Crl. Revn. No.192 of 2001 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Revn. No.192 of 2001 Date of decision.27.03.2009 Baldev Raj son of Fateh Singh, resident of Kharhar Alipur, District Hisar. ....... Petitioner Versus The State of Haryana ........ Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. J.S. Bedi, Advocate for the revision-petitioner. Mr. P.S. Sullar, D.A.G, Haryana for the respondent-State **** Sham Sunder, J. This revision petition is directed against the judgment dated 23.01.2001, rendered by the Court of Additional Sessions Judge, Rohtak, vide which it dismissed the appeal against the judgment of conviction and the order of sentence dated 28.08.1999 rendered by the Court of Additional Crl. Revn. No.192 of 2001 --2-- Chief Judicial Magistrate, Rohtak, convicting the accused, for the offence punishable under Section 304-A of the Indian Penal Code and awarding him sentence to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/-, and in default of payment of the same, to undergo further rigorous imprisonment for a period of one month. 2. The facts, in brief, are that on 26.05.1992, Bus No. HR-20A/9506, on which Karan Singh, Head Constable and Gandhrav Singh, Constable were on escort duty, started from Delhi, for Sirsa at about 8.30 PM. Baldev Raj was the driver of the said bus. He was driving the same, rashly and negligently. The occupants of the bus, as well as the Police officials, who were on escort duty, told him a number of times, to drive the same cautiously and at a slow speed but he did not listen to them. At about 11.30 PM when the bus had covered a few paces from the cardboard factory (Gatta Factory), in the area of village Bahu Akbarpur, truck No. 6337, was found parked on the road. The driver was putting the water in the truck. It was further stated that the driver of the Crl. Revn. No.192 of 2001 --3-- bus could not control the same (bus) because of fast speed, as a result whereof, it rammed into the stationary truck. It was further stated that the driver of the truck, Karan Singh, Head Constable and 2/3 passengers received injuries. They were taken to Post Graduate Institute of Medical Sciences, Rohtak, in the vehicles, for treatment. Sunhera Singh, Assistant Sub Inspector, alongwith other Police officials, met Gandhrav Singh, Constable, near the bridge of drain no.8, Hisar road, Rohtak. He made a statement Ex.PW5/A to him, which formed the basis of first information report. It was further stated that Ram Phal, driver of the truck, succumbed to the injuries, in the hospital, lateron. The accused was arrested. After the completion of investigation,the accused was challaned. 3. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 279, and 304-A IPC, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial. Crl. Revn. No.192 of 2001 --4-- 4. The prosecution, in support of its case, examined Dr. Indu Lalit,(PW-1), Bishamber Dayal, Head Constable, (PW-2), Kaptan Singh, Sub Inspector,(PW-3),Jagat Singh,Head Constable,(PW-4), Gandhrav Singh, complainant,(PW-5), Hoshiar Singh, (PW-6), and Karan Singh, Head Constable, (PW-7). Thereafter, the trial Court closed the prosecution evidence, as no other witness appeared, despite granting a number of opportunities. 5. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He pleaded false implication. He also examined Mahabir Singh, DW-1 and Ram Kishan, DW2, in his defence. Thereafter,he closed the defence evidence. 6. After hearing the Counsel for the parties, the trial Court convicted and sentenced the accused, as stated above. 7. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused/appellant, which was dismissed vide order dated 23.01.2001, by the Court of Additional Sessions Judge, Rohtak. Crl. Revn. No.192 of 2001 --5-- 8. Still feeling dis-satisfied, the instant revision petition was filed by the revision-petitioner. 9. I have heard the Counsel for the parties,and have gone through the evidence, and record of the case, carefully. 10. The Counsel for the revision- petitioner, submitted that the driver of the bus was neither rash, nor negligent, in driving the same. He further submitted that the mere fact that the bus was being driven at a fast speed, did not mean that the driver thereof was either rash or negligent. He further submitted that even the Investigating Officer was not examined, in this case, as a result whereof, the case of the prosecution became doubtful. He further submitted that the findings of the trial court that the driver of the bus was rash or negligent, as a result whereof, the accident took place, are perverse, illegal and erroneous, on account of the misreading of evidence. He further submitted that the judgment of conviction and the order of sentence dated 28.08.1999, rendered by the trial Court and the judgment dated 23.01.2001, rendered by the Appellate Court, affirming the judgment of Crl. Revn. No.192 of 2001 --6-- the trial Court are, thus, liable to be set aside. 11. On the other hand, the Counsel for the respondent submitted that the trial Court did not misread the evidence. He further submitted that the Courts below were right in coming to the conclusion that the accident took place, on account of the rash or negligent driving of the bus by the accused. He further submitted that the findings of guilt, recorded by the Courts below, are neither perverse, nor illegal, nor erroneous, on account of mis-reading of evidence. 12. It is settled principle of law, that while exercising the revisional jurisdiction, this Court is not to re-evaluate and re-appreciate the evidence, produced by the prosecution, until and unless it comes to the conclusion that the findings recorded by the Courts below, are illegal, perverse or erroneous, on account of misreading of evidence. Gandhrav Singh, Constable, (PW-5), who is an eye witness, to the accident, stated that the driver of the bus was driving the same at a fast speed. He did not state even a single word that the driver of the bus was either rash or negligent in driving the same. According to him, the accident took place at about 11.00 PM. The truck, in question, was Crl. Revn. No.192 of 2001 --7-- parked, loaded with iron pipes/iron rods. He further stated that the pipes to the extent of 4 to 5 feet were protruding outside the truck. He further admitted, during the course of cross- examination, that there was no indicator, to the effect, that the truck was standing there, loaded with pipes protruding outside the same. The other eye witness, in this case is Karan Singh, Head Constable, (PW-7), who stated that he could not say as to on account of whose fault, the accident took place. He further stated that he could not say, as to at what speed the bus was being driven at the relevant time. He was put questions as are put during the course of cross-examination, by the Additional Public Prosecutor, with the permission of the Court, but even during the course of such cross-examination, he did not support the case of the prosecution, in any manner. However, during the course of cross-examination by the Counsel for the accused, it was stated by Karan Singh, Head Constable, (PW-7), that the accused was driving the bus, on that day, in a proper manner. He also admitted, during the course of cross-examination, that the truck, was standing, loaded with iron pipes. He also admitted that iron pipes/iron rods Crl. Revn. No.192 of 2001 --8-- to the extent of 8 to 10 feet were protruding outside the truck. He also stated that the bus was being driven at the speed of 60/70 Kms per hour. Since the truck, in question, at night, was standing, loaded with iron pipes/iron rods, which were protruding outside the same, to the extent of 4 to 5 feet, as deposed to by Gandhrav Singh, Constable, (PW-5), and to the extent of 8 to 10 feet, as stated by Karan Singh, Head Constable, (PW-7), and there was no indicator, to warn the drivers of the incoming vehicles, that the same (truck), loaded with iron pipes/iron rods, was standing there, it could not be possibly said that the accident took place, on account of the rash or negligent driving of the bus by the driver thereof especially when no evidence was produced that there was any source of light at the spot. Even a bus, being driven at the speed of 60/70 Kms, on a high- way, could not be said to be driven, in a rash or negligent manner. Under these circumstances, the findings, recorded by the Courts below, that the driver of the bus, was rash or negligent in driving the same, as a result whereof, the accident took place, could be said to be perverse, illegal and erroneous, on account of the complete mis-reading Crl. Revn. No.192 of 2001 --9-- of evidence, resulting into mis-carriage of justice. The findings of the Courts below, in this regard, are set aside. 13. Not only this, even Sunhera Singh, Assistant Sub Inspector, who was the Investigating Officer, in this case, was not examined. Admittedly, the Investigating Officer is a material witness, in such like cases, as he investigates the case, maintains the case diary, goes to the place of accident, prepares the site plan of the place of accident, gets the place of accident photographed, examines the witnesses, and thus collects the material, for the prosecution. It is he, who is to explain each and every action, at every stage of the investigation. In a case of accident, non- examination of the Investigating Officer, cannot be lightly brushed aside, by saying that he could not have given any more information regarding the same (case). In Nageshwar Sh. Krishna Chobe vs. State of Maharashtra, AIR 1973, (SC), 165, their Lordships of the Supreme Court, in a case like the present one, highly condemned the utterly perfunctory character of the investigation, in the following words:- Crl. Revn. No.192 of 2001 --10-- “The Investigating Officer unfortunately did not care to have the photographs taken of the position of the vehicle, the electric pole and the persons injured and dead as a result of the accident. He did not care even to take the measurement of the height of the curve, which in our view, was a very relevant factor. Nor did he care to get the vehicle examined by a mechanic for the purpose of ascertaining if its mechanism was in order and particularly if its brakes were working properly. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position; this is of little assistance in determining the question of the appellant's guilt in the criminal trial.” Accordingly, their Lordships acquitted the appellant. 14. Thus, the non-examination of Sunhera Singh, Assistant Sub Inspector,the Investigating Officer was a serious lapse/omission on the part of the prosecution. It is important to note that the prosecution has not proved the site plan of the Crl. Revn. No.192 of 2001 --11-- place of the accident. Thus, it could not be determined, as to whether, any skid marks, at the spot, were in existence or not when the accident took place. It also could not be determined, as to at what distance, the bus stopped after the accident took place. It also could not be determined, as to what was the position of the vehicles after the accident. In the absence of proof of site plan, it could not be determined, as to, on account of whose fault, the accident took place. On account of non-examination of the Investigating Officer and non-proof of the site plan, the accused was prejudiced, in his defence. The trial Court did not take into consideration, this aspect of the matter, as a result whereof, miscarriage of justice occasioned. 15. The Courts below, thus, fell into a grave error by mis-reading the evidence, resulting into recording of erroneous findings of guilt. The Courts below also ignored a very material fact that non-examination of the Investigating Officer and non-proof of the site plan, did cause a great prejudice to the accused. Therefore, this is a fit case where this Court, would be justified, in exercising its revisional jurisdiction. Crl. Revn. No.192 of 2001 --12-- 16. For the reasons, recorded above, the revision-petition is accepted. The judgment of conviction and the order of sentence dated 28.08.1999, rendered by the trial Court, and the judgment dated 23.01.2001, rendered by the Appellate Court, affirming the judgment of the trial Court, are set aside. If the petitioner is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case. (SHAM SUNDER) JUDGE March 27, 2009 dinesh