Punjab-Haryana High Court
Kulwinder Singh vs State Of Punjab on 20 February, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
CRA-S-1015-SB of 2011 -1-
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision:20.2.2014
CRA-S-1015-SB of 2011
Kulwinder Singh
---Appellant
Versus
State of Punjab
---Respondent
CRA-S-1066-SB-of 2011
Iqbal Singh
---Appellant
Versus
State of Punjab
---Respondent
Coram: Hon'ble Mrs. Justice Rekha Mittal
***
Present:- Mr. K.S.Sidhu,Senior Advocate with
Mr.G.S.Sidhu, Advocate
for the appellant(In CRA-S-1015-SB of 2011)
Mr. Sanjay Singh, Advocate
for the appellant(In CRA-S- 1066-SB of 2011)
Mr. Neeraj Sharma, AAG, Punjab
for the respondent-State
***
REKHA MITTAL, J.
By way of this order, I shall dispose of CRA No. S-1015-SB of 2011 titled "Kulwinder Singh vs. State of Punjab" and CRA No. S-1066- Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -2- SB of 2011 titled "Iqbal Singh vs. State of Punjab" as these are the off shoot of judgment dated 22.1.2011 passed by the Sessions Judge, Faridkot convicting and sentencing the appellants for commission of offence punishable under Sections 304 Part II and 308 of the Indian Penal Code (for short "IPC") and Section 175 of the Railways Act, 1989 (for short "the Act"), extracted hereinbelow:-
Kulwinder Singh, appellant Under Section 304 To undergo rigorous imprisonment for six Part II IPC years and to pay a fine of Rs. 25,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year.
Under Section 308 To undergo rigorous imprisonment for four IPC years and to pay a fine of Rs. 15,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
Under Section 175 To undergo rigorous imprisonment for two of the Act years and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for one month.
Iqbal Singh, appellant Under Section 304 To undergo rigorous imprisonment for six Part II IPC years and to pay a fine of Rs. 25,000/- and in default of payment of fine to further undergo rigorous imprisonment for one year.
Under Section 308 To undergo rigorous imprisonment for four IPC years and to pay a fine of Rs. 15,000/- and in default of payment of fine to further undergo rigorous imprisonment for six months.
and identical questions of law and facts being involved for adjudication.
The facts, extracted from the judgment of the learned trial court, read that on 14.12.2007 at about 8.35 a.m., train No. 4629 UP Satluj Express was given clearance and while passing through gate No. C-40 met with an accident with mini bus bearing No. PB-29E-9482 driven by accused Iqbal Singh. As a result of this occurrence, 16 persons travelling in Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -3- the bus were killed and 12 others sustained injuries. The Station Master, Northern Railways, Moga sent intimation in writing Ex. P 63 to the Incharge GRP Moga about the accident. SHO Ajaib Singh along with senior officers of the local administration rushed to the site of accident, the injured were shifted to the hospital. Kulwinder Singh and Iqbal Singh accused were arrested in the case being responsible for the occurrence. Kulwinder Singh is stated to be deputed to man the railway crossing/gate No. C-40 at the relevant time and Iqbal Singh was the driver of the mini bus. Kulwinder Singh was placed under suspension and order of suspension Ex. P123, certificate regarding his duty at the relevant date and time Ex. P 124, his identity Card Ex. P127 were taken into police possession. Statements of the witnesses were recorded. Site plan of the place of accident was got prepared from a draftsman. On investigation being completed, challan was presented in the Court for trial of the accused.
The case was committed to the Court of Sessions as offence under Sections 304 and 308 IPC being exclusively triable by the said court.
The accused were charged for commission of offence punishable under Sections 304 and 308 IPC and charge under Section 175 of the Act was also framed against Kulwinder Singh to which the accused pleaded not guilty and claimed trial.
To prove its case, the prosecution examined as many as 33 witnesses namely, Dr. Rajpal Singh Grewal, SMO, Civil Hospital, Jagraon PW1, Dr. Harinder Sharma, M.O. Civil Hospital, Jagraon PW2, Dr. Sanjeev Kumar Jain, M.O. Civil Hospital, Moga PW3, Dr. Yogesh Khanna, M.O. Civil Hospital, Moga PW4, Dr. Joginder Sahota, M.O.,Civil Hospital, Moga PW5, Dr. R.K.Karkara, M.O., Civil Hospital, Jagraon PW6, Dr. Sukhjiwan Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -4- Kakkar, M.O. Civil Hospital, Samrala PW7, Sarwan Singh, M.O. PW8, Gurnam Singh, Clerk O/o DTO, Moga PW9, Ramesh Chander, Assistant Station Master, Moga PW10, Zorawar Singh PW11, Suresh Kumar, photographer PW12, Kuldeep Kumar PW13, Kartar Chand, Assistant Station Master, Ajitwal PW14, Kapil Narula, photographer PW15, Kanti Saroop Manocha, photographer PW16, ASI Balwant Singh PW17, HC Veer Chand PW18, Dr. Arun Kumar Gupta PW19, Dr. Ranbir Kaur, M.O., Civil Hospital, Jagraon PW20, Tarlochan Singh PW21, Baldev Singh PW22, Raja Singh PW23, Khunda Singh PW24, Harpal Singh PW25, Jagdeep Singh, a minor student of 9th class PW26, Sukhchain Singh, owner of the bus PW27, Radhey Sham driver of train No. 4629 UP-Satluj Express PW28, Amarjit Singh Senior Section Engineer, Northern Railways PW29, Hirdey Narain Gangman PW30, Constable Ajmer Singh PW31, Constable Jaspal Singh PW32 and Inspector Ajaib Singh (since retired), Investigating Officer PW33.
On the evidence of the prosecution being closed, accused were separately examined in terms of Section 313 of the Code of Criminal Procedure (for short "the Code") and they denied the incriminating material put to them. Iqbal Singh set up the plea that there was thick fog, visibility was very poor and when he approached the railway crossing gate, it was open and while crossing the railway track, the train hit the bus. Kulwinder Singh accused raised the plea that he was not on duty at the gate at the relevant date and time and was getting treatment from Hargopal Nursing Home, Ajitwal. In their defence, the accused examined Harbans Singh DW1.
On appreciation of evidence adduced by the prosecution and Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -5- submissions made by respective counsels, the learned trial court held the appellants guilty of offence charged against them and accordingly sentenced them as detailed hereinbefore.
Feeling aggrieved by the judgment passed by the learned trial court, separate appeals have been preferred by convicts Kulwinder Singh and Iqbal Singh.
Counsel representing Kulwinder Singh contends that the learned trial court erred in holding him guilty of the offence without correctly appreciating that the prosecution has failed to prove culpability of the accused beyond shadow of reasonable doubt. To bring home his contention, he has relied upon the testimony of Kartar Chand, Assistant Station Master, Ajitwal PW14. According to counsel, Kartar Chand in his testimony by way of chief examination has stated that the railway crossing gate C-40 was got closed by him at 8.02 a.m. through Prem Nath, Gate man on private No. 68 and at 8.05 a.m. had given line clear indication, when the train was to pass and which fact was intimated to the Station Master, Jagraon and the train started from Railway Station Jagraon at 8.10. a.m. Counsel has pressed into service that if at 8.02 a.m., Prem Nath, Gate man was on duty at the railway crossing in question, it falsifies the story of the prosecution that Kulwinder Singh accused was on duty as a Gate man on gate C-40 from 8-00 a.m. to 8-00 p.m. on the fateful day of 14.12.2007.
Another submission made by counsel is that the prosecution has failed to lead cogent and convincing evidence on record that the aforesaid gate was opened by Kulwinder Singh to facilitate crossing of the bus in question, admittedly, driven by Iqbal Singh accused and met with an accident resulting in loss of human life. For this purpose, he has invited my Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -6- attention to the Statement of Kuldeep Kumar PW13. It is submitted that Kuldeep Kumar has admitted during his cross examination that he had not seen Kulwinder Singh opening the gate at the relevant time.
Counsel, in the alternative, has submitted that the occurrence which, at best, is attributable to some lapse/negligence on the part of the accused, does not involve an element of mens rea. Kulwinder Singh has already lost his job and suffered actual custody for a period over three years. He faced the criminal proceedings for a period of more than six years. No other criminal case was registered against him. The substantive sentence awarded to Kulwinder Singh, appellant for the aforesaid offences, ordered to run concurrently, may be reduced to the period already undergone.
Counsel for appellant-Iqbal Singh would submit that as the Gate man deputed at the gate, did not close the gate, Iqbal Singh, who had no knowledge about the time of the train, suddenly met with this accident. It is further argued that due to dense fog on the day of occurrence in the mid of December 2007, Iqbal Singh could not see the train from a distance and as a result the accident occurred in which he himself sustained serious injuries including fracture of his right arm. It is further argued that if the judgment of the learned trial Court in regard to conviction is sustained, the sentence awarded may be reduced to the period already undergone.
Counsel for the State has supported the judgment passed by the learned trial court with the submissions that the findings recorded by the learned trial court are based upon detailed and meticulous appreciation of evidence on record and does not warrant intervention.
I have heard counsel for the parties and perused the records. No doubt, Kartar Chand, Assistant Station Master, Ajitwal Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -7- PW14 has deposed that he got the gate closed at 8.02 a.m. from Prem Nath, Gate man. However, the prosecution has proved certificate Ex, P 127 and as per the certificate, Kulwinder Singh was assigned duty as Gate man from 8-00 a.m. to 8-00 p.m. on 14.12.2007. The appellants have not denied that at the time of occurrence, the gate of the railway crossing was open and as a result, the mini bus driven by appellant Iqbal Singh struck against the train while passing across the railway track. Now the question arises, if the prosecution has been able to establish that the gate was unauthorisedly opened by Kulwinder Singh. It is not the plea of appellant Kulwinder Singh that he opened the gate under instructions from any authority of the railway.
The prosecution, in order to establish, that the gate was unauthorisedly opened by Kulwainder Singh examined Kuldeep Kumar PW13 and Jagdeep Singh PW26. Kuldeep Kumar PW13 has deposed that Iqbal Singh, driver of the mini bus made a request to Kulwinder Singh to open the gate and Iqbal Singh had given newspaper to Kulwinder Singh present at the spot. He has further stated that the gate was opened by Kulwinder Singh. During cross examination, he has stated that he had not seen Kulwinder Singh opening the gate. The statement of Kuldeep Kumar PW13 alone may not be sufficient to record a clear finding that the gate was opened by Kulwinder Singh. Nevertheless, Kuldeep Kumar has proved on record that Iqbal Singh made a request to Kulwinder Singh to open the gate and Kulwinder Singh was present at the spot when the gate was lying closed. Jagdeep Singh, one of the occupants of the ill fated bus being one of the students and regularly travelling in the bus has strongly supported the prosecution case that it was Kulwinder Singh who opened the gate on the asking of driver of mini bus. Jagdeep Singh was subject to lengthy cross Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -8- examination but nothing tangible and material has been elicited to shake his credibility or create any dent in his deposition with regard to his presence at the spot or identity of Kulwinder Singh. As a matter of fact, no question was put to the witness to dispute identity of Kulwinder Singh or his knowledge of Kulwinder Singh to dispute his (Kulwinder's) presence on the spot and opening the gate at the instance of Iqbal Singh. In this view of the matter, I find myself unable to accept the submissions of counsel for the appellants that the gate was not opened by Kulwinder Singh at the asking of Iqbal Singh, driver of mini bus. As Iqbal Singh is equally responsible for making an illegal request to Kulwinder Singh to open the gate and in the process struck the bus against the train. Iqbal Singh cannot escape his liability on the plea that he also sustained injuries in the occurrence.
The learned trial Court on a detailed consideration of the entire matter has held the appellants guilty of the offence charged against them. I do not find any error much less illegality in the findings recorded by the trial court.
In view of the above, the conviction of the appellants for the aforesaid offences is liable to be affirmed and ordered accordingly.
Now coming to the question of sentence awarded by the learned trial court, the appellants have been sentenced to rigorous imprisonment for a period of six years for offence under Section 304 Part II IPC. Kulwinder Singh, admittedly, has lost his job and livelihood due to occurrence. He is father of three daughters and a son. Iqbal Singh appellant has also a family to look after consisting of his two children and a wife. He himself sustained injuries in the occurrence. The convicts faced the criminal proceedings for a period over six years. However, the conduct of the Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1015-SB of 2011 -9- appellants resulted in enormous loss of human life. Keeping in view the facts and circumstances on record, the substantive sentence awarded to the appellants under Section 304 Part II IPC is reduced to rigorous imprisonment for a period of five years. The sentence for other offences as well as fine under Section 304 Part II IPC with default stipulation shall remain intact.
Appeals stand disposed of in the terms indicated above. The appellants, if on bail, be taken in custody to suffer the remaining sentence.
( Rekha Mittal ) Judge 20.2.2014 Paramjit Saini Paramjit Kaur 2014.03.03 17:53 I attest to the accuracy and integrity of this document Chandigarh