Crl. Revision No.831 of 2003 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No.831 of 2003 Date of Decision: February 21, 2011 Prithvi Singh ---Petitioner versus State of Haryana ---Respondent Coram: HONBLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Manish Soni, Advocate, for Mr. Kapil Aggarwal, Advocate, for the petitioner Mr.Shekhar Mudgal, Asstt. Advocate General, Haryana *** GURDEV SINGH, J. On 20.6.1998, Ashok Kumar, complainant, PW-1, made his statement, Ex. PW-1/A, before Anil Kumar SI, PW-9, and it was on the basis of that statement that the FIR, Ex. PW-6/A was recorded and the criminal machinery was set in motion. The complainant narrated in that statement that on 20.6.1998, he was going to his village Teet in Car No. DDQ 8482, which was being driven by him. When at about 2-00 p.m., he had covered a distance of about ½ Km. from Hari Nagar towards Narnaul, one motor vehicle make Crl. Revision No.831 of 2003 -2- Gipsy bearing Registration No. HR 35 0217 was going ahead of his car, which was being driven on the left side of the road. In the meanwhile, one truck bearing Registration No. RJ 14G 0009, came from the opposite side which was being driven by its driver at a very fast speed and in rash and negligent manner. The driver of the truck brought the same on the wrong side of the road and struck the same in the Gipsy, as a result of which that vehicle took a turn and the truck fell into the pits by the side of the road. After coming out of the car, he found that the driver of that vehicle, named Kartar Singh, was got entangled in the vehicle and was seriously injured. One person was sitting with the driver on the front seat, who disclosed his name as Kaptan Singh and he had also received the injuries. He tried to stop the vehicles passing on the road for getting the help for taking out Kartar Singh from the Gipsy but no one stopped. He was proceeding to the police station to lodge a report when the said ASI met him and he made his statement before him. The ASI, accompanied by the complainant, came to the place of occurrence and after inspecting the same prepared the rough site plan, Ex. PW-9/A. Both the vehicles involved in the accident were taken into possession, vide Memo Ex. PW-1/B. Kartar Singh died in the vehicle itself. The ASI prepared the inquest report in respect of the dead body and sent the same for post mortem examination. The other injured was removed to the hospital for his treatment. The autopsy on the dead body was performed by Dr. Sunita Garg, PW-5, who found ante mortem injuries on the same and gave her opinion that the cause of death was due to multiple fractures and injuries to internal organs, which were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. Both the vehicles were mechanically tested by Sham Kishore, Mechanic, PW-2, who found those to be in mechanical order and gave his reports Ex. PW.2/A and PW 2/B. In the course of investigation, the accused was arrested and his Crl. Revision No.831 of 2003 -3- driving licence and documents of the truck were taken into possession. After the completion of the investigation, the challan was put in before the JMIC, Rewari, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 279, 337 and 304-A IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt, prosecution examined Ashok Kumar, complainant, PW-1,Sham Kishore, PW-2, Roshan Lal ASI, PW-3, Hari Singh, PW-4, Dr. Sunita Garg, PW-5, Ram Phal ASI, PW-6, Mahender Singh, Constable, PW-7, Yad Ram, PW-8 and Anil Kumar SI, PW-9. After the prosecution closed its evidence, the accused was examined by the trial court and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to enable him to explain the same. He denied all those circumstances and pleaded his innocence. He was called upon to enter on his defence but he did not produce any evidence in his defence. After going through the evidence so produced on the record and hearing Assistant Public Prosecutor for the State and learned defence counsel for the accused, the JMIC, Rewari, convicted the accused for the offences under Sections 279 and 304-A IPC, vide judgment dated 19.10.2001 and sentenced him as under:- Sr. No . Under Section Sentence imposed fine 1 279 IPC To undergo rigorous imprisonment for a period of three months ` 500/- In default of payment of fine to further undergo rigorous imprisonment for one month 2 304-A IPC To undergo rigorous imprisonment for a period of two years ` 1000/ - In default of payment of fine to further undergo rigorous imprisonment for two months Crl. Revision No.831 of 2003 -4- The accused preferred an appeal against that conviction and sentence, which was dismissed by Additional Sessions Judge, Rewari, vide judgment dated 29.3.2003. Now, this revision petition has been preferred by the accused against that conviction and sentence. I have heard learned counsel for both the sides. It has been submitted by counsel for the accused that the name of the accused was never disclosed by the complainant in his statement before the police. According to him, he had come to know about his name only in the police station. No test identification parade was held during the investigation and the identification made by that complainant in the court for the first time is meaningless. When the identity of the accused had not been established, he could not had been convicted. He further submitted that Kaptan Singh, who was sitting with the driver of the Gypsy, was the best witness to depose about the facts, which according to the prosecution, constitute the offence against the accused. It was he, who could have seen the truck coming from the opposite side at a fast speed and he could have identified the driver of that truck. For the non-examination of that Kaptan Singh, an adverse inference is to be drawn against the prosecution. He also tried to assert that in view of the statement made by the complainant in the court, it cannot be held that the truck was being driven rashly and negligently as that witness never disclosed as to at what speed the truck was being driven. He also submitted that in case the conviction of the accused is to be maintained, the sentence of imprisonment so imposed upon him be reduced to the period already undergone by him. Learned State counsel has tried to counter the arguments of the counsel for the accused by making submissions that the identity of the accused stand established from the statement of Ashok Kumar, complainant, PW-1, who Crl. Revision No.831 of 2003 -5- witnessed the accident with his own eyes and had seen the accused running away from the spot and was in a position to identify him subsequently in the court. Merely on account of the non-examination of Kaptan Singh, no adverse inference can be drawn against the prosecution in view of the cogent and convincing statement made by the complainant. Merely on account of the omission in the statement of that complainant as to at what speed the truck was being driven, it cannot be held that the truck was not being driven rashly and negligently, in view of the categorical deposition made by him that the same was being driven carelessly and rashly. There is no ground for setting aside the conviction and sentence of the accused. Ashok Kumar, PW-1, in his statement Ex. PW1/A made before the police, never disclosed the name or the distinctive features of the driver of the truck. He had simply stated that he had seen the driver walking away from the place of accident in the head beam of his car and can identify him. If that was the position, it was obligatory for the Investigating Agency to hold the test identification parade for the identification of the accused by this witness. No such test identification parade was held. No doubt, this test identification parade is not the conclusive evidence regarding the identity of the accused but certainly can be used as corroborative piece of evidence. In all fairness, the Investigating Agency was bound to conduct such parade in order to ascertain whether the accused was the same person who is alleged to have been driving the truck at the time of the accident and to see if the investigation was proceeding in the right direction. For non-holding of such test identification parade, an adverse inference is to be drawn against the prosecution. The question arises, how much weight can be given to the identification of the accused in the court for the first time by the complainant? When making statement in the Court as PW-1, the complainant reiterated his Crl. Revision No.831 of 2003 -6- statement made before the police that he had seen the accused going towards the fields after the accident in the head beam of his car. The point from where he had seen the accused, so going towards the fields, has not been shown in the rough site plan, Ex. PW9/A. If the statement of the complainant is scrutinized in the light of this rough site plan, it becomes very much clear that he had no opportunity to see the accused leaving the spot in the head beam of his car. According to him, this Gypsy was going in front of his car when the truck coming from the opposite side was struck in it and after striking with the Gypsy, the truck went to the other side of the road into the pits. The head beam of the car must have been pointing on the front side and as such it was not possible for the complainant to see the accused leaving the spot, much less to note his distinctive features so as to give him an opportunity to identify him subsequently in the court. In view of these facts, no reliance can be placed on the identity of the accused made by the complainant for the first time in the court. The driver of the truck had left the spot of the accident. The Investigating Agency had the opportunity to collect evidence as to who was the owner of the truck and who was employed as driver on the same, by the owner. No such evidence was collected during the investigation. Even from the statement of Anil Kumar SI, PW-9, it is not possible to establish the identity of the accused. As per that statement he had arrested the accused on 21.6.1998. It was never disclosed by him as to how he came to know about the name of the accused or that it was he who was driving the truck at the time of the accident. When the identity of the accused had not been established, his conviction could not have been recorded. Therefore, the revision is hereby Crl. Revision No.831 of 2003 -7- accepted. The conviction and sentence of the accused is set aside. Fine, if already deposited, be refunded to him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE February 21, 2011 PARAMJIT