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ANIL KSHETARPAL, J. –

1. Through the present revision petition, correctness of judgment passed by learned Judicial Magistrate Ist Class, Khanna dated 24.07.2015, affirmed in appeal by learned Additional Sessions Judge, Ludhiana vide judgment dated 22.11.2019 has been questioned.

2. Petitioner has been convicted to undergo rigorous imprisonment for a period of one year for commission of offence under Section 304-A, IPC with fine of Rs.1,000/-.

3. In nutshell, the case of the prosecution is that on 07.11.2009, the complainant-Vishal Modgil came to the Police Post Kot and got recorded his statement with SI Sikander Singh. It was stated that on 06.11.2009, first informant alongwith his cousin Mohit Modgil son of Barinder Kumar were standing on the unmetalled portion of G.T. road towards Payal Village side as they wanted to cross the G.T. Road to go to Village Bija. His cousin deceased Mohit Modgil was standing ahead of him when a TATA Safari bearing registration No.UP-14AR-0005 driven by the petitioner came from Khanna side, in a rash and negligent manner at a very high speed. Its driver wrongly tried to overtake a bus and in that process, struck his cousin Mohit Modgil resulting in serious injuries. First informant with the help of Police Ambulance took his cousin to Kular Hospital Bija from where he was referred to CMC Hospital, Ludhiana wherein during the night time, he died. First informant disclosed the name of the driver of the offending vehicle (TATA Safari) as Mansa Yadav, the petitioner herein. On the basis of the aforesaid information, formal FIR was registered.

4. On conclusion of the investigation, the Police report as required under Section 173 Cr.P.C. was submitted in the Court. The prosecution in order to prove its case, examined four witnesses. Barinder Kumar, father of the deceased was examined as PW1 who is not the eye-witness. Dr. Madhu Bansal, appeared as PW2, conducted the Post Mortem. Vishal Modgil appeared as PW3 (first informant/the alleged eye-witness). SI Sikander Singh, Investigating Officer appeared as PW4.

5. On conclusion of the prosecution evidence, statement of the petitioner under Section 313 Cr.P.C. was recorded wherein the petitioner pleaded false implication and submitted that no accident took place with the vehicle, driven by him.

6. Normally, this Court does not interfere in the exercise of its powers while hearing a revision petition, however, once the Court finds that the findings arrived at by the Courts are suffering from perversity, this Court is left with no choice but for to interfere. The reasons why the Court has decided to interfere are as under:-

1)    On careful reading of the judgment passed by the Judicial Magistrate, Ist Class, Khanna, confirmed by Additional Sessions Judge, Ludhiana, the Courts have failed to record finding that the petitioner (convict) was driving the vehicle in a rash and negligent manner resulting in death of late Mohit Modgil in motor vehicular accident. Sine qua non for convicting an accused under Section 304-A IPC is that the convict has caused the death of any person by doing rash or negligent act not amounting to culpable homicide. In absence of such finding, the judgments passed by the Courts below suffer from perversity.

2)    In this case, first informant has been examined as PW3. In examination-in-chief, he has stated that his cousin was standing 2/3 feet ahead of him when they both were waiting to cross over to the other side of the G.T. Road. Relevant extracts of the statement of the first informant are as under:-

“ xxx xxx

We were standing on the Kacha side of G.T.Road on the payal side as we want to cross the G.T.Road and as we wanted to go to Bija village. My cousin was standing 2/3 feet ahead of me. Tata safari bearing No. UP-14AR-0005 drove in so rash and negligent manner and on a very high speed, wrongly try to (cross) overtake a bus and struck with my cousin and he got serious injuries as he fell down on the road.

Xxx xxx

I along with my cousin had left my house on 6.11.2009 at about 6.00 p.m. We had gone to village Bija for meeting my friend whose name is Simranjot Singh who is resident of village Ghungrali. My village and village Bija are distance of 15 KM through Khanna. We had first came to Khanna by bus from our village. From Khanna we took another bus for reaching village Bija. We had reached village Bija at about 6.30/6.35 p.m. We had not met our friend Simranjot Singh after reaching Bija.

Xxx xxx

I had got mentioned in my statement given to the police regarding the over taking of the bus by the offending vehicle. I have gone through my statement Ex.P7 in which there is no such mention regarding the overtaking of the bus by the offending vehicle. Volunteered I exactly do not remember about the statement as it is matter of 3/4 years. The police officials were present at bus stand but I cannot tell how many police officials were standing there. I can not tell who stop the offending vehicle. When the vehicle stopped there, I immediately read the registration number of the same. I had not gone through my statement Ex.P7 before recording my present statement today. My friend had dropped us on the Kacha road side towards the Ludhiana side of the crossing on the main G.T.Road. We both were standing on the kacha road side of the G.T.road and were about to cross the main G.T.Road when the offending vehicle. I cannot tell on which side my cousin was standing ahead of me. I cannot tell either whether he was standing towards the pacca road or towards the Ludhiana side or the Khanna side. There is a chowkh/crossing on the GT Road from where we were standing on the kacha road side.

Xxx xxx

My statement was recorded at Kota Chowkhi/police station on 7.11.2009 at about 9/9.15 a.m. The police official had caught the accused on 6.11.2009 itself and he was put up into the lock up by the police and he was in the custody of the police when I got my statement recorded on 7.11.2009.”

Similarly, relevant part of the cross-examination of the Investigating Officer SI Sikander Singh is extracted as under:-

“xxx xxx

I have seen the application dated 7.11.2009 which is Ex.P4 for conducting the postmortem of the dead body. I had specifically mentioned in my application that it has come to the knowledge that the deceased was under the influence of liquor liquor and requested for conducting the postmortem of the deceased accordingly. I did not ask the doctor concern for any report regarding the presence of liquor in the deceased body.

Xxx xxx

I did not enquire from the doctor the reason about the non-mentioning of the presence of alcohol in the dead body. I did not prepare the report u/s 173 Cr.P.C. Sh. Bhupinder Singh SI had prepared the said report because I was transferred before the preparation of said report.

Xxx xxx

I got the information regarding the deceased being under the influence of alcohol from our Ambulance post Bija. At that time the said information was given to PHG who was posted at Ambulance post Bija on 7.11.2009.

xxx xxx

The accused was arrested on 9.11.2009. He was produced by me by one Hari Om Chaudhary at about 1.30 PM.

Xxx xxx

It is correct that the digit seven has been converted in digit nine by over writing the same in Ex.P15 at mark A in the body of the memo. It is incorrect to suggest that the date mentioned in Ex.P16 has been changed from 7.11.2009 to 9.11.2009 at mark B. The complainant has made a statement that the accused ran away from the spot after the accident I did not get the offending vehicle mechanically tested from automatic expert during my investigation. I had handed over the investigation of this case to MIC PP Kot at the time of my transfer.

Xxx xxx

I did not took any photograph of offending vehicle after the same was produced before me.

Xxx xxx

I have seen photograph Ex.D1 which is of the offending vehicle. It is correct that in the photograph Ex.Dl the offending vehicle is standing adjacent to the divider of the GT Road. It is also correct that the vehicle in Ex.D1 is standing on its right side as per rules. There is no dent by seen in the front of the vehicle in photograph Ex.D1. I do not know if mark D2 and D3 are the photographs of the vehicle which hit the offending vehicle from its rear on 6.11.2009.”

On careful reading of the statement of SI Sikander Singh, the Investigating Officer, it is apparent that he got information from Police Ambulance Bija that the deceased was under the influence of liquor. Ex.P4 is application moved by the Investigating Officer to Senior Medical Officer in which it is specifically mentioned that as per information received by him, the deceased was under the influence of liquor. However, when Dr. Madhu Bansal was examined as PW2, she stated that she had not taken the blood sample of the deceased. She also did not sent viscera of the deceased to the Chemical Examiner to verify the presence of alcohol in the stomach of the deceased.

3)    Further, it is apparent from bare perusal of the documents i.e. Ex.P15, Ex.P16 that there is overwriting and date 07.11.2009 has been converted into 09.11.2009 by interpolation. In fact, SI Sikander Singh admits that in Ex.P15, digit '7' has been converted into digit '9' by overwriting although he denied similar interpolation in Ex.P16.

4)    Petitioner has been shown to be arrested on 09.11.2009 whereas Vishal Modgil when appeared in evidence has stated that police official has apprehended the petitioner on 06.11.2009 and put him in the lockup. He has further categorically stated that when the police recorded his statement on 07.11.2009, the petitioner was in custody of the police.

5)    Further, the investigations carried out by the Investigating Officer leave much too desire. In fact, the Investigating Officer has failed to discharge his duty and investigate the case impartially. The conduct of the Investigating Officer is deprecated.

6)    Further, from the reading of the statement of the Investigating Officer, it is clear that the vehicle being driven by the petitioner had no dent on the front of the vehicle, although it is the case of the prosecution that the vehicle driven by the petitioner had knocked down the deceased.

7)    Further, the site/layout plan prepared by the Investigating Officer shows that the place where the petitioner had hit the deceased i.e. on the extreme left side towards Village Payal of Dual Carriageway G.T. Road having a divider in between. However, location of the offending vehicle has not been shown.

8)    It is the case of Vishal Modgil, first informant, cousin of the deceased that when the accident took place, Police officials were present at the Bus Stand but he could not tell how many police officials were standing there. However, no police officials were associated as a witness although they are alleged to have witnessed the alleged accident. First informant could not even disclose who got stopped the offending vehicle.

9)    If one carefully examines the deposition of Vishal Modgil to the effect that the petitioner while driving the TATA Safari vehicle had tried to overtake a bus from the wrong side i.e. left side and knocked down his cousin deceased Mohit Modgil. The accident is stated to have taken place at point A which is on the extreme left side of the Dual Carriageway road whereas the Investigating Officer says that the alleged offending vehicle is standing near the divider i.e. extreme right side of the road.

7. Keeping in view the aforesaid facts, this Court has come to a conclusion that the prosecution has failed to prove its case beyond the shadow of reasonable doubt. Hence, the petitioner is entitled to benefit of doubt. Accordingly, the present revision petition is accepted and the judgment of conviction passed by the learned Judicial Magistrate, affirmed in appeal are set aside. Petitioner be released, if not required in any other case.

Petition allowed.

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