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Delhi District Court

State vs . Rothin Pal on 19 March, 2013

IN THE COURT OF MS. SAUMYA CHAUHAN METROPOLITAN MAGISTRATE-07 (SOUTH EAST), SAKET COURTS, DELHI FIR No. : 49/10 PS : Sun Light Colony Offence complained of : 279/338/304A IPC Date of commission of offence : 11.02.2010 Unique Case ID No. : 02406R0357952010 State vs. Rothin Pal S/o Kashi Nath R/o House No. C-570, Village Nathupura PS Saroop Nagar, New Delhi .............. Accused ASI Om Prakash Yadav ............. Complainant C C No. : 181/3/11 Date of Institution : 04.06.2010 Plea of accused : Pleaded not guilty.

Date of reserving judgment/ order            : 19.03.2013
Date of pronouncement                        : 19.03.2013
Final Order                                  : Acquitted

BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 11.02.2010 at about 2.00 pm at ring road, near Hazrat Nizamuddin Flyover, falling within the jurisdiction of Police Station Sun Light Colony, the accused Rothin Pal was driving a vehicle i.e tanker bearing number DL1 GB 5526 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit against one motorcycle bearing no. HR 51-Y-6245 and caused death of Manoj Negi and caused grievous injuries to pillion rider Satender. Thus, accused Rothin Pal is alleged to have committed offence punishable under section 279/338/304A IPC.

FIR On the basis of the said allegations and on the complaint of the complainant, an FIR bearing number 49/10 under section 279/338/304A IPC was lodged at Police Station S L Colony.

CHARGE After investigation, charge-sheet under section 173 Cr.P.C was filed on 04.06.2010. The accused was summoned to face trial and he was supplied the copy of charge sheet as per section 207 Cr.P.C.

On the basis of the charge-sheet, a notice for the offence punishable under section 279/338/304A IPC was framed against accused Rothin Pal, to which he pleaded not guilty and claimed trial on 12.11.2010.

JUDICIAL RESOLUTION To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows:-

(1)That the accident actually took place.

(2)That the accident took place due to rash and negligent driving. (3)That the accused was the person who was driving the vehicle at the relevant time.

In order to prove the above said allegations, the prosecution has cited 15 witnesses, of which the Satender Kumar is the injured and Sandeep Kumar is the eye witness. All the other remaining witnesses are formal witnesses and none of them is a witness to the accident, sufficient only to prove that Manoj Negi had expired and that an FIR with respect to the said incident was lodged on the same day at PS- Sun Light Colony vide FIR bearing No. 49/10.

The injured Satender Singh Rawat was summoned to give evidence in the court. PW Satender Singh Rawat deposed that on 11.02.2010 he along with his friend namely Manoj was going to his college at Mahipal Pur on the motorcycle. Motorcycle was being driven by Manoj and he was the pillion FIR No.49/10 State Vs. Rothin Pal Page No. 2 / 6 rider. When they reached at the Nizammuddin Road, one accident occurred there. After the accident he became unconscious. He gained his consciousness at the hospital after two days.

He was cross examined by the Ld. APP. He admitted that the accident had occurred when we reached at Nizammuddin flyover, Ring Road. He deposed that he could not say whether accident was caused by hitting of a water tanker from back side as he became unconscious after the accident. He also could not say the number of the water tanker was DL1GB 5526. He denied that the driver of the tanker had come to the hospital on 13.02.2010. He could not say whether he had told to the police that the driver of the tanker came in the hospital for compromise. Witness has failed to identify the photographs of water tanker bearing no. DL1GB 5526. Witness also failed to identify the accused in the court.

During cross examination, he admitted that he had not seen the offending vehicle by which he and his friend were injured. He could not say whether police recorded his statement or not. He deposed that at the time of accident the speed of their motorcycle was about 40 Kmph.

The another eye witness Sandeep Kumar was summoned through IO/ SHO as well as through DCP concerned. However, the summons were received back unserved with the report that no such address is in existence. Thus, vide order dated 19.03.2013, the said witness was dropped from the list of witnesses.

As the injured has turned hostile, denying the entire prosecution story and the other eye witness is unserved even through DCP concerned, carrying on with further prosecution evidence and recording testimonies of formal witnesses would have become only a futile exercise, and wastage of judicial time, resources and energy.

Since the injured has turned hostile and eye witness is unserved even through the DCP concerned, the prosecution can never prove that injuries caused to the injured and the death of Manoj Negi in the present case was a FIR No.49/10 State Vs. Rothin Pal Page No. 3 / 6 result of an act of accused and that the accident was caused by the vehicle bearing number DL1 GB 5526, which was being driven by the accused Rothin Pal in a rash and negligent manner. The testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 279/338/304A IPC.

The remaining witnesses who are yet to be examined by the prosecution are all formal witnesses and none of the remaining witnesses is an eye witness to the accident. The testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 279/338/304A IPC.

The case is at the stage of PE, however, in absence of the testimony of eye witnesses there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.

In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:

"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to FIR No.49/10 State Vs. Rothin Pal Page No. 4 / 6 impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons

- cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgment, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/338/304A IPC to make the ends of justice meet, and stop the proceedings against the accused.

Final Order In absence of the testimony of eye witness and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against accused Rothin Pal qua offences u/s 279/338/304A IPC and hereby releases the accused Rothin Pal under sections 279/338/304A IPC, which shall have the effect of acquittal.

As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.

File be consigned to Record Room.

ANNOUNCED ON 19.03.2013 (SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 19.03.2013 Certified that this judgment contains 6 pages and each page bears my signatures.

(SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 19.03.2013 FIR No.49/10 State Vs. Rothin Pal Page No. 6 / 6