Criminal Revision No.1046 of 1997 1 In the High Court of Punjab and Haryana, at Chandigarh Criminal Revision No.1046 of 1997 Date of Decision: 21.5.2008 Joginder Singh …Petitioner Versus State of Punjab …Respondent CORAM: HON’BLE MR.JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. H.S.Bhullar, Advocate for the petitioner. Mr. Mehardeep Singh, Assistant Advocate General, Punjab, for the State. Kanwaljit Singh Ahluwalia, J. Joginder Singh son of Sardar Singh, resident of village Amma, Tehsil Batala, District Gurdaspur, was convicted and sentenced by the Court of learned Judicial Magistrate Ist Class, Jalandhar, under Section 304-A IPC to undergo rigorous imprisonment for one and a half years and to pay a fine of Rs.200/-. In default of payment of fine, to further undergo one month simple imprisonment. Aggrieved against the same, the petitioner has filed an appeal and the same was dismissed by the Court of learned Additional Sessions Judge, Jalandhar. Aggrieved against the same, the petitioner has filed the present revision petition. Petitioner was tried in case FIR No. 167 dated 26.11.1992 Criminal Revision No.1046 of 1997 2 registered at Police Station Division No. 6, Jalandhar, under Sections 304-A, 279, 337, & 338 IPC. Statement Ex.PA was made by Sham Sunder son of Kewal Krishan, resident of House No. WJ-253, Mohalla Jairkhan, Basti Gujan, Jalandhar. It was stated that the complainant had gone to meet his brother Ram Swarup and nephew Surinder Kumar was having a pipe fitting factory near Rehru bye-pass. After sometime, they on two scooters proceeded towards their house in Basti Gujan from the factory. Scooter No. PB-08-1420 was being driven by Surinder Kumar son of Dharam Pal, resident of House No. WJ-254, Basti Gujan and Ajay Kumar son of Baijnath, resident of Ahlawalpur, Police Station Adampur was the pillion rider. On another scooter No. PUX-8402 complainant Sham Sunder and Ram Swarup son of Kishan Chand Khatri, resident of House No. WJ-257, Basti Gujan, Jalandhar were going. Scooter was being driven by the complainant Sham Sunder and Ram Swarup was the pillion rider, whereas scooter in front was being driven by Surinder Kumar and Ajay Kumar was pillion rider. When at about 1.30 P.M. They reached near the BSF Chowk, then from behind one bus of Punjab Roadways, Nawanshahr No. PUG 3780 came at a high speed without blowing horn. The bus was driven by one Sikh gentleman. While overtaking the scooters, hit scooter driven by Surinder Kumar due to which scooter of Surinder Kumar had fallen on the right side of foot path. Ajay Kumar and Surinder Kumar fell down on the road near the scooter. Front tyre of the bus ran over the head of Surinder Kumar due to which he was crushed and bus stopped after little distance. Surinder Kumar also suffered other injuries. He died at the spot. Ajay Kumar suffered many serious injuries on the right arm and Criminal Revision No.1046 of 1997 3 other pars of his body. When complainant and Ram Swarup reached near the bus, a man alighted from the bus who was driving the bus and disclosed his name as Joginder Singh, driver of Punjab Roadways, Nawanshahr, who after talking for some time took injured Ajay Kumar in one three-wheeler to Civil Hospital. The abovesaid driver Joginder Singh had driven the bus at a very high speed, rashly, without blowing horn and hit the scooter of Surinder Kumar from the wrong side and thereby caused the accident. The complainant after leaving Ram Swarup near the dead body of Surinder Kumar went to Police Station to lodge a report when the police official met him . He made a statement Ex.PA on 26.11.1992 to Lakha Singh, Sub Inspector, Incharge, Police Post But Stand, Jalandhar. On the basis of the above statement FIR was registered. Case was investigated. Report under Section 173 Cr.P.C. was submitted and the petitioner was charged by the Court of learned Judicial Magistrate Ist Class, Jalandhar, on 11.10.1993 for causing death of Surinder Kumar by doing an act not amounting to culpable homicide by driving Bus No. PUG 3780 on a public highway rashly and negligently to endanger human life on 26.11.1992 at about 1.30 P.M. Near Bus Stand, Jalandhar. He was also charged under Section 279 IPC for causing hurt to Ajay Kumar. PW.1 Dr. Amartej Singh, on 27.11.1992 at 10.00 A.M. conducted autopsy on the dead body of Surinder Kumar, aged 28 years. He had noticed 12 injuries on the body of Surinder Kumar. Injury No.1. A crush injury present on the right side of the head, underlying bones fractured and tissues crushed blood vessels ruptured. Brain matter Criminal Revision No.1046 of 1997 4 crushed and coming out of side of the injury. Blood was present. Besides the above injury, 11 abrasions were found on various parts of the body. Sham Sunder, complainant, appeared as PW.3. He reiterated the version given in the FIR. In cross-examination he stated that he never knew the accused-driver earlier. Accused-driver was not arrested at the spot and police had got no test identification conducted. Ram Swarup appeared as PW.3. He corroborated the version given by PW.2 Sham Sunder. PW.4 Baldev Masih had inspected the bus and had submitted his Test Report Ex.PW.4/a. Thereafter, prosecution closed its evidence. Statement under Section 313 Cr.PC. of the petitioner was recorded. He denied the incriminating evidence put to him and pleaded his false implication. Mr. H.S.Bhullar, Advocate, appearing for the petitioner has stated that in the present case, prosecution has miserably failed to establish the identity of the petitioner as the person who was driving the bus. He has contended that nobody has been examined from the Roadways Department to prove that the petitioner was on duty and was driving the bus at the relevant time. He has further stated that the petitioner was not arrested at the spot and he was not known to the witnesses and no Test Identification was got conducted by the police. He has further contended that neither the Investigating officer has been examined nor Photographer has been produced as to enlighten the Court with the visual observation of the spot. No site plan has been Criminal Revision No.1046 of 1997 5 proved. Therefore, the Court is left only to rely upon the testimony of two witnesses namely PW.2 Sham Sunder and PW.3 Ram Swarup. Mr. Mehardeep Singh, learned Assistant Advocate General, Punjab, appearing for the State has contended that both the eye witnesses aspire confidence and both the Courts below felt safe to rely upon the testimony to return findings of conviction against the petitioner. Learned trial Court has observed as under:- “...In the present case two eye witnesses who were very much there on the spot have been examined by the prosecution. They have supported the case. Both of them have stated that Joginder Singh, accused who was driving the bus, who caused the death of Surinder Kumar”. Learned Appellate Court below has also held that both the eye witnesses have no motive to falsely implicate the petitioner. Both the Courts below also took into consideration the fact that non- examination of injured Ajay Kumar is not fatal to prosecution as testimony of two witnesses namely PW.2 Sham Sunder and PW.3 Ram Swarup aspire confidence. At this stage, Mr. H.S.Bhullar, Advocate, has stated that in the present case, accident had taken place on 26.11.1992 and petitioner had suffered a protracted trial of about more than 15 years. Petitioner was taken into custody on 3.10.1997 and was released on bail by this Court on 17.11.1997. It has been further contended that in the last 15 years, petitioner has committed no offence and is living a life of peaceful and honest citizen. Mr. Bhullar has further stated that the family of the Criminal Revision No.1046 of 1997 6 injured can be compensated as sending the petitioner behind the bars will serve no useful purpose. As per the charge sheet, petitioner was aged 45 years on 11.10.1993. Mr. Bhullar has contended that petitioner is now aged about 60 years and he has retired from his service and petitioner be dealt leniently by this Court. There is no denial to the fact that the petitioner has suffered a protracted trial of more than 15 years. The petitioner is aged more than 60 years and no useful purpose will be served by sending him behind the bars. The very fact that in the last more than 15 years, and the petitioner has committed no other offence, are mitigating circumstances in favour of the petitioner. Hence, taking into account age, protracted trial, antecedents of the petitioner, interest of justice will be served in case sentence of petitioner is reduced to already undergone. However, sentence of fine is enhanced to Rs.35,000/-. The petitioner shall be called upon by the trial Court to deposit amount of Rs.35,000/- and the same shall be paid as compensation to the legal heirs of the deceased. In case the fine is not deposited, no benefit of reduction of sentence shall accrue to the petitioner and he shall undergo the sentence as awarded by both the Courts below. With these modifications, the present revision petition is disposed off. (Kanwaljit Singh Ahluwalia) Judge May 21, 2008 “DK”