Raj Kumar v. State of Haryana

while driving the offending bus, in which firstly Rikhi Ram sustained multiple injuries and, subsequently, succumbed to his injuries. On the basis of aforesaid allegations and in the wake of statement (Ex.PD) of PW2, the present case was registered against the petitioner vide FIR No.104 dated

14.06.1992, on accusation of having committed the offence punishable under Sections 279 and 304-A IPC, by the police of Police Station Ladwa, District Kurukshetra, in the manner indicated here-in-above.

4. After completion of the investigation, final police report was submitted against the petitioner as contemplated under Section 173 Cr.P.C.

5. Having completed all the codal formalities, the petitioner was charge-sheeted for the commission of aforesaid offence by the trial Magistrate vide order dated 16.11.1992. As the petitioner did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution.

6. The prosecution in order to substantiate the charges framed against the petitioner, examined PW1-Dr.P.R.Pruthi, Medical Officer, PHC, Ladwa, who has stated that on 10.06.1992 at about 3.20 P.M., he sent a ruqa (Ex.PA) to the police station with regard to the arrival of injured patient Rikhi Ram. He medico legally examined him vide MLR (Ex.PB) and the diagram (Ex.PB/1) showing the seats of injuries.

7. The next to note is the testimony of PW2-Prem Chand Crl.Revision No.563 of 2002 3 complainant, who is none else but son of Rikhi Ram. According to PW2, on the fateful day, he along with his father (Rikhi Ram) was present on Ram Kundi Chowk to board the bus. At about 2.30 P.M., the driver of Haryana Roadways bus (who is present in the Court) was driving the bus in a very rash and negligent manner which hit his father Rikhi Ram. As a consequence of which, he felled on the ground and received injuries. He took his father to PHC Ladwa where he was medico legally examined. Then he took him to Kurukshetra from where he was referred to PGI, Chandigarh. The matter was then reported to the police vide his statement (Ex.PD), which bears his signatures. On 14.06.1992 at about 8.05 A.M., his father succumbed to his injuries. In cross-examination, PW2 has proved that the bus was being driven by the petitioner at a speed of 90 kms. per hour and there was a curve on the Ram Kundi Chowk Ladwa, but the driver took the turn at a very high speed without blowing the horn. He has categorically stated that the petitioner was driving the bus in a rash and negligent manner. PW2 has duly corroborated the contents of his earlier statement (Ex.PD) on all vital counts.

8. PW3-Sarup Chand has only identified the dead body of Rikhi Ram (deceased) vide memo (Ex.PF).

9. PW4-Laxmi Chand, Mechanic, Haryana Roadways, Kurukshetra, who mechanically checked the bus bearing registration No.HRQ 5898 has proved his report (Ex.PW4/A).

10. PW5-Bachan Singh identified the dead body of the deceased vide memo (Ex.PW5/A) and received the same vide receipt(Ex.PW5/B).

11. PW6-Phool Chand has deposed that after the accident, he took Rikhi Ram injured to Civil Hospital and stated that the accident did not take place in his presence.

12. Sequelly, PW7-Munshi Ram, Sub Inspector of Haryana Roadways, has deposed that on 10.06.1992, Raj Kumar (accused present in the court) was driving the offending bus and he caused the accident in question. He produced the offending bus, which was taken into possession by the police vide recovery memo (Ex.PW7/A).

13. According to PW8-ASI Satpal that in the wake of ruqa (Ex.PA) from PHC Ladwa, he moved application (Ex.PC), whereupon the doctor opined vide his opinion(Ex.PC/1) that injured Rikhi Ram has been referred Crl.Revision No.563 of 2002 4 to LNJP Hospital, Kurukshetra. On the next day, he went to LNJP Hospital, Kurukshetra, where it revealed that Rikhi Ram has been again referred to PGI, Chandigarh. Thereafter, on the same day, he went to PGI, Chandigarh but could not trace Rikhi Ram. On 14.06.1992 in the wake of information from the police post, PGI, Chandigarh, he went there and recorded statement (Ex.PD) of PW2-Prem Chand and sent ruqa (Ex.PD/1) to the police station for registration of the case on the basis of which formal FIR (Ex.PD/2) was recorded by Arjun Singh MHC, vide endorsement (Ex.PD/3). PW8 then moved application(Ex.PW8/A), where the doctor vide his opinion (Ex.PW8/B) intimated that the dead body of Rikhi Ram had been sent to the General Hospital for post-mortem examination. Thereafter, he prepared the inquest report (Ex.PW8/C). He prepared the site plan of the place of occurrence (Ex.PW8/D).

14. The last to note is the testimony of PW9-Dr.G.Diwan, Medical Supdt., General Hospital, Sector 16, Chandigarh, who conducted the post- mortem examination of Rikhi Ram vide post-mortem report (Ex.PW9/A) in the wake of police request (Ex.PW8/A).

15. After the close of the evidence of the prosecution, statement of the petitioner was recorded as contemplated under Section 313 Cr.P.C. But the petitioner denied the prosecution evidence in its totality and pleaded false implication. In order to substantiate his defence, the petitioner has examined DW1-Baljit Singh, Conductor in his defence, who has even admitted the time, place of occurrence and factum of the accident but denied its manner.

16. The trial Magistrate, after taking into consideration oral as well as the documentary evidence brought on record, convicted and sentenced the petitioner in the aforesaid manner.

17. Sequelly, the appeal filed by the petitioner was also dismissed by the learned Additional Sessions Judge, vide impugned judgment dated

11.03.2002.

18. The petitioner still did not feel satisfied with the impugned judgments/orders and filed the present petition. That is how I am seized of the matter.

19. Learned counsel for the petitioner has argued that the story of the prosecution is highly improbable, its evidence is discrepant, not reliable, Crl.Revision No.563 of 2002 5 there is a delay in lodging the report and the petitioner has been falsely implicated. The argument further proceeds that the evidence brought on record by the prosecution falls short as is required to prove a criminal charge against the petitioner.

20. Hailing the impugned judgments, on the other hand, it has been urged on behalf of the State that the prosecution has produced sufficient reliable and trustworthy evidence on record and the courts below have rightly convicted and sentenced the petitioner in this regard.

21. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after considering the matter deeply, to my mind, as no ground for interference in the impugned judgments of conviction recorded by the courts below, is made out, therefore, the petition deserves to be dismissed for the reasons mentioned herein below.

22. At the very outset, the main celebrated argument of the learned counsel for the petitioner that there is an inordinate delay of four days in lodging the FIR, which is fatal to the prosecution case, is not only devoid of merit but misplaced as well. The bare perusal of the evidence on record would reveal that immediately after the occurrence, Rikhi Ram was removed in an injured condition to PHC Ladwa, from where PW1 sent a ruqa (Ex.PA) to the concerned police station in this relevant connection. Keeping in view the seriousness of the injuries, Rikhi Ram was first referred to LNJP Hospital, Kurukshetra, from where he was again referred to PGI, Chandigarh. PW8 vide his endorsement (Ex.PD/3) has admitted that on

10.06.1992 in the wake of receipt of ruqa (Ex.PA) about the arrival of Rikhi Ram injured, he went to PHC Ladwa, where the doctor intimated that Rikhi Ram has been referred to LNJP Hospital, Kurukshetra. On the next day, he went to LNJP Hospital, Kurukshetra, from where he was told that the injured has been referred to PGI, Chandigarh. PW8 reached PGI, Chandigarh, but could not locate him. On 14.06.1992, PW8 again went to PGI, Chandigarh, after receipt of information from police post, PGI, Chandigarh and recorded the statement (Ex.PD) of PW2-Prem Chand.

23. It cannot possibly be denied that PW8 did not take the required interest and did not locate and promptly recorded the statement of PW2, particularly when PW1 had sent the ruqa (Ex.PA) to the police on the same Crl.Revision No.563 of 2002 6 very day of the accident. The conduct of PW2 in first removing his father in an injured condition to PHC Ladwa, then to Civil Hospital, Kurukshetra, and thereafter, to PGI, Chandigarh, was most natural. The paramount concern for PW2 was to arrange medical assistance for his injured father, then to rush to the police station for making the complaint. He promptly endeavoured and took effective steps for providing immediate medical aid to his father keeping in view his serious condition. Therefore, it cannot possibly be saith that PW2 is, in any manner, was negligent in this respect, particularly when, PW1 had already informed the police vide ruqa (Ex.PA). The negligence and inefficiency on the part of PW8 in this regard cannot possibly be permitted to stand in the way of administration of justice under the present set of circumstances. Moreover, when injured Rikhi Ram was immediately medico legally examined by PW1, then the argument of learned counsel for the petitioner that delay is fatal to the prosecution case, pales into insignificance and would not come to the rescue of the petitioner in any manner. Thus, the delay in lodging the report to the police stands satisfactorily explained.

24. The other feeble argument of the learned counsel that the evidence brought on record by the prosecution against the petitioner falls short, is again not tenable. Complainant-PW2 is the main material eye witness of the occurrence. He maintained that on 10.06.1992, he along with his father Rikhi Ram was waiting for the bus when the petitioner caused the accident in question. It has come in the statement of PW2 that the petitioner was driving the bus in a very rash and negligent manner. The bus was being driven at the speed of 90 kms. per hour despite the fact that there was a curve near the place of occurrence, but the petitioner took the turn with high speed without blowing any horn. PW2 reiterated that the petitioner was driving the bus in a rash and negligent manner. He gave the vivid and consistent version of the accident. The presence of PW2 at the place of occurrence was natural and cannot possibly be doubted. He was cross- examined at length but nothing substantial material could be elicited in searching cross-examination to dislodge his testimony in any manner. The evidence of PW2 is reliable and trustworthy.

25. No doubt, PW6-Phool Chand did not support the prosecution case as such but his statement that after the accident, Rikhi Ram was Crl.Revision No.563 of 2002 7 removed to the hospital lends credence to the statement of PW2. The history and nature of the injuries described in the MLR (Ex.PB) and post- mortem report (Ex.PW9/A) also corroborates the prosecution version that Rikhi Ram received the injuries including the fatal injury in the accident in question. PW8 has testified the investigation carried out by him.

26. The defence plea as projected by DW1 that the accident in question took place with some tractor-trolley deserves to be outrightly rejected and no implicit reliance can be placed on his statement in the absence of any cogent material on record. DW1-Baljit Singh is the Conductor of the same bus and it was not difficult for the petitioner, who was the driver of the offending bus, to procure his tutored and fabricated version. The time, place and factum of the accident built-up by DW2 rather lends credence to the prosecution version.

27. Learned counsel for the petitioner then sought to argue that the petitioner has been falsely implicated and the story of the prosecution is highly improbable. Meaning thereby, all the contentions now sought to be pressed into service by the learned counsel for the petitioner, have already been duly considered and decided by the courts below. There is ample ocular, medical and documentary evidence on record to prove the crime committed by the petitioner in this context. The courts below have thus rightly accepted the trustworthy and reliance evidence and recorded a finding of facts based on it that it was the petitioner who created the entire problem and caused the accident in question culminating in the death of Rikhi Ram. Such finding of facts based on the evidence cannot possibly be interfered while exercising the limited revisional jurisdiction of this Court. Therefore, the contrary arguments of the learned counsel for the petitioner 'stricto sensu' deserve to be and are hereby repelled under the present set of circumstances.

28. Faced with the situation, learned counsel appearing on behalf of the petitioner, has fairly acknowledged that he will not be in a position to contest the conviction of the petitioner any more, in view of the finding of facts recorded by the courts below and the legal aspect that this Court cannot re-appreciate and re-evaluate the evidence brought on record in exercise of its revisional jurisdiction.

29. However, he has urged that since the petitioner is an old Crl.Revision No.563 of 2002 8 person, is a first offender and has already suffered the agony of protracted trial for the last more than eighteen years, therefore, he is entitled to the benefit of probation.

30. Having regard to the rival contentions of the learned counsel for the parties, to me, the petitioner is not entitled for the grant of benefit of probation of Offenders Act. As strange as it may look, but strictly speaking, the tendency and frequency of such drivers causing the accidents by rash and negligent driving have been tremendously increasing day-by-day causing a great danger to public safety on the roads and such tendency needs to be curbed by imposing sentence of imprisonment.

31. An identical question arose for determination before the Hon'ble Apex Court in Dalbir Singh Versus State of Haryana and Others, AIR 2000 Supreme Court 1677(1) and it was observed as under:- “Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, Criminal Courts cannot treat the nature of the offence under Section 304-A IPC as attracting the benevolent provisions of Section 4 of the Probation of Offenders Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence. A professional driver pedals the accelerator of the automobile almost throughout his working hours. He must constantly inform himself that he cannot afford to have a single moment of laxity or inattentiveness when his leg is on the pedal of a vehicle in locomotion. He cannot and should not take a chance thinking that a rash driving need not necessarily cause any accident; or even if any accident occurs it need not necessarily result in the death of any human being; or even if such death ensures he might not be convicted of the offence; and lastly that even if he is convicted he would be dealt with leniently by the Court. He must always keep in his mind the fear psyche that if he is convicted of the offence for Crl.Revision No.563 of 2002 9 causing death of a human being due to his callous driving of vehicle he cannot escape from jail sentence. This is the role which the Courts can play, particularly at the level of trial Courts, for lessening the high rate of motor accidents due to callous driving of automobiles”.

32. For the reasons stated here-in-above and the law laid down in Dalbir Singh's case(supra), to me, it would not be expedient in the interest of justice to extend the benefit of probation to the petitioner.

33. Be that as it may, but taking into consideration the facts that the petitioner is an old person, has already suffered the agony of protracted trial for the last more than eighteen years, to my mind, it would be expedient and justice would be squarely met and sub-served, if the sentence of imprisonment imposed by the courts below on the petitioner under Section 304-A IPC, is reduced to rigorous imprisonment for a period of six months in the obtaining circumstances of the case. Ordered accordingly. However, the conviction and sentence under Section 279 IPC is hereby maintained. Needless to say, both the sentences shall run concurrently.

34. No other point worth consideration has been urged or pressed by the learned counsel for the parties.

35. In the light of aforesaid reasons, the impugned judgments of conviction are maintained but for reduction in sentence in the manner indicated here-in-above, the revision petition is hereby dismissed. February 09, 2010 ( Mehinder Singh Sullar) Judge