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2010 DIGILAW 2947 (PNJ)

Bal Kishan v. State of Punjab

2010-10-26

A.N.JINDAL

body2010
JUDGMENT A.N. Jindal, J. (Oral) - The accused petitioner Bal Kishan, referred as the accused, challenged the legality of the judgment dated 20.07.2005 passed by Additional Sessions Judge, Ludhiana, dismissing the appeal against the judgment dated 04.01.2005 convicting and sentencing the accused to undergo R.I. for one year and fine of Rs. 100/- under Section 304-A Indian Penal Code and to undergo R.I. for six months and fine of Rs. 100/- under Section 279 Indian Penal Code. 2. In nutshell the facts of the case are that on 18.11.1992 at 3.00 P.M., the complainant along with Ajit Singh were sitting in the workshop of Gurpreet Acrot, Noorwala Chowk, G.T. Road, Ludhiana. At that time one cyclist had tried to cross Noorwala Road. In the meantime, the accused while driving the bus belonging to Pepsu Roadways Transport Company, Patiala bearing No. PB-11B/9369 came from Jalandhar bye pass and struck against the cyclist who suffered injuries. When they were taking the cyclist to the hospital, he expired on the way. On the aforesaid statement made by PW-3 Kabul Singh, the case was registered and investigated. On completion of investigation, challan against the accused was presented in the Court. He was charged for the offences under Sections 279/304-A Indian Penal Code. 3. The prosecution in order to substantiate the charges examined nine witnesses including Kabul Singh (complainant) PW-3, Ajit singh (alleged witness) PW-4. The trial ended in conviction. H?s appeal also failed. 4. Both the courts below appear to have not taken correct view of the matter. The occurrence had taken place at 3.00 P.M. on 18.11.1992 and the F.I.R. was recorded on the basis of statement Ex. PW-5/A at 6.05 P.M. Neither the statement Ex. PW-5/A nor the F.I.R. Ex. PW-5/C contained the name of the accused as well as the name of the deceased. No doctor, who conducted the post mortem examination of the deceased has been examined in order to prove that Lal Singh S/o Nanak Singh had died in the accident. 5. Any way, the inquest report indicates that the deceased was old man aged about 60 years and having a weak physique. The Ruqa further indicates that the deceased had tried to cross the road. 5. Any way, the inquest report indicates that the deceased was old man aged about 60 years and having a weak physique. The Ruqa further indicates that the deceased had tried to cross the road. No such evidence had been produced by the prosecution that deceased who was coming from the side lane had taken precaution for looking over the vehicles passing on the main road before crossing the road. Had he taken such precautions before crossing the road then the accident could be averted. It was not the pedestrian or the zebra crossing for which the accused was to take precautions. 6. Further more the identity of the accused is also doubtful in the case. In order to prove the identity of the accused, the prosecution has examined two witnesses namely Kabul Singh PW-3 and Ajit Singh PW-4. Kabul Singh was examined in chief on 29.10.2001 but he was not tendered for cross examination, as such, his statement is bound to be taken out of consideration. 7. Now I am left with the sole testimony of Ajit Singh. This witness though has stated in the examination in chief that the accused was driving the vehicle but from his entire statement, it comes out that the accused after causing the accident did not come out of the truck and left the place. Ajit Singh admits that the accused did not come down from the truck. He has also not stated that he had gone to the bus to see him as to who was the driver, that is the reason, he did not disclose the name of the driver to the police. The presence of Ajit Singh is doubtful at the spot. No hospital record has been proved in order to establish that Ajit Singh was the person accompanying the deceased to the hospital. The statement of PW-4 Ajit Singh is not worth reliance when he states that when he saw the accident he did not raise hue and cry. He cannot tell, if the hospital authorities entered his name as the person accompanying the deceased. He does not know the number and name of the driver of the vehicle in which he had taken the deceased. He cannot tell as to which police Officer had come to the hospital. He admits that his statement was not recorded at the spot. He does not know the number and name of the driver of the vehicle in which he had taken the deceased. He cannot tell as to which police Officer had come to the hospital. He admits that his statement was not recorded at the spot. Had he been present along with Kabul Singh in the hospital then Investigating Officer must have recorded his statement also. It is also pertinent to mention here that the examination in chief of Ajit Singh was recorded in two instalments. In the first statement in the Court, he did not utter a word if the accused was rash and negligent or he was driving the bus at a high speed but when he was examined again on 12.2.98 then he improved his statement that it was the accused who was driving the vehicle rashly and negligently. This factual situation impresses upon the Court to hold that with the intervention of some reasons known to the prosecution, the witness improved and changed his statement which could be treated as a strong reason to disbelieve his testimony. That apart no corroborative evidence had been led by the prosecution in order to prove rashness and negligence of the accused. 8. This witness was also not asked a question, if the person who had died in the accident was Lal Singh S/o Nanak Chand regarding whom the charge was framed against him. Nothing has come on the record in order to establish if Lal Singh S/o Nanak Chand had died on account of the fault on the part of the accused. Even PW-5 ASI Jaspal Singh has not uttered a word that he conducted the autopsy on the body of Lal Singh. 9. The trial Court as well the Appellate Court have not taken note of the aforesaid circumstances of the case and the impugned judgment being based on misappreciation and misreading of the evidence, has resulted into miscarriage of justice warranting interference by this Court. 10. For the aforesaid reasons this appeal is accepted. The impugned judgment is set aside and the accused is acquitted of the charges framed against him and is directed to be set at liberty forthwith. The bail bond and surety bond furnished by him stand discharged and fine deposited be refunded. .