Criminal Revision No.1644 of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No.1644 of 2003 Date of Decision 15.09.2010 Balwant Singh @ Bhuto ...... Petitioner VERSUS State of Punjab ...... Respondent CORAM:- HON'BLE MR. JUSTICE A.N.JINDAL Present: Mr.K.L.Chaudhary, Advocate, for the petitioner. Mr.Amit Chaudhary, Asstt. Advocate General, Punjab, for the respondent-State. ***** A.N.JINDAL, J: Assailed in this petition is the judgment dated 14.07.2003, passed by Additional Sessions Judge, Amritsar, dismissing the appeal of the petitioner-accused (herein referred as 'the petitioner') against the judgment dated 06.11.2001, passed by Judicial Magistrate Ist Class, Amritsar, convicting and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/- under Section 304-A IPC. Allegations against the petitioner are that he, while driving the bus bearing registration No.PJO-8895 in a rash and negligent manner and without blowing the horn, struck against the horse-cart of complainant Shangara Singh. Thereafter, the bus struck against an eucalyptus tree and over turned, as a result of which, one passenger, sitting in the bus died at the spot whereas Shangara Singh suffered injures. On trial, he was convicted and sentenced accordingly. His appeal also failed. Criminal Revision No.1644 of 2003 2 Arguments heard. Record perused. In order to solve the controversy regarding the identity of the accused, as raised by learned State counsel, it is observed that Nirvair Singh (PW2) stated that since he was sitting on the rear side of the bus, therefore, he could not identify the driver. Shingara Singh (PW5) has also neither named the accused nor identified him if he was driving the offending vehicle. The accused has not been confronted with his statement Ex.PW5/A on the basis of which FIR was registered, therefore, neither his statement nor the FIR could be treated as sufficient evidence to prove the identity of the accused. The aforesaid two documents have no evidentiary value unless the person authoring the same is confronted. These two witnesses have not ever given description of the driver of the offending bus. The trial Court has tried to get benefit of the suggestions, given by the counsel for the accused that the accident took place on account of the fault on the part of the bus-driver but counsel in its wisdom did not suggest that it was the accused who was driving the offending vehicle at the relevant time. Rather counsel after going into the circumstances of the case, has given the suggestion that the driver whosoever may be was not at fault. This suggestion cannot be used against the accused and the same also cannot be taken as an admission made by him qua the accident. The prosecution has to stand his own legs in order to establish that the petitioner was driving the bus in question at the time of accident. No record from the Majha Transport Co-operative Society Limited, Amritsar was summoned much less Manjit Singh, Traffic Manager, who was cited as a witness in order to prove the factum with regard to employment of the petitioner as their driver has not been examined. The observations made by the trial Court that it was the Criminal Revision No.1644 of 2003 3 fault of the Asstt. Public Prosecution that he did not ask the question with regard to identity of the accused appear to be not legally permissible. Thus, after ignoring the statement Ex.PW5/A and the so-called eye witnesses, no iota of evidence remains behind to connect the accused with the crime. Had Shingara Singh not owned the statement Ex.PW5/A then the prosecution was bound to declare the accused hostile and confront him with the said statement but that was not so done. Therefore, the statement ExPW5/A cannot be attached any evidentiary value. The Court has taken wrong view of the matter on the basis of impermissible evidence, resulting into failure of justice and serious prejudice to the accused. Therefore, the impugned judgment, being perverse, invites interference by this Court. Resultantly, this petition is accepted; impugned judgment is set aside and the accused is acquitted of the charges framed against him and he is directed to be set at liberty forthwith. Bail bond and surety bond, furnished by him stand discharged. Fine, if any deposited by him, be refunded. (A.N.Jindal) Judge 15.09.2010 mamta-II