[2008] 14 S.C.R. 957

STATE OF HARYANA A v.

SHER SINGH (Criminal Appeal No. 199 of 2004)

OCTOBER 15, 2008

[DR. ARIJIT PASAYAT, C.K. THAKKER AND D.K. JAIN,

JJ.] v

Penal Code, 1860 - ss.279 and 304A - Conviction under, by Trial Court and First Appellate Court - Acquittal by c High Court - Propriety of - Held: Proper - There was no specific material to show that accused was driving the vehicle at the time of accident - Name of accused not mentioned inpurported dying declaration of the deceased - Evidence adduced to link accused to the alleged crime not sufficient.

The prosecution case was that Respondent was driving a bus .in a rash and negligent .manner, which hit a per- ... son resulting in his death. The deceased purportedly made a dying declaration before the ASI (PW-8).

The Trial Court and the First Appellate Court held Re- E

spondent guilty under ss.279 and 304A !°PC a'nd sentenced him to undergo rigorous imprisonment for one year. The conviction of Respondent was set aside py the High Court. Hence the present appeaL

Dismissing the appeal, the Court

HELD: Though there is substance in the plea of the appellant that in the statement made by deceased before PW-8 there was mention about the rash and negligent driving of the vehicle, but the evidence adduced to link G Respondent to the alleged crime is scanty. There was no -\ specific material to show that the Respondent was. driving the vehicle at the time the accident took place. Name

957 H

A of Respondent was not mentioned in the dying declara- "' tion. It was duly stated by the victim that he can identify the driver. But he did not refer to the accused. Therefore, ;.

the present case is not a fit case where. any interference

. by this Court is called for. [Para 6] (959-H;· 560-A, B) i

B CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 199 of 2004 \.

From the final Judgment and Order dated 29.1.2003 of y the High Court of Punjab and Haryana at Chandigarh in Crimi-

" n.al Revision No. 145of1995

,._ c Rajeev Gaur 'Naseem' and T.V. George for the Appellant.

Rishi Malhotra and Prem Malhotra for the Respondents. ~

The Judgment of the Court was delivered by D DR.ARIJIT PASAYAT, J. 1. We have.heard learned couns~I for the.parties.

J,·.

2. Challenge in this appeal is to the judgment of a learned ~

Single Judge of the Punjab & Haryana High Court allowing the E Criminal Revision Petition No.145I1 9 9 5 filed by the respondent herein .filed under Section 39 7 read with Section 40 1 of the Code of Criminal Procedure, 19 7 3 (hereinafter for short the 'Code'). The learned Chief Judicial Magistrate, Bhiwani by ( order dated 18th Match, 19 9 4 found the respondent guilty of . . , F offence punishable under Sections 27 9 and 30 4 A of the In- . dian Pen al Coc; le,_ 18 6 1 (hereinafter for short the 'IPC') and

l. r sentenced to undergo RI for a period of one year and to pay a '(

fine of Rs. 1, 0 0 0 I - and in default to further undergo RI for a

period of three months. The appeal filed befor.e the Sessions

G Judge, Bhiwani did not bring any relief to the respondent. There- . after, as note.d above, the Revision Petition was filed which was

. --<... . ' ' allowed by the impugned order. l-

3. n is the case of the prosecution that on 13. 2. 1 9 9 0. one Ka.rishi Ram (hereinafter referred to as 'the deceased') was H hitby_a bus belonging.to HaryanaRoadways while coming from

_f.,

. STATE OF HARYANA v. SHER SINGH 959

[DR. ARIJIT PASAYAT, J.]

the side of the Bus Stand. Being hit by the bus, Kan shi Ra m : A fell down and was removed to the hospital where he died. It was alleged that respondent was driving the offending vehicle.

Accordingly, Fl R was lodged and investigation was undertaken.

On completion thereof, chargesheet was filed. As accused pleaded innocence, trial was held. Nine witnesses were.exam- B ined to further the prosecution version. Out of them, P W- 9 Narender Singh was stated to be an eyewitness. P W- 9 who was supposed to be an eyewitness did not support the prosecution version but placing reliance on the statement of the deceased before ASI Mahender Singh (P W- 8), which was C treated to be a dying declaration, the Trial Court found the accused guilty and sentenced him, as aforesaid. The appeal was dismissed. In the revision, the primary stand was that the socalled eyewitness having not supported the prosecution case and thre being no material to show that the vehicle was being dr'iven in a rash and/or negligent manner, the conviction cannot D be maintained. The High court found that the so-called eyewitness did not support the prosecution version. Additionally, in the dying declaration there was no specific mention about rash and negligent driving. Therefore, the acquittal was directed .

• J IE

4. In support of the appeal, learned counsel for.the appel- 'lant submitted that the High Court ought not to have upset the conviction, as recorded by the Trial Court and upheld by the , FirstAppellqte Court. He pointed out that/in the statement made before P W - 8, it is categorically stated that the vebicle which . F hit him was being driven in a rash and negligent manner. He also pointed-out that the official of the Haryana Roadways (P W- 5) clearly stated that the bus on the particular date was allotted to the accusedrespondent.

5. Learned counsel for the respondent supported the judg- . G ment of the High Court,

6. Though there is substance in the plea of the learned counsel for the appellant that there was mention about the rash and negligent driving of the vehicle, but the evidence -adduced . .

A to link the accused to the alleged crime is scanty. There was no specific material to show that the respondent was driving the vehicle at t11e time the accident took place. Name of the respondent was not mentioned in the dying declaration. It wa$ duly stated by the victim that he can identify the driver. But he

8 did not refer to the accused. Therefore, we do not consider it to be a fit case where any interference is called for. The appeal fails and the same is dismissed. "'+·

8.8.8.

Appeal dismissed.