Delhi District Court
State vs . Dinesh Kumar Fir No. 153/2011 on 20 August, 2019
State vs. Dinesh Kumar FIR No. 153/2011
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
State vs. Dinesh Kumar
FIR No. 153/2011
U/sec. 279/338/338 IPC
PS: Mundka
Date of institution of the case: 04.01.2012
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 20.08.2019
Unique I. D. No. 66288/2016
JUDGMENT
a) Date of commission of the offence : 22.08.2011
b) Name of the complainant : Shri Om Prakash
c) Name of the accused and his parentage : Dinesh Kumar,
S/o Shri Ram Chander
R/o Village & PO Nehra
PS Jatheri, District Sonipat
Haryana.
d) Offence complained of : Sec. 279/333/338 IPC
e) Offence charged of : Sec. 279/338/338 IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 20.08.2019
i) Brief reasons for the just decision of the case:
Page No.1 of 12
State vs. Dinesh Kumar FIR No. 153/2011
Succinctly stated, the facts of the prosecution case are that accused Dinesh Kumar was driving a DTC bus number DL-1PB-6563 on the fateful day i.e. 22.08.2011 at high speed. The passengers travelling in the bus requested him not to drive the bus in rash and negligent manner but their request had no effect and the driver, despite the warning by the passengers, continued to drive the bus at high speed and in rash and negligent manner. As a result of which, driver lost control over the vehicle and it dashed against a Metro Pillar in the course of which two (2) passengers sustained grievous injuries while twenty three (23) passengers sustained simple injuries. Consequently, on the complaint of one passenger namely Om Prakash, present FIR was registered against the accused Dinesh Kumar at police station Mundka and investigation was undertaken.
After completion of the investigation, charge-sheet under sections 279/337/338 IPC was filed against accused/driver Dinesh Kumar. Consequently, he was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Thereafter, charge under sections 279/337/338 IPC was framed against the accused Dinesh Kumar to which he pleaded not guilty and claimed trial.
Prosecution Evidence As per prosecution the DTC bus dashed against the Metro Pillar as a result of which two (2) passengers sustained grievous injuries while twenty three (23) passengers sustained simple injuries. Alongwith the challan, police filed a list of witnesses wherein the names of Om Prakash, Savita, Praveen Kumar, Prithavi Singh, Omwati, Dayawati, Rakesh, Ram Mahesh Pal and Mahender Singh were cited being eye-witnesses/injured. However, names of rest injured persons were not mentioned in the list of witnesses though their Medico Legal Reports were filed along with the challan. Therefore, to arrive at the just decision of the case, summons were directed to be issued to all the injured persons.
Out of twenty five injured persons, prosecution examined only eight (8). One injured namely Dayawati could not be examined on account of her death while Page No.2 of 12 State vs. Dinesh Kumar FIR No. 153/2011 rest injured persons could not be examined as they were not traceable as per the reports submitted by the office of worthy DCP. Therefore, considering the reports on the summons, they were dropped.
Following persons were examined by the prosecution to prove its case. PW1/Parveen Kumar was the Conductor of the bus. He testified that on 22.08.2011 ata about 11:00-11:15 a.m., the bus started from Narela and when it reached at Red Light before Mundka Metro Station, he noticed that accused was looking disturbed and suddenly bus met with an accident. Bus rammed into a metro pillar. PCR was called and the passengers were removed to hospital. Since the witness resiled from his previous statement purportedly given to the Investigating Officer during the course of investigation, he was cross-examined by the learned APP for the State with the permission of the court and confronted him with his previous statement Mark X1.
He during his cross-examination by the learned APP for the State denied the suggestion that accused was driving the bus at high speed in rash and negligent manner or that he had asked the driver to drive the bus properly or that the accident was caused due to rash and negligent driving of the bus by the accused or that he was deposing falsely. He was confronted with his previous statement Mark X1, however, he did not offer any explanation for the contradictions in his testimony and previous statement.
PW2/Yashpal Malik was the Mechanical Inspector, who mechanically inspected the offending bus. He proved his report as Ex.PW2/A. PW3/Mahender was also one of the injured. He testified that about 5-6 years ago, he was travelling in a DTC bus having route number 708. At about 12:30 p.m., when the bus reached at Rani Khera Mod, the bus rammed into a metro pillar, as a result of which he and other passengers of the bus sustained injuries. Police officials came at the spot and the injured passengers were removed to hospital.
Page No.3 of 12State vs. Dinesh Kumar FIR No. 153/2011 He stated that he does not know how the accident happened. He stated that accused was not driving the bus in rash and negligent manner. However, he correctly identified the accused as the driver of the offending bus.
This witness was also cross-examined by the learned APP for the State with the leave of the court. He during his cross-examination by the learned APP for the State stated that he does not remember if the date of accident was 22.08.2011. He denied having told the police that driver was driving the bus in rash and negligent manner or that they asked the driver not to drive the bus in rash and negligent manner but the driver continued to drive the bud in same manner. He was confronted with his previous statement Mark X wherein all these facts were mentioned but the witness did not offer any explanation for the contradictions in his previous statement Mark X and his statement made on oath. However, he denied the suggestion that he was deposing falsely as he has been won over by the accused.
PW4/Om Prakash was the complainant, who had set the criminal law into motion. He testified that on 22.08.2011 at about 11 a.m., he boarded a DTC bus having route number 708 from Kanjhawala to Nangloi. At about 12:00 noon when the bus reached at Mundka, it hit a metro pillar, as a result of which he and other passengers sustained bodily injury. PCR van reached there and removed the injured to SGM hospital.
He further stated that the driver was driving the bus at a normal speed. He feigned ignorance as to how the accident occurred. However, he correctly identified the accused as the driver of the bus.
As his evidence was in stark contrast to the facts he had disclosed in his statement to the police, the State successfully applied to have him declared a hostile witness and he was then subjected to a full and effective cross-examination on the statement by the learned APP.
He during his cross-examination by the learned prosecutor stated that he cannot tell if the registration number of the bus was DL-1PB-6563. He denied having told the Page No.4 of 12 State vs. Dinesh Kumar FIR No. 153/2011 police that accused was driving the bus in rash and negligent manner and as a result, he lost control over the vehicle and the bus hit with a metro pillar. He was confronted with his previous statement; however, he did not offer any explanation. He denied that he was deposing falsely as he has been won over by the accused or that he has settled the matter.
PW5/Savita was also one of the passengers who were travelling in the bus at the time of accident. She testified that about 10 years ago, she boarded a DTC bus, route no. 708, from Narela. At about 12:00 noon, when the bus reached Ghevra Mod, it rammed into a Metro pillar due to which she and other passengers sustained injuries. Injured persons were taken to SGM hospital. She stated that accused was driving the bus at normal speed. She stated that she cannot tell how accident happened. She stated that public persons were saying the accident was caused due to break failure.
She too was cross-examined by the learned APP for the State with the leave of court. She during his cross-examination by the learned APP for the State stated that she cannot tell if the registration number of the bus was DL-1PB-6563. She denied having told the police that accused was driving the bus in rash and negligent manner due to which he lost control over the bus and bus rammed into the Metro pillar or that passengers had asked the driver to drive the bus in proper manner but accused did not pay any heed to their requests. She was confronted with her previous statement Mark X wherein all these facts were recorded, however, she did not offer any explanation for the contradictions. She denied the suggestion that she was deposing falsely as she has settled the matter with the accused or that she has been won over by the accused.
PW6/Ram Mahesh Pal was also one of the passengers who were travelling in the bus at the time of accident. He testified that in the year 2011, he boarded a DTC bus, route no. 708, from Narela to Bawana. At about 10:00-11:00 a.m., when they reached near Mundka Metro Station, the bus rammed into a Metro pillar due to which he sustained minor injury.
Page No.5 of 12State vs. Dinesh Kumar FIR No. 153/2011 He stated that public persons told that accident happened due to break failure. He stated that accused was driving the bus at a normal speed. He too was cross-examined by the learned APP for the State with the leave of court. He during his cross-examination by the learned APP for the State stated that he cannot tell if the registration number of the bus was DL-1PB-6563. He denied having told the police that accused was driving the bus in rash and negligent manner due to which he lost control over the bus and bus rammed into the Metro pillar. He was confronted with his previous statement Mark X-1 wherein all these facts were recorded, however, he did not offer any explanation for the contradictions. He denied the suggestion that he was deposing falsely as he has been won over by the accused.
PW7/Omwati was also one of the passengers who were travelling in the bus at the time of accident. She testified that in the month of November, 2011, she was coming from Narela and going to Nangloi by a DTC bus having route no. 708. At about 11:00 a.m., when the bus reached at Rohtak Road, Mundka, suddenly bus turned and rammed into a Metro pillar due to which she and other passengers sustained injuries. She stated that accident was caused due break failure. Injured persons were taken to SGM hospital.
She stated that the accident was not caused due to negligent driving.
She too was cross-examined by the learned APP for the State with the leave of court. She during her cross-examination by the learned APP for the State stated that she cannot tell if the date of accident was 22.08.2011 or that registration number of the bus was DL-1PB-6563. She denied having told the police that accused was driving the bus in rash and negligent manner or that the passengers asked him to drive the bus properly but in vain. She was confronted with her previous statement Mark X wherein these facts were recorded.
She also denied the suggestion that the bus rammed into the metro pillar due to rash and negligent driving of the bus by its driver or that she was deposing falsely as she has been won over by the accused.
Page No.6 of 12State vs. Dinesh Kumar FIR No. 153/2011 PW8/Baiju was also one of the passengers who were travelling in the bus at the time of accident. He testified that in the year 2011, he along with his wife and minor daughter aged about 1 ½ years, was coming from Kanjhawala and going to Punjabi Bagh in a DTC bus. At about 01:00 p.m., when the bus reached at Rohtak Road, Mundka, suddenly bus turned and rammed into a Metro pillar due to which he, his wife and daughter sustained injuries. He stated that he came to know that the accident was caused due break failure. Injured persons were taken to SGM hospital.
He stated that he cannot tell as to who was driving the bus and how the accident happened.
He too was cross-examined by the learned APP for the State with the leave of court. He during his cross-examination by the learned APP for the State stated that he cannot tell if the date of accident was 22.08.2011 or that registration number of the bus was DL-1PB-6563. He denied the suggestion that accused was driving the bus in rash and negligent manner or that the passengers asked him to drive the bus properly but in vain or that the bus rammed into the metro pillar due to rash and negligent driving of the bus by its driver or that accused was driving the bus. He voluntarily stated that he did not see the driver of bus. He stated that he cannot identify the bus. He denied the suggestion that he was deposing falsely as he has been won over by the accused.
PW9/Fula Devi was the wife of PW8/Baiju. She testified that in the year 2011, she along with her husband and minor daughter aged about 1 ½ years namely Annu, was coming from Kanjhawala and going to Punjabi Bagh in a DTC bus. At about 01:00 p.m., when the bus reached at Rohtak Road, Mundka, suddenly bus turned and rammed into a Metro pillar due to which she, her husband, her daughter and passengers sustained injuries. She stated that she came to know that the accident was caused due break failure. Injured persons were taken to SGM hospital. She stated that accused was driving the said bus.
She stated that she cannot tell as to how the accident happened.
Page No.7 of 12State vs. Dinesh Kumar FIR No. 153/2011 She too was cross-examined by the learned APP for the State with the leave of court. She during her cross-examination by the learned APP for the State stated that she cannot tell if the date of accident was 22.08.2011. She denied the suggestion that accused was driving the bus in rash and negligent manner or that the passengers asked him to drive the bus properly but in vain or that the bus rammed into the metro pillar due to rash and negligent driving of the bus by its driver or that accused was driving the bus. She stated that she cannot identify the bus. She denied the suggestion that she was deposing falsely as she has been won over by the accused.
PW10/Monu (wrongly typed as PW9) was also one of the passengers who were traveling in the bus at the time of accident. He stated that in the year 2011, he boarded a DTC bus for Narela. At about 02:00 p.m., when the bus reached near Rani Kheda Mod, it rammed into a Metro Pillar as a result of which he sustained injury. He got down from the bus. He stated that he does not know how the accident happened. He stated that accused was driving the bus at a normal speed.
He too was cross-examined by the learned APP for the State with the leave of the court. He during his cross-examination by the learned APP for the State stated that he cannot tell if the date of accident was 22.08.2011 or that the registration number of the bus was DL-1LP-6563. He denied the suggestion that accused was driving the bus in rash and negligent manner. He denied the suggestion that he was deposing falsely regarding the manner of driving as he has been won over by the accused.
PW11 (wrongly typed as PW10)/Jai Singh was the TI (C&A), DTC, Narela. He proved the Duty Slip of accused as PW10/A. PW12/ASI Subhash Kumar (wrongly typed as PW11) was the Duty officer, who recorded the FIR/Ex.PW2/B. PW13/Head Constable Vishram Singh (wrongly typed as PW12) had accompanied the IO during investigation.
Page No.8 of 12State vs. Dinesh Kumar FIR No. 153/2011 Since all the injured persons including the complainant turned hostile, PE was closed by the order of the court as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature and the request of the learned APP for the State to examine remaining witnesses was declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that "...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
Since there was no incriminating circumstance against the accused Dinesh Kumar, recording of his statement under section 313 of the Code was also dispensed with.
I have heard the learned counsel for the accused and the learned APP for the State and have perused the records very carefully.
Arguments It is submitted by the learned defence counsel that as many as seventeen injured persons could not be examined by the prosecution despite numerous opportunities while eight injured who were examined by the prosecution to support its case have turned hostile and have not stated anything incriminating against the accused. He had taken this court through the entire evidence and submitted that the prosecution version regarding the incident is highly doubtful since the correctness of the statements made by the alleged eye witnesses/injured to the police is itself doubtful because they themselves have disowned it.
He further submitted that despite cross-examination by the learned APP for the State, nothing could be elicited from them which could indicate complicity of the Page No.9 of 12 State vs. Dinesh Kumar FIR No. 153/2011 accused in the crime. Thus, according to him, prosecution has miserably failed to establish the guilt of the accused as well as the ingredients of offence alleged beyond reasonable doubt.
He, therefore, prayed that the accused Dinesh Kumar may be acquitted of the charge leveled against him.
Decision and brief reasons for the same All persons are presumed to be innocent and no person can be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, sent behind the bars pending investigation or trial or charged for an offence gives rise to no inference of his guilt at trial. The law does not require an accused to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the accused, unless the court is satisfied beyond a reasonable doubt of accused's guilt on appreciation of prosecution evidence.
Now, I will decide if the testimony proffered by the prosecution was credible and reliable?
In the case in hand, prosecution has cited as many as eighteen (18) witnesses in the list of witnesses annexed with the charge-sheet. Out of these eighteen witnesses, PW4/Om Prakash was the complainant as well as the victim, PW/Savita, PW/Parveen Kumar, PW/Prithvi Singh, PW/Omwati, PW/Dayawati, PW/Rakesh, PW/Ram Mahesh and PW/Mahinder Singh were the injured while rest witnesses are formal in nature and the guilt of the accused cannot be proved from their testimonies, inasmuch as, the alleged incident was neither committed in their presence nor it is the case of the prosecution. Though injured persons namely Monu, Fula Devi, her husband namely Baiju were not cited as witnesses in the list filed along with the challan, but to arrive at the just decision of the case, these persons were also examined by the court.
The criminal law was set into motion by one of the passengers namely Om Prakash. Thus, the entire prosecution case rests upon the testimony of the Page No.10 of 12 State vs. Dinesh Kumar FIR No. 153/2011 complainant/victim/Ex.PW4/A. In other words, it can be said that the entire edifice of the prosecution is the statement of complainant/Ex.PW4/A. In the said complaint/Ex.PW4/A, the victim/complainant has narrated as to how the accident happened due to rash and negligent driving of the vehicle by its driver namely Dinesh Kumar but in his statement on oath before the court, he took a somersault and denied the prosecution version and stated that accused was driving the bus at normal speed. He feigned ignorance as to how accident happened.
PW3, PW5 to PW10 are also not reliable or trustworthy witnesses. The version disclosed by them as a witness in the court is quite different from what they had stated in their statements recorded in the course of investigation under section 161 of the Code. During their examination-in-chief before the court, they disowned their earlier versions given to the police. They too were cross-examined by the learned APP for the State with the permission of the court but they had not stated anything incriminating against the accused/driver Dinesh Kumar. While rest injured persons could not be examined despite availing numerous opportunities. As per the report received on the summons, they are not traceable. Even the office of worthy DCP failed to produce these witnesses/injured persons before the court for the purpose of their examination. PW/injured Dayawati could not be examined as she unfortunately died before her examination.
Result PW4/complainant and other injured persons were the only star/material witnesses of the case. However, before the court PW3, PW5 to PW10 have not stated anything incriminating against the accused Dinesh Kumar. They were cross- examined at length by the learned APP for the State with the permission of the court but nothing incriminating could be elicited from their cross-examination and they stuck to their hostile stand which they had taken in their examination-in-chief to complete disadvantage of the prosecution case. Rest injured persons were reportedly not traceable.
Page No.11 of 12State vs. Dinesh Kumar FIR No. 153/2011 Thus, nothing could come out on record to prove the necessary ingredients of the offence alleged against the accused. Consequently, accused Dinesh Kumar is ACQUITTED of the crime charged.
Bail bond furnished under section 437-A of the Code shall remain in force for a period of six months from today.
Announced in open Court on 20th day of August, 2019 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/20.08.2019 This judgment contains 12 pages and each page bears my signature.
(Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/20.08.2019 Page No.12 of 12