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2009 DIGILAW 1134 (PNJ)

Gurcharan Singh v. State of Punjab

2009-07-13

HARBANS LAL

body2009
JUDGMENT Harbans Lal,J. - This petition has been preferred against the judgment dated 12.11.1994 passed by the Court of learned Additional Sessions Judge, Faridkot whereby he dismissed the appeal filed against the judgment/order of sentence dated 12.7.1991 rendered by the Court of learned Judicial Magistrate Ist Class, Moga, whereby he convicted and sentenced Gurcharan Singh accused to undergo rigorous imprisonment for a period of year and to pay a fine of Rs. 500/- under Section 304-A Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for one month and further sentenced him to undergo rigorous imprisonment for three months under Section 279 Indian Penal Code with a further direction that both the sentences shall run concurrently. 2. Shortly put the facts of the prosecution case are that on 20.2.1987 Mohan Singh made a statement before the police that he and his brothers Darshan Singh and Gopal Singh, his father Kapoor Singh and his son Nirmal Singh were returning home after attending the marriage ceremony. His father Kapoor Singh, brother Gopal Singh and son Nirmal Singh were going ahead of him as well as his brother Darshan Singh. Around 8.00 P.M when they covered a distance of about 100 yards beyond the bridge of the seepage drain towards Baghapurana, meanwhile, a bus bearing registration No. PJG-3117 of Punjab Roadway being driven by Gurcharan Singh in a very rash and negligent manner came from Baghapurana side at a very fast speed. The bus went out of drivers control and thus the same ran over his father Kapoor Singh, his brother Gopal Singh and his son Nirmal Singh, as a result of which, his father Kapoor Singh and brother Gopal Singh died at the spot, whereas his son Nirmal Singh was seriously injured. On being taken to the Civil Hospital, he was also declared dead. The bus had rolled down into the ditches. On the basis of this statement, the case was registered. Accused was arrested. After observing usual formalities and on completion of investigation, the charge-sheet was laid in the Court for trial of the accused under Section 304-A/279 of Indian Penal Code. 3. The accused was charged under Sections 304-A/279 of Indian Penal Code, to which he did not pleaded guilty and claimed trial. Accused was arrested. After observing usual formalities and on completion of investigation, the charge-sheet was laid in the Court for trial of the accused under Section 304-A/279 of Indian Penal Code. 3. The accused was charged under Sections 304-A/279 of Indian Penal Code, to which he did not pleaded guilty and claimed trial. To bring home - guilt against the accused, the prosecution examined PW-1 Mohan Singh, PW-2 Darshan Singh, PW3 Karnail Singh Clerk of Punjab Roadways Moga, PW-4 Darshan Singh Driver, PW-5 Dr. Tejinder Kumar Gupta, PW-6 Dr. Brij Mohan Bansal, PW-7 Manjit Singh, PW-8 Inspector Manmohan Singh. When examined under Section 313 of Criminal Procedure Code, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. In defence, he examined DW-1 Manjit Singh Constable and DW-2 Gulzar Singh Head Constable. 4. After hearing the learned Assistant Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he went up in appeal, which was dismissed by the Court of learned Additional Sessions Judge, Faridkot. Being undaunted and dissatisfied with the judgments recorded by both the Courts below, he has preferred this revision. 5. I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection. To begin with, the learned counsel for the petitioner maintained that Manjit Singh Constable as well as Gulzar Singh Head Constable PWs, who were guarding the bus on the alleged day of occurrence having been held back by the prosecution from the trial, the petitioner has been prejudiced in his right to cross-examine them. This contention is unacceptable for the reason that prosecution cannot be forced to examine each and every witness cited by it. It is an accredited rule of law that the evidence is to be weighed and the number of witnesses is not to be counted. This contention is unacceptable for the reason that prosecution cannot be forced to examine each and every witness cited by it. It is an accredited rule of law that the evidence is to be weighed and the number of witnesses is not to be counted. Furthermore, as ruled by the Apex Court in re :- Masalti v. State of UP, AIR 1965 Supreme Court 202, "it is undoubtedly, the duty of the prosecution to lay before the Court all material evidence available to it, which is necessary for unfolding its case, but it would be unsound to lay down as a general rule that every witness must be examined, even though his evidence may not be very material or even, if it is known that he has been won over or terrorised." The same view was reiterated in the subsequent authority Bawa Hazi v. State of Kerala, AIR 1974 Supreme Court 902. 6. Learned counsel for the petitioner further canvased at the bar that Manjit Singh DW-1 as well as Gulzar Singh DW-2 have stated in one voice that the tractors in fact had come from the opposite side and when one tractor tried to cross the other, it hit the bus of the petitioner, as a result of which, the bus fell down into the ditches and the deceased came under the bus and died. 7. I have given a deep and thoughtful consideration to this submission. It is in the cross-examination of DW-1 Manjit Singh Constable that "I did not note down the number of tractor-trolly. The hook of the tractor-trolly got disjointed and due to that reason, the tractor driver sped away the tractor by leaving the trolly there and we did not make any effort to chase the tractor." The record is quite barren to show that the driver of such tractor was made to join the investigation. In the absence of such evidence it is very difficult to believe the defence verison projected by this witness. He was deployed as a guard with the Bus in question. That being so, it was not a tremendous task for the petitioner to woo this witness to depose in his favour as they both were working on the same bus. In the absence of such evidence it is very difficult to believe the defence verison projected by this witness. He was deployed as a guard with the Bus in question. That being so, it was not a tremendous task for the petitioner to woo this witness to depose in his favour as they both were working on the same bus. If the accident had occurred in the manner as suggested by this defence witness, in that case, this witness being a police official would have certainly narrated so before the investigator. This version having been unfolded for the first time in the Court can be hardly believed. 8. Coming to the evidence of DW-2 Gulzar Singh Head Constable, he has testified that he was occupying the rear seat. Under the stress of cross- examination, he has admitted in categoric and candid terms that "It is correct that the occupant of rear seat is unable to look the objects coming ahead of the vehicle in the burning lights of the vehicles approaching from afront." Even otherwise, it is a matter of common knowledge or common place experience that the passenger seated on the rear seat would not be able to see the objects coming in front of the moving bus, particularly when the vehicle with glaring lights are coming from the opposite direction. So, by no stretch of imagination, he would have witnessed the manner in which the accident had taken place. To add further to it, he having been detailed on the stated Bus, he would have been a sympathiser of the petitioner. As such, in all human probabilities, he would have been all out to save the petitioner from the clutches of prosecution. This apart, there is nothing on the record to show that he had narrated the story projected by him before the investigator. Consequently, it would be putting too much premium on his testimony to believe it. 9. It is further argued on behalf of the petitioner that the prosecution has sought to place abundant reliance upon the evidence tendered by PW-1 Mohan Singh as well as PW-2 Darshan Singh, but to the utter dismay of the prosecution, they both being inter-related, their testimony cannot be made the basis for conviction. This argument is hard to swallow. By now it is beyond cavil that relation-ship is not a factor to affect the testimony of a witness. This argument is hard to swallow. By now it is beyond cavil that relation-ship is not a factor to affect the testimony of a witness. In Re :- Gulichand and others v. State of Rajasthan, AIR 1974 Supreme Court 276, also it has been held. that a mere fact that a witness is a relation of a victim is not sufficient to discard his testimony. Arguendo, the learned counsel for the petitioner could not point out even a single infirmity or discrepancy or contradiction or omission in the statements of afore-mentioned witnesses. Of course, when the prosecution case hinges upon the evidence of mere relation witnesses, the same has to be scrutinized with due care and caution. Herein, the evidence of the said witnesses being impeccable and free from any infirmity, it would not be risky to rely upon the same. Hence, this contention too being devoid of any merit is jettisoned. 10. It is further agitated at the bar on behalf of the petitioner that the prosecution has not examined any injured passenger as a witness, which further weakens the prosecution version. This contention cuts no ice. As already noticed, the prosecution is not bound to examine all its witnesses. Their examination would have resulted in mere duplication of evidence on the record. On putting the prosecution evidence in the crucible of probabilities, it transpires that it stands the test of judicial scrutiny. So, it can be relied upon without any demur. As such, the conviction is maintained. 11. Learned counsel for the petitioner made misericordious submission for release of the petitioner on probation of good conduct. On giving a careful consideration to the entire matter, I and that if this submission is accepted, the conscience of the friends and relatives of the three deceased persons would be shocked and they would be having a feeling that justice has not been done. In the words of Justice Brennan of the United States Supreme Court "nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with, but injustice makes us want to pull things down." That being so, this prayer is declined. However, taking into consideration the fact that this occurrence is more than 21 years old and the petitioner is facing the agony of trial since pretty long time, the sentence is hereby reduced to six months. Illness we can put up with, but injustice makes us want to pull things down." That being so, this prayer is declined. However, taking into consideration the fact that this occurrence is more than 21 years old and the petitioner is facing the agony of trial since pretty long time, the sentence is hereby reduced to six months. With this modification in the order of sentence, this revision petition is dismissed. 12. Registry is directed to send a copy of this judgment to the Court of Learned Chief Judicial Magistrate, Moga for taking necessary steps to procure the presence of the petitioner and to send him to the prison for serving the unexpired period of his sentence. Petition dismissed.