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Delhi District Court

State vs . Harvinder Singh on 24 October, 2013

                                     -: 1 :-


   IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN 
          MAGISTRATE­08,­WEST DISTRICT, DELHI

STATE  VS. Harvinder Singh
FIR NO:     341/05
P. S.       Kirti Nagar
U/s         279/337/304A  IPC

Unique ID No. 02401R1266832005
 
                      JUDGMENT

Sl. No. of the case                            : 1448/1(14.06.2010)
Date of its institution                        : 17.11.05
Name of the complainant                        : ASI Kalicharan
Date of Commission of offence                  : 12.07.05
Name of the accused                            : Harvinder Singh 
                                                 S/o Sh. Surat  Singh
                                                 R/o F­28Z, Jahangir Puri
                                                  Delhi. 

Offence complained of                          : U/s 279/304A IPC
Plea of accused                                : Pleaded not guilty
Case reserved for orders                       : 24.10.2013
Date of judgment                               : 24.10.2013
Final Order                                    : ACQUITTED

BRIEF STATEMENT OF FACTS FOR THE DECISION:­

1. This is the trial of the aforesaid accused upon the police report filed by P.S. Kirti Nagar U/s 279/304A IPC .

STATE VS. Anil Kumar -: 2 :-

2. The prosecution story is that on 12.07.2005 opposite Police Picket, Tagore Market, Kirti Nagar within the jurisdiction of PS Kirti Nagar, accused was driving Vehicle No. bearing registration No. DL 1PA 7946 on a public way in a rash and negligent manner so as to endanger human life or personal safety of others and while driving so, caused the death of cyclist Jitender Kumar not amounting to culpable homicide and thereby committed an offence punishable U/s 279/304A IPC.

3. After completing the formalities, the investigation was carried out by police station Kirti Nagar and a charge sheet was filed against the accused. The accused was stated the substance of accusation by framing a separate notice for offence U/s 279/304A IPC to which he pleaded not guilty and claimed trial.

4. In order to prove its case, prosecution has examined nine witnesses.

5. PW1 Dr. Rishi has proved the MLC of the deceased as Ex. PW1/A.

6. PW­2 Ct. Mahinder has deposed that on 12.07.2005 on receipt of DD No. 7A at 9:15 am he alongwith ASI Kali Charan reached at the place of accident at Tagore Market FIR No. 609/04 STATE VS. Anil Kumar -: 3 :- police picket where they found one bus of route no. 108 registration no. DL­1PA­7946 and a cycle and saw that the cycle was inside the back side tyre of the said bus and the injured was already taken to the hospital. He further deposed that no eye witness was found at the spot and IO ASI Kalicharan prepared the site plan.He further deposed that one public witness Deepak Kumar meet him and told that the driver of the offending bus was present in the crowd and the accused was apprehended by them. IO seized the DL, insurance, permit of the bus, offending bus and the cycle and prepared the seizure memo Ex. PW1/A to Pw1/E respectively. The accused was arrested and personal search was also conducted vide arrest memo and personal search memo Ex.PW1/F and PW1/G respectively. Accused was released on bail from the spot. Case property was deposited in malkhana. Injured was expired in the hospital and post mortem was conducted on 13.07.05.

7. PW­3 WHC Vimlesh is the duty officer and has proved the registration of FIR as Ex. PW3/A and endorsement on the rukka as Ex. PW2/B.

8. Pw­4 Ravinder Singh is the registered owner of bus bearing no. DL­1PA­7946 deposed that the accused is FIR No. 609/04 STATE VS. Anil Kumar -: 4 :- his employee and was driving the said bus on the said date and time of the accident. He further deposed that order dated 30.10.07 bearing no. DC(STA)/P.Cancel/2007/363 permit of the said bus has been cancelled and the same cannot be issued for any commercial activity. He has proved the photographs of the bus as EX. P1 to P­4.

9. PW­5 Deepak is the eye witness and deposed that at about 12.07.05 at 9 am he was selling flowers and a bus bearing no. DL­1PA­7946 came from Moti Nagar in high speed and negligent manner being driven by the accused and when the bus turned towards Kirti Nagar hit the cycle and the cyclist came under the tyre of the bus and brutally dragged. He further stated that the driver of the bus fled away and he saw the accused when he tried to escape and ran away. He further deposed that the police came at the spot and took the injured to the hospital. The injured was alive at the time but sustained fatal injuries. His statement was recorded by the IO.

10. PW­6 Sudhir Ghai is the photographer who took the photographs of the offending bus from different angles. He has proved the photographs as Ex. P1 to P3 and negatives as Ex. P­4 to P­10.

11. Pw­7 HC Sunder Singh is the MHC(M) and deposed FIR No. 609/04 STATE VS. Anil Kumar -: 5 :- that IO ASI Kalicharan has deposited the offending bus and the cycle in the malkhana on 12.07.05.

12. PW­8 ASI Devender Kumar has mechanically inspected the bus no. DL­1PA­7946 at the request of the IO and proved his report.

13. PW­9 ASI Kalicharan deposed that on 12.07.05 on receipt of DD no. 7 A he alongwith Ct. Mahender Singh reached at the spot and found that one bus no. DL­1PA­7946 and one bicycle was lying there and the said cycle was near the back wheel of the said bus in an accidental condition. No eye witness was found at the spot. Injured was already taken to hospital where he also not found any eye witness. Photographs of the spot were also taken and same are Ex. P­1 to P4.. He made endorsement on DD no. 7 A Ex. Pw9/A and sent to Ct. Mahender for registration of FIR. He further stated that in the meantime one Deepak came at the spot and on his instance he prepared the site plan, same is Ex. PW9/B. He seized the offending bus vide seizure memo Ex. PW1/D, DL Ex. PW1/A, insurance Ex. PW1/B and permit Ex. PW1/C and the bicycle Ex. PW1/E . He arrested the accused Harvinder Singh vide arrest memo Ex. PW1/F , his personal search memo was conducted vide personal search memo Ex.

STATE VS. Anil Kumar -: 6 :- PW1/G. He deposed that the injured was expired in the hospital and on 13.07.05 he prepared the inquest papers Ex. PW9/C and on his request post mortem of the deceased was got conducted and report is Ex. PW9/D. MlC of the injured is Ex. PW9/E.

14. PW­10 Dr. Nishu Dhawan has proved the PM report of the deceased Jitender Kumar and same is Ex. PW9/D.

15. This is the overall prosecution's evidence in this case.

16. After the prosecution's evidence was closed, accused was examined U/s 313 Cr.PC wherein all the incriminating evidence were put to the accused in which he wanted to lead defence evidence but did not lead defence evidence, hence DE was closed.

17. It has been argued by Ld. APP for the State that the case of the prosecution has been proved beyond reasonable doubt by the testimony of the witnesses examined on behalf of prosecution and the only irresistible conclusion is the conviction of the accused.

18. On the other hand, it has been argued by counsel for accused that the prosecution is unable to prove rashness and negligence on behalf of the accused and therefore, the accused should be acquitted.

STATE VS. Anil Kumar -: 7 :-

19. Having dealt with the submissions advanced by both the parties, I proceed to adjudicate upon the most important question involved in the present case: Whether the accused is guilty of the offence with which he is charged or not.

20. The case of the prosecution is that on 12.07.05 the accused was driving a bus in a rash and negligent manner and thereby caused the death of cyclist Jiender Kumar. The nature of the evidence and the quality of investigation will categorically suggests that the prosecution is unable to prove its case beyond reasonable doubt for the reasons set forth in the coming discussion and the accused Harvinder Singh therefore deserves to be acquitted. .

1.) The case of the prosecution is based on sole eye witness namely Deepak who has been examined as PW­5 in this case. The relevant portion of this testimony to suggests the rashness and negligence of the accused is that ­ " A bus bearing no.DL­1PA­7946 came from Moti Nagar in a high speed and negligent manner being driving by the accused and when the bus turned towards Kirti Nagar had hit a cycle which was driving by the deceased, then the cycle rider came under the tyre of the bus and brutally dragged.Thereafter the alleged driver fled away from the spot and I saw him when he tried to escape and ran away". This narration seems to be some what vague and cryptic FIR No. 609/04 STATE VS. Anil Kumar -: 8 :- because it does not clarify the actual manner in which the accident occurred. As far as the rash and negligent part is concerned, the witness has simply said that the accused was driving the vehicle in a rash and negligent manner and hit against his motorcycle but the prosecution is unable to prove that in what manner the accused hit the cyclist and how it can be said that the act of the accused was rash and negligent. No evidence or any other material has been placed by the prosecution or by the testimony of these witness to show the manner in which the vehicle was being driven and to further prove that he was driving the vehicle in a rash and negligent manner. Witnesses to the incident have also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the accused except making a bald statement that the driver of the vehicle was driving the vehicle in a rash and negligent manner which does not prove the guilt of the accused. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the accused, especially when the area was a crowded one. Reliance can be placed in this respect to the judgment of Vinod Kumar Vs. State Crl. Rev. P. no. 131/10 which states that "The FIR No. 609/04 STATE VS. Anil Kumar -: 9 :- essential ingredients to constitute an offence punishable u/s 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person". Whenever a person comes on road , he may cause an accident by driving his vehicle in rash and negligent manner but an accident may also occur due to pure inadvertence of both the parties involved in the incident. Section 80 of IPC makes an accident a defence in criminal law and where the act which caused injury is an accident pure and simple the accused cannot be made liable for it. Simply saying in a vague manner that the accused caused the accident in a rash and negligent manner is not sufficient to come to the conclusion to the guilty of the accused. A witness has to describe the actual rashness and negligence.

2. The investigation also seems to be botched up and was done more as a matter of formality then to have actually with a bonafide attempt of discovering the truth. The investigating officer deposed that when he went to the spot there was no eye witness. When he went to the hospital he do not found any eye witness but when he returned on the spot, eye witness PW­5 met him. There were serious lacunas in the statement of investigating officer. He admitted that he had not placed on record the photographs of the scene of accident FIR No. 609/04 STATE VS. Anil Kumar -: 10 :- on which the prosecution relied upon the records of the case. He deposed that the statement of eye witness Deepak was recorded at around 12 pm. The FIR was registered at around 11:45 pm. IO again came back at the spot at around 11 am. IO had met with the witness PW­5 when he returned on the spot. Then it is strange that why in the FIR, PW5 was not made a complainant. The statement of PW5 i.e. Ex. PW9/A bears section 304­A IPC. As per IO his statement was written at around 12 pm but he got the information about the death of the deceased at around 3pm.Then it was not possible for the investigating officer to have mentioned section 304­A IPC on the statement of PW5 which is Ex. PW9/D. Otherwise it would be presumed that the section was mentioned in the statement in the anticipation of the death of the deceased by the IO. IO has not bothered to investigate about the presence of the witness PW­5 on the spot or whether he was a vendor of flowers at or near the spot of accident. If the accused had fled away from the spot how he was later on arrested at the spot. The IO has not made the notice u/s 133 MV act as a part of the investigation of this case.

3. There are contradictions and ommissions in between the testimony of witnesses. The major contradictions FIR No. 609/04 STATE VS. Anil Kumar -: 11 :- are that PW­5 has not stated in his evidence that the accused was arrested by the police on the spot on his identification. Whereas PW­2 states that the accused was arrested on the spot on the identification of PW­5. IO had not deposed that the accused was arrested at the instance of PW­5. PW­ 5 does not depose that it was he who identified the accused in the mob and assisted his apprehension to the police. These are material omissions regarding the arrest of the accused. The evidence regarding the identification of the accused is vague.

21. On the basis of aforesaid discussions, I am of the considered view that it is not clear from the evidence that how the accident occurred and therefore, there is not sufficient evidence to convict the accused Harvinder Singh in the present case. Hence, he is acquitted of the offences with which he is charged.

Announced in the open court On this 24th October, 2013 (Samar Vishal) Metropolitan Magistrate­08, WEST, Tis Hazari Delhi FIR No. 609/04 STATE VS. Anil Kumar