Balwinder Singh v. State of Punjab

CRR-953-2008(O&M) #1# o o INoTHEoHIGHoCOURToOFoPUNJABo&oHARYANAoATo CHANDIGARH.

CRR-953-2008(O&M) Dat o!"oD #$%$!&'-0()03)2025o Ba*+$&, -o.$&/0. ......Petitioners. Vs. .tat o!"oP1&2a3. ......Respondent. CORAM'-o HON4B5EoMR)oJU.TICEoJA.JITo.INGHoBEDI o Present:- Mr. Surinder Garg, Advocate for the Petitioner.

Mr. Harkanwar Jeet Singh, Assistant Advocate General, Punjab.

***

JA.JITo.INGHoBEDI6oJ)(ORA5) o

The present revision petition has been filed impugning the judgment dated 19.03.2008 passed by Additional Sessions Judge (Adhoc), Fast Track Court, Muktsar whereby the appeal filed against the judgment of conviction and order of sentence dated 28.04.2007 passed by Chief Judicial Magistrate, Muktsar has been dismissed.

¶2The FIR in the present case came to be registered on

14.01.2002. The judgment of conviction was passed on 14.01.2002 by the Chief Judicial Magistrate, Muktsar. The Appeal filed against the order of conviction was dismissed on 19.03.2008 by the Additional Sessions Judge (Adhoc), Fast Track Court, Muktsar. The instant revision petition was filed VINAY MAHoAJnAN 21.05.2008 and has come up for final hearing now i.e. after a period of 22 CRR-953-2008(O&M) #2# years from the date of registration of the FIR.

¶3The brief facts of the prosecution case are that on 14.01.2002, a police party headed by ASI Kulwant Rai of Police Station Bariwala was coming from village Sarainaga towards Village Warring in connection with checking the arrangements for the Maghi Mela. When the police party reached near the school, in the area of village Warring, it was about 12.30 p.m.. One scooter was going ahead of the Jeep of the police. Three persons were sitting on the scooter. They were going towards Muktsar on their left side. When the scooter reached in front of the school, one Bus bearing No. PB30-A-9505 of People Transport Company, Muktsar came from the opposite side. Accused Balwinder Singh, resident of village Thandewala, was driving the Bus. He was already known to ASI Kulwant Rai. The bus came at a high speed and in a negligent manner. It struck the scooter. All the scooterists fell down and suffered injuries. The acccused fled away alongwith the bus. The injured were taken to Civil Hospital, Kotkapura by ASI Kulwant Rai. Two persons succumbed to the injuries on the way to the Hospital. The names of the deceased were later on known as Jugraj Singh alias Jajji son of Veer Singh, resident of Dogar Basti, Faridkot, and Sonu son of Jaswant Singh resident of Talwandi Bhai and the name of the third injured was known as Jaswant Singh son of Arjan Singh, resident of Talwandi Bhai. As per ASI-Kulwant Rai, accused Balwinder Singh caused the accident by his rash and negligent driving of the bus and committed offences punishable under Section 279/304-A/337/338/427 I.P.C. ASI Kulwant Rai drafted the ruqa Ex.PWB/A on the basis of which the formal FIR Ex.PWB/B was registered at Police Station-Sadar Muktsar. During further investigation, the post-mortem examination of the dead bodies was got conducted vide police request Ex. PWB/C and site plan Ex. PWB/D of the place of occurrence was CRR-953-2008(O&M) #3# prepared. The scooter and bus were taken into police possession. The accused was arrested. Statements of witnesses were recorded. After the completion of the investigation, the accused was challaned to face trial in the Court.

¶4After perusing the report under Section 173 of Cr.P.C. a prima facie case punishable under Section 304-A/279/337 of IPC was found to be made out against the accused and charges were framed.

¶5The prosecution examined PW-1 Jaswant Singh, PW-2 HC Ranjit Singh, PW-3 -ASI Makhan Singh, PW-4 Baljit Singh-Photographer, PW-5 HC Dharam Pal, PW-6 C. Ramesh Kumar, PW-7-Dr. Satish Kumar Jagga, PW-8-Kulwant Rai-ASI, PW-9 Dr. Munish Kumar Goyal, PW-10 Sheetal Singh, and PW-11 Jaswant Singh, Mechanic. The gist of their discrepancies are as under:- PW-1 Jaswant Singh was one of the injured and he was scooter driver. He deposed that about two years back prior to the occurrence on Maghi Mela, he was going on his scooter bearing no.8127. His son Sonu and his wife's Sister's husband Jugraj Singh were sitting on pillion seat. When they reached near the school, in the area of village Warring, one bus came from the opposite side and it caused the accident. He deposed that his son Sonu. and Jugraj Singh expired due to this accident. PW-2 HC Ranjit Singh is a formal witness. He proved the recovery memo Ex. PB by which photographs and negatives were taken into police possession. He also proved recovery memo Ex. PC by which, photocopy of the Registration Certificate of the Bus was taken into police possession. PW-3 ASI Makhan Singh has partly conducted the investigation of this case. He recorded the statements of Manjit Singh, and Kulbir Singh, CRR-953-2008(O&M) #4# Clerks. PW-4 Baljit Singh was the photographer. He proved photographs Ex.P.1 to Ex.P.5 and negatives Ex.P.6 to Ex.P.10. PW-5 HC Dharam Pal is also the formal witness. He proved recovery memo Ex. PW-5/A by which the scooter was taken into police possession. He also proved recovery memo Ex. PW5/B by which the Bus involved in the accident was taken into police possession. PW-6 C.Ramesh Kumar was the member of the police party of ASI-Kulwant Rai. He was the witness to the occurrence. He has supported the case of the prosecution. PW.7-Dr. Satish Kumar Jagga conducted the post-mortem examination of the dead body of Jugraj Singh and Sonu. He detailed the injuries found on the person of both the deceased. He also proved copy of post-mortem examination report qua. Jugraj Singh Ex.PW7/A and copy of post-mortem examination report qua Sonu Ex. PW7/B. PW.8-ASI Kulwant Rai was the eye-witness and the Investigation Officer of this case. He has unfolded the prosecution version as detailed above. He also proved ruqa Ex.PWB/A, formal FIR Ex. PWB/B., Police request for post-mortem examination Ex. PWB/C, rough site plan of the place of occurrence Ex. PWS/D. He also proved the recovery memos Ex. PWS/A and Ex.PW5/B. vide which the scooter and Bus involved in the accident were taken into police possession. This witness also proved recovery memo Ex. PC vide which copy of R.C. route permit and driving licence of the accused were taken into police possession. Copy of R.C. was proved as Ex.P.1, copy of route permit proved as Ex.P2 and copy of driving licence was proved as Ex.P.3. PW-9 Dr. Munish Kumar Goyal from Dayanand Medical CRR-953-2008(O&M) #5# College & Hospital, Ludhiana deposed that on 14.1.2002, injured Jaswant Singh was admitted in the emergency Ward of D.M.C. Ludhiana. He also proved on record the bed-head ticket of injured Jaswant Singh as Ex. PW9/A. PW-10 Sheetal Singh from the office of D.T.O. Muktsar deposed that the vehicle bearing по, РВ30-А-9505 was registered in the name of Brar Roadways, Muktsar and this bus was registered on 22.2.1996. He also proved copy of the R.C. of the Bus Ex.P.1 and authorization slip Ex.P.2. PW-11 Jaswant Singh is the mechanic. He mechanically examined the Bus bearing No.PB30-A-9505 and proved his report Ex.PW11/A.

¶6After the closure of the prosecution evidence, accused was examined under Section 313 of Cr.P.C. In order to afford him an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence. The accused denied his complicity in the case and pleaded false implication. No evidence in defence was produced by him.

¶7Based on the evidence led, the accused/petitioner came to be convicted and sentenced by the court of Judicial Magistrate Ist Class, Jalandhar vide judgment and order of sentence dated 05.12.2007 as under:-o O"" &# o 1&, -o . &t &# F$& RI7.Io $&o , "a1*to !"o . #t$!& 8a9: &to!"o"$& Section 304-A 02 Years Rs.5,000/- RI for 03 Months IPC

¶8The accused/petitioners preferred an appeal which came to be dismissed by the Court of Additional Sessions Judge (Adhoc), Fast Track Court, Muktsar vide judgment dated 19.03.2008.

¶9The aforementioned judgments are under challenge in the CRR-953-2008(O&M) #6# present petition.

¶10During the pendency of the instant revision petition, the sentence of the accused/petitioner was suspended vide order dated

27.05.2008.

¶11The learned counsel for the petitioner contends that the judgments of conviction are based on conjectures and surmises. There is no evidence on the rash and negligent driving of the accused. PW-6 C. Ramesh Kumar has admitted that both the vehicles were on their respective left sides of the road. Jaswant Singh in his cross examination did not prove the prosecution case and identify the accused. He has admitted that the accident had taken place due to their lapse in as much as it was he alongwith the deceased who were triple riding on the scooter no.8127. No test identification parade has been conducted as the accused had not been arrested at the spot. The offending vehicle in question is stated to be of the "People's Bus Service" but was registered in the name of "Brar Roadways". This fact also creates a doubt in the prosecution case. He thus contends that the present petition be allowed and the accused acquitted of the charges framed against him. In the alternate he prays that the accused be granted the benefit of probation or reduction of sentence.

¶12The Counsel for the State on the other hand has placed on record the custody certificate dated 26.02.2025. He contends that the offence stands established beyond reasonable doubt. The identification of the accused as driving the offending vehicle in a rash and negligent manner is apparent from the evidence available on record including that of the complainant PW-8 ASI Kulwant Rai. PW-1 Jaswant Singh, an injured witness has also supported the prosecution case in his examination in chief but only took a volte-face in his cross examination. If the evidence of this CRR-953-2008(O&M) #7# witness is considered in its entirety, there is no doubt whatsoever that the offence has been committed by the accused and none else. He therefore, contends that offence stands established beyond doubt and the present petition is liable to be dismissed. As regards the prayer for probation or reduction of sentence, he contends that 02 lives were lost in the occurrence and the accused did not deserve any sympathy.

¶13I have heard counsel for the parties.

¶14A perusal of the record shows that PW-8 ASI Kulwant Rai is a complainant in this case. He has categorically stated in the court that he had witnessed the occurrence and that he knew the driver Balwinder Singh earlier also. While driving his bus no.PB-30-A 9505 in a rash and negligent manner, the accused struck the scooter, after going on the wrong side of the road. On the similar lines is the testimony of PW-6 C. Ramesh Kumar, who had taken the dead body of Jugraj Singh and Sonu to the hospital. So, his presence on the spot cannot be doubted. This witness has also attributed rash and negligent driving to the accused. Both the abovesaid witnesses saw the accident taking place. PW-1 Jaswant Singh in his examination-in-chief, has categorically stated that the accident in question was caused by the driver of the bus, which was red in colour and belonged to the People Bus Service. So, in view of the entirety of the evidence on record, the accused cannot be said to be innocent only on the basis of the cross examination of PW-1 Jaswant Singh.

¶15As regards not holding of a test identificatioin parade it is relevant to note that the complainant ASI Kulwant Rai has categorically stated that he knew the driver of the offending bus earlier also and it was only because of this that he had mentioned the name of the driver and the registration number of the bus categorically in the ruqa sent by him to the CRR-953-2008(O&M)oooooooo o o o o o #8#o o o o policeostation.ooInothisoregardotheoHon'bleoSupremeoCourtoinotheoHon'bleo SupremeoCourtoinoRavioKapuroVersusoStateoofoRajasthan,o2012(4)oR.C.R.o (Criminal)o245,oheldoasounder:-o "32.oIno theo presento case,o theo accusedo hado beeno seeno byo PW2o ando PW4.o Ino addition,otheyohadoalsoostatedothatotheopassersbyohadoinformedothemothatotheo accusedowasodrivingotheobusoand,oinofact,oheowasotheoowneroofotheobus.oOneofacto ofothisostatementoisoestablishedothatotheobusoinoquestionowasogivenoonosuperdario tootheoaccused.oItoisoalsoostatedobyotheseopersonsothatoafterotheyohadoseenotheo accused,oheohadorunoawayofromotheoplaceowhereoheoparkedotheovehicle.oTheseo witnessesoalsooidentifiedotheoaccusedoinotheoCourt.oItoisonototheocaseoofotheo accusedobeforeousothatoheohadobeenoshownotootheowitnessesopriorotoohisobeingo identifiedoinotheoCourt.oTheoCourtoidentificationoitselfoisoaogoodoidentificationoino theoeyesoofolaw.oItoisonotoalwaysonecessaryothatoitomustobeoprecededobyotheotesto identificationoparade.oItowilloalwaysodependouponotheofactsoandocircumstanceso ofoaogivenocase.oInooneocase,oitomayonotoevenobeonecessaryotooholdotheotesto identificationoparadeowhileoinotheoother,oitomayobeoessentialotoodooso.oThus,onoo straightjacketoformulaocanobeostatedoinothisoregard.oWeomayoreferotooaojudgmento ofothisoCourtoinotheocaseoofoShyamaloGhoshov.oStateoofoWestoBengalo[2012o(6)o SCALEo381]owhereinothisoCourtohasoheldothatotheoCodeoofoCriminaloProcedure,o 1973o(foroshorto"CriminaloProcedureoCode)odoesonotoobligeotheoinvestigatingo agencyotoonecessarilyoholdotheotestoidentificationoparadeowithoutoexception.oTheo Courtoheldoasounder:oo "55.o OnobehalfoofoaccusedoShyamal,oitowasoalsoocontendedo thatodespiteotheoidentificationoparadeobeingoheld,oheowasonoto identifiedo byo theo witnesseso ando alsoo thato theo identificationo paradeohadobeenoheldoafteroundueodelayoandoevenowhenodetailso abouto theo incidento hado alreadyo beeno telecastedo ono theo television.o Thus,o theo Courto shouldo noto relyo upono theo identificationoofotheoaccusedopersonsoasotheopersonsoinvolvedoino theo commissiono ofo theo crimeo ando theyo shouldo beo giveno theo benefitoofodoubt.o

56.oo TheowholeoideaoofoaoTestoIdentificationoParadeoisothato witnessesowhooclaimotoohaveoseenotheoculpritsoatotheotimeoofo occurrenceoareotooidentifyothemofromotheomidstoofootheropersonso withoutoanyoaidooroanyootherosource.oTheotestoisodoneotoochecko uponotheiroveracity.ooInootherowords,otheomainoobjectoofoholdingo anoidentificationoparade,oduringotheoinvestigationostage,oisotoo testotheomemoryoofotheowitnessesobasedouponofirstoimpressiono andoalsootooenableotheoprosecutionotoodecideowhetheroallooroanyo ofothemocouldobeocitedoasoeyewitnessesoofotheocrime.ooo

57.oo ItoisoequallyocorrectothatotheoCriminaloProcedureoCodeo doesonotoobligeotheoinvestigatingoagencyotoonecessarilyoholdotheo Testo Identificationo Parade.o o Failureo too holdo theo testo identificationoparadeowhileoinopoliceocustody,odoesonotobyoitselfo renderotheoevidenceoofoidentificationoinocourtoinadmissibleooro unacceptable.o Thereo haveo beeno numerouso caseso whereo theo accusedoisoidentifiedobyotheowitnessesoinotheocourtoforotheofirsto time.oOneoofotheoviewsotakenoisothatoidentificationoinocourtoforo theofirstotimeoaloneomayonotoformotheobasisoofoconviction,obuto thiso iso noto ano absoluteo rule.o Theo purposeo ofo theo Testo Identificationo Paradeo iso too testo ando strengtheno theo trustworthinessoofothatoevidence.oItoisoaccordinglyoconsideredoao safeoruleoofoprudenceotoogenerallyolookoforocorroborationoofotheo swornotestimonyoofotheowitnessesoinocourtoasotootheoidentityoofo theoaccusedowhooareostrangersotoothem,oinotheoformoofoearliero identificationoproceedings.oThisoruleoofoprudenceois,ohowevero subjectedo too exceptions.o Referenceo cano beo madeo too Munshio SinghoGautamov.oStateoofoM.P.o2005(1)oRCRo(Criminal)o361:o VINAYgMAHAJAN 2025.03.04g12:58 Igattestgtogthegaccuracygand integritygofgthisgdocument CRR-953-2008(O&M) #9# 2005(1)o 'petio Criminalo 202/%(2005)1o SCCo &*1,,o Sheoo Shan2aroSin$hovoStateoofo3har2han4oan4o'nr.,o2011o(2)oRCRo (Criminal)o &*4o /o 2011(2)o Re5ento 'petio 3u4$mentso (R.'.3.)o 452/o%(2011)*oSCCo&54,.ooo -2.oo IdentificationoParadeoisoaotooloofoinvestigationoandoiso usedoprimarilyotoostrengthenotheocaseoofotheoprosecutionoonotheo oneohandoandotooma!eodoublyosureothatopersonsonamedoaccusedo inotheocaseoareoactuallyotheoculprits.o"heoIdentificationoParadeo primarilyobelongsotootheostageoofoinvestigationobyotheopolice.o "heofactothatoaoparticularowitnessohasobeenoableotooidentifyotheo accusedo ato ano identificationo paradeo iso onlyo ao circumstanceo corroborativeoofotheoidentificationoinocourt.o"hus,oitoisoonlyoao relevantoconsiderationowhichomayobeoe+aminedobyotheocourtoino viewo ofo othero attendanto circumstanceso ando corroborativeo evidenceowithoreferenceotootheofactsoofoaogivenocase.3ooo

33.o o Ino ouro consideredo view,o ito waso noto necessaryo too holdo theo testo identificationoparadeoofotheoappellantoforotwooreasons.ootiirstly,otheoappellanto wasoalreadyo!nownotootheopassersbyowhoohadorecogni4edohimowhileodrivingotheo busoandohadostatedohisonameoand,osecondly,oheowasodulyoseen,othoughoforoao shortobutoreasonableoperiod,owhenoafteropar!ingotheobus,oheogotodownofromotheo busoandoranoawayo.o o o o o o o o o 56mphasisosupplied7

¶16As regards the contention of the accused that as per the prosecution version given by ASI Kulwant Rai, the offending bus belonged to the People Transport Company, whereas PW-10 Sheetal Singh, Clerk DTO Office, Muktsar has proved the registration of the bus in the name of Brar Roadways is concerned, it is discernible from the record that the complainant, ASI Kulwant Rai had mentioned the registration number of the bus in the ruqa itself. Therefore, it makes little difference whether the bus in question belonged to People Bus Service or Brar Roadways. The only relevant fact is that the bus no.PB-30A-9505 was being driven by the accused Balwinder Singh and that the identity of the driver and the bus has been fully established.

¶17From the record it is apparent that the accident in question took place at 12.30 pm and Jugraj Singh and Sonu got injured and subsequently died in the said accident because of the rash and negligent driving of the accused. The post mortem of the dead body of these persons was conducted on the next day. The rash and negligent driving of the accused has already been proved by PW-6 Ramesh Kumar and PW-8 ASI Kulwant Rai, as well CRR-953-2008(O&M)oooooooo o o o o o #10#o o o o aso thato ofo PW-1o Jaswanto Singh.o o Ifo theo prosecutiono hado reliedo upono theo testimonyoofoPW-1oalone,othen,oitocouldohaveobeenosaidothatotheocaseoagainsto theo accusedo couldo noto beo provedo beyondo doubt.o o However,o wheno theo testimonyoofoPW-6oandoPW-8oareoonotheofile,othenoitocanobeoeasilyosaidothato theoprosecutionoohasofullyoprovedotheoguiltoofotheoaccusedounderoSectiono304-AoIPC.ooo

18.o o Inoviewoofotheoaboveodiscussion,oIofindonoomeritoinotheopetitiono andotheosameostandsodismissed.oo

19.o o Asoregardsotheoimpositionoofosentence,oitomayobeopointedoouto thatothisoCourtoinoGurmukhoSinghoVs.oStateoofoPunjaboCRRoNo.2168-2014o Decidedoono13.12.2023oheldoasounder:-o "o21.oThusotwooparallelothreadsoareo:o a.o Courtsoshouldonormallyoavoidoshowingoundueoo sympathyo too theo accusedobyoimposingoinadequateosentenceoasotheosameoisoharmfulotoo theojusticeosystemo;oando b.o TheoSupremeoCourtohasorepeatedlyoconsideredotheofactothatoordealoofo facingopangsoofoprolongedotrialoneedsotoobeoconsideredoowhileo decidingoadequacyoofosentenceoinotheomattersopertainingotoooffenceo punishableounderoSectiono304-AoIPC.oo Whereo theo accusedo haso facedotheoprolongedotrialorunningointoomoreothanoaodecadeobeforeoito isofinallyoconcludedobyotheoHighoCourtoorotheoSupremeoo Courto ando botho theo Courtso foundo thato theo victimo needso too beo compensatedo adequately,otheotimeospentoinotheolisobyoanoaccusedoandocompensationo too theo victimo cano formo relevanto considerationso foro reductiono ino sentence.o

22.oo Inotheopresentocaseotheopresentorevisionoisopendingoconsiderationoforo o lastonineoyears.ooFIRorelatesotootheoyearo2007.ooTheopetitionerowaso o grantedosuspensionoofosentenceoono27.10.2014oafteroheoexpressedohiso o readinessotoocompensateotheovictimobyopayingoRs.1.00olac.oTheoafore o saidoamountostandsopaid.oTheoquestionois,ohavingopaidocompensationo o asoperotheoordersoofothisoCourto9oyearsoback,oshouldotheopetitionerobeo o askedo too goo backo behindo bars?o Ito iso ino theseo mitigatingo circum o stanceso thato thiso Courto findso ito appropriateo too followo theo orderso o passedobyoApexoCourtoinoK.oJagdish'socaseo(supra)oasotheofactsoinotheo o presentocaseoareoalmostosimilarotoothoseobeforeotheoApexoCourt.oIo o mayohastenlyoaddohereothatotheopetitioneroisoclaimedotoohaveopaido o compensationo ando neithero theo Stateo noro theo victimo haso agitatedoVINAYgMAHAJAN 2025.03.04g12:58 Igattestgtogthegaccuracygand integritygofgthisgdocument CRR-953-2008(O&M)oooooooo o o o o o #11#o o o o o againsto theo ordero passedo byo thiso courto askingo theo petitionero toooooooo o depositocompensationoandograntingohimosuspensionoofosentence.o

23.oo Theo petitionero iso ao firsto timeo offendero ando haso noo pasto criminalo o recordo oro antecedents.o Heo iso noto reportedo too haveo evero misusedo o concessiono ofo bail/suspensiono ofo sentence.o Heo haso undergoneo o abouto 6o monthso outo ofo substantiveo sentenceo ofo 1o yearo ando haso o alreadyofacedoprotractedotrialoforolasto16oyears.o

24.oo Takingo intoo considerationo allo theseo factso cumulatively,o theo o substantiveo sentenceo ofo 1o yearo awardedo too theo petitionero byo theo o Courtsobelowoisoreducedotootheoperiodoalreadyoundergoneobyoo him.o

25.oo Petitionoisodisposedooff,oaccordingly."o o

20.o o Itomayobeoreiteratedohereothato02opersonsohaveolostotheirolives.oo However,otheocustodyocertificateowouldorevealothatotheopetitionerodoesonoto haveo criminalo antecedents.o o Therefore,o ino theo peculiaro factso ando circumstancesoofotheocaseoincludingotheofactothatotheooccurrenceopertainsotoo theoyearo2002oandoasomanyoaso22oyearsohaveopassedoeverosinceothen,osubjecto tootheopaymentoofotheofineoasoimposedoandopaymentoofoRs.1oLacoeachoaso compensationotoobeopaidotootheolegaloheirsoofotheodeceased,otheosentenceoofo theoaccused/petitioneroisoreducedotooaoperiodoofo01oyear.o

20.o o Theopresentorevisionopetitionostandsodisposedoofoinotheoaboveo terms.ooooo o o o o o o o o ooo(oJASJIToSINGHoBEDIo)o o ooooooo o ooooooooooo o o oooooo ooooooooJUDGEo o o o o o o ooooo Marcho04,o2025o Vinayo Whetherospeaking/reasonedo Yes/Noo Whetheroreportableo Yes/Noo o o o VINAYgMAHAJAN 2025.03.04g12:58 Igattestgtogthegaccuracygand integritygofgthisgdocument