Delhi District Court
State vs . Abid on 2 February, 2013
IN THE COURT OF MS. SAUMYA CHAUHAN METROPOLITAN MAGISTRATE-07 (SOUTH EAST), SAKET COURTS, DELHI FIR No. : 11/2009 PS : HNDIN Offence complained of : 279/304A IPC Date of commission of offence : 13.01.2009 Unique Case ID No. : 02406R0349552010 C C No. : 480/10/10 State vs. Abid S/o Hanif R/o Umri PS Nagina District Mewat Nuh Haryana ............. Accused ASI Giriraj Singh ........... Complainant Date of Institution : 16.02.2010 Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 02.02.2013 Date of pronouncement : 02.02.2013 Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION ALLEGATIONS The story of the prosecution is that on 13.01.2009 at unknown time, main road, Sarai Kale Khan, near Sarai Kale Khan Flyover, New Delhi, falling within the jurisdiction of Police Station HNDIN, the accused Abid Khan was driving a dumper bearing number HR 55 G 9704 in a rash and negligent manner and while driving the said vehicle in such a manner, the accused hit a pedestrian Arif and caused his death. Thus, accused Abid Khan is alleged to FIR No. 11/2009 State Vs. Abid Khan Page No. 1 / 6 have committed offence punishable under section 279/304A IPC.
FIR On the basis of the said allegations and on the complaint of the complainant, an FIR bearing number 11/2009 under section 279/304A IPC was lodged at Police Station HNDIN.
CHARGE After investigation, charge-sheet under section 173 Cr.P.C was filed on 16.02.2010. 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 279/304A IPC was framed against accused Abid Khan, to which he pleaded not guilty and claimed trial on 03.06.2010.
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 Jasbir Singh is the sole 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 Arif had expired and that an FIR with respect to the said incident was lodged on the same day at PS- HNDIN vide FIR bearing No. 11/2009.
The eye-witness Jasbir Singh was the star witness of the prosecution. However, he has not been able to identify the accused in the court. He deposed that he did not remember date and month of the accident but it was FIR No. 11/2009 State Vs. Abid Khan Page No. 2 / 6 2009. He deposed that he was sitting in a bus and the person who had injured in the accident was also sitting in the bus. When the bus reached at the bus stop Sarai Kale Khan, injured got down from the bus and tried to cross the road from the front side of the bus. Meanwhile one truck came from the back side of the bus and hit against the said injured. The said person sustained injuries and he had made call at hundred number and PCR came at the spot. They took the injured at the hospital for medical treatment. He deposed that he did not who was the driver of the offending vehicle. Thereafter, he went to the Faridabad from another bus. He deposed that no further proceeding were conducted in his presence. After taking permission from the court, Ld APP cross examined him.
During cross examination, he deposed that he is a bus driver. On the date of incident he was sitting in the bus as a passenger. Police called him later on the date of incident. He went to PS but he did not remember the date when he went to the Police Station. He deposed that he did not remember the exact date due to passage of time. He denied that the date on which he went to the PS was 24.02.2009. He denied that that he met with a person namely Abid at the PS. He denied that he had identified him as a accused who was driving offending vehicle. He failed to identify the accused in the court. He denied that he had made a false statement before the police as he had identified the accused as a driver of the offending vehicle. He denied that he had been won over by the accused person and was making the statement under pressure. He deposed that the police recorded his statement but same was not read over to him. He admitted that the offending vehicle was a dumper but he did not remember whether its number was HR 55 G 9704. After seeing the photographs in the judicial file, witness replied that photograph of the offending vehicle is similar to the vehicle by which accident was occurred.
As the eye witness has turned hostile, denying the entire prosecution story and has been cross examined by the Ld. APP, carrying on with further prosecution evidence and recording testimonies of formal witnesses would have become only a futile exercise, and wastage of judicial time, FIR No. 11/2009 State Vs. Abid Khan Page No. 3 / 6 resources and energy. Since the sole eye witness has turned hostile, the prosecution can never prove that the present case was a result of an act of accused and that the accident was caused by the vehicle bearing number HR 55 H 9704, which was being driven by the accused Abid Khan 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 279/304A IPC.
The case is at the stage of PE, however, since 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 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 FIR No. 11/2009 State Vs. Abid Khan Page No. 4 / 6 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 IPC to make the ends of justice meet, and stop the proceedings against the accused.FIR No. 11/2009 State Vs. Abid Khan Page No. 5 / 6
Final Order Since the eye witness Jasbir Singh has turned hostile 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 Abid Khan qua offences u/s 279/304A IPC and hereby releases the accused Abid Khan under sections 279/304A 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 02.02.2013 (SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 02.02.2013 Certified that this judgment contains 6 pages and each page bears my signatures.
(SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 02.02.2013 FIR No. 11/2009 State Vs. Abid Khan Page No. 6 / 6