Delhi District Court
State vs Arjun on 11 October, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-01,
SOUTH-WEST, DWARKA COURTS, NEW DELHI
- PRESIDED BY:
PARAS DALAL, D.J.S.
FIR No. 370/2012
PS Palam Village
U/S : 279/338/304A Indian Penal Code, 1860
State V/s Arjun
Cr.C No. : 425541/2016
CNR No. : DLSW020004422013
Date of Institution : 06.12.2013
Name of complainant : Smt. Kanti Devi
W/o Sh. Ram Sahay Ram
R/o D-189, Gali No.52,
Mahavir Enclave-III,
New Delhi
Name of accused, parentage and address : Arjun
S/o Sh. Vashu Dev
R/o Village Purehakim,
P.S. Jayas, Distt. CSM Nagar,
Uttar Pradesh
Offence complained off : 279/338/304A IPC
Plea of accused : Not guilty
Date on which final arguments heard : 22.09.2022
Final order : Acquitted
Date of Judgment : 10.10.2022
FIR no. 370 of 2012; P.S. Palam Village Pages 1 of 11 State v. Arjun
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Argued by: Sh. Manoj Kumar, Ld. APP for the State.
Sh. Sameer Goel, Ld. Counsel for accused.
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JUDGMENT
1. The SHO, Police Station Palam Village has presented this charge-sheet against above named accused for initiation of trial U/s 279/338/304A Indian Penal Code, 1860 (for short "IPC").
2. Briefly, the case of the prosecution is that on 24.09.2012 after receipt of DD no.26A about an accident, Accident SI Dinesh went to spot near Drain Road Mahavir Enclave-III Bus stand where he met Ct. Vijay who produced one person Arjun stating that he had hit one women and man by his Maruti car bearing no. DL 1LM 1218. Ct. Vijay further stated that both the injured have been taken to DDU Hospital by the PCR. SI Dinesh then reached DDU, Hospital where he received MLC No. 19767 of injured Kanti Devi and MLC No. 19768 of injured Ram Sahay Ram who was declared brought dead by the doctor. SI recorded statement of injured Kanti Devi who deposed that deceased Ram Sahay Ram is her husband, at about 4:30PM when they reached near Mahavir Enclave-III Bus stand and were crossing the road one Maruti car being driven in rashly manner was coming from Dabri and she waved the driver to stop, but he did not stop and hit her as well as her husband. She further stated that driver was stopped by people present and upon query his name was revealed as Arjun S/o Vasudev and she stated the number of the car as DL 1LM 1218 Omni van make Maruti. Based on the statement of injured Kanti Devi and the MLC, the present FIR was registered under Section 279/337/304A IPC. IO/SI Dinesh then reached the spot and injured Kanti Devi also reached there with relatives and upon her pointing out the site plan was prepared and further disclosure of accused was recorded, wherein he was arrested and released on bail. SI FIR no. 370 of 2012; P.S. Palam Village Pages 2 of 11 State v. Arjun Dinesh further collected the post mortem report, the mechanical inspection report and seized R/C, fitness, insurance and road tax alongwith driving license of the accused. Injuries to victim Kanti Devi were opined as grievous and hence Section 338 was added. After completion of the entire investigation, final report was presented for trial against accused Arjun.
3. After presentation of charge-sheet, accused was summoned. Copy of the charge-sheet were supplied to accused u/S. 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Thereafter, charge u/s. 279/338/304A Indian Penal Code (for short 'IPC') was framed against the accused on 08.08.2014 to which he pleaded not guilty and opted to contest.
4. In order to prove the guilt of the accused, prosecution examined 11 prosecution witness (herein after referred to as 'PW'): PW1 Kanti Devi deposed that on 24.09.2012, she alongwith her husband were coming to their house after purchasing vegetables. She deposed that they de-boarded the bus and were crossing the road, when one Omni van bearing no. DL1LM1218 coming in very high speed from Dabri side, hit them despite they gave signal to the driver of the vehicle to stop. She deposed that after the accident, people gathered and caught the driver who revealed his name as Arjun. She stated that police took them to DDU Hospital and her husband was declared brought dead. She stated that police wrote her complaint Ex.PW1/A bearing her signature at point B. She even identified her signature at point A of the site plan Ex.PW1/B and photographs of the offending vehicle Ex.PW1/C to Ex.PW1/H. PW1 expressed inability to identify the accused in the Court, but on pointing out of the Ld. APP for the State after seeking permission to put leading question, PW1 was able to identify Arjun in the Court. PW1 was cross examined at length and she answered that she gave statement to police twice and never signed any FIR no. 370 of 2012; P.S. Palam Village Pages 3 of 11 State v. Arjun blank paper. PW1 admitted that the road were running parallel cut by a divider in the middle, however she was unable to tell the exact width of the road and stated that both sides of the road were more than 30 feet wide. She further admitted that there was traffic on the road including heavy truck. She answered that distance of the place of incident to that of red light was about 250 feet. PW1 failed to remember if there was zebra crossing on the road and stated that she was crossing the road with her husband and she was on the left side of the husband towards the divider. PW1 in her further cross examination admitted she does not know the meaning of word 'gaflat'. She answered that she first saw the vehicle at the distance of 80 feet and further answered that site plan was prepared in her presence in police station on 25.09.2012, wherein she could not remember the exact time but stated it to be in the afternoon. PW1 further answered that when she first saw the car, she was about to cross the divider. PW1 denied that when she was crossing the road, some other vehicle hit her and her husband and then they fell on the car of the accused. PW1 could not tell if the light was red or green and at the time of accident stated that there was only one car of the accused on the road. PW1 stated that the vehicle was being driven at high speed, however she could not tell the speed. PW1 also could not tell how much time she took to reach point A from the side of the road as appearing in the site plan Ex.PW1/B.
5. PW 2 Rajesh Ram and PW3 Kamakhya Narayan Ram, are both brother of the deceased who deposed that on 25.09.2012 they had gone to Mortuary DDU Hospital where they identified the dead copy of their brother Ram Sahay and the memo was Ex.PW2/A. FIR no. 370 of 2012; P.S. Palam Village Pages 4 of 11 State v. Arjun
6. PW4 Ram Suresh is the owner of the offending vehicle and he exhibited his reply to notice under Section 133 MV Act as Ex.PW4/A and his superdarinama for release of vehicle in Ex.PW4/B.
7. PW5 Pooran Chand conducted the mechanical inspection of the offending vehicle and his report is Ex.PW5/A. PW6 HC Kailash Chander was Duty Officer P.S. Palam Village and is another formal witness who exhibited his the copy of the FIR Ex.PW6/A as well as his endorsement on original rukka as Ex.PW6/B at his signature at point A.
8. PW7 Constable Vijay Kumar deposed that on 24.09.2012 he was on patrol duty when he received an information regarding accident. PW7 further stated that he reached the spot i.e. Drain Road, Mahavir Enclave-III, near bus stand and saw accidental vehicle Omni Van bearing no. DL 1LM 1218 which had hit injured one man and one woman and also stated that public had gathered. He further stated that one PCR was also present and it took injured to the DDU Hospital and public persons handed over the driver who was apprehended by them. PW7 stated that after some time IO reached the spot and left him at the spot while he went to DDU Hospital. PW7 further deposed that IO returned from the Hospital, prepared ruuka and handed over him the same for registration of FIR. PW7 further stated that after registration of FIR he returned to the spot and handed over copy of the FIR to IO. PW7 identified seizure memo of vehicle bearing no. DL 1LM 1218 as Ex.PW7/A; road tax receipt of offending vehicle Ex.PW7/B, seizure memo of documents (DL, RC, fitness, insurance) of offending vehicle Ex.PW7/C and arrest memo of accused Ex.PW7/D, all bearing his signature at point A. PW7 also identified the case property through photographs Ex.PW1/C to Ex.PW1/H. PW7 was cross examined wherein he was not eye witness to the accident and he could not see the exact FIR no. 370 of 2012; P.S. Palam Village Pages 5 of 11 State v. Arjun position of the injured persons at the spot due to the crowd that gathered. PW7 further answered that the parallel roads of 30-35 feet width each had divider in the middle and red light was about 50-100 feet away from the spot. PW7 could not tell the distance between the spot and the zebra crossing and stated that at the time of accident there was no railing at the divider. He further stated that IO tried to join public witnesses but no one came forward.
9. PW8 SI Dinesh is the investigating officer of the case and he deposed that receipt of information of accident he went to the spot and met Ct. Vijay who had already apprehended driver of the offending vehicle Arjun and one Omni van DL 1LM 1218 was present at the spot. PW8 deposed that injured were already shifted to DDU Hospital and after he leaving Ct. Vijay to guard the spot, he went to the Hospital and there he found one Kanti Devi who stated that her husband died due to accident. MLC was collected and statement of Kanti Devi was recorded and he prepared rukka Ex.PW8/A which was later given to Ct. Vijay for registration of FIR. PW8 deposed that site plan was prepared at the instance of Kanti Devi which is Ex.PW8/B bearing his signature at point B. PW8 further deposed about seizure memo of offending vehicle, road tax receipt, documents of the vehicle already exhibited by PW7 and stated that all bore his signature at point B. PW8 also identified the arrest memo of the accused Arjun and handing over of the dead body to the relative vide Ex.PW8/B. PW8 also identified the accused and offending vehicle. PW8 was cross examined at length and he answered that he reached the spot at 5:30 PM and hospital at 6 PM. PW8 stated that he remained in the hospital for one hour and recorded statement of complainant PW1. PW8 further answered that he came to the spot at 7:30 PM and injured Kanti Devi alongwith her relatives reached the spot at about 9:30 PM and at her instance the site plan was FIR no. 370 of 2012; P.S. Palam Village Pages 6 of 11 State v. Arjun prepared. PW8 stated that they all left the spot after completion of proceedings at 10:30/11 PM alongwith Ct. Vijay. PW8 admitted that there were skid marks of he vehicle on the road, but could not tell if the same were for the offending vehicle or any other vehicle passing through that road, but he admitted not having clicked the pictures of those skid marks. PW8 also admitted that there is parallel road 25-30 feet width each having divider in the middle with no railing or bushes on the said divider. PW8 further answered that the red light was at a distance of about 25-30 meters away from the spot and he did not remember of there was any zebra crossing at the spot or near the spot.
10. PW9 Azad Singh deposed that he was posted at MACT Cell South West District and investigation was handed over to him. He deposed to have verified the driving license of the accused and papers of the offending vehicle. PW9 further stated the he collected the post mortem report and result of MLC wherein injury to Kanti Devi was opined grievous and deposed to have prepared the chargesheet and filed the same in Court.
11. PW10 ASI Kailash Chand was the Duty Officer who deposed about the DD No.26A and information to SI Dinesh for further action. He exhibited the DD no.26A as Ex.PW10/A. PW11 Ct. Sushil Kumar is another formal witness of the police who brought register no.19 and exhibited entry no.5899 about deposit of offending vehicle DL 1LM 1218 and exhibited the same as Ex.PW11/A.
12. Accused Arjun was called under Section 294 CrPC wherein he admitted MLC no.19767/12 of Kanti Devi, x-ray report Ex.A2 and Ex.A3 on 16.04.2018. Earlier also accused admitted genuineness of post mortem FIR no. 370 of 2012; P.S. Palam Village Pages 7 of 11 State v. Arjun report Ex.AA, unnatural death report Ex.AB, MLC Ex.AC, all of Mr. Ram Sahay.
13. The statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 24.05.2018, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He stated that he was not driving the vehicle on the above said date and time in rash and negligent manner and neither he hit the injured or deceased. Accused wished to lead DE.
14. Accused moved an application under Section 315 CrPC and same was allowed. Accused stepped in witness box as DW1 and deposed that on 24.09.2012 at about 4-5 PM, he was coming from Dabri side. He stated that when he reached Drain, Mahavir Enclave-III, two persons namely Kanti Devi and Ram Sahay crossed the road and came suddenly in front of his van as per the site plan Ex.PW1/B due to which both were hit. He stated that the signal was green and accident took place 100 metres away from the place of accident. He stated to have stopped the vehicle and looked at both the persons of which Ram Sahay was lying on the road and Kanti Devi was sitting on the side of the road due to injuries. He stated that police came to the spot and thereafter he went to the police station. DW1 was cross examined and denied the suggestion that he was concocting the story to save himself. He further denied that he was driving in rash and negligent manner when the accident occurred, and further denied that the deceased and injured never came before his car suddenly and that accident occurred due to his negligence.
15. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by FIR no. 370 of 2012; P.S. Palam Village Pages 8 of 11 State v. Arjun examining all the material witnesses who have supported the prosecution version in material aspects. Accordingly, conviction of accused was prayed.
16. On the other hand, learned counsel for the accused argued that the prosecution has failed to prove its case beyond all reasonable shadow of doubts. Defense argued that the only eye witness is PW1 who denied understanding the term 'gaflat' and further argued that the prosecution has not been able to justify the presence of the both the persons on the road with no zebra crossing and also without any red light meant for pedestrian to cross the road.
17. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, this court is of the opinion that there is only one point for determination, whether on 24.09.2012 accused drove the offending vehicle in a rash and negligent manner and thereby caused death of Ram Sahay and grievous hurt to Kanti Devi.
18. Without going into the details of entire record, the above point can be determined by considering the testimonies of PW1 as no other public witness was examined by the prosecution. There is substance in the arguments of the accused side that the sole eye-witness who is also an injured could not or did not depose about the complete facts. She did not mention where the zebra crossing was present, what was the speed at which the offending vehicle was travelling and she failed to substantiate the meaning of the word 'gaflat'. It is trite law that offence of rash and negligence is not without 'mens rea' and the prosecution is duty bound to prove the mental element of recklessness on part of the accused. In the present case, the injured/ eye witness could not state the speed, rashness or FIR no. 370 of 2012; P.S. Palam Village Pages 9 of 11 State v. Arjun exact place where accident took place. It is undisputed that the accident occurred in the middle of the road, however the injured and deceased being on the road without any signal, zebra crossing or without due care cannot be equated to rashness or negligence of accused. The injured/ eye witness could not even depose whether there was zebra crossing, specific lights for the pedestrian. PW1 deposed that she saw the vehicle first at a distance of about 80 feet and stated that she waved at the car to stop. From a vehicle being driven on the road with no zebra crossing or pedestrian light approaching, 80 feet will definitely be not sufficient to spot pedestrian and stop the car, irrespective of the speed. PW1 and her husband being on a wide road of about 30 feet each on both ways divided by a divider without any grill ought to have exercised more caution in crossing the road, especially when there was no pedestrian light or zebra crossing to warn car drivers.
19. Apart from the above testimony of PW1, no other police official deposed about the spot in details and there is no photograph on record. Although the site plan is on record, however there is nothing to show as to where the actual zebra crossing was present. Moreover, the investigating officer failed to click pictures or recover any tyre marks at the spot or examine any eye witness. In absence of the above, this Court is unable to hold that the driver acted rashly and negligently. There is highly likely that the present incident was an accident or misfortune.
20. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the FIR no. 370 of 2012; P.S. Palam Village Pages 10 of 11 State v. Arjun basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
ORDER: ACQUITTED
21. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused, who is entitled to be exonerated of the charge against him in the present case. Accordingly, accused Arjun is hereby acquitted of the offence punishable under Section 279/338/304A IPC.
Digitally signed by PARAS PARAS DALAL Date:
DALAL 2022.10.11 15:51:06 +0530 Announced in Open Court (Paras Dalal) on this October 10, 2022 MM -01, South West Dwarka Court, New Delhi FIR no. 370 of 2012; P.S. Palam Village Pages 11 of 11 State v. Arjun