Criminal Revision No.1521 of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1521 of 2000 Date of Decision 20.05.2010 Chander Bhan ...... Petitioner VERSUS State of Haryana ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.S.N.Gaur, Advocate, for the petitioner. Mr.Rajiv Malhotra, Addl. Advocate General, Haryana. ***** A.N.JINDAL, J: Assailed in this appeal is the judgment dated 05.12.2000, passed by Sessions Judge, Jind, dismissing the appeal of the petitioner- accused (herein referred as 'the accused') against the judgment dated 30.04.1999, passed by Chief Judicial Magistrate, Jind, convicting and sentencing him to undergo rigorous imprisonment for a period of six months under Section 279 IPC and rigorous imprisonment for a period of two years and to pay a fine of Rs.5,000/- under Section 304-A IPC. A brief resume of facts is that on 29.05.1995 at about 10:00 a.m., Saroop Singh alongwith his wife Padma Devi and sister-in-law Kaushalya Devi had gone to have a holy dip on the eve of 'Amavas' at Pindara, Distt. Jind from Narnaund and after taking bath and performing the ceremony of 'pinds', they had come at bus-stand, Jind and waited for bus for going towards Hansi. At about 10/10:15 a.m., the accused while driving bus bearing registraiton No.HR-06-A/8423 at a high speed came and gave an abrupt turn, consequently, the complainant Saroop Singh (herein referred as 'the complainant') and his sister-in-law were pushed aside whereas the wife of the complainant namely Padma Devi came under the right rear wheel of the bus. Resultantly, she received injuries and died. On the basis Criminal Revision No.1521 of 2000 2 of statement of complainant, FIR was registered against the accused and the case was investigated. Completion of investigation was followed by a report under Section 173 Cr.P.C. The accused was charged under Sections 279 and 304-A IPC to which he pleaded not guilty and opted to contest. In order to substantiate the charges, the prosecution examined Subhash Chander (PW1), Ram Bhagat (PW2), Sarup Singh complainant (PW3), Kaushalya Devi (PW4), Dr.H.N.Sehgal (PW5), Dalip Singh, mechanic (PW6), Head Constable Satbir Singh (PW7) and Dr.D.P.Karab (PW8). 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. However, no evidence was led in defence. On appreciation of evidence, the trial ended in conviction. Arguments heard. Record perused. Rash and negligent driving of the vehicle by the accused is the sine-qua-non for fastening the liability upon him but the element of rashness or negligence is missing in the case. Saroop Singh and Kaushalya Devi, while appearing as PW3 and PW4 respectively have nowhere stated if the accused was driving the bus rashly or negligently and while in the process of doing so he committed the accident. Similarly, the FIR Ex.PB is also silent about the fact that the accused was rash or negligent. Thus, in the absence of this element in the evidence, it would be difficult to settle the culpability of the accused. The circumstances prevailing over the case reveal that the accident did not take place on account of the fault on the part of accused. As articulated from the Criminal Revision No.1521 of 2000 3 evidence; the witnesses and the deceased were standing on the road; the bus came at the bus-stand and when the accused tried to give a turn, Padma Devi came under the rear wheel of the bus and her right leg was crushed. All this goes to show that the deceased as well as the witnesses waiting for the bus could well see the movements of the bus. The accident took place at the time when the driver tried to take the turn. Though the legal obligation has been imposed upon the driver to see the ongoing pedestrians or the vehicles on the roadside and drive carefully keeping in view their valuable lives. At the same time, the persons standing by the roadside are also required to take precautions and watch the movements of the vehicles in order to avoid such incidents. Padma Devi was required to keep a distance when the driver was taking a turn. It is not the case where she came under the front tyre of the bus but she was under the rear wheels. All this goes to show that Padma Devi was standing evasively without caring for the movements of the vehicles. She did not keep herself at a considerable distance from the road. In such circumstances, the accused cannot be said to be at fault. It is also a case where no proper identification was got conducted. Both the witnesses consistently have stated that the accused had fled away from the spot. Kaushalya Devi (PW4), during her examination- in-cheif, has not identified the accused whereas complainant Saroop Singh (PW3) has identified him merely on the ground that he had seen him while running. In such circumstances, it was obligatory on the part of the Investigating Officer to arrange the proper test identification parade. In the absence of any such test identification, identification of the accused for the first time in the Court, in the given circumstances of the case, is of no Criminal Revision No.1521 of 2000 4 consequence. The case is also replete with many illegalities, causing serious prejudice to the accused. When examined under Section 313 Cr.P.C., the trial Court failed to ask him the material questions regarding the actual lis between the parties. The accused was not asked any specific question if he was driving the vehicle or he was driving rashly or negligently at the time of committing the accident. In the absence of informing the accused about such material circumstances, the accused would be treated as certainly prejudiced as he had no opportunity to explain these material circumstances. Not only this, the site plan, recovery memo and post mortem report were also not put to him. Only a compact question was asked in which some questions were put to him which is not the real intent and spirit of the provisions of Section 313 Cr.P.C. Even no duty roster was put to accused in order to prove if he was driving the vehicle at the relevant time. While going further, statement under Section 313 Cr.P.C. is not inconsonance with the provisions of Section 281 of Cr.P.C., which reads as under:- “ (1) Whenever the accused is examined by a metropolitan Magistrate, the Magistrate shall make a memorandum of the substance of the examination of the accused in the language of the Court and such memorandum shall be signed by the Magistrate and shall form part of the record. (2) Whenever the accused is examined by any Magistrate other than a Metropolitan Magistrate, or by a Court of Session, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full by the presiding Judge or Magistrate himself or where he is unable Criminal Revision No.1521 of 2000 5 to do so owing to a physical or other incapacity, under his direction and superintendence by an officer of the Court appointed by him in this behalf. (3) The record shall, if practicable, be in the language in which the accused is examined or, if that is not practicable, in the language of the Court. (4) The record shall be shown or read to the accused, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty to explain or add to his answers. (5) It shall thereafter be signed by the accused and by the Magistrate or presiding Judge, who shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (6) Nothing in this section shall be deemed to apply to the examination of an accused person in the course of a summary trial.” From the bare reading of Section 281 Cr.P.C., it could implicitly be observed that the statement of accused is not a sheer formality but a specific mode has been provided in which his statement is to be recorded. The object of recording the statement under Section 313 Cr.P.C. is to put the accused all these facts and circumstances appearing against him in evidence and to apprise of the evidence which has been produced by the prosecution in support of the charge framed against him. In other words, the accused is to inform as to what evidence he has to rebut and what Criminal Revision No.1521 of 2000 6 evidence has been led in support of the charge. Non-compliance of the mandatory provisions of law, when it causes prejudice to the accused, certainly vitiates the trial. However, the illegality committed could be cured by way of remand but to remit the case at this stage after 10 years would add pain to the injury suffered by him. As such, I do not deem it appropriate to remit the case back at this stage after 10 years of the conclusion of trial. Since the Court has not appended any certificate that the examination was either in his hand or was taken in his presence and that the record contained full and true account of the statement made by him, the accused would be treated as seriously prejudiced. Not only this, I have already observed that neither it was put to the accused if he committed the accident by driving the vehicle rashly or negligently so as other documents, as referred to above, therefore, the accused certainly would be treated as seriously prejudiced, benefit of which would go to him. The aforesaid aspects of the case were not noticed by the trial Court. For the aforesaid illegalities and infirmities in the prosecution case, the conviction recorded against the accused cannot be said to be valid, therefore, the judgments passed by the Courts below are rendered as illegal, warranting interference by this Court. Resultantly, I accept this petition, set aside the impugned judgment and acquit the accused of the charges framed against him. He is directed to be set at liberty forthwith. Bail bond/surety bond furnished by him stand discharged. Fine, if any deposited, be refunded. (A.N.Jindal) Judge 20.05.2010 mamta-II