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2007 DIGILAW 1520 (PNJ)

Tarsem Singh v. State Of Haryana

2007-08-22

A.N.JINDAL

body2007
Judgment 1. Accused-petitioner Tarsem singh (hereinafter referred to as the petitioner) was convicted under sections 279/337/304-A, IPC and sentenced to undergo rigorous imprisonment for six months under Sec.279/337, IPC and also to undergo rigorous imprisonment for one year under Sec.304-A, IPC, by the Court of judicial Magistrate 1st Class, Karnal, vide its order dated 14-2-1997 and his appeal was dismissed by the learned Additional sessions Judge, Karnal, vide its order dated 14-7-1998. 2. The facts in brief are that on 2-5-1999, at about 9.00 a. m. complainant Vikram singh while driving his tractor, trolly bearing No. HYM-5651 was going to Nelokheri grain Market. When his tractor reached near village Ariepur, then some persons sat on his tractor and two persons sat along his side and his father Sardul Singh was sitting in the trolly. When his tractor trolly reached near turning point of the bus stand nelokheri, then the petitioner while driving his bus bearing registration No. DEP-9640, rashly and negligently struck into the tractor when he was turning the same towards mandi, as a result of which his father Sardul singh fell down and the rear tyre of the bus ran over him. Due to the impact of the accident, the tractor was detached from the trolly and was dragged by the bus for some distance. The other passengers sitting in the tractor-trolly also sustained injuries. It was further disclosed by the complainant in his statement that Gurmukh Singh son of joginder Singh and Sukhvinder Singh son of Gurbax Singh residents of village Sher Pur and Kalai respectively, witnessed the occurrence. On the aforesaid statement of the complainant, a case was registered against the petitioner, which was followed by the investigation. Consequently, completion of the investigation was followed by a report under Sec.173, Cr. P. C. against the petitioner. 3. Charge under Sec.279/337/304-A, ipc was framed against the petitioner, to which he pleaded not guilty and claimed trial. 4. The prosecution, in order to substantiate the charge against the petitioner, examined Vikram Singh complainant (PW 1), dr. S. L. Chhabra (PW 2), Bhawani Shanker (PW 3) and Wazir Chand (PW 4 ). 5. When examined under Sec.313, cr. P. C. the petitioner denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. 6. The trial ended in conviction, so as the appeal was also dismissed. Hence this revision petition. 7. S. L. Chhabra (PW 2), Bhawani Shanker (PW 3) and Wazir Chand (PW 4 ). 5. When examined under Sec.313, cr. P. C. the petitioner denied all the incriminating circumstances appearing against him and pleaded his false implication in the case. 6. The trial ended in conviction, so as the appeal was also dismissed. Hence this revision petition. 7. I have heard Mr. K. S. Dadwal, learned counsel for the petitioner, Mr. K. S. Godara, learned Deputy Advocate General, Haryana and perused the records of this case very carefully. 8. The main stake of the argument advanced by the learned counsel for the petitioner is that the bus was being driven by the petitioner on the high way, whereas the complainant was coming from the side lane, in this situation, the obligation was upon the complainant to first stop and look towards the ongoing vehicles on the high way before reaching the road, therefore, the fault did not lay with the petitioner but the accident took place as a result of rash and negligent driving of the complainant. 9. Having given my thoughtful consideration to this contention, i find some substance in it. The complainant was admittedly not a trained driver. According to him. he was having only learned licence but that too was also not produced by way of evidence. A learner could not drive the vehicle without affixing any proper plate on his vehicle regarding his learning of the vehicle. Secondly, the tractor-trolly was not meant to carry passengers but according to the complainant, he was carrying passengers in the tractor-trolly. He not only loaded the passengers in the trolly but also on the tractor itself, which could be also a source of disturbance to the driver, thereby creating obstruction in the movement of the tractor-trolly by him. Thirdly, there is no denying a fact that the complainant was bringing the tractor-trolly from the side lane and the petitioner was going on the highway. As per the testimony of the complainant, he had seen the petitioner coming with the bus from 80-90 yards, therefore, the obligation was on the part of the complainant to stop his tractor-trolly at the edge of the road and to see on going vehicle and not to take the tractor-trolly on the highway till the road is not clear. As per the testimony of the complainant, he had seen the petitioner coming with the bus from 80-90 yards, therefore, the obligation was on the part of the complainant to stop his tractor-trolly at the edge of the road and to see on going vehicle and not to take the tractor-trolly on the highway till the road is not clear. Thus, it appears that the complainant took the tractor-trolly on the road, therefore, the fault lies with the complainant and not the petitioner. 10. In any case, the case of the prosecution is based on the solitary statement of the complainant who is none else but the son of the deceased. As such, he could go to any extent to support the prosecution case so as to assure the conviction of the petitioner. Admittedly, Gurmukh Singh and sukhvinder Singh were the eye witnesses to the accident, but they were not examined by the prosecution for the reasons best known to it. 11. The matter does not end here, according to the complainant some persons had boarded the trolly and some had sat by his side, but none out of them came forward to support the prosecution case. Admittedly, due to the accident some occupants of the trolly also suffered injuries, but none of the injured came to disclose about the fault of the petitioner. 12. The next contention, advanced by the learned counsel for the petitioner is that the Investigating Officer has not been examined in the case. While arguing that non-examination of the investigating officer as fatal to the prosecution case, the learned counsel referred to the judgment delivered by the Apex Court in case Nageshwar Sh. Krishna Chobe V/s. State of Maharashtra, AIR 1973 SC 165 : (1973 Cri LJ 235 ). 13. Having deliberated over the aforesaid contentions, I find some substance in the same. I have the testimony of Vikram complainant (PW 1) alone to unfold the prosecution version, but the same does not find corroboration from any other source. The best evidence to corroborate the testimony of Vikram complainant (PW 1) could have been any other witness or ASI Bhoop Singh investigating Officer, but surprisingly he was not examined. 14. Admittedly, there is no corroboration to the testimony of Vikram complainant (PW 1) who could be dubbed as an interested witness due to lack of corroboration. The best evidence to corroborate the testimony of Vikram complainant (PW 1) could have been any other witness or ASI Bhoop Singh investigating Officer, but surprisingly he was not examined. 14. Admittedly, there is no corroboration to the testimony of Vikram complainant (PW 1) who could be dubbed as an interested witness due to lack of corroboration. The investigating Officer was the material witness to lend corroboration who had visited the place of occurrence; seen the skid marks of the tyres; prepared the site plan of the place of occurrence; got the place of the occurrence and body photographed; examined the witnesses and made visual observations about the occurrence. He could explain after examining the site as to who was at fault. Thus, his non-examination materially affects the case. Certainly, it has been invariably observed that the Investigating Officer being not an eye witness, his non-examination could not be fatal to the prosecution, but, where corroboration is lacking and material documents including arrest of the accused, driving licence of the accused, disclosure statements, recovery memos and the visual observations regarding position of vehicles at the spot are to be proved, then certainly, his testimony could be treated as important piece of evidence and in the absence of any other corroboration, his evidence could be given importance. In case nageshwar Sh. Krishna Chobe V/s. State of maharashtra, AIR 1973 SC 165 : (1973 Cri lj 235), cited by the learned counsel for the petitioner, has gone further, wherein the apex Court while commenting upon the perfunctory investigation made by the Investigating Officer in case of accident, observed as under (Para 8) :- "the Investigating Officer unfortunately did not care to have taken the photographs of the position of the vehicle, the electric pole and the persons injured and dead as a result of the accident. He did not care even to take the measurement of the height of the curve, which in our view, was a very relevant factor. Nor did he care to get the vehicle examined by a mechanic for the purpose of ascertaining if its mechanism was in order and particularly if its brakes were working properly. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position; this is of little assistance in determining the question of the appellants guilt in the criminal trial. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position; this is of little assistance in determining the question of the appellants guilt in the criminal trial. " 15. Instant case is on a better footing as the Investigating Officer was not examined in this case. Consequently, non-examination of ASI Bhoop Singh would amount to a serious lapse/omission on the part of the prosecution. For want of him, major part of the investigation remained unproved. No plausible explanation has been given for withholding his examination. Thus, the necessary inference is that the petitioner has to be extended benefit on account of this serious lapse/omission on the part of the prosecution. Both the Courts below fell in error by ignoring the aforesaid aspects of the case, therefore, necessary interference in the impugned judgment has become inevitable. 16. Before parting with the judgment, it is required to be delineated that the day in and the day out, enormous increase in the accident cases is visualised. The ruthless driving made by untrained, uneducated and unchecked drivers under the influence of intoxicants renders the thousands of people dead and handicapped every day. The Government Agencies probably for having been equipped with inefficient and untrained officers and also busy with multifarious duties fail to check such unscrupulous elements and allow them to pass over the roads. Not only this, when the cases of such accident, which are brought to the notice of the investigating Agencies also result in acquittals due to inefficient and untrained Investigating Officers. They take the investigation in a very casual, careless and traditional manner. They do not try to probe while examining the place of occurrence, do not take the aid of Government expert or other officer like draftsmen or engineers to probe and who was to be put to dock, as to who was really at fault, negligent and rash. Some times, the people even driving carefully. heavy vehicles are condemned only for the reason and analogy that fault always lies on the heavy vehicle driver, therefore, it is expected from the Investigating officers handling the investigation to take the following necessary steps :- 1. To visit the spot promptly without wasting any time.2. To carefully inspect the place of occurrence; note down the material points with exact measurements in the site plan.3. To visit the spot promptly without wasting any time.2. To carefully inspect the place of occurrence; note down the material points with exact measurements in the site plan.3. To make measurements of the roads, kacha berms and to make mention of the turnings and bridges, if any, at the place of accident.4. To have photographs of the dead body, situation of the vehicles, extent of the damage to the vehicles and part of the vehicle which has been damaged without any delay. He would not leave it to the mechanic who may take note of the damage or defect of the machinery, which it may be carrying prior to or at the time of accident (at a later stage ).5. To note down the skid marks, if any, at the spot, join the expert to have opinion about of the speed of the vehicles.6. To make mention of the documents or other articles which were recovered from the spot or from the vehicles involved in the accident.7. To get the place of occurrence examined by an expert, if he deems it appropriate. 17. Due care by the Investigating Officers of the aforesaid points at the time of investigation, may drive the Courts to reach the right conclusion for determining the guilt of the accused. It is also expected that the police officers, as well as the Advocate Generals, sitting at the helm of affairs would make it convenient to apprise of the aforesaid directions to the concerned quarters. 18. For the foregoing reasons, the petition is accepted, the judgment of conviction and sentence is set aside and the petitioner is directed to be set at liberty. The amount of fine, if deposited by him, be refunded. Petition allowed.