Delhi District Court
State vs . Avdesh Kumar on 15 May, 2013
FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI FIR No.: 320/02 PS: Bara Hindu Rao U/s 279/337/304A IPC State Vs. Avdesh Kumar Unique ID No.:02401R1010302003 J U D G M E N T:
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(a) S.No. of the case : 106B/2
(b) Name of complainant : Sh. Randhir s/o Sh. Roop Chand r/o L526, Wazirpur, J.J. Colony, Delhi.
(c) Date of commission of offence : 25.11.2002
(d) Name of the accused : Avdesh Kumar Thakur
S/o Sh. Modh Narain Thakur @
Madan Narain Thakur,
R/o Village Majhaura, Post & PS
Bahera, District Darbhanga,
Bihar,
Presently residing at Shop No.11,
Khanna Market, Bhagwati
Carriers, Tis Hazari, Delhi.
(e) Offence complained of : U/s 279/337/304A IPC
(f) Plea of accused : Pleaded not guilty
State V/s Avdesh Kumar (" Acquitted ") Page 1 of 25
FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013
(g) Final arguments heard on : 07.05.2013
(h) Final Order : Acquitted
(i) Date of such order : 15.05.2013
BRIEF FACTS & REASONS FOR SUCH DECISION:
1. The facts of the case in brief are that on 25.11.2002, upon receipt of information of some accident vide DD No. 30A, ASI Mohan Chand Pandey alongwith Constable Santosh reached at the spot i.e. near Tikona Park, Azad Market Road where they found one damaged cycle rickshaw as well as one truck bearing registration no. HR476866. HC Ramesh Kumar met them who handed over one person to ASI Mohan Chand Pandey. The said person was claimed to have committed the said accident, whose name was disclosed during inquiry as Avdesh Kumar Thakur. IO also came to know that three persons got injured in the said accident who had already been taken to Hindu Rao Hospital. ASI Mohan Chand Pandey left Constable Santosh and Mahesh at the spot, went to the said hospital and came to know that one of the injured person (unknown) was declared brought dead. IO collected MLC of all the three injured persons. The remaining two injured persons namely Randhir and Smt. Mem Kaur were stated to have already left the said hospital to North Delhi Nursing Home, Ashok Vihar for their further treatment. Thereafter, IO went to the said Nursing Home and made inquiries from injured Randhir who disclosed all the facts leading to the accident in question. Upon the complaint State V/s Avdesh Kumar (" Acquitted ") Page 2 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 of Sh. Randhir, FIR in the present matter was registered. IO conducted necessary investigation in the matter. Accused was apprehended at the spot itself, whose name, on inquiry revealed as Avdesh Kumar (hereinafter referred to as 'accused'). During investigation, it was revealed that the said offending truck was being driven by the accused. IO arrested the accused in the matter and after completion of necessary investigation, prepared the challan and filed the same before the Court through concerned SHO.
2. After completion of investigation, accused stood chargesheeted for offences punishable u/s 279/337/304A IPC.
3. After filing of the charge sheet in the case, accused was supplied the documents in compliance of Section 207 Cr.P.C and after hearing arguments, vide order dated 21.12.2004, Notice in terms of Section 251 CrPC for offences punishable u/s 279/337/304A IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove charges against the accused, the prosecution examined as many as fourteen witnesses and thereafter PE in the matter was closed and statement of accused u/s 311Cr.P.C. was recorded wherein he stated that he was falsely implicated in the present matter. However, accused did not lead any evidence in his defense.
State V/s Avdesh Kumar (" Acquitted ") Page 3 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013
5. I have heard arguments advanced at Bar by the Ld. APP for the State and Sh. Rakesh Kumar, Advocate for accused and perused the entire material on record.
6. Before adverting to adjudication upon the arguments advanced at Bar, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter, which is as under.
7. PW1 HC Khayali Ram was the Duty Officer on the relevant date and time who recorded the FIR in the present matter. He exhibited the copy of FIR as Ex.PW1/A. He also exhibited his endorsement made on the rukka as Ex.PW1/B. During his cross examination, he stated that he took about 40/45 minutes in recording the FIR.
8. PW2 Sh. Balbir Singh, who was the registered owner of the offending truck bearing registration no. HR476866, deposed that on the day of accident i.e. on 24.11.2000, accused Avdesh Kumar was driving the offending truck. He got the said vehicle released on superdari vide Ex.PW2/A. He correctly identified the accused before the Court.
During his cross examination conducted on behalf of accused, he stated that he was the registered owner of the aforesaid truck. State V/s Avdesh Kumar (" Acquitted ") Page 4 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013
9. PW3 Mohd. Juber deposed that deceased Phullo was his brother who died in the accident in the matter. He duly identified the dead body at the mortuary of Hindu Rao Hospital vide Ex.PW3/A. This witness was not at all cross examined by the defense despite being afforded opportunity in this regard.
10. PW4 Sh. Azam, brother in law of deceased also identified the dead body of deceased Phullo vide Ex.PW4/A in the mortuary of Hindu Rao Hospital on 25.11.2002.
This witness was not at all cross examined by the defense despite being afforded opportunity in this regard.
11. PW5 HC Ramesh Kumar, one of the eye witness, deposed that on 24.11.2002, he was present at the place of accident as he was on patrolling duty in that area. He stated that at about 10:45 PM, he saw one truck bearing registration no.HR476668 being driven in rash and negligent manner by its driver, hitting one cyclerickshaw from behind. He stopped the offending truck and apprehended its driver, whose name was disclosed as Avdesh Kumar. In the meantime, PCR van arrived at the spot and injured persons were shifted by PCR personnel to the hospital. Thereafter, IO ASI Mohan Chand Pandey and Constable Santosh arrived at the spot. IO went to the hospital alone. Sometime thereafter, IO returned back to the spot and got the place of incident photographed. IO arrested the accused and took his personal State V/s Avdesh Kumar (" Acquitted ") Page 5 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 search vide memos Ex.PW5/A and Ex.PW5/B. The said rickshaw was taken into police possession vide memo Ex.PW5/C. Documents of truck were also taken into police possession vide memo Ex.PW5/D. Driving license of accused was also taken into possession vide memo Ex.PW5/E. This witness correctly identified the accused before the Court.
During his cross examination conducted on behalf of accused, he stated that he left the police station at about 10:35 Pm vide departure report in roznamcha. He did not furnish the details of Duty Officer. He was on patrolling duty from 10:00 PM to 5:00 AM. He was near shop no.317, when he came to know that accident had taken place. There were street lights, however he did not explain as to whether the lights were in working order or not. About 3040 persons had shouted to catch hold the driver of offending truck. He came to know about the occurrence of accident when he heard the sound of impact as also the sound of people to catch the accused from a distance of about 50 feet. He reached the spot in about two minutes. The front portion of the offending truck was towards Azad Market. He could not tell the speed of the truck. All the three passengers were gents. When he saw the rickshaw, same was lying on the road. He had not seen any injury on the persons of the passengers and rickshaw puller. He did not disclose the clothes worn by injured persons. The blood was lying near the patri at the left side of the road. He did not recollect whether IO had collected any chappals from the spot or not. At about 12:00 AM (night), photographer came there. He did not recollect as to how many photographs were clicked by the photographer. He State V/s Avdesh Kumar (" Acquitted ") Page 6 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 had not got prepared the site plan Ex.PWDA to the IO. The site plan was prepared by IO himself on the date of accident. He denied the suggestion that no such incident had taken place by the truck of accused or that he was not present at the spot at the time of accident.
12. PW6 HC Santosh Kumar deposed that on 24.11.2002, he accompanied IO to the spot i.e. place of incident where they met with some public persons and came to know that injured persons had already been taken to the hospital by PCR Van. In the meantime, SHO of PS Bara Hindu Rao also arrived at the spot. IO went to the hospital leaving him at the spot. On return to the spot, IO prepared site plan. However, he did not know at whose instance said site plan was prepared. Photographs of the incident as well as truck and rickshaw were got clicked. Accused was arrested and his personal search was conducted vide memos Ex.PW5/A & Ex.PW5/B respectively. HC Ramesh was also present at the spot when they reached at the spot. IO arrived at the spot after some time alongwith truck. This witness correctly identified the accused before the Court.
During his cross examination, he stated that he did not remember the DD number. The DD entry was to be made by the Duty Officer or IO. Truck was standing at a distance of 5060 yards from the place of incident. He did not remember the colour of truck or that the truck was loaded or not. The rickshaw was damaged from back side. He did not tell the exact time of reaching to the police station from the spot, however he firstly reached at the State V/s Avdesh Kumar (" Acquitted ") Page 7 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 police station and later on, Ramesh and IO reached there. He had not made any entry of his arrival in the police station, however same might be made by the IO. He did not know whether any documents were prepared at the spot or not. The blood was lying on the road. He had not seen the accident.
13. PW7 Smt. Mam Kaur, one of the injured, deposed that in the year 2002, she alongwith her husband namely Randhir Singh went to attend marriage at Paan Mandi, Sadar Bazar, Delhi. At about 11:30 PM, they were returning to their house after attending marre person who was driving the said truck.
This witness was declared hostile and with the due permission of the Court, was cross examined by Ld. APP for the State. During her cross examination conducted by Ld. APP, she stated that she did not know whether police recorded her statement or not. She admitted that the date of incident was 24.11.2002. She could not say the number of truck being HR476866. She denied the suggestion that accused was driving the truck. Police reached at the spot and they were taken to the hospital. Thereafter, she and her husband were admitted to North Delhi Nursing Home, Ashok Vihar, Delhi. She denied the suggestion that she had statiage on a rickshaw. Suddenly, one truck came from backside in rash and negligent manner and struck against the said rickshaw due to which rickshaw turned down and they sustained injuries. She became unconscious and did not know anything about the case. She did not disclose the number of truck or about the person who was driving the said State V/s Avdesh Kumar (" Acquitted ") Page 8 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 truck.
This witness was declared hostile and with the due permission of the Court, was cross examined by Ld. APP for the State. During her cross examination conducted by Ld. APP, she stated that she did not know whether police recorded her statement or not. She admitted that the date of incident was 24.11.2002. She could not say the number of truck being HR476866. She denied the suggestion that accused was driving the truck. Police reached at the spot and they were taken to the hospital. Thereafter, she and her husband were admitted to North Delhi Nursing Home, Ashok Vihar, Delhi. She denied the suggestion that she had stated to the police that on 18.12.2002, she alongwith her husband were going via Rani Jhansi Road and when they reached near Bara Hindu Hospital, she saw the accused (present before the Court) standing with the police officials and she identified the accused as the person who was driving the truck on 24.11.2002 and hit against the rickshaw and caused injury.
This witness was also cross examined by Ld. defense counsel wherein she stated that she had filed a claim case wherein she got the claim of Rs.11,000/. She was illiterate. She could not tell which month indicated by 11. She had not seen the vehicle which had hit the rickshaw from behind prior to the accident. She had also not seen the driver of the vehicle prior to the accident. She became conscious in the hospital. Police had not recorded her statement. She was told about the details of accident by her husband who had expired on 16.05.2005. He denied the suggestion that she had wrongly given State V/s Avdesh Kumar (" Acquitted ") Page 9 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 some details of the accident. After the accident, she had not seen the vehicle which caused the accident.
14. PW8 Constable Ravinder Kumar was the witness to the factum of clicking photographs of spot, of offending vehicle as well as of rickshaw. He stated that on receipt of message from Control Room in the intervening night of 24.25.11.2002, he went to the spot i.e. near Mithaipul, Azad Market, Tikona Park and took nine photographs Ex.PW8/A (collectively). He also exhibited negatives of photographs as Ex.PW8/B. During his cross examination, he stated that he reached at the spot at about 11:45 PM. He admitted that there was no skid marks on the road, in the said photographs.
15. PW9 Retired ASI (Technical) Devender Kumar deposed that on 25.11.2002, on the request of IO, he conducted the mechanical inspection of TATA LP Truck no. HR476866 at Bara Hindu Rao police station. He found left front body scratched and left front wheel tyre scratched. After inspection, he found vehicle fit for road test. He had furnished his detailed reort vide Ex.PW9/A. This witness was not at all cross examined by the defense.
16. PW10 HC Satbir Singh deposed that on 18.12.2002 on the instructions of IO, he had gone to photosection, Kashmere Gate and brought nine State V/s Avdesh Kumar (" Acquitted ") Page 10 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 photographs from there and handed over the same to IO. Ex. PW8/A were the same photographs which he had taken from photosection and handed over to the IO.
This witness was not at all cross examined by the defense.
17. PW11 K.V. Singh, was the Medical Clerk from Bara Hindu Rao Hospital who proved the MLC no.7313/02 of Randhir and MLC No.7315/02 of Smt. Mem Kaur , prepared by Dr. A. Aggarwal as Ex.PW11/B and Ex.PW11/A respectively.
This witness was not at all cross examined by the defense.
18. PW12 Sh. Sharad Kumar, record clerk from Hindu Rao Hospital appeared before the Court on behalf of Dr. Dinesh and proved the postmortem report Ex.PW12/A of deceased in the matter.
19. PW13 Constable Ashok Kumar deposed that on 25.11.2002, Duty Officer handed him over FIR of the present case which he took to the spot. He found one truck bearing registration no.HR476866, one rickshaw and blood stains there. HC Ramesh had apprehended the accused. He came to know there that accused had caused the accident. He went to mortuary on the direction of IO. On next date i.e. 26.11.2002, postmortem of the dead body was conducted and dead body was handed over to its relatives. He put his signature at point A on memo of dead body Ex.PW12/A. IO recorded his statement.
State V/s Avdesh Kumar (" Acquitted ") Page 11 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 During his cross examination by accused, he stated that he did not remember whether any DD entry was made by the Duty Officer in regard to handing over him the FIR. He was handed over FIR by Duty Officer at about 03:00 AM on 25.11.2002. He reached at the spot within 57 minutes. He did not remember whether IO or anybody else had collected the blood lying at the spot. He denied the suggestion that one rickshaw in accidental condition was lying there or blood stains were also present there. He did not remember whether public persons were present at the spot or not. He did not remember whether any shopkeeper was called by IO to know who caused the accident. He admitted that accident was not occurred in his presence. He could not tell the colour of the truck and the rickshaw. His statement was recorded by the IO on 26.11.2002. He did not sign the said statement.
20. PW14 SI M.C. Pandey, IO of the case, deposed on the lines of prosecution story. He stated that on 24.11.2002 on receipt of DD number 30A, he alongwith Constable Santosh Kumar reached at the spot and found one rickshaw in broken condition, slippers and some blood stains. One truck bearing registration no. HR476866 and driver of the said truck was apprehended by HC Ramesh. Injured were already shifted to the hospital. He went to the hospital and collected MLCs of injured. Out of said three injured, one unknown person was declared dead by the doctor at the hospital. The rest two injured were told to have already been shifted to North Delhi Nursing Home for further treatment. He got the FIR registered at PS Bara Hindu Rao. State V/s Avdesh Kumar (" Acquitted ") Page 12 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 Thereafter, he reached at the spot and prepared site plan Ex.PW14/A at the instance of HC Ramesh. He called the Photographer who got the spot, damaged richshaw as well as offending truck clicked. He seized the driving license of accused as well as documents of the offending truck vide memos Ex.PW5/A and Ex.PW5/D. He also seized the rickshaw vide memo Ex.PW5/C. He arrested the accused and conducted his personal search vide memos Ex.PW5/A and Ex.PW5/B. He deposited the case property in the malkhana and also got the aforesaid vehicles mechanically inspected. After postmortem, dead body was handed over to its relatives. He also recorded statements of witnesses, during investigation. This witness correctly identified the accused before the Court.
During his cross examination, he stated that he did not remember the time when he received DD no.30A. He also did not remember the time of leaving the PS for spot. He did not make any DD entry of his departure. He admitted that public had gathered at the spot. He did not remember the time of his reaching to the spot. Police were also present there. He volunteered that HC Ramesh met him 50 meters ahead from the spot, who had apprehended the accused and offending truck. He denied the suggestion that there was no light at the spot. He admitted that he had not mentioned the position of lights in the site plan. He saw the skid marks of truck at the spot. He admitted that he had not shown the skid marks in the site plan. He further admitted that he was not the eyewitness of the accident. When he reached at the spot, the distance between the truck and rickshaw was about 50 to 60 meters. The truck State V/s Avdesh Kumar (" Acquitted ") Page 13 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 was standing at the left corner. He inquired from the public to participate in the investigation but they all refused for the same. However, public persons told him that they had witnessed the accident. He did not give any notice to any public person when they refused to join the investigation. He denied the suggestion that no public person was present at the spot and had witnessed the accident. He did not remember about preparation of documents by him after reaching at the spot. He remained at the spot for about 1015 minutes at first instance. He himself went for registration of the FIR and thereafter again went to the spot where he recorded statement of HC Ramesh. When he first saw the truck, its face was towards Azad Market Chowk. He did not remember whether he saw any blood stain on the truck. He did not meet richshaw puller at the spot but met him in the hospital. He stated that as far as he remember, he prepared seizure memo and site plan at the spot. He reached at the police station at about 05:00 AM or 05:15 AM. He did not make any arrival entry in the police station. He denied the suggestion that he has falsely implicated the accused at the instance of HC Ramesh. He further denied the suggestion that he had falsely arrested the accused in this case.
21. This is all as far as prosecution evidence in the matter is concerned.
Arguments advanced and case law relied upon :
22. It has been argued by Ld APP on behalf of State that prosecution has been able to establish the charges levelled against the accused beyond reasonable doubt in view of the ocular and medical evidence available on State V/s Avdesh Kumar (" Acquitted ") Page 14 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 record. In this regard, Ld APP referred to the testimonies of prosecution witnesses more particularly those of PW5 namely HC Ramesh Kumar who is the star witness of prosecution, PW6 namely HC Santosh Kumar, PW9 Retd. ASI (Tech) Devender Kumar and PW14 namely SI M.C Pandey(IO) examined during trial. Ld APP also argued that all the material witnesses examined by prosecution, have supported its case and accused could not impeach their testimonies during cross examination. She also submitted that accused has failed to prove his defence as raised by him during his statement U/s 313 Cr.PC recorded by the Court and therefore, he should be convicted accordingly.
23. On the other hand, Ld defence counsel argued that prosecution has miserably failed to prove its case against the accused beyond shadow of doubt. In support of said contention, he heavily relied upon the testimony of PW7 namely Smt Mem Kaur who has not supported the case of prosecution on material points despite the fact that she was declared hostile and was also cross examined on behalf of State. According to Ld defence counsel, PW7 was one of the alleged eye witnesses to the accident as she is alleged to have sustained injury due to accident in question but still, she has neither identified the accused herein to be the driver of offending vehicle nor disclosed the registration number of the offending truck which had caused the accident. Ld defence counsel further argued that PW5 namely HC Ramesh Kumar is police official who has been introduced subsequently by the investigating agency in order to support its story concocted by them and therefore, same State V/s Avdesh Kumar (" Acquitted ") Page 15 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 should not be believed by the Court. He also referred to the relevant portion of the cross examination of PW5 wherein the said witness claimed to have heard the sound of impact as well as the sound of people to catch the accused after occurrence of the accident in question. On the strength of said portion of the testimony of this witness, Ld defence counsel argued that PW5 did not witness the accident at the time of its occurrence but came to know about the same only after the occurrence of accident when he had heard the sound of people for catching the offender. Ld defence counsel contended that the testimony of PW5 does not inspire confidence and same is even otherwise contradictory to the case of prosecution in as much as the said witness claimed that the passengers who had suffered injuries due to accident, were male whereas one of the said passengers happened to be female namely Smt Mem Kaur(PW7). While referring to DD no. 43B dt. 24.11.02, available on record, Ld defence counsel contended that the time of departure of HC Ramesh(PW5) is shown to be at 6.00 P.M for patrolling duty from PS Bara Hindu Rao which is contradictory to the testimony of said witness who claimed that he was on patrolling duty on that day from 10.00 P.M to 5.00 P.M. Ld defence counsel also referred to relevant portion of the testimony of PW6 namely HC Santosh Kumar by submitting that the said witness did not claim through out his testimony that HC Ramesh(PW5) was also present at the spot. Ld defence counsel further submitted that sleepers available on the spot as also shown in site plan Ex PW14/A, not been seized during the course of investigation . He further contended that neither the statement of State V/s Avdesh Kumar (" Acquitted ") Page 16 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 complainant namely Sh. Randhir Singh nor the rukka on the basis of which FIR in question was registered, have been proved during the course of trial and thus, the entire chain of evidence could not be completed in this case.
To counter the aforesaid submission put forward by Ld defence counsel, Ld APP submitted that the presence of HC Ramesh(PW5) at the spot, should not be doubted as he has successfully with stood the test of cross examination on material point. Ld APP submitted that accused was apprehended by PW5 after chasing him for about 4050 meters. Ld APP further argued that FIR is registered on receipt of definite information disclosing commission of cognizable offence and contradictions appearing in the contents of DD no. 30A dt. 24.11.02 and the contents of FIR Ex PW1/A, are not material at all. She further submitted that DD no. 43B regarding departure of HC Ramesh(PW5) is not relied by prosecution as same has not been proved during trial. Even otherwise said DD entry does not rule out the presence of said witness at the spot as the witness might have forgotten the exact time of his departure from the PS for patrolling duty. Ld APP also argued that despite their being certain contradictions in the testimonies of prosecution witnesses as pointed out by Ld defence counsel, prosecution has been able to prove its case beyond shadow of doubt as prosecution witnesses have proved beyond doubt about the manner in which accident has been caused as well as guilt of accused in driving the truck in rash and/ or negligent manner by hitting the cycle rickshaw from its behind. Ld APP also submitted that non seizure of sleeper lying at the spot, is not material for the State V/s Avdesh Kumar (" Acquitted ") Page 17 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 purpose of proving the case of prosecution.
24. In order to bring home the guilt of accused for the offences charged against him, prosecution was required to prove the following points:
1. That it was the accused who was driving the offending truck at the time of accident;
2. That the accused was driving the offending truck in rash and/or negligent manner;
3. That the accused had caused accident in question while driving the offending vehicle in rash and negligent manner; and
4. That due to accident, death of Mohd. Phullo was caused and simple injury was caused to Sh. Randhir and Smt. Mem Kaur.
25. As already discussed above, PW1 is formal witness who has proved factum regarding registration of FIR in the present case. Likewise, PW3 and PW4 are also formal witnesses regarding identification of dead body of deceased Mohd Phullo. Similarly, PW10 namely HC Satbir Singh is also a formal witness who had collected photographs from Photo Section, Kashmere Gate on the instruction of IO. PW11 is also formal witness who has proved MLC no. 7313/02 of Sh. Randhir and MLC no. 7315/02 of Smt Mem Kaur.
26. As is evident from the above discussion, prosecution has relied upon its two star witnesses namely HC Ramesh Kumar and Smt Mam Kaur examined State V/s Avdesh Kumar (" Acquitted ") Page 18 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 as PW5 and PW7 respectively. Out of them, PW7 has not supported the case of prosecution on material points as she could not disclose the registration number of offending truck which had caused the accident and also did not identify the accused herein to be the driver of offending vehicle at the time of accident. Not only this, the said witness deposed that she was not in a position to identify the offending truck with which the accident took place.
27. Alongwith the charge sheet, investigating agency has filed DD no. 30A dt. 24.11.02 recorded at PS Bara Hindu Rao wherein it is recorded that as per wireless information received at 11.05 P.M, ASI Sushil of PCR Van had given intimation that accident had taken place between truck and one motorcycle at Pul Mithai causing death of one person. It is further mentioned in the said DD entry that the offending truck was standing at the spot whereas its driver had fled away from the spot. It is mentioned in the charge sheet that on receipt of aforesaid DD entry, ASI M.C Pandey (PW14) alongwith Ct. Santosh Kumar(PW6) went to the place of accident i.e Azad Market Road near Tikona Park where one rickshaw in damage condition was found lying there and one truck no. HR47 6866 was also found stationed at a distance of about 5060 sq. yards.
28. It is evident from the above discussion that main question involved in the case is about the presence of HC Ramesh Kumar(PW5) at the spot. The said issue assumes more importance in the light of fact that prosecution relied State V/s Avdesh Kumar (" Acquitted ") Page 19 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 upon three eye witnesses to the accident in question out of whom complainant namely Sh Randhir Kumar expired during pendency of matter and was consequently dropped from the list of witnesses vide order dt. 01.02.11 and other alleged eye witness namely Smt Mam Kaur(PW7) did not support the case of prosecution on material points including on the aspect of identity of accused herein to be the driver of offending vehicle.
29. As per the case of prosecution, HC Ashok Kumar(PW5) had apprehended driver of the offending truck which had caused the accident in question. It is claimed in the charge sheet that said HC Ramesh Kumar(PW5) had met ASI M.C Pandey (PW14) and Ct. Santosh Kumar(PW6) at the spot when they reached there on receipt of DD no. 30A. The time of accident as per case of prosecution is at about 10.05 P.M as also mentioned in the FIR Ex. PW1/A. PW5 claimed during his cross examination that he was on patrolling duty from 10.00 PM to 5.00 A.M on that day and that is how, he happened to be present at the spot when accident took place. However, said part of his testimony stands falsified from DD no. 43B dt. 24.11.02 available on judicial record wherein, the time of departure of HC Ramesh Kumar (PW5) for patrolling duty in the area of Division no. I is shown to be at about 6.00 P.M. Although, it has been contended by Ld APP that said DD entry should not be taken into consideration but there is no merit in the said argument. The copy of said DD entry has been filed on record by the prosecuting agency itself and thus, prosecution cannot be permitted to disown its own document in the State V/s Avdesh Kumar (" Acquitted ") Page 20 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 aforesaid manner.
30. Although, there is no material on record which may show or specify the particular area forming part of Division No. I falling within the jurisdiction of PS Bara Hindu Rao due to which, it is not clear as to whether the place of occurrence i.e Azad Market Road was forming part of Division No. I or not but at the same time, no dispute has been raised from the side of accused on the aforesaid point through out the trial of the present case.
31. Now, the question arises as to whether the presence of HC Ramesh Kumar(PW5) at the spot stands proved or his presence at the spot is doubtful in the light of testimony of said witness coupled with relevant material available on record. The prosecution story as unfolded by prosecution witnesses during trial and as also mentioned in the charge sheet, reveals that offending vehicle had hit one cycle rickshaw on which there were two passengers and one rickshaw puller. The prosecution story says that all the said three persons were found to have already been removed to Hindu Rao Hospital at the time of arrival of ASI M.C Pandey(PW14) and PW6 namely HC Santosh Kumar to the spot. It is the case of prosecution that out of said three injured persons, one was female passenger namely Smt. Mam Kaur who has also been examined as PW7 during trial. However, PW5 namely HC Ramesh Kumar deposed contrary to the case of prosecution on the aforesaid aspect by testifying during cross examination that there were three State V/s Avdesh Kumar (" Acquitted ") Page 21 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 passengers on the cycle rickshaw who all were gents and rickshaw puller was the fourth person meaning thereby that there were four persons in all available at the cycle rickshaw at the time of accident in question. If that is so then it is not explained as to what happened to the third passenger who was allegedly travelling on cycle rickshaw at the time of accident. It is no where the case of prosecution that there were three passengers on the said cycle rickshaw or that the third passenger had also received any injury due to accident in question. The entire prosecution story is completely silent on the said aspect.
32. Not only this, he testified during cross examination that PW5 had come to know about the accident only when he had heard the sound of impact and sound of people to catch the accused. He further claimed that he was present at a distance of about 50 feet away from the spot when he had heard the sound of impact. As rightly submitted by Ld defence counsel, the above referred portion of the testimony of PW5 creates reasonable doubt about his presence at the time of accident in question. Same is further fortified from the fact that said witness could not tell the speed of the truck. He also could not tell as to whether there was any damage to the rickshaw or not. He also could not specify the place where he had caught the accused after the accident. He claimed that he did not see any injury on the person of passengers or rickshawpuller. He could tell the clothes which were worn by passengers as well as rickshaw puller.
State V/s Avdesh Kumar (" Acquitted ") Page 22 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013
33. Furthermore, the presence of aforesaid witness i.e PW5 at the spot also becomes doubtful in view of his further testimony that the site plan Ex DA(also exhibited as PW14/A) was prepared by IO (PW14) himself on the date of accident and he did not get the said site plan prepared through IO. As contrary to said deposition, PW14(IO) claimed that he had prepared the site plan Ex PW14/A at the instance of HC Ramesh(PW5). As already mentioned above, PW5 was found available at the spot having custody of accused at the time of arrival of ASI M.C Pandey(PW14) and Ct. Santosh Kumar(PW6) at the first instance. PW6 Ct. Santosh Kumar nowhere claimed in his entire deposition that HC Ramesh Kumar (PW5) was also present at the spot when he alongwith IO had reached the spot at the first instance. Rather, the said witness claimed that some public persons met them when they reached the spot. Not only this, PW6 also claimed during cross examination that site plan was prepared by IO(PW14) himself. In this backdrop, Court agrees with the argument raised by Ld defence counsel that presence of PW5 namely HC Ramesh at the spot at the time of accident, become doubtful. It is well settled law that benefit of doubt must always go to the accused.
34. There is another aspect which persuade this Court to arrive at the conclusion that prosecution has not been able to bring home guilt of accused beyond shadow of doubt. It has been held time and again in catena of judgments delivered by Hon'ble Supreme Court of India as well as by various State V/s Avdesh Kumar (" Acquitted ") Page 23 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 High Courts that investigation in accidental cases, should be conducted in most swift and scientific manner. In the matter titled as "Abdul Subhan Vs. State (NCT of Delhi)" reported at 133 (2006) DLT 562 wherein it has been held as under:
" As observed in Badri Prasad (supra) the essential ingredients of Section 279 IPC, are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A, IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved. The only distinction being that in Section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under Section 304A extends to any rash and negligent act falling short of culpable homicide. As correctly observed by the learned Judge, the rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence in that, rashness coveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care".
35. In the case in hand, investigation has not been done in the aforesaid manner. The investigation seems to have not been conducted in proper and scientific manner. No effort is shown to have been made by investigating agency to collect skid marks if any appearing on the spot or to get the same State V/s Avdesh Kumar (" Acquitted ") Page 24 of 25 FIR NO. 302/02; PS Bara Hindu Rao; U/s 279/337/304A IPC DOD: 15.05.2013 photographed despite the fact that photographer was called at the spot as per the testimony of IO(PW14).
36. In the light of aforesaid discussion, Court is of the view that prosecution has failed to prove its case beyond reasonable doubt. Consequently, accused namely Avdesh Kumar is acquitted in respect of charges levelled against him. His personal bond stands cancelled. However, his surety bond shall remain in force for a period of six months in terms of Section 437A Cr.PC. Superdar is discharged. Original documents if any be returned after cancellation of endorsement if any. File be consigned to record room.
Announced in the open court (Vidya Prakash)
on 15.05.2013 Chief Metropolitan Magistrate:
Central District:Tis Hazari Courts:
Delhi
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