Iqbal Singh v. The State of Punjab

Mr. P.K.Kataria, Advocate for the petitioner. Mr. O.P.Dabla, Deputy Advocate General for the respondent – State of Punjab. A.N.JINDAL, J.- Iqbal Singh, accused – petitioner (herein referred as `the petitioner') has challenged the correctness, legality and propriety of the judgment dated 7.10.2004 passed by Appellate Court at Hoshiarpur dismissing his appeal against the judgment dated 6.11.2001 passed by Judicial Magistrate Ist Class, Hoshiarpur (Camp Court at Dasuya) convicting and sentencing him to undergo rigorous imprisonment for two years and to pay fine of Rs.2500/- under Section 304-A of the Indian Penal Code 1860 (for brevity `IPC'); to undergo rigorous imprisonment for six months and to pay fine of Rs.200/- under Section 337 IPC; and also to undergo rigorous imprisonment for six months and to pay fine of Rs.500/- under Section 279 IPC. Criminal Revision No.222 of 2005(O&M) [ 2 ] The facts, as disclosed by Harwinder Singh – complainant, are that on 24.6.1997, at about 3.00 PM, he along with Rakesh Kumar was going towards Lalru in tempo No.PB-06A-2112, which was being driven by Rakesh Kumar. When they reached near petrol pump of M/s Chint Ram Vijay Kumar, then a mini bus bearing Reg.No.PB-02B-9916, being driven by the accused rashly and negligently, in a bid to cross a truck took a sharp turn. The driver of the Tempo took his vehicle on the extreme side of the road, but the bus hit it and later on struck against the wall of the petrol pump, as a result of which, three passengers of the bus died at the spot and many received multiple injuries. Rakesh Kumar, driver of the Tempo also received injuries on his arms and legs. On the aforesaid statement made by the complainant, the First Information Report (Ex.PW9/B) was registered against the petitioner; he was arrested; the post mortem on the dead bodies of the deceased was conducted; site plan Ex.PW9/K was prepared; both the vehicles were taken into possession and got mechanically examined vide reports Ex.PW7/A and PW7/B; driving licence of the petitioner was also taken into possession vide recovery memo Ex.PW9/Z and statements of the witnesses were recorded. On completion of the investigation, the challan against the petitioner was presented in the Court. Finding a prima facie case against the petitioner, he was charged for the offences under Sections 279, 337 and 304-A IPC, to which he pleaded not guilty and opted to contest. In order to substantiate its charges, the prosecution examined Kulwinder Singh (PW1), Rakesh Kumar (PW2), Nirmal Singh (PW3), Criminal Revision No.222 of 2005(O&M) [ 3 ] Harwinder Singh (PW4), Gurdev Singh (PW5), Dr.R.K.Bagga (PW6), Avtar Singh (PW7), Dr.Diar Singh (PW8) and ASI Phoola Singh (PW9). When examined under Section 313 of the Code of Criminal Procedure, 1973, the petitioner denied the allegations and pleaded his false implication. The trial ended in conviction. His appeal also failed. On going through the judgments of the Trial Court as well as the Appellate Court, no exception could be made to the view expressed by both the courts below. There are concurrent findings of fact that on

24.5.1997, the petitioner while driving the offending bus rashly and negligently hit the tempo of Rakesh Kumar and then struck against the wall of the petrol pump, run by M/s Vijay Petrol Pump in the area of Darapur Bye-pass on Jalandhar-Pathankot GT Road, as result of which three persons had died at the spot, while many suffered multiple injuries. The two eye- witnesses, namely Nirmal Singh (PW3) and Harvinder Singh (PW4) are consistent with regard to the time, place and the manner of the accident. So far as the submission of the learned counsel with regard to non-examination of the Investigating Officer/ASI Phoola Singh, it is observed that it is a settled law that since Investigating Officer is not an eye-witness to the occurrence and the proceedings of investigation stand proved by the other witnesses and the occurrence is proved by the eye- witnesses, then the non-examination of the Investigating officer is not fatal to the prosecution case. In the instant case, eight witnesses have been examined, who have reiterated the prosecution version recorded in the First Information Report, establishing the guilt of the petitioner. The investigation stands proved by other evidence, as such, non-examination of Criminal Revision No.222 of 2005(O&M) [ 4 ] the Investigating Officer is not fatal in this case. The question of mistaken identity does not arise. Both the eye witnesses have duly identified the petitioner and they had the opportunity and occasion to see him. More so, the petitioner has not alleged any previous enmity with the complainant party, so as to think over the issue of false implication. Three persons had lost their lives within twinkling of an eye and in such circumstances, no person would replace the original culprit with an innocent person. Hence, the identity of the petitioner stands proved beyond doubt. So far as the issue of non-examination of independent witness/es is concerned, it is observed that in road-side accidents, the injured person/s is/are the best witness/es, and the passers-bye are often reluctant to join as witnesses as they know that much time would be wasted in making rounds of the courts and they would have to face scorching cross- examination. Even otherwise, the scope of interference at the revisional stage is very restricted in nature. This view gets support from the decision of the Apex Court in case of Duli Chand vs. Delhi Administration, AIR 1975 SC 1960 and State of Orissa vs. Nakula Sahu and others, AIR 1979 SC 663. It was held that the High Court should not have interfered with the concurrent findings recorded by the Trial Court and the Sessions Judge in exercise of revisional jurisdiction when there was no error of fact or law arrived at by the Trial Court or the Sessions Judge. In case State of Kerala vs. Puttamana Illath Jathavedan Namboodiri, 1999(1) RCR Criminal Revision No.222 of 2005(O&M) [ 5 ] (Criminal) 808, the Apex Court held that the revisional jurisdiction is one of the supervisory jurisdiction exercised by the High Court for correcting miscarriage of justice. But the said revisional power cannot be equated with the power of an appellate Court nor can it be treated even as a second appellate jurisdiction. Ordinarily, therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same unless any glaring feature is brought to the notice of the High Court which would otherwise tantamount to gross miscarriage of justice. Keeping in view the above, the findings of guilt of the petitioner concurrently recorded by both the courts below, are upheld. Now, coming to the quantum of sentence, it is observed that the rash and negligent act of the petitioner took three valuable lives and rendered many injured/disabled, therefore, keeping in view the nature of the allegations and the gravity of the offence, the sentence awarded, appears to be in commensuration with the offence committed. Hence, the same also needs no interference. Consequently, the petition is dismissed. Copy of this order be sent to Chief Judicial Magistrate, Hoshiarpur for compliance. November 29, 2010 `gian' ( A.N.JINDAL ) JUDGE