Balbir Singh vs State of Haryana

M.L. Singhal, J.

The prosecution case in brief is that on 17.6.1991, Ved Singh, Balbir Singh and Bhup Singh were returning on their respective cycles from Sampla to village Assaundh. Balbir Singh was ahead of Ved Singh and Bhup Singh. At about 9.45 a.m., when they reached near the field of one Phule, Canter No. HR06/4868 came from Jhajjar side, i.e., opposite direction. Accused Balbir Singh was driving the said Canter rashly and negligently and hit Balbir, cyclist, who was going on his correct/left side. He fell down and suffered injuries. Balbir Singh (accused) stopped for a while after the accident but escaped with the Canter after some time. Balbir, injured, was taken to Civil Hospital, Rohtak, on a tractor which was coming from Jhajjar side. In Community Health Centre, Sampla, Balbir, injured, was examined by Dr. Devi Sharma. He succumbed to his injuries. Case was registered on the statement of Ved Singh under S. 304A, Indian Penal Code, against the accused. After investigation, the issued was challaned. He was charged under Section 394A trial. On the conclusion of the trial, learned Judicial Magistrate Ist Class, Rohtak, vide order dated 5.4.96, found the charge proved against the accused, convicted him under S. 304 A IPC, and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/ or, in default, to undergo further rigorous imprisonment for three months.

Feeling that he was unjustly convicted and sentenced by Judicial Magistrate Ist Class, Rohtak, Balbir Singh (driver of the Canter) went in appeal to the Court of Session. Learned Addl. Sessions Judge, Rohtak, found no merit in the appeal. He dismissed the same vide order dated 3.9.98. Balbir Singh has not felt disappointed with his conviction and sentence recorded by two courts below and has come up in revision to this Court.

I have heard the learned counsel for the petitioner, learned AAG Haryana and gone through the record. In my opinion, the learned courts below justifiably found the charge proved against the accused under S. 304A, IPC, and arrived at this finding on the appreciation of evidence and the appreciation of evidence by them can by no means be said to be infirm or attended by any illegality. Faced with this situation, learned counsel for the petitioner submitted that the prosecution case hinges on the statement of Ved Singh, P.W. 3, and Bhup Singh P.W. 4. Ved Singh, P.W. 3, is an interested witness inasmuch as he is the cousin of the deceased. So far as Bhup Singh (P.W. 4) is concerned, he has not supported the prosecution case. He has stated that Balbir was ahead of him on a cycle by 1520 paces and a Canter came from the side of Jhajjar, i.e., from the front side and that Canter was being driven at a normal speed and it struck Balbir whereupon the fell down and the Canter driver took him to the Medical College & Hospital, Rohtak. He stated that the accident was caused on account of the fault of the cyclist, i.e., Balbir deceased because he overloaded his cycle with goods. In his crossexamination, Bhup Singh P.W. 4 stated that Ved Singh was not with them. If Bhup Singh PW played foul with the prosecution, that does not mean that the court should brush aside the statement of Ved Singh P.W. 3. Court was required to scan the statement of P.W. 3 and appreciate it in the correct perspective.

It was submitted by the learned counsel for the petitioner that the petitioner was not put up at the test identification parade. Suffice it to say, the accused did not claim any identification parade. He should have surrendered before the Magistrate and made a request that he be put up at the test identification parade. FIR was lodged quite promptly. Name of the accused finds mention in the FIR. If there had been delay in the loading of the FIR, it could have been said that the name of the accused might have been incorporated on suspicion or mistakenly in the FIR.

In my opinion, the conviction recorded against the petitioner by the two courts below is in order and it does not call for interference in revision.

Faced with this situation, learned counsel for the petitioner submitted that the petitioner should be released on probation of good conduct as he is a first (sic) registered against him on 17.6.91. He remained under trial before the learned Magistrate for about five years and eventually, he was convicted. He remained in appeal before the Court of Sessions for about two years when his appeal was dismissed. The Courts should have tried him speedily. Right to speedy trial is a fundamental right of the accused flowing from Article 21 of the Constitution of India. If the Court could not give him speedy trial, at least the court should take into account while awarding the sentence that he has been undergoing the agony of trial for the last about seven years and, therefore, should be dealt with leniently.

In my opinion, the petitioner should not be released on probation of good conduct as he was driver of a heavy vehicle. He ought to have been careful and circumspect while driving a heavy vehicle visavis Balbir who was an old man of 70 and pedalling a cycle. Drivers of heavy vehicles are required to be more careful and circumspect while driving so far as the safety of pedestrians, cyclists, scooterists, etc., is concerned. Some leniency, however, should be shown to the petitioner keeping in view that he has been suffering the vagaries of the criminal trial for the last about seven years. Sentence imposed is, therefore, slashed to six months'' rigorous imprisonment and fine is enhanced to Rs. 5,000/ in default of payment of which, the petitioner shall undergo further rigorous imprisonment for two months. Entire amount of fine if recovered shall be paid to the heirs of the deceased equally. Subject to this reduction/variation in sentence, this revision fails and is dismissed.