Ashok Kumar vs State of Haryana

K.S. Kumaran, J.—Revision Petitioner Ashok Kumar faced trial before the Judicial Magistrate IInd Class, Gurgaon, in Criminal Case No. 54/1 of 31.3.1992 on the charges under Sections 279 and 338 I.P.C. After trial, he was accordingly convicted u/s 279 IPC and sentenced to pay a fine of Rs. 500/- and in default to undergo simple imprisonment for two days. The petitioner was also convicted and sentenced to undergo rigorous imprisonment for six months u/s 338 I.P.C.

Aggrieved, the petitioner filed Criminal Appeal No. 3 of 17.1.1997 before the Sessions Court, Gurgaon, and the learned Sessions Judge, after hearing dismissed the appeal. Hence this Revision Petition by the accused-petitioner Ashok Kumar.

I have heard the counsel for both the sides and perused the records.

The case of the prosecution as per the F.I.R. registered on the basis of the statement of Mahabir, the injured in this case (PW. t) recorded on 28.2.1992 is that on the night at about 9 or 9.30 p.m. he (Mahabir) along with Jai Bhagwan (PW.5) was going on a bicycle when a jeep bearing No. DL.5C 6051 driven in a rash and negligent manner came from the opposite side and dashed against them causing several injuries to him (Mahabir). In the FIR Mahabir (PW, 1) did not give the name of the driver of this vehicle and had stated that only Jai Bhagwan (PW.5) will be able to give name of the Driver.

The prosecution apart from examining other witnesses, examined Mahabir (PW. 1), Jai Bhagwan (PW.5), Dr. J.K. Saini (PW.8). The learned Magistrate, who tried the case, held that Mahabir PW. 1 suffered injuries as a result of the rash and negligent driving of the vehicle by the accused and accordingly convicted him. On appeal, the learned Sessions Judge held that PW.5 Jai Bhagwan clearly fixed the identity of the accused as having caused the accident. He also held that the non-examination of the investigating officer did not cause any prejudice to the accused and ultimately dismissed the appeal.

The learned counsel for the revision petitioner contended before me that the evidence on record has not been properly appreciated either by the trial Magistrate or by the learned Sessions Judge, on appeal, and the findings rendered by them are not based on the evidence on record but are against the evidence and, therefore, the judgments of both the Courts are not suslainable.

First of all, the learned counsel for the petitioner contended that while the case of the prosecution is that the accident had taken place on 28.2.1992 at about 9 or 9,30 p.m., Dr. J.K. Saini (PW.8) of General Hospital. Rewari has stated in his evidence that on 27.2.1992, he examined Mahabir (who is the injured in this case. He also pointed out from the Medico-legal report (PW.8/A) that injured Mahabir was examined on 27.2.1992 only. The learned counsel for the petitioner also pointed out that in his evidence Mahabir (PW. 1) has stated that on 28.2.1992 at 9.30 P.M. while he was going on bicycle, the jeep came at a high speed and hit him. The learned counsel for the petitioner contended that when Mahabir (PW.1) was examined by the Doctor on 27.2.1992 he was found to have suffered injuries including fractures in the right femur and right ankle joint and, therefore, it is wholly impossible that Mahabir could have met with this accident on 28.2.1992. He also pointed out that this Doctor was not even able to say as to when Mahabir was discharged. As rightly pointed out by the learned counsel for the petitioner it is clear from the Medico-legal report relating to Mahabir that Mahabir was examined by the Doctor only on 27.2.1992 and found to have sustained injuries i.e., on the day previous to that of the alleged date of incident. Of course, the learned counsel for the State contended that this is only a clerical mistake. Such a plea was put forward before the learned Magistrate also. But this contention overlooks the fact that it was not brought out from the Doctor (PW.8) by way of clarification that there was such a clerical mistake. The Doctor was not even asked any question by way of clarification on this aspect by re- examination. Therefore, this contention cannot at all be accepted.

The learned counsel for the petitioner also pointed out that though PW. 1 Mahabir (injured in this case) stated in his evidence that the statement Ex.PW. 1/A (on the basis of which the FIR has been registered) contains his thumb impression, in cross-examination PW.1 admitted that he did not know whether the police had recorded the statement and that only his thumb impression was taken. Therefore, the learned counsel for the petitioner contended that since it is evident that the very statement which Mahabir is alleged to have given for registering the FIR has not been given by PW.1, the case of the prosecution must fail on this count also. Ex.PW. 1/A was recorded on 28.2.1992, whereas as pointed out already, the injured Mahabir was examined by the Doctor on 27.2.1992 itself, This contradiction and the fact that PW, 1 had merely subscribed his thumb impression to this statement Ex.PW. 1 /A cast a grave doubt on the case of the prosecution with regard to the date of the occurrence and also as to the contents of the statement Ex.PW. 1/A. As rightly pointed out by the learned counsel for the petitioner, these aspects, which are borne out from the evidence on record, and which shake the very formation (foundation ?) of the case of the prosecution have not been taken into consideration by the trial Court and the learned Sessions Judge, on appeal and, therefore, their finding that the accused is guilty is unsustainable, inasmuch as it is against the evidence on record.

The learned counsel for the petitioner also pointed out that even with regard to the identity of the person who allegedly drove the Jeep at the time of the incident, there is no acceptable evidence on record. He contended that no identification parade was conducted. He also pointed from the F.I.R. that injured Mahabirhad stated that only Jai Bhagwan (PW.5) can tell the name of the Driver. But, injured Mahabir stated in his evidence in Court that the name of the Driver was Dharambir, whereas the accused-petitioner is Ashok Kumar. The learned counsel for the petitioner also pointed out that the injured Mahabir has stated in his evidence that the Jeep Driver had taken him (Mahabir) to Rewari (where he was admitted in the Hospital). The learned counsel for the petitioner, therefore, contended that the allegation in the F.I.R. that after the accident the Jeep driver had run away with the jeep towards Rewari side cannot be true, and this will also show that this statement Ex.P. W. 1/A was not made by the injured Mahabir. He also pointed out that similarly the evidence of PW.5 Jai Bhagwan, who allegedly accompanied Mahabir on the cycle at the time of the incident, that (after the incident) he had gone to arrange for the vehicle and in the meantime the Driver had gone away is also contrary to the evidence of PW. 1 Mahabir and cannot also be accepted.

I have already pointed out that PW. 1 has even stated in his evidence that the name of the Driver was Dharambir whereas the accused-petitioner herein is Ashok Kumar. While injured Mahabir stated in his evidence that the Jeep driver had taken him to Rewari (where he was admitted in the Hospital), PW.5 Jai Bhagwan has stated in his evidence that after the incident he had gone to his house to bring money and for arranging a vehicle and that when he returned to the place of occurrence after an hour, injured Mahabir remained lying there. He also stated that he had reached the place of occurrence at about 10 O''clock and removed injured Mahabir to Civil Hospital, Rewari. This is also a material contradiction which will go to affect the case of the prosecution. These aspects create a serious doubt even with regard to the identity of the accused. Of course, the learned counsel for the State pointed out that while the incriminating circumstances appearing in the evidence of the witnesses for the prosecution were put to the petitioner-accused u/s 313 Sr.P.C., the petitioner has admitted that he was driving the vehicle on 28.2.1992 and, therefore, there is no doubt regarding the identity of the driver of the vehicle. But, the learned counsel for the petitioner contended that this statement of the petitioner u/s 313 Cr.P.C. does not in any way show that he has admitted that he was the driver of the offending vehicle at the time of the incident. He contended that the petitioner may have been driving the vehicle on 28.2.1992, and that is what he has admitted, whereas, he has not admitted that he was driving the vehicle at the time of the accident. He also contended that when the evidence of the Doctor, as pointed out already, shows that injured Mahabir was examined on the previous day i.e. 27.2.1992 itself by the Doctor and was found to have suffered injuries including fractures, and was also admitted into the Hospital, the fact that the petitioner has stated that he had driven the vehicle on 28.2.1992 would not in any way amount to an admission that he was driving the vehicle at the time of the accident. He, therefore, contended that the observation of the learned Sessions Judge, in paragraph 10 of his judgment that it is not disputed on record that the accident had taken place on 9 or 9.30 p.m. on 28.2.1992 is not at all supported by evidence, but is contrary to the evidence and, therefore, unsustainable. Learned counsel for the petitioner also pointed out that similarly the observation of the leartied Sessions Judge, that the petitioner has admitted that he was driving the vehicle on 28.2.1992 and has not rendered any explanation that he was somewhere else at 9 or 9.30 p.m. on that day is also unsustainable. I agree with the learned counsel for the petitioner in this regard. The evidence of Doctor (PW-8) was that Mahabir was found to have suffered injuries including fractures when he was examined by him on 27.2.1992 itself. It is also evident that injured Mahabir was admitted into the Hospital. So, it is wholly unbelievable that he could have sustained these injuries in the accident which allegedly took place on 28.2.1992 i.e. the next day. Therefore, the statement made by the petitioner u/s 313 Cr.P.C. that he had driven the vehicle on 28.2.1992 cannot amount to an admission that he was driving the vehicle at the time of the accident. In such circumstances, the petitioner-accused cannot be expected to explain as to where he was at 9 or 9.30 p.m. on 28.12.1992. Therefore, in my view the findings rendered by the trial Court and the Appellate Court on these aspects are not based upon the evidence and are unsustainable.

This apart, the learned counsel for the petitioner also contended that the investigating officer was not examined in this case, which has prejudiced the petitioner-accused. But the learned counsel for the State contended that with regard to the proceedings conducted by the investigating officer the other witnesses have given evidence and., therefore, accused-petitioner is not prejudiced. But, this contention of the learned counsel for the State cannot be accepted, because, as pointed out already, the very date of the alleged occurrence is in question and, the case of the prosecution in this regard is contradicted by the evidence of the Doctor. Further PW-1 injured Mahabir has stated that his statement was not recorded and only his thumb impression was taken. Had the prosecution examined the investigating officer, the defence would have been in a position to question him about these aspects, which would have brought forth materials to further support his case. In these circumstances, I am of the view that the accused is certainly prejudiced by the non-examination of the investigating officer also.

Even otherwise, in view of what I have pointed out above, it is clear that the finding of the trial Court and the Appellate Court, that the petitioner-accused is guilty is not based upon the evidence, but is even contrary to the evidence. Therefore, the conviction of the accused and the sentence passed against him cannot be sustained.

Accordingly, this Revision Petition is allowed and the conviction of the petitioner as well as the sentence passed against him are set aside. The petitioner-accused is acquitted of the charges levelled against him. The fine, if any, paid by the petitioner/accused shall be refunded to him.

Revision petition allowed.