Chandresh Paswan Vs. State of U.P. and anr. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - it is well settled that it is the statement given in the court which is treated as substantive evidence.orderj.c. gupta, j.1. heard shri sunil kumar for the applicant in revision and the learned a.g.a.2. this revision is directed against the order dated 6-7-2001 passed by addl. sessions judge (court no. 11) gorakhpur in sessions trial no. 107 of 1998 directing the applicant to appear in person before the court on 12-7-2001. it appears that when pw. 5 head constable shree niwas rai was examined in the court below he stated that he could identify the miscreants in court if confronted with. since the applicant was not present, in court on that day, the learned d.g.c. moved an application before the court to adjourn the case and to direct the applicant to be present in person so that the said witness could identify him as one of the miscreants. this application has been allowed by the impugned order.3. apart from the fact that the order in question is an interlocutory order against which no revision lies on account of the bar created by sub-section (2) of section 397, cr. p.c. this court also otherwise finds no merits therein.4. learned counsel for the applicant in revision submitted before the court the test identification of an accused is part of investigation and if the accused was not put up for identification during investigation, he cannot be compelled to be identified for the first time in the court by a witness. this submission of the learned counsel in the opinion of the court is highly misconceived. it is well settled that it is the statement given in the court which is treated as substantive evidence. in the case of r.n. patel v. state of gujarat (1999) 9 jt (sc) 319, it was held by the apex court that it cannot be held that in the absence of test identification parade, the evidence of eyewitnesses identifying the accused for the first time during trial would become inadmissible or totally useless. whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case.5. in view of the aforesaid decision, therefore, it cannot be said that evidence of witness identifying an accused for the first time during trial is meaningless or has no evidentiary value as observed by the apex court and it would depend on the facts and circumstances of each case as to what weight is to be attached to the evidence of such a witness who identifies an accused for the first time in the court.6. therefore, in my view, the learned sessions judge has committed no error either on fact or in law in directing the applicant to be present in court before the statement of p.w. 5 is concluded. revision has no merits and is liable to be dismissed.7. revision is accordingly dismissed.

Judgment:
ORDER

J.C. Gupta, J.

1. Heard Shri Sunil Kumar for the applicant in revision and the learned A.G.A.

2. This revision is directed against the order dated 6-7-2001 passed by Addl. Sessions Judge (Court No. 11) Gorakhpur in Sessions Trial No. 107 of 1998 directing the applicant to appear in person before the Court on 12-7-2001. It appears that when PW. 5 Head Constable Shree Niwas Rai was examined in the Court below he stated that he could identify the miscreants in Court if confronted with. Since the applicant was not present, in Court on that day, the learned D.G.C. moved an application before the Court to adjourn the case and to direct the applicant to be present in person so that the said witness could identify him as one of the miscreants. This application has been allowed by the impugned order.

3. Apart from the fact that the order in question is an interlocutory order against which no revision lies on account of the bar created by Sub-section (2) of Section 397, Cr. P.C. this Court also otherwise finds no merits therein.

4. learned Counsel for the applicant in revision submitted before the Court the test identification of an accused is part of investigation and if the accused was not put up for identification during investigation, he cannot be compelled to be Identified for the first time in the Court by a witness. This submission of the learned Counsel in the opinion of the Court is highly misconceived. It is well settled that it is the statement given in the Court which is treated as substantive evidence. In the case of R.N. Patel v. State of Gujarat (1999) 9 JT (SC) 319, it was held by the Apex Court that it cannot be held that in the absence of test identification parade, the evidence of eyewitnesses identifying the accused for the first time during trial would become inadmissible or totally useless. Whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case.

5. In view of the aforesaid decision, therefore, it cannot be said that evidence of witness identifying an accused for the first time during trial is meaningless or has no evidentiary value as observed by the Apex Court and it would depend on the facts and circumstances of each case as to what weight is to be attached to the evidence of such a witness who identifies an accused for the first time in the Court.

6. Therefore, in my view, the learned Sessions Judge has committed no error either on fact or in law in directing the applicant to be present in Court before the statement of P.W. 5 is concluded. Revision has no merits and is liable to be dismissed.

7. Revision is accordingly dismissed.