IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Revision No. 2386 of 2002 Date of Decision : February 05, 2010 Jagminder Singh ....Petitioner Versus State of Haryana .....Respondent CORAM : HON'BLE MR. JUSTICE T.P.S. MANN Present: Mr. Jainainder Saini, Advocate for the petitioner. Ms. Shalini Attri, Deputy Advocate General, Haryana T.P.S. MANN, J. (Oral) By way of present revision filed under Section 401 of the Code of Criminal Procedure, the petitioner is challenging his conviction under Sections 279 and 304-A IPC and sentence of rigorous imprisonment for three months and rigorous imprisonment for one year, respectively, as recorded by Judicial Magistrate Ist Class, Karnal, on 19.8.2002 and upheld in appeal by Additional Sessions Judge, Karnal on 3.12.2002. The facts giving rise to the criminal case against the petitioner are that on 9.9.1993, complainant Jaipal Singh, alongwith his brother Gulab Singh (since deceased) and Attar Singh son of Sarup Singh, went to village Jaisinghpura in order to make payment of the buffaloes. While returning from Jaisinghpura to Safidon, his brother Crl. Revision No.2386 of 2002 -2- Gulab Singh was going on his motor cycle bearing registration No. HR40-0162 whereas he and Attar Singh were following him on another motor cycle bearing registration No.HR33-0223. There was a distance of about 100 yards between the two motor cycles. When they were about two kilometers from Assandh, one truck bearing registration No.HRP-7800 came from the side of Safidon. It was driven rashly and negligently by its driver. It hit against the motor cycle driven by Gulab Singh. As a result of the accident, Gulab Singh fell down in the ditches. When Jaipal Singh went near his brother, he saw that he had breathed his last on account of the injuries received by him. Immediately, he chased the truck and noticed that it was lying parked at Kaithal chowk, Assandh. The same alongwith its driver was overpowered. The driver of the truck was sent by the police to the Police Station. Jaipal Singh then made statement Ex.PA before ASI Ram Kumar of Police Station, Assandh, on 9.9.1993 at 6.50 p.m. at Kaithal chowk, Assandh and on its basis, formal FIR No.307 (Ex.PW6/A) was recorded in Police Station, Assandh, on 9.9.1993 at 7.05 p.m. After completion of the investigation, challan was presented against the petitioner. Copies of documents as required under Section 207 Cr.P.C. were supplied to him. Vide order dated 18.3.1994, the trial Court charged the petitioner for offences under Sections 279 and 304-A IPC, to which he pleaded not guilty and claimed trial. Crl. Revision No.2386 of 2002 -3- In support of its case, the prosecution examined PW1 Dilawar Singh, PW2 Attar Singh, PW3 Jaipal Singh, PW4 Naresh Kumar, PW5 Constable Ram Bhaj, PW6 ASI Satpal Singh, PW7 SI Ram Kumar and PW8 Dr.Wazir Singh. When examined under Section 313 Cr.P.C., the petitioner pleaded innocence and false implication. Both the Courts below believed the prosecution version and convicted and sentenced the petitioner, as mentioned above. Mr. Jainainder Saini, Advocate, learned counsel for the petitioner, who was appointed as Amicus Curiae for arguing the case on behalf of the petitioner as his counsel, who had filed the revision, did not come present on the last date of hearing, submitted that in his statement Ex.PA, made on 9.9.1993, complainant Jaipal Singh mentioned that after the accident had taken place, he had chased the truck and was able to nab the same alongwith its driver at Kaithal chowk, Assandh. However, SI Ram Kumar who had recorded statement Ex.PA, while appearing as PW7 stated in his examination-in-chief that he arrested the accused on 11.9.1993. In cross-examination he went on to reiterate the said fact by submitting that it was the Sarpanch of village Matloda, who produced the accused before him on 11.9.1993. Therefore, there was a serious defect in the investigation of the case and the consequential benefit has to be given to the petitioner. Crl. Revision No.2386 of 2002 -4- Ms. Shalini Attri, learned Deputy Advocate General, Haryana, has submitted that if the petitioner had been nabbed on 9.9.1993 and produced before the police, his name would have been mentioned in the FIR itself. Instead, only his physiognomical features were mentioned in the FIR. Infact, the petitioner was arrested on 11.9.1993 when he was produced by the Sarpanch of village Matloda before PW7 SI Ram Kumar. As per the statement Ex.PA made by Jaipal Singh on the basis of which formal FIR was registered, the truck being driven in a rash and negligent manner dashed against the motor cycle driven by Gulab Singh-deceased, as a result of which said Gulab Singh fell in the ditches by the side of the road. When Jaipal Singh went near his brother he saw that he had already expired. According to him, it was truck bearing registration No.HRP-7800, which had hit the motor cycle driven by Gulab Singh-deceased. Soon after noticing that his brother had died, Jaipal Singh started chasing the truck and found that it was lying parked at Kaithal chowk, Assandh and he was able to nab the truck as well as its driver, and the latter was, thereafter, sent by the police to the Police Station. Despite the same, he also described the physical features of the accused, who was driving the truck at the relevant time. In view of clear and categorical statement made by Jaipal Singh, it has to be taken as a fact that the petitioner was apprehended/arrested on 9.9.1993 after having been produced before the police and, thereafter, sent to the Crl. Revision No.2386 of 2002 -5- Police Station. Contrary to the same, SI Ram Kumar stated that the petitioner was arrested on 11.9.1993 when he was produced by the Sarpanch of village Matloda. These two situations cannot be reconciled. Infact, the trial Court in para 13 of its judgment doubted the case of the prosecution regarding the arrest of the petitioner on 11.9.1993. It was held that the accused was caught on the date of occurrence by Jaipal Singh PW2 and Attar Singh PW3 and taken in police custody. However, it was held that no such benefit of faulty investigation could be extended to the petitioner as there was evidence of the eye-witnesses, which could not be discarded. There was a serious lapse in the investigation conducted by SI Ram Kumar. On the one hand, he recorded the statement Ex.PA of Jaipal Singh that the petitioner had been arrested on 9.9.1993 when produced by Jaipal Singh and Attar Singh whereas on the other, while appearing as PW7 he mentioned about the arrest of the petitioner on 11.9.1993 when produced by the Sarpanch of village Matloda. The benefit of such a faulty investigation has to be extended not to the prosecution but to the accused. Even as per SI Ram Kumar PW7, he had not directed the petitioner to keep his face muffled nor made an attempt to get him identified from the two eye-witnesses by holding a test identification parade. Such a test identification parade was required for the reason that in the FIR the name of the petitioner was not mentioned as accused Crl. Revision No.2386 of 2002 -6- but only his physical features were described there. Under these circumstances, the identification of the accused in the Court for the first time loses its significance. Reference can be made to State (Delhi Administration) V V.C.Shukla and another AIR 1980 SC 1382 and Kanan and others V State of Kerala AIR 1979 SC 1127 wherein it was held that the identification of the accused in the Court for the first time in the absence of any prior test identification was of no value. In view of the above, it has to be held that the prosecution has not been able to prove its case against the petitioner beyond reasonable doubt. The revision is, accordingly, accepted, conviction and sentence of the petitioner is set-aside and he is acquitted of the charges against him. Before parting with the judgment, the Court places on record its appreciation of the assistance rendered by Mr. Jainainder Saini, Advocate, who was appointed as amicus curiae, in the disposal of the revision. It would be expected of the Legal Services Authority, Haryana, to pay an amount of Rs.3500/- to Mr. Jainainder Saini, Advocate. ( T.P.S.MANN ) February 05, 2010 JUDGE ajay-1