Judgment:
Harmohinder Kaur Sandhu, J.
1. Swaran Singh petitioner was convicted for offences under sections 304A and 337, Indian Penal Code, 1860, by Sub-Divisional Judicial Magistrate, Samrala and was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- for the offence under Section 304A, Indian Penal Code and to further undergo rigorous imprisonment for six months for the offence under Section 337, Indian Penal Code. Against the judgment recording his conviction he filed an appeal which was dismissed by the learned Additional Sessions Judge, Ludhiana, vide judgment dated 31.5.1986. He has now filed the present revision petition assailing his conviction.
2. The prosecution case against the petitioner was that on 1.1.1983 deceased driver Balwinder Singh and Amrik Singh conductor left Chandigarh with bus No. PBE 4185 for Tarn Taran. At Samrala they took tea and started for Ludhiana at about 8.30 a.m. There were 20 passengers in the bus. When the bus reached near bus stand Ghulal, truck No. CHW 9405 came from the opposite direction. It was being driven by the petitioner in a rash and negligent manner while the bus was being driven on the left side of the road. The truck rammed against the bus on its right side, as a result of which Balwinder Singh driver, Ajmer Singh and Avtar Singh, the two employees of Punjab Roadways, Ludhiana, Harbans Kaur and some other passengers received injuries. Balwinder Singh succumbed to the injuries while being taken to the hospital at Samrala. Harbans Kaur was taken to P.G.I, by her husband Inder Singh and she died there on the next day.
3. On receipt of information from the hospital regarding the death of Balwinder Singh police reached there and recorded the statement of Amrik Singh, complainant, on the basis of which case was registered against the petitioner. Spot was inspected and photographs of the spot were also taken. The post-mortem report papers relating to the deceased driver and Harbans Kaur were collected. After the completion of usual investigation charge-sheet was presented against the petitioner which led to his conviction as indicated above.
4. The contention of the petitioner at trial, when his statement was recorded, was that case against him was false and he was not driving the vehicle at the relevant time although he was the driver of the truck. When he learned about the occurrence he along with Amrik Singh, owner of the truck, reached the spot and found that at the time of alleged accident the driver Ghola Singh had gone to ease himself after parking the truck on the left side of the road. That was a foggy day and the accident took place due to the negligence of the bus driver. Amrik Singh told the police that on that day the driver of the truck was Ghola but as Ghola had absconded he was implicated in this case. Two witnesses were examined in defence.
5. I have heard the learned counsel for the parties and have perused the record.
6. The learned counsel for the revision petitioner contended that there was no definite evidence on record to show that on the day of accident Swaran Singh was driving the truck. Swaran Singh was only involved because it was he who was the actual driver of the truck but on the day of accident he was on leave and Ghola had taken the truck. It was further contended that there was absolutely no credible evidence to show that the accident occurred due to rash and neglfgent driving of the truck driver. Admittedly, there was thick mist when the accident occurred and vision was obscure. It was a case where the circumstances indicate that driver of the truck was not at fault otherwise whosoever the driver was, he would not have escaped unhurt.
7. To prove the identity of the driver the prosecution had examined Ajmer Singh, Avtar Singh, Amrik Singh and Inder Singh. Out of these witnesses Ajmer Singh, PW 13, did not support the case of the prosecution and he was declared hostile. He stated that he did not know the driver of the truck nor did he know how the accident took place. There was thick fog and he was not even sure whether the truck was parked when the accident occurred. The statement of this witness, therefore, did not help the prosecution in any manner to prove the guilt of the petitioner. Statement of Avtar Singh, PW 1, can also be not taken into consideration as he was not produced for cross-examination. His statement was, thus, not admissible and was rightly excluded by the courts below. Amrik Singh, PW 2, who was conductor of the bus, though had reported to the police that the truck was being driven by Swaran Singh, was in fact not certain about the identity of the driver of the truck. He admitted in his cross-examination that after the accident when they got down from the bus the driver of the truck was not there. When he made a statement in the hospital he was not aware of the name of the driver nor he had disclosed the same to the police. In fact, it was the police who later on told him that the driver was Swaran Singh. It is, thus, evident that even the complainant did not know as to who was driving the truck at the relevant time. Only Inder Singh, PW 9, husband of Harbans Kaur deceased stated that Swaran Singh was driving the truck and he had learnt the name of Swaran Singh from one Shiv Nath who was sitting in the truck and had received injuries. He brought Shiv Nath to P.G.I. in a taxi. Statement of this witness was recorded on the next day of the accident and he had not disclosed to the police that he learnt the name of the driver from Shiv Nath. He is an interested witness as he had filed claim application regarding the death of his wife.
8. In defence Bhinder Singh appealed as DW 1 and he stated that the truck in question was being driven by Ghola but at the time of accident it was parked and Ghola had gone to ease himself. DW 2, Amrik Singh, also deposed to the same effect. The driver was not seen by anyone at the spot and on account of fog nobody was certain as to how the accident had occurred. It cannot be said that identity of Swaran Singh as the driver of the truck at the relevant time is established beyond doubt. The version given in defence, thus, becomes probable.
9. Regarding the rashness and negligence of the driver of the truck, there is no unimpeachable evidence. It was admitted by Amrik Singh, complainant, that bus was being driven at a speed of 40 kilometres per hour and vision was blurred on account of fog. In fact he had not seen the truck arriving from the opposite direction and he observed the truck only after the impact. In these circumstances he could not say whether the truck was being driven in a rash and negligent manner or, in fact, it was being driven or had been parked. Except the statement of Inder Singh there is no other evidence on record to show that the driver of the truck was in any way negligent and his statement is belied by the photographs taken at the spot. Photographs were taken by Maheshwar Dutt, PW 6 and he stated that the truck was standing on the left side of the road on kacha portion, while the bus was in the middle of the road. The front wheels of the truck were turned completely towards its left side. These photographs show that the truck was on the left side of the road while the bus driver took the bus towards wrong side. Considering the evidence on record, the fact that the accident took place when there was thick fog and after the accident the truck was standing on the kacha portion of the road towards its left, it cannot be definitely said that it was the driver of the truck who was responsible for the accident. Conviction of the petitioner, therefore, cannot be maintained.
10. For the foregoing reasons I accept this revision petition, set aside the conviction and sentence and acquit him of the charge giving him benefit of doubt. Fine, if deposited, be refunded to him.