Delhi District Court
State vs . Munish Madan Fir 345/11 (56162/16) on 7 May, 2018
State Vs. Munish Madan FIR 345/11 (56162/16)
IN THE COURT OF SHRI MANISH YADUVANSHI
ADDITIONAL SESSIONS JUDGE 05: WEST : DELHI.
IN THE MATTER OF
Case No. 56162 /16
FIR No.345/11
PS Vikas Puri
U/s 279/308 IPC
STATE
VERSUS
MUNISH MADAN
S/O LATE SUDHIR MADAN
R/O H.NO. MG1/75, 2nd FLOOR,
VIKAS PURI, NEW DELHI.
Date of Institution : 14.05.2013
Date of Reserving Judgment : 26.04.2018
Date of Judgment : 07.05.2018
Result: Acquitted Page 1 of 43
State Vs. Munish Madan FIR 345/11 (56162/16)
Offence Complained of : U/s 279/338 IPC
Offence Charged with : U/s 279/338/308 IPC
JUDGMENT
1.Accused Munish Madan has been facing trial for the offence Punishable U/s 279/338/308 IPC.
PROSECUTION'S CASE :
2. The local Police received a DD no. 30A dt. 05.10.2011 Mark PW 12/DA from Wireless Operator at 08:20 PM that a Vehicle No. DL 9CH3171 is involved in an accident at Banquet Hall, G Block, Vikas Puri. ASI Rajbir Singh alongwith Ct.Sumit Kumar reached the accident site where they found an Elentra white colour Car with above mentioned registration number in accidental condition on the road side. They were informed that the Car driver and the Victim have been taken by PCR Van to DDU hospital. Ct. Sumit was left to guard the accident site and the ASI Rajbir reached the hospital where he found one Prem Pal Singh admitted with MLC No. 20494/11. His Statement Ex.PW1/A was recorded as per which he had proceeded Result: Acquitted Page 2 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) to buy Milk from his house to DMS Booth, G.Block, near Ansal Building on his Scooter no. DL9SQ1485. The moment he parked his Scooter near DMS Booth at about 08.05 PM, the Elentra Car aforestated driven by a person who did not have one Arm and who was intoxicated due to consumption of Alcohol hit him "head on".
The accused was coming from Petrol Pump side. Due to the impact, the Victim fell down. He called at his house from his Mobile Phone. His wife reached the spot. They called the PCR at no.100. PCR Van arrived on the spot. The said PCR Van official brought him and the accused to the hospital.
3. As the statement of the Victim disclosed the commission of offence Punishable U/s 279/337 IPC, a rukka was accordingly sent for registration of the FIR through Ct.Sumit on the same night. The FIR Ex.PW3/A was registered at 11:00 PM.
4. The offending Vehicle and the Victim's Scooter were taken into police possession on different dates. The accused was arrested but later released on bail. The vehicles were got inspected through Result: Acquitted Page 3 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) Mechanical Inspector. Result of injuries as per the MLC was obtained which is "Grievous" and hence, Section 338 IPC was replaced in the FIR with Section 337 IPC. A Notice U/s 133 M.V.Act to the owner of the offending vehicle was issued who informed in writing that the offending vehicle was sold to the present accused. After completing the investigation, the Chargesheet was filed and the accused was sent for facing trial for the abovesaid offences.
5. The concerned Ilaka MM passed an order dt. 07.05.2013 observing therein that the facts of the case disclosed knowledge on part of accused for commission of offence Punishable U/s 308 IPC. Thus on 07.05.2013, the Ld.MM committed the case for trial U/s 323 IPC to the Sessions Court.
CHARGE :
6. On 06.02.2014, the accused Munish Madan was charged by the Ld.Predecessor Court as under :
1. That on 05.10.2011 at about 08:05 PM at Main Road, G Result: Acquitted Page 4 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) Block Vikas Puri, near DMS Booth, near Ansal Building, Delhi within jurisdiction of PS Vikas Puri, he was driving Elentra Car No. DL9CH3171 in a rash and negligent manner so as to endanger human life and personal safety of others and thereby committed an offence Punishable U/s 279 IPC;
2. That while driving the Elentra Car, he caused grievous hurt to Prem Pal Singh and thereby committed an offence punishable U/s 338 IPC;
3. That by the above act of causing grievous injuries on the person of Prem Pal Singh, by driving Elentra Car no. DL9CH 3171 with only one hand i.e. left Arm, right Arm being already amputated, the accused had knowledge that he will have no control over the vehicle and that which act could have caused death of the complainant tentamounting to culpable homicide not amounting to murder and Punishable U/s 308 IPC.
The accused pleaded not guilty and claimed trial on all counts.
PROSECUTION EVIDENCE:
7. To prove its case, Prosecution has cited 16 witnesses out of whom Result: Acquitted Page 5 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) 12 witnesses have been examined before the Court.
8. The Table as below shall broadly indicate the name of the witness, his/her role as per prosecution and short gist of their testimonies/documents proved through them.
S.N Name of Evidence
o. Witness/Na
ture
PW Prem Pal The witness has supported his case and has 1 Singh provided oral testimony regarding the incident dt.
(Victim) 05.10.2011. He has proved the following documents :
(1) His statement Ex.PW1/A;
(2) Seizure memo of Scooter no. DL4SQ1485 as Ex.PW1/B;
(3) Site Plan dt.16.03.2012 Ex.PW1/C. The witness has further identified the accused correctly in the Court. He also stated that IO obtained possession of Scooter from him on 25.10.2011 as due to injuries, he remained on Bed for almost 15 days.Result: Acquitted Page 6 of 43
State Vs. Munish Madan FIR 345/11 (56162/16) As per him, an artificial bone with Plate was implanted in his left Knee and he remained in hospital till 09.10.2011.
The witness has been extensively cross examined by the defence and has been confronted with his statement Ex.PW1/A. PW2 ASI This witness had reached the spot on receiving Ramesh call from Control room and took the injured as Chand well as the accused to DDU hospital. He got (PCR admitted the injured Prem Pal in the hospital Official) and thereafter handedover the accused to the duty officer in PS. He has proved the copy of Call book dt. 05.10.2011 of Power51 PCR Van as Ex.PW2/A. PW3 Retired SI This witness has proved the computerized Dablu copy of FIR as Ex.PW3/A, his endorsement Oraon on rukka as Ex.PW3/B and Certificate U/s (Duty 65B of the Indian Evidence Act as Ex.PW officer) 3/C. Result: Acquitted Page 7 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) PW4 Retired This witness has proved his Reports regarding ASI/Tech.D mechanical inspection of Car bearing no. DL evender 9CH3171 as Ex.PW4/A and Scooter bearing Kumar no. DL4SQ1485 as Ex.PW4/B. PW5 Dr.Neeraj This witness has identified the handwriting of Kr.Garg Dr.Alok, (who has left the services of hospital (Medical and his present whereabouts are not known) on Officer, the MLC Ex.PW5/A. He has also identified DDU his signatures at point A on the said MLC. hospital) PW6 Dr.Pramod This witness has identified the handwriting of Pasari(Sr. Dr.Sudhir, (who has left the services of Orthopedic hospital and his present whereabouts are not known) on the MLC Ex.PW5/A at Portion X to X. He has also identified his signatures at points B & C on the said MLC.
This witness has deposed on the basis of three Xrays Film no. 4770 dt. 05.10.2011 and reporting done by the Radiologist that there is fracture of proximal tibia left side.
Result: Acquitted Page 8 of 43State Vs. Munish Madan FIR 345/11 (56162/16) PW7 Dr. Aruna This witness has deposed on behalf of Singh, Dr.Pankaj,Sr. Resident Radiology Department. (MO, DDU He has identified the observation and hospital) signatures of Dr.Pankaj at Point A on the X Ray Report Ex.PW7/A which is in connection with MLC no. 20494. He has further deposed that as per record, fracture of tibia was seen.
PW8 Dr.Shekhar This witness has brought the Discharge Srivastava Summary of the patient Prem Pal Singh (Consultant photocopy of which is proved as Ex.PW8/A. Orthopaedic ) PW9 Ct.Kamlesh This witness has deposed on the same lines of Rai (PCR PW2 ASI Ramesh Chand. He had also reached Van the spot with ASI Ramesh Chand and took official) injured and accused to the hospital. Thereafter, they got admitted the injured in the hospital and handedover the accused in PS. PW10 HC Kishan This witness has proved the copies of entry Mohan nos.2022 and 2071 as Ex.PW10/A and (Malkhana Ex.PW10/B respectively in respect of Moharrar) depositing the Car of accused as well as Scooter of Victim in the Malkhana by ASI Rajbir Singh.
Result: Acquitted Page 9 of 43State Vs. Munish Madan FIR 345/11 (56162/16) PW11 Ct.Sumit This witness had joined the investigation alongwith the IO/ASI Rajbir Singh. He reached the spot alongwith the IO where they found injured and accused. IO left him at the spot and reached the hospital. After returning from there, IO handedover rukka to this witness for getting the case registered. After getting the case registered, he reached the spot and handedover rukka and copy of FIR to the IO.
This witness has proved the Arrest memo of accused as Ex.PW11/B and Seizure memo of his Car as Ex.PW11/A. On asking leading question by the Ld.Addl.P.P., this witness has deposed about the complete Registration number of the Vehicle as DL9CH3171.
PW12 SI Rajbir He is the first person who responded to DD Singh (IO no.33A and also the case IO. He was posted as of the case) ASI in PS Vikas Puri on 05.10.2011. He has deposed regarding the facts that have surfaced during the investigation conducted by him and has supported the testimony of PW1 as well as his accompanying police official Ct.Sumit/PW11.
Result: Acquitted Page 10 of 43State Vs. Munish Madan FIR 345/11 (56162/16) He testified to have recorded the statement of PW1 as Ex.PW1/A at the hospital. He had prepared the Tehrir Ex.PW12/A. Driver of offending vehicle was absent from the hospital. When Ct.Sumit returned at the spot with FIR, he informed the IO that driver of offending vehicle is present in the PS in the room of DO.
Besides proving the document already exhibited in the testimonies of PW1 to PW11, the case IO also proved :
(1) Notice U/s 133 of M.V.Act dt.
02.11.2011 as Ex.PW12/B;
(2) Copy of delivery Receipt of Car Mark PW12/C and Certificate of Sale Mark PW12/D;
(3) The IO further served a Notice to accused U/s 133 M.V.Act which is Ex.PW 12/E and its reply is Ex.PW12/F;
Result: Acquitted Page 11 of 43State Vs. Munish Madan FIR 345/11 (56162/16) (4) The IO had also seized relevant document pertaining to the offending Car vide Memo Ex.PW12/G;
(5) Photocopy of D/L Slip of accused is Mark PW12/H. Copy of RC in the name of accused is Mark PW12/J. The witness also deposed that he had seized the offending Car soon after the incident while the two Wheeler Scooter of the Victim was seized vide Memo Ex.PW 1/B subsequently from the house of the injured.
Both the vehicles were got mechanically inspected. He had also prepared Site Plan.
The offending Vehicle is Ex.P.1. The Victim's Scooter is Ex.P.2.
DEFENCE :
9. The incriminating circumstances produced by the Prosecution in the testimonies of PW1 to PW12 were put to the accused in his Statement U/s 313 Cr.P.C. According to the accused, he was coming Result: Acquitted Page 12 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) from H Block side on 05.10.2011 on his Car Ex.P.1 and when he reached HDFC Bank, near T Point and taking Test Drive of one driver namely Neeraj Garwali R/o 776, DDA Flat, Hastal Road, Uttam Nagar, Delhi and they saw injured lying on Road. Neeraj Garwali had gone to see the injured, but lateron under wrong impression that the driver Neeraj Garwali was the driver of the Car, was given beatings by the public and he ran away from the spot. So the Car was left away by him as he could not drive the same. He has further stated that the such accident had already been taken place with the injured. He had given his Visiting Car to the Crowd as he was residing nearby and if any help was required, he could have been called. After registration of this false case, he had requested the IO to examine nearby witnesses to corroborate his version, but the IO refused to record any statement of such witnesses in support of his version and falsely arrested and chargesheeted him. He further stated that he has been falsely implicated in this case; he was not present at the time of incident and the witnesses have deposed falsely at the Result: Acquitted Page 13 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) instance of IO.
10. The accused also denied that he is unable to drive any vehicle as he is handicapped due to his missing right arm/hand.
11. It has come in evidence that public persons got the offending vehicle stopped and took him out from the Car and he was found under the influence of alcohol. According to the accused, this evidence is fabricated against him.
12. The accused further denied that the PCR Van had taken him to DDU hospital. He claims that he had no knowledge that PW1 was admitted to DDU hospital by the PCR officials.
13. According to the accused, he was taking a test drive of one driver namely Neeraj Garwali in Car Ex.P.1. The said Neeraj Garwali had gone to see the injured. The Public persons present there gathered a wrong impression that Neeraj was driving the offending vehicle. He was beaten up by public persons and thus Neeraj ran away from the spot. Consequently, the accused had to leave the Car as he could not drive the same. As to when the car was seized by the IO, is therefore Result: Acquitted Page 14 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) not in the knowledge of the accused as claimed by him. The accused further denied presence of any damages on the offending vehicle on its front side on the number Plate as well as on its Bumper, body, Bonnet and front grill. The accused stated that the IO had seized the original Insurance Certificate, copy of RC Ex.P.1 and copy of DL Mark PW12/H. DEFENCE EVIDENCE :
14. The accused opted to lead Defence evidence and several opportunities were granted to him. Despite these opportunities, the accused failed to produce Neeraj Garwali as his witness in evidence. Consequently, DE was closed on 07.02.2018.
15. This Court has heard Sh.B.B.Bhasin, Ld.Prosecutor in support of the Prosecution's case and also Ld.defence counsel Sh.T.N.Puri, Advocate on behalf of the accused.
16. Record has been perused carefully.
ARGUMENTS BY LD.PROSECUTOR :
17. Mr.B.B.Bhasin, Ld.Prosecutor has urged that the Prosecution has Result: Acquitted Page 15 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) produced oral and documentary evidence which established beyond any reasonable doubt that the present accused was driving the offending vehicle i.e. Elentra Car Ex.P.1 on a public way on the date, place and time complained of in a manner so rash and negligent which endangered human life and personal safety of others and thereby committed an offence Punishable U/s 279 IPC. While doing so, the Ld.Prosecutor pointed out to statement of injured Ex.PW1/A where he categorically stated that the accused was not having one Arm and he was under the influence of Alcohol. He came from the Petrol Pump side and hit his Scooter 'head on'. He also pointed out to a specific question put by the Prosecution, with permission of the Court, to PW1 regarding the cause of accident. As per the witness, "the accused was driving the vehicle बडड ललपरवलहड सस ". The witness explained the meaning of the above Phrase " बडड ललपरवलहड सस"
stating that "the accused was under the influence of alcohol and he hit his Scooter from the front side by coming from wrong side". The Ld.Prosecutor also demonstrated from Ex.PW1/C i.e. the Site Result: Acquitted Page 16 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) Plan bearing signatures of PW1 at Point A that the offending Car entered the opposite lane from Point B from West to East and hit the Scooter and Victim/PW1 in the opposite Lane just opposite the Milk Booth at Point A which shows the element and extent of his rashness as well as negligence in driving the vehicle with one hand and that too, under the influence of alcohol.
18. Regarding presence of Alcohol, Ld.Prosecutor conceded that though MLC of accused Ex.PW12/D.1 is silent about presence of alcohol in his body but it is present in the oral testimony of PW1. It is urged that the oral testimony is supplemented in the form of Call Book Records of PCR Van No. P51 dt. 05.10.2011 which is Ex.PW 2/A proved through ASI Ramesh Chand who was posted in this PCR being Incharge of PCR Power51 alongwith W/Ct.Kamlesh, Gun Man and Driver. It is submitted that these Call entries show that information was relayed at 08:18 PM that the driver of the Elentra Car namely Munish Madan was drunk.
19. The Ld.Prosecutor points out that PW9/Ct.Kamlesh Rai was the Result: Acquitted Page 17 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) Gunman deputed on PCR P51 on 05.10.2011 and that this witness has deposed in his examinationinChief that accused was in drunken condition on the spot of accident. Ld.Prosecutor submits that medical examination of accused was conducted four hours after the incident and therefore merely because MLC is silent about presence of alcohol, it does not imply that the oral evidence to that effect is false, unbelievable or not reliable.
20. Regarding offence Punishable U/s 338 IPC, Ld.Prosecutor has categorically argued that PW5/Dr.Neeraj Kumar Garg appeared as a Proxy Doctor on behalf of Dr.Alok who prepared MLC of injured Ex.PW5/A. The said Dr.Alok has left the services of the hospital without leaving his whereabouts. PW5/Dr.Neeraj Kumar Garg testified that he can identify his handwriting which he did on the MLC wherein the treatment given including result is recorded and the kind of weapon i.e. Blunt, signed by Dr.Alok at Point A.
21. It is also submitted that PW6/Dr.Pramod Pasari deposed as Proxy Doctor on behalf of Dr.Sudhir, the then SR.Ortho who has Result: Acquitted Page 18 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) left services of DDU hospital without leaving his whereabouts. PW 6/Dr.Pramod Pasari identified handwriting of Dr.Sudhir at Point X to X on this MLC and also identified his signatures at Points B & C. The signature at Point C is the result of injury which is "Grievous injury, fracture of Tibia, left as per Radiological Xray no. 4770 dt. 05.10.2011."
22. Ld.Prosecutor also submitted that this witness was treated as an Expert witness who also examined three Xray Films from the Judicial File Mark A, B and C and independently deposed that the same depict 'fracture of proximal tibia left side'. The Ld.Prosecutor submitted that this opinion is admissible U/s 45 of the Indian Evidence Act.
23. The Ld.Prosecutor also pointed out that Dr.Aruna Singh/PW7 has deposed on behalf of Dr.Pankaj, Sr.Resident, Radiology department who had left the services of DDU hospital. She proved Xray report of PW1 as Ex.PW7/A, comprising of observation Result: Acquitted Page 19 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) and signatures of examining doctor at Point A. Even this doctor has given an Expert opinion after examining the Xray report that 'fracture of Tibia is seen'.
24. As PW1 was shifted on 06.10.2011 to Sant Parmanand hospital, Civil Lines, Delhi, PW8/Dr.Shekhar Srivastava produced record Ex.PW8/A i.e. Discharge Summary showing that PW1 was admitted in the said hospital at 03:03 PM on 06.10.2011 and discharged on 09.10.2011.
25. The Ld.Prosecutor submits that in view of the above, the knowledge on the part of the accused that driving a big vehicle like Elentra Car Ex.P.1 in drunken condition and with one Arm and causing 'grievous' injury on PW1 by such act, he could have caused death of the complainant tentamounting to culpable homicide not amounting to murder and hence, punishable U/s 308 IPC.
26. In support of his arguments, Ld.Prosecutor places reliance Judgment of the Hon'ble Apex Court in case titled as Alister Anthony Parera Vs. State of Maharashtra, 2001 (1) JCC 641.
Result: Acquitted Page 20 of 43State Vs. Munish Madan FIR 345/11 (56162/16) ARGUMENTS BY LD.DEFENCE COUNSEL :
27. Mr.T.N.Puri, Ld.defence counsel has vehemently refuted arguments of the Prosecution. The Ld.defence counsel has taken the Court through the Court testimony of PW1 submitting that his testimony is improbable. It is submitted that PW1 who took a stand in Ex.PW1/A of 'headon' collision has taken a 'U turn' in the Court by not specifying anything about 'headon collision'. It is submitted that there is no explanation given by either PW1 or the case IO as to why the Scooter of PW1 was seized after 20 days of the incident i.e. on 25.10.2011, thereby leaving a doubt regarding the veracity of the report of the Mechanical Inspector Ex.PW4/B which was prepared on 30.10.2011.
28. The Ld.defence counsel has further argued that the Site Plan Ex.
PW1/C is dt. 16.03.2012. The date of incident is 05.10.2011 and therefore, there is a time gap of five months in preparing the Site Plan. This time gap has not been explained and thus the Site Plan is stated to be a manipulated document.
Result: Acquitted Page 21 of 43State Vs. Munish Madan FIR 345/11 (56162/16)
29. The Ld.defence counsel further submits that the case IO neither traced nor examined the person who informed the PCR after the incident. In this context, it is submitted that PW1 had not called the PCR after the incident, but he admittedly gave a call to his wife only.
30. Ld.defence counsel further urged that as per PW1, the accused was taken alongwith him in the PCR Van to DDU hospital. It is submitted that if the accused was taken to DDU hospital then there is no explanation as to why he was not medically examined at that time itself particularly when there are allegations that the accused was under influence of alcohol.
31. In the same context, Ld.defence counsel further urged that as per the IO, the accused was in the custody of Duty Officer as the PCR officials left him in the custody of the duty officer. It is submitted that the Call Book Records of PCR Ex.PW2/A cannot be relied as they are manipulated. It is submitted that there is no corresponding entry which the Duty officer ever made even on rukka that the accused was handedover to him by the PCR officials.
Result: Acquitted Page 22 of 43State Vs. Munish Madan FIR 345/11 (56162/16)
32. The Ld.defence counsel further submitted that no public witness including the wife of the injured was ever examined by the case IO.
33. The Ld.defence counsel further argued that after the Victim's vehicle was seized, it was brought to the PS but there is absolute silence about its Keys. Attention of the Court is drawn to the fact that as per Mechanical Inspection Report Ex.PW4/B, the Scooter was not fit for road test due to damage to the handle system. It is submitted that this anomaly is fatal to the Prosecution. It was also urged that the Scooter was never shown to PW1 during trial. The IO did not seize Registration Certificate of the Scooter.
34. The Ld.defence counsel has thereafter attempted to build up the case regarding contradictions with respect to the exact spot of accident. It is submitted that the main PWs i.e. PCR Official/PW2, PW9/Ct.Kamlesh Rai, Ct.Sumit/PW11 and PW12/SI Rajbir Singh, have incoherently described the spot of accident.
35. The ld.defence counsel then submitted that DD no.6B Ex.PW 12/DB shows that PW1 was got admitted to DDU hospital by one Result: Acquitted Page 23 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) HC Ramesh No. 8842/PCR, P51 which is also recorded in the MLC Ex.PW5/A. It is pointed out that HC Ramesh was neither examined by the IO nor by the Prosecution.
36. Lastly, the Ld.defence counsel has also drawn attention of the Court to the MLC of the accused Ex.PW12/D.1 showing that there are two thumb impressions present on the MLC. One thumb impression is shown as of left thumb while other of right thumb. The impression over the right thumb has been crossed by a cross mark. Defence points out that since the accused does not have the entire right arm, he could not have put his right thumb impression in this MLC. It is submitted that the Prosecution has failed to explain the circumstance regarding presence of both left and right thumb impressions of the accused on the said MLC. It is urged that identity of accused is therefore, not established as the driver of offending Vehicle Ex.P.1.
Result: Acquitted Page 24 of 43State Vs. Munish Madan FIR 345/11 (56162/16) FINDINGS :
37. In the entire evidence of Prosecution, the only eye witness is PW 1 himself. It is very disturbing to note that case IO/PW12 SI Rajbir Singh found the DMS Booth Attendant sitting inside the Booth when he reported on the spot with Ct.Sumit/PW11 but the said Attendant was admittedly not examined. It becomes more disturbing to note that while appearing in the court, the PW1 deposed on oath that the distance between Ex.P.2 i.e. his Scooter and the DMS Booth was only half feet. After parking his Scooter, he went to buy Milk. He was about to buy Milk when the accident took place. At that time, PW1 was standing at the Window of DMS Booth. It is therefore, not at all difficult for this Court to infer, in these circumstances, that in all probability the Booth Operator would have been facing towards PW1 i.e. in the direction from where offending Vehicle projected as Ex.P.1 would have come and hit the Scooter Ex.P.2. I am afraid to note that in this context also, there is a major contradiction in testimony of PW1 and Ex.PW1/2. As per the former, Ex.P.1 hit Result: Acquitted Page 25 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) his Scooter and PW1 sustained injury since he was standing with his Scooter. If it is true then PW1 could not be on the Window of DMS Booth at the time of impact.
38. Nevertheless, the contradiction which I am pointing out to now in the latter i.e. Ex.PW1/1, is regarding narration therein that Car Ex.P.1 collided 'head on' with PW1 himself. Thus, as per Ex.PW 1/A, Ex.P.1 i.e. offending Vehicle collided with PW1 whereas as per the Court statement of PW1, the Car collided with his Scooter. It is not explained as to how the injury described in the MLC Ex.PW5/A was sustained. Whether they were due to direct impact of collision with the Car or indirect impact of the Scooter hitting the injured as a result of collision of the Car with the Scooter is not clarified.
39. The most important question which therefore arises is whether the Prosecution succeeds in establishing that it was the accused only who was driving the offending vehicle Ex.P.1 ?
40. Answer to this involves many aspects which I shall take one by one in hitherto below Paragraphs of this Judgment.
Result: Acquitted Page 26 of 43State Vs. Munish Madan FIR 345/11 (56162/16)
41. Accused has denied that he was driving Ex.P.1 as he is incapable to do so for want of the entire right Arm. Members of PCR Van P 51 i.e. its Incharge/PW2 and Gunman/PW9 have admitted that they did not see the accident and responded only to a PCR Call. PW11/Ct.Sumit and IO/PW12 SI Rajbir Singh are also not witnesses to the incident as they were in the investigation after receiving information about DD No. 30A Mark PW12/DA post 08:20 PM. The incident took place at 08:05 PM. The IO did not examine any other independent witness who might have seen the accident taking place despite the fact that the area where the accident took place was not secluded and also despite the fact that as per PW 1, public persons had taken out the accused from inside the Car.
42. There is absence of clarity about the person making PCR Call.
As per Ex.PW1/A, the injured after accident, gave a call from his Mobile Phone at his house. His wife (not examined) arrived at the spot and they called PCR on Phone Number 100. As per the Court testimony of PW1, "someone made Call at Number 100". Some Result: Acquitted Page 27 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) clarity on it is found by this Court upon perusal of the Call Book Record of PCR Van P51. The records are Ex.PW2/A. At 08:13 PM, a Log entry is made regarding an accident by Ex.P.1 at G.Block, Bank Road, Vikas Puri. A Mobile Number that is logged in this entry is '9910769583'. That is the end on investigation qua this aspect. The Court is not told (as it is not in evidence) as to whose Mobile Number above was. The Number could have been of PW1, his Wife or someone from the public who might have been yet another eye witness of the incident. The investigation shows lackadaisical approach of the Investigating Officer.
43. The Log Register Entry at 08:18 PM mentions the number of Scooter Ex.P.2; the name of the injured (PW1); the name of occupant of the Car (who is not mentioned as its driver); the fact that he is in the PCR Van; the fact that the PCR is going to hospital with injured and the Car occupant Munish Madan and that both the vehicles are on the spot.
44. The next entry at 08:35 PM records that injured had been Result: Acquitted Page 28 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) admitted through D/Ct. Yashpal (not examined) in DDU hospital and wife of injured is with him. No clarity is brought on the aspect as to whether the wife of injured travelled in the PCR Van or on some other mode of conveyance.
The last relevant entry at 09:15 PM in the Log Book records that the IO/ASI Rajbir Singh is on Call and person responsible for the accident, has been handed over to the Duty Officer, PS Vikas Puri.
45. PW2/ASI Ramesh Chand and PW9/Ct.Kamlesh have both stated that the injured was in drunk condition. The Court sees no cogent reason as to why then the accused who reeked of alcohol was not also handedover for medical examination at DDU hospital through Duty Constable Yashpal. Rather he was taken back not to the spot of incident but to the PS Vikas Puri and for unexplained reasons, no proceedings in writing are shown to have taken place regarding handing over the custody of accused by PCR officials to the Duty officer.
46. The Duty officer of the day was PW3/retired SI Dablu Oraon.
Result: Acquitted Page 29 of 43State Vs. Munish Madan FIR 345/11 (56162/16) He is absolutely silent about receiving custody of the accused. The Court has perused the statement U/s 161 Cr.P.C. that he purportedly made to the case IO on 06.10.2011. The Prosecution should have ensured that this aspect was put to the witness, as duly recorded in the said statement. Unfortunately, it was not done. The statement, unless proved and confronted in accordance of law cannot be therefore used by this Court as per ratio of the Judgment in V.K.Mishra & Another Vs. State of Utrakhand (2015) 9 SCC 588.
47. Even if I could ignore this aspect, which cannot be, I find that none of the entries in log book Ex.PW2/A mentions that the occupant of the Car projected as the person who caused the accident in the Log entry at 09:15 PM had a missing right Arm. In this context, Ex.PW1/1 mentions that the driver of the Car did not have one Arm. Whether it was left or right is silent. The Court has also perused the statement of Victim U/s 161 Cr.P.C. purportedly recorded by the IO on the next day of incident i.e. 06.10.2011. Even in this statement it does not mention as to which arm of the accused is Result: Acquitted Page 30 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) missing.
48. In the backdrop of the above evidence on record, I now return to the identification aspect of the accused. The Ex.PW1/A and the FIR are silent about the name of the accused which is surprising as the Victim and the accused travelled to the hospital in the same PCR, if Prosecution's case is to be believed. As per this statement, Ex.P.1 was being driven by a man without one arm and who was under the influence of alcohol. In the same statement, PW1 stated "मम म चललक कक पहचलन सकतल हह". Record reveals that from DDU hospital, the Victim went straight to Sant Parmanand Hospital, Civil Lines, Delhi where as per Discharge papers Ex.PW8/A, he remained admitted till 09.10.2011. Evidence shows that he was prescribed rest and therefore he went to his house and as per IO's testimony, he was unable to climb downstairs. It is one of the reasons provided by the IO regarding delayed seizure of Ex.P.2 i.e. the Victim's Scooter, ownership documents of which were never seized without a cogent explanation to that effect. The Scooter was not present on the spot Result: Acquitted Page 31 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) when PW11 and PW12 arrived for investigation. PW12 seized the Car Ex.P.1 on 05.10.2011. Who shifted the Scooter, which as per Mechanical Inspector Report was not fit for road test as the entire handle column was bent, remains a mystery. The IO has thrown some light on it when he states in the Court that the Scooter might have been shifted by some relative of the Victim. The same does not stand to reason. The PCR left at 08:18 PM from the spot. Soon thereafter, PW11 and PW12 arrived on the spot of the incident and as per PW11, the time was about 08:30 PM or 08:45 PM. The IO should have traced the person who then shifted the Scooter from the spot of incident to the place from where it was seized on 25.10.2011. Same was not done.
49. Reverting back to the point of identification, admittedly, there is no further face to face rendezvous between the PW1 and the accused till atleast 25.10.2011.
50. In these circumstances, the IO should have attempted to conduct TIP Proceedings of the accused but he has failed to do so.
Result: Acquitted Page 32 of 43State Vs. Munish Madan FIR 345/11 (56162/16)
51. The Site Plan also plays a very important role. Admittedly, the case IO never made a rough sketch of the place of incident when Investigating the incident on 05.10.2011. He purportedly made the Site Plan on 16.03.2012. Ex.PW1/C i.e. the Site Plan is signed by PW1 at Point A. Corresponding statement U/s 161 Cr.P.C. is missing. There is inordinate delay in preparation of Site Plan. If the Victim could come downstairs from his residence to the parking of building where Ex.P.2 was parked on 25.10.2011, there appears to be no reason as to why PW1 could not travel the admitted distance of 500600 Mtrs. upto the DMS Booth for preparing the Site Map on said date itself.
52. Further more, the Site Plan does not depict other important places which have come up in evidence like Petrol Pump which is stationed at 100 Mtrs. from the DMS Booth; the HDFC Bank or even the Govt.School which is shown to be located nearby to the DMS Booth, etc. It does not even show the location where the IO found, if at all so found, the offending Vehicle Ex.P.1. It does not even mention as to Result: Acquitted Page 33 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) where the Victim's vehicle Ex.P.2 was lying after the incident.
53. Thus, the defence attempted to capitalized on its version that the accused was never driving the offending vehicle at all.
54. Before I advert to it, I must make reference to documents Ex.PW 12/E and Ex.PW12/F. Ex.PW12/E is Notice to the accused U/s 133 M.V.Act. Ex.PW12/F is the purported reply of accused. It goes to reveal that the accused made this endorsement that he purchased the offending vehicle on 04.06.2011 from M/s. Waves Aircon Pvt.Ltd.; that the vehicle was not transferred in the name of accused and that at the time of accident, the accused himself was driving the Vehicle. In response to this incriminating evidence, the accused categorically stated in Statement U/s 313 Cr.P.C. that no such Notice was issued to him; that the handwriting and signatures are not of accused and that the IO might have got the same written from some other person.
55. When the IO was crossexamined on this aspect, he stated that Ex.PW12/F is not in handwriting of the accused but signed by him Result: Acquitted Page 34 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) at Point B. He made a voluntary assertion that a person was accompanying the accused and the said person had prepared Ex.PW 12/F. He was promptly suggested that the reply was obtained after threat to the accused. No such person is a witness of Prosecution.
56. This Court is unable to understand as to why the Notice was required to be given to the accused at the very first place ? It is so as the Court has come across a document Mark PW12/D.2 dt. 02.02.2012 written by the IO to the RTO, Palam, Janak Puri, Delhi (West Zone) seeking information about the ownership of Ex.P.1. Much prior to this date, the IO had already issued Notice Ex.PW 12/B U/s 133 M.V.Act to the registered owner M/s Waves Aircon Pvt.Ltd. on 02.11.2011. Similar Notice to the accused is shown to have been issued on 09.11.2011. Accordingly, there was no investigational requirement for writing Mark PW12/D.2. It only creates confusion and therefore draws attention of the Court to the fact that the dates Columns in both the Notices Ex.PW12/B and Ex.PW12/F have been altered giving rise to suspicion.
Result: Acquitted Page 35 of 43State Vs. Munish Madan FIR 345/11 (56162/16)
57. I have also observed that soon after the incident, the accused got the Vehicle Ex.P.1 formally transferred in his own name. This is evident from the copy of RC on record and also evident from endorsement of the RTO made on Mark PW12/D.2 that the date of such transfer is 12.10.2011.
58. I shall be referring to the defence which is that the incident had already taken place when the accused was taking a test drive of Neeraj Garwali. On prompting of accused, Neeraj Garwali went to the injured lying some place away from the DMS Booth on the road. When Neeraj Garwali was inquiring, public persons gathered as accused started shouting "मलर ददयल मलर ददयल". Neeraj Garwali fled. The accused went up to him and offered help. He even gave his Visiting Card. He left the Car there as he could not drive. The vehicle was got involved in accident and therefore, there were no damages on it when the vehicle was left.
59. The defence tried to show its bonafide by calling Neeraj Garwali as defence witness. Summoning application is on record and Process Result: Acquitted Page 36 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) Server's report as well as statement of Manju W/o Kishan residing in the vicinity of Neeraj Garwali's house show that Neeraj Garwali is a genuine person who shifted from the address provided on summoning application without leaving any address after the death of his wife. The defence appears to be probable in view the above pointed investigational lapses.
60. According to the accused, he was travelling in Ex.P.1 when he spotted the injured on the road near HDFC Bank, T.Point, situated at a long distance from DMS Booth. The Court has therefore analysed the testimony of all relevant witnesses in order to appreciate whether there could be a dispute regarding the place of actual accident.
61. As per DD no.30A, accident took place in G Block, Vikas Puri, main Banquet Hall.
62. PW1 specifies the place as outside DMS Booth, G Block, near Ansal Building, Vikas Puri. Ansal Building or Banquet Hall are not shown in the Site Plan. According to PW1, there is a Petrol Pump situated at 100 Mtrs. from the Booth. The Petrol Pump is also not Result: Acquitted Page 37 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) shown in the Site Plan. Further, as per PW1, there is no HDFC Bank nor any School near the spot.
63. The above statement is in contradiction with statement of other witnesses.
64. As per PW2, Call was received regarding accident at G Block, Vikas Puri, Bank Road. According to him, the injured was found on G Block, Bank Road behind HDFC Bank near Govt.School.
65. The above contradictions becomes major as this anomaly strengthens the defence version as probable. A dispute is therefore arisen regarding the exact spot of accident. There is absence of eye witnesses despite availability if caution was exercised to examine at least the DMS booth attendant.
66. PW11 and PW12 never found Ex.P.2 i.e. Scooter on the spot.
Location of offending Car Ex.P.1 is not shown in Site Plan. The point from where the Car was seized is also not shown. The Mechanical Inspector/PW4 admits that in his Inspection Report, he has not made any opinion about "period of damage". The Scooter Result: Acquitted Page 38 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) was examined much subsequently to the Car. Both the vehicles were not simultaneously examined for traces of presence of body paint of the examined vehicles on each other. Vehicles were not photographed at the time of their seizure. As per PW12, he went to the place of incident thrice on 05.10.2011. It was post midnight that he went to the spot of accident to collect the offending vehicle after receiving its Keys from the Duty officer. Despite that, the entry on Ex.PW12/A i.e. Register no. 19 regarding seizure of Car is shown on 05.10.2011. If the Vehicle was brought to PS post mid night, the entry should reflect the next date i.e. 06.10.2011.
67. Regarding the place of incident, PW9/Ct.Kamlesh is silent about the place where he reached in response to the PCR Call. He admitted in his crossexamination that he does not recollect the place of alleged incident. He could not remember as to which side of road, the Scooter was lying or the Car was parked.
68. PW11/Ct.Sumit, in his crossexamination has stated that the spot of incident was behind PVR Cinema, behind the DMS Booth. He then Result: Acquitted Page 39 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) clarified that Bank Road, G.Block, Vikas Puri and above mentioned spot are the same. There is no corroboration to it as the Site Plan does not mention so. Location of PVR Cinema is also not shown in the Site Plan.
69. PW12/SI Rajbir Singh also states that the place of incident was behind PVR Cinema. In his crossexamination, he submits that the DMS Booth is behind PVR Cinema in G. Block and admits, in contrast to PW1's testimony that the place where he reached was situated behind HDFC Bank, near G Block.
70. The entire above evidence therefore leaves a genuine doubt about the identity of the person driving offending vehicle and also about the exact place where the accident took place. The report of Mechanical Inspector is also under doubt for the reason of the inordinate delay in seizure of the Scooter Ex.P.2, the registration papers of which were not seized.
71. According to the defence, accused has been falsely implicated in this case for MACT Compensation.
Result: Acquitted Page 40 of 43State Vs. Munish Madan FIR 345/11 (56162/16)
72. The genuine doubts therefore give rise to suspicion on the Prosecution Version.
73. I shall conclude this aspect by finally observing on two more points. The first one is that as per PW1, the side window panes of the offending vehicle were having black films. He could not see if light inside the vehicle was "ON" or not. He further stated in his crossexamination that he saw the offending vehicle after the incident. Thus, once the evidence shows that the PW1 was buying Milk and therefore, he must be facing the Booth Operator. He could not have seen the offending vehicle coming from his behind or its driver due to sudden impact. He could have, at best, seen the accused who was without an arm after the accident, outside the Car.
74. I must say that the Prosecution has to travel the distance between "may be true and must be true" as held in Oliver Kujur and Another @ Prince Vs. State of Delhi, 1 (2015) DLT (CRLJ) 607 (DB).
75. The second aspect is presence of two thumb impressions of the accused on his MLC Ex.PW12/D.1. As stated earlier, it bears left Result: Acquitted Page 41 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) thumb impression of the person examined as also the right one. The right thumb impression has been subsequently crossed. As to how a person not having right arm will put his right thumb impression is something which is alarming. Prosecution ought to have clarified this aspect. The IO was crossexamined on this aspect and also the PW
11. No explanation has fallen from their mouths on this aspect.
76. The question of identity is therefore under a serious question mark. I am afraid to say that the Prosecution does not prove that it was the accused who was driving the vehicle on the date of incident and caused the accident in the manner sought to be established by travelling in the said offending vehicle from Point B to Point A on Site Plan Ex.PW1/C.
77. The above question is therefore answered in "Negative".
78. The other Charges are therefore dependent on the answer to this aspect. When there is a doubt as to whether the accused was driving the offending vehicle or not, the question that while driving so, he caused grievous injuries and had knowledge that he could cause death Result: Acquitted Page 42 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) is out of question.
C ONCLUSION :
79. In view of the foregoing discussion, this Court holds that the Prosecution is not able to prove the case against the accused beyond reasonable doubt. Benefit of doubt is given to the accused. Accused Munish Madan is hereby acquitted of the offences Punishable U/s 279/338/308 IPC.
He is directed to furnish PBs/SBs for Rs.10,000/ (Rupees Ten thousand) with one surety in the like amount, in view of Sec tion 437A Cr.P.C.
Further it is ordered that the case property of this case, if any, be disposed of/destroyed after expiry of period of fil ing appeal, if any.
ing appeal, if any.
File be consigned to Record Room.
Announced in open Court (Manish Yaduvanshi) on 07.05.2018 ASJ05(W)/THC Digitally signed MANISH by MANISH YADUVANSHI Delhi/07.05.2018(P) YADUVANSHI Date: 2018.05.07 15:33:11 +0530 Result: Acquitted Page 43 of 43 State Vs. Munish Madan FIR 345/11 (56162/16) Result: Acquitted Page 44 of 43