Tara Chand vs State of Punjab

Harbans Lal, J.—This revision is directed against the judgment dated 21.11.2002 passed by the court of learned Additional Sessions Judge, Patiala whereby he dismissed the appeal filed by Tara Chand accused reducing sentence u/s 304-A of the Indian Penal Code by six months while maintaining the sentence awarded under other Sections by the court of learned Sub Divisional Judicial Magistrate, Rajpura who vide his judgment/order of sentence dated 24.9.2001 had convicted and sentenced the accused to undergo rigorous imprisonment for two years and to pay a fine of Rs. 3000/- u/s 304-A of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for 6 months and also sentenced him to undergo rigorous imprisonment for 1 year and to pay a fine of Rs. 1000/- u/s 338 of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for 3 months and also sentenced him to undergo rigorous imprisonment for 6 months and to pay a fine of Rs. 500/- u/s 337 of the Indian Penal Code and in default of payment of fine to further undergo rigorous imprisonment for 1 month and further sentenced him to undergo rigorous imprisonment for 6 months u/s 279 of the Indian Penal Code with a further direction that the substantiative sentences shall run concurrently.

The facts in brief are that on 5.3.1994 Joginder Paul Grover made statement before ASI Nirmal Singh in the terms that on that day at about 3/3.15 A.M. he alongwith his wife Sushma Grover was travelling in Maruti van bearing registration No. HR-13-0138 being driven by Mukhtiar Mohmad from Delhi towards Goraya. When they were about 1 km short of Octroi post, meanwhile a truck bearing registration No. JKU-2465 being driven by Tara Chand accused in a rash and negligent manner came on high speed and struck against their Maruti van. These vehicles had head on collision. He, his wife and driver Mukhtiar Mohmad sustained injuries. Later on, his wife as well as Mukhtiar Mohmad succumbed to the injuries. On the basis of this statement, the case was registered. The accused was arrested. After completion of investigation the charge-sheet was laid in the court of learned Ilaqa Magistrate for trial of the accused.

The accused was charged under Sections 304-A/337/338/279 of the Indian Penal Code to which he did not plead guilty and claimed trial. After examining as many as six witnesses, the prosecution closed its evidence.

When examined u/s 313 of Cr.P.C., the accused denied the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well as false implication. He did not adduce any evidence in 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 as noticed at the outset. Feeling aggrieved therewith, he went up in appeal which was dismissed by the learned Additional Sessions Judge, Patiala with the modification in sentence as noticed (supra). Being undaunted and dissatisfied with the judgments recorded by both the Courts below, he has preferred this revision.

I have heard the learned Counsel for the parties, besides perusing the record with due care and circumspection.

The learned Counsel for the petitioner submitted with a good deal of force that the medical evidence is not forthcoming on the record to establish that Sushma Grover as well as Mukhtiar Mohmad had sustained injuries in this accident and ultimately succumbed to such injuries as no post mortem report of either deceased has been produced and proved by the prosecution. He further puts that there is inexplicable delay of 3 days in lodging the F.I.R. Besides this, the accident did not take place due to the negligent and rash driving of the petitioner. The truck was stationary when the Maruti van struck there-against as is being depicted by the photographs available on the record. He has sought to place abundant reliance on Amritlal v. State of Madhya Pradesh 2006(2) R Cri R 491, Satish Kumar v. State of Haryana 2008(3) All I CriLR 419 and Sansar Singh v. State of U.T. Chandigarh 1999(3) Recent Criminal Reports(Criminal) 779.

To tide over these submissions, the learned State Counsel maintained that a glance through statements of material witnesses namely Kewal Krishan PW-1 and Joginder Paul Grover PW-2 injured would reveal that they have not been cross-examined at all. It implies that the prosecution version has been admitted by the petitioner.

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

There is no gain saying the fact that the post mortem report of Sushma Devi Grover or Mukhtiar Mohmad deceased has not been proved, nor the Doctor who had performed autopsy on their respective dead bodies has been examined. Of course, even an iota of cross-examination has not been directed against PW Kewal Krishan or Joginder Pal Grover PW, but this does not relieve the prosecution of its obligation to establish the charged offence. In the absence of post mortem report it cannot be said with absolute certitude that the persons who had lost their lives in accident were Sushma Grover and Mukhtiar Mohmad. In Amrit Lal(supra) the Division Bench of Madhya Pradesh High Court has held that the postmortem report, cannot be relied upon without examining the Doctor even if the defence counsel is admitting the post mortem report. In the present one, it is not the case of the prosecution that the learned defence counsel who was conducting the case on behalf of the petitioner before the learned trial Court had admitted the post mortem reports of Sushma Grover and Mukhtiar Mohmad or either of the two. Thus the instant one is a case worst than Amrit Lal''s case so far as the offence punishable u/s 304-A of the Indian Penal Code is concerned. In Satish Kumar case(supra) which was also under Sections 279/304-A of the Indian Penal Code, it has been held that "It was necessary that post mortem report, photographs and site plan should have been proved and Investigating Officer ought to have been examined. In Sansar Singh''s (supra) which was also a case u/s 304-A/279 of the Indian Penal Code, the Doctor who had performed the post mortem examination was not examined. It was held that without examination of Doctor, it could not be proved that death was caused due to injuries suffered in accident. In the case in hand, in the absence of examination of the Doctor who had conducted post mortem on the dead bodies of Sushma Grover and Mukhtiar Mohmad, it is very difficult to say that they had died due to injuries suffered in the accident. Sequelly, the petitioner is acquitted of the charge u/s 304-A of the Indian Penal Code.

On evaluating the evidence tendered by Dr. I.C. Taneja PW-4, it transpires that on 5.3.1994, he medico-legally examined Joginder Pal s/o late Shri Hakam Rai Grover PW-2 and found as many as 8 injuries on his person. It is in his cross-examination that "he (referring to Joginder Pal) was conscious and told me that he received injuries in an accident." The sum and substance of the evidence trickled from the mouth of Joginder Pal Grover(PW-2) is that he has sustained injuries during the accident which was caused by the petitioner while driving the vehicle bearing registration number JKU-2465 rashly or negligently. This statement is substantiated by the medical evidence given by above mentioned Doctor. Kewal Krishan PW-1 who has witnessed the accident taking place, has also corroborated the evidence given by Joginder Pal Grover PW-2. On appraisal of this evidence, there can be no escape from the finding that the charge u/s 337/338 of the Indian Penal Code is fully established against the petitioner though the charge u/s 304A of I.P.C. fails. With this modification, the conviction of the petitioner is upheld under Sections 337/338 of the Indian Penal Code.

The learned Counsel for the petitioner submits that this incident being 16 years old, the petitioner may be released on probation.

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

The petitioner has been facing the agony of trial since March, 1994. In view of the offences for which he has been found guilty, the ends of justice will be adequately met, if he is released on probation. In the factual scenario, the petitioner shall be released on probation of good conduct on being furnished requisite bonds for two years in the sum of Rs. 5000/- to the satisfaction of the learned trial Court within three months from the date of the receipt of certified copy of this judgment. The petitioner during his probation period shall keep the peace and be of good behaviour. He shall come and receive sentence as and when required by the Court. With this modification in the order of sentence, this revision is partly accepted.