Criminal Revision No. 1087 of 2004 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1087 of 2004 Date of Decision: 18.2.2010 Jarsheed Ahmed …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Lokesh Sinhal, Advocate for the petitioner. Ms. Hemlata Balhara, Assistant Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been preferred by Jarsheed Ahmed son of Memraj. He was named as accused in case FIR No. 86 dated 11.4.1998, registered at Police Station Nuh, under Sections 279 and 304-A IPC. FIR was registered in the present case on the statement made by Pankaj Goyal PW.1. The statement of Pankaj Goyal was recorded by Tara Chand, Assistant Sub Inspector. The complainant stated that on 10.4.1998 at about 8.30 P.M., he along with his uncle Urvijay Sharan son of Shadi Lal Goel, resident of Ferozepur Jhirka, and Gokul Chand resident of Hari Chand Aggarwal, were going to place of their residence at Ferozepur Jhirka in a Jeep bearing registration No. HR-26-D-2266. The Jeep was driven by Jarsheed Ahmed son of Memraj. The name of Criminal Revision No. 1087 of 2004 2 the driver was learnt lateron by the witness. The driver of the Jeep made them sit on the last seat of the Jeep along with two other passengers. Urvijay Sharan, uncle of the complainant, sat on the seat which was on the back of driver's side. Half of his body was protruding out of the Jeep. The driver was driving the Jeep in a rash and negligent manner. The witnesses told him to drive slowly but he did not pay any heed to their request. At about 10.30 P.M. when they were about one kilometer away from village Malab, a truck came from the opposite direction and scratched (Ragar Khata Hua Nikal Gaya) with the Jeep, due to which Urvijay Sharan fell on the road. He received injuries on his right hand and chest. The complainant along with Gokul Chand brought him in a Jeep to Primary Health Centre, Nagina, for treatment where the doctor declared Urvijay Sharan dead. A grievance was made in the FIR that death had taken place due to rash and negligent driving of the petitioner, driver of the Jeep. The above said FIR was investigated and a report under Section 173 Cr.P.C. was submitted. The petitioner was charged for offence under Sections 279 and 304-A IPC. The petitioner pleaded not guilty and claimed trial. Prosecution examined Pankaj Goyal, complainant, as PW.1. In cross-examination, this witness stated that he had seen the driver for the first time in the hospital and his name was not known to him earlier. Chandan Lal, Sub Inspector, appeared as PW.2. At the relevant time, he was posted as Assistant Sub Inspector. On receipt of ruqa from Tara Chand, Assistant Sub Inspector, he had registered formal FIR Ex.PW.2/A. Another eye witness and a passenger of the Jeep Gokul Criminal Revision No. 1087 of 2004 3 Chand appeared as PW.3 and corroborated the testimony of Pankaj Goyal PW.1. PW.4 Ram Avtar Singla was Ex-Sarpanch of village Nagina. He had identified the dead body of deceased. PW.5 Ram Dhan, Constable, had mechanically tested Jeep No. HR-26-D-2266. In cross-examination, he stated that on the front bumper, there was no dent. However, from the driver side, foot-mat, footstep and supporting bar had scratched. PW.6 Tara Chand, Assistant Sub Inspector, was the Investigating Officer of the case. He proved various facets of the investigation. PW.7 Prem Chand, Head Constable, had accompanied Tara Chand, Assistant Sub Inspector, to Primary Health Centre, Nagina, where the statement of complainant was recorded and inquest proceedings were carried. PW.8 Pardeep Kumar, Photographer proved the photographs of the spot. PW.9 Dr. S.S. Saroha, Medical Officer, had conducted autopsy on the dead body of deceased. Thereafter, the prosecution closed its evidence. The statement of accused under Section 313 Cr.P.C. was recorded. He denied all the incriminating circumstances put to him. Mr. Lokesh Sinhal, Advocate, appearing for the petitioner, has raised two arguments before this Court. Firstly, it has been contended that it has come in the FIR that body of the deceased was protruding out of the Jeep and, therefore, the deceased had also contributed to the Criminal Revision No. 1087 of 2004 4 causing of accident. Thus, it is a case of contributory negligence,. However, the counsel has not been able to give satisfactory answer to the Court whether contributory negligence will absolve the accused of penal consequences. Secondly, it has been submitted that it has come in the cross- examination of Pankaj Goyal PW.1 that he saw the driver for the first time in the hospital. Counsel further submitted that from this conduct of the witness impliedly and show that he was not present at the spot. To fortify this submission, counsel urged that when Pankaj Goyal PW.1 became passenger of the Jeep, at that time, at once he ought to have seen the driver. This argument is also to be rejected that there can be no hairsplitting of evidence of witness. The witness has specifically stated in the examination-in-chief that he had told the driver not to drive the Jeep at very high speed. Therefore, when in cross-examination, it was asked whether he knew the accused, he stated that he saw the accused for the first time in the hospital and lateron learnt his name. The two Courts below have placed implicit reliance upon the testimony of PW.1 Pankaj Goyal and PW.3 Gokul Chand. Therefore, the revisional Court will not re-appreciate and do re-appraisal of the evidence. Counsel for the petitioner urged that petitioner was not arrested at the spot, and no test identification parade was carried. In the present case, in the FIR name of the accused has been relayed. The complainant had seen the accused in the hospital where the accused had accompanied the witness. Therefore, this argument that test identification parade was not carried pale into insignificance. Counsel has further submitted that since the petitioner had taken the deceased to Criminal Revision No. 1087 of 2004 5 hospital, therefore, that may be taken as mitigating circumstance. After having considered the submissions made by the learned counsel for the petitioner, a vital question on which this Court is to ponder is, “Whether the death has occurred due to rash and negligent driving of the Jeep by the petitioner or not?” Admittedly, in the FIR, it was stated that body of the deceased was protruding out of the Jeep and half of his body was inside the Jeep. This was negligent act on the part of passenger. Secondly, it has come in evidence that accident had occurred not due to act on the part of petitioner, but it was one truck which was coming from the opposite side and hit the body of the deceased, due to which he fell out of the Jeep. If there was any rash and negligent act, it was on the part of driver of the truck who had to drive the truck at a minimum distance from the Jeep. Therefore, it cannot be said that due to rash and negligent act of the petitioner, accident had occurred. Therefore, the present revision petition is accepted. The conviction and sentence imposed upon the petitioner is set aside and he is acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge February 18, 2010 “DK”