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2003 DIGILAW 180 (PNJ)

Ram Mehar v. State of Haryana

2003-01-29

R.L.ANAND

body2003
JUDGMENT R.L. Anand, J. (Oral) - This is a criminal revision and has been directed against judgment dated 5.7.1991 passed by the Court of Additional Sessions Judge, Jind who dismissed the appeal of Ram Mehar petitioner. 2. The brief facts of the case are that on 23.6.1985 Sarvshri Baljit Singh, Kuldip Singh, Kitab Singh and Satbir Singh were going from Uchana Mandi to Jind on motor-cycle bearing registration No. HRJ-3000 which was being driven by Baljit Singh and the remaining persons were pillion riders. These people came from the side of Uchana Mandi and were proceeding towards Jind by driving motor-cycle on the main Jind-Narwana road. In the meantime, the petitioner came at a very fast speed from the side of Narwana and he was driving truck No. HYA-5325. It is alleged that a Jeep was also coming from the opposite side i.e. from Jind side, and was going towards Narwana. The petitioner did not blow horn nor he gave any indicator. It is alleged that the petitioner wanted to take his truck in the bylane towards right hand side and abruptly took his truck in that direction. It dashed against an electric pole. Thereafter it hit the motor-cycle which was being driven by Baljit Singh. The persons who were coming on the motor-cycle were also ran over by the truck. The injured were taken out from underneath the truck by several persons standing on the bus-stand and they were removed to the hospital. Kuldip Singh died at the spot and Baljit Singh died in the hospital and the remaining two pillion riders received multiple injuries. Siri Parkash ASI came to the spot on receiving information about the accident and he recorded the statement of Satbir Singh. Formal FIR was recorded and on the completion of the investigation of the case, the petitioner was challaned under Sections 279, 377 and 304-A of the Indian Penal Code in the Court of Area Magistrate who framed charges against the petitioner, who pleaded not guilty to the charge and claimed a trial. 3. In order to prove the charges, prosecution examined as many as 14 witnesses, including Shri Zile Singh, Dr. R.K. Garg, Dr. Navin Sabbarwal, Dr. Ramesh, Dharam Pal Record Officer, Prem Chand, Kitab Singh and Hari Singh Constable. The plea of the accused under Section 313 Criminal Procedure Code was recorded. The petitioner denied the circumstances appearing in the prosecution evidence. In order to prove the charges, prosecution examined as many as 14 witnesses, including Shri Zile Singh, Dr. R.K. Garg, Dr. Navin Sabbarwal, Dr. Ramesh, Dharam Pal Record Officer, Prem Chand, Kitab Singh and Hari Singh Constable. The plea of the accused under Section 313 Criminal Procedure Code was recorded. The petitioner denied the circumstances appearing in the prosecution evidence. No defence was led. 4. The learned Magistrate vide judgment dated 19th March, 1991 came to the conclusion that the petitioner was guilty for the offence under Section 304-A of the Indian Penal Code, which included the offence under Sections 337 and 279 Indian Penal Code. He sentenced the petitioner under Section 304-A Indian Penal Code to undergo RI for the period of nine months and to pay a fine of Rs. 2000/- and in default of payment of fine, the petitioner was directed to further undergo RI for a period of two months. The learned Magistrate did not pass any separate sentence under Sections 279 and 337 Indian Penal Code. The petitioner being not satisfied with the judgment and order of the learned trial Court, he filed an appeal before the Court of Additional Sessions Judge, Jind, who vide impugned judgment dated 5th July, 1991, and for the reasons given in para Nos. 8, 9 and 10 dismissed the appeal. These three paragraphs of the judgment of the first Appellate Court are quoted below : "Learned counsel for the accused-appellant has urged that the prosecution has failed to prove that the accused was driving the vehicle in question at the relevant time and it is submitted that the identity of the accused is not satisfactorily established by the prosecution. Neither accused has been joined in any identification parade and it is also submitted that two of the eye-witnesses out of three eye-witnesses who were pillion riders of the motor-cycle have turned hostile and Kuldip Singh is not able to identify the accused in a proper manner, sop the accused is entitled to benefit of doubt. But this contention of the learned counsel for the accused-appellant is without any merit because fate of a case is not entirely in the hands of a particular witness. As envisaged by Section 134 of the Indian Evidence Act, no particular number of witnesses is required to prove a particular fact. But this contention of the learned counsel for the accused-appellant is without any merit because fate of a case is not entirely in the hands of a particular witness. As envisaged by Section 134 of the Indian Evidence Act, no particular number of witnesses is required to prove a particular fact. No doubt, Satbir Singh PW10 who was injured in the accident and was coming on the motor-cycle has proved a black sheep to the prosecution and Dharamvir PW11 eye-witness of the occurrence has also proved a torn coat to the prosecution yet there are no reasons to disbelieve the statement of Kitab Singh PW7 who is one of the injured in the accident and was one of the pillion riders. It has transpired from the evidence adduced that Baljit Singh was driving the motor- cycle in question at the relevant time and he died as a result of the injuries sustained in the accident. One of the pillion riders namely, Kuldip Singh has died in the accident at the very spot and his dead body was subjected to post mortem examination. Thus, out of four persons two were killed in the accident at the spot and two have received injuries. Satbir Singh PW10 had lodged report Ex.PW10/A with the police on the basis of which formal FIR Ex.PA/1 was recorded. No doubt, in the FIR at the earliest name of the accused and truck number are specifically mentioned. It is also specifically mentioned that the accused did not give any indicator and did not blow any horn but FIR is not a substantive piece of evidence. It can only be used for the purpose of corroboration or contradicting the maker thereof. Thus, the prosecution is left only with the statement of Kitab Singh. Again at the cost of repetition it may be mentioned that there is no reason to disbelieve the statement of Kitab Singh PW7 and he has categorically stated that the accused present in the Court was driving the truck in question at a very fast speed. Thus, the prosecution is left only with the statement of Kitab Singh. Again at the cost of repetition it may be mentioned that there is no reason to disbelieve the statement of Kitab Singh PW7 and he has categorically stated that the accused present in the Court was driving the truck in question at a very fast speed. (9) Learned counsel for the accused-appellant has assailed the statement of this witnesses by submitting that he is a tutored witness as in cross- examination he has stated that he was made to understand his statement out side the court and he had not seen the accused earlier but it is well settled that entire statement of a witness is to be considered. There cannot be any pick and choose policy. In cross-examination, it is also stated by Kitab Singh PW7 that he had also seen the accused earlier. Then he has also stated in another breath that he was not made to understand his statement outside the Court by anybody. There is not even a suggestion worth the name to this witness to the effect that accused was not driving the truck in question at the relevant time. Even statement under Section 313 Criminal Procedure Code of the accused is only of denial simplicitor. It is not specifically stated that he was not driving the truck in question at the relevant time or was not employed on the said truck of that the said truck has not caused the accident. It has transpired from the evidence adduced by the prosecution that the truck was damaged because firstly it struck against an electric pole and then it struck against the motor-cycle on which the injured and deceased were coming. From the statement of Dr. R.K. Garg PW2 it has transpired that the accused was also medico legally examined vide MLR Ex.PW2/C on that very day. The accused is not able to explain the injuries on his person as to how he received the injuries. Thus, prosecution evidence adduced has remained un-assailed. Apart from it, question of joining the accused in identification parade does not arise because offences under Sections 279/337/304-A Indian Penal Code are bailable one and the police has no right to ask the court to send the accused to judicial lock up for the purpose of identification parade. Thus, prosecution evidence adduced has remained un-assailed. Apart from it, question of joining the accused in identification parade does not arise because offences under Sections 279/337/304-A Indian Penal Code are bailable one and the police has no right to ask the court to send the accused to judicial lock up for the purpose of identification parade. Thus, the contention of learned counsel for the accused-appellant is without any merit. (10) It is further canvassed by the learned counsel for the accused that mere high speed is no ground to hold the accused rash and negligent. In support of his contention learned counsel for the accused-appellant has cited before me authority Mrs. Shakila Khader etc. v. Nausher Gama and another, AIR 1975 Supreme Court 1324 and Mahammed Saffique v. State, 1983 Crl.L.J. 535 but these authorities do not apply to the present case. It is categorically stated by Kitab Singh PW7 that the accused was coming at such a high speed that there was no scope for applying brakes and the accused abruptly turned towards Uchana Mandi side and struck against the electric pole and it is also stated by him that the truck was at such a high speed that one could not pass from the side. This part of the statement of Kitab Singh PW7 has not been assailed in cross- examination and as such statement has been accepted as correct by necessary implication. From the evidence adduced, it has transpired that the accused has been approaching on a crossing where road coming from Uchana Mandi side merges with Narwana-Jind road. It has also transpired from the evidence led that a jeep was also coming from the opposite side. Thus, it was the duty of the accused appellant to slow down the speed while he is approaching the crossing but he has not bothered to slow down the speed even at such a busy place. No doubt, the prosecution witnesses have not stated about non-blowing of the horn and about non-showing of the indicator yet statement of Kitab Singh PW7 to the effect that the truck was coming at high speed and there was no scope for applying brakes and the truck firstly struck against the electric pole and then against a motor-cycle has gone un-rebutted. This very statement speaks volumes about rashness and negligence on the part of the accused- appellant". 5. The petitioner still not satisfied. This very statement speaks volumes about rashness and negligence on the part of the accused- appellant". 5. The petitioner still not satisfied. Hence the present revision. 6. I have heard Shri K.S. Dhaliwal, learned counsel for the petitioner and Shri Sanjay Vashist, learned Deputy Advocate General appearing on behalf of the respondent-State and with their assistance, have gone through the record of the case. 7. I am dealing with a revision and the position of law is well settled in this regard. In the absence of any legal infirmity either in the proceedings or in the conduct of the trial, there will be no justification for the High Court to interfere while exercising revisional jurisdiction to interfere with the finding of the trial Court as well as the first Appellate Court. The courts below after applying their mind have rightly appreciated the evidence on record. It may be mentioned here at the first instance that the counsel appearing on behalf of the petitioner has not pointed out any defect or procedure in the conduct of the case by the learned trial court. He, however, submitted that both the courts below have convicted the petitioner on the basis of no evidence and, secondly, it is not established on the record that the petitioner was driving the truck at the relevant time. In support of his contention, he submitted that two of the eye-witnesses out of three eye- witnesses who were the pillion riders, have gone hostile but this submission raised by the learned counsel for the petitioner cannot be accepted irrespective of the fact that the two witnesses Sarvshri Satbir Singh and Dharamvir PW11 have not supported the case of the prosecution. There is a statement of Kitab Singh PW7 who is one of the injured persons of the accident. He was on the pillion seat. His statement cannot be disbelieved being a stamped witness. This witness has categorically stated that the petitioner was driving the truck at a very high speed. Attacking the statement of Shri Kitab Singh PW7, it was submitted by the learned counsel for the petitioner that much reliance cannot be placed upon his statement because he is a tutored witness. He admitted in cross-examination that he was made to understand his statement outside the Court. I am not convinced with this submission. The statement of this witness has to be read as a whole. He admitted in cross-examination that he was made to understand his statement outside the Court. I am not convinced with this submission. The statement of this witness has to be read as a whole. This witness has also stated in cross-examination that he had seen the petitioner who was responsible for the accident and that he was not tutored to give his statement inside the Court. The circumstantial evidence is also indicative of the fact that the petitioner was rash and negligent in driving the truck. The truck was damaged. As per the case of the prosecution, firstly the truck struck against the electric pole and thereafter it struck against the motor- cycle. Relying upon the statement of Kitab Singh coupled with the medical evidence, there is no manner of doubt that the petitioner was Incharge of the steering of the truck and he was driving the heavy vehicle in a rash and negligent manner. As I stated above, the petitioner was the Incharge of the heavy vehicle. It was the duty of the Incharge that before taking a turn he must ensure the safety of others who were driving on the roads. Once there is a proper appreciation of evidence by the Courts below, this Court will be very slow in interfering with the findings. 8. It was then submitted by the learned counsel for the petitioner that his client may be shown leniency in the matter of sentence as he is suffering the vagaries of the criminal proceedings since 1985. This submission of the learned counsel for the petitioner cannot be accepted. The Honble Supreme Court in various judgments has held that the persons on wheels have great responsibilities while driving heavy vehicles on the roads. They should ensure safety of the others also. The Honble Supreme Court has also held that such persons do not deserve any sympathy in the matter of sentence as they are criminals on wheels. In the present case two persons have lost their lives. No mercy can be shown to the petitioner. Resultantly, the present revision is hereby dismissed. Revision dimissed.