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2003 DIGILAW 719 (PNJ)

Gurbinder Singh @ Bhola v. State of Punjab

2003-05-14

S.S.SARON

body2003
JUDGMENT S.S. Saron, J. - The present Crl. Revision has been filed against the judgment and order dated 24.2.1993 passed by the learned Sessions Judge, Faridkot, whereby the petitioner has been convicted and sentenced to undergo rigorous imprisonment for one year and fine of Rs. 250/- or to further undergo rigorous imprisonment in default of payment of fine for two months for the offence under Section 304-A of the Indian Penal Code (Indian Penal Code - for short). Besides, the petitioner has been sentenced to undergo R.I. for six months and fine of Rs. 100/- or to further undergo rigorous imprisonment for one month in default of payment of fine for the offence under Section 279 Indian Penal Code, and lastly to undergo rigorous imprisonment for 9 months and fine of Rs. 200/- or to further undergo rigorous imprisonment for two months in default of payment of fine under Section 338 Indian Penal Code. All sentences have been ordered to run concurrently. 2. The fact of the case are that the FIR No. 6 dated 12.1.1989 was registered at Police-Station Nihal Singh Wala for the offence under Sections 279, 427, 338, 304-A Indian Penal Code against the petitioner Gurbinder Singh on the statement of Dharam Singh complainant. The complainant on 11.1.1989 along with others went to Dhanaula Mandi for selling three bufalloes in which he and his companions were dealing with. They went on the tractor trolley of Kartar Singh Mistri from village Kussa. They sold the buffaloes and started back to their villages. The Complainant, Kishan Singh and Binder Kumar were sitting on the right mudguard, Jassa Singh on the left mudguard and Mewa Singh on the wooden plank of the tractor. When they were at some distance from the bridge of the canal minor at village Himatpura then one truck which was coming from the opposite direction at a high speed rammed into the tractor. Sadhu Singh the driver of the tractor tried to save the tractor but there was a collision and the truck hit the rear side of the tractor. The tractor cracked into two parts. The trolley got detached from the tractor. On account of the accident Kishan Singh and Zora Singh suffered injuries and died at the spot while Sadhu Singh Tractor Driver, Mewa Singh, Jassa Singh and Binder Kumar received multiple injuries. The truck driver also received injuries. The tractor cracked into two parts. The trolley got detached from the tractor. On account of the accident Kishan Singh and Zora Singh suffered injuries and died at the spot while Sadhu Singh Tractor Driver, Mewa Singh, Jassa Singh and Binder Kumar received multiple injuries. The truck driver also received injuries. Dharam Chand lodged the report which was recorded by ASI Malkiat Singh who met him at the bus stand of village Bhagike where Dharam Chand made his statement Ex.PW2/A on the basis of the which FIR Ex.PW2/C was registered. The challan against the petitioner was filed and he was charge-sheeted on 4.9.1989 by the learned Sub Divisional Judicial Magistrate, Moga, for the offences under Sections 279, 304-A, 337 and 338 of the Indian Penal Code. 3. The prosecution examined Natha Singh, Mechanic (PW-1), Dharam Chand (PW- 2), Mewa Singh (PW8), Binder Kumar (PW-4), Sham Lal Photographer, (PW-5), Dr. V.J.S. Dhillong (PW-6), Dr. Jawahar Aggarwal (PW-7) and ASI Malkiat Singh (PW-8). The prosecution did not complete its evidence which was closed by order dated 26.8.92 by the learned trial Court. 4. The petitioner, in his statement under Section 313 Criminal Procedure Code stated that he was only the owner of the truck and that he had employed Sucha Singh as driver who may have caused the accident because after 11.1.1989 i.e. the date of the accident, Sucha Singh did not report to him, as he was the owner of the truck, the police took him to be the driver and implicated him. 5. The learned trial Magistrate vide its order dated 9.12.1992 convicted the accused and sentenced him for rigorous imprisonment and fine as already detailed above. 6. The petitioner preferred an appeal against the order of the learned trial Magistrate which was dismissed by the learned Sessions Judge, Faridkot on 25.2.1993. It is against the said order that the present revision petition was filed which was admitted on 8.4.1993 and sentence and recovery of fine was ordered to be suspended during the pendency of the revision petition. 7. Shri B.S. Bhasaur, Advocate, the learned counsel for the petitioner has stated that the identity of the petitioner is not proved and in any case, it is not proved that the petitioner was in any manner rash or negligent which resulted in the accident. 7. Shri B.S. Bhasaur, Advocate, the learned counsel for the petitioner has stated that the identity of the petitioner is not proved and in any case, it is not proved that the petitioner was in any manner rash or negligent which resulted in the accident. Besides, it is contended that as per the material on record the tractor started from Barnala at 9.00 PM. and the occurrence took place at a distance of 50 kms. from Barnala at 9.30 P.M. which shows that the tractor was going at such a fast speed that it covered a distance of 50 kms in half an hour and that too at night which shows that the accident occurred due to the negligence of the tractor driver. It is further contended that even though the truck was coming from the opposite direction of the tractor yet the fact that it struck the tractor trolley on the rear side shows that the tractor made a sudden turn towards its left and put the trolley in front of the coming truck which was negligent and wrong judgment on the part of the tractor driver. Otherwise striking off the truck with the rear portion of the trolley at its right side is not possible except when a sudden turn is taken by the tractor towards its left. It was lastly contended that in view of the long duration from the occurrence to the listing of the revision petition, the petitioner has undergone the travails of prosecution and trial for all these years and, therefore, the sentence already undergone would meet the ends of justice. 8. In response Shri J.P. Bhatt learned Assistant Advocate General, the learned counsel for the State, however, contends that the learned Courts below have reached a firm finding on facts and the case against the petitioner stands duly proved from the material and evidence on record and, there is no circumstance which would warrant interference by this Court in the well reasoned orders passed by the Courts below. 9. I have given my thoughtful consideration to the respective contentions of the learned counsel appearing for the parties. 10. In respect of the contention of the learned counsel for the petitioner with regard to the identity of the petitioner being not proved, it is appropriate to note that this was the only argument urged before the learned Additional Sessions Judge, Faridkot. 10. In respect of the contention of the learned counsel for the petitioner with regard to the identity of the petitioner being not proved, it is appropriate to note that this was the only argument urged before the learned Additional Sessions Judge, Faridkot. The learned Additional Sessions Judge referred to the statement of the petitioner recorded in terms of Section 313 Criminal Procedure Code to the affect that the incident may have taken place because of the negligence and rash act of Sucha Singh, who was said to be driving the truck and who did not report to him after 11.1.1989. It was observed that the driver had received injuries at the time of accident. The contention that was urged is that the age of the petitioner was recorded as 25 years, however, in his statement under Section 313 Criminal Procedure Code he gave his age as 30 years. Besides, in the out-patient department register of four entries (Ex.D2) the age of the petitioner has been shown as 35 years. Therefore, it was sought to be contended that the petitioner when he was found to be 35 years then he was not the same person who was about 25 years of age even as per the police papers and he could not be the driver of the truck at the relevant time. This contention was considered by the learned Additional Sessions Judge, who had the advantage of seeing the petitioner and he observed him to be a well built young man, six feet tall with stout body and by appearance he could be taken to be about 30 years of age, even at the time of accident. Besides, it was also observed that the petitioner had not examined the Doctor, who had examined him. It may, in any case, be noticed that the accident in the case took place on 11.1.1989 and the driver of the truck was examined on 12.1.1989. It is not shown that the person examined by the Doctor is different from the petitioner. The extract of the four entries as recorded in Ex.D2 has been proved by the statement of Ram Chander (DW-1) Peon, Subsidiary Health Centre, Bilaspur. He has proved the entry Ex.D2. It is not shown that the person examined by the Doctor is different from the petitioner. The extract of the four entries as recorded in Ex.D2 has been proved by the statement of Ram Chander (DW-1) Peon, Subsidiary Health Centre, Bilaspur. He has proved the entry Ex.D2. In my view the learned lower Appellate Court rightly observed that he being the peon posted at the Subsidiary Health Centre, Bilaspur, was not fit to prove the handwriting and signature of the Doctor, who wrote the entry in the out-patient department register. Besides, the learned Appellate Court also referred to the identification mark of the petitioner to establish his identity. In my view, the identity of the petitioner, therefore, stands clearly established and there is no material infirmity or irregularity in the findings of the Courts below in this regard which would require intervention by this Court. 11. The contention that the tractor started from Barnala at 9 p.m. and the accident took place at the distance of 50 k.m. from Barnala at 9.30 p.m. which would be indicative of the fact that the tractor was going at a very high speed and was being driven in a rash and negligent manner, is also without any merit. It is on record that the persons who were riding the tractor were dealing in the business of selling and buying buffaloes and they were mere agricultural peasants and living in the villages. Therefore, it is not expected from them that they would give precise time at which they started from Barnala. In this situation the time that has been given as 9 p.m. when tractor started is only round about time at which they might have started. Therefore, to expect from such persons to give the time of starting from Barnala with exact precision is ruled out, as it is not possible. Therefore, this is hardly a circumstance to show that the tractor was going at a very fast speed and that it had covered a distance of 50 km. in half an hour from Barnala to the point at the place where the accident occurred. Therefore, not much weight can be given to this contention as is urged by the learned counsel for the petitioner to vitiate the case of the prosecution. 12. The fact that the truck struck the tractor-trolley on the rear side is also quite insignificant. in half an hour from Barnala to the point at the place where the accident occurred. Therefore, not much weight can be given to this contention as is urged by the learned counsel for the petitioner to vitiate the case of the prosecution. 12. The fact that the truck struck the tractor-trolley on the rear side is also quite insignificant. The prosecution witnesses have deposed about the manner in which accident had occurred. Dharam Chand (PW-2) who is the complainant has supported the prosecution case in all its material aspects. He has proved the inquest report of Zora Singh and Kishan Singh Ex.PW2/B and Ex.PW2/C respectively. Besides, Mewa Singh (PW-3) and Binder Kumar (PW-4), the injured eye-witnesses have also supported the prosecution case in all material aspects and corroborated the statement of Dharam Chand (PW-2). Therefore, the manner in which the accident took place has been proved on record by the witnesses. It was rightly held by the Courts below that the accident was caused due to the rash and negligent driving of the truck driver i.e. by the petitioners and I feel no ground to interfere with the well considered judgment and order of the conviction recorded by both the Courts below. It is, however, noticed that the petitioner has undergone the travails of prosecution and trial from the date of occurrence which occurred on 11.1.1989, the present revision petition was admited on 8.4.1993 and the recovery of fine was ordered to be suspended and the petitioner was granted bail to the satisfaction of Chief Judicial Magistrate/Duty Magistrate, Faridkot. For the travail for the prosecution and trial, which the petitioner has undertaken for all these years, I feel that no useful purpose will be served by now sending him to custody. He was sentenced to rigorous imprisonment for one year and fine of Rs. 250/- for the offence under Section 304-A Indian Penal Code, besides the other sentences which were to run concurrently. The petitioner has undergone some sentence and since I am of the view that no useful purpose would be served in sending him to custody, the sentence of imprisonment is reduced to that already undergone. 250/- for the offence under Section 304-A Indian Penal Code, besides the other sentences which were to run concurrently. The petitioner has undergone some sentence and since I am of the view that no useful purpose would be served in sending him to custody, the sentence of imprisonment is reduced to that already undergone. However, it would be appropriate to meet the ends of justice that the petitioner pays to the legal heirs of the deceased/victims some amount as compensation in terms of Section 357(3) Criminal Procedure Code In Hari Kishan & State of Haryana v. Sukhbir Singh and others, AIR 1988 Supreme Court 2127 the injured should be compensated monetarily. The Honble Supreme Court in the said case held that in addition to conviction, the Court may order the accused to pay some amount by way of compensation to the victim, who has suffered by the action of the accused. This power of the Court to award compensation has been held as not ancillary to other sentences but is in addition thereto and is intended to do someting to re-assure the victim that he is not forgotten in the criminal justice system. It is a measure of responding appropriately to the crime as well of reconciling the victim with the offfender. It is, to some extent, a constructive approach to crimes and is indeed a step forward in our criminal justice system. The Apex Court recommended to all Courts to exercise this power liberally so as to meet the ends of justice. Section 357(3) Criminal Procedure Code reads as under:- "When a Court imposes a sentence of which fine does not form a part, the Court may, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the acused person has been so sentenced." 13. The perusal of the above shows that when Court imposes a sentence of which fine does not form a part, the Court may when passing the judgment, order the accused persons to pay by way of compensation to the person who has suffered any loss or injury. The perusal of the above shows that when Court imposes a sentence of which fine does not form a part, the Court may when passing the judgment, order the accused persons to pay by way of compensation to the person who has suffered any loss or injury. In this view of the matter, the order imposing the sentence of fine is set aside as to award the compensation under Section 357(3) Criminal Procedure Code the fine is not to form part of sentence. 14. Keeping in view the above observation, I deem it appropriate to direct the petitioner to deposit in the Court of learned Chief Judicial Magistrate Faridkot a sum of Rs. 30,000/- and the learned Chief Judicial Magistrate shall disburse an amount of Rs. 15,000/- each to the legal representatives of the two deceased/victims and in any case shall inform them of the order. 15. In view of the above discussion, the revision-petition is disposed of by maintaining the order of conviction but reducing the sentence of imprisonment to that already undergone. However, in terms of section 357(3) Criminal Procedure Code, the legal heirs of the deceased victims shall be entitled to compensation of Rs. 15,000/- each from the amount of Rs. 30,000/- to be deposited by the petitioner. Order accordingly.