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2013 DIGILAW 1253 (RAJ)

Bhag Chand v. The State of Rajasthan

2013-07-11

NISHA GUPTA

body2013
JUDGMENT 1. - This revision petition has been filed against the judgment dated 9/1/2001 passed by Special Judge (S.T./S.C.) Court in Criminal Appeal No. 12/2000, where appeal has been dismissed and conviction under Section 304-A and 279 IPC has been affirmed. 2. The short facts of the case are that a criminal case was registered against the present petitioner on account of accident from use of truck no. Rs. M-8395. After investigation, charge sheet was filed and present petitioner has been convicted for the offences under Sections 304-A and 279 IPC and sentenced for period of six months imprisonment with Rs. 100/- fine and in default of fine, one month imprisonment. Appeal has been preferred, which was also dismissed, hence, this revision petition. 3. The only contention of the present petitioner is that there is no reliable evidence that the present petitioner was driving the vehicle at the time of the accident and findings of both the courts below are perverse, as material evidence has not been considered by the Court below. 4. Per contra, learned public prosecutor submits that there is no infirmity in the impugned order. 5. Heard learned counsel for the parties and perused the impugned judgment as well as relevant documents available on record. 6. The Investigating Officer PW.7, Durga Singh has stated in his cross-examination that Pradeep Kumar had disclosed the name of the accused as driver of the vehicle at the time of the accident and he has further stated that none other witnesses have disclosed the name of the present petitioner and it has been specifically admitted by this witness that Ramchandra has not disclosed the name of the present petitioner as the driver of the impugned vehicle. During investigation, Pradeep Kumar has been examined as P.W.1. He was declared hostile and has not supported the contention of the Investigating Officer that he has disclosed the name of the present petitioner as driver of the vehicle at the time of the accident and hence the very basis of the prosecution goes away. PW.2 Kailash, the other eye witness, has not stated anything in support of the prosecution. He is also a hostile witness. PW.6 Bhanwarlal, the another eye witness has also very categorically deposed that driver ran away and he could not see him. PW.2 Kailash, the other eye witness, has not stated anything in support of the prosecution. He is also a hostile witness. PW.6 Bhanwarlal, the another eye witness has also very categorically deposed that driver ran away and he could not see him. Only witness remains to support the case of the prosecution is Ramchandra, who has stated that truck driver ran away from the scene of the occurrence, but he saw the face of the driver at the spot. He has also identified the present petitioner in the Court as the driver of the impugned vehicle. It is not in dispute that no test identification parade has been conducted during the investigation and the contention of the present petitioner is that identification, for the first time in Court, is of no value and reliance has been placed on 2002 (2) R.Cr.D. 297 (Raj.), Salim v. State of Rajasthan , wherein by relying on Kanan & Ors. v. State of Kerala, AIR 1979 SC 1127 , the Hon'ble Supreme Court has held 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 identification parade to test his powers of observations. Here in the present case, the witness Ramchanda has identified the present petitioner first time in Court, hence, this identification has no value in the light of the above pronouncements.The contention of the learned Public Prosecutor is that the present petitioner was known to the witness Ramchandra and in Court's statement, Ramchandra has stated that the present petitioner was known to him as he was labour on the truck, but he never narrated the same fact to the Police and none of the person in the crowd at the scene of the occurrence has narrated the name of the accused to the police. In the statement of the witness Ramchnadra recorded under Section 161 Cr.P.C, there is no narration that the present petitioner was known to him earlier and Investigating Officer has very categorically stated that Ramchandra has not stated anything about the identity of the present petitioner. In the statement of the witness Ramchnadra recorded under Section 161 Cr.P.C, there is no narration that the present petitioner was known to him earlier and Investigating Officer has very categorically stated that Ramchandra has not stated anything about the identity of the present petitioner. The basis of the reliance on the statement of PW.4 Ramchandra that he saw the accused person running after the accident, but in cross-examination Ramchandra has specifically stated that he fell on the other side of the vehicle from where he was not able to see the driver side of the vehicle, meaning thereby, he was no occasion to see the present petitioner running at the time of the occurrence after the accident, but learned court below has not considered this aspect of the matter. Non consideration of evidence makes the findings of the court below perverse. 7. The other contention of the learned Public Prosecutor is that a notice has been given to the owner of the vehicle and the owner of the vehicle PW.8 Mahendra Singh has stated in reply to the notice that present petitioner was the driver at the relevant time, but cross-examination of PW.8 is very significant. He has stated that four month back to the accident, he has handed over the truck to the accused and his brother and it is not in his knowledge that on the date of incident, who was driving the vehicle. Reliance has been placed on 1990 (2) RLR 726, Sangram Singh v. State of Rajasthan wherein it has been held that to prove the offence u/s.304A, it is essential to establish first of all that accused was driving the vehicle at the time of accident. Here in the present case, Mahendra Singh has not stated that the present petitioner was driving the vehicle at the time of the accident, hence, the prosecution has failed to produce any unimpeachable evidence to establish the identity of the present petitioner as the driver of the vehicle at the relevant time. PW.7, Investigating Officer has not stated anything regarding the identity of the accused driver. He has relied only on the statement of the Pradeep Nagar who has not supported the prosecution story. No other eye witness has stated anything about the fact that the present petitioner was driving the vehicle at the relevant time. PW.7, Investigating Officer has not stated anything regarding the identity of the accused driver. He has relied only on the statement of the Pradeep Nagar who has not supported the prosecution story. No other eye witness has stated anything about the fact that the present petitioner was driving the vehicle at the relevant time. The star witness of the prosecution PW.4, Ramchandra was known to the present petitioner prior to the accident, but he has not disclosed this fact to the Investigating Officer and as explained earlier he was having no occasion to see the driver of the vehicle at the time of the accident as he fell down on the other side of the vehicle from where driver side of the vehicle could not be seen, hence, whole prosecution story is doubtful and further more accused petitioner has not been named in the FIR, hence, the prosecution has utterly failed to establish the identity of the petitioner. Both the courts below has not considered evidence available on record and hence the findings are perverse and liable to be quashed. 8. In view of the above, the revision petition is allowed and the petitioner is acquitted from the offences, referred above. Bail bonds of the petitioner are cancelled. *******