Kerala High Court · 2012

Judicial First Class Magistrate-III, Neyyattinkara is the revision petitioner in this Criminal Revision Petition. The petitioner was chargesheeted for offences punishable under Sections 279, 337, 338 and 304 (A) of Indian Penal Code, read with Section 134 (a), Section 187 of Motor Vehicles Act and Rule 18 of the Kerala Motor Vehicles Rules read with Section 177 of the Motor Vehicles Act. The prosecution case is as follows :- On 12-10-1992 at 6.40 p.m. the accused without a valid badge had driven mini lorry bearing Registration No. KEV. 6638 in a rash and negligent manner so as to endanger human life, along Nellimoodu Thadathikulam, Kanjiramkulam road. When it reached Thadathikulam at a CRL. R.P. NO. 1355 of 2002 #2# point 3 metres and 22 cms southeast of the south eastern corner of the wall of house No. V/297, 12 metres and 77 cms. west of the south western corner of house No. VII/740, 18 metres and 57 cms. south east of electric post No. K/KT 16 and 69 cms. west of the western tar end of the road, it knocked down one Ajayakumar S/o. CW2 who was walking in front of CW2 along that road and the left rear wheel of the lorry ran over the head of the child as a result of which the child died instantaneously. The mini lorry thereafter hit CW2 as a result of which she sustained fracture to her nose and injury to her head. The mini lorry went further and knocked down CW1 who was sitting on the carrier of a bicycle kept there and CW1 sustained injury to his right thigh and right elbow. The prosecution further contended that the accused did not provide medical attention to the injured and thereby committed the offences mentioned in respect thereof. After trial the Magistrate convicted the petitioner for offences under Sections 273, CRL. R.P. NO. 1355 of 2002 #3# 337 and 304 A of IPC and Section 134 (a) of Motor Vehicles Act and Rule 18 of the Kerala Motor Vehicles Rules. The Magistrate sentenced the petitioner for simple imprisonment for three months under Section 279 IPC, simple imprisonment for three months under Section 337 IPC and simple imprisonment for one year under Section 304 (A) IPC. No sentence was awarded under Section 338 IPC. The accused was directed to pay a fine of Rs. 250/- with a default sentence of simple imprisonment for one month under Section 134 (a) of the Motor Vehicles Act and to pay a fine of Rs. 100/- under Rule 18 of Kerala Motor Vehicles Rules with a default sentence of simple imprisonment for 15 days. It is directed that the substantive sentence shall run concurrently. The petitioner filed Criminal Appeal No. 103/1996 before the II Additional Sessions Judge, Thiruvananthapuram which was dismissed. The petitioner is challenging the judgments of the courts below in this Criminal Revision Petition. The CRL. R.P. NO. 1355 of 2002 #4# petitioner's contention in this criminal revision petition is only regarding the identification of the accused. According to the petitioner there has not been proper identification of the accused. He points out that the witnesses did not have any prior acquaintance with the accused. The police showed the petitioner to the witnesses of the accused and they identified him. No Test identification Parade has been conducted for identification of the accused. According to him, PW8, the owner of the vehicle, categorically stated that the vehicle was entrusted to a workshop for repairs and the mechanic was driving the vehicle at the relevant point of time. It is submitted that although the police had obtained a statement from the owner, PW8, to the effect that at the relevant time the owner was driving the motor vehicle, no evidentiary value can be attached to the documents got signed by PW8, in view of the fact that those documents were signed at the police station at the instance of the police and while giving CRL. R.P. NO. 1355 of 2002 #5# evidence PW8 categorically asserted that he did not know the contents of the documents Exts. P4 to P6. The counsel for the petitioner strenuously argued that none of the witnesses could have positively identified petitioner as accused by any stretch of imagination. According to him, the identification was only from the box which can only be at the instance of the police, insofar as the witnesses did not have any prior acquaintance with the petitioner. He also points out discrepancies in the evidence of PW2, PW3 and PW4. He submits that PW1 who was also one of the person injured in the accident had refused to identify the petitioner as the driver of the vehicle at the relevant time. The petitioner heavily relies on the decision of this court in Basheer vs. State of Kerala – 2010 KHC 770 and the decision of the Andhra Pradesh High Court in Piginaraji Ranga Rao vs. State of A.P. -2009 KHC 5762 in support of his contentions. CRL. R.P. NO. 1355 of 2002 #6#

2. The public prosecutor would contend that there is ample evidence before the trial court by identifying the petitioner as driver of the vehicle at the time of accident. He points out that two independent witnesses who were eye witnesses to the incident had categorically identified the petitioner as accused and they have stated before the court that they knew the petitioner by sight previously also. He points out that there is no inviolable rule for general application that unless Test Identification Parade is conducted by the investigating officer, identification cannot be confirmed in a criminal case. He points out that Test Identification Parade is optional for strengthening the trustworthiness of the evidence already collected, and if the identification can be proved even without a Test Identification Parade, that would suffice for the purpose of identification of the accused. He relies on the decision of Supreme Court in Sheo Shankar Singh v. State of Jharkhand and another (2011) 3 Supreme CRL. R.P. NO. 1355 of 2002 #7# Court cases 654 in support that contention. He takes me through the evidence of PWs 2 to 5 who have identified the petitioner as the driver of the vehicle at the time of incident.

3. I have considered the rival contentions in detail. It is true that there is no case for the prosecution that a Test Identification Parade was conducted to identify the accused. But there is no law to the effect that unless Test Identification Parade is conducted, there cannot be no successful prosecution of an accused. This is clear from the decision of the Supreme Court in Sheo Shankar Singh's Case (Supra.) In that case, the Supreme Court had categorically held that identification of the accused in court by witnesses constitutes substantive evidence in a case, although any such identification for the first time at trial may more often that not appear to be evidence of a weak character. That being so the court held that Test CRL. R.P. NO. 1355 of 2002 #8# Identification Parade is conducted with a view to strengthening trustworthiness of evidence which provides corroboration of witnesses who claim to identify accused persons otherwise unknown to him. Test Identification Parade, therefore, remain in the realm for investigation and the Criminal Procedure Code does not oblige the investigating agency to necessarily hold Test Identification Parade nor is there any provision in which the accused may claim a right to holding of Test Identification Parade. Failure of investigating agency to hold Test Identification Parade does not have the effect of weakening the evidence of identification is what has been laid down by the Supreme Court. The Supreme Court even held that in appropriate cases the court may accept evidence of identification in court even without insisting on corroboration. As such, I am not satisfied that the non conduct of Test Identification Parade in any way vitiates the conviction of the petitioner in this case, if there is CRL. R.P. NO. 1355 of 2002 #9# sufficient evidence adduced in court for identifying the accused. I have gone through the evidence of PWs 1 to 5 in this case. Of course PW1 who was injured in the accident refused to identify the petitioner as the person who was driving the vehicle. He said that he has no complaint in respect of the injury sustained by him in the accident. He deposed that he had settled the case with the parties involved. Although he had told the police that the petitioner was the accused, he deposed before the court that he does not know the driver of the vehicle at the time of incident and he does not know the reason for the accident also. But PWs2 to 5 categorically identified the petitioner as the driver of the vehicle at the time of accident. I am of the opinion that the petitioner has not been successful in impeaching their evidence by cross examination. I am of the opinion that the cross- examination of those witnesses on this aspect, by the petitioner, was perfunctory in nature. PWs 2 & 4 stated CRL. R.P. NO. 1355 of 2002 #10# that they knew the accused by sight even before the accident also. There was no serious cross examination on this aspect to impeach the identification of the accused by the witnesses. Of course the owner of the vehicle who had signed P4 to P6 wherein he is stated to have reported to the police that at the time of accident the petitioner was driving the vehicle, has given evidence before the court to the contrary regarding the contents of P4 to P6. But he admitted that he signed those documents. The lower courts found that PW8 did not have any case that he signed those documents under compulsion or threat from the police. He simply stated that he does not know the contents of Exts. P4 and P6. Taking into account of these evidence, I am not inclined to countenance the contention of the petitioner regarding the person who was driving the vehicle at the time of incident. Therefore, I am not inclined to accept the contention of the petitioner that the prosecution has failed to prove the identity of the petitioner CRL. R.P. NO. 1355 of 2002 #11# as the driver of the vehicle at the time of accident. That being so, I do not find anything wrong with the conviction entered by the Magistrate which was confirmed by the appellate court.

4. The learned counsel for the petitioner sought leniency in the matter of punishment also. On going through the entire evidence on record for the offences committed by the petitioner, I do not find that the offence awarded is too harsh or excessive. Therefore, I am not inclined to interfere with the sentence imposed also. Accordingly, the Criminal Revision Petition is dismissed. S. SIRI JAGAN (JUDGE) kvr/