Arun Kumar Goel, J.
1. This appeal is directed against the judgment dated 26th July, 1997, passed by the learned Sessions Judge, Una in Criminal Appeal No. 24 of 1995, whereby appeal of the respondent was allowed, and as a consequence of it conviction and sentence imposed by the Additional Chief Judicial Magistrate, Amb in Case No. 61-1 of 1994, dated 23rd August, 1995 has been set aside.
2. As a question of fact, it may be noted that the respondent was challenged and tried for having committed offences under Sections 279, 338 and 304-A of the Indian Penal Code read with Section 187 of the Motor Vehicles Act, 1988. After conclusion of the trial he was found guilty of the offences except for the one under Section 187 of the Motor Vehicles Act, 1988. He was sentenced to undergo three months simple imprisonment and pay a fine of Rs. 500/- under Section 279, I.P.C. and in default of payment of fine to undergo simple imprisonment for 10 days. To undergo simple imprisonment for six months and to pay a fine of Rs. 1,000/- and in default of payment whereof to undergo one months simple imprisonment under Section 338; and to undergo one years simple imprisonment as also to pay a fine of Rs. 5,000/- for offence under Section 304-A of the Indian Penal Code and in default of payment of fine to further undergo simple imprisonment for three months. All the sentences were to run concurrently.
3. Sole question that needs to be determined in this appeal is whether the accident was the result of rash or negligent act on the part of the respondent endangering human life or not. As per learned Additional Advocate General, after scanning the evidence of P.W. 2 and 3 coupled with the hostile P.Ws. 1 and 4, as well as documents Ex. P.W. 10/B and Ex. P-1 to P-4, only one and irresistible conclusion points towards the guilt of the respondent. Thus according to him, learned Appellate Court below has gravely erred in allowing the appeal of the respondent and thereby setting aside the sentence imposed upon him by the trial Court. This plea was controverted by Mr. Sharma on behalf of the respondent. According to him impugned judgment on facts needs to be upheld and he has prayed for the same.
4. Brief facts giving rise to this appeal and are relevant for its determination are as under :
Admittedly, on the fateful day, i.e. 24th January, 1994, respondent was driving truck bearing Registration No. HPS-4471. This was on its way from Daulatpur to Nangal Jaryalan on Daulatpur-Gagret road. P.Ws. 1 and 4, Rajinder Kumar and Shakti Singh, respectively were occupants of said truck. Further case of the prosecution was that scooter bearing registration No. HP-19-0351 was being driven by P.W. 3 Rajeshwar. His son, late Shri Rajan, was the pillion rider on it.
5. Per prosecution, truck was being driven in a rash as well as negligent manner as a consequence of which, it endangered human life of the scooter driver and the pillion rider. This resulted in P.W. 3's falling down at the spot and deceased along with the scooter having been dragged on up to a distance of about 30 feet, when finally the truck came to a grinding halt. This resulted in causing injuries to P.W. 3 and to Rajan. He succumbed to the injuries.
6. Record of the case further shows that P.W. 1 made a statement under Section 154, Cr. P.C. to the Investigating Officer vide Ex. P.W. 1 /A, which was forwarded by P.W. 10 Sansar Chand ASI, who was then posted at Police Post, Daulatpur to Police Station, Gagret, for registration of case. This resulted in lodging of FIR No. 10/94, as is evident from the endorsement Ex. P.W. 8/B. Formal FIR Ex. P.W. 8/A was registered and investigation was undertaken.
7. Truck as well as scooter, both were got mechanically examined by the police during the course of investigation. Mechanical report after examination of scooter is Ex. P.W. 9/A and of truck is Ex. P.W. 9/B. P.W. 3 Rajeshwar was taken to hospital from the spot, i.e. the Khuh (well) at village Chalet on Daulatpur-Gagret road after the accident and from there to Ludhiana. He was in an unconscious state.
8. Trial Court after conclusion of the case convicted the respondent, as aforesaid, and in appeal he was acquitted.
9. Learned Additional Advocate General submitted that the approach of the Appellate Court below was not only illegal, but its decision is also based on misreading and misconstruction of evidence, therefore, the same deserves to be set aside. He further submitted that while passing the impugned judgment, Appellate Court below has drawn wrong inferences from the statements of witnesses, particularly P.Ws. 1 and 4. Per him the statements of both these witnesses could not be ignored even if they were declared hostile because even statement of hostile witness also needs to be scanned cautiously and then only the conclusions to be arrived at. He further submitted that it is a clear cut case where appeal deserves to be allowed and judgment and conviction ordered by the trial Court upheld.
10. On the other hand, Mr. Ajay Sharma, learned counsel appearing for the respondent, has forcefully urged that decision of the first Appellate Court calls for no interference looking to the circumstances of this case. He stated that so far P.Ws. 1 and 4 are concerned, their evidence completely destroys the prosecution case. And it supports the case of his client and the accident was the result of the rash and negligent driving of the scooter driver and his client was driving the truck at a nominal speed. He was neither rash nor negligent while driving the truck at the time of accident. As such there was no question of endangering human life. While questioning the correctness of photographs, particularly Ex. P-2, he stated that it is a clear cut result of altering the spot by the investigating agency and thus the genesis of the crime has been withheld. His further submission was that P.W. 3 was never injured, therefore, the prosecution did not examine the doctor who had issued M.L.C. a carbon copy whereof is on the file of the record qua this P.W. Similarly, by referring to Ex. P.W. 10/B, spot map prepared, he submitted that the accident cannot be attributed to his client muchless being the outcome of rash or negligent driving on the part of the respondent. While advancing his submissions regarding alteration of spot, emphasis was laid by Mr. Sharma on the fact that in photograph Ex. P-2, there is a house shown next to the truck in question on whose front right side below the number plate, a scooter is there. This house is not visible either in Ex. P-3 or Ex. P-1, therefore, no benefit can be derived from Ex. P-2 as it does not depict the true spot.
11. After having heard learned counsel for the parties and for the reasons to be recorded hereinafter, I am of the view that the appeal deserves to be allowed.
12. No doubt, it is for the prosecution to establish beyond any shadow of doubt and till needful is done, an accused person, like respondent, need not either put up any defence and/or say anything to dislodge the prosecution case. However, after the prosecution case was unfolded in Court it was necessary for him to have come out with his version. This could be done by putting up his defence in cross-examination to P.Ws. or by explaining in his statement under Section 313, Cr. P.C., or by leading defence evidence.
13. Fact remains that suggestions have been made to the prosecution witnesses that it was the deceased who was driving the scooter at the time of accident. In fact there is positive defence to the effect that deceased was learning to drive the scooter from his father i.e. P.W. 3 Rajeshwar. At the other place cross-examination suggests that it is positive case of the defence that the accident was caused due to negligence on the part of the boy, (the deceased).
14. Best person to speak as to how and in what manner accident took place, after P.Ws. 1 to 4, was the respondent himself. He had the best opportunity to explain all the facts so as to persuade the Court to exonerate him of the offences. First opportunity he got when he cross-examined the witnesses during the course of trial. Another opportunity he got was while his the statement under Section 313, Cr.P.C. was being recorded. Here in reply to third question, respondent has taken a definite stand that a boy driving the scooter in a rash manner struck against the rear tyre of the truck. He claimed driving of the truck at a normal manner.
15. In this behalf it may be appropriately observed that the statement under Section 313, Cr. P.C. is not meaningless or a mere formality. This is an opportunity to a person, like respondent, to explain the circumstances those are there on the file on the basis of the prosecution evidence. Admittedly except for scooter having struck against rear tyre, the stand of the respondent is of denial simplicitor.
16. So far significance of statement under Section 313, Cr. P.C, 1973 is concerned, what was held in Rattan Singh v. State of Himachal Pradesh, AIIR 1997 SC 768 : (1997 Cri LJ 833) and what is relevant was in the following terms (at page 838 of Cri LJ) :--
20. Learned counsel for the appellant tried to make out much from the fact that no finger impression of Sheela Devi was found on the gun. We do not find any consequence on account of it in this case. In fact, appellant did not seriously dispute when the trial Judge put the question to him regarding that circumstances during his examination under Section 313 of the Code of Criminal Procedure (question No. 25 related to the evidence that gun was produced by Sheela Devi and was taken into possession by the police. The answer given by the appellant to that question was ('I do not know'). Examination of the accused under Section 313 of the Code is not a mere formality. Answers given by the accused to the questions put to him during such examination have a practical utility for Criminal Courts. Apart from affording an opportunity to the delinquent to explain incriminating circumstances against him, they would help the court in appreciating the entire evidence adduced in the Court during trial Ex. P1 gun admittedly belongs to the assailants. Therefore, when P.W. 10 said in Court that she succeeded in snatching it from the assailant and she surrendered it to the police, we see no reason to disbelieve her, particularly in view of the evasive answer given by the appellant to the question concerned.
17. In State of Maharashtra v. Laxman Jairam, AIR 1962 SC 1204 : (1962 (2) Cri LJ 284) a three-Judge Bench of the Hon'ble Supreme Court held while dealing with Section 342, Cr. P.C., 1898 and observed as under (at page 286 of Cri LJ) :--
Under Section 342 of the Criminal Procedure Code the Court has the power to examine the accused as to enable him to explain any circumstances appearing in evidence against him. Under Sub-section (3) of that section the answers given by an accused person may be taken into consideration in such enquiry or trial. The object of examination under Section 342 therefore is to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilt of the person so accused.
18. In State of Maharashtra v. Suresh (2000) 1 SCC 471, what was observed and is relevant in the present appeal was as under:--
26. We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was concealed by himself. One is that he himself would have concealed it. Second is that he would have been somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the Criminal Court that his knowledge about the concealment was on account of one of the last two possibilities the Criminal Court can presume that it was concealed by the accused himself. This is because the accused is the only person who can offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the Court as to how else he came to know of it, the presumption is a well justified course to be adopted by the Criminal Court that the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.
19. While questioning the evidence of P.W. 2, Ranjana, Mr. Sharma pointed out that her presence at the spot is completely ruled out. And in any case she is an interested witness in view of her relationship with the family of P.W. 3. An attempt was also made to show that she had gone on the date of accident to the place of P.W. 3. As it was his Rajeshwar P.W. 3's birthday to participate in Hawan and had enjoyed the feast there. Thus cumulative effect of all the circumstances was that the appeal was liable to be dismissed.
20. So far P.W. 1 Rajender Kumar is concerned, no doubt he has been declared hostile. Still when his statement is cautiously scanned and is read along with Ex. PW-1/A, it cannot be said that no part of it can be accepted and/or it has to be discarded in its entirety. Similar is the position regarding P.W. 4. In this behalf I am of the view that P.W. 1 has not disputed having made the statement Ex. P.W. 1/A except portions 'A to A' and 'F to F.' This denial in my view, is aimed at saving the respondent. He has gone on record by saying that he does not want to annoy anyone. Hiring of truck by the Una Co-operative Society for distribution of essential commodities is not disputed by any of the parties. Discord starts now when prosecution says that accident was the outcome of the rash driving on the part of the respondent, who drove the same in such a negligent manner that its direct outcome was endangering human life as aforesaid. Similar is the position regarding Shakti Singh P.W. 4, who was storekeeper-cum-salesman, of the Una District Co-operative Society Marketing Federation. So far Ranjana P.W. 2 statement is concerned, no exception can be taken to it. It inspires confidence and thus needs to be accepted.
21. So far accident being the result of negligence on the part of the deceased/his father P.W. 3 is concerned, it is nothing but purely an after thought. At the site of accident road is 12/13 feet wide. Besides this pakka portion of the road, there are five feet berms on both sides of the road. Photographs further suggest that truck in question had gone from one direction to the other and thus prima facie establishes the dragging by the truck of the scooter along with the boy. Whereas P.W. 3 had fallen at the spot immediately after the accident.
22. Once this conclusion is arrived at, then next question that needs to be determined is whether in the circumstances of this case, driving of the truck in question can be said to be rash or negligent or not resulting in causing death of Rajan and grievous hurt to Rajeshwar P.W. 3. In this behalf I may reiterate that merely because P.Ws. 1 and 4, the occupants of the truck, had been declared hostile will demolish the prosecution case if it is otherwise established against the respondent.
23. P.W. 3 Rajeshwar was natural witness. Merely because he was injured and deceased was his son are no grounds in the circumstances of the case so as to disbelieve him solely on the plea that he is an interested person. It may be observed in this behalf that the prosecution has proved that he was driving the scooter when the accident took place because of aforesaid acts of the respondent he and his son sustained injuries and his son died due to accident.
24. In addition this in my opinion there is no reason for his either stating something which did not happen and/or to involve the , respondent falsely, thus screening the real offender. It is not the case of the respondent that there was any previous enmity between him and P.W. 3. As such there is no reason for him (P.W. 3) to falsely implicate the respondent. Only thing to be kept in mind while dealing with an injured/related witnesses is that the statement has to be scanned carefully. By applying this test to the present case, I see no reason to discard his statement as was prayed by Mr. Sharma. (See Jangir Singh v. State of Punjab with Chet Singh v. State of Punjab (2000) 10 SCC 261 and Ambika Prasad v. State (Delhi Administration) with Ram Chander v. State (Delhi Administration) and Rajinder Singh v. State (Delhi Administration) (2000) 2 SCC 646 : (AIR 2000 SC 718).
25. So far plea that P.W. 3 was not injured is concerned, it is raised simply to be rejected because when he appeared in witness-box, in no uncertain terms he stated that accident was caused due to rash and negligent act on the part of respondent while the witness was driving the scooter. Due to impact of the accident he fell down from the scooter, and sustained injuries and it (scooter) was dragged along with his son (Rajan deceased), because of aforesaid acts of omission and commission by the respondent. Not a single suggestion was given to him in cross-examination that he did not sustain any injury and/or those being not the outcome of the accident in question. It hardly needs to be clarified that when a particular fact stated in examination-in-chief is not tested on the touchstone of examination (as in the present case) it can safely be inferred that, that part of the case set up by the witness is not challenged.
26. Emphasis was being laid by Mr. Sharma on the statement of P.W. 2, Ranjana that the speed of the truck works out to be 4 KMPH which by no standard can be termed as rash. This plea cannot be accepted; reason being that on one hand he argued to ignore her statement as it cannot be read in evidence not inspiring confidence and on the other hand he wants to pick something which is suitable to the respondent. In this behalf I have no hesitation in observing that even if statements of P.Ws. 1, 2 and 4 are excluded from consideration, still statement of P.W. 3 coupled with that of P.Ws. 9 and 10 as also on consideration of Ex. P.W. 1/A, P-2 to P-4 and P.W. 10/B it can safely be held that there is enough material to bring home the guilt against the respondent. In the circumstances of this case it cannot be said that this is a case of either no evidence or two view are possible on its examination so as to give benefit of the view favourable to the respondent. At the risk of repetition it may be observed that the entire evidence proves the guilt of the respondent under Sections 279, 338 and 304-A, I.P.C. and thus no other conclusion is possible. As such, learned Sessions Judge below has fallen into error while allowing the appeal.
27. A plea regarding genesis of crime having been withheld and spot having been altered before taking photographs raised on behalf of the respondent again cannot, be accepted. No doubt suggestion was made to P.W. 9 photographer regarding spot having been altered who denied the same. Though he admitted having reached the spot after one hour. But, no such suggestion was made to Investigating Officer P.W. 10 ASI Sansar Chand. He was the best person to have said something in that behalf. Least that could be done was to have put some to him.
28. Men may lie documents won't. In this behalf when a reference is made to Ex. P.W. 10/A, spot map as well as photographs Ex. P-2 to P-4, prosecution case is clearly established and on this count also this appeal must succeed.
29. Faced with this situation Mr. Sharma submitted that looking to the fact that incident had taken place more than seven years ago, his client who is the sole bread winner of his family and was 38 years of age on the date when his statement under Section 313, Cr. P.C. was recorded, benefit of probation needs to be extended to him. Per him because of pendency of trial, thereafter appeal and then the present appeal, the respondent has undergone agony continuously. This plea may have been considered favourably by this Court.
30. However, keeping in view the two decision of the Hon'ble Supreme Court, reported in Aitha Chander Rao v. State of Andhra Pradesh, 1981 (Supp) SCC 17 and Dalbir Singh v. State of Haryana, AIR 2000 SC 1677 : (2000 Cri LJ 2283), it is not possible to extend the benefit of probation of Offender's Act to the respondent.
31. Again a prayer was made that at least sentence may be reduced and a chance may be given to the appellant to reform, particularly keeping in view the present reformatory trend of penology so that he is able to become a good citizen. This prayer has been contested by Mr. Mandhotra, learned Additional Advocate General, who stated that looking to the nature of the offence and young life having been lost, this prayer also needs to be rejected.
32. Keeping in view the fact that more than seven and half years have passed when the accident took place, while upholding the guilt of the respondent it is felt that interest of justice will be well served if sentence is reduced under Section 304-A, I.P.C. from one year to three months. So far sentences under Section 279 and 337, I.P.C. and imposition of fine ordered by the trial Court for all the three offences is concerned, it is upheld. Sentences will run concurrently. This appeal is allowed in the aforesaid terms and judgment of the trial Court is modified accordingly. The respondent is on bail. His bonds are cancelled and he is directed to surrender forthwith to undergo the sentence imposed.