Sunder @ Surinder vs State of Haryana

V.M. Jain, J.

This is a revision petition against the judgment dated 27.5.1988, passed by the Additional Sessions Judge, Gurgaon, upholding the conviction and sentence imposed upon the petitioner by the Chief Judicial Magistrate, Gurgaon, vide judgment and order dated 6.10.1987.

The facts in brief are that an accident had taken place on 25.6.1982 on Basai Road, Gurgaon, when a car struck against the bicycle driven by Smt. Sudesh Kumari, resulting in her death. A report was lodged with the police on the same day by Satish Kumar P.W. In the First Information Report it was alleged by Satish Kumar P.W., that the alleged accident had taken place with car No. CH3481 driven by its driver rashly and negligently. It was further alleged that the car driver after causing the accident sped away form the spot but after covering some distance, he stopped the car and on enquiry he disclosed his name as Sunder resident of Village Sankhol, District Rohtak. After registration of the F.I.R. the case was investigated by the police and after completion of investigation, report under section 173, Cr.P.C. was prepared and challan was put in the Court against accusedpetitioner Sunder alias Surinder.

After hearing both the sides and after perusing the record the Chief Judicial Magistrate, convicted the accusedpetitioner under Section 304A, IPC and sentenced him to undergo rigorous imprisonment for a period of one year and six months and to pay a fine of Rs. 200/ and in default of payment of fine to undergo further R.I. for two months vide judgment and order dated 6.10.1987. The appeal filed by the accusedpetitioner was dismissed by the learned Additional Sessions Judge, Gurgaon vide judgment dated 27.5.1988, though the sentence was reduced from one year six months to one year. Aggrieved against the said judgment of the learned Additional Sessions Judge Gurgaon, accusedpetitioner Sunder alias Surinder has filed the present revision petition in this Court.

I have heard the learned Counsel for the parties and have also gone through the record careful.

The learned counsel for the accusedpetitioner, while challenging the conviction of the accusedpetitioner under Section 304A, IPC, submitted before me that the two witnesses examined by the prosecution namely, P.W. 1 Satish Kumar complainant, and P.W.2 Rajinder did not know the accused previously and that no test identification parade was held and the identification of accused for the first time in the Court could not be made the basis for holding the accused guilty. Reliance was placed on the law laid down by the Hon''ble the Supreme Court in the cases reported as Subhash and Shiv Shankar v. State of U.P., 1987(3) S.C.C. 331, Manzoor v. State of Uttar Pradesh etc. etc., 1982(2) S.C.C. 72 and Rameshwar Singh v. State of Jammu and Kashmir, AIR 1972 S.C. 102.

In the present case in order to connect the accused with the crime, the prosecution examined P.W.1, Satish Kumar complainant and P.W.2 Rajinder, both of whom had allegedly witnessed the occurrence and had allegedly seen the accused causing the accident in question. P.W.1, Satish Kumar complainant, during examinationinchief deposed that at the time of accident car No. CH 3481 was being driven by accused Sunder who was presnt in Court. However, during crossexamination, he deposed that he did not know the driver of the car prior to the present occurrence and that he had not given the description of the accused to the police and that he had not seen the accused after the accident except on the dates of hearing in the case. He further stated that at the time when he gave his statement to the police, he did not know the name of the accused nor he had given the name of the accused to the police. Similarly, the other witness who had allegedly seen the accident, name, P.W.2 Rajinder, during his examinationinchief stated that at the time of accident the car in question bearing registration No. CH3481, was being driven by the accused who was present in Court. He further stated that car driver had stopped the car when they had called him from behind and on enquiry he had disclosed his name. Later on, he sped away with the car. In his crossexamination, he stated that he did not know the driver of the car previosuly and that he had not given the description of the car driver to the police. He stated that when he had enquired the name from the car driver he had disclosed his name as Sunder. He further stated that he did not know if he had enquired from him the name of his village. He stated that he had also enquired from him his father''s name but he did not remember the same now. He has stated that he had not noted the name and other particulars of the car driver when he had disclosed the same to him. He has stated that at that time Satish P.W. probably was not with him as he had gone to the hospital and he had told the name and particulars of the car driver to Satish P.W. later on. P.W.9 ASI Khetar Pal is the Investigating Officer of this case. During crossexamination on behalf of the accused, he has stated that during the entire period of investigation he did not know the registration number of the car involved in the accident or the name of the car driver and it was for this reason that he had not mentioned the registration number of the car and the name of the driver in the police papers.

From perusal of the evidence led by the prosecution, in my opinion, it would be clear that accusedpetitoner Sunder alias Surinder could not be held guilty, in view of the identification of the accused for the first time in the Court by P.W.1 Satish Kumar and P.W.2, Rajinder, especially when both these witnesses did not know the accusedpetitioner previously and admittedly, no test identification parade was held in this case. The accident had taken place on the evening of 25.6.1982 and the evidence of these witnesses was recorded on 8.3.1985 i.e. after a gap of about 3 years. It is now settled by the Apex Court that identification of the accused for the first time in Court could not be made the basis for holding the accused guilty. In the present case accused was not previously known to the witnesses and no test identification parade was held by the prosecution. In my opinion, both the Courts below have erred in law in holding the accused guilty in this case.

For the reaosns recored abvoe, the present revision petition is allowed and the accusedpetitioner is acquitted of the charge framed against him.