CIVIL APPEAL 186 of 2005 on 25 October 1998

Criminal Revision No.186 of 2005(O&M) [1]

IN THE HIGH COURT FOR THE STATES OF PUNJAB &HARYANA AT CHANDIGARH...

Criminal Revision No.186 of 2005(O&M)

Decided on : November 11, 2010

Paramjit @ Parminder Singh @ Nandu

... Petitioner

VERSUS

The State of Punjab

... Respondent

CORAM :

HON'BLE MR.JUSTICE A.N.JINDAL

Present:Mr.J.B.S.Gill, Advocate for the petitioner.

Mr.Amit Chaudhary, Assistant Advocate Generalfor the respondent – State of Punjab.

-A.N.JINDAL, J.

Assailed in this petition is the judgment dated 15.12.1994passed by Additional Sessions Judge (Ad-hoc) – Fast Track Court-II,Hoshiarpur dismissing the appeal of Paramjit Singh – accused/petitioner(herein referred as `petitioner') against the judgment dated 26.10.2002passed by Sub Divisional Judicial Magistrate, Garhshankar and maintainingthe sentence of rigorous imprisonment for three months and a fine ofRs.200/-, under Sections 279 and 338 on each count and rigorousimprisonment for one year and a fine of Rs.200/- under Section 304-A ofthe Indian Penal Code.

Briefly stated the prosecution version, as unfolded by SitaRani – complainant is that on 25.10.1998 at about 4.30 PM, she along withher children Daljinder Kumar, Sunil Kumar and Jyoti was coming tovillage Bharowal on her bullock cart. When they reached near puccacircular road of village Bharowal, the petitioner while driving truck bearingReg.No.PB-07C-0671 put it in reverse gear to take it back without givingany such warning and without watching the bullock cart going on the road.Consequently, it struck against the bullock cart, as a result of which SunilKumar, aged about 5/6 years fell down from the cart and came under the leftrear tyre of the truck and died on the spot. Other two children, namelyDaljinder Kumar and Jyoti also suffered injuries.

On the aforesaid statement of Sita Rani, the case wasregistered and investigated. On receipt of the report under Section 173 ofthe Code of Criminal Procedure, 1973, the petitioner was charged underSections 279, 338 and 304-A IPC, to which he pleaded not guilty andclaimed trial.

In order to prove its case, the prosecution examined Sita Rani –complainant (PW1), Jaswinder Singh (PW2), Baljinder Kumar (PW3), HCJagdish Chander (PW4), Machhinder Pal (PW5), Dr.Raghbir Singh (PW6)and Ashwani Kumar (PW7).

When examined under Section 313 of the Code of CriminalProcedure, 1973, the petitioner while denying all the incriminatingcircumstances against him, pleaded his innocence. Ultimately, the trial resulted into conviction. The appeal preferred by the petitioner also failed.

Conclusion

There are two eye-witnesses in the case; one is the complainantSita Rani, who while appearing in the witness box as PW1 reiterated thewhole version, as spelt out in the FIR. She stated on oath that on25.10.1998 at about 4.30 PM, she was going on her bullock cart to heragricultural land at village Bharowal along with her sons Sunil Kumar,Daljinder Singh and daughter Jyoti and when they reached near villageBharowal, the offending truck being driven by the petitioner rashly andnegligently put it in reverse gear, as a result of which it struck into herbullock cart. Consequently, her son was crushed under the wheel of thetruck and died on the spot and other children received injuries. The otherwitness is Baljinder Kumar (PW3), who being 13 years of age was acompetent witness. He has corroborated the testimony of Sita Rani –complainant. He, while giving the registration number of the vehicle, alsostated that the accused, present in court, was reversing back the same in arash and negligent manner and that Sunil Kumar had got crushed under rearleft wheel of the said truck. Moreover, the testimony of this witness cannotbe doubted, as he had also suffered injuries on the fateful day. Nothingmaterial could be elicited from their statements in order to impeach themdespite lengthy cross-examination conducted upon them. Both (PW1 &PW3) have also identified the petitioner in the Court and gave thecomplete scenario of the occurrence. None of them had any animosity orenmity of any type, whatsoever, so as to implicate the petitioner falsely inthis case.

Both the courts below have taken the consistent view that itwas the petitioner, who while reversing back the truck rashly andnegligently struck against the bullock cart of the complainant. Nothingmaterial could be argued, which may impel this court to differ with thefindings of fact, returned by both the courts below.

The powers of interference at this revisional stage are veryrestricted and could be made only if the impugned judgment was palpablywrong, perverse; ignoring the relevant evidence; taking into considerationirrelevant evidence or the court while holding the trial misconducted theproceedings. It has also been observed by the Apex Court in case DuliChand vs. Delhi Administration,AIR 1975 SC 1960 that the jurisdictionof the High Court in a criminal revision application is severely restrictedand it cannot embark upon a re-appreciation of evidence. Further, on theissue, it held as under:- “Now, it is obvious that the question whether the appellant wasguilty of negligence in driving the bus and the death of thedeceased was caused on account of his negligent driving in aquestion of fact which depends for its determination on anappreciation of the evidence. Both the learned Magistratetrying the case at the original stage and the learned AdditionalSessions Judge hearing the appeal arrived on an assessment ofthe evidence, at a concurrent finding of fact that the death ofthe deceased was caused by negligent driving of the bus by theappellant. The High Court in revisional was exercising

supervisory jurisdiction of a restricted nature and, therefore, itwould have been justified in refusing to re-appreciate theevidence for the purposes of determining whether theconcurrent finding of fact reached by the learned Magistrateand the learned Additional Sessions Judge was correct.”

Similarly, while discussing the scope of revision, the ApexCourt in case State of Kerala vs. Puttumana Illath Jathavedan Namboodiri,AIR1999 SC 981 held as under:- “Having examined the impugned judgment of the High Courtand bearing in mind the contentions raised by the learnedcounsel for the parties, we have no hesitation to come to theconclusion that in the case in hand, the High Court hasexceeded its revisional jurisdiction. In its revisionaljurisdiction, the High Court can call for and examine the recordof any proceedings for the purpose of satisfying itself as to thecorrectness, legality or propriety of any finding, sentence ororder. In other words, the jurisdiction is one of SupervisoryJurisdiction exercised by the High Court for correctingmiscarriage of justice. But the said revisional power cannot beequated with the power of an Appellate Court nor can it betreated even as a second Appellate Jurisdiction. Ordinarily,therefore, it would not be appropriate for the High Court to re-appreciate the evidence and come to its own conclusion on the same when the evidence has already been appreciated by theMagistrate as well as the Sessions Judge in appeal, unless anyglaring feature is brought to the notice of the High Court whichwould otherwise tantamount to gross miscarriage of justice.On scrutinizing the impugned judgment of the High Court fromthe aforesaid stand point, we have no hesitation to come to theconclusion that the High Court exceeded its jurisdiction ininterfering with the conviction of the respondent by re-appreciating the oral evidence. The High Court also committedfurther error in not examining several items of evidence reliedupon by the Additional Sessions Judge, while confirming theconviction of the respondent. In this view of the matter theimpugned judgment of the High Court is wholly unsustainablein law and we, accordingly set aside the same. The convictionand sentence of the respondent as passed by the Magistrate andaffirmed by the Additional Sessions Judge in appeal isconfirmed. This appeal is allowed. Bail Bonds furnished standcancelled. The respondent must surrender to serve thesentence.”

Even otherwise, records transpire that the courts below havereturned a finding of fact regarding guilt of the petitioner on properappreciation of the evidence. The impugned judgment also sans anyperversity, irregularity or illegality warranting interference by this Court.The conviction recorded by both the courts below is maintained.

Now, coming to the quantum of sentence, the accident inquestion took place in the year 2002. The petitioner, who was a young manof twenty years at the time of the accident, has suffered a lot of agony due toprotracted proceedings for the last about nine years. That apart, no badantecedents of the petitioner have been brought on record, so as to dub himas habitual offender. Though, in view of the judgment delivered in caseB.Nagabhushanam vs. State of Karnataka, 2008(3) RCR(Criminal) 50,the petitioner is not entitled to the benefit of probation, yet the aforesaidfacts and circumstances could be treated as mitigating for reduction ofsentence. As such, ends of justice would be met, if the sentence of rigorousimprisonment is reduced to ten months under Section 304-A IPC, withoutaltering the sentences for other offences. Ordered accordingly.

Copy of the judgment be sent to the Chief Judicial Magistrate,Hoshiarpur for compliance.

November 11, 2010

`gian'

( A.N.JINDAL ) JUDGE