Crl. Revn. No. 968 of 1996 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Case No. : Crl. Revn. No. 968 of 1996
Date of Decision : July 17, 2009
Ramesh Kumar .... Petitioner
Vs.
State of Haryana .... Respondent
CORAM : HON’BLE MR. JUSTICE L. N. MITTAL
* * *
Present : Mr. A. S. Virk, Advocate
for the petitioner.
Mr. Sidharth Sarup, AAG, Haryana.
* * * L. N. MITTAL, J. (Oral) :
Ramesh Kumar has filed this revision petition challenging his
conviction and sentence recorded by both the courts below.
According to the prosecution case, on 06.07.1992, complainant
Ram Chander along with his mother Yashoda Devi were going to Dehradun
to meet the complainant’s sister. They were present at Bus Stand Gurgaon
on Delhi booth, where Bus No. HR-26-A-1164 was parked. Complainant’s
mother started boarding the bus from front window, but the petitioner, who
was driver of the bus, suddenly started driving the bus and resultantly,
complainant’s mother fell down. The complainant requested bus driver to
stop the bus, but the driver sped away the bus. As a result of accident, both
Crl. Revn. No. 968 of 1996 2
legs of complainant’s mother were run over by the bus under the rear wheel
and she succumbed to her injuries in the hospital.
Learned Chief Judicial Magistrate, Gurgaon vide judgment
dated 04.09.1995, convicted the petitioner under Sections 279 and 304-A of
the Indian Penal Code (in short – IPC) and vide order dated 05.09.1995,
sentenced the petitioner to undergo rigorous imprisonment for one year and
to pay fine of Rs.2,000/- and in default thereof, to undergo simple
imprisonment for three months for offence under Section 304-A IPC and
also sentenced the petitioner to undergo rigorous imprisonment for three
months and to pay fine of Rs.500/- and in default thereof, to undergo simple
imprisonment for fifteen days for offence under Section 279 IPC. Both the
sentences were ordered to run concurrently. Appeal preferred by the
petitioner stands dismissed by learned Sessions Judge, Gurgaon vide
judgment dated 29.11.1996. Feeling still aggrieved, the instant revision
petition has been preferred by the convict.
I have heard learned counsel for the parties and perused the
case file.
Complainant Ram Chander and his brother-in-law Ramesh
Chand both eye-witnesses broadly supported the prosecution case. Other
evidence was also led by the prosecution.
Both the courts below have recorded concurrent finding of guilt
of the petitioner on appreciation of evidence. The said finding cannot be
said to be perverse or illegal so as to warrant interference at the hands of
this Court in exercise of revisional jurisdiction.
Learned counsel for the petitioner vehemently contended that
identity of the petitioner as driver of the offending bus at the time of
accident is not established. Name of the petitioner as driver was disclosed
to the police by PW Ramesh Chand. However, in the witness-box, Ramesh
Chand stated that he could not identify the bus driver. On the other hand,
Crl. Revn. No. 968 of 1996 3
Ram Chander complainant specifically identified the petitioner in the
Court to be the driver of the offending bus at the time of accident. Learned
counsel for the petitioner contended that the said identification in the Court
is no identification in the eyes of law because no test identification parade
was held. Reliance in support of this contention has been placed on various
judgments namely – a judgment of Hon’ble Supreme Court in the case of
Rameshwar Singh vs. State of J. and K. reported as AIR 1972
Supreme Court 102 (1), a judgment of Delhi High Court in the case of
Rattan Baxi vs. The State reported as 1998 (4) R.C.R. (Criminal) 108,
a judgment of this Court in the case of Sunder @ Suinder vs. State of
Haryana reported as 1999 (2) R.C.R. (Criminal) 554 and another
judgment of this Court in the case of State of Punjab vs. Balraj Singh
reported as 2000 (1) R.C.R. (Criminal) 822.
On the other hand, learned State counsel contended that
statement of Ram Chander establishes the identity of the petitioner as driver
of the offending bus. Relying on a judgment of Hon’ble Supreme Court in
the case of Mahabir vs. State of Delhi reported as 2008 (3) Recent
Criminal Reports 5, it was contended by learned State counsel that
identification of the accused in Court for the first time cannot be said to be
inadmissible in evidence.
Decision on identity of the accused is given on the basis of
facts and evidence of each case. In the instant case, the identity of the
petitioner as driver of the offending bus is fully proved from the testimony
of Ram Chander complainant. The complainant had no enmity with the
petitioner. There is no reason why he would falsely identify the petitioner
in the Court. In the case of Rattan Baxi (supra), the bus, after causing
the accident, was sped away without stopping at the spot. In addition to it,
the witness admitted in cross-examination that he could not identify the bus
Crl. Revn. No. 968 of 1996 4
driver at the spot. Consequently, it was held that the witness could not
have, therefore, identified the driver in the Court, if he had not identified the
driver at the spot. In the case of Balraj Singh (supra), there were other
infirmities also in the prosecution evidence. Name of the accused being the
driver of the offending truck was supplied to the police by the conductor.
However, the said conductor, who also slipped away from the spot, was not
located by the police, nor his statement was recorded. Moreover, that was a
case of appeal against acquittal, when the Court is slow to interfere with the
judgment of acquittal. The case of Rameshwar Singh (supra) was a case
under Sections 302 and 307 IPC and therefore, the question of identity of
accused involved in the said case cannot be said to be similar to identity of
the offending driver in the instant case of accident. In the case of Sunder
@ Suinder (supra) also, the petitioner was acquitted on the basis of
evidence in that case regarding identity. In the instant case, it is very
significant to notice that the bus was already present at the Bus Stand in
stationary condition and therefore, the complainant had ample time to see its
driver and could therefore, identify the bus driver in the Court. On facts and
evidence in the instant case, it cannot be said that identity of the petitioner
as driver of the offending bus is not established.
Learned counsel for the petitioner also contended that specific
questions were not put to the petitioner in his examination under Section
313 of the Code of Criminal Procedure (in short – Cr.P.C.) and therefore,
the conviction cannot be sustained. Reliance in support of this contention
has been placed on a judgment of Hon’ble Supreme Court of India in the
case of Lattu Mahto and another vs. The State of Bihar (now
Jharkhand) reported as 2008 (3) R.C.R. (Criminal) 467 and also a
judgment of this Court in the case of Ram Dhan vs. State of Haryana
reported as 1974 C.L.R. (Vol.II) 47. This contention is also untenable. No
prejudice is shown to have been caused to the petitioner merely because
Crl. Revn. No. 968 of 1996 5
main incriminating evidence was put to him in a single question in
examination under Section 313 Cr.P.C. In the absence of prejudice, no
benefit can be extended to the petitioner in exercise of revisional
jurisdiction.
In view of the aforesaid, I find no illegality or infirmity in the
judgments of the courts below regarding conviction of the petitioner so as to
warrant interference in exercise of revisional jurisdiction. Conviction of the
petitioner is accordingly affirmed.
Learned counsel for the petitioner also contended that accident
took place 17 years ago and therefore, sentence warrants reduction or the
petitioner may be released on probation.
I have carefully considered the contention.
Benefit of probation cannot be extended to the petitioner as he
caused death of a woman by his rash and negligent act. Moreover, after
causing the accident, the petitioner sped away the bus and therefore, his
conduct was callous. However, keeping in view the fact that the accident
occurred 17 years ago, there is some scope for reduction in sentence.
Accordingly, the sentence of rigorous imprisonment for one year for offence
under Section 304-A IPC is reduced to rigorous imprisonment for nine
months while maintaining the sentence of fine and sentence in default
thereof for the said offence as well as while maintaining the sentence under
Section 279 IPC. With reduction in sentence as aforesaid, the revision
petition stands disposed of accordingly.
The petitioner, who is on bail, shall surrender to his bail bonds
or shall be arrested to undergo the remaining period of sentence.
July 17, 2009 ( L. N. MITTAL ) monika JUDGE