Criminal Revision No.854 of 1996 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Revision No.854 of 1996 Date of Decision: 20.2.2008. Satish Kumar …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mrs. Kiran Bala Jain, Advocate for the petitioner. Mr. Dinesh Arora, Assistant Advocate General, Haryana, for the State. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been preferred by Satish Kumar son of Raghuraj Singh. He was prosecuted in case FIR No. 37 dated 21.2.1992 registered at Police Station Naraingarh under Sections 279, 336 & 304-A IPC. After conducting the investigation, challan was submitted. Charage was framed against the petitioner on 30.4.1992 for an offences under Sections 279 and 304-A IPC. In the charge, it has been stated that on 21.2.1992 at 8.00 P.M. In the area of village Patrehri bus stand, Police Station Naraingarh, petitioner drove truck No. UP-15- 2243 on a public place in a manner so rash and negligent so as to Criminal Revision No.854 of 1996 2 endanger human life or likely to cause the death of Raj Kumar. In the same charge under Section 304-A IPC for causing death of Raj Kumar was also framed. Due to typographical mistake time has been mentioned as 8.00 P.M., whereas occurrence had taken place at 8.00 A.M. Thereafter, prosecution examined three witnesses PW.1 Sher Singh, PW.2 Gurnam Singh and PW.3 Lal Singh. These three witnesses are eye witnesses of the occurrence. Sher Singh has reiterated the version given by him in the FIR. It was stated by him in the FIR that his son was studying and was giving examination and when he was standing with his son who had alighted from the bus, then the offending truck bearing No. UP-15-2243 driven by petitioner in rash and negligent manner came and hit his son Raj Kumar and front tyre of the truck had run over the head of deceased. Besides these three witnesses, two documents have been exhibited i.e. Ex.PA FIR and Ex.PB recovery memo of the truck. Prosecution has not examined the doctor who conducted the autopsy. Neither the Mechanic who examined the offending truck has been produced nor photographer has been produced nor the Investigating Officer has been examined and the site plan has also not been proved. Mr. Dinesh Arora, learned Assistant Advocate General, Haryana, appearing for the State has brought to my notice order dated 6.9.1993, which reads as under:- “Pr. APP for the State Accused on bail 4 Pws present. Out of these, 3 PW examined, one given up by the Ld. APP. Criminal Revision No.854 of 1996 3 The statement of accused u/s 313 (a) Cr.P.C. Recorded in which he stated that although accident took place and deceased Raj Kumar died but it did not took place due to his rash and negligent driving but due to the negligence deceased who suddenly came before the truck while crossing road from the front side of the bus stand at the spot. In view of above state four Pws Mechanic, Photographer, doctor are given up. Now to come up on 12/10/93 for necessary Pws who be summoned for the date fixed. Sd/- 6.9.93” The question put before me is whether on a statement made by accused under Section 313 Cr.P.C. prosecution can be absolved of its duty to prove case by examining the doctor who conducted the autopsy as from the nature of injuries the Court can be enlightened regarding the nature of accident. Similarly, can photographer be withheld from the Court? Non-examination of the Investigating Officer and non-production of Draftsman who prepared the site plan cannot absolve prosecution from its duty as the prosecution case has to stand on its own legs. From the photographs, site plan, post mortem and the manner of investigation, the Court would have been able to formulate its own opinion. In his statement under Section 313 Cr.P.C. even though the accident has been admitted, it has been stated that the accident took Criminal Revision No.854 of 1996 4 place due to rash and negligent act of the child. Mrs.Kiran Bala Jain, Advocate, appearing for the petitioner has also brought to my notice the statements of PW.1 Sher Singh, and PW.2 Gurnam Singh to this effect and she stated that it can be inferred that the child himself went forward and, therefore, it is due to his negligence accident was caused. She has further relied upon Mahadeo Hari Lokre v. The State of Maharashtra AIR 1972 Supreme Court 221 to say that if a pedestrian suddenly slipped and in an attempt to cross the road if accident occurs driver cannot be held liable. There can be no dispute with this proposition. But two Courts relied upon the testimony of a witness to come to conclusion that it was due to rash and negligent act of the deceased the petitioner had caused accident. Be as it may, this Court is constrained to acquit the petitioner solitary on the ground that post mortem report, site plan and photographs and observations of the Investigating Officer would have been material basis of the evidence which could have been taken into account to corroborate or contradict the testimony of eye witnesses. Withholding of this material from the Court is bound to be adversely construed against the prosecution. Reliance has been placed on Balwant Singh v. State of Haryana 2007(4) RCR (Criminal) 927 wherein it has been held that non-examination of the Investigating Officer is fatal to prosecution. It will be apposite here to reproduce para Nos. 8 and 9 of the judgement relied upon by learned counsel for the petitioner:- “8. The precise contentions, in order to assail the judgement advanced by the learned counsel for the petitioner are that the Investigating Officer has Criminal Revision No.854 of 1996 5 not been examined in the case: the complainant being father of the deceased was an interested witness and his testimony does not find corroboration from any independent source. While arguing that non-examination of the Investigating Officer is fatal to the prosecution case, the learned counsel referred to the judgement delivered by the Apex Court in case Nageshwar Sh. Krishna Chobe v. State of Maharashtra, air 1973 SC 165. Having deliberated over the aforesaid contentions, I find some substance in the same. I have the testimony of Shakti Singh complainant (PW2) alone to unfold the prosecution version, but the same does not find corroboration from any other source. The best evidence to corroborate the testimony of Shankti Singh complainant (PW2) could have been ASI Ram Kumar Investigating Officer, but surprisingly he was not examined. Admittedly, there is no corroboration to the testimony of Shakti Singh who could be dubbed as an interested witness due to lack of corroboration. The Investigating Officer was the material witness to led corroboration who had visited the place of occurrence: seen the skid marks of the tyres; prepared the site plan of the place of occurrence; got the place of occurrence and body photographed; Criminal Revision No.854 of 1996 6 examined the witnesses and made visual observations about the occurrence. He could explain the proceedings of every stage of the investigation. Thus, his non examination materially affects the case. Certainly, it has been invariably observed that the investigating Officer being not an eye witness, his non examination could not be fatal to the prosecution, but, where corroboration is lacking and material documents including arrest of the accused, driving licence of the accused, disclosure statements, recoveries memos and he visual observations regarding position of vehicles at the spot are to be proved, then certainly, his testimony could be treated as important piece of evidence and in the absence of any other corroboration, his evidence could be given importance. In case Nageshwar Sh. Krishna Chobe v. State of Maharashtra, air 1973 SC 165, cited by the learned counsel for the petitioner, has gone further, wherein the Apex Court while commenting upon the perfunctory investigation made by the Investigating Officer in case of accident, observed as under:- “The Investigating Officer unfortunately did not care to have taken the photographs of the position of the vehicle, the electric pole Criminal Revision No.854 of 1996 7 and the persons injured and dead as a result of the accident. He did not care even to take the measurement of the height of the curve, which in our view, was a very relevant factor. Nor did he care to get the vehicle examined by a mechanic for the purpose of ascertaining if its mechanism was in order and particularly if its brakes were working properly. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position; this is of little assistance in determining the question of the appellant's guilt in the criminal trial”. 9. Instant case is on a better footing as the Investigating Officer was not examined in this case. Consequently, non-examination of ASI Ram Kumar would amount to be a serious lapse/omission on the part of the prosecution. For want of him, major part of the investigation remained unproved. No plausible explanation has been given for with-holding his examination. Thus, the necessary inference is that the petitioner has to be extended benefit on account of this serious lapse/omission on the part of the prosecution. Both the Courts below fell in error by Criminal Revision No.854 of 1996 8 ignoring the aforesaid aspects of the case, therefore, necessary interference in the impugned judgement has become inevitable”. Reliance has also been placed on the judgement of this Court in Tarsem Singh v. State of Haryana 2007(4) RCR (Criminal) 605 and it will be necessary to reproduce para No.16 of the judgement:- “16. Before parting with the judgement, it is required to be delineated that the day in and the day out, enormous increase in the accident cases is visualised. The ruthless driving made by untrained, uneducated and unchecked drivers under the influence of intoxicants renders the thousands of people dead and handicapped every day. The Government Agencies probably for having been equipped with inefficient and untrained officers and also busy with multifarious duties fail to check such unscrupulous elements and allow them to pass over the roads. Not only this, when the cases of such accident, which are brought to the notice of the Investigating Agencies also result in acquittals due to inefficient and untrained Investigating Officers. They take the investigation in a very casual, careless and traditional manner. They do not try to probe while examining the place of occurrence, do not take the aid of Government expert or other officer like draftsmen or engineers to probe and who Criminal Revision No.854 of 1996 9 was to be put to dock, as to who was really at fault, negligent and rash. Some times, the people even driving carefully, heavy vehicles are condemned only for the reason and analogy that fault always lies on the heavy vehicle driver, therefore, it is expected from the Investigating Officers handling the investigation to take the following necessary steps:- 1. To visit the spot promptly without wasting any time. 2. To carefully inspect the place of occurrence; note down the material points with exact measurements in the site plan. 3. To make measurements of the roads, kacha berms and to make mention of the turnings and bridges, if any, at the place of accident. 4. To have photographs of the dead body, situation of the vehicles, extent of the damage to the vehicles and part of the vehicle which has been damaged without any delay. He would not leave it to the mechanic who amy take note of the damage or defect of the machinery, which it may be carrying prior to or at the time of accident (at a later stage). 5. To note down the skid marks, if any, at the Criminal Revision No.854 of 1996 10 spot, join the expert to have opinion about of the speed of the vehicles. 6. To make mention of the documents or other articles which were recovered from the spot or from the vehicles involved in the accident. 7. To get the place of occurrence examined by an expert, if he deems it appropriate”. In view of the submissions made and the judgements relied upon by learned counsel for the petitioner, this Court is of the opinion that it was necessary that post mortem report, photographs, site plan should have been proved and the Investigating Officer ought to have been examined. Therefore, the present revision petition is accepted. The petitioner is acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge February 20, 2008 “DK”