Delhi District Court
State vs . Mahesh Kumar on 1 August, 2018
IN THE COURT OF SH. DEEPAK KUMAR - II, METROPOLITAN
MAGISTRATE 06, DWARKA COURTS, NEW DELHI
FIR No. 62/2013
PS: Dwarka North
U/s.279/337 IPC
State Vs. Mahesh Kumar
JUDGMENT
A. Sl. no. of the case : 422405/2016
B. Date of institution : 31.05.2013
C. Date of offence : 24.02.2013
D. Name of the : Sarvender S/o Sh. Shyama Kumar
E. Name of the accused : Mahesh Kumar S/o Sh. Balwant Singh
F. Offence complained of : U/s 279/337 IPC
G. Plea of accused : Pleaded not guilty.
H. Final order : Acquitted
I. Date of such order : 01.08.2018.
Brief Statement of Reasons for Decision
1. Briefly stated, the facts of the case as culled out from the chargesheet are that on 24.02.2013 at about 08.00 PM, in front of the office of the Shiv Property Dealer, Old Palam Road, Shiv Park, New Delhi the accused herein was driving a motorcycle bearing registration no. HR10P8937 in rash and negligent manner, so as to endanger human life and personal safety of others and while driving the said vehicle in the aforesaid manner, he hit the same against the cyclist namely Sarvender Kumar State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 1/11 i.e. the complainant herein and caused simple injuries to him. During the course of investigation, IO/SI Sita Ram visited the spot where he did not found any accidental vehicle nor any injured and he came to know that injured has been shifted to DDU Hospital. The opinion on the MLC No. 4681/13 qua injured was kept pending and due to pain the statement of the victim was not recorded and his statement was only recorded on 01.03.2013. Thereafter the instant case FIR was registered. Site plan was prepared, statement of witnesses were recorded, vehicle was mechanically inspected. On conclusion of investigation, the present chargesheet under section 279/337 IPC was filed in the court.
2. Accused was summoned by the court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC, the copy of the chargesheet and the documents annexed with it were supplied to the accused. Prima facie charge U/s 279/337 IPC was made out against the accused. On 10.10.2013 notice was framed against the accused by the Ld. Predecessor of this court. The accused pleaded not guilty and claimed trial to the said notice. Thereafter, the case proceeded for prosecution evidence.
3. In order to substantiate its case, the prosecution examined total ten witnesses. PW1 Sarvender Kumar deposed that on 24.02.2013 at about 8:00 PM he went to his office for attending his duty on bycycle and when he reached near Shiv Property, Shiv Park, one motorcycle number HR10P8937 coming from the Dwarka side in a very high speed in a rash and negligent manner hit against cycle; he fell down on the road and received injuries in his right leg; three persons were sitting on the motorcycle; his cycle also got damaged; motorcyclist also fell on the road; accused was correctly identified by the witness; he was taken to the hospital by a CAT Ambulance as some public persons had made a call on 100 number; PCR had State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 2/11 reached the spot; as he had sustained major injury on his leg he was not shifted to hospital in PCR; he alongwith accused were shifted to DDU hospital; on the same day police reached at hospital for recording of his statement; however, he did not gave the statement at that time due to severe pain; he remained admitted in DDU hospital for 16 days; his statement dated 01.03.2013 recorded by IO is Ex.PW1/A; the said accident was caused due to the rash an negligent driving of the accused; he correctly identified the motorcycle bearing no. HR10P8937 already Ex.P1.
4. In his cross examination he deposed that his statement was not recorded on 24.02.2013, but the same was recorded on 25.02.2013; after 25.02.2013 his statement was never recorded; police official also never met him after 25.02.2013; there was a footpath on the road where the accident had taken place; police never took him at the spot of incident; at the time of accident his bycycle was on footpath; it is true that motorcycle was coming in his proper lane and he was going in opposite direction. On court question being asked the witness deposed that at the time of collousion he alongwith motorcycle were on the footpath; the offending vehicle came over the footpath and hit him. He further deposed that there was water logging on the road and a Maruti Van was being driven in front of the offending vehicle and as the offending vehicle tried to over took the van, the motorcycle got into the mud and accident took place; he was riding the vehicle on the wrong side and no public person was walking on the footpath. On Ex.PW1/A i.e. the statement of witness recorded on 01.03.2013 he deposed that it is the same statement that has sbeen recorded by the police on 25.02.2013; he never visited the police station
5. PW2 Sanjeev Kumar proved the notice under section 133 of the M.V Act as received by him as Ex.PW2/A and reply thereof as Ex.PW2/B; the superdarinama vide which he got the vehicle i.e. the motorcycle number HR10P8937 released is State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 3/11 Ex.PW2/C and the motorcycle is Ex.P1. This witness was not cross examined by the defence despite opportunity being afforded to them.
6. PW3 ASI Ramesh Chand proved the endorsement on the rukka as Ex.PW3/A; copy of FIR as Ex.PW3/B(OSR). Nothing material came on record during the cross examination of this witness.
7. PW4 HC Yudhvir Singh proved the entry no. 673 and 757 in register no. 19 as Ex.PW4/A (OSR) and PW4/B(OSR) respectively. This witness was not cross examined by the defence despite opportunity being afforded to them.
8. PW5 Dharmender Kumar deposed that on the date of incident at the spot he saw that crowd had gathered and he saw his brother Sarvender lying in the injured condition alongwith his bycycle and he also saw one motorcycle bearing no. HR10P 8937 alongwith other injured person who had sustained injuries on his hand. Accused was correctely identified by this witness; he accompained his brother and Mahesh Kumar to the hospital in ambulance where his brother was treated and accused was given first aid; thereafter accused ran away; on 01.03.2013 he visited to the police station for knowing the status of the case of his brother, where he saw the accused sitting there and where he identified him; he proved the arrest memo of the accused as Ex.PW5/A and personal search memo as Ex.PW5/B; the witness also correctly identifed the photographs of the offending vehicle, already exhibited as Ex.PW1/B (colly).
9. In his cross examination he deposed that he cannot say as to how the accident took place as he was not present there; he remained in the hospital for about 8 days when his brother was being treated; police recorded his statement in the hospital i.e. the same day i.e. on 24.02.2013; police had obtained his signatures on State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 4/11 some written documents but he do not remember the contents of the same and that his signatures were also taken by the police in the police station; his statement was recorded only once and that to in the hospital.
10. PW6 Dr. Deep Shikha deposed that on 24.02.2013 the injured Sarvender was examined by Dr. V.P Shastri under her supervision vide MLC No. 4681/13 which is Ex.PW6/A and she can identify the signatures of Dr. V.P Shastri as she had worked with him. In his cross examination she deposed that there are no signature of her on Ex.PW6/A, however, the patient was examined under her supervision.
11. PW7 Ct. Rajbir deposed that on 01.03.2013 Ashwani S/o Sh. Shyama Kumar brought one accidental cycle make Hero Jet Plus to the PS and the same was seized vide seizure memo Ex.PW7/A. In his cross examination by Ld. APP for the State that he deposed that the cycle was brought to PS and seized by IO on 18.04.2013 and he inadvertently mentioned the date as 01.03.2013; witness correctly identifed the cycle as Ex.P1 and its photograph as Ex.P2. In his cross examination he deposed that he do not remember as to whether the signatures of the person who brought the bycycle in the PS was obtained by the IO or not.
12. PW8 Pooran Chand deposed that he mechanically inspected the bike and prepared his report as Ex.PW8/A. His cross examination remained inconclusive till date.
13. PW9 HC Lakhmi Chand deposed that on 01.03.2013 SI Sita Ram gave him a notice u/s 133 of the M.V Act for its service upon the registered owner of the vehicle bearing no. HR10P8937. Registered owner of the vehicle namely Sanjeev Kumar came to PS with accused Mahesh Kumar and told the IO that motorcycle was being driven by the accused at the time of accident; accused was correctely identified State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 5/11 by this witness; IO prepared the tehrir and handed over the same to DO for registration of FIR; SI Sita Ram alongwith accused went to the spot at about 6:20 PM; DO handed over him the copy of FIR and original tehrir which he gave to IO/ SI Sita Ram by going to the spot; motorcycle was seized vide seizure memo Ex.PW9/A; driving license, RC and insurance of the offending vehicle were seized vide seizure memo Ex.PW9/B; this witness correctly identifed the offending vehicle.
14. In his cross examination he deposed that he had made DD entry before leaving the PS but do not remember the same; his statement was recorded on 01.03.2013 at about 7:00 PM; he had not visited the house of the registered owner of the offending vehicle for service of notice u/s 133 of the M.V Act; he voluntarily deposed that some other police official might have served the notice under section 133 of the M.V Act; he further deposed the photograph which have been identified today were clicked at the spot.
15. PW10 SI Sita Ram deposed about the investigation conducted by him in pursuance of DD No. 51B which is Ex.PW10/A; he also deposed that he neither found the injured nor the offending vehicle at the spot; on 01.03.2013 he went to DDU hospital to obtain the nature of MLC of the injured by the concerned doctor; the rukka prepared by him is Ex.PW10/B and handed over the same to DO for the registration of FIR; he gave notice u/s 133 of the M.V Act to the registered owner of the vehicle and thereafter the registered owner and accused came to the PS; accused was correctly identified by this witness; site plan was prepared at the instance of eye witness Dharmender which is already Ex.PW1/X1; brother of the complainant produced the cycle in question on 18.04.2013; he obtained the MLC result of the injured; prepared the chargesheet; the offending vehicle and cycle were correctly identified by the witness.
State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 6/11
16. In his cross examination he deposed that on 24.02.2013 he did not recorded the statement of any witness; he had recorded his arrival entry after investigation on 24.02.2013 but has not placed the same on record; he did not collected any record in respect of fact that the injured remained admitted in the hospital; that the place of incident was having shops nearby and heavy traffic used to remain on road at the place of incident; the site plan which he had prepared is correct; he had not recorded the statement of any shopkeeper whose shop was situated at the spot; he had sent one constable for service of notice u/s 133 of the M.V Act; he had not made the said constable as a witness in the case; he do not know the name of the pillion riders who was riding on the motorcycle of the accused.
17. On 18.11.2016 in his statement recorded under Section 294 r/w 281 r/w 313 CrPC the accused admitted the genuineness of the Xray report as Ex.P/A/1. Thereafter PE was closed and statement of the accused under section 313 CrPC was recorded. All the incriminating evidence against the accused was put to him for seeking his explanation. He stated that he is innocent and has been falsely implicated in the present case. Accused further opted not to lead any evidence in his defence. Hence, the same was closed and the matter was listed for final arguments.
18. I have heard Ld. APP for the State and Ld. counsel for the accused and have also carefully perused the case file.
19. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 7/11 prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
20. In order to prove the guilt of the accused the prosecution is required to prove the following ingredients as mentioned under section 279/337 IPC:
(i) that the accused was driving his offending vehicle on a public way in rash or negligent manner.
(ii) that the said act/driving has endangered human life or personal safety of others and has caused simple injuries to person/s due to the aforesaid rash or negligent act/driving.
21. In the present case this court has no hesitation to say at the threashold itself that the investigation conducted by the inevstigating agency has been done in shoddy manner as is evident from record and also from the testimony of police witnesses. It has come on record from the testimony of PW1 that his statement was recorded on 01.03.2013 whereas in his cross examination he deposed that his statement was recorded on 25.02.2013 and after that his no statement was recorded by the police. No explanation has come on record as to why the statement of the victim was not recorded by the IO after 25.02.2013 but before 01.03.2013. Interestingly the PW1 in his cross examination had deposed that his statement was recorded on 25.02.2013 and after that his no statement was recorded. PW10 i.e. the IO has deposed that when he went to the spot he did not found any vehicle but PW5 Dharmender Kumar deposed when he reached the spot the offending vehicle as well as cycle were there at the spot. Moreover, the IO seized the offending vehicle only on 01.03.2013 and no explanation has come on record as to what had stopped the IO from tracing and seizing the offending vehicle. PW7 Ct. Rajbir in his deposition has deposed that the cycle in question was seized on 01.03.2013 but on his cross State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 8/11 examination by Ld. APP for the state that he again stated that the same was seized on 18.04.2013.
22. Interestingly there has been a delay of approximately 9 days in registration of FIR. Again the investigating agency has failed to explain as to why the FIR was not registered inspite of the fact that a DD No. 51B was received at the PS in respect of an accident. More so, the site plan was prepared by the IO at the instance of PW5 i.e. Dharmender who was allegedly present in the PS on 01.03.2013. IO in his deposition has said that PW5 was the eye witness but PW5 in his examination has deposed that he cannot say as to how the accident took place as he was not present there. Again no explanation has come on record as to why the site plan was prepared at the instance of a person who was not present at the spot when the alleged accident took place and why it was not prepared at the instance of the injured, accused when they were present at the PS on 01.03.2013 or in ther other event at the instance of the shop keepers of the nearby shop as it has come in the testimony of PW10 i.e. IO himself that the place of incident was having shops near the spot. Due to the lapses of IO as observed by this court, it has actually helped the accused the way the investigation was conducted. It seems that IO does not have the very basic knowledge as to how the investigation is to be conducted. It also cannot be ruled out that the entire proceedings i.e. from registration of FIR till the arrest of accused and so on might have been conducted in the police station itself. Moreover, the false implication of the accused also cannot be ruled out by the IO. IO also did not cared to investigate about the other two pillion riders who were allegedly riding with the accused at the time of accident. PW9 HC Lakhmi Chand had accompanied the IO at the time of investigation on 01.03.2013 and in his cross examination he deposed that the photographs of the offending vehicle which had been identified by him on 11.09.2017 were clicked at the spot. However, on careful perusal of the photograph it is clear that State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 9/11 the alleged offending vehicle has been parked alongwith other vehicles and it seems to be the place outside the police station as the Delhi Police emblem is visible and cannot be the spot of accident. He further deposed that his statement was recorded on 01.03.2013 at about 7:00 PM. It is pertinent to mention here that the instant case FIR was registered on 01.03.2013 at about 17:15 Hrs and the IO who was sleeping till 01.03.2013 suddenly woke up from his slumber and completed entire investigation on that very day. IO has not been able to explain as to why the investigation was not carried out from 24.02.2013 till 01.03.2013 and further why the FIR under section 279 IPC was not registered, considering the fact that he was waiting for the medical opinion. It is again required to be mentioned here that offences qua the injury sustained by the injured could have been added later on during the course of investigation. IO has again failed to make the constable a witness, who had allegedly served the notice under section 133 of the M.V Act upon the registered owner of the offending vehicle.
24. It can be said without any hesitation that the depositions of the PWs is full material contradictions embellishments and improvements and in view of the same, false implication of the accused persons cannot be ruled out. In a case titled as State of UP Vs. Vallabdas, AIR 1985 SC 1384, it was observed that "If there are any material discrepancy and if the discrepancy go to the root of the case/matter, they will have some bearing on the prosecution case".
25. In the light of the above discussion and also considering the fact that there are material contradictions, embellishments and improvement in the testimonies of PWs which have proved fatal for the prosecution and therefore, the doubt has been created in the prosecution's case and the benefit of which must be given to the State Vs. Mahesh Kumar FIR No. 62/2013 u/s 279/337 IPC No. 422405/16 Page No. 10/11 accused. Accordingly, accused Mahesh Kumar is acquitted for the offences under section 279/337 IPC. Bail bonds are canceled and sureties be discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
DEEPAK Digitally DEEPAK KUMAR
signed by
ANNOUNCED IN OPEN OPEN COURT
KUMAR Date: 2018.08.02
22:10:05 +0530
TODAY i.e. 01.08.2018. (DEEPAK KUMARII)
METROPOLITAN MAGISTRATE - 06
DWARKA COURTS:NEW DELHI
State Vs. Mahesh Kumar
FIR No. 62/2013
u/s 279/337 IPC
No. 422405/16 Page No. 11/11