Crl. Revision No. 485 of 2006 -1- In the High Court of Punjab and Haryana at Chandigarh Crl. Revision No. 485 of 2006 (O&M) Date of Decision: April 06, 2011 Jagdish @ Pappu ---Petitioner versus State of Haryana ---Respondent Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr.Atul Lakhanpal, Sr. Advocate, with Mr. R.S.Chahal, Advocate for the petitioner Mr.J.S.Rattu, Deputy Advocate General,Haryana *** GURDEV SINGH, J. The petitioner-accused, Jagdish @ Pappu son of Sh. Hari Chand was convicted by the Sub Divisional Judicial Magistrate, Hansi, for the offences under Sections 279 and 304-A IPC, vide judgment dated 5.1.2001 and vide order dated 6.1.2001, he was sentenced as under:- Sr. No. Under section Sentence imposed Fine 1 279 IPC To undergo rigorous imprisonment for a period of three months ` 200/- 2 304-A IPC To undergo rigorous imprisonment for a period of one year and six months ` 800/- Crl. Revision No. 485 of 2006 -2- Against that conviction and sentence, he filed an appeal which was dismissed by Additional Sessions Judge, Hisar, vide judgment dated 20.2.2006. Now, he has preferred the present revision against that conviction and sentence. The prosecution case, in brief, is that on 15.3.1993, at about 10.15 P.M., Shamsher Singh, complainant, PW-1, along with Chanderphool and Prem Singh, deceased, left the factory, Aravely Pipe Limited, Hansi, for going to their houses on their respective bicycles. When at about 10.30 p.m., they had reached near the Grid Station, Hansi, in the limits of village Dhedhari, one truck was lying parked on the left side of the road. In the meanwhile, one car make Maruti, bearing Registration No. DL 1C/B 8075, came from their back side, which was first struck in the bicycles of the deceased and then on the back side of the said truck, which had Registration No. HYF 8511. Both the deceased were thrown away and died at the spot itself. Even the driver of the car received the injuries, who was taken out and was sent to the hospital at Hisar for his treatment. After giving information about this accident in his village, the complainant, after leaving Fateh Singh at the spot, was proceeding to the police station for lodging a report, when Ram Rattan, SI, SHO, along with other police officials, met him on the Hansi-Hisar Road. At that place, he made his statement, Ex. PA, about this accident before the SI, who after recording his police proceedings sent the same to the police station and on the basis thereof, formal FIR was recorded under Sections 279 and 304-A IPC. The SI went to the place of accident and after inspecting the same, prepared the rough site plan with correct marginal notes. Sanjay Kumar, Photographer, PW- 3, was called to the spot, who took the photographs, Ex. P.10 to P.18. The truck and the car were taken into possession, vide Memo Ex. PB. The SI prepared the inquest reports in respect of the dead bodies of both the deceased and sent the same to Civil Hospital, Hisar, for post mortem examination. Crl. Revision No. 485 of 2006 -3- Sanjay and one Satish Kumar were also admitted in that hospital for the injuries suffered by them in this accident. They were medically examined and injuries were found on their person. The SI made applications to the doctor for enquiring about the fitness of those injured to make their statements, but they were declared unfit to make their statements. Satish Kumar succumbed to his injuries and his dead body was sent for post mortem examination. The post mortem examination on the dead body of Prem Singh was conducted by Dr. S.S.Malik, PW-4, who found eight ante mortem injuries on the same and gave his opinion that the death was the result of hemorrhage and shock due to injury No. 8, which was sufficient to cause death in the ordinary course of nature. The autopsy on the dead body of Chanderphool, deceased, was performed by Dr.Surender Singh, PW-5, who found ante mortem injuries on the same and gave his opinion that the cause of death was the result of hemorrhage due to those multiple injuries and the same were sufficient to cause death in the ordinary course of nature. After Sanjay was declared fit to make his statement, his statement was recorded by the SI, wherein he stated that he and Satish Kumar were travelling in the said car which was being driven by the present accused and that the accident took place on account of rash and negligent driving of the car by the accused. The car was mechanically tested by Amar Singh, Mechanic, PW-2, and about that test he gave his report, Ex. P.2. In the course of investigation, the accused was arrested. The documents of the car and his driving licence were taken into possession. After completion of the investigation, the challan was put in before the JMIC, Hansi, 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 his guilt, prosecution examined Shamsher Singh, complainant, PW-1, Amar Singh, Mechanic, PW-2, Crl. Revision No. 485 of 2006 -4- Sanjay Kumar, PW-3, Dr. S.S.Malik, PW-4 and Dr. Surender Singh, PW-5. After the close of the prosecution evidence, the accused was examined 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. I have heard learned counsel for both the sides. While challenging the conviction of the accused, so recorded by the trial court and upheld by the appellate court, it has been submitted by his counsel that the prosecution case rests on the solitary statement of the complainant and it is very much clear from his statement that the accused was identified by him, for the first time, in the Court itself. No reliance can be placed on that identification in the absence of any test identification parade. In this case, Investigating Officer was the most material witness, who did not enter the witness box for proving the rough site plan and the other documents, for which an adverse inference is to be drawn against the prosecution. He further submitted that according to the complainant himself, the name of the accused was disclosed to him by the police after 2/3 days of the accident. Therefore, no reliance can be placed on his statement that at the time of accident, the car was being driven by the accused. He prayed for his acquittal. The name of the accused was never disclosed by the complainant in his statement, Ex. P.A, made before the police. He stated therein that the driver of the car had also received injuries and had become unconscious and was removed to the hospital at Hisar, for his treatment. He even did not give the description of that driver, in that statement. However, when he made his statement before the trial court, he stated that the car, at the time of accident, Crl. Revision No. 485 of 2006 -5- was being driven by the accused but during his cross examination, he stated that the name of the accused was disclosed to him after 2/3 days. In these circumstances, when the name and description of the accused had not been disclosed by the complainant, the Investigating Agency, in all fairness, was required to hold test identification parade for getting the accused identified from the complainant. In the absence of such test identification parade, no reliance is to be placed on the identification made by the complainant in the Court, for the first time. It has come out during his cross examination that the accident took place during night and it was Amavasya. He did not depose any such fact from which it may be inferred that there was some artificial light at the spot. In these circumstances, it was not possible for him to note the distinctive features of the person, who was driving the car, so as to enable him to identify him subsequently in the Court. It is a case which speaks of volume of the negligence on the part of the prosecution. In such like cases, the Investigating Officer is very material witness, who is to depose about the facts noted by him at the spot during his investigation, which are always useful for analysing the statements of the eye witnesses. The prosecution failed to examine that Investigating Officer. The Investigating Agency was also negligent in collecting the proper evidence. It could have collected the evidence about the admission of the accused in the hospital, as according to the complainant, he had also received injuries in this accident and was sent to the hospital at Hisar. Sanjay was the best witness to depose as to on account of whose negligence, the accident took place, as he was travelling in the car at the time of the accident. His statement was recorded by the Investigating Officer during the investigation, under Section 161 Cr.P.C., but the prosecution never examined him in the Court. For all these omissions on the part of the prosecution, an adverse inference is to be Crl. Revision No. 485 of 2006 -6- drawn against it. On the basis of the solitary statement of the complainant, in view of the above discussion, it cannot be concluded that at the time of the accident, the car was being driven by the accused. Therefore, he could not have been convicted, though the prosecution was able to produce evidence to the effect that the car was being driven rashly and negligently so as to endanger the human life and personal safety of others and as a result of that rash and negligent driving, death of Chanderphool and Prem Singh was caused. In the result, this revision is hereby 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 06, 2011 PARAMJIT