Delhi District Court
State vs . Vinod Kumar on 21 March, 2012
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE 06,
SAKET COURTS, NEW DELHI.
Serial No. 360/08 : dated 20.11.08
Unique Identification No. 02406R1079292008
State Vs. Vinod Kumar
FIR No. 496/97
P. S. Rama Krishna Puram
U/s 279/304A IPC
JUDGMENT
1.Srl. No. of the case & Date of institution 360/08 dated 20.12.97
2.Date of commission of offence 28.6.97
3.Name of the complainant SI Karuna Sagar PS RK Puram, New Delhi.
4.Name of the accused Vinod Kumar S/o Sh. Ram Sukh r/o village Bahari, PO Baleepur, Distt. Darbhanga, Bihar
5.Nature of offence complained of U/s 279/304A IPC
6.Plea of the accused person Accused pleaded not guilty
7. Date reserved for order 15.2.2012
8.Final Order Acquitted
9.Date of such order 21.3.2012 Date of Institution : 20.12.97 Date of order reserved : 15.2.2012.
Date of pronouncement : 21.3.2012. FIR No. 496/97 P. S. Rama Krishna Puram Page No. 1 of 12 BRIEF FACTS OF THE CASE:
1. This case was planted on the accused. It also reflected the over zeal attitude of the investigating officer, to crack every case, in order to get patting on the back, from the seniors. But in the process, he wasted many precious years of the accused, who faced the agony of trial, for no fault of his.
2. Prosecution story as per charge sheet, in brief, started from DD no. 2A, dt. 28.6.97. It was reported in the said DD, that a scooter had slipped at picket, near Shanti Path. It was reported at 0050 Hours. On receiving the said DD, SI Karuna Sagar, alongwith Ct. Surender, reached at the site of accident. They found, scooter bearing no. DL 3SB 3928 and truck bearing no. DL 1G 2333, in accidental condition. The shaft and axle of the truck was found broken. They did not find the injured. During inquiry, they found that injured was shifted to S J Hospital. No eye witness was found at the site of occurrence or in the hospital. IO left Ct. Surender at the spot and reached S J Hospital. There, he received MLC no.87129 of deceased K K Saxena. Doctor had already declared the said person as brought dead. Subsequently, at the instance of IO concerned, FIR in question was registered through Ct. Surender. Subsequently, no eye witness was found at the spot and in the hospital. Postmortem of the deceased was got done. Offending vehicle and vehicle of the victim were seized. Statement of witnesses were recorded. Accused was arrested, notice u/s 133 MV Act was served to the owner of the offending vehicle, driving license of accused was seized alongwith other documents, postmortem of deceased in FIR No. 496/97 P. S. Rama Krishna Puram Page No. 2 of 12 question was got conducted, mechanical inspection of offending vehicle was done, postmortem report was obtained and after recording statement of witnesses, charge sheet was filed after concluding investigation.
3. After finding prima facie case against the accused was summoned.
4. Subsequently, Notice was framed on 21.3.2007 to which accused pleaded not guilty and claimed trial. Case was subsequently fixed for PE.
5. Prosecution in this case examined five witnesses. PW1 Ct. Surender Singh deposed that on receiving DD no. 2A on 28.6.97, he alongwith SI Karuna Sagar reached at the site. They did not find the injured or the accused. After local inquiry they were informed that injured was shifted to S J Hospital. IO went to the S J hospital, after leaving him at the spot. After some time IO returned back to the site and gave him a written tehrir, informing him that injured had died. He was directed to get the case registered u/s 279/304A IPC. He took the rukka and got the FIR registered. Subsequently, he came to the site and handed over copy of FIR Ex.PW1/A and rukka Ex.PW1/B to IO concerned. During the course of investigation, accused was arrested, he was personally searched vide memo Ex.PW1/C, his driving license was seized vide memo Ex. PW1/D. PW2 (inadvertently mark as PW1 ) Vijay Kumar Saxena and PW (inadvertently mark as PW2) Ashok Kumar Saxena, deposed that they had identified the dead body of the deceased as he was their brother. In this regard, they had made statements, Ex. PW1/A and Ex.PW2/A respectively to the IO concerned. PW4 (inadvertently FIR No. 496/97 P. S. Rama Krishna Puram Page No. 3 of 12 mark as PW3) HC Ram Narayan deposed that on 12.8.97 at about 12.55am, he was posted at Shanti Path picket. His duty hours were from 8.00pm to 8.00am. That at about 12.55am, he saw a truck bearing no. DL 1G 2333, coming from Chankaya Puri side on S J Hospital and was going towards Moti Bagh. Its driver was driving it in Zig Zag manner and while over taking scooter bearing no. DL 3SP 3928, it struck against the scooter. Shaft of the truck had broken and the truck stopped after at a short distance. That, it was being driven by the accused. That he took the accused in the picket and informed the control room on wireless about the accident. PCR van came to the spot and took the injured to the hospital. That while informing to the control room, accused told him that he wanted to inform the truck owner and went away. Subsequently, PW3 searched for the accused but he was not found till 3.00am. Thereafter, at 9.45am IO came to the spot and site plan was prepared by the IO at his instance. Subsequently, at 4.00pm, he went to the PS for some work and identified the accused. Thereafter, accused was arrested by the IO vide Ex. PW1/C. Site plan was prepared vide Ex.PW1/A. PW5 (inadvertently mark as PW4) SI Karuna Sagar deposed that on 28.6.97, on receiving DD no. 2A, he alongwith Ct. Surender reached to the spot, and came to know that injured was shifted to S J Hospital. After leaving Ct. Surender at the spot, he wen to S J Hospital and collected the MLC of injured K K Saxena. The said injured was declared by the doctor as brought dead. Subsequently, he made an endorsement on DD no. 2A, which was Ex. PW4/A, handed over the same to Ct. Surender, on which FIR in question was registered. Ct. Surender FIR No. 496/97 P. S. Rama Krishna Puram Page No. 4 of 12 came back to the spot after registration of FIR in question and handed over the copy of FIR and original rukka to him. During investigation various documents, (already marked as Ex. PW1/A, PW1/B, PW1/C, PW1/D) were prepared by him. That on next day at 9.30am, he met Ct. Ram Narayan at the spot and prepared the site plan Ex.PW3/A at his instance. Postmortem of the deceased was got conducted. Accused was identified by the eye witness, as accused himself came to the PS and surrendered. After completing investigation, charge sheet was filed. Subsequently, PE was closed.
6. Statement of accused u/s 313 Cr.PC read with 281 Cr.PC was recorded in which accused refuted all the incriminating evidence put to him. He did not want to lead defence evidence and therefore, matter was fixed for judgment after final arguments were heard.
7. Accused admitted certain documents u/s 294 Cr.PC, which are marked as, Ex.A1 to Ex.A4, which included, DD no.2A dt. 28.6.97, FIR in question, MLC in question and postmortem.
8. In this case, matter revolved around the identity of accused and his rash and negligent driving, which resulted in the accident in question. I am first, dealing with the aspect of rash and negligent driving.
9. To do the aforesaid appreciation of rashness and negligence, It would be pertinent to bear in mind what is meant by 'rash negligent act'. The Apex Court in Prabhakaran Vs. State of Kerala [AIR 2007 SC 2376], observed thus:
FIR No. 496/97 P. S. Rama Krishna Puram Page No. 5 of 12"7... "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charges has arisen it was the imperative duty of the accused person to have adopted".
The distinction has been aptly pointed out by Holloway J. in these words:
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences, may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but In circumstances which show that th actor has to exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The immutability arises from the negligence of the civic duty of circumspection." (SCC In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)".
10. PW4 (inadvertently mark as PW3) HC Ram Narayan was the FIR No. 496/97 P. S. Rama Krishna Puram Page No. 6 of 12 alleged eye witness, to the accident in question. In his entire testimony, he did not depose that accused was driving his vehicle in rash and negligent manner, which resulted in accident in question. What he stated was, that the offending truck, had hit the scooter of the victim, while over taking, from the left side. He also stated that shaft of the truck had broken. He has also stated that the offending truck was being driven in a zig zag manner. In such circumstances, the possibility, that the truck had become out of control, which resulted in zig zag manner of its movement and consequently, resulting in hitting the scooter of the victim, cannot be ruled out. As, the shaft and the axle of the truck had broken, so the aforesaid possibility was found by me to be probable. If that be so, then it was not fault of the accused rather it was a mechanical defect, which resulted in, alleged accident. Moreover, it was for the eye witness to elaborate as to how accused was rash and negligent in his driving, which he failed to do so. There was evidently, vacant road, as it was midnight. At that time, if a truck, like the offending truck, was moving at a speed of 50 to 55 km per hours, as alleged by PW4, then in my view it was not rash and negligent driving. More so, where the road in question was a ring road. This witness, did not depose, as to whether accused used to horn or fluctuated head light of the truck, while over taking the scooter. He did not depose as to in which circumstances, the offending truck, over took the scooter of the victim, i.e. whether the scooter of the victim, was or was not giving way to the truck. He did not depose, as to whether victim was driving his scooter FIR No. 496/97 P. S. Rama Krishna Puram Page No. 7 of 12 properly or not. He did not depose, as to whether there was or was not any possibility, that accident in question had occurred, due to the mechanical defect of the offending truck and not by the rash and negligent driving of the accused. In such circumstances and probabilities, I had my doubts that accused was driving his vehicle in rash and negligent manner, on the day time and place in question.
11. The next aspect, was with relation to the presence of accused, at the site of accident. Evidently, IO did not find any eye witness at the spot and in the hospital. The safest method was, to plant a police witness and project him to be the eye witness. The same was done by him in this case. PW4 HC Ram Narayan had allegedly apprehended the accused. While informing the control room, accused went away, after telling him, that he had to inform the truck owner. The said fact indicated that there was an element of permission, given by HC Ram Narayan, to leave his arrest. This was against his duty. Reason being, I did not find any urgency, which gave HC Ram Narayan, the ground, to leave the accused, at that time. Accused could have informed the truck owner, after arrival of the IO concerned or the next day. This made the conduct of HC Ram Narayan doubtful. More so where, it was not the case, that accused tried to flee away from the clutches of HC Ram Narayan. It was also strange, that despite having company of HC Kamruddin, at the picket HC Ram Narayan allowed the accused to flee away, without knowing, as to where accused was heading towards. Further, duty hours of HC Ram Narayan, FIR No. 496/97 P. S. Rama Krishna Puram Page No. 8 of 12 were 8.00pm to 8.00am. Question arose, as to what was he doing at 9.30am on the subsequent day, when as per record, he was not given any special duty to remain at the spot on the subsequent day. He had gone to the PS, at 4.00pm on the next day for some work, when he met the accused. Now, he did not elaborate, as to what was the work, for which he had gone few hours prior to the time, from which his duty, would have started. In addition to aforesaid unreasonable, nonexplanatory and improbable behavior of this witness, there was a contradiction also in his testimony. He had stated in his examination in chief that accused had left him so that the truck owner can be apprised about the accident. In his cross examination, he told that accused left him, as his attention had got diverted for some reason. Both the said submissions go contrary to each other. Earlier, version reflected the presence of intentional permission on the part of HC Ram Narayan and subsequent version reflected the presence of ignorance/negligence. Thus, in view of aforesaid appreciation of evidence, I did not find testimony of PW4 HC Ram Narayan, as trustworthy and credit worthy. He was a planted witness and thus, his testimony was discarded by me.
12. PW1 Ct. Surender, had accompanied the IO during investigation. In his testimony, he gave an entire new twist to the story, by stating that accused had confessed his guilt at the S J Hospital in his presence at 12.30am on 28.6.97. This was not digested by me. Reason being accident in question, as per testimony of the eye witness had occurred at 12.55am on FIR No. 496/97 P. S. Rama Krishna Puram Page No. 9 of 12 28.6.97 and if I go by the version of PW1 then, accused had confessed his guilt prior to the occurrence in question. This made doubtful, not only the version of this witness, rather created serious lacunae in the prosecution story, which remained unfilled during trial. Thus, testimony of PW1 was of no help to the prosecution.
13.PW4 SI Karuna Sagar, was the creator of the prosecution story, being the IO of the case. He left various unanswered aspects of the case and left the prosecution story open to criticism and condemnation. After reaching at the site, he did not disclose, as to who told him that injured was shifted to S J Hospital. He did not state whether he met HC Kamruddin, who had accompanied the eye witness HC Ram Narayan. He did not make HC Kamruddin as one of the prosecution witness, though there was evident lack of eye witnesses to the occurrence. He did not take signature of any of the witnesses, at whose instance, he prepared the memos and the site plan in question. He did not record the statement of HC Kamruddin, though he had deposed that he had inquired from HC Kamruddin. He did not throw light on what inquiry he conducted with HC Kamruddin. He did not investigate, as to under which circumstances, accused slipped away from the clutched from the HC Ram Narayan. He did not take any necessary permission/ consent from the SHO concerned, while initiating the investigation or during the investigation, as SHO had not made any endorsement on the rukka or the FIR. Lastly, I failed to understand, as to why accused surrendered himself FIR No. 496/97 P. S. Rama Krishna Puram Page No. 10 of 12 on the subsequent day, as he had fled away from the site of occurrence, after befooling HC Ram Narayan. Thus, testimony of the IO was full of pit holes and the same remained unfilled during trial. Testimony of IO was accordingly, discarded by me.
14 Prosecution thus failed to discharged to initial on us of proving its case beyond reasonable doubt. In these circumstances, the probable defence of accused that he was falsely implicated by the IO, was found to be genuine.
15.Keeping in mind the discussion made above, I find that despite the admission made by the accused, u/s 294 Cr.PC, prosecution failed to prove its case beyond reasonable doubt for the offence punishable U/s 279/304A IPC. Accordingly, accused Bharat Tomar is acquitted for the commission of the offences punishable U/s 279/304A IPC. Previous bail bond will remain on record till expiry of six months from now as per section 437A Cr. P.C. This is done as accused persons did not furnish fresh bail bond. File be consigned to record room after necessary compliance.
Announced in open court ( PRASHANT SHARMA ) today i.e. 21.3.2012. M.M.06, Saket Courts, New Delhi.
21.3.2012
FIR No. 496/97
P. S. Rama Krishna Puram Page No. 11 of 12
State Vs. Vinod Kumar
FIR No. 496/97
P. S. Rama Krishna Puram
U/s 279/304A IPC
21.3.2012
Present : Ld. APP for State.
Accused is present in person.
Vide my separate judgment of even date accused is acquitted for the commission of offence U/s 279/304A IPC. Previous bail bond will remain on record till expiry of six months from now as per section 437A Cr. P.C. This is done as accused persons did not furnish fresh bail bond. File be consigned to record room after necessary compliance.
( PRASHANT SHARMA ) M.M.6, Saket Courts, New Delhi 21.3.2012 FIR No. 496/97 P. S. Rama Krishna Puram Page No. 12 of 12