In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 211 of 2003 Date of decision: 17.04.2009 Karamjit Singh ... Petitioner Vs. State of Punjab ... Respondent Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. Animesh Sharma, Advocate Amicus Curiae for the petitioner. Mr. Surender Kapoor, Addl. A.G. Punjab. A.N. Jindal, J This revision petition has arisen out of the judgment dated 6.1.2003 passed by the learned Sessions Judge, Fatehgarh Sahib, dismissing the appeal of the petitioner-accused (herein referred as 'the petitioner') against the judgment dated 14.9.2000 passed by the Judicial Magistrate Ist Class, Fatehgarh Sahib convicting and sentencing him to undergo rigorous imprisonment for six months and to pay fine of Rs.200/- under Section 279 IPC and to further undergo rigorous imprisonment for 1- ½ years and to pay fine of Rs.300/- under Section 304-A IPC. The facts as culled out from the prosecution case are that on 5.7.1996, at about 11.30 p.m., Nazar Singh complainant (herein referred as 'the complainant') along with Sukhpal Singh while on one scooter and Jatinder Markan, on Bullet Motor cycle No.PBJ117, were proceeding from Mandi Gobindgarh to Rajpura in connection with the betrothal ceremony of their friend. When they were a little ahead of village Rajindergarh, in the meanwhile, a truck bearing registration No.HRP-1306 came from the backside and the driver while driving the truck rashly and negligently crossed them, but they saved themselves. However, the truck driver struck his truck on the rear side of the motor cycle driven by Jatinder Markan, killing him at the spot. Taking advantage of the darkness, the driver fled away. ASI Nirmal Singh completed the inquest proceedings and got the postmortem examination on his dead body conducted from the Civil Crl. Revision No. 211 of 2003 -2- *** Hospital, Fatehgarh Sahib. Both the vehicles i.e. Truck bearing registration No.HRP-1306 and motor cycle bearing registration No.PBJ-117 along with their documents were taken into possession. The petitioner was arrested on 7.7.1996. Completion of the investigation was followed by a report under Section 173 Cr.P.C. The petitioner was charged for the aforesaid offences. In order to substantiate the charge, the prosecution examined Karan Singh Mechanic (PW1), who tested both the vehicles and proved reports Ex.PA and Ex.PB. Nazar Singh (PW2) is the complainant and he unfolded all the facts., Sukhpal Singh (PW3) being eye witness supported the testimony of Nazar Singh. Dr. Bhupinder Singh Medical Officer (PW4) proved the post mortem report. Paramjit Singh alias Pamma (PW5) proved the photographs Ex.P1 to Ex.P5 taken at the spot and the negatives Ex.P6 to Ex.P10. HC Gurmeet Singh (PW6) is a witness to certain recoveries. Malkiat Singh Clerk DTO Office Fatehgarh Sahib (PW7) is an irrelevant witness. ASI Nirmal Singh (PW8) though proved the investigation but his evidence is not complete and as such it is inadmissible. In his statement under Section 313 Cr.P.C. the petitioner denied all the allegations and further explained that he was falsely implicated in the case. However, he did not opt to adduce any evidence in defence. The trial ended in conviction and the appeal preferred by the petitioner also failed. Arguments heard. Record perused. The FIR as well as statement of the complainant Ex.PC, on the basis of which FIR was recorded do not reveal the name or description of the petitioner, but the only fact which is mentioned is that the accused after getting benefit of darkness fled away. Out of two eye witnesses examined by the prosecution, Sukhpal Singh (PW3) has no where stated that it was the petitioner who was driving the vehicle. He even has not identified him in the court. Nazir Singh in his statement, though has mentioned that the petitioner was driving the truck but his statement stands contradicted by the FIR, wherein he did not name him as the person driving the vehicle. As a matter of fact, it appears that the name of the petitioner came to the surface on 7.7.1996 but the prosecution has not led any evidence so as to confirm Crl. Revision No. 211 of 2003 -3- *** that it was the petitioner who was driving the vehicle at the time of accident. No test identification parade was got conducted by the Investigating Officer. Even owner of the truck was not examined in order to state that the petitioner was his driver. As a matter of fact, the presence of the witnesses is doubtful at the spot. The complainant has admitted that the deceased is the nephew of his friend and had no relations with the petitioner. Though he states that his statement was recorded on 5.7.1997, yet, the said statement did not see the light of the day. Now it is not known as to where that statement has gone. Though, according to him, he remained present a long side the dead body, yet, he did not know who identified the dead body. He does not know as to which side of the head of the deceased was injured. He could not tell if deceased was having any driving licence. He does not know if the police had searched the deceased. He does not remember if there was any electric light or not at the spot. That apart, no opportunity to cross examine Malkiat Singh (PW7) and ASI Nirmal Singh (PW8) was provided to the petitioner, therefore, their testimonies are of no consequence and cannot be taken into consideration. It has also not come in evidence, if motorcycle as well as Jatinder Markan were visible to the witnesses during this dead of night at 12.30 a.m. Further more, it appears from the testimony of Nazar Singh (PW2) that he had not seen the petitioner at the spot and he identified him for the first time in the Court, but such type of identification for the first time in the court is of no use and is not sufficient to establish the identity of the persons. The Apex Court in case Kanan and others vs. State of Kerala, AIR 1979 SC 1127 has held that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous identification parade to test his powers of observations. The idea of holding test identification parade under Section 9 is to test the veracity of the witness on the question of capability to identify an unknown person whom the witness had seen only once. If no test identification parade is held then it would be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court. As it is often seen that the drivers of the offending vehicles after committing the accident flee away and in that situation the Crl. Revision No. 211 of 2003 -4- *** Investigating Agency is not rendered arm-less and helpless to trace out the culprits responsible for the commission of the crime and establish identity. In such cases Investigating Officers should be conscious, overactive and adopt effective steps in their investigation. They could find from the documents as recovered from the offending vehicle as to who was the driver; could examine the owner of the vehicles or the employers or also from the unions from where the vehicles are plied as to who used to ply the said vehicles. The bills bilities and other documents also could be helpful to the police to make out the identity of the driver. They could carefully examine the places of occurrence, pick up the foot prints and other articles left by the accused, but the police normally shows its helplessness, indicating its inefficiency in investigating such cases and obviously believing that it would only be the witnesses who could be helpful to establish the identity of the accused driving the offending vehicles. In the instant case, from the evidence on record identity of the petitioner is in no manner established by the prosecution much less it is not established if it was the petitioner who was on the wheels of the offending truck on the day of accident. Thus, he cannot be sent to the gallows on mere suspicion. The trial court has lost right of the aforesaid circumstances of the case and has based the conviction on the basis of the identification of the petitioner for the first time in the court, which factually and legally is not correct. As such, interference in the impugned judgment is called for at my end. Resultantly, I accept the revision petition, set aside the impugned judgment, acquit the accused-petitioner of the charges framed against him and direct that he be set at liberty forthwith. Bail bond and surety bond furnished by him stand discharged. Fine, if deposited by him, be refunded. Mr. Animesh Sharma, Advocate Amicus Curiae may claim his remuneration as per rules. April 17, 2009 (A.N. Jindal) deepak Judge