/-, in default thereof to further undergo simple imprisonment for a period of one and a half month; The petitioner/accused preferred an appeal against that conviction and sentence, but the same was dismissed by the Additional Sessions Judge, Gurgaon, vide judgment dated 14.12.2005. The present revision has been preferred against that judgment of conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the petitioner/accused that the conviction of the accused could not have been based on the solitary statement of Sakir (PW-3), who no where stated that the death of the deceased was caused by the rash and negligent driving of the truck by the accused. It is very much apparent from the rough site plan prepared by the Investigating Officer that the car was being driven on the right side of the road, which shows that it was being driven on the wrong side. He also referred to the report of the mechanic, who found that Driver Crl. Revision No. 2395 of 2005 4 side king-pin of the truck was broken and in that eventuality, the truck was supposed to be out of control of the accused and he cannot be held to be negligent and at the most the accident was the result of the mechanical snag in the truck. He also tried to assert that Om Parkash, who was driving the car, was under the influence of alcohol and, in fact, the accident took place on account of his negligence. The onus was on the prosecution to prove that Om Parkash had not taken any such alcohol and was not under the influence thereof. For proving that fact, the prosecution was required to get the driver medically examined from the doctor but the same was not done and the same is fatal to the prosecution. There is no rule of law nor any rule of prudence that the prosecution was required to prove on record that the driver of the other vehicle had not taken any alcohol. Neither the accused produced any evidence in his defence nor he elicited any fact during the cross- examination of the prosecution witnesses, on the basis of which it may be held that Om Parkash, the driver of the car, was under the influence of alcohol at the time of the accident or the accident occurred on account of his negligence. After perusal of the statement of Nand Lal (PW-2) this court has come to the conclusion that driver side king-pin of the truck must have broken after the accident and not before the accident as in that eventuality this truck could not have been driven on the road. No doubt, the prosecution is relying on the solitary statement of Sakir, complainant (PW- 3) so far as the accident is concerned, but it is settled law that conviction can be recorded even on the solitary statement of a witness, if the same is found to be trustworthy. It was categorically stated by that witness that the truck was being driven by the accused in a zig-zag manner and the same Crl. Revision No. 2395 of 2005 5 struck in their car. The way the truck was being driven by the accused, it can easily be concluded that the cause of this accident was the result of the negligent driving of the truck. Correct finding was recorded by the trial court and upheld by the appellate court and there is no ground for concluding that the same is perverse or illegal. It has also been submitted by the learned counsel for the accused that the accused has a large family to support as he is the only bread winner of his family and that he is not a previous convict. He prayed that he be released on probation or the sentence of imprisonment so imposed upon him be reduced to the period already undergone. The accused might be the first convict but keeping in view the fact that a life has been lost on account of negligent driving of the truck by him, no compassion can be shown and for such like offence, he cannot be released on probation. However, keeping in view the fact that the accused is standing his trial for the last more than 12 years, his sentence of imprisonment of one year and six months imposed under Section 304-A IPC is reduced to nine months. As per the custody certificate placed on record by the learned State counsel, the petitioner has undergone imprisonment only for a period of two months. He be taken into custody for undergoing remaining part of his sentence of imprisonment. The revision is disposed of accordingly. Records of the trial court be returned forthwith. March 9, 2011 (GURDEV SINGH ) prem JUDGE