Criminal Revision No.1261 of 2003(O&M) [1] IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Revision No.1261 of 2003 (O&M) Decided on : July 20, 2010 Dilbagh Singh ... Petitioner VERSUS State of U.T. Chandigarh ... Respondent CORAM : HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.M.S.Kang, Advocate for the petitioner. None for respondent – Union Territory Chandigarh. A.N.JINDAL, J.- The petitioner – accused Dilbagh Singh (herein referred as `the petitioner') has assailed the judgment dated 26.5.2003 passed by Additional Sessions Judge, Chandigarh confirming his conviction and dismissing his appeal against the judgment dated 7.3.2001 passed by Judicial Magistrate Ist Class, Chandigarh, convicting him under Sections 279/304-A of the Indian Penal Code. The prosecution case as revealed from the record is that on 21.9.1995 at about 9.15 PM when Ashwani Kumar (PW5) (herein referred as `the complainant') was standing on the side of the `kacha' passage leading to village Batrela and was waiting for his brother Chet Ram. In the meantime, he saw him turning from the liquor vend side towards village Batrela, at the same time, the petitioner while driving bus No.PB-12B-9607 Criminal Revision No.1261 of 2003(O&M) [2] rashly and negligently came and struck against his bicycle. Resultantly, Chet Ram fell down and died at the spot. On the aforesaid statement (Ex.PW5/A), the FIR (Ex.PC) was recorded and the investigation commenced. ASI Azad Singh (PW6) visited the place of occurrence, recorded the statement of Ashwani Kumar at the spot, took the bicycle and the bus into possession and after getting the site photographed, arrested the petitioner. On completion of the investigation, charge-report was submitted. The petitioner was charged for offences under Sections 279/304-A IPC, to which he pleaded not guilty and claimed trial. However, on trial, he was convicted and sentenced accordingly. Arguments heard. Record perused. The facts as indicated appear to be emanating from improbable version and are evident of making the presence of the sole eye-witness Ashwani Kumar – complainant doubtful. The First Information Report is contradictory to his testimony in the Court. The FIR reveals that the complainant was standing by the side of the passage leading to village Batrela and the deceased was hit when he was trying to take a turn from the liquor shop towards the village, but his statement on oath in the Court is to the following effect:- “...On dt. 21.9.1995 at about 9.15 PM I was at my quarter and I was waiting for my brother. A bus came from Mohali side which was of Hoshiarpur Depot PB12 996, which was driven by Dilbir Singh and he is present in the court. He caused Criminal Revision No.1261 of 2003(O&M) [3] accident and my brother died on the spot. My brother was on bicycle and he was coming from Sector-17 side. The bus was coming at a very high speed.” The aforesaid statement impresses me to infer that the complainant – Ashwani Kumar (PW5) was present at his house and not at the spot when the accident took place. He has given the registration number of the bus as `PB12-996' whereas, the petitioner is stated to be driving the bus PB-12B-9607. Nothing could be depicted from the statement of the alleged sole eye-witness, if the act of the petitioner was rash or negligent, which is the sine qua non for indicting the petitioner for the offence. The witness has given the name of the accused as Dilbir Singh, whereas, the man prosecuted is `Dilbagh Singh'. Thus, the person, who was actually driving the bus, is not known to the witness. The case of the prosecution is that the deceased was coming from the side of liquor vend, whereas, this witness has stated that the deceased was coming from Sector-17 side. Not only this, the witness has also stated that number of persons had witnessed the occurrence, but none was examined. He has further stated that he cannot disclose the names of the persons, who had seen the accident. The witness has stated that there were skid marks on the road showing that the petitioner had applied the brakes, whereas, the Investigating Officer ASI Azad Singh (PW6) has stated that there were no skid marks. The deposition of the sole eye-witness that he had signed 10/12 blank papers and he does not know what was written on those papers, indicates the height of fabrication. He has gone on to state that he does Criminal Revision No.1261 of 2003(O&M) [4] not know as to what was written in his statement Ex.PW5/A, nor he knows as to what was written in document Ex.PB5/B, on which his signatures appear. The aforesaid evidence leaves no ground to doubt that the occurrence did not take place in the presence of the complainant and his statement was not recorded at the place of occurrence and he was introduced as a witness after summoning him to the Police Station. That apart, the statement of the complainant does not find corroboration with any other witness, and the same also is in contradiction of the Investigating Officer ASI Azad Singh. Though, the complainant has stated that many people had seen the accident, but the Investigating Officer states that the accident was not seen by any other person, except Ashwani Kumar – complainant. ASI Azad Singh (PW6) states that the bicycle came from the side of chowk of Sectors 36/37/41/42, whereas, the complainant (PW5) has given the statement to the contrary. Again pressing home the point, the counsel for the petitioner has urged that the necessary element of rashness and negligence has not been proved on the record, which was the sine qua non to complete the offence. The argument is convincing. Having gone through the statement of sole eye witness Ashwani Kumar (PW6), it transpires that he has deposed in his statement in court only that the bus was coming at a very high speed. The witness did not state anywhere, if the accused was driving the bus rashly or negligently. As such, in the absence of the proof of necessary element of rashness or negligence, it would be difficult to hold that the accident took place as a result of rash or negligent driving of the bus by the petitioner. The occurrence took place during night time. The petitioner Criminal Revision No.1261 of 2003(O&M) [5] was not arrested at the spot. The witness has admitted that he did not know about his name and address, but he came to know about it later on. Having perused the impugned judgments passed by the courts below, it is apparent that the aforesaid aspects of the case had not been taken care of while recording the conviction against the petitioner, which finding could only be recorded when the facts are far beyond doubt. As such, the impugned judgments have been rendered as erroneous and could be said to have been passed without proper appreciation of evidence and correct application of the law. Resultantly, the revision is accepted and the impugned judgments are set aside. The petitioner is acquitted of the charges framed against him and he is ordered to be set at liberty. His bail bonds and surety bonds stand discharged. July 20, 2010 ( A.N.JINDAL ) `gian' JUDGE