CIVIL APPEAL 1183 of 2002 on 5 June 2002

IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH

Criminal Revision No. 1183 of 2002 Date of Decision: February 17, 2010

P.Sahaya Rai

...........Petitioner

Versus

State (UT Administration) Chandigarh

..........Respondent

Coram: Hon'ble Mrs. Justice SabinaPresent: Mr.Vishal Aggarwal, Advocate for the petitioner. Mr.Gautam Kaile, Advocate for Mr.Rajiv Sharma, Advocate for UT Chandigarh.**

Sabina, J.

Petitioner was convicted for an offence under Sections 279 and 304-A of the Indian Penal Code (`IPC' for short) vide judgment dated 15.3.1997passed by the Judicial Magistrate Ist Class Chandigarh.Vide order of evendate, petitioner was sentenced to undergo rigorous imprisonment for aperiod of six months for commission of offence punishable under Section279 IPC and accused-petitioner was further directed to undergo rigorousimprisonment for a period two years for commission of offence punishable under Section 304-A IPC. Both the sentences were ordered to runconcurrently. Aggrieved by the same, petitioner preferred an appeal and thesame was dismissed by the Additional Sessions Judge, Chandigarh videjudgment dated 5.6.2002 Hence, the present revision petition by thepetitioner-P.Sahaya Rai.

The brief facts of the case, as noticed by the Appellate Court in paras 2 to 5 of its judgment, are as under:- “2. The story of the prosecution garnered from the record isrecapituated hereunder:- On 24.9.1995 complainant Smt. Saminder Kaur alongwithher daughter Miss Avineet Kaur aged 6 years and son NavneetSingh aged 4 years had gone to St Anne's School Sector 32Chandiarh to attend a religious function. At around 11.30 a.m.her daughter Avineet Kaur expressed desire to urinate. She tookher to the ground inside the school in front of the main gate.While they both were coming back and her daughter was standingat the edge of the road, while she was 3-4 steps behind her, a jeepbearing registration No. CH-01-B-3293 came from the side ofgate of the school which was being driven by a Hindu gentlemandark complexioned in a rash and negligent manner and withoutgiving horn and straight -away hit her daughter. The jeep crossedover her and then stopped at some distance.

3. The small girl was badly injured and became unconscious. Shewas taken to the PGI hospital in the same jeep, but was declaredbrought dead by the doctor. Smt. Saminder Kaur, mother of thedeceased child lodged a report with the police narrating the entire incident and also stating that the accident occurred due to rash andnegligent driving of the jeep by its driver.

4. On the basis of statement of complainant Smt.Saminder Kaur, acase under Section 279, 304-A of the Indian Penal Code wasregistered and investigation commenced; the accused wasarrested; statement of the witnesses were recorded; inquest reportof the deceased was prepared and after completion of necessaryformalities the accused was sent up to the court for trial.

7. After being supplied with the copies of documents relied uponby the prosecution the accused was charge-sheeted under Sections279 and 304-A of the Indian Penal Code to which he pleaded notguilty and claimed a regular trial."

Learned counsel for the petitioner has submitted that acomplete reading of the statement of the alleged eye witness PW1 SaminderKaur revealed that in fact, she had not witnessed the accident. The medicalevidence did not support the ocular version. Learned counsel has furthersubmitted that the deceased child had suddenly came in front of the vehicleas a result of which she suffered injuries and later died.

Learned counsel for the Administration has submitted thatthe prosecution has been successful in proving its case.

After hearing the learned counsel for the parties, I am of theopinion that the present petition deserves to be allowed.

In the present case, PW1 Saminder Kaur, mother of the

Arguments

deceased is the only eye witness of the alleged occurrence. Although in herexamination-in-chief, she has deposed that the jeep in question was beingdriven in a rash and negligent manner by the petitioner and struck against Crl.Rev.No. 1183 of 2002

her daughter and she was run over by the jeep. Thereafter, the injured wastaken for treatment to PGI Chandigarh where she was declared "broughtdead". In her cross-examination, she deposed that she did not see theaccident but she saw her child who had fallen down. She could not say ifthere was any accident with the vehicle. It is correct that she had not goneto PGI in the jeep in which her child was taken to the hospital. However,she had gone to PGI in a different vehicle.

As per the post mortem report, the cause of death of thedeceased was shock and hemorrhage of head injury. A perusal of the postmortem report does not lead to an inference that the deceased had beencrushed under the vehicle. Moreover, in case PW1 had witnessed theaccident, she would have gone with her daughter in the same jeep to thehospital. The fact that PW1 had not gone to PGI in the same jeep in whichher daughter was taken leads to an inference that she was not present at thespot and had not witnessed the accident. The possibility that she was lateron introduced as a witness to the accident, in the facts and circumstances ofthe case, cannot be ruled out.

In the present case, the petitioner has not denied the factumof accident but has taken the plea that the accident had occurred due to faultof the child. In this regard, DW1 Jude and DW2 Anup Kumar have deposedthat in the complex, the jeep was being driven very slowly as there was abig gathering in the school due to a religious satsang. The child hadsuddenly struck against the left front side of the jeep. In the facts andcircumstances, the plea taken by the petitioner appears to be probable. Inthese circumstances, the Courts below erred in convicting and sentencingthe petitioner under Sections 279 and 304-A IPC.

Accordingly, this petition is allowed. The impugned judgments of the Courts below are set aside. The petitioner is acquitted ofthe charge framed against him.

February 17, 2009arya

(Sabina) Judge