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2011 DIGILAW 908 (PNJ)

Kewal Singh v. State of Punjab

2011-03-23

GURDEV SINGH

body2011
JUDGMENT Gurdev Singh, J (oral) This revision has been preferred by Kewal Singh, petitioner/accused against his conviction and sentence for the offences under Sections 279, 304A and 337 IPC. He was sentenced by JMIC Bathinda, vide judgment dated 14.7.2005 as under:- Under Section Sentence Fine Indefault 279 IPC R.I for 6 months 1000/- RI of 30 days 337 IPC R.I for 6 months 1000/- RI of 30 days 304A IPC R.I for one year and six months 1000/- RI of 30 days 2. In the appeal preferred by him, the Additional Sessions Judge (Ad hoc) Bathinda, reduced the sentence of imprisonment imposed upon him under Section 304 A IPC from one year six month to ten months. 3. The prosecution story, in brief, is that Sandip Kaur deceased, daughter of Bira Singh complainant PW1 and Kinderpal Kaur injured were the students of 6th Class. On 6.11.2001 both of them were brought to Bathinda to the house of Mithu Singh master. Thereafter all of them were going towards bus stand to board the bus. When at about 10.15 AM they reached near the thermal canal, the accused came driving canter make Tata 709 at a very fast speed, without blowing any horn and while driving the same negligently brushed the side thereof in the said girls, as a result of which Sandip Kaur died at the spot itself and Kinderpal Kaur received the injuries. The accused stopped the canter and after alighting from the same disclosed his name, parentage and address and after seeing that one of the girl had died, sliped from the spot. Kinderpal Kaur was sent to the hospital for treatment with Balwinder Singh whereas the complainant stayed with the dead body of his daughter. After coming to know about this accident Balwant Singh SHO PW5 came to the place of accident and recorded the statement of the complainant Ex.PA. After making his endorsement Ex.PA/1 upon the same, he sent that to the police station and on the basis thereof FIR Ex. PA/2 was recorded against the accused under Sections 279, 304A and 337 IPC. The SHO prepared inquest report Ex.PB in respect of the dead body and sent the same to Civil Hospital along with application, for post mortem examination. Bhola Singh, photographer, PW6 was called to the spot, who took photographs Ex.P1 to Ex.P14. PA/2 was recorded against the accused under Sections 279, 304A and 337 IPC. The SHO prepared inquest report Ex.PB in respect of the dead body and sent the same to Civil Hospital along with application, for post mortem examination. Bhola Singh, photographer, PW6 was called to the spot, who took photographs Ex.P1 to Ex.P14. The SHO collected the blood from the spot, which was put in a small box and was converted into a parcel and the parcel was sealed with the seal 'PS'. The same was taken into possession vide memo Ex. PW5/A. The said canter which had registration No. PB-03D-6412 and was lying parked near the place of accident, was taken into possession, vide memo Ex.PW5/B. The SHO prepared the rough site plan Ex.PW5/C of the place of recovery with correct marginal notes. Kinderpal Kaur was medically examined by Dr. Niranjan Lal PW3, who found three injuries on her person and the same were detailed in the M.L report Ex.PW3/A. The autopsy on the dead body of Sandip Kaur was conducted by Dr. S.S. Malik PW7, who found eight ante mortem injuries on the same and gave his opinion that the cause of the death was due to shock and hemorrhage, as a result of injuries, which were sufficient to cause the death of the deceased in the ordinary course of nature. In the course of investigation the accused was arrested and the statement of witnesses were recorded under Section 161 Cr.P.C. The accused produced his driving license and registration certificate of the canter before the S.H.O and those were taken into possession vide memo Ex.PW5/B. On 8.11.2011, the canter was mechanically tested by Sandeep Kumar constable Mechanic PW3, who found the same to be in mechanical order and gave his report Ex.PC. After the completion of the investigation the challan was put in before the JMIC, who found sufficient grounds for presuming that the accused committed aforesaid offence. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt prosecution examined Bira Singh PW1, Balwinder Singh PW2, Dr. Niranjan Singh PW3, Sandeep Singh PW3, Jarnail Singh PW4, SI Balwant Singh PW5, Bhola Singh Photographer PW6 and Dr. S.S.Malik PW7. He was charged accordingly, to which he pleaded not guilty and claimed trial. To prove his guilt prosecution examined Bira Singh PW1, Balwinder Singh PW2, Dr. Niranjan Singh PW3, Sandeep Singh PW3, Jarnail Singh PW4, SI Balwant Singh PW5, Bhola Singh Photographer PW6 and Dr. S.S.Malik PW7. After the prosecution closed its evidence, the accused was examined and his statement was recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against him in the prosecution evidence were put to him in order to explain the same. He denied all those circumstances and pleaded his innocence. He stated that no such accident was caused by him and at the instance of complainant, the police made a false case against him. He was called upon to enter on his defence, but he did not produce any evidence in his defence. 4. I have heard learned counsel for both the sides. 5. It has been submitted by learned counsel for the accused that the prosecution version is not believable as according to the eye-witnesses examined by the prosecution, they along with the deceased, injured and others were standing on the road and as such there was no question of only the deceased and injured having received injuries in the manner alleged by them. In that eventuality all of them were bound to receive injuries. He also referred to the statement of the complainant wherein first he stated that the accused had escaped from the spot and in the second part thereof he stated that the accused was arrested at the spot by the police. He further argued that the accused was identified by those eye-witnesses in the Court for the first time. No test identification parade was held during the investigation and as such no reliance can be placed upon the identification of the accused made by those witnesses in the Court for the first time. That itself is a ground for his acquittal. He placed reliance on the following judgments:- 1. Rameshwar Singh Vs. State of J & K, AIR 1972 Supreme Court, 102; 2. State of Maharashtra Vs. Sukhdeo Singh and another with State of Maharashtra Vs. Sukhdev Singh alias Sukha & Ors. AIR 1992 Supreme Court 2100. 3. Sanjay Kumar & Ors Vs. State of Haryana, 2004(1) RCR (Criminal) 898; 4. Dana Yadav @ Dahu & Ors. Vs. State of Bihar, 2002(4) RCR (Criminal), 314. 6. State of Maharashtra Vs. Sukhdeo Singh and another with State of Maharashtra Vs. Sukhdev Singh alias Sukha & Ors. AIR 1992 Supreme Court 2100. 3. Sanjay Kumar & Ors Vs. State of Haryana, 2004(1) RCR (Criminal) 898; 4. Dana Yadav @ Dahu & Ors. Vs. State of Bihar, 2002(4) RCR (Criminal), 314. 6. There is no merit in the arguments advanced by learned counsel for the accused that the prosecution version is not believable. That version was unfolded in the Court by Bira Singh PW1. He deposed about each and every fact which constitute the prosecution version and which has been detailed above. He stated that they were standing on the left side of the road and the canter came to their side, which was dashed against the girls and they received injuries. He stated during his cross-examination that when the canter came to their side and dashed against the girls they ran away from the spot. It was stated by Balwinder Singh PW2 that they were standing on their left hand side on the bridge of the canal jointly and the canter had hit only Sandip Kaur and Kinderpal Kaur and none-else and those girls were standing at a little distance from them. In these circumstances, there was no question of these eye-witnesses and others receiving any injuries as a result of dashing of the canter in those girls. Bira Singh complainant PW1 did state in his examination-in-chief that the accused ran away from the spot after leaving the canter and during his cross-examination he stated that the accused was arrested by the police at the spot. That circumstance alone cannot be made a ground for concluding that the prosecution story is not believable. 7. In Rameshwar Singh's case (supra), the Hon'ble Supreme Court pressed upon the necessity of holding the identification parades where the accused person was not known to the witnesses previously. It was held as under:- “that the substantive evidence of a witness is his evidence in Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after the former's arrest is of vital importance because it furnish to the investigating agency an assurance that the investigation is proceeding on right lines in addition to furnishing a corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance both for the investigation agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards are effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It would, in addition, be fair to the witness concerned who was a stranger to the accused because in that event the chances of his memory fading are reduced and he is required to identify the alleged culprit at the earliest possible opportunity after the occurrence. It is thus and thus alone that justice and fairplay can be assured both to the accused and to the prosecution. The identification during police investigation, it may be recalled, is not substantive evidence in law and it can only be used for corroborating or contradicting evidence of the witness concerned as given in Court. The identification proceedings, therefore, must be so conducted that evidence with regard to them when given at the trial, enables the Court.” 8. In Sukhdev Singh's case (Supra), the following proposition of law as laid down in Kanan Vs. State of Kerala, AIR 1979 SC 1127, was reiterated:- “It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous T.I parade to test his powers of observations. The idea of holding T.I. Parade under Section 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court.” 9. In Sanjay Kumar's case (supra), it was held by this Court that identification in Court is valueless if the person was not known to the witness previously. 10. If no T.I parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time in Court.” 9. In Sanjay Kumar's case (supra), it was held by this Court that identification in Court is valueless if the person was not known to the witness previously. 10. The law regarding the necessity of holding test identification parade and the value of the evidence regarding identification of the accused in the Court for the first time was analysed, in Dana Yadav's case (Supra) and the following conclusions were recorded:- “(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for and it would be meaningless and sheer waste of public time to hold the same. (b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, a Court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide or a mere pretence and/or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the denial is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is mere pretence and/or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily inure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his so-called claim that the accused was known to him from before and the evidence of identification in court should not be accepted. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto can not be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identity of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adduced in court. (c) Evidence of identification of an accused in Court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court. (d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits. (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accued by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check valve to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above. 11. It becomes very much clear from all these judgments that it is the evidence of identification of the accused in the Court by the witnesses, which is substantive evidence and the test identification parade is meant only for corroborating that evidence. However, if the accused is not known to the witness previously and he is identified in the Court for the first time then it become a question of fact whether reliance is to be placed upon that evidence or not. In exceptional circumstances evidence of identification for the first time in Court without the same being corroborated by test identification parade or any other evidence, can form the basis of conviction. 12. It was held by the Hon'ble Supreme Court in Raman Bhai Naraian Bhai Patel Vs. State of Gujrat 2000 (1) Apex Court judgments 201 that absence of test identification parade does not render the evidence of eye-witness identifying the accused as inadmissible or totally useless. Whether that evidence deserves any credence or not depends upon the facts and circumstances of each case. In Ronny@ Ronald james Alwaris versus State of Maharashtra 1998 (2) Apex Court judgments 12, it was held that the identification of the accused by a witness if he had opportunity to interact with him or to notice his distinctive features lends assurance to his testimony in the Court and that the absence of corroborating evidence by way of test identification parade would not be material. 13. 13. In the present case, it was categorically stated by Bira Singh PW1 that the accused alighted from the canter and came to them and disclosed his name, parentage and address and it was only thereafter that he had escaped from the spot leaving behind the canter. Thus, the complainant interacted with the accused and had sufficient opportunity to note his distinctive features which made the basis of identification of the accused by him in the Court. There is nothing on the record to disbelieve that part of the testimony of the complainant. The accident took place at 10.15 AM and his statement was recorded by Balwant Singh SHO PW7 at 11.30 AM. In such a short span of time he could not have concocted the story and it was not possible for him to disclose the name, parentage and address of the accused, if the same had not been so disclosed to him by accused himself. The facts of the present case are such that full reliance has to be placed upon the statement of the eye-witnesses made in the Court regarding the identity of the accused and his identity was fully established. 14. From the above discussion I conclude that there is no merit in this revision petition. The same is, therefore, dismissed. The conviction and sentence of the accused is upheld. He be taken into custody for undergoing the sentence so imposed upon him. 15. Records be returned forthwith Petition dismissed.