Punjab-Haryana High Court
Thana Ram Son Of Sukhu Ram vs State Of Haryana on 31 October, 1995
Equivalent citations: II(1996)ACC153, 1996CRILJ2020
Author: P.K. Jain
Bench: P.K. Jain
JUDGMENT P.K. Jain, J.
1. This revision is directed against the judgment dated 6-7-95 passed by Additional Sessions Judge, Gurgaon whereby the conviction of the petitioner for the offences under Sections 279/304A of the Indian Penal Code, recorded by the Chief Judicial Magistrate, by judgment and order dated 16-11-1993, has been confirmed. The petitioner has been sentenced to undergo rigorous imprisonment for a period of one month and to pay a fine of Rs. 100/- for the offence under Section 279 Indian Penal Code. He has been further sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 400/- for the offence under Section 304A, Indian Penal Code. Both the substantive sentences have been ordered to run concurrently. Amount of fine has been deposited by the petitioner.
2. The case of the prosecution in brief is that on 4-12-1988 at about 1.15 p.m. Avdesh Yadav (PW.2) and Kishore (now deceased) who were co-workers in the same factory, were going on their respective cycles to the market to make certain purchases. When they reached near D.A.V. High School truck No. HYM 575 which was being driven by the petitioner in a rash and negligent manner, came from the front and hit the cycle of Kishore as a result of which he fell down and he alongwith his cycle were crushed under the rear right wheel of the truck. The petitioner and Avdesh Yadav removed Kishore to the hospital where he was declared dead.
3. After completing the investigation a charge sheet for the offence under Sections 279/304A of the Indian Penal Code was filed in the Court. The petitioner did not plead guilty and claimed trial. The prosecution examined three witnesses in support of its case i.e. Constable Shri Ram PW.1, Avdesh Yadav PW.2 and Doctor S.K. Goel, PW.3. The case of the prosecution was closed by the order of the Court. In his statement under Section 313 Cr.P.C. the petitioner denied the prosecution allegations and pleaded false implication. The trial Court while placing implicit reliance upon the testimony of the prosecution witnesses convicted and sentenced the petitioner as stated above. The appeal of the petitioner against his conviction and sentence did not find favour with the Additional Sessions Judge. Feeling aggrieved, the petitioner has come in revision to this Court.
4. I have heard the learned counsel for the parties and have gone through the record of the trial Court.
5. Shri R.K. Jain, learned counsel for the petitioner while assailing the conviction and sentence of the petitiner has argued that both the Courts below fell in error in accepting the testimony of Avdesh Yadav (PW-2) and to base the conviction of the petitioner solely thereupon. It has been further argued by the learned counsel that the Investigating Officer has not been examined by the prosecution which has prejudiced the petitioner in his defence, and that the testimony of Avdesh Yadav (PW-2) could not have been accepted without further corroboration by the investigating documents produced but not proved on the record.
6. On the other hand learned State counsel has argued that Avdesh Yadav (PW-2) was a natural witness as he had accompanied the deceased and was present at the time of the accident and there is no reason to disbelieve him. It has been further argued that the conviction and sentence of the petitioner have been rightly based on the testimony of the said witness since in such cases public persons do not come forward to support the case of the prosecution. It has been further contended that the Investigating Officer could not be produced since the case of the prosecution was closed by the trial Court itself.
7. I have given my careful thought to the respective arguments advanced at the Bar.
8. From a bare perusal of the testimony of Avdesh Yadav (PW.2), it is evident that it is quite vague and indefinite as regards the investigation carried out by Sub Inspector Ram Chander on the spot of occurrence. According to him, he is an eye witness. He has no where stated if any site plan of the spot of the occurrence was prepared, whether any measurements of the spot of occurrence were taken, whether any other document was prepared on the spot in his presence, and whether any persons of the nearby place who might have been present at that time were questioned or examined by the Investigating Officer. According to this witness, the truck in question was coming from the front side and he was at a distance of about 20 yards behind the deceased. In these circumstances testimony of Avdesh Yadav (PW.2) could not be said to be safe to hold that the petitioner was driving the vehicle in question in a rash and negligent manner. It appears that both the Courts were impressed with the fact that an accident had taken place in which Kishore along with cycle were crushed under the right rear wheel of the truck and as such, came to the conclusion that the petitioner was driving his vehicle in a rash and negligent manner. To base conviction of an accused for the offences under Sections 279/304A of the Indian Penal Code, the prosecution is bound to prove that the accused was driving the vehicle in a rash and negligent manner and there should be nexus between such driving and death of the deceased. Therefore, there should have been some material to corroborate the testimony of Avdesh Yadav (PW.2) to prove the rash and negligent driving on the part of the petitioner.
9. The best evidence to corroborate the testimony of Avdesh Yadav (PW.2) could have been Sub Inspector Ram Chander who had investigated the case but surprisingly he has not been examined by the prosecution in spite of several opportunities given to it and the trial Court was ultimately constrained to close the case of the prosecution.
10. Admittedly the Investigating Officer is a material witness as he investigates the case, maintains case diary, goes to the place of occurrence, prepares the site plan of the place of occurrence, gets place of occurrence and body photographed, examined witnesses and thus collects the materials for the prosecution. It is he who is to explain each and every action at every stage of the investigation. In a case of accident non-examination of the investigating Officer cannot be lightly brushed aside by saying that the Investigating Officer could not have given any more information regarding the ease.
11. In Nageshwar Sh. Krishna Ghobe v. State of Maharashtra their Lordships of the Supreme Court, in a case like the present one, highly condemned the utterly perfunctory character of the investigation in the following words:-
"The Investigating Officer unfortunately did not care to have the photographs taken of the position of the vehicle, the electric pole and the persons injured and dead as a result of the accident. He did not care even to take the measurement of the height of the curve, which in our view, was a very relevant factor. Nor did he care to get the vehicle examined by a mechanic for the purpose of ascertaining if its mechanism was in order and particularly if its brakes were working properly. The rough sketch prepared by him is a highly unsatisfactory document as it only gives us an extremely rough idea of the position; this is of little assistance in determining the question of the appellants's guilt in the criminal trial."
Accordingly their Lordships were pleased to acquit the appellant.
12. Thus, the non-examination of Sub Inspector Ram Chander, the Investigating Officer, is a serious lapse omission on the part of the prosecution. It is important to note that the prosecution has not proved the site plan of the place of the occurrence, the recovery memo, the mechanical inspection report of the vehicle in question and the photographs if any obtained in respect of the place of the occurrence and the dead body. These were the material documents which could have corroborated the testimony of Avdesh Yadav (PW.2) and would have shown by way of substantial evidence as to whether the truck was being driven in a rash and negligent manner. Neither the Investigating Officer has been examined nor any just and proper explanation has been given for this omission. The various documents stated above have not been proved on record even by secondary evidence by the prosecution for the reason best known to it. The necessary inference is that the petitioner has been prejudiced in his defence on account of this serious lapse/omission on the part of the prosecution.
13. Both the Courts below have fallen in error by ignoring substantive law which constitutes the offence and misconception of evidence on matters of importance which has resulted in grave injustice to the petitioner. Therefore, this is a fit case where this Court would be justified in exercising its revisional jurisdiction.
14. For the reasons mentioned above this revision succeeds and is hereby accepted. The conviction and sentence of the petitioner are set aside. He shall be released forthwith if not wanted in any other case. The amount of fine deposited by the petitioner shall be refunded to him.