Criminal Revision No. 1430 of 1999 1 In the High Court of Punjab and Haryana, at Chandigarh. Criminal Revision No. 1430 of 1999 Date of Decision: 4.3.2010 Mangal Chand …Petitioner Versus State of Haryana …Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. Sanjay Mittal, Advocate for the petitioner. Mr. Manish Deswal, Deputy Advocate General, Haryana, for the respondent. Kanwaljit Singh Ahluwalia, J. (Oral) The present revision petition has been preferred by Mangal Chand, who was nominated as accused in case FIR No. 443 dated 7.12.1991 registered at Police Station Narnaul, under Sections 279, 337 and 304-A IPC. The trial Court found the petitioner guilty for an offence under Sections 279, 337 and 304-A IPC. The petitioner was sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.500/- each for an offence under Sections 279 and 337 IPC. He was also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.4,000/-, for an offence under Section 304-A IPC. In default of payment of fine for an offence under Sections Criminal Revision No. 1430 of 1999 2 279 and 337 IPC, he was ordered to undergo further rigorous imprisonment for a period of two months each. For non-payment of fine under Section 304-A IPC, the petitioner was directed to undergo further rigorous imprisonment for a period of six months. All the sentences were ordered to run concurrently. Desh Raj PW.3 had made a statement Ex.PW.3/A to Sanwal Singh, Assistant Sub Inspector, on 7.12.1991, on the basis of which, formal FIR was registered. In his statement Ex.PW.3/A, Desh Raj, complainant, stated that he was a resident of village Sarai Bahadur Nagar and was doing agriculture work. On 7.12.1991, he was going to his fields on a bicycle. When he reached near village Sarai Bahadur Nagar, he saw that two persons namely Hem Raj and Jagdish were going towards the said village, on foot. They were going on a kacha path on their correct side. At about 11.30 A.M., one four-wheeler bearing registration No. RJP-7415 came at a very high speed in a rash and negligent manner and had hit Hem Raj and Jagdish. The name of the driver of four-wheeler was not known to Desh Raj (complainant) but he was a young man. The four-wheeler turned turtle thrice and thereafter stood in its right position. Desh Raj, complainant, had called Shri Chand son of Bhagwan Singh, resident of village Sarai Bahadur Nagar, who had also witnessed the occurrence. The injured were taken in a truck, which was coming from other side to General Hospital, Narnaul. From there, both the injured were referred to Medical College at Rohtak where they had died. The FIR was investigated and a report under Section 173 Cr.P.C. was submitted. Criminal Revision No. 1430 of 1999 3 Petitioner Mangal Chand was charged for an offence under Sections 279, 337 and 304-A IPC. The charge stated that on 7.12.1991, in the area of Sarai Bahadur, the petitioner had driven a vehicle bearing registration No. RJP-7415 in a very rash and negligent manner and had caused the death of Hem Raj and Jagdish. The petitioner had denied the charge and claimed trial. Prosecution examined Dr.M.K. Goyal as PW.1, who had conducted medicolegal examination of Hem Raj and Jagdish. PW.4 Dr. Kumud Goyal stated that post mortem of Jagdish was conducted by her, who had died due to shock and hemorrhage as a result of injuries. The prosecution examined Shri Chand as PW.2, who, in his examination-in-chief, stated that he had witnessed the occurrence but he was not able to say as to whether the accused present in the Court was driver of the offending four-wheeler or not, because when they were taking the injured out from underneath the four-wheeler, he fled away from the spot. PW.3 Desh Raj stated that the driver of the truck ran away from the spot and the accused present in the Court was the driver of the offending vehicle. In the cross-examination, he stated that he had seen the accused running away from the spot. In the present case, only the above said four witnesses have been examined. The Photographer, Draftsman and the Investigating Officer have not been examined. A perusal of the judgment of learned trial Court reveals that five opportunities were granted to the prosecution, but it was not able to examine the witnesses, from whose Criminal Revision No. 1430 of 1999 4 testimony the Court could have the benefit of visual observations. Mr. Sanjay Mittal, Advocate, appearing for the petitioner, has raised the following submissions:- A) That the prosecution had failed to prove the identity of the accused as a driver of the four-wheeler; B) That PW.2 Shri Chand and PW.3 Desh Raj were not present at the spot and had not witnessed the occurrence. C) That the accused had denied the accident, therefore, it was incumbent upon the prosecution to prove that the accident had taken place due to his rash and negligent driving. D) That the oral bald assertion of the witnesses were required to be corroborated by examining the Photographer, Draftsman and the Investigating Officer. Furthermore, an opportunity was denied to the defence to demolish the eye-witness account from visual observations brought on record. To appreciate contentions made by learned count, it is time to analyze and dissect the evidence. When the accident took place, PW.2 Shri Chand was working in his fields and was attracted to the spot. It has come in the evidence that PW.2 Shri Chand had reached at the spot 6/7 minutes after the accident. He further stated that he had not seen the driver as he had reached at the spot after 6/7 minutes. PW.3 Desh Raj, who was going on a bicycle when the accident took place, saw the accused running Criminal Revision No. 1430 of 1999 5 away from the spot. He was not known to the accused earlier. The name of accused was not mentioned in the FIR and no test identification parade had been held. The witnesses had identified the accused for the first time in the Court, when he was standing in the dock. It has been held that though the identification of the accused in the Court was a substantive piece of evidence but as a matter of abundant caution, same had to be corroborated by test identification parade. The identification of the accused, when he was standing in the dock for the first time in the Court, is held to be a weak type of evidence. Furthermore, as has been earlier mentioned, to determine as to whether the petitioner was driving the vehicle in a rash and negligent manner, the Court should have drawn its conclusion after taking into consideration the site plan, photographs and the cross-examination of the Investigating officer. In the present case, all these three important witnesses have not been examined. Therefore, the Court is deprived to formulate its opinion as to whether the petitioner was driving the vehicle in a rash and negligent manner. In the present case, PW.2 Shri Chand had reached at the spot lateron. The Court has only to rely upon the testimony of PW.3 Desh Raj. Had the Photographer, Draftsman and the Investigating Officer been examined, they may have provided the necessary corroboration or may have contradicted PW.3 Desh Raj. Taking totality of the circumstances that the prosecution had not established the identity of the accused and the observations made above regarding denial of visual observations to the Court, this Court is of the view that benefit of doubt is to be granted to the accused as a matter of abundant caution. Criminal Revision No. 1430 of 1999 6 Hence, the present revision petition is accepted. The conviction and sentence awarded to the petitioner by the two Courts below is set aside. He is acquitted of the charges. (Kanwaljit Singh Ahluwalia) Judge March 4, 2010 “DK”