Punjab-Haryana High Court
Gagandeep Singh vs State Of Punjab on 20 December, 2023
Neutral Citation No:=2023:PHHC:163994
2023:PHHC:163994
CRR No. 3994 of 2016 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
CRR No. 3994 of 2016
Reserved on: 30.11.2023
Pronounced on : 20.12.2023
Gagandeep Singh ....Petitioner
Versus
State of Punjab ....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Gurmeet Singh Saini, Advocate, for the petitioner
Mr. P.S.Grewal, DAG, Punjab
KULDEEP TIWARI,J.
1. Through the instant criminal revision, challenge has been
thrown to the judgment of conviction dated 3.9.2015, and order of
sentence of even date, passed by the learned trial court concerned
and the judgment dated 6.8.2016, whereby the statutory appeal
preferred by the petitioner was also dismissed by the learned
Sessions Judge, Tarn Taran. The petitioner was accused in FIR No.
195 dated 10.9.2011, under Sections 304-A, 427, 338 IPC,
registered at Police Station City, Tarn Taran and was convicted
under Sections 279, 304-A IPC and sentenced, vide order dated
3.9.2015, as under:-
Under Imprisonment Fine In default
Sections
279 IPC RI for one year ---- ----
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Under Imprisonment Fine In default
Sections
304-A RI for 2 years Rs 2000/- RI for two
IPC months
BRIEF FACTS
2. The prosecution agency was set into motion on a
complaint made by Balwinder Singh, son of Joginder Singh, alleging
therein, that they are three brothers, and on dated 9.9.2011, his
elder brother, namely, Mangal Singh, and one Harbinder Singh son
of Gulzar Singh, went to Tarn Taran City on a motorcycle bearing No.
PB-38B-2266. The complainant was waiting for them at Simran
Dhaba, situated at village Muradpura, Tarn Taran. At about 6.15
PM, his brother Mangal Singh was driving the motorcycle and
Harbinder Singh was on pillion seat, and when they reached near
Simran Dhaba, a Trolly bearing No. RJ-14-GB-8927, being driven
by an unknown person, came at a very high speed without blowing
any horn or without giving any other indication, the said Trolly
collided with the motorcycle of his brother Mangal Singh, as a result
of which his brother died at the spot, whereas, Harbinder Singh, who
was sitting on pillion seat, sustained injuries. Thereafter on the
complaint (supra), the present FIR was registered under Sections
304-A, 427, 338 IPC, against the unknown persons. The
investigation was carried out, and the present petitioner was
arrested and was finally put to trial by the prosecution agency.
3. In order to substantiate its case, a total five witnesses
were examined by the prosecution, apart from the documentary
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evidence. The learned trial court concerned, after considering the
prosecution evidence found that the prosecution has fully proved its
case against the petitioner beyond any reasonable doubt, and
recorded the verdict of conviction on dated 3.9.2015. The statutory
appeal preferred by the present petition also met the same fate, and,
was dismissed vide order dated 6.8.2016.
CONTENTIONS OF THE LEARNED COUNSEL FOR
THE PETITIONER
4. The first contention raised by the learned counsel for the
petitioner is that, ASI Amarjit Singh, who was the Investigating
Officer, was not examined by the prosecution. He has further
submitted that initially the FIR was registered against unknown
person, and later on the name of the present petitioner was
nominated in the present case. He has further submitted that there
is nothing on record to show that, how the name of the present
petitioner was added in this case. He has further submitted that
because of the non-examination of the Investigating Officer, ruqa
(first information), site plan and other necessary documents have not
been proved. While referring to the statement of the complainant-
Balwinder Singh PW5, the occurrence took place on dated 9.9.2011,
at about 6.15 PM, whereas the FIR was registered on dated
10.9.2011, at 6.40 PM, therefore, there is a delay of more than 24
hours in registration of the FIR, and the delay has not been
explained. It is transpired from the statements of Balwinder Singh
and Rupinder Singh injured, that they were not known to the present
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petitioner prior to the registration of the FIR (supra), therefore, the
test identification parade of the present petitioner was very essential
which was not conducted. He further submits that the owner of the
Trolly, was not examined in the present case, who could have
established that the petitioner was the driver of the Trolly on the
fateful day. Apart from that the counsel of petitioner has pointed out
some major contradictions in the statements of the eye witnesses,
PW5-Balwinder Singh, and injured PW3 Rupinder Singh.
ANALYSIS
5. This Court has thoroughly examined the records, the
judgments passed by the courts below, and the submissions made
by the learned counsel for the petitioner. This Court is very
conscious of the fact that in the revision petition, the powers of the
Court are limited, and the Court has to examine the legality of the
verdicts passed by the courts below. The first issue which needs
consideration is that the instant FIR, was admittedly registered after
the delay of more than 24 hours and, that too, against unknown
person. During investigation, the test identification parade was not
conducted and the prosecution was unable to prove any document
that how come the name of the present petitioner was cropped up
during investigation, and what were the evidence collected by the
Investigating Officer, which made the Investigating Officer to
conclude that the petitioner was the driver of the offending vehicle
on the fateful day. To prove the aforesaid issue, the examination of
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the Investigating Officer was required to be conducted, which the
prosecution has failed to do so. Though, merely because of non-
examination of the Investigating Officer, the entire case of the
prosecution cannot be brushed aside, however, in the facts and
circumstances mentioned above, the examination of the
Investigating Officer was essential. In case, the Investigating Officer
was examined, during the trial, the accused would have got a
chance to cross-examine him to belie his involvement in causing the
accident in question. Therefore, the same has caused serious
prejudice to the rights of the accused person. To strengthen the
above observation, this Court has placed reliance upon a judgment
rendered by the Hon'ble Supreme Court in Munna Lal vs the State
of Uttar Pradesh, 2023 AIR (SC) 634, wherein the Hon'ble
Supreme Court has held that non-examination of the Investigating
Officer must result in prejudice to the accused; if no prejudice is
caused, mere non-examination would not render the prosecution
case fatal. Therefore, it was held that non-examination of
Investigating Officer has caused prejudice and benefit of that was
given to the accused concerned. The relevant extract is reproduced
hereinafter:-
"28. Before embarking on the exercise of deciding the
fate of these appellants, it would be apt to take note of
certain principles relevant for a decision on these two
appeals. Needless to observe, such principles have
evolved over the years and crystallized into 'settled
principles of law'. These are:
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(a). Section 134 of Indian Evidence Act, 1872,
enshrines the well-recognized maxim that evidence has
to be weighed and not counted. In other words, it is the
quality of evidence that matters and not the quantity.
As a sequitur, even in a case of murder, it is not
necessary to insist upon a plurality of witnesses and the
oral evidence of a single witness, if found to be reliable
and trustworthy, could lead to a conviction.
(b). Generally speaking, oral testimony may be
classified into three categories, viz.:
(i) Wholly reliable;
(ii) Wholly unreliable;
(iii) Neither wholly reliable nor wholly unreliable.
The first two category of cases may not pose serious
difficulty for the court in arriving at its conclusion(s).
However, in the third category of cases, the court has to
be circumspect and look for corroboration of any
material particulars by reliable testimony, direct or
circumstantial, as a requirement of the rule of
prudence.
(c). A defective investigation is not always fatal to the
prosecution where ocular testimony is found credible
and cogent. While in such a case the court has to be
circumspect in evaluating the evidence, a faulty
investigation cannot in all cases be a determinative
factor to throw out a credible prosecution version.
(d). Non-examination of the Investigating Officer must
result in prejudice to the accused; if no prejudice is
caused, mere non-examination would not render the
prosecution case fatal.
(e). Discrepancies do creep in, when a witness
deposes in a natural manner after lapse of some time,
and if such discrepancies are comparatively of a minor
nature and do not go to the root of the prosecution
story, then the same may not be given undue
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importance.
38. First, statement of PW-3 under section 161, Cr. P.C.
was recorded nearly 24 days after the incident. Since
the Investigating Officer did not enter the witness box,
the appellants did not have the occasion to cross-
examine him and thereby elicit the reason for such
delay. Consequently, the delay in recording the
statement of PW3 in course of investigation, is not
referred to and, therefore, remains unjustified. The
possibility of PW-3, being fixed up as an eye-witness
later during the process of investigation, cannot be
totally ruled out.
42. Although, mere defects in the investigative process
by itself cannot constitute ground for acquittal, it is the
legal obligation of the Court to examine carefully in
each case the prosecution evidence de hors the lapses
committed by the Investigating Officer to find out
whether the evidence brought on record is at all reliable
and whether such lapses affect the object of finding out
the truth. Being conscious of the above position in law
and to avoid erosion of the faith and confidence of the
people in the administration of criminal justice, this
Court has examined the evidence led by the
prosecution threadbare and refrained from giving
primacy to the negligence of the Investigating Officer as
well as to the omission or lapses resulting from the
perfunctory investigation undertaken by him. The
endeavour of this Court has been to reach the root of
the matter by analysing and assessing the evidence on
record and to ascertain whether the appellants were
duly found to be guilty as well as to ensure that the
guilty does not escape the rigours of law. The disturbing
features in the process of investigation, since noticed,
have not weighed in the Court's mind to give the benefit
of doubt to the appellants but on proper evaluation of
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the various facts and circumstances, it has transpired
that there were reasons for which PW-2 might have
falsely implicated the appellants and also that PW-3
was not a wholly reliable witness. There is a fair degree
of uncertainty in the prosecution story and the courts
below appear to have somewhat been influenced by the
oral testimony of PW-2 and PW-3, without taking into
consideration the effect of the other attending
circumstances, thereby warranting interference."
6. In this case also, there is a delay of more than 24 hours
in reporting the matter to the police. The test identification parade
was not conducted. Further-more, the prosecution could not
establish by way of evidence, that how the name of the accused
cropped up during the investigation, as most material documents
were not proved because of want of examination of the Investigating
Officer.
7. In the case of accident, the site plan is one of the
essential document, which is essential to prove that the alleged act
was a result of negligence or rashness on the part of the offending
vehicle. Merely, on the statement of the complainant-eye witness, it
is difficult for the Court to conclude that the act of the driver of the
offending vehicle was rash or negligent. The act can either be of
rash or negligent and it was obligatory upon the prosecution to prove
the same by leading cogent and admissible legal evidence beyond
reasonable doubt. The Court cannot presume the culpability of a
driver of offending vehicle merely because he survives in the
accident and his act was certainly either of negligent or rash. In the
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instant case, there is no supporting document except the statement
of the complainant-eye witness, that too, which was recorded after a
delay of 24 hours, therefore, it cannot be concluded that the act of
the driver of the offending vehicle was rash and negligent. The
delay in lodging of FIR is fatal in the facts and circumstances of the
present case, once it is the positive case of the prosecution that the
complainant-eye witness was present on the spot of occurrence,
nothing prevented him to get his statement recorded within a
reasonable time.
8. The second submission, which was raised by the learned
counsel for the petitioner, also have poundage i.e. the prosecution
examined Rupinder Singh as PW3, who claimed himself to be a
pillion rider on the motorcycle on the fateful day. However, perusal
of the record reveals that it was not Rupinder Singh rather Harbinder
Singh, son of Gulzar Singh, who was a pillion rider on the fateful
day. There is nothing on record which could establish that PW3-
Rupinder Singh, is also known as Harbinder Singh. To establish,
that both the persons are one and the same, the examination of the
Investigating Officer was necessary. Unfortunately, in this case the
IO was not examined, therefore, again prejudice is caused to the
accused-petitioner.
9. Finally, there is also strength in the argument of the
learned counsel for the petitioner, that the owner of Trolly in question
was a material witness, as he is the essential witness who could
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have established that the petitioner was the driver of his offending
vehicle on the fateful day. Though, the non conducting of test
identification parade is not always fatal to the prosecution case, but
in the facts and circumstances explained above, it certainly creates
dent in the story of the prosecution case. The arrest memos as well
as the site plan etc. could not be proved for want of examination of
the Investigating Officer, to establish the identity of the accused,
therefore, the identification for the first time into the witness box by
the complainant, is a weak piece of evidence, and solely on the
basis of this evidence, the petitioner-accused cannot be convicted.
10. In view of the above discussion, this Court finds that the
prosecution has miserably failed to prove its case beyond
reasonable doubt. Therefore, giving the benefit of doubt, the
accused-petitioner, is acquitted of the charges framed against him.
The present revision petition is, accordingly, allowed.
11. The bail bonds furnished by the petitioner are
discharged.
12. The pending application(s), if any, stands disposed of.
13. Record of the case be sent down forthwith.
( KULDEEP TIWARI )
December 20, 2023 JUDGE
'tiwana'
Whether speaking/reasoned ? Yes/No
Whether Reportable ? Yes/No
Neutral Citation No:=2023:PHHC:163994
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