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2013 DIGILAW 1034 (PNJ)

Vijay Kumar v. State of Punjab

2013-08-12

JITENDRA CHAUHAN

body2013
Judgment Jitendra Chauhan, J. (Oral) The present revision petition has been filed against the judgment dated 3.10.2002, passed by the learned Additional Sessions Judge, Patiala. Vide the said judgment of learned ASJ, the judgment and order dated 5.5.2000, passed by learned Judicial Magistrate, 1st Class, Patiala, convicting and sentencing the petitioner to undergo rigorous imprisonment for one year and to pay fine of Rs.500/under Section 304A of the Indian Penal Code and to undergo RI for six months under Section 279 of IPC, was confirmed. 2. The facts of the case has been reflected in para No.2 of the impugned judgment and order dated 5.5.2000, which are as under: “On 17.3.1996 a telephonic message was received from Naik Lekh Raj, CMP Patiala that Captain Rajinder Dabe, 114 Armed Engineer Regt. and his wife have suffered injuries in an accident and they are admitted in the Military Hospital. On receiving this information ASI Mehar Singh alongwith other police officials reached at Military Hospital, Patiala and obtained the opinion of the Doctor, whether the injured is in a fit condition to make the statement. The doctor stated that Capt. Rajinder Dabe is in fit condition to make the statement and further stated that his wife Ashmi Dabe is dead. There Constable Surya Kant 114 Armed Engineer Regt. met with the police party and got recorded his statement. He stated that on previous day, he had went to 22 No. Phatak, Patiala for shopping and when after purchasing, he reached near Luxmi Place, it was about 7.30 P.M. In front of him, Capt. Rajinder Dabe alongwith his wife were going from 22 No.Phatak to Leela Bhawan Chowk, in the meantime, from Leela Bhawan side, an Ambassador Car bearing No.PND 3940 which was driven by a young man came at very rash and negligent speed and without blowing any horn, he took the Car towards the wrong side and struck against the motorcycle of Capt., as a result of which, Capt. and his wife received multiple injuries. Later on, he came to know of the name of the driver as Vijay Kumar son of Ram Ji Dass resident of Kalyan. In the meanwhile, at the spot, Capt. M.S.Randhawa and Rajiv Naroola came and they shifted the injured persons to the Military Hospital, on the basis of this statement Ex.PA, a case was registered against the accused. Investigation of the case was started. In the meanwhile, at the spot, Capt. M.S.Randhawa and Rajiv Naroola came and they shifted the injured persons to the Military Hospital, on the basis of this statement Ex.PA, a case was registered against the accused. Investigation of the case was started. Investigating Officer went to the spot. Prepared the site plan. The photographs of the place of occurrence were taken. Motorcycle alongwith registration No. was taken into possession. Dead body of Ashmi Dabe was shifted to Rajindra Hospital, Patiala for postmortem. After postmortem, the dead body was handed over to the relatives of the deceased. During investigation, on 20.3.1996, the accused was arrested. 3. After completion of the investigation, the challan was presented in the Court. The accused was charged under Sections 279/304A of the Indian Penal Code, to which he did not plead guilty and claimed trial. 4. In order to substantiate the charges, the prosecution has examined the following witnesses: PW1 Capt. Rajinder Dabe, eye witness as well as injured. He was driving the motorcycle at the time of accident. He identified the driver of the car. PW2 Naik Surya Kant, eye witnesses as well as the complainant, lodged the FIR. PW3 Dr.SS Oberoi, who proved the postmortem report of the deceased Ashmi Dabe. 5. When examined under Section 313 of the Code of Criminal Procedure, the accused-petitioner denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded false implication. In defence, he examined DW1 Wazir Chand, DW2 Karamjit Singh and closed the evidence. 6. The learned trial Court held that due to the rash and negligent driving of the accused, Dr.Ashmi Dabe lost her life and Capt. Rajinder Dabe received injuries. The prosecution proved these facts against the accused beyond reasonable doubt. The petitioner was convicted and sentenced as noticed at the outset by the Trial Court. 7. Feeling dissatisfied with the same, the accused-petitioner preferred appeal against the judgment and order dated 5.5.2000, which was dismissed by the learned Additional Sessions Judge, Patiala vide judgment dated 3.10.2002. 8. Aggrieved against the said judgments and order, passed by the courts below, the petitioner has preferred the present criminal revision, which was admitted on 3.9.2004. 9. Learned counsel for the appellant contended that the learned trial court has committed a grave error while convicting the petitioner. He submits that the investigating officer was not examined. 8. Aggrieved against the said judgments and order, passed by the courts below, the petitioner has preferred the present criminal revision, which was admitted on 3.9.2004. 9. Learned counsel for the appellant contended that the learned trial court has committed a grave error while convicting the petitioner. He submits that the investigating officer was not examined. He further submits that the site plan, which is essential, is not proved on record. He further submits that the car was stationed at the place of accident and the motorcyclist himself dashed his vehicle in the car. He further submits that the motorcyclist was drunk. He further submits that there is delay in lodging the FIR. In view of the same, the present petitioner may be acquitted by giving him the benefit of doubt. 9. On the other hand, the learned State counsel submits that the prosecution case is fully established. As per the medical record, deceased Dr.Ashmi Dabe succumbed to the injuries. Her husband also suffered multiple injuries on his person. 10. I have heard the learned counsel for the parties and perused the record carefully. 11. In the present case, the accident is proved on record. PW1, Rajinder Dabe, injured, who was an eye witness, fully corroborated the prosecution case. In his statement, he deposed that on 17.3.1996, at about 7.30 P.M. he had gone to Phatak No.22 on his motorcycle bearing No.MSK5207 and his wife Ashima Dabe was pillion rider. While he was heading towards Leela Bhawan, in front of Luxmi Palace, one Ambassador car bearing registration no.PND3940 came from the opposite direction at a very high speed and on the wrong side of the road. The car struck against his motorcycle, as a result of which, he and his wife fell down and received injuries. His wife expired due to injuries. He identified the accused-petitioner, who was driving the car at the time of occurrence, in the court. PW2 Surya Kant fully corroborated the ipse dixit of PW Rajinder Dabe. No enmity is either alleged or proved against the accused. Both the witnesses have vividly described the incident. Minor discrepancies do not make his deposition unreliable. 12. PW3 Dr.SS Oberoi had conducted the postmortem on the body of the deceased Ashima Dabe and opined that the cause of death was shock and hemorrhage, due to injuries described above. No enmity is either alleged or proved against the accused. Both the witnesses have vividly described the incident. Minor discrepancies do not make his deposition unreliable. 12. PW3 Dr.SS Oberoi had conducted the postmortem on the body of the deceased Ashima Dabe and opined that the cause of death was shock and hemorrhage, due to injuries described above. All the injuries were antemortem in nature and were sufficient to cause death in an ordinary course. He also proved on record the postmortem report Ex.PB, the police request Ex.PC and endorsement Ex.PC/A. 13. The delay in lodging the FIR is not fatal to the prosecution case, because in such like cases, the first concern is only to rush the injured to the hospital and not for the registration of the case. In the present case, both husband and wife were injured and were admitted in hospital. No one else there was interested in lodging the first information report with the police. 14. The prosecution case is fully supported by the eye witnesses PW1 Capt. Rajender Dabe, who suffered injuries in the accident and PW2 Naik Surya Kant, who was also an eye witness and lodged the present FIR. The accident is proved on record. In view of this, the non-examination of the investigating Officer is not fatal to the prosecution case. 15. The scaled site plan is only a piece of circumstantial evidence. Eye witnesses which provide direct evidence have been examined. If the scaled plan is not proved or Investigating Officer is not examined, it will not falsify the testimonies of the eye witnesses. 16. The argument of the learned counsel for the petitioner that the driver of the motorcycle was drunk is an after thought. Moreover, the suggestion put by the defence counsel to PW1 Capt. Rajinder Dabe that car driver was driving the car on correct side, is admission of the presence of the car at the place of the accident at the relevant time. When the accident is proved by examining the injured witness and eye witness, non-examination of the Investigating Officer will not cause any prejudice to the accused. In Behari Prasad vs. State of Bihar 1996(2) Supreme Court Cases 317, the Apex Court has held that non-examination of the Investigating Officer is not fatal to the prosecution case, especially when no prejudice is likely to be suffered by the accused. In Behari Prasad vs. State of Bihar 1996(2) Supreme Court Cases 317, the Apex Court has held that non-examination of the Investigating Officer is not fatal to the prosecution case, especially when no prejudice is likely to be suffered by the accused. It would be relevant to mention that ASI Mehar Singh, the Investigating Officer of this case retired from the department as per report mentioned behind the summons issued for 21.2.2000. The Trial Court thus closed the evidence by order dated 21.2.2000. 17. Learned counsel further argued that the punishment awarded is harsh, which may be reduced. The argument has no force since there is an alarming rise in the number of road accidents in the recent years due to reckless driving resulting in loss of precious human lives. So, no lenient view can be taken in this case. 18. No other point has been argued by the either of the parties. 19. In view of the above, this Court finds no infirmity or illegality in the impugned judgments passed by the courts below. Accordingly, the present revision fails and is dismissed being devoid of any merit.