Bijender vs State Of Haryana
2022 Latest Caselaw 1186 P&H

CRR-133-2022(O&M)                                                 #1#


        IN THE HIGH COURT OF PUNJAB & HARYANA AT
                      CHANDIGARH.

                     (Through Video Conferencing)

                                                      CRR-133-2022(O&M)

                                               Date of Decision:-04.03.2022

Bijender.

                                                                  ......Petitioner.

                                  Versus

State of Haryana.

                                                               ......Respondents.


CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI


Present:-   Mr. Ivneet Singh Pabla, Advocate for the Petitioner.

                               ***

JASJIT SINGH BEDI, J.

The present revision petition has been filed against the order

dated 15.12.2021 passed by the learned Additional Sessions Judge, Jhajjar

vide which the appeal preferred by the petitioner against the judgment of

conviction and order of sentence dated 29.11.2018 and 30.11.2018 passed

by Sub-Divisional Judicial Magistrate, Bahadurgarh, has been dismissed.

2. Briefly, the present case was got lodged on the statement of

Sunil Kumar son of Rajpal to the effect that on 22.12.2013, he was coming

from Bahadurgarh to his village Chhara in his vehicle bearing registration

No.HR-13E-8500 make Mahindra Logan. One motor cycle CD Delux

bearing registration No.HR-13E-5867 was going in front of his vehicle near

Rewari Kheda Turn, which was driven by his co-villager Vicky and Dinesh

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was the pillion rider. At about 3.30 PM, when they reached on Rewari

Kheda Mod, an Eicher Canter being driven in a rash and negligent manner

by its driver came from the side of Bahadurgarh without blowing the horn

or giving an indicator and hit the motor cycle from the back. Due to this,

Dinesh and Vicky fell down on the road along with the motor cycle and

sustained multiple injuries. The registration number of the offending

vehicle was HR-63B-4119 and the driver disclosed his name as Bijender

son of Jagbir Singh. Many people gathered on the spot and when he was

holding Dinesh and Vicky the driver of the Canter fled away from there.

Thereafter, he took Dinesh to GH Jhajjar, where he was declared dead by

the doctor and Vicky was taken to PGIMS, Rohtak by his family members.

The said accident took place due to the rash and negligent driving of the

driver of the offending canter, Hence, legal action may be taken against him.

3. On the basis of above facts, FIR No.642 dated 22.12.2013

under Section 279, 337 and 304-A IPC P.S. Sadar Bahadurgarh was lodged.

After registration of the case, investigation was set into moti on and after

collecting sufficient evidence, the accused was arrested. After completion

of the investigation, challan was prepared and presented before the Court,

copy of which was supplied to the accused free of costs as envisaged under

Section 207 Cr.PC.

4. After having heard the accused on charge, the then learned

JMIC, Bahadurgarh, found a prima facie case punishable under Sections

279, 337, 338 and 304-A of IPC made out against the accused and he was

charge sheeted accordingly, to which he pleaded not guilty and claimed

trial.

5. In order to prove its case the prosecution examined as many as

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ten witnesses.

PW-1 : Pawan son of Sultan Singh, identified the dead body of deceased Dinesh.

PW-2 : Sunil Kumar (complainant) proved the contents of his complaint Ex.PW-2/A PW-3 : Vikas @ Vicky (eye witness), witnessed the accident and supported the version of the complainant and proved the memo Ex.PW-3/A vide which motor cycle, registration certificate, photocopy of admission card and discharge card and his driving licence were taken into police possession.

PW-4 : SI Ramesh Kumar, (investigating Officer) proved the complaint Ex.PW-2/A, tehrir Ex.PW-4/A, FIR Ex.PW- 4/B, endorsement on tehrir Ex.PW-4/C, death report of deceased Dinesh Ex.PW-4/D, site plan Ex.PW-4/E, recovery memo of offending canter Ex.PW-4/F, photographs of place of occurrence and offending vehicle Ex.PW-4/G to Ex.PW-4/J, memo vide which driving licence of accused and insurance papers of offender canter were taken into possession Ex.PW-4/K. PW-5 : Dr. Sameer Minocha, tender his affidavit Ex.PW-5/A and proved the copy of postmortem report of deceased Dinesh as Ex.PW-5/B.

PW-6 : Ramphal, brought the summoned record and proved the medical file Ex.PW-6/A of injured Vikas.

PW-7 : EHC Rajpal, proved the recovery memo of papers of the motor cycle and driving licence of injured as Ex.PW-4/C and recovery memo of offending canter Ex.PW-4/F. PW-8 : EASI Bal Kishan, proved the mechanical examination report of motor cycle as Ex.PW-8/B and of canter bearing No.Ex.PW-8/A.

PW-9 : Narender Singh, proved the superdarinama of canter Ex.PW-9/A.

      PW-10 :    Dr. Piyush, proved the X-ray films Ex.P1 to Ex.P15, CT


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 CRR-133-2022(O&M)                                                #4#

Scan Ex.P16, X-ray report Ex.PW10/A and CT Scan report Ex.PW10/B

6. Thereafter the evidence of the prosecution was closed by the

learned PP for the State vide her separate statement dated 15.05.2017.

7. The accused was examined under Section 313 Cr.PC where he

denied all the allegations and pleaded his false implications. However,

accused did not examine any witness in his defence.

8. Thereafter vide judgment of conviction dated 29.11.2018 and

order of sentence dated 30.11.2018 passed by Ms. Deepti, learned SDJM

Bahadurgarh, the accused was convicted as under:-

Sr. No. Offence under Sections Imprisonment      Fine           In default of
                                                                fine
                                                                imprisonment
1.      279 of   Indian   Penal Rigorous         Rs.200/-       Simple
        Code                    imprisonment                    Imprisonment
                                for two months                  for 15 days
2.      337 of   Indian   Penal Rigorous         Rs.200/-       Simple
        Code                    imprisonment                    Imprisonment
                                for two months                  for 15 days
3.      338 of   Indian   Penal Rigorous         Rs.500/-       Simple
        Code                    imprisonment                    Imprisonment
                                for six months                  for one month
4.      304-A of Indian Penal Rigorous           Rs.1000/-      Simple
        Code                  imprisonment                      Imprisonment
                              for two years                     for two months

9. Aggrieved with the impugned judgment of conviction and order

of sentence the petitioner filed an appeal before the ASJ, Jhajjar. In appeal

the judgment of conviction and order of sentence of the Trial Court was

affirmed and the petitioner was ordered to be taken into custody and sent to

District Jail, Jhajjar for undergoing the remaining sentence awarded to him

vide judgment dated 15.12.2021.

10. Thereafter the petitioner has filed the instant revision petition

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challenging both the judgments of the Trial Court and the Lower Appellate

Court.

11. The learned Counsel for the petitioner has argued that the

presence of the eye witnesses, namely, the complainant-Sunil Kumar (PW-

2) and injured witness Vikas @ Vicky (PW-3) is highly doubtful on the

spot. He has stated that only Dinesh deceased was shifted to the hospital by

the complainant leaving behind Vikas @ Vicky, the injured eye witness

which shows that the complainant was not present at the spot at the time of

alleged accident. He has further contended that Vikas, PW-3 ought to have

been taken to the emergency of PGIMS, Rohtak, which makes his presence

at the spot doubtful. He has further contended that if the presence of PW-2

and PW-3 was doubtful then the identification of the petitioner as the

accused could not have been established. Thus, his contention was that the

petitioner ought to be acquitted on account of the fact that he was not

identified properly, the presence of the witnesses was doubtful and there

was no evidence of the petitioner driving the canter in a rash and negligent

manner.

12. I have heard learned Counsel for the petitioner at length.

13. The evidence of PW-3 Vikas @ Vicky has been placed on

record as Annexure P-1 and that of PW-2 Sunil Kumar-complainant as

Annexure P-2 . A perusal of the two statements clearly establish that both

the witnesses were present at the spot. In fact, so far as the injured witness

PW-3 Vikas @ Vicky is concerned he was admitted in hospital and has duly

identified the accused person in court as the driver of the offending canter.

He has spoken about the speed with which the canter of the accused struck

the motorcycle from behind. In a case under Section 304-A IPC it would be

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extremely difficult to disbelieve the eye version account of the accident

victim when he has received injuries in the occurrence because he can have

no possible motive to falsely implicate an accused who is unknown to him

prior to the occurrence. In this case, there is absolutely nothing to suggest

that Vikas @ Vicky had received injuries in some other occurrence and not

in the accident in question. Therefore, the version of PW-2 and PW-3

regarding the manner in which the occurrence took place as also the identify

of the accused cannot be disbelieved.

14. Furthermore, PW-5 Dr. Sameer in his testimony clearly proved

the postmortem report Ex.PW-5/B in which the cause of death of Dinesh has

been mentioned as hemorrhage and shock due to injuries to the vital organs

and all injuries are ante mortem in nature sufficient to cause death in normal

course of life. Further, PW-6 OTA Ramdhan in his testimony proved the

treatment record Ex.PW-6/A of injured Vikas, PW-3. PW-10 Dr. Piyush in

his testimony clearly proved X-Ray and CT Scan reports of injured Vikas,

PW-3 vide Ex.PW-10/A to Ex.PW-10/B.

15. The next argument of the learned Counsel for the petitioner was

that since the complainant Sunil-PW-2 in his examination in chief merely

stated about the offending vehicle being at a high speed and even in his

cross examination, he clearly stated that the all three vehicles i.e. his

vehicle, motorcycle and truck were going from Bahadurgah to Chara and

that since in the mechanical examination report of offending canter Ex.PW-

8/A and motorcycle Ex.PW-8/B, there was damage to the indicator only,

there was no rash and negligent driving by the petitioner. But this argument

of the learned counsel for the petitioner cannot be accepted because the

complainant in his examination in chief as PW-2 clearly stated about being

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struck by the offending vehicle from the back. Moreover, even in his cross

examination, he stated that the canter driver even overtook his vehicle but

he escaped and that the canter overtook without giving any dipper or

indicator. Even in the mechanical examination report Ex.PW-8/A of the

offending canter, there is a clear mention about scratches to the bumper and

the front tyre and in report Ex.PW-8/B of motorcycle, there is clear mention

about other damage and scratches to the motorcycle also. Moreover, even

the photographs Ex.PW-4/G to Ex.PW-4/J speak of the manner of the

offending vehicle being driving rashly and negligently. Furthermore, in Bir

Chand Vs. State of Haryana 2003(3) RCR (Criminal) 451 it has been

clearly stated that merely because the witness did not state that the accused

was driving in a rash and negligent manner would not be a ground to acquit

the accused because the circumstances of a case would establish that the

accused was driving in a rash and negligent manner and mere parrot like

repetition of the words in question was not required.

16. From the above, discussion it stands proved beyond any

shadow of doubt that the petitioner was the driver of the offending canter

which was being driven rashly and negligently, struck the motor cycle of the

injured and the deceased leading to the death of Dinesh and injuries to

PW-3 Vikas @ Vicky. Thus the offence having been clearly established

from the version of the eye witnesses as also the material on record, I find

no reason to interfere with the well reasoned judgments of the trial Court

and learned lower Appellate Court. Hence, this revision petition is hereby

dismissed.

However, since the petitioner is a first time offender and the

occurrence is almost 10 years old, I modify the sentence and reduce it to a

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period of 1-1/2 years while placing reliance on the judgments of Hon'ble

Supreme Court and this Court in Jaswant Singh Vs. State of Punjab 2020

(1) RCR (Criminal) 163 wherein the sentence was reduced to a period of

04 months and 27 days and State of Punjab Vs. Saurabh Bakshi 2015(2)

RCR (Criminal) 495 wherein the sentence was enhanced to 06 months

rigorous imprisonment. The quantum of fine and sentence in default shall

however remain intact.

                                         ( JASJIT SINGH BEDI )
                                               JUDGE
March 04, 2022
Vinay
       Whether speaking/reasoned                   Yes/No
       Whether reportable                          Yes/No




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