Delhi District Court
In Re: State vs Sabbir Khan on 26 November, 2013
IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:SAKET
COURTS : NEW DELHI
In Re: STATE VERSUS SABBIR KHAN
F.I.R. No: 568/07
U/s 279/304A IPC
P.S. Sarita Vihar
Date of Institution of Case : 07.06.2008
Judgment Reserved for : 26.11.2013
Date of Judgment : 26.11.2013
JUDGMENT:
(a) The serial no. of the case : 383/2/11
(b) The date of commission of offence : 29.07.2007
(c)The name of complainant : Narender Kumar s/o Mahesh
Kumar
(d) The name, parentage, of accused : Sabbir Khan s/o Sh. Karim
Khan, R/o RX548, Gali no. 22,
Tugalakabad Extension, New
Delhi.
Present Address : As above
(e) The offence complained of : U/s 279/304A IPC
(f) The plea of accused : Pleaded not guilty
FIR No. 568/07 St. Vs. Sabbir Khan 1/15
(g) The final order : Acquitted
(h) The date of such order : 26.11.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 29.07.2007 at about 02.30 p.m. at Aali Mod red light Mathura Road, New Delhi within the jurisdiction of police station Sarita Vihar, accused Sabbir Khan was found driving dumper bearing registration no. HR38M6036 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he hit against a scooter bearing no. DL3SR9967 which resulted in death of scooter driver/rider Kunal and pillion rider/seater namely Manish and also simple injuries upon complainant Narender Kumar who was also a pillion rider and thus thereby the accused committed offence punishable u/s 279/304A IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide orders dated 03.02.2011 notice u/s 279/304A IPC was framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined seven witnesses, thereafter the PE in the matter was closed and the statement of FIR No. 568/07 St. Vs. Sabbir Khan 2/15 accused u/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 Narender Kumar deposed that on 29.07.2007, he alongwith Kunal and Manish were going to get the petrol filled in his scooter bearing NO. DL 3SR 9967 and the scooter was being driven by Kunal and they were the pillion riders. He deposed that at about 2.30 pm they reached at Ali Mod and they were crossing the road and in the meanwhile, one dumper bearing no. HR 38 M 6036 came from Badarpur Side after jumping the red light in rash and negligent manner and hit their scooter and due to this they fell down on the ground and Kunal & Manish alongwith scooter were dragged by the dumper to few meters. He deposed that thereafter, the driver/accused stopped his dumper and got down and after seeing the injured, he tried to flee away but he was apprehended by the public persons. He deposed that the accused was beaten by the public persons and after inquiry his name was revealed as Sabir Khan. He deposed that some public persons called the police and police reached at the spot. He deposed that Kunal was taken to the AIIMS hospital by the police and he alongwith Manish were taken to the Apollo Hospital. He deposed that he gave his complaint to the police vide Ex. PW 1/A. He deposed that the accused was arrested by the police at the spot in his presence vide arrest memo Ex. PW 1/B and personal search FIR No. 568/07 St. Vs. Sabbir Khan 3/15 was conducted vide memo Ex. PW 1/C. He deposed that IO recorded his statement. He deposed that IO prepared the site plan.
5. During his cross examination he stated that the scooter bearing no. DL 3SR 9967 belongs to his uncle. He stated that he does not know who is the registered owner of the scooter. He stated that he was not having the RC of the scooter while riding the scooter. He stated that the scooter was being driven by Kunal. He stated that Kunal was having driving licence. He stated that Kunal was about 1718 years old as per his knowledge. He stated that Kunal was his neighbour. He admitted that the age of the deceased must have been around 1213 years. He stated that Kunal was studying in 8 th standard in J.N. International School. He stated that Manish was seated between kunal and him. He stated that they left from Ali Gaon at around 2.25 p.m. He stated that they reached at the spot at about 2.30 p.m. He stated that he does not know the speed of the scooter. He stated that the distance between Ali Gaon from where they had left and the spot would be around ½ to 1 km. He stated that they all were wearing helmets. He stated that he sustained injuries on his head. He stated that he does not know who was having the money for getting the patrol filled. He stated that there was no heavy traffic on the spot. He stated that he does not know the width of the road. He admitted that the road from Badarpur turns towards the right from the red light to go to Ali Gaon and goes straight towards Ashram. He denied the suggestion that the traffic which leads from Ali FIR No. 568/07 St. Vs. Sabbir Khan 4/15 Gaon to Ashram at that time there is heavy still traffic from Badarpur to Ashram. He stated that site plan was prepared at his instance in his presence and the same bears his signature. He stated that he does not remember at what time site plan was prepared but it was prepared on the same day at hospital. He stated that his statement was recorded in hospital on that day only. He stated that the police reached at the spot after 1520 minutes after the incident. He stated that Police had taken him from the spot to hospital alongwith Manish. He stated that he does not remember as to how they were taken to the hospital. He stated that he does not remember the time when they reached to the hospital. He denied the suggestion that he was admitted in the hospital by his brother Malkhan Singh not by police officials. He stated that he was discharged on the same night but he does not remember the exact time. He stated that he had given only one statement to police. He denied the suggestion that he had given supplementary statement to the police. He stated that he had signed two papers. He stated that the offending vehicle was on right side of the road coming from Badarpur side. He stated that he does not know the age of the deceased Manish at the time of the accident but he was the student of J.N. International school, studying in 8 th standard. He denied the suggestion that the accident took place due to their negligence. He denied the suggestion that accused has been falsely implicated in the present case.
6. PW2 Joginder Singh deposed that on 30.07.2007 he had identified FIR No. 568/07 St. Vs. Sabbir Khan 5/15 the dead body of his son Manish Kumar at AIIMS mortuary. He deposed that IO recorded his statement and prepared the identification memo vide Ex. PW2/A and death certificate of his son Manish Kumar is Ex. PW2/B. He deposed that had received the dead body of his son Manish vide Ex. PW2/C.
7. PW3 Harish Kumar deposed that on 30.07.2007 he had identified the dead body of his nephew Kunal at mortuary. He deposed that IO recorded his statement and prepared the identification memo vide Ex. PW3/A. He deposed that he had received the dead body of his nephew Kunal vide Ex. PW3/B.
8. PW4 Ct. Sher Singh deposed that on 29.07.07 he was posted as Ct. in PS sarita vihar and on that day he was present in the PS along with SI D.K. Tejwan and SI D.K. Tejwan had received DD no. 9A regarding the accident and on this information he along with IO reached the spot i.e. Aali Gaon red light, Mathura road and at the spot they came to know that the accident had taken place and one scooter bearing no. DL3SR9976 and one dumper bearing no. HR386036 were lying in the accidental condition at the spot. He deposed that the spot was blood stained. He deposed that the PCR van had already taken to the injured to the hospital. He deposed that IO got the spot photographed. He deposed that IO D.K. Tejwan seized the chappal vide memo Ex. PW4/A. He deposed that IO apprehended the accused/driver. He deposed that the accused was beaten by the public persons. He deposed that IO left beat Ct. at the spot FIR No. 568/07 St. Vs. Sabbir Khan 6/15 and went to the Apollo Hospital along with him. He deposed that IO collected the MLC from the hospital. He deposed that in the hospital IO met ASI Chaman Singh. He deposed that IO recorded the statement of injured Narender Kumar. He deposed that thereafter, IO reached the spot along with injured Narender Kumar and himself and ASI Chaman Singh. He deposed that IO prepared the rukka and handed over to him for the registration of the FIR and he went to PS and got the FIR registered and he came back along with original rukka and copy of FIR and same was handed over to IO Chaman Singh. He deposed that IO Chaman Singh prepared the site plan at the instance of the injured namely Narender Kumar. He deposed that IO Chaman Singh seized the scooter and offending truck vide memos Ex. PW4/B and C. He deposed that IO arrested the accused and conducted his personal search vide memos Ex. PW1/B and C. He deposed that IO also seized the iron rod vide memo Ex. PW4/D. He deposed that IO also seized the DL of the accused vide Ex. PW4/E. He deposed that IO recorded his statement. He deposed that on 30.07.07 he along with IO Chaman Singh reached the Apollo Hospital. He deposed that they received dead body of deceased Manish Kumar shifted to AIIMS Hospital mortuary where the relatives of deceased Kunal and Manish were present and they had identified the dead body of deceased persons. He deposed that IO recorded the identification statement and prepared the memo. He deposed that the dead body were handed over to the relatives of the deceased persons. He deposed that IO recorded his supplementary statement.
FIR No. 568/07 St. Vs. Sabbir Khan 7/15
9. During his cross examination he stated that they reached the spot at about 1.302pm after receiving DD no. 9. He admitted that there were crowd at the spot. He stated that IO requested some passersby to join the investigation but none agreed and left the place without disclosing their names and addresses. He stated that he along with IO D.K. Tejwan remained at the spot at about 4pm. He denied the suggestion that the scooter was going on a wrong side. He stated that he does not remember the time when he reached the hospital along with IO. He stated that IO did not take any statement in his presence. He stated that injured Narender Kumar met them in the hospital. He stated that he does he does not remember when the IO recorded the statement of injured. He denied the suggestion that the accident did not take place due to the fault of driver/accused. He denied the suggestion that he did not join the investigation with the IO or that he had signed all the memos in the PS or that he was deposing falsely.
10. PW5 Prabhat Bhushan deposed that he is the registered owner of truck dumper bearing no. HR38M6036. He deposed that accused Sabir Khan was driving the above said vehicle on the day of accident i.e. 29.07.2007. He deposed that IO recorded his statement. This witness identified the case property as Ex. P1.
FIR No. 568/07 St. Vs. Sabbir Khan 8/15
11. PW6 SI Chaman Singh deposed on the same lines as deposed by Const. Sher Singh.
12. PW7 SI D.K. Tejwan deposed on the same lines as deposed by Const. Sher Singh.
13. I have heard the arguments advanced at bar by the Ld. Defence counsel as also the learned APP and have carefully gone through the evidence recorded in the matter. I have also scrutinized the documents placed on record by the prosecution in this case.
14. After going through the rival contentions as well as the evidence led by the prosecution and the material on record, I am of the considered opinion that the prosecution has failed to bring home the guilt against the accused.
15. Though no doubt from the deposition of the complainant/injured Narender Kumar (PW1) and other prosecution witnesses it stands established/proved that the vehicle of accused was involved in accident dated 29.07.2007 in which Kunal and Manish lost their lives and Narender Kumar received injuries. However from the material available on record no liability for the accident can be fastened/affixed upon the accused. The prosecution miserably failed to convince the court/prove beyond reasonable doubt that it was the rash/negligent driving of FIR No. 568/07 St. Vs. Sabbir Khan 9/15 accused Sabbir Khan which was responsible for the accident and resulting death of Kunal and Manish and injuries upon Narender for the reasons as discussed hereunder:
16. Firstly it is a matter of record that at the time of accident the scooter was being driven by Kunal. Kunal at that time was only 12 years old i.e. minor. Same is not only evident from his MLC bearing no. 107 dated 29.07.2007 but also was admitted by PW1 during his cross examination. The other deceased i.e. pillion rider Manish was also minor. He was merely 16 years old. Eye witness/injured Narender who was the third occupant of scooter was also minor. He was just 14 years old. It is also the admitted case of the prosecution/stands proved on record that none of them were wearing the helmets. No helmets were seized from the spot. No helmets are visible in the photographs. The head injuries suffered by the deceased itself proves that none of them were wearing the helmets. They were also not having a valid driving license which obviously they could not have as they were minor and in fact too young and immature to have the same. That being the case I am of the firm opinion that none of the occupants of the scooter were having or were expected to have the basic skill to drive/ride the scooter. They could not have possessed the requisite the driving sense or knowledge about the Motor Vehicle Rules to be followed while driving/riding the scooter. In fact deceased Kunal who was driving/riding the scooter was only 12 years old. There was no way he could have known FIR No. 568/07 St. Vs. Sabbir Khan 10/15 driving/riding the scooter and in fact it was illegal/unlawful for him to ride the scooter. Though his exact built up/physical appearance is not known to the court however it is a matter of common knowledge that at the age of 12 years a person cannot/ is not expected to be in a position to control a scooter if he rides the same more so when there are two other occupants on the scooter. By doing so he not only puts himself to risk/danger but he also puts at risk/danger the other occupants/riders of the said vehicle and the public at large. Same happened in this case.
17. I have perused the site plan, the photographs carefully. The place of accident is shown at point X in the site plan i.e. Ex. PW6/A. Now the said point of impact/accident is located at a crossing/intersection. In fact from the site plan it is not clear whether it was a proper crossing/intersection or a kacha one which is a common phenomenon on Indian roads. As per the prosecution story/deposition of PW1 at the time of accident PW1 along with both the deceased were going on the scooter to get the petrol filled in the same. PW1 claimed that they had reached at Aali Mod and were crossing the road when they were hit by dumper of the accused who had jumped the red light and was driving in a rash and negligent manner. Firstly no red light has been shown in the site plan by the IO and I am also unable to locate any such red light in the photographs on record. The site plan is also silent as to the direction in which the deceased were coming or going. Nonetheless it is a matter of record that the FIR No. 568/07 St. Vs. Sabbir Khan 11/15 deceased and injured person were all residents of Village Aali. The way to Aali Goan is shown in the site plan by the IO and it is just on the extreme end of/other side of the road/crossing where the accident took place. It seems to be a kachha road/by lane. As per the prosecution case the accused was heading on the Mathura Road towards the Ashram side and the accident occurred at point X shown in the site plan i.e. Ex. PW6/A. Taking all these factors into account I am of the opinion that the accident occurred solely due to the fault of deceased Kunal who was riding/driving the scooter. He was a minor child only 12 years old. He along with 2 of his friends who were also minor one being 14 and other 16 years old took the scooter of his uncle on a joy ride. They come out of their abode/village on to a main road from a by lane/kachha rasta without bothering for the traffic moving on the main road. Mathura road is a very busy road. It witnesses huge traffic movements all day long with the vehicles moving around on the road at a fast speed. These includes light vehicles i.e. scooter, motorcycle as well as heavy vehicles i.e. bus, dumper etc. Deceased Kunal who was merely 12 years old was not having the requisite knowledge about the traffic rules and also did not possess the necessary driving skills. He also was not and must not have been physically well built enough to control the scooter which must have been atleast 2 to 3 times heavier than him and which was occupied by two of his friends. Without bothering for the traffic coming from the other side of the road he rushed on to the main road at the intersection and as a result was hit by the dumper which was heading towards Ashram. By no means accused i.e. FIR No. 568/07 St. Vs. Sabbir Khan 12/15 the dumper driver could have avoided the accident even he was driving at a low speed. PW1 nowhere claimed that accused was driving at a fast speed leave apart a very fast speed. It becomes very difficult for a heavy commercial vehicle to apply sudden brakes and bring it to a halt when suddenly/out of nowhere some other vehicle blindly comes in front of it. Same happened in this case. Kunal was riding the scooter to go towards the Ashram side and without bothering to look out for the traffic he came out of a kacha rasta/bylane crossed the road and came to the intersection and was hit by the dumper of the accused. Fault if any, rash and negligent driving if any was his and not of the accused/dumper driver. My above opinion is further fortified from the fact that there are no skid marks on the road at the spot where the accident took place. Secondly, the vehicle i.e. the dumper is being shown as being parked towards the extreme left side of the road which implies that it was driven on the left side i.e. the correct side. Even the blood stains etc. are in the middle of the road moreover towards the extreme left side. Thirdly, the scooter received damages only on its dicky. In fact only the cover of the dicky was damaged and the remaining part of the scooter as appears from photographs did not receive any damages. Had the dumper being driven at a fast speed or in a rash and negligent manner the scooter would have received severe damages and in fact would have been completely destroyed/mangled. But that was not the case.
18. In these facts and circumstances it is not safe to fix the liability of FIR No. 568/07 St. Vs. Sabbir Khan 13/15 accident upon the accused. The prosecution story/the complainant's version of the accident cannot be believed/given weight age and in fact I find more merits in the defence version which was put across during the trial in the cross examination of prosecution witnesses as well as the answers given by the accused during his examination u/s 313 Cr.P.C.
19. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true"
and "must be true".
20. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R. (Criminal) 662).
21. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some FIR No. 568/07 St. Vs. Sabbir Khan 14/15 statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
22. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal. I order accordingly.
Announced in the open (Gaurav Rao) Court on 26.11.2013 MM (SE)/Delhi FIR No. 568/07 St. Vs. Sabbir Khan 15/15 F.I.R. No: 568/07 U/s 279/304 A IPC P.S. Sarita Vihar 26.11.2013 Pr: Ld. APP for state. Accused is present on bail today. Final arguments heard.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Fresh bail bonds u/s 437A Cr.P.C. furnished, considered and accepted. File be consigned to Record Room.
(Gaurav Rao)
MM (SE)/Delhi
26.11.2013
FIR No. 568/07 St. Vs. Sabbir Khan 16/15