B.D. Gupta, J. - (1.) THE Applicant Balbir Singh has been convicted for the offence punishable Under Section 304A, IPC and sentenced to nine months' RI. After hearing learned Counsel for the Applicant and learned Counsel appearing for the State I have come to the conclusion that this revision must be allowed and the Applicant must be acquitted.
(2.) THERE is no controversy that on the early afternoon of 12 -2 -1967 one Bhagwan Das died as a result of truck No. 606 UPY striking a cycle which was being driven by one Sewa Singh On the Kotdwar Najibabad road. The case of the prosecution which has been accepted by the courts below is that whilst Sewa Singh was driving the cycle the deceased Bhagwan Dass was sitting on its carrier. As a result of the impact of the truck with the cycle they were both thrown out and the injury received by Bhagwan Dass was so serious that he died on the spot. The case of the prosecution that at the time of the aforesaid accident the truck was being driven by the Applicant Balbir Singh rested on the evidence furnished as a result of an identification proceeding conducted in the District Jail at Bijnor on 17 -4 -67 in the course of which the Applicant was identified by two witnesses, Balwant Singh (PW 4) and Sampuran Singa (PW 5) whose testimony has been accepted by the courts below. The learned Counsel for the Applicant has urged that the conviction of the Applicant merely on the aforesaid identification evidence is improper and reliance in support of this contention has been placed by learned Counsel on the decision of the Supreme Court in Komal Gope and Beni Gope v. State of Bihar Cr. A. No. 45 of 1965 Dl -23 -11 -1967. It appears that the aforesaid contention must be given effect to. The prosecution case was that after the accident the driver of the truck stopped the truck, got down for a while and on realising that one of the persons struck by the truck had received extremely serious injuries the again drove away the truck whereafter the witnesses who had witnessed the occurrence informed one Latkan Ram (PW 2), a relative of the deceased Bhagwan Dass living close by about the mishap. Latkan Ram reached the spot and having found Bhagwan Dass dead proceeded to the police station and lodged a report in the afternoon. In the report, the number of the truck which had caused the accident was given as 606 UPY. The next day i.e. on 13 -2 -1967 Station Officer Mehkar Singh found a truck bearing the aforesaid number standing in the Police Lines, Bijnor. The truck had come there in connection with election duties and at that time the Applicant was the driver of the truck. The Applicant was arrested forthwith, his face was covered and he was sent to jail in the custody of a constable and was lodged in the District Jail at Bijnor the same day. It appears that on 25 -2 -1967 an application was moved on behalf of the Applicant praying for bail being granted to him. I report from the Assistant Public Prosecutor was called for by the Magistrate concerned and the endorsement on the back of that report discloses that the report of the Assistant Public Prosecutor was that though the offence was bailable identification proceedings had still to be conducted in regard to the Applicant. Notwithstanding the aforesaid report the learned Magistrate, by an order passed the same day, granted the prayer for bail with the result that the Applicant was enlarged on bail shortly thereafter and remained enlarged until 17 -4 -1967 on which date identification proceedings were conducted in the District Jail in Bijnor. Nothing on the record has been pointed out which might indicate that the Applicant gave an undertaking that during the period of his being at large on bail he would take care to keep himself away or protect himself against being shown to witnesses who might be set up to identify him. In the circumstances stated above the contention of learned Counsel for the Applicant has been that the evidence furnished by the identification of the Applicant by Balwant Singh and Sampuran Singh in the District Jail, Bijnor on 17 -4 -1967 is rendered valueless. Reliance has been placed by learned Counsel on the decision of Roy, J. in the case of Ganga Singh and Ors. v. The State : AIR 1956 All. 122 : 1955 AWR 673.
(3.) IT may be stated here that the Applicant pleaded not guilty and stated that he had brought the truck in question from Lucknow to Dhampur on 12 -2 -1967, that from Dhampur one Sardar Dayal Singh had taken the truck, that he was not driving the truck at the time the accident took place and that he (the Applicant) stayed at Dhampur. In the light of the aforesaid defence the crucial question which arose for consideration was as to whether, at the time of the accident on the Kotdwar Najibabad road, the Applicant was, driving truck No. UPY 606 and the answer to this question depended on the value to be attached to the evidence furnished by the two witnesses, namely, Balwant Singh, (PW 4) and Sampuran Singh, (PW 5) who identified the Applicant in the course of the identification proceedings in the District Jail, Bijnor.;