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2006 DIGILAW 148 (JK)

State Of J. &K. v. Sohan Lal Koul

2006-06-02

MANSOOR AHMAD MIR

body2006
1. This criminal acquittal appeal is directed against the judgment/order dated 9th May 2005 passed by the learned Additional Sessions Judge, Jammu in a conviction appeal titled as Sohan Lal Koul v. State, whereby and Whereunder the order of conviction and sentence passed by Learned Judicial Magistrate 1st Class (Sub-Judge), Jammu was set aside and accused came to be acquitted for the commission of offences punishable under sections 304-A and 279 RPC, FIR No. 129/2001, Police Station, Bakshi Nagar, Jammu, which shall be hereinafter referred to as "impugned judgment". 2. Learned counsel for the appellant half heartedly argued that impugned order/judgment is illegal, erroneous and perverse. The order passed by the trial court was legally sound and accused-respondent was rightly convicted and sentenced by the trial court. But the appellate Court has fallen in error while accepting the appeal of respondent-accused. 3. Learned counsel for respondent argued that the impugned order and judgment is legally sound and needs no interference. While developing his arguments he stressly argued that FIR came to be lodged in Police Station Bakshi Nagar for the commission of offences punishable under Section 304-A and 279 RPC and accordingly, Challan came to be presented against the accused. Prosecution has cited 23 witnesses in the witness calendar and only 4 have been shown as eye witnesses. Out of 23 witnesses only 9 witnesses came to be examined. Some of the eye witnesses and other important witnesses including Investigating Officer, Doctor, and Harbhajan Singh have not been examined. Thus, adverse inference was to be drawn against the prosecution and the accused was to be acquitted. Out of 9 witnesses examined, only one witness, namely, Parma Nand has stated some thing adverse against the accused. Other witnesses have not deposed any incriminating circumstance against the accused. Thus, conviction could not have been-passed on the basis of statement of Parma Nand. 4. The allegation against the accused were that he had driven Gypsy rashly and negligently on 25th August 2001 at New Plot Jammu city and hit a Scooter while reversing the said Gypsy and two motorists sustained injuries and succumbed to the injuries. It is profitable to give a brief resuming of the evidence of the prosecution. 5. PW-Parma Nand has stated that Gypsy bearing registration No. 657 which, was being driven by the accused rashly and negligently hit the Motorcycle. It is profitable to give a brief resuming of the evidence of the prosecution. 5. PW-Parma Nand has stated that Gypsy bearing registration No. 657 which, was being driven by the accused rashly and negligently hit the Motorcycle. Motorcycle driver and Pillion rider sustained injuries and later on succumbed to the injuries. Prosecution witness namely, Harbhajan Singh and Charanjit Singh were also travelling in a Matador with him at the relevant point of time. He was not knowing the accused before but had seen the accused for the first time at the place of occurrence and thereafter on 10th September 2002 i.e. on the date of recording statement in the trial court. 6. PW-Charanjit Singh has deposed that he was not knowing that by whose negligence the accident had taken place and who was driving the vehicle at the time of alleged accident. He has categorically stated that he had not seen the accused (present in the court) at the place of occurrence. 7. PW-Balwant Singh has deposed that the offending Gypsy was being driven by the driver who was a Sardar. PWs-Raj Kumar, Ravi Kumar, Naveen Lal and Pardeep Gupta are the formal witnesses. 8. In the given circumstances, the question is whether, accused could be convicted on the solitary statement of witness Parma Nand. I am of the considered view that his statement required corroboration and without corroboration conviction could not be based on his evidence for the following reasons. 9. Parma Nand has stated that he was traveling in a Matador along with Harbhajan Singh and Charanjit Singh at the relevant point of time. But Charanjit Singh has not corroborated his statement and has categorically deposed that accused Sohan Lal was not on spot and he did not know who was driving the vehicle. Harbhajan Singh has not been examined. Thus, it is unsafe to rely his statement and pass conviction and sentence order on his solitary statement. 10. The evidence of Parma Nand could have been made basis for Conviction had Investigating Officer and Doctor appeared in the witness box and corroborated his evidence. Their statements, in the given circumstances, were important, thus, adverse inference is to be drawn against the prosecution. 10. The evidence of Parma Nand could have been made basis for Conviction had Investigating Officer and Doctor appeared in the witness box and corroborated his evidence. Their statements, in the given circumstances, were important, thus, adverse inference is to be drawn against the prosecution. No doubt, law has gone through a sea change even without the statement of Investigating officer, the conviction and sentence order can be passed provided the solitary statement inspires confidence and is not contradictory in any way. Apex Court in a case titled Bahadur Naik v. State of Bihar, reported in AIR 2000 SC 1852 has taken the same view. It is profitable to reproduce para 2 of the judgment herein. "2. The appellant has not been able to shake the credibility of the eye-witness. No material contradiction in the case of the prosecution has been shown to us. Under facts and circumstances, the non-examination of the Investigating Officer as a witness is of no consequence. It has not been shown what prejudice has been caused to the appellant by such non-examination." 11. Apex Court in a case titled as State of Karnataka v. Bhaskar Kushali Kotharkar and others, reported in AIR 2004 SC 4333 has taken the same view. It is profitable to reproduce para 6 of the judgment herein. "..... It is true that as a part of fair trial the investigating officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161 Cr. P. CV or if there is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating officer who must have recorded the statement of these witnesses under section 161 Cr. P. C..... " 12. It was bounden the duty of the prosecution to prove that what type of negligence the accused had committed. Solitary witness had stated that while reversing the vehicle at high speed, the Gypsy hit the Scooter and Scooterist and Pillion rider sustained injuries. Except this evidence, there is nothing on record suggesting the fact not to speak of proof that the driver of the Gypsy has driven the vehicle rashly and negligently. Solitary witness had stated that while reversing the vehicle at high speed, the Gypsy hit the Scooter and Scooterist and Pillion rider sustained injuries. Except this evidence, there is nothing on record suggesting the fact not to speak of proof that the driver of the Gypsy has driven the vehicle rashly and negligently. It was for the prosecution to prove that at what speed the driver had driven the offending vehicle Gypsy at the relevant point of time and whether it was he negligence of-the driver or of the Scooterist or it was just a mere error of judgment. There is not an iota of evidence on the file to connect the accused with the commission of offence. Thus, on this count alone, the accused merits to be acquitted. 13. Prosecution had failed to conduct identification parade which was required and necessary in the given circumstances of the case for the following reasons. 14. Parma Nand has deposed that he and other two persons namely, Harbhajan Singh and Charanjit Singh had seen the accused for the first time at the time of occurrence and thereafter he saw the accused on the date when he tendered statement before the trial Court. This means that he was not knowing the accused prior to the occurrence. The witness, Harbhajan Singh was not examined. Charanjit Singh has categorically deposed that he had not seen the accused on spot. Balwant Singh has deposed that Gypsy was driven by a driver who was a Sardar. In the given circumstances, identification parade was a must. 15. Apex Court in a case titled as Lakhwinder Singh and others v. State of Punjab, reported in AIR 2003 SC 2557 held that failure to conduct identification parade is a serious lapse. It is profitable to reproduce para 36 of the judgment herein. "36. It is not in dispute that on the date of occurrence i.e. 24th December, 1996 the informant PW-14 did not know the names of any of the gunmen who had taken part in the assault. Similarly, PW-15 also did not know the names of the gunmen of Ranjit Singh and his father. Admittedly, PW. 14 came to know of their names 3.4 days later. Similarly, PW-15 also did not know the names of the gunmen of Ranjit Singh and his father. Admittedly, PW. 14 came to know of their names 3.4 days later. We have earlier noticed that despite the fact that they did not know the names of any of the gunmen, the name of Paramjit Singh finds place in the first information report as well as in the marginal notes of the site plan, both prepared at the in stance of P.W.s. That apart, since the assailants were not known to this witness by name, there appears to be no reason why a test identification parade was not held. It is not in dispute that no test identification parade was held to identify the assailants and this also is a serious lacuna in the, case of the prosecution." 16. In the given circumstances of the case, I am of the considered view that this is a serious lapse on the part of the prosecution. 17. Having glace of the above discussion, I am of the considered view that the appellate Court has passed the impugned order of acquittal rightly and I have not found any error in the impugned judgment. 18. Viewed thus, the appeal merits dismissal which is accordingly dismissed and impugned judgment is up-held. Registry is directed to send copy of this judgment to the appellant Court as well as trial court. 19. Send down the record of appellate Court as well as trial court along with copy of this judgment.