Punjab-Haryana High Court
Rajender Singh vs State Of Haryana on 2 July, 2024
Neutral Citation No:=2024:PHHC:081553
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRR-1328-2009 (O&M)
Reserved on: 05.04.2024
Pronounced on: 02.07.2024
RAJENDER SINGH ...Petitioner
VERSUS
STATE OF HARYANA ...Respondent
CORAM : HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Present: Mr. Gagandeep Singh, Advocate for
Mr. Charanjeet Singh Bakshi, Advocate
for the petitioner.
Mr. Deepak Bhardwaj, DAG, Haryana.
****
VIKRAM AGGARWAL, J
1. The present revision petition assails the judgment dated 04.05.2009 passed by the Additional Sessions Judge, Faridabad dismissing the appeal filed by the petitioner against the judgment dated 24.04.2008 passed by the Judicial Magistrate 1st Class, Palwal convicting the petitioner under Sections 279, 337 and 304-A IPC and sentencing him to undergo rigorous imprisonment for a period of six months each under Sections 279 and 337 IPC and rigorous imprisonment for a period of one year alongwith fine of Rs.1,000/- under Section 304-A IPC (in default of payment of fine to further rigorous imprisonment for a period of two months).
2. On 11.04.1997, a Matador bearing registration No.DL-ICD- 0779 (hereinafter referred to as 'the Matador') being driven by one Ajit Kumar and carrying 17-18 passengers, was going from Sawar to Mathura. The occupants of the Matador were on a holy trip and were closely related to 1 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -2- each other. At about 11:30 p.m./12:00 midnight, when the Matador reached near Village Tumsara (little ahead of Palwal), a tanker bearing registration No.DIG-8931 (hereinafter referred to as 'the offending vehicle') came from Hodal side. It was being driven by the petitioner-accused allegedly in a rash and negligent manner and at a high speed. It struck the driver side of the matador. The passengers travelling in the matador suffered injuries and were taken to General Hospital, Palwal. The driver of the offending vehicle fled from the spot, leaving the offending vehicle at the spot. One Deepak son of Ram Dhari Singal succumbed to the injuries suffered by him in the accident. FIR was registered on the statement of one Sanwal Mal. Investigation commenced. The petitioner-accused was arrested. After the completion of investigation, final report under Section 173 Cr.P.C. was submitted. During the trial, the prosecution examined 23 witnesses. No oral evidence was led in defence. The trial Court convicted and sentenced the accused in the manner referred to in the opening paragraph of the judgment. Aggrieved by the said judgment, an appeal was preferred which was also dismissed leading to the filing of the present revision petition.
3. I have learned counsel for the parties and have perused the record of the case.
4. Learned counsel for the petitioner-accused strenuously urged that both the Courts below erred in convicting the petitioner-accused. It was contended that undue reliance was placed by both the Courts on the untrustworthy evidence led by the prosecution. It was submitted that no test identification parade was conducted and in the absence of the same, the identity of the petitioner-accused did not stand proved. Learned counsel also 2 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -3- argued that the complainant Sanwal Mal did not step into the witness box and, therefore, the prosecution failed to prove its case against the petitioner- accused. Learned counsel made reference to the statements of the witnesses and pointed out certain inconsistencies and contradictions in the cross examination of these witnesses to contend that the petitioner-accused deserves to be given the benefit of doubt as the statements of the witnesses were not consistent. Learned counsel urged that the mechanic who had examined the Matador and the offending vehicle was not examined in the evidence and, therefore, it could not be proved that the accident had taken place on account of the rash and negligent driving of the offending vehicle by the petitioner-accused. It was contended that against the capacity of 10, the Matador was carrying 17-18 people and, therefore, the driver of the Matador was himself negligent as he overloaded the Matador and the accident appears to have taken place on account of his negligence. 4.1 Learned counsel further contended that PW15-Bala Devi could not identify the accused and in the absence of any test identification parade having been carried out, it cannot be said that it was the petitioner-accused who was driving the offending vehicle. It was contended that none of the witnesses had stated that the offending vehicle was being driven in a rash and negligent manner by the petitioner-accused. 4.2 Learned counsel lastly submitted that the petitioner-accused is 87 years old now and even if this Court comes to the conclusion that the case against the petitioner-accused stood proved, it should consider releasing him on probation because at this age, the petitioner-accused will not be able to survive in custody. In support of his contentions, learned counsel placed 3 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -4- reliance upon a judgment of this Court in the case of Satpal Vs. State of Haryana 2000(2) R.C.R. (Criminal) 720.
5. On the other hand, learned counsel representing the State of Haryana submitted that there is no illegality or infirmity in the findings recorded by both the Courts. It was contended that merely because a test identification parade was not conducted, it cannot be said that the petitioner- accused was not driving the offending vehicle. Learned counsel submitted that many witnesses duly identified the petitioner-accused in the Court and further the owner of the offending vehicle had himself made the petitioner- accused surrender before the police on 12.04.1997 and, therefore, the issue of a test identification parade not having been conducted becomes insignificant. Learned counsel referred to the statements of the witnesses and submitted that the statements of the witnesses were consistent. Regarding the non-examination of the mechanic etc., it was submitted that in view of the other evidence led on the record of the case, the non- examination of the mechanic would not give any benefit to the petitioner- accused. With regard to the issue of probation and modifying the sentence to that already undergone by the petitioner-accused, it was contended that in such like offences, no latitude should be given to the accused.
6. I have considered the submissions made by learned counsel for the parties.
7. An unfortunate incident took place in which a Matador and a tanker met with a serious accident on the intervening night of 11 and 12th April 1997. Many people were injured and one occupant namely Deepak son of Ram Dhari Singal lost his life. The matter was immediately reported 4 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -5- to the police. On 12.04.1997, the present petitioner surrendered before the police. Once the petitioner himself surrendered before the police, the issue of non-conducting of a test identification parade becomes insignificant. A test identification parade would have been relevant had the petitioner- accused been nabbed by the police. Still further, the offending vehicle was taken on sapurdari by PW5 Ashok Kumar (mentioned as PW3 in the record) who was the owner of the offending vehicle. It was stated by PW-9 Mohd. Idrish that the accused had been produced by the owner of the offending vehicle. The driving licence of the petitioner-accused was also taken into possession and no objection was raised. Apart from this, all witnesses of the prosecution who were present in the Matador except PW15 Bala Devi identified the petitioner-accused in Court. In fact the driver of the Matador Jitender Kumar who also appeared as a witness had categorically stated that the offending vehicle was being driven by the petitioner-accused and he had seen him running away from the spot. Even otherwise, a test identification parade is merely a rule of prudence. The non-conducting of a test identification parade would not necessarily mean that the identity of the accused did not stand established. No doubt, examination in the Court for the first time is inherently weak evidence but at the same time it cannot be said that this evidence cannot be relied upon especially when the evidence is trustworthy. Reliance in this regard may be made to the case of Kewal Singh Versus State of Punjab, 2011 (4) RCR (Criminal) 636, wherein this Court referred to a judgment of the Hon'ble Supreme Court of India titled Dana Yadav Vs. State of Bihar, 2002 (4) RCR (Crl.) 314, wherein it was held that failure to hold a test identification parade does not make the 5 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -6- evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form the basis of conviction, the same being from its very nature inherently 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. In the case of Heera v. State of Rajasthan, Law Finder Doc Id # 130125, 2007(3) R.C.R. (Criminal) 517, the Hon`ble Supreme Court of India, while evaluating the evidentiary value of test identification parade held that the substantive evidence was the evidence of identification in the court. It was also held that the evidence of mere identification of the accused at the trial for the first time, is from its very nature inherently of a weak character. It was held that the purpose of a prior test identification, therefore, was to test and strengthen the trustworthiness of that evidence. It was held that it was considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in the court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. It was held that this rule of prudence, however, was subject to exceptions, when, for example, the court was impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The relevant findings of the Hon`ble Supreme Court of India in the case of Heera v. State of Rajasthan (supra) are:-
"6. As was observed by this Court in Matru v. State of U.P. (1971(2) SCC 75) identification tests do not 6 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -7- constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. (See Santokh Singh v. Izhar Hussain (1973(2) SCC 406). The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
7. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear 7 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -8- provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. [See Kanta Prashad v. Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra Pradesh 8 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -9- (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v.
State of Jammu and Kashmir (AIR 1972 SC 102)].
8. In Jadunath Singh and another v. The State of Uttar Pradesh (1970)3 SCC 518), the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani v. The State of Rajasthan (Criminal Appeal No. 92 of 1956 decided on January 15, 1957), wherein it was observed:-
"It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of P.W.7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such. These circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person who is well-known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out.
9 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -10- We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances."
9. The Court concluded :
"It seems to us that it has been clearly laid down by this Court, in Parkash Chand Sogani v. The State of Rajasthan (supra) (AIR Cri LJ), that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case."
10. In Harbajan Singh v. State of Jammu and Kashmir (1975)4 SCC 480), though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in Court corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held :-
"In view of this corroborative evidence we find no substance in the argument urged on behalf of 10 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -11- the appellant that the Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. (AIR 1971 SC 363) absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villages only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant."
11. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court.
12. In Ram Nath Mahto v. State of Bihar, 1997(1) RCR(Criminal) 54 : (1996)8 SCC 630) this Court upheld the conviction of the appellant even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. This Court noticed the observations of the trial Judge who had recorded his remarks about the demeanour that the witness perhaps 11 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -12- was afraid of the accused as he was trembling at the stare of Ram Nath-accused. This Court also relied upon the evidence of the Magistrate, PW-7 who had conducted the test identification parade in which the witness had identified the appellant. This Court found, that in the circumstances if the Courts below had convicted the appellant, there was no reason to interfere.
13. In Suresh Chandra Bahri v. State of Bihar, 1994(3) RCR(Criminal) 1 : (1995 Supp (1) SCC 80), this Court held that it is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing 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 investigating 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. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. Thereafter this Court observed :-
"But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."
14. In State of Uttar Pradesh v. Boota Singh and others (1979(1) SCC 31), this Court observed that the evidence 12 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -13- of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.
15. In Ramanbhai Naranbhai Patel and others v. State of Gujarat, 2000(1) RCR(Criminal) 93 : (2000(1) SCC
358) after considering the earlier decisions this Court observed :-
"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) v. V.C. Shukla (AIR 1980 SC 1382) wherein also Fazl Ali, J. speaking for a three-Judge Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eye-witnesses. It, therefore, cannot be held, as tried to be submitted by learned Counsel for the appellants, that in the absence of a test identification parade, the evidence of an eye- witness identifying the accused would become 13 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -14- inadmissible or totally useless; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned Counsel for the appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha v. State of Maharashtra, 1999(4) RCR(Criminal) 754 and State of H.P. v. Lekh Raj, 2000(1) RCR(Criminal) 10, had not considered the aforesaid three-Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three-Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned Counsel for the appellants that the evidence of, these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eye- witnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well within imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them."
16. These aspects were recently highlighted in Munshi Singh Gautam (dead) and Ors. v. State of M.P., 2005(1) 14 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -15- RCR(Criminal) 361: 2005(1) Apex Criminal 202:
(2005(9) SCC 631).
8. In the present case, apart from the fact that the petitioner-
accused had been produced by the owner of the offending vehicle himself on 12.04.1997, the petitioner-accused was identified by almost all the witnesses who were examined including the driver of the Matador PW2 Jitender Kumar as per whom he had seen the petitioner-accused fleeing from the spot after the accident. There is, therefore, no dispute as regards the identity of the offender.
9. As regards minor inconsistencies in the statements of witnesses, it is well settled that the same would not affect the case of the prosecution. In the case of Yogesh Singh Vs. Mahabeer Singh and others (supra), the Hon'ble Supreme Court of India laid down that minor discrepancies in the evidence should not be given undue emphasis and that the evidence is to be considered from the point of view of trustworthiness. It was laid down by the Hon'ble Supreme Court of India as under:-
"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor 15 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -16- contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar v. State of M.P., 1999(4) R.C.R.(Criminal) 246 : (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand v. State of Haryana and Another, 1999(4) R.C.R.(Criminal) 588 : (1999) 9 SCC 525; Bihari Nath Goswami v. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee v. State of Madhya Pradesh, 2010(3) R.C.R.(Criminal) 794 :
2010(4) Recent Apex Judgments (R.A.J.) 330 : (2010) 8 SCC 191; Sampath Kumar v. Inspector of Police, Krishnagiri, 2012(2) R.C.R.(Criminal) 231 : 2012(1) Recent Apex Judgments (R.A.J.) 452 : (2012) 4 SCC 124; Shyamal Ghosh v. State of West Bengal, 2013(1) R.C.R.(Criminal) 770 : 2013(1) Recent Apex Judgments (R.A.J.) 202 : (2012) 7 SCC 646 and Mritunjoy Biswas v. Pranab @ Kuti Biswas and Anr., 2014(1) R.C.R. (Criminal) 1 : 2013(6) Recent Apex Judgments (R.A.J.) 528 : (2013) 12 SCC 796).
30 to 43. ******
44. In the present case, we do not find any major contradiction either in the evidence of the witnesses or any conflict in medical or ocular evidence which would tilt the balance in favour of the respondents. The minor improvements, embellishments etc., apart from being far yield of human faculties are insignificant and ought to be ignored since the evidence of the witnesses 16 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -17-
otherwise overwhelmingly corroborate each other in material particulars."
As observed in the preceding paragraphs, this Court has found the statements of the witnesses as also the other evidence produced on record to be fully reliable, trustworthy and convincing.
10. The non-examination of the mechanic etc. and other small procedure lapses can be, at best, said to be the result of a defective investigation for which also no benefit can be given to the accused. It is well settled that no benefit of defective investigation can be given to the accused. In the case of Yogesh Singh Vs. Mahabeer Singh and others, 2016(4) RCR (Criminal) 753 (S.C.), the Hon'ble Supreme Court of India laid down that defective investigation by itself cannot be a ground for acquittal. It was held that in such cases, there is a legal obligation on the part of the Court to examine the prosecution evidence de hors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. In Karan Singh Versus State of Haryana, 2013 (4) RCR (Crl.) 205, it was held by the Hon'ble Supreme Court of India that unless lapses made on the part of investigating authorities are such, so as to cast a responsible doubt on the case of the prosecution, or seriously prejudice the defence of the accused, the court would not set aside the conviction of the accused merely on the ground of tainted investigation. In Gajoo Vs. State of Uttarakhand, 2013 (1) Criminal Court Cases 393, it has been held by the Hon'ble Supreme Court of India that a defective investigation, unless affects the very root of the prosecution case and is prejudicial to the accused, should not be 17 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -18- an aspect of material consideration by the court. In Abu Thakir and others Vs. State rep. by Inspector of Police, Tamil Nadu, 2010 (2) Criminal Court Cases 334, the Hon'ble Supreme Court of India held that even if the investigation is illegal or even suspicious, the rest of the evidence must be scrutinized independently of the impact of it. Criminal justice should not be made a casualty for the wrongs committed by the investigating officers in the case. If the Court is convinced with the testimony of a witness to the occurrence to be true, the Court is free to act on it albeit the investigating officer's suspicious role in the case.
11. Coming to the issue as to whether the accident had taken place on account of the rash and negligent driving of the offending vehicle by the petitioner-accused, the same also stands established from the oral and documentary evidence led on the record of the case. There is overwhelming oral evidence to prove this fact. Further, the fact that large number of persons were injured and one person lost his life also shows that the accident occurred while the offending vehicle was at a very high speed. The witnesses who stepped into the witness box also stated that the offending vehicle was being driven in a rash and negligent manner and at a very high speed.
12. The argument that the Matador was overloaded which could have resulted in the accident is also devoid of merit. The Matador being overloaded can never be said to be a reason for the accident. It may be an offence or an irregularity under the relevant law but certainly not a licence to anyone to run it over.
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13. I have gone through the judgments relied upon by learned counsel for the petitioner-accused. In view of the settled law on the subject, the judgments regarding the test identification parade would not help the petitioner-accused.
14. Coming to the question of modifying the sentence to that already undergone or releasing the petitioner on probation, the Supreme Court of India, in State of Punjab Vs. Dil Bahadur 2023 (2) R.C.R. (Criminal) 489 held that the offenders responsible for causing motor vehicle accidents need to be strictly punished. It was observed that with rapidly increasing motorisation, India is facing an increasing burden of road traffic injuries and fatalities. It was held that the financial loss, emotional and social trauma caused to a family on losing a bread winner or any other member of the family or incapacitation of the victim cannot be quantified. It was held that the principle of just punishment is the bedrock of sentencing in respect of a criminal offence. In this case, the Hon'ble Apex Court set aside a judgment in which the sentence of an offender convicted under Section 304-A IPC had been modified to the period already undergone by the convict. While arriving at this decision, the Hon'ble Apex Court made pointed reference to various cases decided by the Hon'ble Apex Court namely State of Himachal Pradesh Vs. Ramchandra Rabidas (2019) 10 SCC 75, State of Punjab Vs. Saurabh Bakshi (2015) 5 SCC 182 and State of Madhya Pradesh Vs. Surendra Singh (2015) 1 SCC 222.
15. As per the custody certificate on record, the petitioner-accused has undergone custody of only 29 days. This, in the considered opinion of this Court is too less for an offence punishable under Section 304-A IPC. In 19 of 20 ::: Downloaded on - 21-07-2024 04:49:31 ::: Neutral Citation No:=2024:PHHC:081553 CRR-1328-2009 (O&M) -20- fact, even sentence of one year is on the lesser side and in such offences, maximum sentence of two years as provided for in the statute should be imposed. The question of releasing the petitioner-accused on probation also does not appear to be giving justice to the deceased or his family members who lost their close family member in the accident. The only thing which came to the mind of the Court is the age of the petitioner but the same would also have to be ignored on account of the settled law on the subject as has been referred to in the preceding paragraphs.
16. Taking into consideration the totality of the facts and circumstances as have been discussed in the preceding paragraphs as also the settled law on the subject, the present revision petition is found to be devoid of merit and the same is accordingly dismissed.
17. A copy of this judgment be sent to the concerned trial Court and the Chief Judicial Magistrate, Palwal for information and compliance in accordance with law.
In view of the disposal of the main case, no order is required to be passed in the pending miscellaneous application/s, if any, and the same stand/s disposed of as having been rendered infructuous.
(VIKRAM AGGARWAL)
JUDGE
Pronounced on: 02.07.2024
mamta
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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