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2003 DIGILAW 1120 (PNJ)

State of Punjab v. Gurdip Singh

2003-08-13

VIRENDER SINGH

body2003
JUDGMENT Virender Singh, J. - Gurdip Singh son of Kehar Singh was charged under Section 304-A Indian Penal Code in this case. He stands acquitted vide impugned judgment dated 21.12.1991 passed by the learned Judicial Magistrate Ist Class, Gurdaspur. Aggrieved by that the State of Punjab has preferred the present appeal. 2. The allegation against respondent-Gudip Singh is that he on 16.10.1986 while driving his bus No. PBN-205 rashly and negligently has caused the death of one Kulla Masih when he along with Wilson and Arjan Dev was returning from Dhariwal and was going towards village Kaler Kalan. They were on a cycle. The allegations against the respondent are that while on the steering of the above said bus he did not blow any horn and struck the same against the cycle of Kulla Masih and dragged it to some distance. The matter was reported to the Police by Wilson and thereafter formal FIR was recorded. 3. After appreciating the entire evidence, the learned trial Court has acquitted the respondent mainly on two grounds :- i) Identity of the respondent is not established in this case. ii) Investigating Officer not examined. 4. I have heard of Mr. G.S. Hooda, learned Assistant Advocate General, Punjab and Mr. J.S. Verka, learned counsel for the respondent. With their assistance have also gone through the entire record of the case. 5. It has been argued by Mr. Hooda that the trial Court has not properly appreciated the evidence and the prosecution has been able to prove its case against the respondent to the hilt; as such the acquittal of the respondent is bad in the eyes of law. 6. On the other hand, Mr. Verka, learned counsel for the respondent refuting the argument advanced by the learned State counsel has vehemently stated that in the present case the identity of the respondent is not fixed by the prosecution. He then contended that even the statements of Wilson PW3 and Arjan Dev PW4 are most discrepant on many counts and if these are taken collectively, the effect of which would be that the case of the prosecution fails. According to Mr. Verka the judgment of the learned trial Court is well reasoned one and is not liable to be disturbed. 7. I have given my thoughtful consideration to rival contentions of both the parties. According to Mr. Verka the judgment of the learned trial Court is well reasoned one and is not liable to be disturbed. 7. I have given my thoughtful consideration to rival contentions of both the parties. In my view, the prosecution has not been able to prove its case to the hilt against the respondent in this case. Admittedly, the respondent is not named in the FIR and both the eye witnesses had not seen him at the spot. The identification in the Court for the first time is no identification in the eyes of law and as such the identity of the respondent is not fixed in this case by the prosecution. The learned trial Court while deciding this point in favour of the respondent in para 9 of its judgment has observed as under :- ".......there is a merit in the arguments of learned counsel for the accused. The name of the accused does not figure in the FIR. No identification was subsequently done by the police to establish the identity of the accused. PW1 Wilson has not named the accused even in the court. In his chief examination he had stated that he had not seen the driver or the conductor of the bus. PW4 Arjan Dev the other eye witness has only named the accused in the court but when confronted with his statement before the police Ex.DA, there is no mention of the name of the accused there........" 8. In the present case, the stand of the respondent as emerges from his statement under Section 313 Criminal Procedure Code is that he has denied all the prosecution allegations and pleaded false implication. It was the bounden duty of the prosecution to fix the identity of the respondent which has certainly not been done in this case. Therefore, the identity of the respondent, legally is not established. The learned trial Court in this context had relied upon Shamjit Singh v. The State of Punjab, 1986(2) Chandigarh Law Reporter 175. I do not find any infirmity in the said reasoning of the learned trial Court. 9. Non-examination of investigating officer in the present case is also fatal to the prosecution. Admittedly, rough site plan is not proved in the present case. As stated above, the respondent has not admitted the accident in this case. I do not find any infirmity in the said reasoning of the learned trial Court. 9. Non-examination of investigating officer in the present case is also fatal to the prosecution. Admittedly, rough site plan is not proved in the present case. As stated above, the respondent has not admitted the accident in this case. In this situation, the non-examination of the investigating officer would, in my view, assumes great importance. The learned trial Court has also taken this aspect into consideration while extending the benefit of doubt to the respondent. In the sequel to the aforesaid discussion, in my view, the learned trial Court has rightly reached the conclusion observing that the prosecution has not been able to prove its case beyond any doubt against the respondent. I, thus find no illegality in the impugned judgment of acquittal and the same is affirmed. Resultantly the present appeal filed by the State stands dismissed being devoid of any merit. Appeal dismissed.