Punjab-Haryana High Court
Maksud vs State Of Haryana on 8 May, 2024
Neutral Citation No:=2024:PHHC:064436
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CRR-2765-2023 (O&M)
Reserved on: 06.05.2024
Pronounced on: 08.05.2024
2024: PHHC: 064436
MAKSUD
. . . . Petitioner
Vs.
STATE OF HARYANA
. . . . Respondent
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Present: - Mr. Imtiyaz Hussain, Advocate,
for the petitioner.
Mr. Sumit Jain, Addl. AG, Haryana.
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DEEPAK GUPTA, J.
This criminal revision is directed against the conviction of the
petitioner as recorded by the trial Court and affirmed by the Appellate Court.
2. Petitioner was convicted by the Court of ld. Additional Chief
Judicial Magistrate, Rewari in criminal case bearing CNR N: HRRE03-
000839-2014, arising out of FIR No.519 dated 22.12.2013 registered at
Police Station, Dharuhera, Rewari and vide judgment dated 12.10.2017
under Sections 279/304-A IPC. Vide separate order dated 13.10.2017, he
was sentenced as under: -
Offence u/s Punishment Fine In default
279 IPC Two Months RI ₹500/- 15 days
304-A IPC One year RI ₹2500/- One month
The substantive sentences were directed to run concurrently.
3. Against the aforesaid judgment of conviction and order of
sentence, petitioner preferred an appeal before the ld. Additional District and
Sessions Judge, Rewari bearing Criminal Appeal No.362 of 2017, but the
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same was dismissed on 31.10.2023, thus affirming the conviction as well as
sentence.
4.1 Facts are as under:
On perusal of the paper-book, it emerges that on getting
information about the motor vehicular accident having taken place near
Nikhri Cut, ASI Ranbir Singh (PW5) along with other police officials
reached the spot on 22.12.2013, where it was informed that injured-Mukesh
wife of Shishpal had been taken to the Apex Hospital, Dharuhera. ASI
Ranbir Singh reached there, collected Rukka and came to know that Mukesh
had already expired. Shishpal (PW6), the husband of the deceased-Mukesh
got recorded his statement Ex.P1, as per which on that day i.e. 22.12.2013,
he along with his wife-Mukesh were going from village Mumtajpur towards
the village of his in-laws in Shahjahanpur (Rajasthan) on a motorcycle being
driven by him, on which his wife Mukesh was the pillion rider. At about
10:30/11:00 AM, as they reached near Nikhri Cut, a trolla came and hit his
motorcycle from the back side. It is alleged that trolla was being driven in
rash and negligent manner. Motorcycle fell down. He fell on one side,
whereas his wife Mukesh came under the trolla and received serious injuries.
He noticed registration number of the trolla as RJ-14GE-2723. The driver
fled away from the spot. It was further stated by Shishpal that he and his
wife were brought to the hospital, but his wife expired.
4.2 FIR was registered. Necessary investigation was conducted.
Trolla found from the spot was brought to the Police Station. Notice under
Section 133 of the Motor Vehicles Act, 1988 was issued to the registered
owner of the trolla namely Himanshu Singal, who got recorded his statement
as per which the trolla was being driven at the relevant time by accused
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Maksud (appellant herein). Said accused-appellant was arrested on
26.12.2013. After completion of necessary investigation, final report under
Section 173 CrPC was filed in the Court.
4.3. Accused was charge-sheeted under Sections 279/304A IPC, to
which he pleaded not guilty and trial. Evidence produced by the prosecution
was taken on record. Statement of the accused under Section 313 CrPC was
recorded. Opportunity to produce the defence evidence was given to the
accused, but he did not avail the same. After hearing both the sides, trial
Court held the accused to be guilty under Section 279/304-A IPC and
convicted him thereunder as per details given earlier and his conviction
along with sentence has been upheld by the appellate Court.
5. Before this Court, the only issue raised by ld. counsel for the
petitioner is regarding the identity. It is contended that as per the FIR
version, the driver of the offending trolla had fled from the spot. FIR was
lodged against unknown person. It was not disclosed by the complainant
Shishpal that he could identify the driver of the offending vehicle, if brought
before him. No other person from the public, who might have witnessed the
accident, has been joined during investigation. Ld. counsel for the appellant
then drawn attention towards the statement of PW6 Shishpal, made during
trial, in which he clearly stated that that he had seen the driver, when he was
running from the back side. It is pointed out that it is not in the statement of
PW6 that he had seen the face of the driver. Ld. counsel contends further
that Himanshu Singal, the owner of the offending vehicle, has not been
examined by the prosecution during trial and that identity has been held to
be proved by the Courts below only on the basis of statement of the IO.
Further attention is drawn towards the fact that no test identification parade
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was conducted. Ld. counsel contends that in view of all these facts and
circumstances, both the Courts below fell in grave error in holding the
petitioner to be the driver of the offending vehicle and to convict him under
Section 279/304-A IPC. Prayer is made for setting aside the impugned
judgments of conviction; and to acquit the petitioner.
6. On the other hand, ld. State counsel has defended the impugned
judgments by submitting that identity of the petitioner as driver of the
offending vehicle was duly established.
7. I have considered submissions of both the sides and have also
appraised the trial Court record with the able assistance of Ld. counsels.
8. After considering submissions of both the sides, I find merit in
this petition. Out of the 9 witnesses examined by the prosecution, only PW6
Shishpal, complainant of the case and the husband of the deceased, is the
alleged eyewitness. Although his testimony reveals that accident was caused
when a trolla bearing No. RJ-14GE-2723 hit the motorcycle being driven by
him from backside, resulting in the death of his wife Mukesh, but it is
clearly stated by the said witness that after the accident, driver fled away
from the place of occurrence and that he saw him, when he was running
from the backside. It is not in his statement that he (PW6 Shishpal) was able
to see the face of the driver of the offending vehicle. He also disclosed the
time of the accident to be 10-11 AM and that huge traffic jam had taken
place because of the accident. Despite the fact that accident occurred in
broad day light and lot of public was present there, no effort appears to have
been made by the Investigating Officer of the case so as to join any another
person, apart from complainant-Shishpal, who might have seen the accident.
PW6, as noted above, did not see the face of the driver of the offending
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vehicle and simply on the basis of the fact that he had seen the driver from
the backside, it cannot be stated that identification of the accused-petitioner
as driver of the offending vehicle is established.
9. Besides, there is nothing on record to suggest that Investigating
Officer took any step to arrange the test identification parade so as to test the
veracity of the version given by the complainant regarding identification of
the accused simply by seeing him from the backside.
10. Further, it has come in the statement of PW5-ASI Ranbir Singh,
the Investigation Officer of the case that notice under Section 133 of the
Motor Vehicles Act was sent to the owner of the offending vehicle and that
the owner produced the driver. As per the impugned judgment recorded by
the trial Court, on the notice under Section 133 of the Motor Vehicles Act, it
was endorsed by the owner Himanshu Singla that offending vehicle was
being driven by the present accused-Maksud. However, concededly,
prosecution failed to examine the owner of the vehicle Himanshu Singal
before the trial Court concerned. The trail Court recorded conviction simply
on the basis of the fact that no suggestion had been given to the ASI Ranbir
Singh regarding his report about the endorsement made by Himanshu Singla,
which was proved by him.
11. I am afraid that the approach adopted by the ld. trial Court in
this regard is absolutely flawed. In the absence of examination of Himanshu
Singla before the trial Court, his any statement made before the Investigating
Officer to the effect that accused was driving the offending vehicle at
relevant time, cannot be accepted as a gospel truth. In case, the logic as
applied by the trial Court is accepted, it would mean that statement of any
witness recorded by the Investigating Officer during investigation, will be
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treated as evidence, without the person making the statements, being
examined in the Court.
12. Apart from above, the offending vehicle was recovered from
the spot. There is nothing in evidence that any document whatsoever was
recovered from the offending trolla, which could connect the petitioner with
the said vehicle so that inference could be drawn that at the time of accident,
he was driving the same.
13. In view of the aforesaid facts and circumstances, it is held that
the conviction of the petitioner cannot be sustained in the eyes of law. Both
the Courts have come to a wrong conclusion so as to hold that it is the
petitioner, who was driving the offending vehicle. It was for the prosecution
to establish beyond doubt that it is the petitioner-accused, who was driving
the offending vehicle. The evidence produced on file is not sufficient so as to
hold that it is the petitioner, who was driving the vehicle.
14. Consequently, the present revision is allowed. The petitioner is
hereby acquitted of the charges. The impugned judgment of conviction as
recorded by the trial Court and as affirmed by the Appellate Court, is hereby
set aside. Petitioner is directed to be released immediately, if not required in
any other case.
(DEEPAK GUPTA)
08.05.2024 JUDGE
Vivek
1. Whether speaking/reasoned? Yes
2. Whether reportable? No
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