Delhi District Court
State vs Dharmender Kumar on 27 June, 2019
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 290/2009
PS Aman Vihar
State Vs Dharmender Kumar
Date of Institution: 08.06.2010
Date of Judgment: 27.06.2019
JUDGMENT
(a) Serial Number of the case : 527907/2016
(b) Date of commission of offence : 02.09.2009
(c) Name of the complainant : ASI Karan Singh,
(d) Name of Accused, his : Dharmender Kumar,
parentage & residence S/o Sh. Sushil Kumar,
R/o H No. I-155, Kirari Suleman
Nagar, Delhi.
(e) Offence complained of : Under Section 279/304A IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquittal
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1) The accused Dharmender Kumar has been sent to face trial for the commission of offences under Section 279/304A of the Indian Penal Code (hereinafter referred to as 'IPC') on the allegations that on 02.09.2009, at about 5.45 pm, at Agar Nagar Chowk, Mubarakpur, Delhi within the jurisdiction of PS Aman Vihar, he was driving a water tanker bearing registration no. DL-1GB-6788 in a public way in a rash and negligent manner as to endanger human life and personal safety of others and while driving so he had hit against one bicycle causing the FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 1 of 12 death of one Banwari Lal not amounting to culpable homicide.
2) After completion of the investigation, chargesheet was filed in Court, cognizance of the offences was taken, the accused was admitted to bail and copy of the chargesheet along with the documents were supplied to him in compliance of Section 207 of the Code of Criminal Procedure.
3) After consideration of the arguments advanced, notice was served upon the accused Dharmender Kumar for the commission of offences under Section 279/304A IPC to which he pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 09 witnesses.
5) PW1 Raj Kumar testified as to being the registered owner of the tanker no. DL-1GB-6788 which had met with an accident. He further testified that at the time of the accident, the accused Dharmender Kumar was driving the said tanker and he also went on testify that PW1 got his vehicle i.e Ex.P1(the identity of which was not disputed by the accused) released on superdari vide Ex.PW1/A, identified the signatures on the documents and also identified the accused in the Court. He was not cross-examined by the accused despite opportunity.
6) PW-2 Hem Raj, being an eye-witness testified that on 02.09.2009 at about 4.30 pm, he was going towards the market with deceased Banwari on a bicycle being driven by the deceased Banwari on which bicycle, PW2 Hem Raj was the pillion rider and when they reached at FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 2 of 12 the corner of Agar Nagar, Prem Nagar, a water tanker of DJB being driven in rash and negligent manner and at a fast speed, came from behind, hit their bicycle upon which they fell down, head of Banwari came under the front tyre of tanker and Banwari died at the spot. He further testified that the public persons pelted stone at the tanker and the accused was apprehended at the spot being the driver of the said tanker.
7) PW2 Hem Raj further testified that the accused was arrested and personally searched vide memos Ex.PW2/A and Ex.PW2/B. He also identified the photograph of Banwari ie Ex.PW2/C, identified his signatures on dead body identification memo ie Ex.PW2/D, identified the tanker ie Ex.P1 and also correctly identified the accused in the Court as the driver of the said tanker. He was duly cross-examined on behalf of accused.
8) PW-3 Bhagwan Sahai being the father in law of the deceased testified as to having identified the dead body of the deceased on 04.09.09 at SGM hospital mortuary and he also proved his identification statement Ex.PW3/A. He was not cross-examined by accused despite opportunity.
9) PW-4 Retd. SI Satya Narain (ASI Satya Narain as he then was) testified as to being posted in PCR Van Libra 47 on 02.02.2009 with HC Nand Kishore as driver and Ct Shri Kishan as gun man when they received an accidental call at about 6.00pm upon which they reached at Agar Nagar Chowk where they saw one tanker bearing no. DL-1GB-
FIR No. 290/2009PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 3 of 12 6788 and one bicycle in accident condition with one dead body lying near the tanker. He further testified that public was gathered there and they were throwing stones upon the tanker and that they somehow saved the driver of the tanker from the clutches of the public persons, made him sit in the PCR Van, information was given to control room through wireless with request to send another PCR van stating that they were going to PP Prem Nagar with the accused as the angry public might kill the tanker driver if they remained at the spot with the accused. He further testified that thereafter they came at the PP Prem Nagar and handed the accused over to ASI Karan Singh. He correctly identified the accused in the Court and was duly cross-examined by the Ld Counsel for the accused.
10) PW-5 Ct. Praveen testified that on 02.02.2009, DD No. 23A regarding accident at Agar Nagar was entrusted to PW8 ASI Karan Singh, upon which they went to the spot where one tanker bearing no. DL-1GB-6788 was damaged by public persons by throwing stones and upon inquiry they came to know that the accused driver has been taken to PP Prem Nagar by PCR van. He further testified that one dead body was also found lying behind the tanker at conductor side and one bicycle was also lying there which was badly damaged. He further testified that the dead body was taken to SGM hospital with the help of the beat constable, rukka was prepared by IO and FIR was registered through PW5 who returned to the spot with the copy of FIR and original rukka which he gave to the IO whereafter IO seized the documents i.e DL, RC, Insurance, Fitness, Permit vide seizure memo FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 4 of 12 Ex.PW5/A to PW5/C, IO got the photographs of the spot clicked i.e Ex.PW2/C, case property was deposited in malkhana whereafter they came to the PS and accused was arrested and personally searched vide Ex.PW2/A and Ex.PW2/B and on postmortem of the deceased was conducted after which dead body was handed over 04.09.2009 to the relatives of the deceased vide memo Ex.PW5/D. He correctly identified the accused in the Court, identified his signatures on the documents and was duly cross-examined by the Ld Counsel for the accused.
11) PW6 HC Krishan Lal (Ct Krishan Lal as he then was) testified on similar lines as PW4 ASI Satya Narain. He further testified that when they had reached the spot, the driver of the tanker ie the accused was sitting in the tanker behind his seat and the public was pelting stones at the tanker whereafter they dispersed the crowd and took the driver to PP Aman Vihar and IO/ASI Karan Singh had also arrived at the spot when they were present there. He also correctly identified the accused in the Court and was duly cross-examined by Ld Counsel for accused.
12) PW7 Sh J S Pawar being the mechanical inspector testified as to having mechanically inspected the water tanker bearing no. DL 1GB 6788 on 03.09.2009 at the request of IO ASI Karan Singh and proved his detailed report Ex. PW7/A. He was duly cross-examined by the Ld Counsel for the accused.
13) PW8 Retd ASI Karan Singh being the investigating officer testified on similar lines as PW-5 Ct. Praveen. He went on testify that when they FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 5 of 12 reached at the spot, they found that the front glass of the tanker was in broken condition. He further testified as to having prepared the tehrir Ex.PW8/A and sent PW5 for registration of FIR. He further testified that one eye witness Hem Raj also reached at the spot who stated that he had gone made a call to the house of the deceased whereafter PW8 went to Prem Nagar Chowki, Ct. Praveen reached at Tri Nagar Chowki with the FIR and original rukka, PW8 recorded the statement of Hem Raj and went to the spot with Hem Raj, prepared the site plan Ex.PW8/A at the instance of Hem Raj, went to the PS with Hem Raj where PW8 seized the vehicle vide i.e Ex.PW5/A and PW5/B returning to PP Prem Nagar with Hem Raj. PW8 further testified that in the meantime, PCR staff reached the PP Prem Nagar with the accused where Hem Raj identified him as the driver of the offending vehicle at the time of the accident and the accused was then arrested and personally searched vide Ex.PW2/A and Ex.PW2/B and then released on bail.
14) PW8 Retd ASI Karan Singh further testified as to the accused having produced the photocopy of his DL, insurance, fitness, RC, permit which were seized vide Ex PW5/C whereafter the offending vehicle was got mechanically inspected vide request Ex.PW8/C and on 04.09.09 postmortem was conducted after identification of the dead body vide Ex.PW2/D and Ex.PW3/A whereafter dead body was handed over to his relatives vide Ex.PW5/D. He correctly identified the accused in the court, identified the photographs ie Ex.PW2/C and also identified his signatures on the various documents. He was duly cross-examined by FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 6 of 12 the Ld Counsel for the accused.
15) PW9 Retd ASI Nand Kishore (HC Nand Kishore as he then was) testified on similar lines as PW4 ASI Satya Narain. He also correctly identified the accused in the Court and was duly cross-examined by the Ld Counsel for the accused.
16) During the course of the trial the accused admitted the genuineness of the FIR No 290/09 PS Aman Vihar and Post mortem no 850/09 without admitting its contents and also did not dispute the identity of vehicle bearing number DL 1GB 6788 upon which the relevant witnesses were dropped.
17) The prosecution evidence was thereafter closed upon request of the Ld APP for the State whereafter statement of accused was recorded under Section 281 read with Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused who maintained his innocence stating that he had been falsely implicated. The accused chose not to lead any defence evidence.
18)Final arguments as advanced by Ld. APP for the State and by Ld. Counsel for the accused have been carefully considered along with the evidence on record.
19)It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, co-
FIR No. 290/2009PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 7 of 12 gent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. The prosecution cannot derive any benefit whatsoever from the weakness of the defence of the ac- cused if any. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
Appreciation of evidence
20) The factum of the accused driving the tanker number DL 1GB 6788 at the time of the accident has been sufficiently proved by the testimony of PW1/Superdar Raj Kumar and the same has been duly corroborated from the testimony of the PCR Officials ie PW4 SI Satya Narayan, PW6 HC Krishan Lal and PW9 Retd ASI Nand Kishore as the accused was found at the spot in the tanker itself. Even the accused had not disputed the factum of him driving the tanker at the time of the accident even at the time of framing of notice upon him.
21) However, to prove its case, it was also imperative for the prosecution to prove the rashness and negligence on the part of the accused while he was driving the offending vehicle at the time of the accident. It has to be borne in mind that a rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 8 of 12 particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution (Ref: Mohd. Aynuddin alias Miyam v. State of A.P. (2000) 7 SCC 72).
22) In the present case, the prosecution has relied heavily upon the testimony of the sole eye-witness ie PW-2 Hem Raj, who has testified that on 02.09.2009 at about 4.30 pm, he was going towards the market with deceased Banwari on a bicycle as a pillion rider which cycle was being driven by the deceased Banwari and when they reached at the corner of Agar Nagar, Prem Nagar, a water tanker of DJB being driven in rash and negligent manner and at a fast speed, came from behind and hit their bicycle upon which they fell down and head of Banwari came under the front tyre of tanker due to which Banwari died at the spot while the accused/driver was apprehended at the spot.
23) It is well settled that when there is a sole witness to the incident his evidence has to be accepted with an amount of caution and after testing it on the touchstone of the evidence tendered by other witnesses or evidence as recorded. Though it is permissible for a Court to record and sustain a conviction on the evidence of a solitary eyewitness, but, at the same time, such a course can be adopted only if the evidence tendered by such witness is cogent, reliable and in tune with probabilities and inspires implicit confidence. (Ref: Yakub Ismailbhai Patel v State of Gujarat, (2004) 12 SCC 229).
24) In the case at hand, however, the testimony of purported sole eye-
FIR No. 290/2009PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 9 of 12 witness does not inspire confidence of the Court as certain discrepancies have come forth which have remained unexplained by the prosecution which render the very presence of PW2 Hem Raj at the spot doubtful. For instance, PW2 Hem Raj has testified during his cross-examination that he had told the police at the spot itself that he was present on the bicycle and that he had gone to the hospital with Banwari when Banwari was taken to the hospital. Hence, the said testimony, if accepted, would imply that the dead body was sent to the hospital in the presence of PW2 Hem Raj.
25) However, as per the FIR itself, when the IO had reached at the spot, no eye-witness was found at the spot and he had sent the dead body to the hospital. Even as PW8, the IO ASI Karan Singh has testified in the Court that the dead body was sent to mortuary SGM Hospital through beat staff after which the Tehrir was prepared and that it was only after Ct Parveen had gone to the PS for registration of FIR that the eye- witness Hem Raj had come to the spot telling the IO that he had gone to make a call at the house of the deceased. Hence testimony of the IO/PW8 ASI Karan Singh if accepted, would imply that when the dead body was sent to the mortuary, the eye-witness Hem Raj had not met him.
26) Since, it is either possible that the PW2 Hem Raj had gone to the Hospital with the dead body or he had come to the spot after the tehrir had been sent for registration of FIR, it was for the prosecution to lead corroborative evidence to render either of the two versions more FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 10 of 12 creditworthy than the other even more so as it does not appeal to reason that if an eye-witness ie PW2 Hem Raj was infact present at the spot who also told the police about being present on the cycle at the time of the accident, then why the IO would chose to prepare the tehrir omitting to mention the presence of the said eye-witness or would omit to record the statement of such eye-witness at that time or prepare Tehrir on the basis of the same. However, no such further evidence has come on record to explain the contradictory testimony of the prosecution witnesses the benefit of which accrues to the accused.
27) Be that as it may, it is also noted that the presence of PW2 Hem Raj at the spot is further rendered doubtful as the entire testimony of PW2 Hem Raj is conspicuously silent as to him having gone to call the family of deceased and he has rather set up a version as to having gone to the hospital with the deceased. That being so, the explanation as to absence of the witness/PW2 Hem Raj at the time of preparation of tehrir as furnished by PW8/Retd ASI Karan Singh has remained uncorroborated and hence the possibility of the PW2 Hem Raj being a planted witness cannot be ruled out even more so as it has already come on record that he was a distant relative of the deceased.
28) Since the very presence of the PW2 Hem Raj with the deceased on the bicycle is rendered doubtful, his testimony in respect of the manner in which the accident took place does not inspire confidence of the Court even more so as there is no other corroborative evidence to prove that the accident took place only due to rashness or negligence on the part FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 11 of 12 of the accused.
Decision
29) In view of aforesaid facts and circumstances, as the prosecution has failed to prove its case beyond reasonable doubt and hence accused Dharmender Kumar, S/o Sh. Sushil Kumar, is given the benefit of the doubt and is hereby acquitted for the offences under Section 279/304A IPC in FIR No. 290/2009 PS Aman Vihar.
30) The accused is directed to furnish personal bond in a sum of Rs.
15,000/- with one surety in like amount in compliance of provisions of Section 437A of the Code of Criminal Procedure and is directed to be present before the Ld. Appellate Court as and when notice is served upon him. File be consigned to the Record Room after necessary com- pliance.
Announced in the Open Court
on 27.06.2019
Digitally signed by
POOJA POOJA AGGARWAL
AGGARWAL Date: 2019.06.27
17:00:16 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 12 pages and each page bears my signature.
Digitally signed by POOJA POOJA AGGARWAL
AGGARWAL Date: 2019.06.27
17:00:25 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 290/2009 PS Aman Vihar U/s 279/304A PC State Vs Dharmender Kumar Page No. 12 of 12