Kharaiti Lal vs The State of Haryana

Harbans Lal, J.—This revision has been directed against the judgment dated 7.10.2004 passed by the court of learned Additional Sessions Judge, Narnaul whereby he dismissed the appeal filed by Kharaiti Lal accused against the judgment/order of sentence dated 3.6.2002 rendered by the court of learned Judicial Magistrate Ist Class, Mohindergarh vide which he convicted and sentenced him to undergo rigorous imprisonment for 2 years u/s 304-A of IPC.

Shortly put, facts of the prosecution case are that Balwant Kumar alongwith his son Manoj Kumar and Dr. Ravi Kumar since deceased were going towards Mohindergarh. Balwant Kumar and his son were on one scooter, whereas the said Doctor was on his own scooter. This Doctor was driving his scooter just ahead of the scooter of Balwant Kumar. Around 2.30 P.M. when they reached in the area of village Akoda, meanwhile, a truck bearing registration No. HR-45/0865 being driven by Kharaiti Lal accused in a rash and negligent manner came from Mohindergarh side and struck against the scooter of the said Doctor. As a result of impact, the Doctor fell down on the road. After the accident, the truck driver made an attempt to flee from the spot, but he was intercepted alongwith the truck at some distance from the place of the occurrence. On the statement of Balwant Kumar, the case was registered. Dr. Ravi Kumar succumbed to the injuries. The accused was put under arrest. After completion of investigation, the charge sheet was laid in the court for trial of the accused.

The accused Kharaiti Lal was charged under Sections 279/304-A and 427 of I.P.C. to which he did not plead guilty and claimed trial. In order to substantiate its allegations, the prosecution examined PW-1 Constable Nafe Singh, PW-2 Om Parkash Yadav, PW-3 Balwant Kumar complainant, PW-4 Dr. Surender Kumar Sansanwal, PW-5 Manoj Kumar eye witness, PW-6 Dr. Anil Mathur and PW-7 Sub Inspector Parbhati Lal. The prosecution evidence was shut out by order of the Court.

When examined u/s 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. However, he did not adduce any evidence in his defence.

After hearing the learned Assistant Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused u/s 304 of IPC. Feeling aggrieved therewith, he went up in appeal which was dismissed by the learned Additional Sessions Judge, Narnaul Being undaunted and dissatisfied with the judgments recorded by the courts below, the petitioner has preferred this revision.

This case was shown on the net number of times but none has appeared for the petitioner. I have heard the learned State counsel, besides perusing the record with due care and circumspection.

In the grounds of revision, it has been pleaded that Balwant Kumar and Manoj Kumar Pws are inter-related being father and son respectively. As stated they both were following Dr. Ravi Kumar deceased on scooter, which was being driven by Manoj Kumar. If it was so, how Balwant Kumar could assess the negligence or rashness of the petitioner in driving the truck. They were coming at a distance of 50/60 steps. The driver of the vehicle in which Dr. Ravi Kumar was removed to the hospital has not been examined. Admittedly, the truck was intercepted by Manoj Kumar after chasing the same. It implies that it was not stopped at the spot. That being so, it cannot be presumed to be involved in the accident. Furthermore, the mechanical report has not been produced. Only such report could have proved as to whether or not any damage was caused to the scooter or the truck involved in the accident. Apart from this, the learned trial Court has not recorded a definite finding to the effect that the truck driver was driving the truck rashly and negligently. To add further to it, the Investigating Officer has not been examined. In accident cases, the non-examination of the Investigating Officer is a serious lapse as he was to prove the site plan of the place of the occurrence and mechanical inspection report of the vehicle which were material documents to corroborate the ocular account tendered by Balwant Kumar and his son Manoj Kumar PW.

To controvert these submissions, the learned State counsel has maintained that on evaluating the evidence trickled from the respective mouths of Balwant Kumar as well as Manoj Kumar, it stands abundantly established that the accident had taken place because of rashness or negligence on the part of the petitioner in driving the offending truck.

I have given a deep and thoughtful consideration to the rival contentions.

Manoj Kumar PW-5 has stated in categoric terms that "My father had discussion with Dr. Ravi (referring to the deceased) regarding his disease and shortly thereafter Dr. Ravi Kumar finished off his work and we started on two separate scooters." It is further in his evidence that "at about 2/2-30 P.M. when they reached near Adampur which is on Dadri-Narnaul road, meanwhile, truck being driven in rash and negligent manner and at high speed came from the side of Narnaul. The same was sped away after it had struck against the scooter of Dr. Ravi who fell down and sustained injuries and his scooter got damaged. He further stated that "I stopped my scooter and having dropped my father there, chased the truck on my own scooter and intercepted driver of the truck at some distance. This testimony finds corroboration from the evidence tendered by Balwant Kumar PW-3. On appraisal of their evidence, it emerges out that the truck driver was apprehended by giving a chase. The medical evidence tendered by Dr. Anil Mathur PW-6 clearly indicates that as many as six injuries were received by Dr. Ravi Kumar in this road accident. Of course, neither the mechanical report has been proved, nor the Investigating Officer has been examined, but these two infirmities pale into insignificance in view of the fact that the accused-revisioner was captured at some distance by giving a chase. The mechanical report of the truck finds place at page 87 and that of the scooter appear at page 81 of the trial Court''s record. These could not be proved for the reason that the prosecution evidence was closed by order of the Court. In mechanical report of the truck, it has been mentioned that due to accident right front bumper has got bent. In the mechanical report of the scooter, it has been mentioned that due to accident, half portion of the scooter has been damaged. The mere non-exhibiting of these reports as well as the site plan is rendered inconsequential in the face of evidence given by Balwant Kumar as well as Manoj Kumar PWs, who have consistently deposed that the accident occurred owing to the driving of the offending truck by the petitioner in a rash and negligent manner. The learned trial Court has observed that "The statement of PW-3 Balwant Kumar is duly corroborated with the statement of PW-5 Manoj Kumar. No major contradiction and discrepancy came into light before this Court in the above testimony of material witnesses which goes to the root of the case and makes the case of the prosecution doubtful. The identification of the accused is not doubtful as he was apprehended at the place of the occurrence." These observations can be well construed to mean that indeed the accident is a consequence of rash and negligent driving of the offending vehicle by the petitioner. Balwant Kumar as well as Manoj Kumar Pws being the stamped witnesses as they had seen the accident taking place, their evidence by no process of reasoning can be brushed aside. Much stress has been laid on the non-examination of the Investigating Officer. When the occurrence has been established by the evidence tendered by the aforesaid witnesses who have tendered ocular account, mere non-examination of the Investigator would not be enough to throw away the prosecution case. The non-appearance of the Investigator wittingly or unwittingly should not be counted against the complainant party. He was simply to prove the rough site plan. In Birender Rai and Ors. v. State of Bihar AIR 2005 SC 1284, it has been observed by the Supreme Court that no prejudice has been caused to defence by non-examination of the Investigating Officer. In Raj Kishore Jha v. State of Bihar and Ors. 2003 (4) RCR (Criminal) 935, the Supreme Court held that "non-examination of the Investigating Officer does not in any way create any dent in the prosecution case much less affect the credibility of otherwise trustworthy testimony of the eye witness." In Behari Prasad etc. etc. Vs. State of Bihar, , it was held that "case of prejudice likely to be suffered mostly depends upon facts of each case and no universal strait jacket formula should be laid down that non-examination of Investigating Officer per se vitiates the criminal trial." The said view has been found echoed in Ambika Parsad and Anr. v. State (Delhi Administration) 2001 (1) RCR (Criminal) 643 SC, Bahadur Naik v. State of Bihar 2000 (3) RCR (Criminal) 217 SC, and Ram Gulam Chaudhary and Ors. v. State of Bihar 2001 (4) RCR (Criminal) 347 SC. Reverting back to the facts of the instant case, it bears repetition that when the statements of the eye witnesses have fully demonstrated on the record that the life of Dr. Ravi deceased was snuffed because of rashness or negligence on the part of the petitioner in driving the truck, it would be going too far to allow the petitioner to go scot free merely because of non-examination of the Investigator. As is well settled, the prosecution is to establish the broad outlines and substratum of the prosecution case. In the instant one, the same has been established. In Krishna Mochi and Ors. v. State of Bihar etc. 2002 (2) RCR (Criminal) 567, it has been held by the Apex Court that non-examination of Investigator is not fatal for the prosecution unless it is shown that the accused has been prejudiced. In the present one, the record is quite barren to show if any sort of prejudice has been occasioned to the petitioner due to non-examination of the Investigator. In State v. Ratnakaran and Ors. 2001 (1) RCR(Criminal) 612, the Division Bench of Hon''ble Kerala High Court by relying upon Bihari Parshad''s case (supra) held that "non-examination of Investigator does not also vitiate the trial. It depends on facts of each case. In examination, if witnesses produced during trial admit the statement given before the Investigating Officer, non-examination of the Investigating Officer may not be fatal." In the case in hand, Balwant Kumar as well as Manoj Kumar Pws have clearly admitted the statements made by them before the Investigating Officer during the investigation. So, in view of afore-referred authorities, non-examination of the Investigator is not fatal to the prosecution case. As a sequel of the above discussion, the conviction is upheld.

As per the custody certificate taken on record, the petitioner has undergone 1 year 7 months and 3 days of the actual sentence. The petitioner has been facing the agony of trial since 1996. The incident is about 14 years old. Taking into consideration the cumulative facts and circumstances of the case, the sentence of the petitioner is reduced to the already undergone (1 year 7 months and 3 days). With this modification in the order of sentence, this petition is dismissed.

Since the petition has been decided, all pending Criminal Miscellaneous, if any, also stand disposed of.