Hartej Singh Alias Tejinder Singh Vs. Union Territory, Administration - Court Judgment

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criminal - benefit of doubt - sections 279, and 304(a ) of indian penal code, 1860(ipc) - appellant convicted for commission of offence under sections 279 and 304(a) of ipc- appellant filed appeal for challenging his conviction - dismissed - hence, present revision - held, prosecution failed to prove identity of driver of vehicle - appellant was stranger to complainant and so it's not possible for complainant to identify appellant first time before court after 6 years of incident - further, no test identification parade was held - thus, prosecution failed to establish that it was appellant alone who was driving the vehicle at the time of incident and responsible for death of deceased - in such circumstances benefit of doubt lie in favour of appellant - accordingly, revision allowed and conviction of appellant set aside - hindu law -- custom: [vijender jain, c.j., m.m. kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of ancestral property - punjab and haryana - held, in respect of state of punjab by virtue of punjab amendment act, 1973 there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on ground that such alienation or appointment was contrary to custom. in punjab the property in hands of a successor has to be treated as coparcenary property and its alienation has to be governed by hindu law except to the extent it is regulated by sections 6 and 30 of the hindu succession act. in haryana, property in hands of successor has to be treated as coparcenary property as well as ancestral property. parties can fall back upon hindu law in case they fail to establish that rule of decision is custom. therefore, in haryana both under hindu law and the customary law, the alienation would be open to challenge. custom was given precedent over uncodified hindu law presumably for reason that custom has been consistently replacing the hindu law. however, it was soon realized that ancestral immovable property, which ordinarily held to be inalienable amongst jats of punjab by virtue of custom except for necessity, no limitation was placed on degrees of collateral, eligible to contest such alienation. it was, therefore, felt necessary to engraft certain restriction on degrees of collateral, eligible to contest an alienation, which under the custom itself was not limited. accordingly, the punjab custom (power to contest) act, 1920 (act no.2 of 1920) was enacted. the hindu succession act was extended to the state of punjab. act 2 of punjab act defined expression alienation to include any testamentary disposition of property and appointment of an heir was to include any adoption made or purporting to be made according to custom. a further provision was made by section 3 that hindu succession act was to apply only in respect of alienation of immovable property or appointment of heirs made by persons who in regard to such alienation or appointment were governed by custom. whereas section 4 declared that hindu succession act was not to affect any right to contest any alienation or appointment of an heir made before the date on which the succession act was to come into force. in other words, act, no.2 of 1920 was not to affect alienation or appointments of heir made before date on which it came into force. it also preserved the rights of any alienation or appointment of an heir made by a family. after section 7 was inserted in act of 1920 by the punjab amendment act of 1973 right of contest being contrary to custom had been totally effaced and taken away. therefore, no person has any right to contest any alienation of immovable property whether ancestral or non-ancestral on ground of being contrary to custom after january 23, 1973. in haryana, the situation as enunciated by act no.2 of 1920 continued to prevail in respect of alienation because no reforms parallel to punjab as brought by amendment act of 1973, had been enacted although right to pre-emption has been substantially abolished in haryana also. no steps even have been taken in that regard. therefore, situation in haryana have to be regarded as it existed under act no. 2 of 1920. hindu succession act,1956[c.a.no.30/1956] -- sections 6 & 30: [vijender jain, c.j., m.m.kumar, jasbir singh, rajive bhalla & rajesh bindal, jj] alienation of coparcenary property - law laid down by full bench in joginder singh kundha singh v kehar singh dasaundha singh [air 1965 punjab 407] and pritam singh v assistant controller of estate duty, patiala [1976 punj lr 342] -whether there is any conflict? - held, the basic controversy in the full bench decision of joginder singhs case was regarding constitutional validity of section 14 of hindu succession act and as to whether it infringes article 14 of constitution. it was held that the estate held by male and limitation on his power of alienation were in no way removed and the reversioners were not debarred from challenging such alienations. the full bench held that section 14 of hindu succession act postulates that estate held by a hindu female before enforcement of succession act either by inheritance or otherwise, was enlarged and on date of enforcement of succession act, she became a full owner. likewise, if she has inherited any estate after the commencement of the act, she was to be regarded as absolute owner rather than a limited owner. consequently, the limitations on power of alienation automatically vanished. this was the necessary result of the provisions made in section 14 of the act. the full bench further held that in respect of male proprietors, no corresponding provision was made either enlarging their estate in ancestral property or enlarging their power of alienation over property inherited by them. however, it noticed section 30 and observed that it only deals with power of his share in coparcenary property by will, which prior to enforcement of the act, he had no right to do. the only provision made in respect of male proprietor regarding alienation of property was his power of alienation by will. in so far as persons governed by custom are concerned, they continued to be governed by the restriction on the power of alienation of a male holder as existed before enforcement of the act. likewise, other restriction on alienation other than disposal by will also continued. the full bench, thus, recognized the superior right of hindu females by virtue of section 14 and upheld the provision as intra vires. the argument that reversioners have ceased to exist after enactment of provisions of section 14 of succession act, was rejected as there was no provision pointed out to that effect. the proposition laid down by the full bench in pritam singhs case was that the hindu succession act has not abolished joint hindu family with respect to rights of those who were members of mitakshara coparcenary, except in the manner and to the extent mentioned in sections 6 and 30 of the act, this statement should also imply, though it does not say so expressly, the succession act to this extent does not affect the rights of the members governed by dayabhaga coparcenary. the full bench in pritam singh;s case expressly noticed the judgment of earlier full bench in joginder singhs case but construed the same as irrelevant by observing that it dealt with the power of alienation of a person governed by customary law and constitutional validity of section 14 of hindu succession act. thus there is no real conflict between the two full bench judgments. both the full bench judgments have been delivered on the assumption that joginder singhs case dealt with question of alienation whereas pritam singhs case had decided the question concerning succession. even on fact in joginder singhs case the issue was validity of alienation by consent decree by a father to his two sons, which was challenged by third son, whereas in pritam singhs case the question of nature of property in hands of sons on death of their father had arisen for purposes of assessment of estate duty. in pritam singhs case the property in the hands of the sons was held to be coparcenary property and only 1/3rd of property belonging to deceased father was considered eligible for estate duty. therefore, there was no question of alienation in pritam singhs case. - 11. the counsel for the revision-petitioner, submitted that the prosecution miserably failed to prove that it was the accused, who was driving the vehicle, at the relevant time, with which the accident took place. he further submitted that the identification of the accused for the first time, in the court, in the absence of exceptional circumstances, to the contrary, could not be said to be sufficient, to connect him, with the instant case. no test identification parade, was held by the investigating officer, during the, course of investigation, to pin-point the identity of the accused as the driver of the vehicle, which met with an accident, leading to the death of manohar singh, for the reasons best known to him. state of bihar 2002(4) rcr (criminal) 314 :air 2002 sc 3325 (supreme court), the apex court after analyzing the law on the point of identification, held that, if an accused is well known to the prosecution witnesses earlier, no test identification parade was called for; that ordinarily identification of the accused by a witness for the first time, in the court, should not form the basis of conviction the same being from its very nature inherently of a weak character, unless it is corroborated by his previous identification, in the test identification parade, and that ordinarily if an accused is not named in the first information report, his identification by a witness, in the court, should not be relied upon specially when he did not disclose the name of the accused before the police. in the instant case, as stated above not only that the prosecution miserably failed to prove the identity of the accused as the driver of the vehicle, with which the accident took place, leading to the death of manohar singh, but he (accused) also examined the defence witnesses, in the name of jaswant rai, dw-1, and garib nath, dw-2. jaswant rai, dw-1, stated that one rajinder singh, who had come from usa, was driving the maruti van bearing registration no. the submission of the counsel for the respondent, being without merit, must fail and the same stands rejected.ordersham sunder, j.1. this revision-petition is directed against the judgment dated 04.09.2001, rendered by the court of additional sessions judge, chandigarh, vide which it dismissed the appeal against the judgment of conviction and the order of sentence dated 02.12.1998 rendered by the court of chief judicial magistrate, chandigarh, convicting the accused for the offence, punishable under sections 279 and 304-a of the indian penal code and awarding sentence to him, for various terms of imprisonment.2. the facts, in brief, are that on 14.10.1991, manjit singh, resident of house no. 910, sector 43, chandigarh, was going to meet his friend manohar singh, near light point aroma hotel, chandigarh and when he along with naunihal singh bedi reached in front of shere punjab tent house, sco no. 2416 sector 22-c, chandigarh, a maruti van bearing registration no. ch-01-d/9023 was seen coming from the side of aroma light point, being driven in a rash and negligent manner, without blowing horn, by the accused. at that time, a maruti car bearing registration no. chk-198, was also seen coming from the same side. the driver of the aforesaid van attempted to overtake the car, in question. in that process, the van came to the right side of the road, and hit the scooter bearing registration no. cht-4808, which was coming from sector 35, chandigarh, being ridden by manohar singh, the pillion rider whereof was amandeep singh. as a result of the accident, the rider and the pillion rider fell down on the pavement and sustained injuries. manohar singh became unconscious at the spot. at that time, many persons gathered at the spot. in the meanwhile, the police also reached there. ultimately manohar singh died.3. manjit singh, made a statement before the police, on the basis whereof, the fir was registered. the statements of the witnesses were recorded. the accused was arrested. after the completion of investigation, the accused was challaned.4. on his appearance, in the court, the accused was supplied the copies of documents, relied upon by the prosecution. charge under sections 279, and 304-a ipc, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.5. the prosecution, in support of its case, examined dr. a.p. garg, (pw-1), who conducted post mortem, on the dead-body of manohar singh, deceased, subhash mehta, assistant sub inspector, (pw-2),who mechanically tested the scooter and gave his report, parvinder kumar, clerk, estate office, (pw-3), who proved the licence of the accused, naunihal singh, eye-witness, (pw-3), who could not identify the accused, as the driver of the vehicle at the relevant time, parvesh kumar, clerk, (pw-5), who proved that maruti van, in question, was registered in the name of shashi kant, resident of h. no. 3177, sector 21 -d, chandigarh, sarwan singh, sub inspector, (pw-6), who conducted the investigation, ranbir singh, constable, (pw-7), who took the photographs of the spot, g.n. sharma, (pw-8), who stated that hartej singh, accused, was never employed as driver of maruti van no. ch-01-d/9023, manjeet singh, an eye witness, (pw-9), who deposed with regard to the accident, anand parkash, technical assistant, anatomy department, pgi, chandigarh, (pw-10), who proved application ex.ph, for conducting the post-mortem examination, on the dead body. thereafter, the assistant public prosecutor for the state, closed the prosecution evidence.6. the statement of the accused, under section 313 of the code of criminal procedure, was recorded. he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. he stated that he went to the police station, to get the vehicle, bearing registration no. ch-01-d-9023, on superdari along with its owner. it was further stated by him that the officer-in-charge of the police post took him into custody, as the real culprit had gone to usa, after committing the offence. he further stated that it was he (actual culprit), who mentioned his name as tejinder singh whereas, his actual name was rajinder singh.6-a. in his defence, the accused examined jaswant rai, dw1, garib nath, dw-2 and swaran singh, dw-3. thereafter, the accused closed the defence evidence.7. after hearing the counsel for the parties, and on going through the record, the trial court convicted and sentenced the accused, as stated above.8. feeling aggrieved, against the judgment of the trial court, an appeal was preferred by the accused/appellant, which was dismissed vide order dated 04.09.2001, by the court of the additional sessions judge, chandigarh.9. still dissatisfied, the instant revision petition was filed by the revision-petitioner.10. i have heard the counsel for the parties, and have gone through and perused the evidence, and record of the case, carefully.11. the counsel for the revision-petitioner, submitted that the prosecution miserably failed to prove that it was the accused, who was driving the vehicle, at the relevant time, with which the accident took place. he further submitted that since the identity of the accused, as the perpetrator of crime was not proved, he was not connected with the instant case. he further submitted that the findings of the courts below, to the effect, that the accused was driving the vehicle, at the time of the alleged accident leading to the death of manohar singh, are perverse and illegal. he further submitted that the identification of the accused for the first time, in the court, in the absence of exceptional circumstances, to the contrary, could not be said to be sufficient, to connect him, with the instant case. he, thus, submitted that the judgments of the courts below were liable to be set aside.12. on the other hand, the counsel for the respondent, submitted that the identity of the accused, as driver of the vehicle, in question, with which the accident took place, leading to the death of manohar singh, was duly proved from the statement of manjit singh, complainant. he further submitted that it was not that manjit singh had only a glimpse of the accused but he interacted with him, after the accident, for sufficient time, and, as such, there was no difficulty for him to properly identify him. he further submitted that, no test identification parade was held, during the course of investigation, as the same was not needed. he further submitted that, in case, the accused disputed his identity, he should have moved an application, before the court concerned, and claim identification parade. he further submitted that the courts below were right, in coming to the conclusion, that it was the accused, who was driving the vehicle, with which the accident took place, leading to the death of manohar singh. he further submitted that the courts below were, thus, rightly convicted and sentenced him.13. it is settled principle of law, that while exercising the revisional jurisdiction, the court cannot re-evaluate and re-appreciate the evidence, produced by the prosecution, until and unless it comes to the conclusion that the findings recorded by the courts below, are perverse, illegal or erroneous, on account of misreading of evidence. in the instant case, as would be discussed hereinafter, the findings recorded by the courts below that the accused, was the driver of the vehicle, with which the accident took place, leading to the death of manohar singh, are perverse and illegal. admittedly, the accused was not known to manjit singh, complainant, earlier. he was, thus, a stranger to him. manjeet singh, complainant, (pw-9), during the course of cross-examination, stated that the investigating officer arrived at the spot, within 5 to 10 minutes of the accident. he further stated during the course of cross-examination, that the driver of the vehicle was apprehended, by the people, who gathered at the spot, but he managed to run away, before the arrival of the police. if the driver of the vehicle, managed to run away, before the arrival of the police at the spot, within 5 to 10 minutes, the question of his interacting with manjit singh, for sufficient time, after the accident, at the spot, did not at all arise. under these circumstances, it could be said that manjit singh was only having a glimpse of the driver of the vehicle, and, therefore, he could not properly identify him. had the accused been arrested, at the spot, and had he stayed there, for a sufficient longer period, it would have been said that manjit singh, did not only have a fleeting glimpse of him, but had an opportunity to see him, for a longer period and, thus, was able to identify him. from the cross-examination of manjit singh, complainant, (pw-9), it was, thus, proved that he could not identify the driver of the vehicle, with which the accident took place. naunihal singh, (pw-4), who claimed that he was present at the spot, could not identify the accused, as the driver of the vehicle at the relevant time. even the name of the accused was not mentioned, in the first information report. he was arrested after about one month of the accident. amandeep, was the pillion rider and nephew of the deceased, and, as such, an eye-witness. even as per the prosecution story, maruti van struck against another car, which was being driven by jagdish chand. both these witnesses, could be said to be material, but they were not examined. as such, an adverse inference, under section 114(g) of the evidence act, 1872, could be drawn, that had they been examined, they would not have supported the case of the prosecution. no test identification parade, was held by the investigating officer, during the, course of investigation, to pin-point the identity of the accused as the driver of the vehicle, which met with an accident, leading to the death of manohar singh, for the reasons best known to him. under these circumstances, the identification of the accused, as the driver of the vehicle, for the first time in the court, after six years by manjit singh, could not be said to be sufficient, to connect him with the present case. in dana yadav @ dahu and ors. v. state of bihar : 2002(4) rcr (criminal) 314 : air 2002 sc 3325 (supreme court), the apex court after analyzing the law on the point of identification, held that, if an accused is well known to the prosecution witnesses earlier, no test identification parade was called for; in case where the accused was known to the prosecution witnesses earlier but the said fact was denied by him, and if he challenges his identity, by the prosecution witnesses, by filing a petition for holding test identification parade, the court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide; that ordinarily identification of the accused by a witness for the first time, in the court, should not form the basis of conviction the same being from its very nature inherently of a weak character, unless it is corroborated by his previous identification, in the test identification parade, and that ordinarily if an accused is not named in the first information report, his identification by a witness, in the court, should not be relied upon specially when he did not disclose the name of the accused before the police. in the instant case, as stated above not only that the prosecution miserably failed to prove the identity of the accused as the driver of the vehicle, with which the accident took place, leading to the death of manohar singh, but he (accused) also examined the defence witnesses, in the name of jaswant rai, dw-1, and garib nath, dw-2. jaswant rai, dw-1, stated that one rajinder singh, who had come from usa, was driving the maruti van bearing registration no. ch-01-d/9023, with which the accident took place. he further stated that rajinder singh, who was driving the vehicle, at the time of accident, had gone to united states. garib nath, dw-2 also stated that jaswant rai, dw-1 and rajinder singh told him that the accident took place near aroma light point when said rajinder singh was driving the vehicle, in question. so, from whatever angle, it may be seen, it can be said that the identity of the accused, as the driver of the vehicle, was not proved. the findings of the courts below, that it was the accused, who was driving the vehicle, at the relevant time, resulting into accident, and leading to the death of manohar singh, are perverse. the findings of guilt recorded by the courts below, are thus, liable to be set aside.14. the counsel for the respondent, however, placed reliance on dastagir sab and anr. v. state of karnataka 2004 (2) rcr (criminal) 601 : air 2004 sc 2884 and dana yadav alias dahu and ors.'s case (supra), in support of his contention, that the identity of the accused as the driver of the vehicle, was duly proved. in dastagir sab and anr.'s case (supra), prior to rape, the prosecutrix saw the accused three times. test identification parade was not held. in these circumstances, it was held that the identification of the accused, by the prosecutrix, in the court was sufficient to connect him with the case. in dana yadav alias dahu and ors.'s case (supra), no doubt, it was held that the test identification was not necessary if the accused was named, in the fir, and was known to the witnesses earlier. in the instant case, as stated above, the accused was a stranger to manjit singh. no evidence was produced that he was known to him earlier. the name of the accused was not mentioned in the first information report. he was arrested after one month of the accident. manjit singh had only a glimpse of the driver of the vehicle. there was no interaction between manjit singh and the driver of the vehicle at the spot for a sufficient longer period. in these circumstances, the identification of the accused for the first time, after six years, in the court, in the absence of any test identification parade, during the course of investigation, could not be said to be sufficient to connect him with the present case. in this view of the matter, no help can be drawn, by the counsel for the respondent, therefrom. the submission of the counsel for the respondent, being without merit, must fail and the same stands rejected.15. no other point was urged by the counsel for the parties.16. for the reasons, recorded above, the revision-petition is accepted. the judgment of conviction and the order of sentence dated 02.12.1998, rendered by the trial court and the judgment dated 04.09.2001, rendered by the appellate court, affirming the judgment of the trial court, are set aside. if the petitioner is on bail, he shall stand discharged of his bail bonds. if, he is in custody, he shall be set at liberty, at once, if not required, in any other case.

Judgment:
ORDER

Sham Sunder, J.

1. This revision-petition is directed against the judgment dated 04.09.2001, rendered by the Court of Additional Sessions Judge, Chandigarh, vide which it dismissed the appeal against the judgment of conviction and the order of sentence dated 02.12.1998 rendered by the Court of Chief Judicial Magistrate, Chandigarh, convicting the accused for the offence, punishable under Sections 279 and 304-A of the Indian Penal Code and awarding sentence to him, for various terms of imprisonment.

2. The facts, in brief, are that on 14.10.1991, Manjit Singh, resident of House No. 910, Sector 43, Chandigarh, was going to meet his friend Manohar Singh, near light point Aroma Hotel, Chandigarh and when he along with Naunihal Singh Bedi reached in front of Shere Punjab Tent House, SCO No. 2416 Sector 22-C, Chandigarh, a Maruti Van bearing registration No. CH-01-D/9023 was seen coming from the side of Aroma light point, being driven in a rash and negligent manner, without blowing horn, by the accused. At that time, a maruti car bearing registration No. CHK-198, was also seen coming from the same side. The driver of the aforesaid van attempted to overtake the car, in question. In that process, the van came to the right side of the road, and hit the scooter bearing registration No. CHT-4808, which was coming from Sector 35, Chandigarh, being ridden by Manohar Singh, the pillion rider whereof was Amandeep Singh. As a result of the accident, the rider and the pillion rider fell down on the pavement and sustained injuries. Manohar Singh became unconscious at the spot. At that time, many persons gathered at the spot. In the meanwhile, the Police also reached there. Ultimately Manohar Singh died.

3. Manjit Singh, made a statement before the Police, on the basis whereof, the FIR was registered. The statements of the witnesses were recorded. The accused was arrested. After the completion of investigation, the accused was challaned.

4. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Sections 279, and 304-A IPC, was framed against the accused, to which he pleaded not guilty, and claimed judicial trial.

5. The prosecution, in support of its case, examined Dr. A.P. Garg, (PW-1), who conducted post mortem, on the dead-body of Manohar Singh, deceased, Subhash Mehta, Assistant Sub Inspector, (PW-2),who mechanically tested the scooter and gave his report, Parvinder Kumar, Clerk, Estate Office, (PW-3), who proved the licence of the accused, Naunihal Singh, eye-witness, (PW-3), who could not identify the accused, as the driver of the vehicle at the relevant time, Parvesh Kumar, Clerk, (PW-5), who proved that Maruti van, in question, was registered in the name of Shashi Kant, resident of H. No. 3177, Sector 21 -D, Chandigarh, Sarwan Singh, Sub Inspector, (PW-6), who conducted the investigation, Ranbir Singh, Constable, (PW-7), who took the photographs of the spot, G.N. Sharma, (PW-8), who stated that Hartej Singh, accused, was never employed as driver of maruti van No. CH-01-D/9023, Manjeet Singh, an eye witness, (PW-9), who deposed with regard to the accident, Anand Parkash, Technical Assistant, anatomy Department, PGI, Chandigarh, (PW-10), who proved application Ex.PH, for conducting the post-mortem examination, on the dead body. Thereafter, the Assistant Public Prosecutor for the State, closed the prosecution evidence.

6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He stated that he went to the Police Station, to get the vehicle, bearing registration No. CH-01-D-9023, on superdari along with its owner. It was further stated by him that the Officer-in-charge of the Police Post took him into custody, as the real culprit had gone to USA, after committing the offence. He further stated that it was he (actual culprit), who mentioned his name as Tejinder Singh whereas, his actual name was Rajinder Singh.

6-A. In his defence, the accused examined Jaswant Rai, DW1, Garib Nath, DW-2 and Swaran Singh, DW-3. Thereafter, the accused closed the defence evidence.

7. After hearing the Counsel for the parties, and on going through the record, the trial Court convicted and sentenced the accused, as stated above.

8. Feeling aggrieved, against the judgment of the trial Court, an appeal was preferred by the accused/appellant, which was dismissed vide order dated 04.09.2001, by the Court of the Additional Sessions Judge, Chandigarh.

9. Still dissatisfied, the instant revision petition was filed by the revision-petitioner.

10. I have heard the Counsel for the parties, and have gone through and perused the evidence, and record of the case, carefully.

11. The Counsel for the revision-petitioner, submitted that the prosecution miserably failed to prove that it was the accused, who was driving the vehicle, at the relevant time, with which the accident took place. He further submitted that since the identity of the accused, as the perpetrator of crime was not proved, he was not connected with the instant case. He further submitted that the findings of the Courts below, to the effect, that the accused was driving the vehicle, at the time of the alleged accident leading to the death of Manohar Singh, are perverse and illegal. He further submitted that the identification of the accused for the first time, in the Court, in the absence of exceptional circumstances, to the contrary, could not be said to be sufficient, to connect him, with the instant case. He, thus, submitted that the judgments of the Courts below were liable to be set aside.

12. On the other hand, the Counsel for the respondent, submitted that the identity of the accused, as driver of the vehicle, in question, with which the accident took place, leading to the death of Manohar Singh, was duly proved from the statement of Manjit Singh, complainant. He further submitted that it was not that Manjit Singh had only a glimpse of the accused but he interacted with him, after the accident, for sufficient time, and, as such, there was no difficulty for him to properly identify him. He further submitted that, no test identification parade was held, during the course of investigation, as the same was not needed. He further submitted that, in case, the accused disputed his identity, he should have moved an application, before the Court concerned, and claim identification parade. He further submitted that the Courts below were right, in coming to the conclusion, that it was the accused, who was driving the vehicle, with which the accident took place, leading to the death of Manohar Singh. He further submitted that the Courts below were, thus, rightly convicted and sentenced him.

13. It is settled principle of law, that while exercising the revisional jurisdiction, the Court cannot re-evaluate and re-appreciate the evidence, produced by the prosecution, until and unless it comes to the conclusion that the findings recorded by the Courts below, are perverse, illegal or erroneous, on account of misreading of evidence. In the instant case, as would be discussed hereinafter, the findings recorded by the Courts below that the accused, was the driver of the vehicle, with which the accident took place, leading to the death of Manohar Singh, are perverse and illegal. Admittedly, the accused was not known to Manjit Singh, complainant, earlier. He was, thus, a stranger to him. Manjeet Singh, complainant, (PW-9), during the course of cross-examination, stated that the Investigating Officer arrived at the spot, within 5 to 10 minutes of the accident. He further stated during the course of cross-examination, that the driver of the vehicle was apprehended, by the people, who gathered at the spot, but he managed to run away, before the arrival of the police. If the driver of the vehicle, managed to run away, before the arrival of the Police at the spot, within 5 to 10 minutes, the question of his interacting with Manjit Singh, for sufficient time, after the accident, at the spot, did not at all arise. Under these circumstances, it could be said that Manjit Singh was only having a glimpse of the driver of the vehicle, and, therefore, he could not properly identify him. Had the accused been arrested, at the spot, and had he stayed there, for a sufficient longer period, it would have been said that Manjit Singh, did not only have a fleeting glimpse of him, but had an opportunity to see him, for a longer period and, thus, was able to identify him. From the cross-examination of Manjit Singh, complainant, (PW-9), it was, thus, proved that he could not identify the driver of the vehicle, with which the accident took place. Naunihal Singh, (PW-4), who claimed that he was present at the spot, could not identify the accused, as the driver of the vehicle at the relevant time. Even the name of the accused was not mentioned, in the First Information Report. He was arrested after about one month of the accident. Amandeep, was the pillion rider and nephew of the deceased, and, as such, an eye-witness. Even as per the prosecution story, Maruti van struck against another car, which was being driven by Jagdish Chand. Both these witnesses, could be said to be material, but they were not examined. As such, an adverse inference, under Section 114(g) of the Evidence Act, 1872, could be drawn, that had they been examined, they would not have supported the case of the prosecution. No test identification parade, was held by the Investigating Officer, during the, course of investigation, to pin-point the identity of the accused as the driver of the Vehicle, which met with an accident, leading to the death of Manohar Singh, for the reasons best known to him. Under these circumstances, the identification of the accused, as the driver of the vehicle, for the first time in the Court, after six years by Manjit Singh, could not be said to be sufficient, to connect him with the present case. In Dana Yadav @ Dahu and Ors. v. State of Bihar : 2002(4) RCR (Criminal) 314 : AIR 2002 SC 3325 (Supreme Court), the Apex Court after analyzing the law on the point of identification, held that, if an accused is well known to the prosecution witnesses earlier, no test identification parade was called for; in case where the accused was known to the prosecution witnesses earlier but the said fact was denied by him, and if he challenges his identity, by the prosecution witnesses, by filing a petition for holding test identification parade, the Court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is bona fide; that ordinarily identification of the accused by a witness for the first time, in the Court, should not form the basis of conviction the same being from its very nature inherently of a weak character, unless it is corroborated by his previous identification, in the test identification parade, and that ordinarily if an accused is not named in the First Information Report, his identification by a witness, in the Court, should not be relied upon specially when he did not disclose the name of the accused before the Police. In the instant case, as stated above not only that the prosecution miserably failed to prove the identity of the accused as the driver of the vehicle, with which the accident took place, leading to the death of Manohar Singh, but he (accused) also examined the defence witnesses, in the name of Jaswant Rai, DW-1, and Garib Nath, DW-2. Jaswant Rai, DW-1, stated that one Rajinder Singh, who had come from USA, was driving the Maruti van bearing registration No. CH-01-D/9023, with which the accident took place. He further stated that Rajinder Singh, who was driving the vehicle, at the time of accident, had gone to United States. Garib Nath, DW-2 also stated that Jaswant Rai, DW-1 and Rajinder Singh told him that the accident took place near Aroma Light point when said Rajinder Singh was driving the vehicle, in question. So, from whatever angle, it may be seen, it can be said that the identity of the accused, as the driver of the vehicle, was not proved. The findings of the Courts below, that it was the accused, who was driving the vehicle, at the relevant time, resulting into accident, and leading to the death of Manohar Singh, are perverse. The findings of guilt recorded by the Courts below, are thus, liable to be set aside.

14. The Counsel for the respondent, however, placed reliance on Dastagir Sab and Anr. v. State of Karnataka 2004 (2) RCR (Criminal) 601 : AIR 2004 SC 2884 and Dana Yadav alias Dahu and Ors.'s case (supra), in support of his contention, that the identity of the accused as the driver of the vehicle, was duly proved. In Dastagir Sab and Anr.'s case (supra), prior to rape, the prosecutrix saw the accused three times. Test identification parade was not held. In these circumstances, it was held that the identification of the accused, by the prosecutrix, in the Court was sufficient to connect him with the case. In Dana Yadav alias Dahu and Ors.'s case (supra), no doubt, it was held that the test identification was not necessary if the accused was named, in the FIR, and was known to the witnesses earlier. In the instant case, as stated above, the accused was a stranger to Manjit Singh. No evidence was produced that he was known to him earlier. The name of the accused was not mentioned in the First Information Report. He was arrested after one month of the accident. Manjit Singh had only a glimpse of the driver of the vehicle. There was no interaction between Manjit Singh and the driver of the vehicle at the spot for a sufficient longer period. In these circumstances, the identification of the accused for the first time, after six years, in the Court, in the absence of any test identification parade, during the course of investigation, could not be said to be sufficient to connect him with the present case. In this view of the matter, no help can be drawn, by the Counsel for the respondent, therefrom. The submission of the Counsel for the respondent, being without merit, must fail and the same stands rejected.

15. No other point was urged by the Counsel for the parties.

16. For the reasons, recorded above, the revision-petition is accepted. The judgment of conviction and the order of sentence dated 02.12.1998, rendered by the trial Court and the judgment dated 04.09.2001, rendered by the Appellate Court, affirming the judgment of the trial Court, are set aside. If the petitioner is on bail, he shall stand discharged of his bail bonds. If, he is in custody, he shall be set at liberty, at once, if not required, in any other case.