Crl. Revision No. 389 of 2007 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 389 of 2007 Date of Decision:May 15, 2009 Sushant Kumar ---Petitioner versus Surjit Kumar ---Respondent Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.C.L.Sharma ,Advocate, for the petitioner Mr. Rajiv Trikha, Advocate, for the respondent. *** SABINA, J. Respondent was convicted for an offence under Section 279/337/338 of the Indian Penal Code(hereinafter referred to as “IPC”) vide judgment dated 5.5.2005 passed by Judicial Magistrate Ist Class, Hoshiarpur. Vide order of even date passed by learned Judicial Magistrate Ist Class, Hoshiarpur, respondent was sentenced to undergo rigorous imprisonment for a period of six months for offence under Section 279, sentenced to undergo rigorous imprisonment for a period of six months for offence under Section 337 and sentenced to undergo rigorous imprisonment Crl. Revision No. 389 of 2007 -2- for a period of six months for offence under Section 338 IPC and fine of Rs. 1000/- was also imposed. Aggrieved by the same respondent preferred an appeal and the same was accepted by the Additional Sessions Judge, Hoshiarpur vide judgment dated 1.11.2006 and the respondent was acquitted of the charge framed against him. Hence, the present revision petition by the complainant. Case of the complainant in brief as noticed by the appellate court in paras 2 and 3 of its judgment are as under:- “Briefly stated the case of the prosecution as unfolded by Sushant Kumar complainant is that on 9.2.2003 at about 7 P.M., he along with Harish Kumar, who is Junior Engineer in PSEB, was coming towards the house on scooter no. PB-07- 5437 from the office. the scooter was being driven by Harish Kumar. when they reached near Prabhat Chowk a ceilo car bearing no. PB-48-7690 came from opposite side which was being driven in rash and negligent manner by a Hindu gentleman and struck against the scooter which was being driven by Harish Kumar, as a result of which, he received multiple injuries and scooter was also badly damaged. he also received injuries. the accident was witnessed by Paramjit Singh son of Swaran Singh. Many persons assembled at the spot and injured were rushed to civil hospital, Hoshiarpur. The driver of the offending vehicle fled away from the place of accident after causing the accident. Being serious condition, Sushant Kumar as well as Harish Kumar were referred to DMC and hospital, Ludhiana. Crl. Revision No. 389 of 2007 -3- On receipt of information regarding the admission of injured in civil hospital, Hoshiarpur ASI Surdev Singh visited civil hospital, Hoshiarpur and moved application seeking opinion of the concerned medical officer regarding fitness of Harish Kumar and Sushant Kumar injured to make statement and vide endoresement Ex. PW.2/A, the concerned medical officer informed that injured Harish Kumar has been referred to DMC and hospital, Ludhiana whereas Sushant Kumar was declared unfit to make statement. Thereafter, ASI Surdev Singh Investigating Officer visited DMC and hospital, Ludhiana on 10.2.2003 at about 6.30 PM and moved application seeking opinion of the medical officer regarding injured Harish Kumar fit to make statement but he was declared unfit to make statement and thereafter, he moved another application seeking opinion of the concerned medical officer regarding injured Sushant Kumar fit to make statement and he was declared fit to make statement and his statement. Ex. PA was recorded by ASI Surdev Singh on the basis of which, the formal FIR was put into black and white and the investigation was put into motion. After the completion of investigation, the challan was presented in the court of learned Ilaqa Magistrate. Learned counsel for the petitioner has submitted that the appellate court had erred in acquitting the respondent of the charge framed against him. Learned counsel for the respondent, on the other hand, has submitted that the respondent was not named in the FIR. There was no Crl. Revision No. 389 of 2007 -4- medical evidence on record with regard to the injuries suffered by the petitioner. The Investigating Officer had also not been examined in this case. Learned appellate court while acquitting the respondent of the charge framed against him had observed in paras 12 to 15 as under:- “This court has given a thoughtful consideration to the aforesaid submissions made by the learned counsel for the appellant-accused and finds substance in it. Admittedly, in criminal cases, the identity of the culprit is invariably the most vital factor for the success of the prosecution case. Unless he has been apprehended at the spot of was previously known to or positively identified by the eye witnesses at the place of occurrence. The factum of identity usually could not be established satisfactorily in the court. So in such circumstances, the omission to hod test identification parade becomes fatal for the prosecution. 13. Reverting back to the facts and circumstances of the case in hand, the accused was not known to any of the witnesses prior to the accident and further that his name also did not figure in the statement of Sushant Kumar on the basis of which, the instant FIR was registered. The Investigating officer ASI Surdev Singh has also not been examined by the prosecution who could have been thrown some light on the case of prosecution as to how he reached at the conclusion that it was none else but the present accused-appellant, who was driving the car at the time of accident. It is well settled that burden Crl. Revision No. 389 of 2007 -5- heavily lied upon the prosecution to establish the charge beyond doubt as the accused is deemed to be innocent unless, he is found guilty. Any suspicion cannot take a place of substance evidence. In the instant case, it can be said that the prosecution has miserably failed to establish that the case in question was being driven rashly and negligently by the present appellant-accused. 14. Not only this, there is also no medical evidence at all brought on record by the prosecution and it is very strange as to on what basis the present appellant-accused has been convicted under Section 337/338 of IPC. 15 Taking into consideration the aforesaid aspects of the case, this court is of the considered view that the prosecution has failed to establish the charge framed against the accused- appellant beyond or reasonable and probable shadow of doubt. As such, it can be safely concluded that the impugned judgment of conviction and order of sentence dated 5.5.2005 are not sustainable in the eyes of law being against the evidence as well as settled proposition of law. As such the same are set aside by way of acceptance of the instant appeal and the accused-appellant stands acquitted of the charge. Fine deposited by the appellant at the time of his conviction shall be refunded to him but after the expiry of the period of appeal or revision if any and in case of appeal or revision, in accordance with the decision thereof. File be consigned.” Reasons given by learned Additional Sessions Judge, Crl. Revision No. 389 of 2007 -6- Hoshiarpur while acquitting the respondent of the charge framed against him are sound reasons and hence, call for no interference. Dismissed. (SABINA) JUDGE May 15, 2009 PARAMJIT