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2014 DIGILAW 1211 (PNJ)

Chander Bhan v. State of Haryana

2014-08-21

MAHAVIR S.CHAUHAN

body2014
Mahavir Singh Chauhan, J. 1. To challenge the judgment dated 09.03.2007 of the Court of learned Additional Sessions Judge, Sonepat, (for short 'appellate Court') whereby judgment of conviction dated 10.11.2005 and order of sentence dated 11.11.2005, passed by learned Additional Chief Judicial Magistrate, Sonepat (for short 'trial court') have been affirmed with the modification of reducing the substantive sentence of the petitioner, under Section 304-A of the Indian Penal Code, 1860 (for short 'IPC') from two years to one year rigorous imprisonment for driving vehicle bearing registration No. DL-1P/7315 on road in a rash and negligent manner, is under challenge in the instant criminal revision petition brought by the convict-petitioner. Respondent-State is contesting the revision petition. 2. I have heard learned counsel for the petitioner and learned Deputy Advocate General, Haryana for the respondent-State. 3. Learned counsel for the petitioner impugns the correctness of the aforesaid judgment of conviction and order of sentence on the plea that the learned trial Court has illegally and erroneously convicted and sentenced the petitioner even though no evidence of the occurrence is available on record and the learned appellate Court has also ignored this aspect of the matter. According to him, the Investigating Officer of the case as also the eye witness of the occurrence cited by the prosecution have not been examined and the only witness of occurrence namely Ashok Kumar (PW-2) who has been relied upon in proof of the factum of occurrence, has not been able to give correct time and manner of the occurrence and has admitted in his cross-examination that he was sitting behind driver's seat with his face backwards and that being so, he cannot be accepted to have witnessed the occurrence. 4. Learned Deputy Advocate General, Haryana, on the other hand, defends the impugned judgment and order and submits that in the evidence available on record, occurrence has been proved beyond any manner of doubt and non-examination of the Investigating Officer and other eye witnesses of the occurrence is inconsequential. 5. 4. Learned Deputy Advocate General, Haryana, on the other hand, defends the impugned judgment and order and submits that in the evidence available on record, occurrence has been proved beyond any manner of doubt and non-examination of the Investigating Officer and other eye witnesses of the occurrence is inconsequential. 5. Case of the prosecution before the learned trial Court was that the petitioner was driving a bus bearing registration No. DL-1P/7315 on 29.12.1999 in a rash and negligent manner so as to endanger human life and personal safety of others and in the process, caused, simple injuries to Amit, Anil, Rajesh Kumar, Satpal, Anil son of Tilak Ram, Sunder Lal, Balwan Singh, Ashok Kumar and complainant Sabir and, grievous injuries to Ashok Kumar and complainant Sabir besides causing death of one Kanwar Lal. 6. According to the prosecution story, the complainant-Sabir was a driver on a tempo bearing registration No. HR46A/5195. At about 8:00 A.M. on 29.12.1999, after making the passengers to sit in his tempo, when he reached near Atul Nursery, Murthal Road, Sonepat, a bus bearing registration No. DL-1P/7315 (for short 'offending bus') being driven by the petitioner in a rash and negligent manner, came from the opposite side and the driver of that bus banged the bus into the tempo, resulting into injuries on the persons of the aforesaid persons and causing death of one Kanwar Lal. 7. On the basis of a statement suffered by complainant-Sabir before the Investigating Officer, a formal First Information Report (for short 'FIR') was recorded. Matter was investigated into. Petitioner was challaned and charged for the offences punishable under Sections 279/337/338/304-A, IPC. Petitioner pleaded not guilty to the charge and claimed trial. 8. In order to prove guilt of the petitioner, prosecution examined Constable Pardeep Kumar as PW-1, Ashok as (PW-2), Rattan Lal as PW-3, Dr. V.K. Gupta as PW-4 and ASI Rajiv Kumar as PW-5. 9. All the incriminating circumstances appearing in the evidence of the prosecution were put to the petitioner in his statement recorded under Section313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). Petitioner denied all these circumstances and reiterated plea of his innocence and false implication but did not lead any evidence in his defence. 10. 9. All the incriminating circumstances appearing in the evidence of the prosecution were put to the petitioner in his statement recorded under Section313 of the Code of Criminal Procedure, 1973 (for short 'Cr.P.C.'). Petitioner denied all these circumstances and reiterated plea of his innocence and false implication but did not lead any evidence in his defence. 10. Court of learned Additional Chief Judicial Magistrate, Sonepat on appraisal of the evidence in the light of submissions made at the bar, reached a conclusion that the prosecution was able to prove guilt of the petitioner beyond reasonable doubt and, accordingly, convicted and sentenced the petitioner to rigorous imprisonment for a period of six months with fine amounting to ` 500/- and in default of payment of fine, to further rigorous imprisonment for a period of ten days under Section 337, IPC; and, rigorous imprisonment for a period of two years with fine amounting to ` 2,000/- and in default of payment of fine to further rigorous imprisonment for one month under Section 304-A, IPC, vide judgment of conviction dated 10.11.2005 and order of sentence dated 11.11.2005. 11. Findings so recorded by the learned trial Court were affirmed by the learned appellate court vide judgment dated 09.03.2007, however, substantive sentence awarded to the petitioner under Section 304-A, IPC, was reduced to one year rigorous imprisonment. 12. As pointed out by learned counsel for the petitioner, the prosecution did not examine the Investigating Officer of the case and that being so, the site plan of the place of occurrence and other important documents have remained unproved. Not only this, in proof of the occurrence the only witness examined on behalf of the prosecution, namely Ashok Kumar (PW-2) in his chief-examination, has supported the case of the prosecution but as regards the rash and negligent driving of the petitioner, he has only stated that the driver was driving the bus in a rash and negligent manner but has admitted in his cross-examination that he was sitting behind the driver's seat with his face backwards and that being so, he cannot be accepted to have witnessed the occurrence as also the circumstances leading to it. Ashok Kumar (PW-2) has not stated as to what the petitioner was required to do which was not done by him or what was done by him which he was not expected to do. Ashok Kumar (PW-2) has not stated as to what the petitioner was required to do which was not done by him or what was done by him which he was not expected to do. Only by re-production of language of Section 279, IPC, a conclusion of rash and negligent driving cannot be reached. Not only this, as per case of prosecution, the alleged occurrence took place at 8 A.M. on 29.12.1999 but according to Ashok Kumar (PW-2) time of the occurrence was 8.00 P.M. on 29.12.1999. However, he claims to have witnessed the occurrence but in cross-examination he has admitted that he was occupying a seat in the tempo behind the seat of the driver with his face backwards. As per the case of the prosecution, the offending bus came from the opposite side. Ashok Kumar (PW-2) cannot be accepted to have witnessed the occurrence having his face towards back of the tempo. No other witness of the occurrence has been examined by the prosecution. 13. In view of the aforestated situation, case of the prosecution is a case of no evidence but the learned trial Court, as also the learned appellate Court, have turned a blind eye towards failure of the prosecution to establish the involvement of the petitioner in the occurrence and have based the findings of conviction on conjectures and surmises, even though the prosecution was required to prove the guilt of the petitioner beyond reasonable doubt. In the consequence, I accept the revision petition and set aside the judgment dated 09.03.2007, passed by learned Additional Sessions Judge, Sonepat thereby affirming the judgment of conviction/order of sentence as also the judgment of conviction dated 10.11.2005 /order of sentence dated 11.11.2005, passed by learned Additional Chief Judicial Magistrate, Sonepat, and acquit the petitioner of the offences of which he has been convicted. Amount of fine if deposited by the petitioner, shall be refunded to him as per procedure known to law. The petitioner is on bail, his bail bonds are discharged.