State of J. and K. vs Sohan Lal Koul

Mansoor Ahmad Mir, J.—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 304A and 279, RPC, FIR No. 129/2001, Police I Station, Bakshi Nagar, Jammu, which shall be

hereinafter referered to as ""Impugned n Judgment"".

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 I convicted and sentenced by the trial Court. But the appellate Court has

fallen in error while accepting the appeal of respondent accused.

Learned Counsel for respondent argued that the Impugned order and judgment is legally sound and needs no interference. While developing his

arguments he streusel argued that FIR came to be lodged in Police Station Bakshi Nagar for the commission of offences punishable u/s 304A and

279, IPC 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.

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 r6sum6 of

the evidence of the prosecution.

P.W. 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 witnesses 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 19th September, 2002 i.e. on the date of recording statement in the

trial Court.

P.W. 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 accused1 (present in the Court) at the place of

occurrence.

P.W. Balwant Singh has deposed that the offending Gypsy was being driven by the driver who was a Sardar, P.Ws. Raj Kumar, Ravi Kumar,

Naveen Lal and Pradeep Gupta are the formal witnesses.

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 require corroboration and without corroboration conviction could not be based on his evidence for the following

reasons.

Parma Nand has stated that he was travelling 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;

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

Vs. State of Bihar, has taken the came view. It is profitable to reproduce para 2 of the Judgment herein.

The appellant has not been able to shake the credibility of the eye-witness. No mateial 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.

Apex Court in a case titled as State of Karnataka Vs. Bhaskar Kushali Kotharkar and Others, 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 u/s 161, Cr.P.C. 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 u/s 161, Cr.P.C....

It was bounden 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. 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 the

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.

Prosecution had failed to conduct identification parade which was required and necessary in the given circumstances of the case for the

following reasons.

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.

Apex Court in a case titled as Lakhwinder Singh and Others Vs. State of Punjab, held that failure to conduct identification parade is a serious

lapse. It is profitable to reproduce para 36 of the judgment herein.

It is not in dispute that on the date of occurrence i.e. 24th December, 1996 the informant P.W. 14 did not know the names of any of the

gunmen who had taken part in the assault. Similarly, P.W. 15 also did not know the names of the gunmen of Ranjit Singh and his father.

Admittedly, P.W. 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 instance of P.W. 14. 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.

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.

Having glace (sic) 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.

Viewed thus, the appeal merits dismissal which is accordingly dismissed and impugned judgment is upheld. Registry is directed to send copy of

this judgment to the appellant Court as well as trial Court.

Send down the record of appellate Court as well as trial Court along with copy of this judgment.