Crl. Revision No. 720 of 2006 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 720 of 2006 (O&M) Date of Decision: April 18, 2011 Sukhwinder Singh ---Petitioner versus State of Haryana ---Respondent Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr.H.S.Gill,Senior Advocate, with Mr. R.K.Dhiman, Advocate, for the petitioner Mr.J.S.Rattu, Deputy Advocate General, Haryana *** GURDEV SINGH, J. The petitioner-accused, Sukhwinder Singh, was convicted by Chief Judicial Magistrate, Panchkula, for the offences under Sections 279 and 304-A IPC, vide judgment dated 14.7.2005 and was sentenced as under:- Under Section Sentence imposed Fine 279 IPC To undergo rigorous imprisonment for the period of three months ` 500/- 304-A To undergo rigorous imprisonment for a period of one year ` 1000/- He preferred an appeal against that conviction and sentence, which was dismissed by Sessions Judge, Panchkula, vide judgment dated 25.3.2006. Now, Crl. Revision No. 720 of 2006 -2- he has preferred the present revision against that conviction and sentence. Briefly stated, the facts are that on 12.1.1999, at about 9 p.m., Balwinder Singh was going on a bicycle on his left hand side on the road dividing Sectors 17-18, Panchkula. The accused came driving motor vehicle make Tata Sumo bearing Registration No. HR 02-E-5296 rashly and negligently from the back side and struck the same in his bicycle, as a result of which he was thrown on the ground and received the injuries. Thereafter, the vehicle struck in the electric pole as a result of which the mercury light installed thereon fell down. After leaving the vehicle at the spot, the accused escaped. This accident was witnessed by Gian Chand, PW-3 and Rajbir Singh, PW-1, Constables of Police Post, Sector-7, Panchkula, who were on patrol duty near the site of accident. Gian Chand, Constable, made his statement, Ex. PC, before Hardeep Singh, SI, PW-6, who after recording the police proceedings, Ex. PF/1, sent that statement to the Police Station and on the basis thereof FIR, Ex. PF/1, was recorded. Balwinder Singh was removed to the hospital for his treatment. The ASI accompanied by the complainant came to the place of accident and after inspecting the same, prepared the rough site plan, Ex. PF/2. He called Dev Singh, Photographer, to the spot, who took the photographs. Ex. P.1 to P.3. The vehicle, the bicycle and the mercury light, found lying at the spot were taken into possession, vide Memo Ex. PA. On account of the serious condition of the injured, he was sent to PGI, Chandigarh, where he died on 14.1.1994 and written information, Ex. PF/4, was sent to the police. On the receipt of that information, the SI came to PGI, Chandigarh, and prepared the inquest report, Ex. PF/4, in respect of the dead body. He sent the same for post mortem examination, along with his application, Ex. PF/5. The autopsy on the dead body was conducted on 15.1.1999 by Dr. Surinder Singh, who found five ante mortem injuries on the same and gave his opinion that the Crl. Revision No. 720 of 2006 -3- cause of death was dedema of the brain due to subarachnoid hemorrhage and contusion, as a result of the head injury. The accused was arrested on 16.1.1999 and he produced his own Driving Licence and the Insurance Cover of the vehicle before the SI, who took those into possession, vide Memo Ex. PC/1. On the same date, the vehicle was mechanically tested by Nafe Singh, Mechanic, PW-2, who found the same to be in mechanical order and gave his report, Ex. PB. After completion of the investigation, the challan was put in before the Chief Judicial Magistrate, who found sufficient grounds for presuming that the accused committed offences punishable under Sections 279 and 304-A IPC. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove the guilt of the accused, prosecution examined Rajbir Singh, PW-1, Nafe Singh, PW-2, Gian Chand, PW-3,Dev Singh, PW-4, Rohtash Kumar, PW-5 and Hardeep Singh, PW-6. After the close of the prosecution evidence, the accused was examined and his statement was recorded by the trial court 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 false implication. He was called upon to enter on his defence but he did not produce any evidence in his defence. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the petitioner-accused that the accused was not named in the FIR nor his description was given therein. He was identified by the alleged eye witnesses in the Court for the first time, after two years of the accident. This identification, made in the Court for the first time, is very weak type of evidence and cannot be relied upon in the absence of any test identification parade. The identity of the accused does not stand established from the evidence so produced by the prosecution. He tried Crl. Revision No. 720 of 2006 -4- to place reliance on Kanan and others vs. State of Kerala AIR 1979 Supreme Court 1127 and Shamsher Singh vs. State of Haryana 2011(2) RCR (Criminal) 235. He further submitted that the prosecution did not examine the doctor, who conducted the post mortem examination. The post mortem report was proved during the statement of the Investigating Officer and it could not have been taken into consideration by the trial court or the appellate court. In case this post mortem report it ignored, there remains nothing on the record that the injuries received by the injured were the direct cause of his death. Therefore, he could not have been convicted for the offence under Section 304-A IPC On the other hand, it has been submitted by the State counsel that though the accused was not named in the FIR, yet both the eye witnesses, examined in the Court, duly identified him to be the same person, who was driving the motor vehicle at the time of the accident. It has also been proved on the record that the vehicle was owned by the accused and in view of that, reliance is to be placed upon the identification made before the Court, may be for the first time, even in the absence of the test identification parade. According to him, there is sufficient evidence on the record for proving that Balwinder Singh died as a result of the injuries received by him in this accident. It was stated by Rajbir Singh, Constable, PW-1, and Gian Chand, Constable, PW-3, that this accident was caused by the accused by driving the motor vehicle, Tata Sumo, rashly and negligently. They duly identified him in the Court. Can reliance be placed upon this identification, made in the Court for the first time, in the absence of any test identification parade? In Kanan's case (supra), it was held that where a witness identifies and accused, who is not known to him, in the Court for the first Crl. Revision No. 720 of 2006 -5- time, his evidence is absolutely valueless unless there has been a previous test 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 may have seen only once. If no test identification parade is held, then it will be wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court. The facts of Shamsher Singh's case (supra) were different. It was case of dacoity, which was committed by the accused in the darkness with muffled faces. Identification parade was not held and the accused were shown to the witnesses in the police Station. It was in those circumstances, that it was held that identification in the Court become meaningless. It was observed by the Apex Court in Amitsingh Bhikaamsing Thakur vs. State of Maharashra 2007(1) RCR (Criminal) 618 as under:- “It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9 of the Indian Evidence Act, 1872(in short the 'Evidence Act') the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the Crl. Revision No. 720 of 2006 -6- sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration.” Thus it is the identification made in the Court which is the substantive piece of evidence. The identification parades belongs to the stage of investigation and are meant for the Investigating Officer in order to determine if the Investigation is proceeding in the right direction and the capability of the witnesses to identify the accused. The failure to hold test identification parade does not make inadmissible the evidence of identification in the Court. Still the Court is to see if the reliance is to be placed upon the identification made in the court for the first time. It depends upon the facts and circumstances of each case. In the present case it is not the case of the said eye witnesses that the accused was already known to them. His name was never disclosed in the FIR nor his description was given. The motor Crl. Revision No. 720 of 2006 -7- vehicle was struck in the bicycle of the deceased from the back side. It has not been stated by the said witnesses as to from which particular place they witnessed this accident nor that place has been pointed out in the rough site plan. Ex. PF/2. It was night time and according to them, the mercury light installed on the electric pole had fallen down after the vehicle struck in the same. In these circumstances, there was no opportunity with these witnesses to note down the distinctive features of the driver, who was driving the vehicle, for enabling them to identify him subsequently during the investigation or in the Court. There is no merit in the contention of the State Counsel that the prosecution produced evidence in the Court to the effect that this vehicle was owned by the accused. As per the Insurance Cover, which was taken into possession, this vehicle was owned by ILD Kalka, A/C Sh. Arvind Kumar, son of Banwari Lal. Therefore, on the basis of the evidence produced by the prosecution, it cannot be held that the vehicle, at the time of the accident, was being driven by the accused. In such like cases of hit and run accidents, the duty of the Investigating agency become very onerous. It is not always possible for the witnesses to properly see the drivers of the fast moving offending vehicles. The Investigating Agency is required to collect the evidence regarding the ownership of a particular vehicle and as to which particular person was driving the same before the accident or who was supposed to be on the steering of the vehicle at that time. The practice of Investigating Agency in not collecting such like evidence needs to be deprecated. The prosecution failed to examine the doctor witness, who conducted the post mortem examination on the dead body of the deceased. No doubt the post mortem report was proved during the statement of the Investigating Officer, but the same cannot be taken into consideration in the Crl. Revision No. 720 of 2006 -8- absence of examination of the doctor witness. It is strange that the Prosecuting agency is not making use of the provisions of Section 294 Cr.P.C. The trial can be cut short by resorting to those provisions as at the very initial stage, the accused can be called upon to admit or deny the genuineness of the documents forming part of the challan. That will also save the expenditure of the State in summoning and examining the witnesses for proving those documents in the Court. In the present case, the accused was never called upon to admit or deny the genuineness of the post mortem report. The substantive evidence was to be furnished by the statement of the doctor witness. In the absence thereof it cannot be held that the death of the deceased was the result of the injuries so received by him in the accident. In the result this revision petition is accepted. The conviction and sentence of the accused is set aside. The fine, if already deposited, be refunded to him. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE April 18, 2011 PARAMJIT Whether to be referred to Reporter? Yes