IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Revision No. 88 of 2003 Date of decision: October 05, 2010 Randhir Singh .. Petitioner Vs. State of Punjab .. Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Raj Mohan Singh, Advocate for the petitioner. Mr. Amit Chaudhary, AAG, Punjab for the respondent. A.N. Jindal, J The trial court vide judgment dated 2.11.2001 convicted the accused-petitioner (herein referred as 'the accused') and sentenced him to undergo rigorous imprisonment for one year and to pay fine of Rs.2000/- under Section 304-A IPC, against which the appeal preferred by him was dismissed by the learned Additional Sessions Judge, Patiala, on 8.1.2003. On 2.9.1995, Vas Dev complainant (herein referred as 'the complainant') had gone to Dera Bassi in a car. When he was returning from Dera Bassi, then he saw that Pritam Singh deceased was also going in his car bearing registration No.PB-08D-1700 ahead of him. At about 10.15 a.m. when he reached in the area of Jawaharpur, the accused while driving bus belonging to Haryana Roadways bearing registration No.HR-02A-6862 rashly and negligently and at a fast speed and struck against the maruti car driven by Pritam Singh. The accused had also dragged the car in the nearby fields. On the basis of the aforesaid statement of the complainant, FIR was registered. The case was investigated and ultimately challan was presented against him. The accused was charged under Sections 279/304-A IPC to which he pleaded not guilty and opted to contest. The prosecution in order to seek verdict in its favour examined Shiv Arun (PW1), Raghbir Singh (PW2), Dr. S.M. Virohi (PW3), ASI Yusuf Masih (PW4), Krishan Lal (PW5) and Vas Dev (PW6). Investigating Officer could not be tendered for cross examination and Criminal Revision No. 88 of 2003 -2- *** ultimately the evidence of the prosecution was closed by order. When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. In defence, the accused examined Mam Chander (DW1). The trial ended in conviction. The appeal preferred by him was dismissed. Arguments heard. Record perused. At the very out set, learned counsel for the petitioner has challenged the conduct of the trial court and legality of the judgment. Since ASI Yusuf Masih could not be tendered for cross examination, therefore, his evidence could not be used to record the judgment. The prosecution has not proved the FIR Ex.PW3/C, site plan Ex.PW3/D, recovery memo pertaining to bus bearing registration No.HR-02A-6862 Ex.PW3/E, recovery memo pertaining to maruti car bearing registration No.PB-08D-1700 Ex.PW3/F, inquest report Ex.PW3/G, recovery memo of the driving licence of the accused Ex.PW3/H, recovery memo pertaining to the driving licence of the deceased Ex.PW3/J, personal search memo of the accused Ex.PK, therefore, the same could not be used as evidence. The aforesaid documents were to be proved by ASI Yusuf Masih only and he was not tendered for cross examination, therefore, these documents could not be used in evidence by the prosecution and could also not be put to the accused in his statement under Section 313 Cr.P.C. However, the court while committing serious illegality has put the questions relating to the aforesaid documents Ex.PW3/B to Ex.PW3/J, therefore, the said examination of the accused under Section 313 Cr.P.C. has also become defective which vitiates the trial. Any way, coming to the basic ingredient of the offence which could result into recording of conviction of the accused is the rash and the negligent act of the accused, but the same does not stand established inasmuch as the FIR does not disclose if the accused was driving the offending bus at the time of accident. What to talk of not naming the petitioner as driver of the bus. His description has also not been given in the statement Ex.PW3/A. Even in the statement Ex.PW3/A, it has not been mentioned if the accused was identified by him. The trial court has tried to Criminal Revision No. 88 of 2003 -3- *** take shelter of the statement of Mam Chander (DW1) conductor of the said bus who has no where admitted that the accused was driving the bus at the relevant time, rather he has given the different version that due to the fact that the bus had gone out of order, they after parking the bus had gone to workshop for reporting about the same, as such, the accused was not the author of the accident. In any case, the presence of the complainant who claims about the negligence of the accused is also doubtful. He did not state to the police if he had identified the accused at the spot. He admits that he had run away before he reached the spot. He had not stated to the police that he had seen the driver when he was running. He has admitted that he had reached the spot within one half minute after the occurrence. He also admits that he never knew the accused prior to the accident and he had not mentioned the description of the accused in the FIR. Regarding his doubtful presence, it could be assessed from his version that the bus was coming from Eastern side of the road which is quite contradictory with the site plan which shows that the bus was coming from the Southern side. He has further stated that the bus had pushed the car behind at a distance of about 5-10 feet, but this statement is contradictory with his statement that the car appears to have touched the driver side of the bus. It appears that the bus had placed after accident with some movement which is contradictory with the FIR which has stated that the bus had dragged the car to some considerable distance. He could not tell the name of any person who was present at the time of occurrence. Though he admits that every body at Lalru and Dera Bassi is known to him personally and the people also know him. He could not tell the name of a single person who was standing at the time of occurrence. He did not talk to any person which is quite improbable and impossible that after the accident he did not talk to any person which is also improbable. He could not take help of any body for removing the dead body from the car as he has stated that he did not take the help of any one for removing the dead body from the car. He has made a strange statement when he states that he did not make any telephone call to any one for informing the accident when he personally knew the deceased. In such a situation, in all probabilities he must have informed the heirs of the deceased at the first Criminal Revision No. 88 of 2003 -4- *** instance and he also knew about the telephone number of his office. He could not tell the colour of the bus. He appears to be a chance witness. He had started from Dera Bassi to Lalru. He has not explained as to what was the particular domestic work in connection of which he had gone to Dera Bassi. Thus, his presence at the spot is doubtful. The other most significant factor is the site plan Ex.PW3/D. Though the prosecution has not proved the site plan in accordance with law, since this document has been relied upon by the prosecution, therefore, the same could be examined in order to reach the truth. The site plan indicates that the bus was coming from the side of Lalru and the accident took place at point “B” and from point “B” the bus dragged the car to the fields on the road side at point “A”. Thus, according to the prosecution, the bus was on its right side and if the accused had taken the bus to the wrong side then the accident would not have taken place at point “B”. The fact that the accident had taken place at point “B” indicates the fault on the other side as the car driver was coming from Dera Bassi and then how he came at point “B”, therefore, it appears that the accident has not been correctly explained by the prosecution. Further more, the photographs Ex.P-1 to P-5 indicate that the car struck on the right side of the bus. Thus, if a scenario is created, then it could be observed that the car could not be pushed towards point “A” in the manner as it is shown. Assuming for the sake of arguments, even if it was head on collusion, even then, the car could not be pushed at point “A” as shown in the photographs. The non examination of the Investigating Officer in this case is also fatal as there is no other corroboration to the statement of Vas Dev (PW5). Had Yusuf Masih, Investigating Officer of the case would have been examined, then he could prove the site plan and explain as to how the accident took place. He could also disclose about the skid marks created on account of applying the brakes of both the vehicles, prove the arrest of the accused and other material documents on the record. Thus, non examination of the Investigating Officer in the given circumstances of the case is fatal to the prosecution case. The trial court has not discussed the aforesaid aspects of the case and has not properly appreciated the evidence brought on record. As such, the impugned judgment has been rendered as Criminal Revision No. 88 of 2003 -5- *** invalid and perverse warranting interference by this Court. Resultantly, I accept the revision petition, set aside the impugned judgment, acquit the accused of the charges framed against him and direct that he be set at liberty forthwith. Bail bond and surety bond furnished by him stand discharged. Fine, if any deposited by him, be refunded. October 05, 2010 (A.N. Jindal) deepak Judge