Sukhdev Raj v. State of Punjab

the petitioner vide FIR No.74 (Ex.PW6/B) dated 16.06.1996, on accusation of having committed the offence punishable under Sections 304-A, 337, 279 and 427 IPC, by the police of Police Station Sadar, Pathankot, District Gurdaspur, in the manner indicated here-in-above.

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

6. Having completed all the codal formalities, the petitioner was charge-sheeted for the commission of offence punishable under Sections 279 and 304-A IPC, by the trial Magistrate vide order dated 09.01.1997. As the petitioner did not plead guilty and claimed trial, therefore, the case was Crl.Revision No.150 of 2003 3 slated for evidence of the prosecution.

7. The prosecution, in order to substantiate the charges framed against the petitioner, examined PW1-Dr.J.C.Kunda, Medical Officer, Civil Hospital, Pathankot, who on 16.06.1996 at 6.15 P.M., conducted the post- mortem examination on the dead body of Hawaldar Mohinder Singh and Ajit Singh vide PMR (Exs.PA and PB) respectively. According to PW1, the cause of death was due to head injury which was sufficient to cause death in the ordinary course of nature.

8. The same Dr.J.C.Kunda, while appearing as DW3 has also stated that as per record, he also conducted the post-mortem examination of Mohindero Devi wife of Shankar Dass on 16.06.1996.

9. The next to note is the testimony of PW2-complainant Yudhbir Singh, who has, inter alia, stated that on 16.06.1996, he along with PW7- Balbir Singh was going on his scooter from Sujanpur to village Malikpur. The tempo bearing registration No.PAG 6592, carrying two passengers, was coming on its correct side, being driven by Ajit Singh. PW2 has categorically maintained that, in the meantime, the offending truck was going at full speed being driven by the petitioner. He could not control, rammed the truck, dragged the tempo and due to this impact, the truck turned tilted on the tempo, culminating into the death of three persons. Narrating the sequence of events, PW2 has categorically deposed that the accident in question took place due to the negligence of the petitioner. The police recorded his statement(Ex.PA). The occurrence was also witnessed by PW7.

10. Sequelly, PW7-eye witness Balbir Singh, while giving the details of the occurrence, has maintained that the accident in question had taken place due to rash and negligent driving of the petitioner, while driving the offending truck. Instead of reproducing the statements of PW2 and PW7 in toto and in order to avoid repetition, suffice it to say that both the witnesses have fully corroborated the initial version contained in the statement (Ex.PA) on all vital counts.

11. Likewise, PW3-Jatinder Singh, Photographer, has produced the photographs of the place of occurrence (Exs.P7 to P12) vide negatives (Exs.P1 to P6).

12. PW4-Sudarshan Kumar, Mechanic, Punjab Roadways, Crl.Revision No.150 of 2003 4 Pathankot, mechanically examined the vehicles and submitted his report (Ex.PC).

13. PW5-HC Deepak Kumar, is the witness of recovery of vehicles (Exs.PW5/A and PW5/B) and other articles, (Exs.PW6/F, PW6/G and PW6/H).

14. The last to note is the testimony of PW6-ASI Paramjit Singh, who has, inter alia, stated that on 16.06.1996, he was present near bridge No.5, when PW2 came there and narrated the incident. He(PW6) recorded his statement(Ex.PA) and made his endorsement(Ex.PW6/A) and sent the same to the police station for registration of the case, on the basis of which FIR(Ex.PW6/B) was registered. Thereafter, he inspected the spot, prepared the rough site plan(Ex.PW6/C) of the place of occurrence. He prepared the inquest reports(Exs.PW6/D, PW6/E and PW6/J) of the dead bodies and sent the same for post-mortem examination through Head-Constable Deepak Kumar. He took into possession the tempo and the offending truck involved in the accident, vide recovery memos(Exs.PW5/A and PW5/B). He also took into possession the registration certificate(Ex.PW6/F), permit (Ex.PW6/H) and other documents(Ex.PW6/G). Testifying the investigation carried out by him, PW6 further maintained that on 25.06.1996, one Janak Raj produced the petitioner before him and he arrested the petitioner. In other words, he has duly corroborated the investigation carried out by him.

15. Having closed the case of the prosecution, the statement of the petitioner was recorded as contemplated under Section 313 Cr.P.C. But the petitioner denied the prosecution evidence in its entirety and pleaded false implication.

16. However, the petitioner has set-up a plea of defence to the effect that he has been falsely substituted by the police in place of actual driver, with the connivance of the owner of the offending truck. In order to substantiate his plea of defence, the petitioner has examined DW1-Parkash Chand, DW2-Jagdish Raj, DW3-J.C.Kunda, DW4-Kewal Krishan and DW5-Dheeraj Kumar. The crux of the defence evidence (witnesses) is to the effect that the petitioner is a labourer and unable to drive the vehicle.

17. The trial Magistrate concluded that offence under Section 279 IPC is a lessor offence and there is no need to convict the petitioner under this Section, when he has been convicted for the major offence punishable Crl.Revision No.150 of 2003 5 under Section 304-A IPC. However, the trial Magistrate convicted and sentenced the petitioner under Section 304-A IPC in the manner depicted here-in-above.

18. Sequelly, the appeal filed by the petitioner was also dismissed by the lower appellate court vide impugned judgment dated 16.12.2002.

19. The petitioner still did not feel satisfied with the impugned judgments/order and filed the present revision petition invoking the provisions of Section 401 Cr.P.C. That is how I am seized of the matter.

20. Assailing the impugned judgments, learned counsel for the petitioner has contended with some amount of vehemence that since the petitioner was not apprehended at the spot, so, he was subsequently falsely implicated in the present case. The argument is that as no test identification parade was held, therefore, the petitioner is not proved to be connected with the accident in question. In all, according to the learned counsel that as the evidence brought on record by the prosecution falls short as is required to prove a criminal charge, therefore, the petitioner is entitled to acquittal.

21. Hailing the impugned judgments, on the contrary, learned State Counsel has urged that PW2 came to know the name of the petitioner at the spot and his name figured in the promptly recorded statement(Ex.PA), which formed the basis of FIR (Ex.PW6/B). As there was no dispute about his identification, so, the police was not required to arrange any identification parade. The argument is that the heinous crime committed by the petitioner, in which three persons lost their lives, is duly proved by ocular version of PW2 and PW7, which further finds corroboration from the medical evidence. Therefore, 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.

22. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, 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 here-in-below.

23. Now adverting to the main celebrated argument of learned counsel that the petitioner is not connected with the crime in question, in Crl.Revision No.150 of 2003 6 this context, this argument is not only devoid of merit but misplaced as well. It is not a matter of dispute that the accident in question had taken place at

12.30 P.M. on 16.06.1996, which was witnessed by PW2 and PW7. PW2 immediately started from the place of occurrence, to the police station to lodge the report, after leaving PW7-Balbir Singh at the spot, but on the way, PW6 met him, who has duly recorded his statement(Ex.PA), made his endorsement(Ex.PW6/A) on it and sent the same to the police station for registration of the case at 2.30 P.M. PW2 in his statement(Ex.PA) has, inter alia, categorically stated that he came to know the name of the driver of the offending truck at the spot, as Sukhdev Raj son of Mewa Ram, Caste Mahasay, resident of Harizan Colony, Dinanager. It is also so stated by PW7 in his statement recorded by the police at the spot.

24. Once, the name of the petitioner figured at the spot and depicted in the promptly recorded statement(Ex.PA) which formed the basis of FIR (Ex.PW6/B) and there was no doubt or dispute about his identification, parentage and residence, in that eventuality, there was no occasion for and the police was not required to arrange any identification parade, as urged on behalf of the petitioner. Not only that the name of the petitioner figured in the statement(Ex.PA) and FIR(Ex.PW6/B), but he was duly identified by PW2 and PW7 in the court as well. It has come in the evidence that the petitioner was produced before the Investigating Officer on 25.06.1996 by one Janak Raj, but he did not move any application with regard to his innocence, substitution or false implication, which are now sought to be pressed into service by the petitioner.

25. 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. As is evident from the record that PW2 and PW7 have fully corroborated the prosecution story that on 16.06.1996, they were going on scooter towards Malikpur on the Highway and a tempo was coming from the opposite side. In the meantime, the offending truck, being driven by the petitioner, in a rash and negligent manner, came there. The petitioner could not control and rammed the truck into and dragged the tempo on kacha berm and turned tilted causing the death of three persons. PW2 has categorically stated that the accident in question had taken place due to rash, negligent and reckless driving of the petitioner, while driving Crl.Revision No.150 of 2003 7 the offending truck. PW7 has also toed the same line adopted by PW2 in this respect. They gave the vivid and consistent version of the accident. The submission of the learned counsel for the petitioner that PW2 and PW7 have been subsequently introduced, cannot possibly be accepted, because they witnessed the occurrence at the spot. Immediately after the accident, leaving PW7 at the spot, PW2 went to lodge the report. On the way, PW6 met him and he promptly recorded his statement(Ex.PA). Not only that PW6 promptly recorded the statement of PW2, which formed the basis of FIR, he also recorded the statement of PW7 at the spot. Therefore, their presence at the spot cannot possibly be doubted under the present set of circumstances, notwithstanding, that they were employees of the Municipal Committee.

26. Again, it is not a matter of dispute that both PW2 and PW7 supported the prosecution version on all vital counts. They were cross- examined at length but nothing substantial material could be elicited in searching cross-examination to dislodge their testimonies. Their presence at the spot is natural and evidence is trustworthy. Possibly no motive could be attributed either to PW2 or PW7 as to why they would falsely implicate the petitioner and would leave the real culprit.

27. Not only that PW2 and PW7 have categorically supported the prosecution version on all vital counts, it finds further corroboration from the medical evidence of PW1, who conducted the post-mortem examination of the deceased. The nature of injuries and history described therein further corroborates the involvement of the petitioner in the commission of crime in question. The photographs of the place of occurrence produced by PW3 and the mechanical report(Ex.PC) lends further corroboration to it. The investigation carried out was duly proved by PW6. It means, the prosecution has produced more than sufficient evidence on record against the petitioner in this connection. The fact that the petitioner was not apprehended at the spot, his driving licence was not taken into possession and the owner of the offending truck was not examined, would have no direct bearing on the prosecution case and pales into insignificance in view of overwhelming independent, cogent, reliable and trustworthy evidence on record of PW2 and PW7 in this connection.

28. The defence plea projected by the petitioner that he was Crl.Revision No.150 of 2003 8 substituted by the police, deserves to be outrightly rejected, in the absence of any cogent material on record. No doubt, DW1 to DW5 have merely stated that the petitioner does not know how to drive the vehicle, but no implicit reliance can be placed on their self-serving statements, as they are interested in the welfare of the petitioner. Had the petitioner been substituted in place of some other driver, then he could approach the higher authorities to redress his grievances. But no cogent material is forthcoming on record that he had ever taken any step in this relevant behalf. Moreover, DWs admitted in cross-examination that when they came to know that the petitioner has been falsely implicated in this case, they did not lodge any complaint to the higher authorities. They feigned their ignorance and are inconsistent with regard to place of labour work of the petitioner.

29. The next argument of the learned counsel that there is no evidence on record that the act of the petitioner was rash or negligent in causing the accident in question, is neither tenable nor the observation in cases Ishwar Singh Versus State of Haryana, 2000(2) Recent Criminal Reports (Criminal) 571 and Ajaib SinghVersus State of Punjab, 2000(2) Recent Criminal Reports (Criminal) 737, are at all applicable to the facts of the present case. The crux of the aforesaid judgments is that there must be positive evidence with regard to approximate speed of the vehicle and there must be definite evidence regarding rash and negligent driving of the accused.

30. Possibly, no one can dispute about the aforesaid observation but the same would not come to the rescue of the petitioner. In the instant case, there is a positive evidence on record in this connection. Not only PW2 has stated that the petitioner was driving the offending truck at full speed, but he categorically maintained that the accident in question had taken place on 16.06.1996 due to rash, negligent and reckless driving of the petitioner. It has also come in the evidence that the offending truck was on its wrong side. The petitioner rammed and dragged the tempo on kacha portion of the road. Statement of PW2 was duly corroborated by the statement of PW7 in this respect. The relevant points indicated by the Investigating Officer in the site plan (Ex.PW6/C) of the place of occurrence, the manner of the accident and mechanical report(Ex.PC) would also indicate that the petitioner was so rash and negligent that he could not Crl.Revision No.150 of 2003 9 control, came on the wrong side, rammed and dragged the tempo to some extent on kacha portion of the road. This evidence clearly points an accusing finger towards the petitioner in this regard.

31. 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 as discussed here-in- above, to prove the crime committed by the petitioner in this context. The courts below have thus rightly accepted the trustworthy and reliable 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 three persons, namely, Ajit Singh, Mohinder Singh and Mohindero Devi. 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.

32. 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.

33. However, learned counsel for the petitioner has canvassed that since the petitioner is a first offender and only bread-earner of the family, so, he be granted the benefit of the provisions of probation of Offenders Act. Learned State Counsel, however, vehemently opposed the prayer of the petitioner in this respect.

34. 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 Crl.Revision No.150 of 2003 10 causing a great danger to public safety on the roads and such tendency needs to be curbed by imposing sentence of imprisonment.

35. 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 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”.

36. 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. Crl.Revision No.150 of 2003 11

37. As is evident from the record, the courts below awarded the sentence of imprisonment for a period of one and a half years to the petitioner, keeping in view the fact, that he committed the indicated crime culminating into the death of three persons, namely, Ajit Singh, Mohinder Singh and Mohindero Devi. Admittedly, Mohindero Devi was none else but mother-in-law of the petitioner. Meaning thereby, the petitioner has also lost one member of the family of his in-laws, which entitles him(some) reduction in sentence of imprisonment to some extent, particularly when he has already suffered the agony of protracted trial for the last more than fourteen years. Therefore, taking into consideration the totality of the facts and circumstances, emitting from the record, to my mind, ends of justice would squarely be met and sub-served, if the sentence of imprisonment for a period of one and a half years imposed on the petitioner by the courts below, for the commission of offence punishable under Section 304-A IPC, is reduced to rigorous imprisonment for a period of one year in the obtaining circumstances of the case. Ordered accordingly. However, the sentence of fine is maintained.

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

39. 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 19, 2010 ( Mehinder Singh Sullar) Judge