Crl. Revision No.1135 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRIMINAL REVISION No. 1135 OF 2002. DATE OF DECISION : 18-11-2009. Khem Chand. ...... PETITIONER. Versus State of Haryana. ..... RESPONDENT. CORAM:- HON'BLE MR.JUSTICE RAM CHAND GUPTA Present: Mr. Kapil Aggarwal, Advocate for the petitioner. Mr. Jaspreet Singh, Asstt. Advocate General, Punjab. *** RAM CHAND GUPTA, J. This revision petition is directed against the judgment dated 03.05.2002 rendered by the court of Additional Sessions Judge, Panchkula vide which it dismissed the appeal against the judgment of conviction dated 7.11.2001 and order of sentence dated 09.11.2001 rendered by the court of Judicial Magistrate First Class, Panchkula vide which the present revision-petitioner was convicted for offences under Sections 279/304-A of Indian Penal Code (hereinafter called as 'Act') and sentenced him to Crl. Revision No.1135 of 2002 -2- undergo R.I. two years and to pay a fine of Rs.1500/- for offence under Section 304-A IPC and R.I. for six months and to pay a fine of Rs.500/- for offence under Section 279 IPC and however, both the sentences were ordered to run concurrently. 2. The facts, in brief, are that on 26.08.1996 at about 6.30 AM Naik Basanta – complainant was driving Military Truck bearing No. 87C- 48281E2. He reached near TCP Post Malikpur when a truck bearing No. PUR-1587 came from opposite direction, which was being driven by its driver in a rash and negligent manner. A scooter bearing No.PCK-3081 was going ahead of the Military vehicle. The driver of the truck hit against the scooter by bringing truck on wrong side of the road and dragged the scooter uptill some distance and thereafter hit against the military truck being driven by Naik Basanta. After the accident, the driver of the scooter succumbed to injuries. The driver of truck ran away from the spot after causing the accident and lateron his name was disclosed as Khem Chand son of Ram Sarup. 3. After recording the statement Ex.PC of the complainant, a case for offences under Sections 279/304-A IPC was registered and investigation was taken in hand. After completion of the investigation, report under Section 173 Cr.P.C. was filed against the accused. He was charged by the learned Trial Court for the aforementioned offences to which he did not plead guilty and claimed trial. 4. The prosecution examined as many as nine witnesses. PW1 is Nafe Singh, Mechanic who had examined the truck and the scooter involved in the accident. PW2 is Naib Subedar Shri Bhagwan, alleged Crl. Revision No.1135 of 2002 -3- eye-witness of the occurrence. PW3 is Rajinder Singh, Head Constable, Investigating Officer of this case. PW4 is Mahinder Kaur, who had identified the dead body of Gurmel Singh. PW5, Chander Kant is the photographer, who proved the photographs Ex.P1 to Ex.P4. PW6 is Dr. B.K.Gupta, who conducted the postmortem examination of deceased Gurmel Singh and has proved his report Ex.PM. PW7 is Tarsem Singh, Head Constable who was joined in the investigation by the Investigating Officer. PW8, Ram Kishan is another alleged eye-witness of the occurrence. PW9 is Dayal Singh, owner of the offending truck. 5. Statement of accused in terms of Section 313 of Cr.P.C. was recorded. All the incriminating evidence coming against him was put to him. He denied the same and took the plea that he has been falsely involved in this case. However, he did not lead any evidence in his defence. 6. After hearing counsel for the parties and on going through the record, the learned Trial Court convicted and sentenced the accused as aforementioned. Feeling aggrieved against the judgment of conviction and order of sentence of the learned Trial Court, an appeal was preferred by the accused, which was dismissed vide judgment dated 03.05.2002 rendered by the court of Additional Sessions Judge, Panchkula. Still dissatisfied, the present revision petition was filed by him. 7. I have heard Mr. Kapil Aggarwal, learned counsel for the revision-petitioner and Mr. Jaspreet Singh, Assistant Advocate General, Punjab and perused the evidence and have gone through the entire record of the case carefully. Crl. Revision No.1135 of 2002 -4- 8. Learned counsel for the revision-petitioner vehemently argued that the prosecution has failed to prove that it was the accused who was driving the vehicle at the relevant time with which the accident had taken place. He has further argued that since the identity of the accused has not been proved, he cannot be said to be connected with the present case. It is also argued that findings of the courts below that the accused was driving the vehicle at the time of accident leading to the death of Gurmel Singh, are perverse and illegal. It is further contended that identification of the accused for the first time in the court, in the absence of exceptional circumstances to the contrary, cannot be said to be sufficient to connect the accused with the crime. It has been argued that even from the complaint Ex.PC, it is revealed that the driver of the truck had run away from the spot after causing the accident and his name was disclosed lateron. It is further contended that even the complainant did not appear in the witness box to identify the accused. It is further argued that another alleged eye-witness – Ram Kishan, PW8 has not stated registration number of the truck involved in the accident and name of the driver driving the same and that he nowhere deposed that the accused facing trial, was the same person who was driving the truck at the time of accident. He simply deposed that he had given information of the occurrence to the wife of the deceased as deceased was known to him as they used to serve together. It is further contended that the only alleged eye-witness, on the basis of which accused was held guilty by the courts below, was Naib Subedar Shri Bhagwan, PW2 and that however, even he deposed in the examination-in- chief that he could not recognise the driver of the truck and that the name Crl. Revision No.1135 of 2002 -5- of the driver was disclosed lateron. 9. On the other hand, it has been argued by learned Assistant Advocate General for the State of Haryana that the accused was duly identified by Naib Subedar Shri Bhagwan, PW2 when he was cross- examined on behalf of the State after he was declared hostile and that identification in the court is sufficient to connect the accused with the crime. It is further contended that merely on the ground that no test identification parade was done during the course of investigation, it cannot be said that no reliance can be placed upon the testimony of Shri Bhagwan, PW2. Hence, it is argued that courts below were right in coming to the conclusion that it was the present revision-petitioner who had driven the vehicle at the time of accident leading to the death of Gurmel Singh and that he was rightly convicted and sentenced by the courts below. 10. It is settled principle of law that while exercising the revisional jurisdiction, this Court is not to re-evaluate and reappreciate the evidence produced by the prosecution until and unless, it comes to the conclusion that the findings recorded by the trial court are perverse, illegal and erroneous on account of misreading of evidence. However, in the instant case as would be discussed hereinafter, the findings recorded by the courts below that the present revision-petitioner was driving the vehicle with which the accident had occurred leading to the death of Gurmel Singh, are perverse and illegal. 11. Admittedly, the accused i.e. the present revision-petitioner was not known to the complainant and the alleged eye-witnesses, who were travelling in the military vehicle. He was stranger to them. Even in Crl. Revision No.1135 of 2002 -6- the complaint, the complainant has stated that the accused ran away after causing the accident and that his name was disclosed lateron without mentioning, who disclosed his name. He was arrested after three days of the accident by the Investigating Officer i.e. on 29.08.1996. Admittedly, Yashwant Sinha was driving the military vehicle and complainant – Naik Basanta was sitting beside him. However, prosecution has not examined Yashwant Sinha or Naik Basanta. Naib Subedar Shri Bhagwan while appearing as PW2 has deposed that he alongwith 7/8 other persons were sitting behind the cabin of the driver and that he came down after the accident had already taken place. Hence, he was not in a position to see the manner in which the accident occurred. He was not in a position to see the driver, hence, in the examination-in-chief, he rightly deposed that he could not recognise the driver. However, in the cross-examination on behalf of the State he simply deposed that the accused was the same person who was driving the truck at the time of accident. 12. PW4 – Mahinder Kaur wife of Gurmel Singh – deceased also deposed that name of the driver of truck was disclosed to her by the police and she reached the place of accident just about 10-15 minutes after the accident had occurred. 13. PW8 – Ram Kishan deposed that accident had taken place between a scooter and truck and that he informed the wife of the deceased and that the police had reached the place of occurrence. He also deposed that identification of the accused was not got done from him by the police. 14. Both the courts below held that the present revision-petitioner was driving the truck at the time of accident only on the basis of the Crl. Revision No.1135 of 2002 -7- deposition of PW2 – Naib Subedar Shri Bhagwan in the cross-examination by learned Public Prosecutor for the State that the accused present in the court, is the same person who was driving the truck at the time of accident. However, even this witness in his statement before the police recorded on 26.08.1996 had not mentioned the name of driver of the truck. He was occupying back seat behind the cabin of driver, hence, he could not even have a glimpse of driver of the vehicle. Hence, he was not in a position to identify the driver. Driver of the truck ran away from the place of occurrence. The driver of military vehicle and the person sitting behind him i.e. complainant in this case, have not been examined by the prosecution. Only they could identify the accused. Had the accused been arrested at the spot and had he stayed there for a sufficient longer period, it could have been said that PW2 – Shri Bhagwan was in a position to identify him. No test identification parade of the driver of truck was got done from this witness. Other material witnesses i.e. the driver of military vehicle and another person sitting beside him have not been examined. Hence, an adverse inference can be drawn under Section 114(g) of the Evidence Act that had they been examined, they would not have supported the case of the prosecution. Hence, identification of the accused for the first time in the court by PW2 – Naib Subedar Shri Bhagwan cannot be said to be sufficient to connect the accused with the present case. As the accused was not known to the witnesses and had run away immediately after causing the accident and was arrested lateron, test identification parade in terms of Section 9 of the Evidence Act was necessary. Hence, in view of these facts, the identification of the accused for the first time by Crl. Revision No.1135 of 2002 -8- PW2 Shri Bhagwan in the court cannot be accepted. On this point reliance can be placed upon Dana Yadav @Dahu & Others v. State of Bihar, 2002 (4) RCR(Crl.) 314 (SC). 15. As already discussed above, in the present case neither driver of the military vehicle involved in the accident nor complainant of the case, which was sitting beside him appeared in the witness box. Only a witness, who was occupying back seat behind the cabin of driver of the military vehicle has identified the accused for the first time in the court that too in the cross-examination on behalf of State while he was declared hostile. Hence, no reliance can be placed upon his deposition that the accused is the same person who was driving the truck at the time of accident. Moreover, there was no interaction between this witness and the driver of the truck at the spot as he had already left the place of accident when he came out of the vehicle and the name of the accused was allegedly disclosed lateron to him. 16. For the reasons recorded above, the present revision petition is accepted. 17. The judgment of conviction and order of sentence rendered by the learned Trial Court and the judgment dated 03.05.2002 rendered by the Appellate Court, affirming the judgment of trial court, are set aside. 18. The present revision-petitioner shall stand discharged of his bail bonds. ( RAM CHAND GUPTA ) November 18, 2009. JUDGE 'om'