Can the mere statements of eye witnesses be used as a ground for punishing the accused?

Falgu Mukati | Pravin Gandhi College of Law | 14th February 2020

State of Maharashtra vs Pappugulam Mustak Ali Khan, Criminal Appeal NO.901 OF 2002

Matter

In the given case the accused was charged under Section 304-A (Causing Death by negligence), Section 337 (Causing hurt by act endangering life or personal safety of other), Section 338 (Causing grievous hurt by act endangering life or personal safety of others) of Indian Penal Code, and Section 184 (Driving Dangerously) and Section 89/112 of Motor Vehicles Act, 1988. Mehul Kothari was run over by a truck bearing registration no. MCU 372, as a result he (Mehul Kothari) died on the spot. Mr Mukesh Kothari (uncle of Mehul) filed a FIR against the truck driver. PSI Mr Mohite immediately went to the spot of accident and took over the investigation. He prepared a panchnama of the dead body of Mehul. Statements of the witnesses were recorded. Dhawal Kothari, Deepak Yashwant Raut, and Juber Khan were the witnesses who were present at the time the incident took place. Thus, based on the inquiry made and the investigation the accused was arrested on 26/10/1995, at about 2 p.m.

Appellant’s Contention

• It produced witnesses who were also the eye witnesses namely Dhawal Kothari, Deepak Yashwant Raut, Juber Khan. 
• It stated that the death of Mehul Kothari was caused by rash and negligent driving. 
• It submitted that the only subject matter of this appeal is the conclusion by the trial Court that the identity of the accused as a person who was driving the truck at the time of incident has not been established. 
• Test identification parade is done only for the satisfaction of the prosecution that the investigation was moving in the right direction. 

Respondent’s Contention

• Mukesh Kothari (uncle of the deceased) was not an eye witness, yet strangely he identified the accused in the court. 
• Eye witness, PW-2, Dhawal Kothari clearly stated that he had not seen the driver of the truck as he was in shock. 
• Of the two eye witnesses Deepak Raut and Juber Khan, Juber Khan was not examined. 
• The prosecution has failed to provide with substantial evidence for the identification of the accused. 
• The accused was arrested on the same day without even examining the PW-5 (i.e. Deepak Raut)
• No test identification parade was conducted for PW-5 (i.e. Deepak Raut, the rickshaw driver). The Supreme Court in State vs V.C. Shukla held that, ‘identification of a person by witness for the first time in Court without being tested by prior test identification parade is valueless.’ If no test identification parade is held, then it will be wholly unsafe to rely on his bare testimony regarding identification of the accused for the first time in the court. 
• The evidence of PW-4, Rajendra Mohite, the investigating officer, is falsified because the need to inquire the owner of the truck can arise only after FIR has been lodged. However, the description given of the accused raises certain suspicion. There were high chances that either the time of filing of the FIR was wrongly written or the description/identity of the accused was inserted later. 
• The RTO stated that the name of the owner is not available. If the RTO did not have the name of the owner, then with whom did the Investigating Officer inquired is itself a mystery. 
• The Investigating officer did not ask the physical description of the truck driver to any of the witnesses. How then did the officer came to know the accused?

Held 

• Since the accused was acquitted there is double presumption in favour of the accused. Firstly, the presumption of innocence available to accused under the fundamental principle of criminal jurisprudence. Secondly, accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the Trial Court.
• The Trial Court has observed that the prosecution has failed to prove its case
• In the circumstances, in my view, the opinion of the Trial Court cannot be held to be illegal or improper or contrary to law. The order of acquittal, in my view, cannot be interfered with.