PAWAN KUMAR Vs. THE STATE OF PUNJAB

JUDGEMENT

(1.) THIS revision petition has been filed by the accused- petitioner against the judgment of the courts below, whereby the accused petitioner was convicted under Sections 304-A/279, IPC, and was sentenced to undergo RI for 1-1/4 years and to pay fine of Rs. 1,000/- under Section 304-A, IPC, and RI for three months under Section 279, IPC, vide judgment and order dated 20.10.1954, passed by the learned Magistrate and the appeal, filed by him, was dismissed by the learned Sessions Judge, vide judgment dated 27.4.1995.

(2.) THE facts, in brief, are that a motor vehicular accident had taken place on 2.6.1990. Malkeet Singh, complainant, lodged the FIR in respect of the said accident. As per the prosecution allegations, he (Malkeet Singh), his sister's son, Beant Singh, his younger brother, Dharam Singh, and his father's brother's son, Pal Singh, were going on Jeep No. DHA 2633, driven by Beant Singh, aforesaid, and that they were 2 Kms ahead from Village Smalsar, at about 2.10 p.m. when bus, PAB 7497, was found coming at a very high speed and had struck against the Jeep and that he (Malkeet Singh) fell down from the Jeep and that in the said accident, Beant Singh and Pal Singh died as a result of the accident while his brother, Dharam Singh, sustained injuries and he was removed to Civil Hospital, Kotkapura. After the registration of the FIR, the case was investigated by the Police. On 5.6.1990, accused-petitioner, Pawan Kumar, was arrested by the Police and after completion of investigation, challan was submitted in the Court. After hearing both the sides, the learned Magistrate convicted and sentenced the accused-petitioner, as referred to above and the appeal, filed by him, was dismissed by the learned Sessions Judge. Aggrieved against the same the accused filed the present revision petition in this Court.

(3.) LEARNED counsel for the accused-petitioner has submitted before me that the prosecution had miserably failed to prove that the accident had taken place on account of rash and negligent driving of bus No. PAB 7497 by accused- petitioner, Pawan Kumar. It has been submitted that from the evidence available on the record, it is proved that the accident in question had taken place because the Jeep, in which the deceased and the injured were travelling, had come on the wrong side, resulting in the aforesaid accident. There is considerable force in this submission of the learned counsel for the accused- petitioner. PW4, Sukhdev Singh, photographer, admitted during cross- examination that at the time when he had gone to the spot to take the photographs, the Jeep was facing towards Kotkapura. He further stated that if one goes from Moga to Kotkapura, the Jeep was standing on the right hand side of the road. He further stated that left hand side of the bus was effected by the accident. From a perusal of the statement of RW4, Sukhdev Singh, it would be clear that the Jeep was on the right hand side of the road, if one goes from Moga to Kotkapura. It is the admitted case of the prosecution that the Jeep was going from Moga to Kotkapura whereas the bus in question was coming from Kotkapura towards Moga. In that eventuality, if the Jeep was found standing on the right hand side of the road, if one goes from Moga to Kotkapura, it can certainly be said that the accident took place because the Jeep had come on the wrong side of the road. In my opinion, the learned Sessions Judge erred in law in holding that as per the photograph, Ex. P3, at the time of accident, the bus was at the extreme right side of the road. In my opinion, from the photograph, copy Ex. P3, no such inference could be drawn that at the time of accident, the bus was at the extreme right side of the road. The question is as to whether coming from Kotkapura to Moga whether the bus was coming on the wrong side i.e. the right side of the bus driver or that it was coming on its correct side i.e. on the left side of the driver, in my opinion from the evidence led by the prosecution, it is proved on the record that the accident took place when the Jeep in which the deceased were travelling, came on the wrong side of the road. There is another aspect of the matter. PW5, Malkeet Singh, is the only eye witness who has supported the prosecution case. This Malkeet Singh is closely related to the deceased. According to PW5, Malkeet Singh, he, his brother, Dharam Singh, his nephew (sister's son), Beant Singh, and his cousin (father's brother's son), Pal Singh, were the persons who were travelling in the Jeep, at the time of the accident. Two of them died at the spot while the third was taken to the Hospital, in injured condition. Thus, it would be clear that the deceased/injured were closely related to PW5, Malkeet Singh. During cross- examination, he stated that he had not accompanied the injured, who was taken to the Hospital, after the accident. He admitted that he had not received any injury in the said accident. He stated that he was pushed out of the Jeep as a result of the accident and he fell down on the ground. He stated that he had not received even a scratch on his body nor his clothes were torn in the process. On the facts and circumstances of the present case, in my opinion, it is highly doubtful if PW5, Malkeet Singh, was present at the spot at the time of the occurrence. If he had been present in the Jeep at the time of the accident, he would have accompanied the injured to the Hospital and it was expected of that he would also receive some kind of injury in the accident. In any case, if he had fallen on the ground as a result of the accident, he would have received some kind of injury on his body. However, as admitted by him, he had not received even a scratch on his person nor his clothes were torn in the process. Furthermore, two of his close relatives died at the spot and the third close relative of his had received injuries in the accident and was taken to the Hospital. It was expected in the normal course that he would have accompanied the injured to the Hospital, instead of sending him there with the strangers. The conduct of PW5, Malkeet Singh, in not accompanying the injured to the Hospital and his having not received any injury in the accident, in my opinion, creates a doubt about his presence at the spot at the time of the accident. It appears that he was introduced at a later stage to become an eye witness in this case.