Delhi District Court
Sunil Kumar vs . State on 26 September, 2018
CA No.89/2018
Sunil Kumar Vs. State
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the matter of :
CA No. 89/2018
Sunil Kumar
S/o Sh. Fateh Singh
R/o Surakhpur, Jharoda Kalan,
Delhi. ..... Appellant
Versus
The State
(Govt. of NCT of Delhi). ..... Respondent
Date of Institution : 01.03.2018 Date of conclusion of arguments : 19.09.2018 Date of Order : 26.09.2018 J U D G E M E N T :
1. The present appeal is preferred by appellant against the impugned judgment dated 25.01.2018 and impugned order on sentence dated 09.02.2018 passed by Page No.1 of 16 CA No.89/2018 Sunil Kumar Vs. State Ld. MM05, Tis Hazari Courts, Delhi whereby appellant has been sentenced to undergo RI for a period of six months for the offence U/s 279 IPC with fine of Rs. 1,000/ and two years RI for the offence U/s 304A IPC with fine of Rs. 2,000/ and the compensation of Rs. 50,000/ to the LR's of the deceased. (For the sake of convenience the convict / accused is hereby referred to as the appellant).
2. Brief facts relevant for disposal of the present appeal are like this. The information of accident was received in PS Palam which was reduced in writing vide DD No. 50 B dated 16.12.2012. The contents of which are read as under : "That one person in unconscious state is lying near milk booth and after lodging the report copy has been given to SI Ram Kumar, who along with Ct. Lachche Ram proceeded to the place of accident for legal action. Page No.2 of 16 CA No.89/2018
Sunil Kumar Vs. State Thereafter, DD No. 51 B was lodged. The contents of which reduced as under :
"That Bus No. DL 1P 7143 after accident is proceedings towards Najafgarh. IO recorded the Rukka on the statement of Brij Lal, who has stated that the deceased Sumit Kumar, brotherinlaw of Sajjan Kumar had left house on scooter No. DL 1SA 6626 and after 1015 minutes i.e. about 10.15 pm, he has received a message that deceased has met with an accident". On the basis of rukka, FIR under Section 279/304A IPC was lodged and during investigation notice under Section 133 of the Motor Vehicle Act was issued to the owner of the offending vehicle, who submitted that the offending vehicle was being driven by the appellant on the fateful day. Thereafter, the appellant was arrested on 29.03.2001. Statement of alleged eye witness Ct. Vikas was recorded on 02.03.2001 and thereafter, the charge sheet was filed. Page No.3 of 16 CA No.89/2018
Sunil Kumar Vs. State
3. Ld. Trial Court framed the notice against the appellant and prosecution led evidence. PW1 Ct. Jagdish Singh testified that on 06.03.2001, on getting information through secret informer, Bus No. DL 1P 7143 was seized through seizure memo Ex. PW1/A. PW2 HC Mahabir Singh proved the FIR as Ex. PW2/A. PW3 Sh. Brij Lal Goel identified the dead body of the deceased through Memo Ex. PW3/A. PW4 Sh. Surender Singh was a surety. PW5 Retd. ASI (Tech) Devendra Kumar conducted mechanical inspection of the scooter of the deceased through Ex. PW5/A. PW6 Sh. Sajjan Kumar proved the ownership of the scooter No. DL 1SA 6626 through Ex. PW6/A, which was got released through Ex. PW6/A. PW7 Ct. Vikas is alleged eye witness. PW8 ASI Lachhi Ram accompanied SI Ram Kumar. PW9 Dr. Lalit Kumar conducted the postmortem of the deceased. PW10 Inspector Ram Kumar is IO.
Page No.4 of 16 CA No.89/2018
4. Thereafter, the accused was examined under Section 313 Cr. P. C. and accused did not lead any defence evidence and after conclusion of trial, accused has been convicted accordingly and sentenced through impugned order.
5. During the course of the arguments, Ld. counsel for the appellant has raised following contentions namely :
i) That FIR was lodged on the statement of Brij Lal, who is not an eye witness, and when the IO reached the spot of incident, no eye witness was examined despite availability of number of public persons.
ii) That the alleged eye witness, who happens to be police officials in the Police Station where the present FIR was lodged was examined as eye witness by the IO on Page No.5 of 16 CA No.89/2018 Sunil Kumar Vs. State 02.03.2001, whereas the accident has taken place on 16.12.2000, therefore, the alleged eye witness has been planted by the IO in order to falsely implicated the appellant in the present case.
iii) The case of the prosecution is further rendered doubtful inasmuch as the alleged eye witness PW7 after chasing the offending vehicle upto Najafgarh returned to the spot but PW7 neither informed the IO nor the SHO and he waited for more than two and a half months to appear as a eye witness of the alleged accident.
iv) The deceased was wearing helmet at the time of the driving of the scooter but no seizure memo was prepared by the IO regarding seizing of any helmet from the spot of accident.
v) The prosecution has not produced any document that the road where the alleged accident has taken place was closed by the traffic police for heavy Page No.6 of 16 CA No.89/2018 Sunil Kumar Vs. State vehicles in terms of deposition of PW7, the alleged eye witness. The appellant has been falsely implicated in the present case and there is no evidence on record to connect the appellant with the alleged accident in which the deceased died.
vi) The appellant was driving the vehicle on the route of bus no. 817. No accident has been caused by the vehicle driven by the appellant. This appeal deserves to be allowed and the impugned order and the impugned order of sentence deserves to be setaside.
6. Per contra, State counsel submitted that the appellant was driving the offending vehicle in a rash and negligent manner inasmuch as he was plying his vehicle on a route which was closed by the traffic police and after accident in question, the appellant fled away from the spot and he was chased on a scooter by PW7, who happened to Page No.7 of 16 CA No.89/2018 Sunil Kumar Vs. State be Constable posted in PS Uttam Nagar, but thereafter, the offending vehicle disappeared and the eye witness inadvertently could not informed the concerned police authorities. But, thereafter, PW7 stated to the IO that he is eye witness to the alleged accident in which the deceased died. Therefore neither there is any unusual conduct of alleged eye witness nor there is any contradiction in his testimony which may create doubts regarding the story of prosecution that PW7 had not witnessed the alleged accident. Nonseizure of helmet is not going to affect the case of the prosecution inasmuch as the prosecution has proved the factum of the death of the deceased in the accident. There was no need to place on record any document that the day on which the accident has taken place road was closed by the traffic police inasmuch as the deceased died on account of rash and negligent driving of the offending vehicle by the appellant, Page No.8 of 16 CA No.89/2018 Sunil Kumar Vs. State therefore, in these circumstances, this appeal deserves to be dismissed.
7. I have heard the ld. counsels for the parties and have gone through the record as well.
8. It may be noted that the main contention of the counsel for the appellant is that PW7, the alleged witness has been planted by the prosecution and I found force in the said contention inasmuch as the criminal law was set into motion on receipt of DD Number 50 B dated 16.12.2000 at Police station Uttam nagar, Delhi whereby it was informed that one person who has become unconscious in an accident and lying near milk booth, Main Bus Terminal, Uttam Nagar. The DD was assigned to SI Ram Kumar who along with Lachhi Ram proceeded to the spot of accident and at the spot of incident Brij Lal, relative of Page No.9 of 16 CA No.89/2018 Sunil Kumar Vs. State the deceased/Sumit Gupta, met IO and who had stated that he found dead body of the deceased lying nearby his scooter and the person present at the spot told Brij lal that Bus No. DL 1P 7143 after accident was taken by the driver towards Najafgarh.
9. It may be relevant to mention here that the prosecution case rest on the testimony of PW7, the alleged eye witness but presence of PW7 on the spot is not only ruled out from his conduct but even from his deposition also inasmuch as PW7 has testified that he was present at the spot on the day of incident, and the aforesaid offending vehicle being driven in a rash and negligent manner by the appellant, hit against the scooter driven by the deceased and the deceased died. Public persons at the spot had made a call at number 100. PW7 after getting stopped the scooterist boarded the same as pillion rider Page No.10 of 16 CA No.89/2018 Sunil Kumar Vs. State and chased the offending vehicle, which disappeared and thereafter he came to the police station. The said incident had taken place within the jurisdiction of PS Uttam Nagar where PW7 had posted but PW7 neither informed the IO nor the SHO regarding the alleged accident in which the deceased died that the appellant was driving the offending vehicle. But after a period of two and a half months, suddenly, PW7 appeared as a witness and identified the appellant as the driver of the offending vehicle. It may be also relevant to observe here that the name of the appellant as driver of the offending vehicle came to the knowledge of the IO on 18.12.2000 when the owner of the offending vehicle had produced the bus in terms of notice under Section 133 of M.V. Act. Thereafter, also PW7, the alleged eye witness did not inform the IO nor the IO tried to find out any eye witness and suddenly PW7 who happened to be posted as a constable in PS Uttam Nagar Page No.11 of 16 CA No.89/2018 Sunil Kumar Vs. State appeared as a witness and narrated the whole incident to the IO.
10. Therefore, the conduct of the PW7 right from the beginning is unnatural. The prosecution has failed to explain the delay in searching out the alleged eye witness of the accident and how and when the said eye witness come to the IO to explain the whole story. Though not quoted and relied upon by Counsel for the parties but in the judgments 2007(3) C. C. J. 561, "State of J & K Vs. Sohan Lal Koul", 1999(2) C.C. J. 437, "Sunder @ Surinder Vs. State of Haryana", 2003 (3) C. C. J 340 "State of Punjab Vs. Sudama" and "State of Punjab Vs. Gurdip Singh", 2004 (1) C.C.J.186, it has been mandated that if the accused has been identified for the first time in the court, such deposition is not sufficient to warrant conviction of the accused. It may be relevant Page No.12 of 16 CA No.89/2018 Sunil Kumar Vs. State herein to mention that in Sohan Lal case (supra), the accused (therein) was identified first time in the court by the eye witness and in these circumstance the accused (therein) was given the benefit of doubt and acquitted accordingly. In the case Sunder @ Surinder (supra) the PWs were not knowing the accused (therein) previously and no TIP was held, therefore, in these circumstances the identification of the accused (therein) by the PWs was held not sufficient to convict the accused (therein) and therefore he was given the benefit of doubt. In the case Sudama (supra), the accused (therein) was identified by the alleged eye witness first time in the court without holding any TIP by the prosecution and even the IO has testified that the accused (therein) was produced by one person but no explanation was given that how the said person came to know that accused (therein) was involved in the accident and in these circumstances, accused was acquitted. In the Page No.13 of 16 CA No.89/2018 Sunil Kumar Vs. State same manner in Gurdip Singh (supra) both the eye witnesses had not seen the eye witness at the spot but identified the accused (therein) for the first time in the court and in these circumstances, accused (therein) was acquitted.
11. Apart from the said unnatural conduct of eye witness PW7, his deposition did not inspire confidence that he was the eye witness of the accident in which the deceased died inasmuch as the PW7 in his examination inchief testified that he had taken the lift from the scooterist on the road and chased the offending vehicle whereas in the crossexamination he admitted that he was on his own motorcycle standing at the side of the road and the offending vehicle was coming from the side of Uttam Nagar Therefore, viewed from every angle, it can be safely concluded that PW7 was not an eye witness to the said Page No.14 of 16 CA No.89/2018 Sunil Kumar Vs. State accident and he was not present at the spot when the accident took place. As discussed above, the conduct of PW7 is wholly unnatural and unbelievable, therefore, his testimony cannot be relied upon to draw an irresistible conclusion that the accident in which the deceased died happened on account of offending vehicle driven by the appellant in a rash and negligent manner. So far as regarding nonseizure of the helmet is concerned, suffice is to say that the said lacuna in the investigation is not going to affect the present case and this contention pales into insignificance on account of observation made herein above in the foregoing paragraphs. As per the ratio of the abovesaid case law, identification of the accused for the first time in the court cannot be relied upon to convict the appellant.
12. From the above discussions, I am of the opinion Page No.15 of 16 CA No.89/2018 Sunil Kumar Vs. State that trial court has not appreciated the testimony of PWs specifically that of PW7 Ct. Vikas the alleged eye witness and the appellant is held guilty for the commission of offences punishable under section 279 IPC and 304A IPC but as discussed above, it is crystal clear that neither PW 7 Ct. Vikas was present at the spot nor he had identified the appellant at any previous stage before getting his deposition recorded, therefore, the impugned judgment deserves to be set aside and is hereby set aside. This appeal is hereby allowed and disposed of accordingly. Bail bond / surety bond of appellant stands cancelled. Appeal file be consigned to record room. Trial Court Record be sent back alongwith copy of this judgment.
Announced in the open court today, On 26.09.2018. VIJAY Digitally signed by VIJAY KUMAR DAHIYA KUMAR Date: DAHIYA 2018.09.29 12:37:35 +0530 (Dr. V.K. DAHIYA) SPECIAL JUDGE : CBI (PC ACT) DWARKA COURTS/DELHI Page No.16 of 16