Delhi District Court
Mr.Jagbir Singh vs The State on 9 November, 2012
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-03, WEST,
TIS HAZARI COURTS, DELHI
Criminal Appeal Number : 24 of 2012.
Unique Case Identification Number : 02401R0234282012.
Mr.Jagbir Singh
Son of late Mr.Jage Ram
Previously resident of 5/62, Friends Enclave,
Near G Block, Sultanpuri, Delhi.
At present resident of Village Nahri, District Sonepat,
Haryana.....................................................................................Appellant.
versus
The State...................................................................................Respondent.
Date of institution : 22.05.2012.
Date of transfer of the file to this Court : 07.08.2012.
Arguments concluded on : 09.11.2012.
Order delivered on : 09.11.2012.
Appearances: Appellant on bail with counsel, Mr.Satbir Singh and
Mr. Suresh Kumar.
Ms.Promila Singh, Additional Public Prosecutor for the
State/ respondent.
**********************************************************
Unique Case Identification Number : 02401R0234282012.
Criminal Appeal Number : 24/12.
Jagbir Singh versus The State. -:: Page 1 of 12 ::-
JUDGMENT
1. Mr. Jagbir Singh, the appellant, has filed the present appeal under section 374 of the Criminal procedure Code (hereinafter referred to as the Cr.P.C.) against the impugned judgment of conviction dated 19.04.2012 for the offence under sections 279 and 304-A of the Indian Penal Code (hereinafter referred to as the IPC) and the order on sentence dated 24.04.2012 of the Court of the learned Metropolitan Magistrate, Delhi in case FIR No.796 of 1996, PS Punjabi Bagh, New Delhi.
2. The trial Court record was summoned and the notice of the appeal was issued to the State on which Additional Public Prosecutor has appeared.
3. Arguments at length have been heard on the appeal. I have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
4. It has been submitted by the appellant that the judgment of the conviction for the offence under sections 279/304-A of the IPC and the order on sentence for the offence under section 304-A of the IPC are not only contrary to law and facts on record but have also has resulted in gross miscarriage of the justice. The learned trial Court was swayed by the news papers and media reports. There is no eye witness of the alleged incident and the presence of PW3 at the spot is doubtful. The accused/appellant was not driving the offending vehicle in a rash and negligent manner and he has not caused the accident. He, infact, had helped the victims by taking them to the hospital and has been framed in Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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the present case. He merits to be acquitted.
5. It has been submitted on behalf of the State, on the other hand, that the judgment of conviction and the sentence are absolutely correct and do not suffer from any illegality.
6. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence , in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
7. On perusal of the trial court record, I find that notice under section 251 Cr.P.C for the offences under section 279/304 A IPC has been given to the appellant/accused to which he pleaded not guilty and claimed trial. The allegations against the appellant/accused are that on 26.08.1996 at 3.30 pm at Bus Stand Ordinance Depot, Rohtak Road, Madipur Colonyhe was driving TSR bearing registration number DER 8427 in a rash and negligent manner so as to endanger human life and safety of others and while doing so he caused accident with Ms.Kashmira resulting in her death.
8. I find on perusal of the trial court record that the prosecution has examined as many as 07 witnesses i.e. PW1 Retired SI Shyam Lal , who proved the mechanical inspection report; PW2 Mr.Amar Singh, who identified the dead body of deceased; PW3, Mr.Ramesh Kumar, the sole eye witness of case as well as the complainant; PW4 Dr. Komal Singh,who had conducted the postmortem on the body of the deceased, Ms. Kashmira; PW5 HC Sunder, the duty officer, who proved the FIR; PW6 HC Bishan Singh, a witness of investigation; and PW7 SI Balbir Singh, the Investigation Officer.
Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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9. In his statement under section 281/313 Cr.P.C., the appellant has admitted that he was driving the offending vehicle on the relevant date, time and place. He has, however, denied that he was driving it rashly or negligently or at a fast speed or in a zig zag manner. He has denied having caused the accident by striking against the pedestrian, Ms. Kashmira, thereby causing her death. He has stated that he is innocent and has been falsely implicated in this case. He has preferred not to lead any evidence in his defence.
10. PW1 has mechanically inspected the TSR bearing registration number DER 8427 i.e. the offending vehicle and has proved the mechanical inspection report (Ex. PW1/A). He has deposed that there was no fresh damage on the body of the vehicle.
11. PW2, Mr.Amar Singh, has identified the body of the deceased, Ms. Kashmira, his brother's wife.
12. PW3, Mr.Ramesh Kumar, is the husband of the deceased and he has deposed that on 28.08.1996, on the day of raksha bandhan, at about 3.30 PM he along with his wife Ms. Kashmira and his two children were going to ISBT from Madi Pur. His wife was little ahead of him and holding his son Akash aged 4 years. TSR bearing registration number DER 8427 came from the side of Punjabi Bagh at a very fast speed and without giving horn and struck against his wife and son. His wife became unconscious and his son sustained injuries on his head. The witness has identified the appellant deposing that he was at fault since he was driving the TSR at a fast speed and in an uncontrolled manner. The appellant Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
Jagbir Singh versus The State. -:: Page 5 of 12 ::-
removed him to the hospital. His statement (Ex. PW3/A) was recorded by the police in the hospital. His wife died later in the hospital. In his cross examination, he has admitted that there is no subway or zebra crossing at this spot and near the place of accident. There was a traffic light at the distance of 10 steps but it was not working. He removed his wife in a private Maruti van to a nearby nursing home but he did not recollect the number of the Maruti van. The doctor gave first aid to his son and wife and from there they went to DDU hospital where his wife was brought dead. He was not sure that the appellant in the police station not called in the court for his identification. He has seen the accused today (20.01.2000) and had seen him on the last date of hearing as well.
13. PW4, Dr. Komal Singh, had conducted the postmortem on the body of deceased Ms. Kashmira and has proved the report (Ex. PW4/A).
14. PW5 is the Duty Officer and he has proved the FIR (Ex. PW5/A).
15. PW5 (wrongly numbered) HC Bishan Singh, is the witness of investigation. He has deposed that on 28.08.1996 on receipt of DD No. 19 he along with SI Balbir Singh had gone to the DDU hospital where the IO collected the MLC of deceased Kashmira who had been brought dead. Her husband Mr. Ramesh Kumar was also found present there. The accused was arrested as he was already present in the hospital and his personal search was conducted vide personal search memo (Ex.PW5/A). In his cross examination, he has deposed that he did not remember the Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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contents of DD No. 19 but it related to an accident and it contained the registration number of the offending vehicle perhaps DER 2427 (TSR). He again said that he did not remember the exact number. PW7 SI Balbir Singh, is the Investigating Officer and has deposed that on 28.08.1996 on receipt of DD No. 19 (Ex. PW7/A) regarding accident he along with Ct.Bishan Pal reached the DDU hospital where he collected the MLC of deceased Ms. Kashmira. He prepared the rukka (Ex. PW7/B) on the basis of the statement of Mr. Ramesh Kumar. He arrested the accused who was present in the hospital. He prepared the site plan (Ex. PW7/C) at the instance of complainant Mr. Ramesh Kumar and took the offending vehicle in possession vide seizure memo (Ex. PW7/D) and got it mechanically inspected. In his cross examination, he has deposed that the deceased Kashmira was admitted in the hospital by her Jeth namely Mr. Amar Singh. He did not remember on which date he recorded the statement of Mr. Amar Singh.
16. I am of the considered opinion that the appeal merits to be allowed due to plurality of reasons.
17. There is no explanation coming from the prosecution regarding the reason why Mr.Amar Singh identified the dead body of the deceased when Mr. Ramesh Kumar allegedly remained with the deceased all the time. If Mr. Amar Singh had brought the deceased to the hospital as mentioned in the MLC of the deceased then why was the complaint was not made by him to the police and why he did not assign any role to the appellant in his evidence. And if it was Mr. Ramesh Kumar who had brought her to the hospital as deposed by him in his evidence as PW3 Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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then why is his name not written in the MLC of Ms.Kashmira as the person by whom the deceased was brought to the hospital.
18. Further, neither any medical record of Master Akash has been produced and proved nor any doctor who has medically treated him has been examined. The doctor who had given immediate medical aid to Ms.Kashmira and Master Akash in the nursing home, as deposed by PW3 in his cross examination, has also not been produced nor examined. No person from the public had joined the investigation which also makes the prosecution case against the appellant doubtful.
19. Had PW3 actually been present at the spot when the accident had occurred and accompanied Ms. Kashmira and Master Akash to the hospital, then all the relevant documents like site plan, seizure memo of the offending vehicle, documents pertaining to the arrest of the appellant etc. would have borne his signatures.
20. It also cannot be ignored that the offending vehicle does not have any fresh damage on the body, as deposed by PW1, which indicates that no accident was ever caused with the offending vehicle. If the appellant had been driving the offending vehicle at a fast speed and uncontrolled manner, as deposed by PW3, then there would have been fresh damage to the offending vehicle since it is alleged to have struck against the deceased and her minor son due to which the deceased has expired and her son has received injuries. The TSR was fit for the road test which also indicates that the prosecution version is not correct.
Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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21. PW3 has deposed in his cross examination that there was no zebra crossing or subway near the spot of accident and the same indicates that the deceased may have been walking on the road at the spot where only the vehicles could ply.
22. The contradiction regarding PW2, Mr. Amar Singh, taking Ms. Kashmira to hospital, as per MLC and the fact that he received information in his house that Ms.Kashmira had died in road accident, as deposed in his examination in chief are too major to be ignored. Also if PW2 was available during investigation then no explanation is given by the prosecution as to why he did not sign on the documents prepared during investigation. Also the police witnesses have not mentioned any thing regarding the presence of Mr. Amar Singh being in the hospital which is also a contrary to the MLC.
23. It is pertinent to mention that DD No. 19 on the basis of which the prosecution case was set into motion has not been proved as per law since the concerned DD writer with the relevant register has not been produced nor examined.
24. Even the photographs of the spot have not been taken which also makes the prosecution story doubtful.
25. Lastly it is also clear from the record that there is no identification of the appellant at the time of his arrest as well as during investigation. The prosecution has not been able to explain as to how and at whose instance the appellant was arrested. PW3 has in fact deposed Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
Jagbir Singh versus The State. -:: Page 9 of 12 ::-
that he had seen the accused only on the two dates of hearing in the court and was not shown the accused in the police station nor called to the court for his identification.
26. Facts establish the identity of anything or person whose identity is relevant. So the evidence of identification is a relevant piece of evidence under Sec 9 of the Evidence Act where the evidence consists of identification of the person at his trial. The statement of a witness made in the Court, a fortiori identification by him of the accused is substantive evidence but from its very nature it is inherently of a weak character. The evidence of identification in the TIP is not substantive evidence but is only corroborative evidence. It fails in the realm of investigation. The substantive evidence is the statement of the witness made in the Court. The purpose of test identification parade is to test the observations, grasp, memory capacity to recapitulate what he has seen earlier, strength of trustworthiness of the evidence, identification of an accused and to ascertain if it can be used as a reliable corroborative evidence of the witness identifying the accused at his trial in the Court. If the witness identifies the accused in the Court for the first time after a long time, the probative value of such uncorroborated evidence becomes minimal, so much as that it becomes unsafe to rely on such piece of evidence. But if the witness has known an accused earlier, in such circumstances which lend assurance to identification or inconsistency, there is no reason why his statement in the Court about the identification of accused should not be relied upon as any other acceptable but uncorroborated testimony. Similar view has been taken in the judgment reported as 1998 III AD (SC) 31 CA No.1064 of 1997 in Ronny @ Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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Ronald James Alwaris etc. v. State of Maharashtra etc.
27. There is nothing shown by the prosecution which could indicate that the appellant was driving the offending vehicle in rash and negligent manner and caused the death of the deceased.
28. In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has miserably failed to bring home the charge against the accused/ appellant.
29. I am of the considered opinion that there is infirmity and illegality in the judgment dated 19.04.2012 of the learned trial Court and the judgment of conviction under sections 279/304 A IPC is hereby set aside and consequently the order on sentence dated 24.04.2012 is also set aside. The fine, if deposited, be refunded to the appellant
30. In compliance to the provision of section 437-A of the Cr.P.C., the bail order and bail bond of the appellant are extended for a period of six months.
31. The end result of the appeal is that the impugned judgment of conviction for the offence under sections 279/304-A IPC and the order on sentence are set aside.
32. Copies of the order be given to the appellant as well as the Additional Public Prosecutor, dasti, as requested.
Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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33. The trial Court record along with a copy of this order be transmitted back to the concerned Court for information and compliance.
34. The appeal file be consigned to the record room by the Ahlmad, after completion of all the formalities.
Announced in the open Court on (Nivedita Anil Sharma) this 09th day of November, 2012. ASJ-03, West, Delhi.
Unique Case Identification Number : 02401R0234282012. Criminal Appeal Number : 24/12.
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