CRR No. 580 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 580 of 2006 Date of decision: 14.7.2011 Madan Singh ........ Appellants Versus State of Haryana ........ Respondent CORAM: HON'BLE MR.JUSTICE JORA SINGH **** PRESENT: Mr. S.S. Duhan, Advocate, for the petitioner. Mr. Dhruv Dayal, Deputy Advocate General, Haryana. **** JORA SINGH, J. Madan Singh son of Bishan Singh, preferred this revision to challenge the judgment dated 1.3.2006, rendered by the learned Sessions Judge, Kaithal, in Criminal Appeal No. 28 of 2005. By the said judgment, appeal against the judgment of conviction dated 6.6.2002 and order of sentence dated 7.6.2002, passed by the learned Judicial Magistrate Ist Class, Kaithal, in case FIR No. 125 dated 20.9.1995, registered under Sections 279/304-A IPC at Police Station Siwan, was dismissed. As per judgment by the trial Court, petitioner was convicted under Sections 279/304-A IPC and sentenced as under: CRR No. 580 of 2006 -2- 1. Under Section 279 IPC To undergo rigorous imprisonment for a period of six months and to pay a fine of ` 500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of 15 days. 2. Under Section 304-A IPC To undergo rigorous imprisonment for a period of one year and to pay a fine of ` 1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one month. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that on 20.9.1995, at about 11.30 a.m. Ranjit Singh-complainant along with his brother Om Parkash, was sitting in front of their residential house in the street. Sanjiv Kumar, son and Mamta Rani daughter of Om Parkash were playing in the street. In the meantime, a Trax jeep bearing registration No. DL-IC-D-2627, came from the side of hospital. Jeep was being driven rashly and negligently. Without blowing horn, jeep was struck against Mamta and Sanjiv Kumar and in this accident both received grievous injuries. Mamta had succumbed to injuries at the spot. After the accident, driver had fled away from the spot. Sanjiv Kumar, was admitted to Government Hospital at Siwan whereas the complainant remained at the spot to guard the dead body of Mamta. From Government Hospital, Siwan, Sanjiv was referred to Civil Hospital, Kaithal. On receipt of information from the hospital, police party came CRR No. 580 of 2006 -3- at the spot and recorded the statement of Ranjit Singh-complainant. After making endorsement, statement was sent to the police station on the basis of which formal FIR was recorded. Rough site plan with its correct marginal notes was prepared. Photographer was arranged who had taken the photographs of the dead body. Inquest report was prepared and the dead body was sent to hospital for post-mortem examination. Jeep was taken into police possession vide memo attested by the witnesses. Petitioner was apprehended and after completion of investigation, challan was presented in Court. Petitioner was charge-sheeted under Sections 279/337- 304-A IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW-1 Dr. Jasmer Singh, stated that on 20.9.1995, he had conducted post-mortem examination on the dead body of Mamta Rani and found following injuries on her person: “1. A lacerated wound on the right side of skull about 3 x 2 cm clotted blood was present on cut section bone was fractured into many pieces. Brain matter in torticollis. 2. A lacerated wound on left side of the skull about 3 x 2 cm on cut section skull bone was fractured into many pieces. 3. Multiple scratches mark were present on left side of face.” Cause of death was due to injuries to vital organs i.e. head and brain CRR No. 580 of 2006 -4- which were sufficient to cause death in normal course of nature. PW-2 Ranjit Singh, is the complainant/eye-witness. He has reiterated his stand before the police. PW-3 Om Prakash, is the second eye witness. He has also supported the version of the complainant. After close of the prosecution evidence, statement of the petitioner under Section 313 Cr.P.C. was recorded. He denied all the allegations of the prosecution and pleaded to be innocent. Opportunity was given to lead defence evidence but no defence evidence was led. After hearing learned APP for the State, learned defence counsel and from the perusal of evidence available on file, petitioner was convicted and sentenced by the trial Court. Against the judgment of conviction and order of sentence, appeal was preferred by the petitioner but the same was dismissed by the Ist Appellate Court. I have heard learned counsel for the petitioner, learned State counsel and carefully gone through the evidence available on file. Learned counsel for the petitioner argued that Ranjit Singh- complainant and his brother Om Prakash are interested witnesses. Occurrence was in a busy locality. Number of independent witnesses were present but no one was examined. Om Prakash is the father of the deceased whereas Ranjit Singh, is the uncle. There are major discrepancies in the statements of eye-witnesses. Discrepancies cannot be reconciled. Ranjit Singh-complainant stated that colour of the jeep was blue whereas Om Prakash stated that vehicle was a Matadoor. Prosecution failed to examine the Investigating Officer. CRR No. 580 of 2006 -5- There was a delay of 6 hours in lodging the FIR. Delay was used to concoct the story. Learned State counsel argued that occurrence was in front of the residential house of the eye-witnesses in the morning. Presence of both the brothers in front of their house was natural. Petitioner had no enmity with the complainant party, so, there was no idea to leave the real culprit. Petitioner was a driver and after accident, he had fled away from the spot by leaving the vehicle. Owner of the vehicle could easily be produced in defence to state that petitioner was not the driver at the relevant time. Deceased was 1½ years old. Second one is the injured brother of the deceased. Ranjit Singh and Om Prakash, had no idea to name the petitioner by leaving the real culprit when their minor children received injuries in the accident and one of them had succumbed to injuries at the spot. Investigating Officer, was not the eye-witnesses. He had simply recorded the statement of the complainant and prepared rough site plan and inquest report. In case, petitioner was not the driver of the vehicle at the relevant time then there was no idea to surrender. Petitioner remained silent and did not send complaints to the higher authorities that he was falsely implicated. When there was no previous enmity amongst the parties and the occurrence was during the day time in front of the house of the complainant then no reason to discard the prosecution story. Undisputedly, Ranjit Singh-complainant is the uncle of the deceased. Om Prakash, father of the deceased is the second eye- witness. Occurrence was in front of their residential house in the morning at about 11.30 a.m. Accident was due to rash and negligent CRR No. 580 of 2006 -6- driving of Trax Jeep by the petitioner whereas allegation of the petitioner was that case is false. Now, the question is whether accident was due to rash and negligent driving of Trax Jeep by the petitioner or somebody else because there was no dispute regarding the accident or un-natural death. Ranjit Singh-complainant appeared in Court and stated that he along with his brother Om Prakash was present in front of his house. Sanjiv Kumar aged about 8 years and Mamta Rani aged about 1½ years were playing in the street. In the meantime, one Trax Jeep bearing registration No. DL-IC-D-2627, came from the side of hospital. Jeep was being driven rashly and negligently and the same was struck against the minor children and both received multiple grievous injuries. Mamta Rani had succumbed to her injuries at the spot. Sanjiv Kumr was shifted to the hospital by Om Prakash where he was medico-legally examined. Appellant was driving the jeep at the relevant time. Accident was due to rash and negligent driving of the jeep by the appellant. No doubt, in the FIR name of the appellant was not reported to the police but the complainant categorically stated that accident was due to rash and negligent driving of Trax Jeep. Om Prakash, also appeared in Court and supported the version of his brother Ranjit Singh, by saying that both the brothers were present in front of their house. Their children namely Sanjiv Kumar and Mamta Rani, were playing in the street at about 11.30 a.m. In the meantime, one Trax Jeep bearing registration No. DL-IC-D-2627, came and was being driven rashly and negligently by the petitioner and was struck against both the minor children. Mamta Rani received CRR No. 580 of 2006 -7- multiple grievous injuries. He had shifted his son Sanjiv Kumar, to the hospital and later on he (Sanjiv Kumar) was shifted to Civil Hospital, Kaithal. Both the eye-witnesses were cross-examined but nothing came out from their cross-examination to opine that story is not true. Minor discrepancies in the statements of the eye-witnesses. One eye- witness stated that colour of the vehicle was blue and second stated that vehicle was Matadoor. Accident was on 20.9.1995 at about 11.30 a.m. whereas the witnesses appeared in Court in the month of November, 2001. With the passage of time minor discrepancies were bound to occurr. Discrepancies rather shows that story is genuine one. In case, there is no discrepancy then witnesses are criticized as tutored one. Earlier to the occurrence no dispute with the petitioner, so, there was no idea to depose in the Court that the petitioner is the same man who was driving the jeep at the relevant time. Learned defence counsel for the petitioner submitted that Investigating Officer, was not examined, so, with the non-appearance of Investigating Officer, story is not genuine one but submission of the learned defence counsel for the petitioner is without any force because Investigating Officer, was not the eye-witness. After the occurrence, he came to the spot then recorded the statement of complainant and prepared the inquest report. Dead body was sent to the hospital for post-mortem examination and later on had apprehended the petitioner. Main witnesses were the eye-witnesses and the doctor. Occurrence was witnessed by two witnesses namely Ranjit Singh and Om Prakash. Both appeared in Court. No evidence on the file that any other independent witness was present in the street and had witnessed the CRR No. 580 of 2006 -8- occurrence. When no other independent witness was present at the time of occurrence then statements of the eye-witnesses were rightly accepted. Presence of both the eye-witnesses was natural in front of their house. No doubt both the eye-witnesses are related to the deceased but mere relation of the witnesses to the deceased is no ground to discard their statements because occurrence was in front of their house, so, presence of both the eye-witnesses in front of their house was natural. When no other independent witness had witnessed the occurrence then no reason to discard the prosecution story. If any other independent witness was present at the time of occurrence then he could easily be produced in defence. Petitioner states that he was falsely implicated but no allegation why he was falsely implicated by leaving the real culprit. Vehicle was released on Superdari. Owner of the vehicle moved an application for superdari but he failed to appear in Court to state that on the relevant day petitioner was not the driver, in fact, somebody else was the driver. Petitioner surrendered before the police and if he was sure that he was not the driver of the jeep at the relevant time then he should have surrendered with a muffled face with a request to the Court to arrange test identification parade. Till today no complaint to any authority that case is false. No doubt prosecution was required to prove its case beyond the shadow of any reasonable doubt and the prosecution cannot take any benefit from the weakness of the defence. Petitioner was to remain silent but circumstantial evidence also shows that petitioner was the driver at the relevant time because after the occurrence by leaving the vehicle at the spot, driver had fled away from CRR No. 580 of 2006 -9- the spot. Owner of the jeep was not produced in defence to state that somebody else was the driver and not the petitioner. Petitioner was not named in the FIR, so, police was not after the petitioner. Surrender before the police voluntarily by the petitioner shows that he was the driver at the relevant time. As discussed earlier, petitioner was not named in the FIR but he was seen while driving the vehicle at the relevant time. After the accident jeep had stopped at the spot then after stay for some time at the spot, the petitioner had fled away from the spot that means he remained at the spot for sometime and was rightly identified by the eye-witnesses in Court. Statements of the eye- witnesses are not to be ignored simply on the ground that petitioner was not named in the FIR. Something could be said if there was a request from the side of the petitioner to arrange test identification parade and no effort by prosecution to arrange test identification parade. In defence, no witness appeared to state that on the day of occurrence petitioner was present in his house and was brought by the police party. Not a word stated by the petitioner where he was on the day of occurrence and why he was implicated. Only one line that case is false. Both the eye-witnesses have categorically stated that he was the same person who was driving the jeep at the relevant time and the accident was due to rash and negligent driving of the Trax Jeep bearing registration No. DL-IC-D-2627. So, in view of the statements of the eye- witnesses and the doctor trial Court rightly opined that accident was due to rash and negligent driving of jeep by the petitioner. In view of all discussed above, I am of the opinion that evidence on file was rightly scrutinized by the trial Court as well as the CRR No. 580 of 2006 -10- Ist Appellate Court. There is no infirmity or illegality in the impugned judgment and the same is upheld. For the reasons recorded above, revision without merits is dismissed. Petitioner is on bail. Copy of the judgment be sent to the learned Chief Judicial Magistrate/Duty Magistrate, Kaithal, with a direction to issue re-arrest warrants against the petitioner to undergo remaining portion of his sentence. July 14, 2011 ( JORA SINGH ) rishu JUDGE