Ishwar Singh vs State of Haryana

A.S. Garg, J.

The petitioner was convicted under Section 304A of the Indian Penal Code by the learned Additional Chief Judicial Magistrate, Jind, vide his judgment dated 23.5.1987 and was sentenced to undergo rigorous imprisonment for 11/2 years and to pay a fine of Rs. 500/. In default of payment of fine he was ordered to undergo further rigorous imprisonment for two months. The order of conviction and sentence was affirmed by the learned Sessions Judge, Jind in appeal.

On 27.6.1984, the petitioner Ishwar Singh was stated to be driving Haryana Roadways bus bearing No. HRU 1508 within the area of Police Station Sadar, Jind. Raj Pal deceased and Raj Kumar, PW3, were said to be together on the main road. Raj Kumar went to a nearly shop and fetched water and served the same to the deceased Raj Pal. Raj Pal was going on foot holding his cycle in hand on one side of the road. In the meanwhile the aforesaid bus driven by Ishwar Singh came with a high speed and struck against Raj Pal deceased, who fell down. The bus stopped at some distance. Raj Pal received injuries and therefore was lifted and put in the same bus by the passengers and taken to the hospital, where he succumbed to the injuries. Raj Kumar, PW. 3 went to inform the parents of the deceased about the accident. In the way he met ASI Mohinder Kumar before whom he made his statement Ex. PA and on its basis formal F.I.R. Ex. PA/2 was recorded. The said ASI recorded the statements of the witnesses, prepared rough site plan of the place of accident and took into possession the bus etc. vide recovery memos Ex. PC and PD. He also got conducted post mortem examination on the dead body of the deceased. Balwinder Singh PW. 7, took photographs Ex. PW. 7/A and PW. 7/8. PW. 8 Bachan Singh, a Motor Mechanic inspected the bus and furnished his report Ex. PW. 8/A. So with this formal investigation the petitioner was tried for causing the death of the deceased by rash and negligent driving.

The learned Courts below relied upon the testimony of Raj Kumar, PW. 3, Daya Kishan PW. 4 and observed that the minor discrepancies do not matter and that the petitioner did not put up any specific defence except that he claimed that he did not cause any accident. Both the Courts below, therefore, on the aforesaid testimony of the eye witnesses and the situation passed the aforesaid orders of conviction and sentence.

In the revision, the learned counsel appearing for the petitioner has read the statement of Daya Kishan PW. 4 minutely and this reflects clearly that this witness did not mention the name of the deceased to the Medical Officer concerned when he allegedly took him to the Civil Hospital after the injuries were received in the accident. Daya Kishan, PW. 4 even went to the extent to say that in fact he did not see the bus striking the deceased. In such circumstances he does not deem to have really witnessed the occurrence or was even not present near the place of accident. If Daya Kishan had taken the deceased to the hospital, his name must have been mentioned in the medical record and the ruqa sent by the doctor would not have contained the version that it was a dead body of an unidentified person. Similarly, Raj Kumar PW. 3 does not appear to have come with a truthful version as he claimed that he came to know the name of the driver later on when the deceased had already been taken to the hospital. Since the F.I.R. was registered earlier, there is no mention of the name of the petitioner which means that this witness was not present on the scene of occurrence and the FIR was written later on, when post mortem had already been conducted and all the formalities had been completed. In such circumstances it cannot be said that the discrepancies in the evidence of the eye witnesses are in any way immaterial. The version of these two witnesses exposed the conduct of these persons and one can safely say that they cannot be relied upon. May be out of sympathy and brotherhood, that the witnesses have come to support the case of the prosecution. The story put up by Raj Kumar PW. 2 is improbable. One cannot understand as to why Raj Kumar would bring water for Raj Pal from a distance while the deceased was himself an ablebodied person and both could have gone together to take water. The conclusion drawn by the Courts below cannot be accepted.

Besides this there should be a definite evidence as regards the rash driving of a driver of a vehicle is concerned. The driver cannot be presumed or assumed to be rash. Such accidents are now innumerable with the tremendous increase in the traffic but still the negligence or rashness of an accused must be exhibited, explained and proved on record as to what was omitted by the driver of the bus which he should have taken care of and as to what act was committed by him which led to the accident. So, in the case in hand such an evidence is lacking. The conduct of the driver leading towards rashness or negligence must be specifically stated by the witness or the circumstances brought on record must show that an inference can be raised to that effect. Nothing as such is available on record. The argument of the learned Assistant Advocate General, that the case of the prosecution supported by two independent witnesses is not tenable in view of the aforesaid circumstances.

In view of the above discussion, the revision petition is allowed and the petitioner is acquitted of the charges framed against him.