Criminal Revision No. 122 of 1999 1 In the High Court of Punjab and Haryana, Chandigarh. Criminal Revision No. 122 of 1999 Date of Decision: 6.5.2008. Ayub Khan …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Lokesh Sinhal, Advocate for the petitioner. Mr. S.S.Goripuria, Deputy Advocate General, Haryana, for the respondent-State. Kanwaljit Singh Ahluwalia, J. (Oral) Petitioner Ayub Khan was tried in case FIR No.215 dated 13.10.1993 registered at Police Station Sohna, under Sections 279, 337, 427 & 304-A IPC. The petitioner was convicted and sentenced by the Court of learned Judicial Magistrate Ist Class, Gurgaon to undergo three months rigorous imprisonment and a fine of Rs.500/-, in default whereof to undergo imprisonment for 15 days. He was further convicted and sentenced under Section 304-A IPC to undergo two years rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine, to further undergo imprisonment for one month. Criminal Revision No. 122 of 1999 2 The allegations against the petitioner are that on 13.10.1993, he was driver on truck Dumper No. HR-26-1387, which was coming from the side of Gurgaon and hit a four wheeler No. DBL-5684 due to which driver of the four wheeler died on the spot and passenger received injuries. It was alleged by the complainant that the accused was driving the vehicle at a very high speed and in a rash and negligent manner. The FIR was recorded at the instance of complainant Ram Parshad Yadav. In the FIR, name of the driver was not mentioned. Petitioner was arrested on 14.10.1993. Prosecution examined PW.1 Purshotam Lal. He submitted mechanical report in respect of two vehicles i.e. offending truck and four wheeler, respectively. The reports have been exhibited as Ex.PW1/A and Ex.PW1/B. PW.2 Khachera, Ex-Sarpanch appeared as PW.2 and stated that he knew the accused who is present in the Court and he had identified the accused at the time of his arrest. PW.3 Dr.R.S.Yadav had conducted the autopsy on the body of Kapoor Singh. Complainant Ram Parshad Yadav appeared as PW.4. He has stated that he was an owner of hotel an on the day of occurrence he was cleaning his hotel and on afternoon from the side of Gurgaon a truck of red colour came and on the number plate last number written was 87. He stated that there were two persons in the truck. He has seen the driver of the truck when he alighted from the truck after the accident and had run away. In the Court, he has stated that he has seen the accused and his face was of the same person who had run away Criminal Revision No. 122 of 1999 3 from the spot. He stated that one person from police had come at the spot who had written his statement. PW.5 Shish Ram Yadav had identified the dead body. PW.6 Sukhdev Singh, Head Constable is the Investigating Officer. He stated that he recorded the statement of eye witness Ram Parshad as PW.4/A on the basis of which formal FIR Ex.PW.6/A was recorded. He had prepared the rough site plan Ex.PW.6/B. He got the spot photographed and also got conducted inquest proceedings under Section 174 Cr.P.C. PW.7 Anil Kumar is the injured. He has stated that he was going in a four wheeler No. DBL-5684 towards Gurgaon. In the Court he has stated that the petitioner was driving the dumber. He has further stated in the Court that he identified the petitioner Ayub Khan as he was the person who was driving Dumber. In cross-examination, he admitted that he never knew Ayub Khan accused earlier to the accident. He has stated that accused after leaving the Dumper ran away from the spot. He further stated that accused had come to him in the hospital for compromise and at that time he disclosed his name. In the present case, Mr. Lokesh Sinhal, Advocate, appearing for the petitioner has stated that prosecution has failed to establish the identity of the petitioner as the person who was driving the Dumper. It is further stated that PW.2 Khachera, Ex-Sarpanch had only identified the petitioner at the time of arrest and from his statement it is very clear that he had no knowledge about the accident. In the Court he has stated that he knew the accused who is present in the Court. He knew the accused from the time of his birth and during investigation he had identified the Criminal Revision No. 122 of 1999 4 petitioner when the police asked him whether the accused is of his village to which he replied in affirmation. PW.4 Ram Parshad is a complainant. He is owner of a hotel at the place where the accident took place. He only stated that he saw the accused when he was running away. No mark of identification or description of features was given in the FIR. In the Court also, he has stated that face of accused resembles with the driver. PW.7 Anil Kumar, who was injured, has stated that he never knew the accused earlier too. He saw the accused for the first time when the accident took place. He has stated that accused came to the hospital and had requested for compromise. This is a kind of lame excuses, which cannot be relied upon. PW.7 Anil Kumar was injured at the spot, it was difficult for him to recognize and identify the driver who allegedly ran away from the spot. PW.6 Sukhdev Singh, Head constable, Investigating Officer of the case, has stated that Ram Parshad had disclosed name of the accused to him, whereas name of accused was not known to Ram Parshad earlier. There are many loopholes and gaps in the prosecution case. It will not be safe to infer that the prosecution has failed to discharge its onus to establish the identity of accused. It has been held by the Courts that the identification of accused in the Court is a substantive piece of evidence, yet to identify the accused, who has appeared there in the dock, is very convenient. In present case the circumstances are such, that implicit reliance cannot be placed on the witness of the case. Therefore, as a matter of abundant caution, this is a case where benefit of doubt can be granted to the accused- petitioner. Criminal Revision No. 122 of 1999 5 Thus, the present revision petition is accepted, conviction of petitioner is set aside and he is acquitted of the charges levelled against him. (Kanwaljit Singh Ahluwalia) Judge May 6, 2008 “DK”