Crl. Revision No. 1897 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Revision No. 1897 of 2005 Date of decision: March 1, 2011 Phuman Singh ...Petitioner Versus State of Punjab ...Respondent CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present: Mr. Ashok Giri, Advocate, for the petitioner. Mr. PS Bajwa, DAG, Punjab. GURDEV SINGH, J. The petitioner/accused, Phuman Singh, was charged for the offences punishable under Sections 279, 304-A and 337 IPC for having driven tipper-truck bearing No. PB-08X-1419 (hereinafter referred to as 'the truck'), rashly and negligently so as to endanger human life and personal safety of the others and thereby having caused the death of Ram Lubhaya, deceased, not amounting to culpable homicide and hurt to his wife Piaro. He was tried by the Additional Chief Judicial Magistrate, Hoshiarpur, and was convicted for those offences, vide judgment dated 3.2.2005 and was sentenced as under:- Crl. Revision No. 1897 of 2005 2 1 Pritam Singh (i) to undergo rigorous imprisonment for a period of one and a half year under Section 304-A IPC and to pay fine of ` 500/-, in default thereof to further undergo simple imprisonment for a period of one month; (ii) to undergo rigorous imprisonment for a period of six months under section 279 IPC; and (iii) to undergo rigorous imprisonment for a period of six months under section 337 IPC. He preferred an appeal against his conviction and sentence, which was dismissed by the Additional Sessions Judge, Hoshiarpur, vide judgment dated 7.7.2005. Now, he has preferred the present revision against his conviction and sentence. It was on the statement of Daulat Singh complainant (PW-2) that FIR No. 3 dated 10.1.1999 was registered in Police Station Hariana, District Hoshiarpur, under Sections 279, 337, 338, 304A and 427 IPC. He narrated therein that on 9.1.1999 he was coming back to his village Kandiana after visiting his daughter in village Manak Dheri. When at about 5 p.m., he reached near the bus stop of village Katowal, his nephew Ram Lubhya, deceased, alongwith his wife Piaro (PW-3) was going on a scooter passed by his side and at that time the scooter was being driven by him (Ram Lubhya) at slow speed on the left hand side. When he had covered a distance of 100/150 meters from the bus stop of Katowal, the driver of the truck bearing No. PB-08X-1419 came from the opposite side by driving the same at a very fast speed and struck the same in the scooter of the deceased, as a result of which, he and his wife Piaro fell down and the driver of the truck escaped from the spot. By the time he reached the place of accident, the deceased had already succumbed to his injuries and his scooter bearing No. PB 07C 8290 had been damaged. He removed Piaro to Civil Hospital, Bhogpur, from where she was referred to Jalandhar. After leaving the Crl. Revision No. 1897 of 2005 3 Sarpanch of village Katowal at the spot, he left to inform his relatives. After receiving the information about this accident, Daljit Singh ASI (PW-6) came to the place of accident and recorded his statement Ex. PB, which was sent to the police station, after recording police proceedings, on the basis of which FIR Ex. PB/1 was registered under the aforesaid sections. Avtar Singh, Photographer (PW-5) was called to the spot, who took photographs Exs. P.1 to P.9 and the scooter was taken into possession, vide memo Ex. PD. The ASI prepared the inquest report Ex. PG in respect of the dead body of the deceased and sent the same for post-mortem, which was conducted by Dr. Parampal Singh (PW-1), who found five ante-mortem injuries on the same and gave his opinion that the cause of death was injury to the vital organs, which was sufficient to cause death in the ordinary course of nature. The accused was arrested on 11.1.1999, who produced the truck alongwith registration certificate thereof and his own driving licence before the ASI and those were taken into possession, vide memo Ex. P.18. After completion of the investigation, challan was put in before the JMIC. To prove the guilt of the accused, the prosecution examined Dr. Parampal Singh (PW-1), Daulat Singh (PW-2), Piaro (PW-3), Gurdev Singh (PW-4), Avtar Singh (PW-5), Daljit Singh ASI (PW-6) and Harbhajan Singh, HC (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 stated that from 1.1.1999 to 11.1.1999, he was spare driver of the company at Lagoon No. 8 inside Hamria Mill, Crl. Revision No. 1897 of 2005 4 District Kapurthala and was not driver on the truck. On 11.1.1999, the police came to that place and arrested him and took away the truck. He was called upon to enter on his defence but he did not produce any evidence in his defence. I have heard learned counsel for both the sides. It has been submitted by the learned counsel for the accused that a minute perusal of the evidence produced by the prosecution makes it very much clear that the findings recorded by the trial court and upheld by the appellate court regarding the conviction of the accused are perverse and illegal. From the statement of Dr. Parampal Singh (PW-1), it stands proved that at the time of the accident the deceased was under the influence of alcohol and was staggering while driving the scooter. It is the statement of the star witness of the prosecution; namely, Daulat Singh (PW-2) that the deceased himself had struck the scooter in the truck. Therefore, it cannot be held that the death of the deceased was caused by the accused while driving the truck rashly and negligently. Moreover, the presence of Daulat Singh (PW-2) at the time of the accident is highly improbable as he never approached the police immediately after the accident, though the police station was hardly at the distance of 5 kms from the place of accident and as per the statement of Gurdev Singh (PW-4), this witness was called to the spot from the village itself. No reliance could have been placed on the statement of Piaro (PW-3) as she herself stated during her cross- examination that the statement made by her during the examination-in-chief was the result of tutoring by the police. It is also in her statement that she never noticed the accused driving the truck at the time of the accident. The delay in lodging the FIR has remained unexplained and the identification of Crl. Revision No. 1897 of 2005 5 the accused is not established from the evidence produced by the prosecution. He prayed that the revision be accepted and the conviction and sentence of the petitioner be set aside. On the other hand, it has been submitted by the learned State counsel that a person can be said to be under the influence of alcohol on account of alcohol concentration in the blood, as found by the doctor witness, but it depends upon the health of a particular person and it cannot be concluded from the statement of that witness that the deceased was under the influence of alcohol. Daulat Singh (PW-2) might have stated during his cross-examination that the deceased struck his scooter in the truck but a cumulative reading of his statement makes it very much clear that the accused struck the truck in the scooter by driving the same rashly and negligently. The delay itself cannot be made a ground for doubting the other evidence produced by the prosecution which is trustworthy and reliable. The identification of the accused stands established from the statement of Daulat Singh (PW-2) and Piaro (PW-3). There is no ground for upsetting the conviction and sentence so recorded by the trial court and upheld by the appellate court. The re-appreciation and re-appraisal of the evidence is not permissible, while exercising the revisional jurisdiction unless the court comes to the conclusion that the findings recorded by the trial court or the appellate court are perverse, illegal or based on misreading of evidence. A perusal of the prosecution evidence makes it very much clear that the findings so recorded by the trial court and the appellate court suffer from perversity and illegality. There is no proper reading of the evidence by the courts below. It was categorically stated by Dr. Parampal Singh (PW-1) Crl. Revision No. 1897 of 2005 6 during his cross-examination that blood sample from the dead body of the deceased was sent to the Chemical Examiner and alcohol concentration in the same was found 218.5 milligram per 100 milligram. He admitted that such concentration in the blood of a normal healthy individual amounts to state of drunkenness and such concentration of alcohol, due to in co- ordination of the movement of a person, could be staggering while driving. If such a person was driving the scooter then it become onerous duty of the court to scrutinize the evidence in order to determine whether accident took place on account of his own negligence or that of the driver of the truck. No doubt, Daulat Singh (PW-2), during his examination-in-chief, stated that the truck was being driven by the accused at a very fast speed and it was struck in the scooter of the deceased but during his cross-examination, he stated that the deceased had struck the scooter in the front side of the truck. From this statement of the witness, it cannot be concluded that the truck was being driven by the driver rashly and negligently. This witness did not state as to on which side of the road the scooter was being driven by the deceased when the truck struck in the same. There is no denial of the fact that Piaro (PW-3) stated that the truck was struck in their scooter as the same was being driven rashly and negligently but when she was cross-examined, she admitted that the said statement was made by her as told by the police; which shows that she made a tutored statement in the court and no reliance could have been placed on the same. The third witnesses examined by the prosecution regarding the accident is Gurdev Singh (PW-4). According to him, the truck was struck in the scooter when it was being driven at a very fast speed. Even this witness has not stated as to who was at fault and on what side of the road the scooter was being driven when the truck struck in Crl. Revision No. 1897 of 2005 7 the same. He has excluded the presence of Daulat Singh (PW-2) at the time of the accident as he stated during his cross-examination that at the time of the accident about 20/25 persons collected there and Daulat Singh was called from the village. The accident had taken place on 9.1.1999 at about 5 p.m., whereas the statement was made by Daulat Singh regarding this accident before the ASI on 10.1.1999 at 9 a.m. No explanation has come forth regarding the delay in lodging this FIR. According to Daulat Singh, he had first removed Piaro to the hospital and thereafter went to inform the relatives. What had stopped him from approaching the police immediately after the accident or after the admission of Piaro in the hospital, has not been explained. He appeared on the scene only on the next day at 9 a.m. He has not offered any explanation as to where he was during the night. The deceased was related to him as his nephew and if he was actually present at the time of the accident he would not have left the dead body at the spot unattended during whole of the night. His presence at the spot appears to be improbable. The identity of the accused is not established from the statements of the witnesses examined by the prosecution. Dault Singh (PW- 2) did state during his examination in chief that the truck at the time of accident was being driven by the accused but during his cross-examination he deposed that all the particulars of the truck were told to him by the police. He never named the accused in his statement made before the police. He even did not give his description. For the first time the name of the accused figured during the investigation when the statement of Piaro (PW- 3) was recorded under Section 161 of the Criminal Procedure Code, but when she was examined in the court, she stated that the driver of the truck Crl. Revision No. 1897 of 2005 8 had fled from the spot with the truck and she did not notice him. She admitted that the number of the truck and name of the accused were recorded in her statement by the police on its own. No explanation has been offered by Daljit Singh ASI (PW-6) as to how he came to know the name of the driver of the truck or that it was the accused, who was driving the truck at the time of the accident. No test identification parade was got conducted by him during the investigation for getting the accused identified from the said eye witnesses. It cannot be concluded from the statements of the prosecution witnesses that it was the accused, who was driving the truck at the time of the accident. In these circumstances, the conviction of the accused could not have been recorded on the basis of this evidence. In the result, this revision is hereby accepted. The conviction and sentence of the accused is set aside and he is acquitted of the said offences. The fine, if already paid, be refunded to him. Records of the trial court be returned forthwith. March 1, 2011 (GURDEV SINGH ) prem JUDGE