Delhi District Court
Fir No. 317/12, Ps Saket State vs . Nebu Mathew 1 Of 23 on 28 November, 2016
IN THE COURT OF SANDEEP GARG:
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH), NEW DELHI
F.I.R. No: 317/12
U/s 279/337/338/304A IPC
P.S. Saket
Date of Institution of Case : 21.06.2013
Judgment Reserved on : 28.11.2016
Date of Judgment : 28.11.2016
JUDGMENT:
(a) The serial no. of the case :404/2/13 (02406R0161172013)
(b) The date of commission of offence : 27.10.2012
(c) The name of complainant : Ms. Chandani Sharma, : D/o Sh. V.B. Sharma, : R/o R536, Begum Bagh, : Meerut, UP.
(d) The name, parentage, of accused : Nebu Mathew
: S/o Sh. V.M. Mathai,
: R/o H. No. Vadakeparackel,
: Kothaikunnu,
: Thodupuzha PO,
: Distt. Idukki, Kerala.
Present Address : As above
(e) The offence complained of : U/s 279/337/338/304A IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 28.11.2016
FIR No. 317/12, PS Saket State Vs. Nebu Mathew 1 of 23
Brief statement of the reasons for the decision:
1. The present case arose out of information recorded vide DD No. 5A, PS Saket regarding accident which took place opposite Max Hospital, near Hauz Rani, Press Enclave Road, Saket, New Delhi. In response to the said information, ASI Kuldeep Singh alongwith Ct. Sajjan Singh reached at the spot where they found two motorcycles bearing no. UP 23C 8468 make Bajaj Pulsar (black colour) and KL 32 9931 make Bajaj Pulsar (black colour) in accidental condition. On inquiry, they came to know that injured persons had already been shifted to Max Hospital.
2. ASI Kuldeep Singh went to Max Hospital by leaving Ct. Sajjan Singh at the spot. Injured persons were found to be admitted at Max Hospital, but their statements could not be recorded at that time. Upon MLC bearing no. 2862/12 of Johny George, MLC No. 2863/12 of Vikrant, MLC No. 2865/12 of accused Nebu Mathew and MLC No. 2864/12 of Ms. Chandani Sharma, the concerned doctor had reserved his opinion. After undergoing treatment for sometime, injured Ms. Chandani Sharma was discharged from hospital and ASI Kuldeep recorded her statement.
3. In her statement / complaint, complainant Ms. Chandani Sharma alleged that she was residing at H. No. R49, 6th Floor, Khirki Extn, Malviya Nagar, New Delhi and was working in ATOS IT Company at GKII, New Delhi. On the intervening night of 27.10.2012, her gas cylinder was empty and she, alongwith her friend viz. Vikrant, had gone to take food items from PVR, Saket on motorcycle bearing no. UP 23C 8468. At around 12:30 AM (night), when they were returning from PVR, Saket after taking food items and had reached near Hauz Rani, opposite Max Hospital, Press Enclave Road, FIR No. 317/12, PS Saket State Vs. Nebu Mathew 2 of 23 Saket, one Pulsar motorcycle bearing no. KL 32 9931 was coming from wrong side, whose driver was driving it in a rash and negligent manner and hit their motorcycle from front side due to which she and her friend Vikrant fell down on the road.
4. The complainant alleged that the said motorcyclist also fell down on the road. Her friend Vikrant was badly injured. She also sustained injuries. In the meantime, public persons had gathered at the spot who lifted the motorcycle of motorcyclist who name was revealed as Nebu Mathew. Public persons had shifted them to Max Hospital, Saket where her friend Vikrant was admitted in ICU. After first aid treatment, she was discharged from the hospital. She alleged that accused Nebu Mathew was driving the offending vehicle in a rash and negligent manner as well as in high speed and the accident took place due to his fault.
5. After recording statement of Ms. Chandani Sharma, ASI Kuldeep Singh prepared a tehrir and got the FIR registered through Ct. Sajjan Singh and investigation was assigned to him. During investigation, site plan was prepared at the instance of complainant Ms. Chandani Sharma and statement of witnesses were recorded. Case properties were seized and deposited at malkhana. Accused Nebu Mathew was arrested and released on police bail. Both the motorcycles were got mechanically inspected and statement of mechanical inspector was recorded. DL of accused and documents of offending vehicle were got verified. Thereafter, information regarding death of injured Vikrant was received at PS Saket upon which ASI Kuldeep Singh went to Max Hospital and took the dead body of deceased to AIIMS for postmortem.
6. After conclusion of postmortem, the dead body was handed over to FIR No. 317/12, PS Saket State Vs. Nebu Mathew 3 of 23 relatives of the deceased and Section 304A IPC was added in the present case. ASI Kuldeep Singh seized the sample seal and Viscera of deceased and deposited it at malkhana. After receipt of postmortem report, Viscera samples were deposited at FSL, Rohini and statement of witnesses were recorded. Report on MLC of complainant Ms. Chandani Sharma was obtained where concerned doctor gave opinion regarding nature of injuries as simple and Section 337 IPC was added. Offending motorcycle was released on superdari by the order of Court. Result on MLC of injured Johny George was obtained upon which concerned doctor had opined the nature of injury to be grievous and Section 338 IPC was also added. DL and document of motorcyclist were got verified which were found to be genuine. Address of accused Nebu Mathew was also verified which was found to be correct. Thereafter, investigation was entrusted to ASI Ram Kanwar who examined the witnesses, prepared chargesheet and filed in court on 21.06.2013.
7. In compliance of Section 207 Cr.P.C. copy of chargesheet ws supplied to the accused. Thereafter vide order dated 29.01.2014, notice for commission of offences punishable U/s 279/337/338/304A IPC was served upon the accused to which he pleaded not guilty and claimed trial.
8. In order to substantiate its case, prosecution has examined nine witnesses. Thereafter, statement of accused U/s 313 Cr.P.C was recorded wherein he claimed himself to be innocent and having been falsely implicated in the case. The accused claimed that the deceased himself was the responsible for the accident as he was under the influence of alcohol and he was not wearing a helmet while he was driving the motorcycle. He preferred to adduce evidence in support of his defence. In FIR No. 317/12, PS Saket State Vs. Nebu Mathew 4 of 23 order to substantiate his defence, the accused has examined three defence witnesses.
A brief scrutiny of the evidence:
9. PW01 Sh. Imran Khan deposed that on 26.10.2012, in the night, when he was walking after having dinner near Max Hospital, he saw public persons had gathered there and one person was lying injured. He made a call on 100 number and thereafter, left the spot. Two motorcycles were lying in an accidental condition at the spot and injured were taken to Max Hospital by the police officials.
10. PW2 Sh. Lalan Mishra deposed that he was working as a security guard at Max Pharmacy, opposite Max Hospital, Hauz Rani. The incident had occurred just one day prior to the Eid festival in the year 2012. After having dinner, he was present at the chemist shop and he saw that public persons had gathered at the place of accident which was just ahead of his shop. He inquired from one Auto driver who told him that an accident had taken place. He went to the spot and saw that two bikes were lying in an accidental condition. He also saw blood stains at the spot. Before he reached at the spot, injured had already been shifted to the hospital. He left the spot. He was declared hostile and was crossexamined by Ld APP for the State. During his cross examination, he denied that one Kerala number Pulsar bike came from wrong side towards Khirki Extension and hit against one bike of U.P. number. He was confronted with statement Mark LM where it was recorded from point A to A1. He denied that in the said accident, three persons and one lady had sustained injuries. He was confronted with statement Mark LM where it was recorded from point B to B1. He denied that he came to know the name of accused as Nebu Mathew. He was confronted with FIR No. 317/12, PS Saket State Vs. Nebu Mathew 5 of 23 statement Mark LM where it was recorded from point C to C1. He denied that he was deposing falsely at the instance of accused or that he had been won over by the accused.
11. PW3 Sh. Mohd Mobin Gauri deposed that he was doing the job of a plumber and the incident took place just one day prior to the Eid festival in the year 2012. After taking clothes from Madangir, he was returning to his house situated at Hauz Rani and got down opposite Max Hospital where he saw that public persons had gathered at the place of accident and two motorcycles were lying in an accidental condition. He also saw two injured persons who were lying there. He along with help of public persons shifted the injured persons to Max Hospital. He does not remember the registration number of those motorcycles. He was declared hostile and was cross examined by Ld. APP for the State. During his crossexamination, he denied that he reached at the spot after hearing noise of accident. He was confronted with statement Mark M wherein this fact was recorded from point A to A1. He could not tell as to whether the registration numbers of motorcycles were KL 32 9931 & UP 23C 8468. He denied that Kerala number motorcycle i.e. KL 32 9931 came from wrong side and had hit the motorcycle bearing no. UP 23C 8468. He was confronted with statement Mark M wherein this fact was recorded from point B to B1. He denied that he was deposing falsely at the instance of accused or that he had been won over by the accused.
12. During his crossexamination by ld. defence counsel, he stated that he had not seen any helmet lying at the spot. He reached at the spot after 1520 minutes after the accident. He does not remember the exact time when he had reached at the spot.
FIR No. 317/12, PS Saket State Vs. Nebu Mathew 6 of 23
13. PW04 Ct. Rishi Pal deposed that on 31.10.2012, he was posted as constable on emergency duty at PS Saket. On that day, he joined investigation with ASI Kuldeep Singh (IO). Accused Nebu Mathew was arrested in his presence after which he was released on police bail. He had signed upon arrest memo, personal search memo of accused and seizure memo of insurance and RC of motorcycle. Arrest memo, personal search memo of accused and seizure memo of insurance policy and RC of motorcycle are Ex. PW 4/A, Ex. PW 4/B, Ex. PW 4/C and Ex. PW 4/D respectively. His statement U/s 161 Cr.PC was recorded by IO.
14. PW05 complainant Ms. Chandni Sharma deposed that she was MBA and at the time of incident, she was residing at H. No. R49, 6 th Floor, Khirki Extn, Malviya Nagar on rent. She was working in a company namely Atos India situated at GKII, Delhi. On 26.10.2012, at around 12:00 AM (night), she alongwith her friend viz. Vikrant Singh were going to take food items from PVR, Saket on black pulsar motorcycle bearing no. UP......8468. At about 12:30 AM, when they reached near Max Hospital, she saw that a driver of black colour Pulsar motorcycle came at a very high speed from wrong side and hit their bike. The number of offending motorcycle was KL .... 9931. A pillion rider was also present on that motorcycle. Due to accident, they fell down. Vikrant had sustained severe injuries and she had also sustained injuries on her forehead, near eyes. Thereafter, with the help of public present at the spot, they were taken to Max hospital where her friend Vikrant was admitted in ICU. On the next morning, police took her to the spot of accident. IO recorded her statement which is Ex. PW 5/A. She had stated the occurrence in detail to police officials besides showing the spot to them.
FIR No. 317/12, PS Saket State Vs. Nebu Mathew 7 of 23
15. During her crossexamination, she stated that she had not attended any party on the day of accident and she had met the deceased at around 11:45 PM12:00 AM (night). She denied that the deceased was drunk. Upon being questioned by ld. defence counsel, if the deceased was drunk at the time of incident, would she have still traveled with him to which she replied in affirmative. She does not remember as to whether the deceased was wearing any helmet or not. She had seen the offending motorcycle at the time when it was coming because the same was driven at a very fast speed. She observed the colour and the number of motorcycle after the impact when she stood up. Blood was oozing out from deceased and after few minutes, public persons had gathered at the spot of accident. The bike was not removed from the spot to the side of the road till the time they were shifted to the hospital. She denied that there were trees at point A1 in the site plan.
16. PW05 Ms. Chandani Sharma admitted that there was a Uturn ahead of Max Hospital. She denied that they were in hurry as it was already 12:30 AM. She denied that the accused came by driving the offending motorcycle from BRT side and took a uturn ahead of Max Hospital. She volunteered that as far as she remembers, accused Nebu Mathew hit them from a wrong side. She denied that she does not remember the exact facts due to lapse of time. As far as she remembers, accused was not taking any uturn. She again stated that she does not know as to whether the offending motorcyclist had taken uturn or not. As far as she remembers, the offending motorcyclist came from wrong side from the front and hit the motorcycle and therefore, no question of taking the uturn arises. She admitted that she had also sustained injuries in the accident and had received first aid at Max Hospital. She admitted that all FIR No. 317/12, PS Saket State Vs. Nebu Mathew 8 of 23 four of them were taken to hospital. She denied that the deceased was driving the motorcycle at a high speed and since he was drunk and due to late night, he could not see the accused taking a uturn. She denied that point A2 is the spot of accident. She had no idea as to whether after the accident, the public persons had removed the vehicles from the spot towards the road side. She does not remember as to whether the head lights of offending vehicle were on or off. However, the head light of their motorcycle was on and there was street light at the spot. She denied that the accident occurred due to fault of deceased.
17. PW06 Ct. Murma deposed that on 26.11.2012, on the instructions of IO, he had taken a sealed sample of Viscera from Malkhana, PS Saket against receipt no. 129/21/12 and gone to FSL, Rohini where he deposited the viscera samples against receipt. He had returned to PS and deposited the receipt with MHC(M). During his custody, the sample with the seal remained intact. IO had recorded his statement.
18. PW07 Ct. Sajjan Singh deposed that on the intervening night of 26.10.2012 - 27.10.2012, he was posted at PS Saket and his duty hours were from 8:00 PM to 8:00 AM. At around 1:00 AM (night), ASI Kuldeep received a DD regarding accident which took place opposite Max Hospital (Hauz Rani side). He alongwith IO went to the spot where two motorcycles (make Pulsar) bearing nos. UP23C8468 & KL 329931 were lying on the road in an accidental condition and public persons had gathered there. On inquiry, it was revealed that the injured persons had already been shifted to Max Hospital. IO proceeded towards Max Hospital leaving him at the spot. At around 8:30 AM, IO / ASI Kuldeep returned to the spot and handed over a rukka to him for registration of FIR. He went to PS and got the FIR registered. After registration of FIR No. 317/12, PS Saket State Vs. Nebu Mathew 9 of 23 FIR, he returned at the spot alongwith original rukka and copy of FIR and handed over the same to IO who seized the said vehicles vide seizure memos which are Ex. PW 7/A and Ex. PW 7/B. Case property was shifted to PS Saket and deposited in malkhana. IO had recorded his statement. On 02.11.2012, he alongwith IO went to AIIMS Mortuary for obtaining postmortem report of deceased Vikrant. After postmortem, IO received the postmortem report of deceased. The dead body was handed over to relative of deceased vide handing over memo which is already Ex. A13. The identification memos have already been admitted and exhibited as Ex. A11 & A12. He correctly identified the offending motorcycle bearing registration no. KL 32 9931 in court through photographs which are Ex. P1 (Colly).
19. During his crossexamination, PW07 stated that he had accompanied ASI Kuldeep (IO) to the spot on the intervening night of 26.10.2012 27.10.2012 and on reaching at the spot, two bikes were found in an accidental condition. 24 publicpersons were present at the spot. He had not seen the accident. He remained at the spot till the time ASI Kuldeep returned back there. ASI Kuldeep sent him to PS Saket alongwith rukka for registration of FIR. Statement of Ms. Chandani Sharma was recorded at the spot in his presence. The vehicles were seized by IO after he returned back to the spot alongwith copy of FIR and original tehrir. Identification statement of witnesses viz. father and uncle of deceased Vikrant were recorded by IO on 02.11.2012 in his presence and dead body was handed over to relative of deceased against memo. He denied that he had not accompanied ASI Kuldeep (IO) to the spot on the intervening night of 26.10.2012 27.10.2012 or that the vehicles were not seized by the IO at the spot and the documents were prepared at PS Saket. He denied that accused Nebu Methew was falsely implicated in this case on the ground of suspicion.
FIR No. 317/12, PS Saket State Vs. Nebu Mathew 10 of 23
20. PW08 ASI Kuldeep Singh deposed that on the intervening night of 26.10.2012 27.10.2012, he was posted as ASI at PS Saket. On that day, at around 01:00 AM, he received DD No. 5A regarding accident which had taken place at Press Enclave Road, opposite Max Hospital. He alongwith Ct. Sajjan Singh went to the spot where they found two motorcycles bearing nos. KL 32 9931 and UP 23C 8468 (both make Bajaj Pulsar) lying on the road in an accidental condition. On inquiry, it was revealed that four persons had sustained injuries in that accident who had already been shifted to Max Hospital for medical examination. He went to Max Hospital leaving Ct. Sajjan Singh at the spot. He collected MLCs of injured persons namely Sh. Johny George, Sh. Vikrant, Ms. Chandani Sharma and Nebu Mathew. Ms. Chandani Sharma got discharged from the hospital after her medical treatment.
21. PW08 ASI Kuldeep Singh deposed that he recorded her statement which is already Ex. PW 5/A and attested her signatures at point B. The concerned doctor made endorsement that patient Vikrant was unfit for statement, so, he did not record his statement. He made endorsement on the said complaint which is Ex. PW 8/A. He returned at spot and handed over the said rukka to Ct. Sajjan who got the FIR registered. After registration of FIR, Ct. Sajjan Singh returned at the spot alongwith copy of FIR and original rukka and handed over the same to him. He prepared a site plan at the instance of complainant which is Ex. PW 8/B. He seized both vehicles vide seizure memos which are already Ex. PW 7/A and Ex. PW 7/B. He recorded statement of witnesses. Case properties were taken to PS Saket and deposited in malkhana. He got both the vehicles mechanically inspected and obtained its report which are already exhibited as Ex. A5 and Ex. A6. On 31.10.2012, he alongwith Ct. Rishipal went to the FIR No. 317/12, PS Saket State Vs. Nebu Mathew 11 of 23 house of accused i.e. H. No. 8, Madangir and took the accused to PS. After interrogation, he arrested and carried out personal search of accused vide memos which are Ex. PW 4/A and Ex. PW 4/B. He seized the documents i.e. RC & insurance of offending vehicle make Bajaj Pulsar bearing no. KL 32 9931 vide seizure memo which are already Ex. PW 4/C and Ex. PW 4/D.
22. PW08 ASI Kuldeep Singh deposed that he seized the DL of accused vide seizure memo which is Ex. PW 8/C. The documents are Ex. PW 8/D (Colly). The accused was released on policebail on his furnishing bail bonds. On 01.11.2012, he received DD No. 41A regarding death of injured Vikrant at Max Hospital. He alongwith Ct. Sajjan Singh went to Max Hospital on 02.11.2012. He collected the dead body of deceased Vikrant and shifted the same to AIIMS Mortuary. Dead body was identified by relatives of deceased. He prepared the identification memos which are exhibited as Ex. A12 (Colly). After postmortem, the dead body was handed over to relative of deceased vide handing over memo which is already admitted as Ex. A13. He collected the medical documents of injured persons. He made request to the concerned doctor for preserving Viscera of the dead body who kept the same. He seized the said sealed Viscera samples vide seizure memo which is Ex. PW 8/E. He sent the said Viscera samples to FSL, Rohini for inspection, recorded the statements of witnesses and deposited the case file in MACT Cell. He searched injured namely Johny George, but he could not be traced as he left from Max hospital after treatment. He correctly identified the offending vehicle i.e. Bajaj Pulsar (black colour) bearing no. KL 32 9931 in court through photographs which are already Ex. P2 (Colly).
23. During his crossexamination, PW08 stated that no police person was FIR No. 317/12, PS Saket State Vs. Nebu Mathew 12 of 23 present at the time of accident. He admitted that there were four injured persons including the deceased, eye witness, accused and the pillion rider. He admitted that he did not record statement of pillion rider of the motorcycle driven by accused. He volunteered that he could not trace him. He denied that he did not deliberately record statement of pillion rider of accused. He denied that he had recorded statement of pillion rider of accused, but he had not filed the same alongwith chargesheet. He admitted that after the accident, the accidental vehicles are usually removed from the spot either by the public or by police. He volunteered that as it was dead night, the vehicles were not removed from spot of accident by anybody. Due to late night, the vehicles remained at the accident spot which did not hamper the traffic movement. He had prepared a site plan at the instance of complainant / eyewitness Ms. Chandani Sharma. He had not recorded the statement of accused prior to preparation of site plan. Since the accused was unconscious after the accident, he did not make any inquiry from him at that time. He had not taken the accused to the spot after his arrest. He denied that the site plan was incorrect or that the spot of accident was A2. He had no knowledge as to whether the deceased was drunk at the time of accident or whether the same was recorded in his MLC. He had no knowledge as to whether the deceased was wearing any helmet at the time of accident or not. He had not asked from Ms. Chandani Sharma as to whether the deceased was wearing helmet or not. He denied that he had not conducted proper investigation or that he proceeded to chargesheet the accused without perusing the MLC of deceased.
24. PW09 Retd. ASI Ram Kanwar deposed that on 30.11.2012, he was posted as ASI at MACT Cell, South District. On that day, investigation of the present case was entrusted to him. During the course of investigation, he released the offending FIR No. 317/12, PS Saket State Vs. Nebu Mathew 13 of 23 vehicle i.e. motorcycle bearing no. KL 32 9931 on superdari on court's order. He examined and verified the witnesses, prepared the challan and filed it in the court through concerned SHO.
25. During his crossexamination, PW09 stated that two motorcycles were involved in the accident. As per the record, pillion riders were sitting on both the motorcycles in question. He interrogated the pillion rider sitting on the bike of accused who had come with accused. The pillion rider had told him that he was sitting behind accused. He does not remember name of pillion rider and he had not recorded his statement. He denied that he had suppressed the statement of pillion rider of accused deliberately. He denied that he had filed the challan without verifying the records and the statement of witnesses.
26. DW01 Sh. Roop Chand deposed that he was posted as Assistant Medical Record Officer, Max Super Specialty Hospital, Saket, Delhi17. He produced the record pertaining to MLC No. 2863 dated 27.10.2012 which is already exhibited as Ex. A10. He did not tamper any document or the said MLC in question.
27. DW02 Sh. Johny George deposed that on 27.10.2012, at around 12:45 AM (night), he alongwith his friend / accused Nebu were going towards Hauz Rani from Saket Mall on a motorcycle which was being driven by accused Nebu Mathew. When they reached near gate no. 3, Max Hospital and they were taking a turn from there to Hauz Rani, a pulsar bike was coming from Malviya Nagar Metro Station side at a high speed and hit their vehicle. The said motorcycle was coming from the side of divider and the passengers of the motorcycle were not wearing any helmet. One man and one FIR No. 317/12, PS Saket State Vs. Nebu Mathew 14 of 23 woman were riding on that motorcycle. A man was riding the motorcycle and a lady was the pillion rider. They were talking to each other while coming. After the accident, he fell down on the road and sustained injuries. He lost his tooth and his nasal bone was broken. Accused Nebu Mathew became unconscious at the spot. The rider and pilion rider of the other motorcycle also sustained injuries. Public persons had gathered at the spot. Public persons and police officials shifted the said motorcycles as well as injured persons on the left side of road to clear the traffic. He himself went to Max hospital where he was medically examined. The accident had occurred because of other motorcycle which was being driven at a high speed and the persons riding on it were talking to each other. He also stated the said fact to the police.
28. During his crossexamination by ld. APP for the State, DW02 stated that he does not remember as to whether police officials had recorded his statement or not. He had seen the head light of the said vehicle before the impact. He admitted that could not take a turn in front of Max Hospital and they were trying to take a Uturn to go to village Hauz Rani, but could not do so. The accident took place when their vehicle had stopped to see as to whether no vehicle was coming from behind, at that time. He was residing at Khanpur and his friend/ accused was residing at Madangir. His another friend namely Shibu was residing at Hauz Rani. After finishing his evening duty, he had gone to the room / house of accused Nebu. He admitted that the said motorcycles collided from the front side. He denied that they were going towards Malviya Nagar side from Hauz Rani side in a wrong direction. He admitted that he saw the headlight of said motorcycle. He came at his own conclusion that the said motorcycle was at a speed of 6080km/hr. He admitted that after getting medical treatment from the hospital, he left the hospital and went to his room / house. He did not visit the police station to lodge a FIR No. 317/12, PS Saket State Vs. Nebu Mathew 15 of 23 complaint in respect of negligence of the rider of the said motorcycle. He did not lodge any complaint in respect of negligence of the rider of the said motorcycle. He admitted that after the accident, his friend Nebu met him frequently.
29. During his further crossexamination, DW02 stated that the accused Nebu told him that he had been falsely implicated in the present case despite the fact that he had seen the accident in question. He admitted that he did not visit either police station or court to depose in favour of his friend / accused Nebu. He volunteered that he had visited court for four times, but the court did not ask anything from him. He does not know the number of the motorcycle which was driven by Vikrant / deceased. He admitted that the accident occurred during the night time. He admitted that he did not see the face of the rider and the pillion rider of the other motorcycle, but he saw the face of the driver of the other motorcycle not very clearly after they fell down. He volunteered that there was street light which was operational on the road and both of them were not wearing helmet. He admitted that he did not see whether the rider and pillion rider of the motorcycle were talking to each other before the accident. Their helmets had got broken because of their falling down due to the collision. He left the articles carried by him including helmet and went to the hospital alone. His father viz. George K.J. was not present at the spot and he had not accompanied him at the time of admission in the hospital. He cannot tell the name and particulars of the police official to whom he had narrated the manner in which accident had taken place. He denied that the accident had occurred due to the sole negligence of the accused as he was driving the motorcycle in a wrong direction and had hit the motorcycle of the deceased. He denied that they were not going from Saket towards Hauz Rani and they did not try to take Uturn in front of Max Hospital or that the accident did not occur due to the negligence of the rider / FIR No. 317/12, PS Saket State Vs. Nebu Mathew 16 of 23 deceased. He did not maintain any day to day diary. He did not record the said accident in any diary. He denied that the deceased was not driving his motorcycle at a speed of 6080km/hr. He denied that he was deposing falsely in order to save his friend/accused Nebu Mathew.
30. DW03 Dr. Naga Bhushan Reddy has deposed that he knew Dr. Rahat Farid as he was a medical emergency physician. The deceased Vikrant was not wearing a helmet while riding motorcycle as per Dr. Rahat Farid, Physician. Smell of alcohol was coming from the deceased Vikrant as per MLC. As per the MLC, Maxilla Mandible and Facial fractures were sustained by the deceased.
31. During his crossexamination by ld. APP for the State, DW03 stated that he identified signatures of Dr. Rahat Farid and he had no personal contact with him. The deceased Vikrant was not wearing helmet while riding motorcycle as per record.
32. The court has heard the arguments advanced by Ld. defence counsel for accused and learned APP appearing on behalf of the State and has perused the record with their able assistance.
33. It has been emphatically contended by ld. defence counsel that two eye witnesses viz. PW02 Sh. Lalan Mishra and PW03 Mohd. Mobin Gauri had turned hostile and had not supported the prosecution case. The only material witness viz. PW 05 complainant Ms. Chandani Sharma has deposed that on 26.10.2012 at about 12:00 AM, she and her friend Sh. Vikrant Singh (deceased) were going to take food from PVR, Saket on a Pulsar motorcycle and when they reached near Max Hospital, she saw that FIR No. 317/12, PS Saket State Vs. Nebu Mathew 17 of 23 the driver of a black colour Pulsar motorcycle came at a very high speed from wrong side and hit their bike. This version of the complainant is contrary to the prosecution case, as per which, the complainant and the deceased were riding the motorcycle on the Press Enclave Road towards village Hauz Rani side. Moreover, during her cross examination, she had stated that she does not know whether the accused had taken u turn or not. She had no idea as to whether after the accident, the public had shifted the accidental vehicles towards the road side or not. This material contradiction exposes falsity of the prosecution case and establishes that the accused has been falsely implicated in the present case.
34. Admittedly, one Johny George was riding as a pillion rider on the motorcycle driven by the accused who had sustained injuries on his person. MLC of Johny George bearing no. 2862/12 was filed alongwith the chargesheet. However, IO failed to join him during investigation and cite him as a prosecution witness. Non examination of material witness calls for drawing adverse inference against the prosecution case. Johny George has been examined as DW02 and he has categorically deposed that the accident had taken place when the accused was trying to take a uturn from Max Hospital side towards Hauz Rani side. As per the case of prosecution, the accused was driving the offending motorcycle on a wrong side on Press Enclave Road towards Hauz Rani village side, at point A depicted in the site plan, Ex. PW 8/B. The case of the prosecution is falsified from the testimony of this material eyewitness, as per whom, the accident had taken place near the divider situated on Press Enclave Road.
35. A perusal of MLC of the deceased, Ex. A10 shows that the deceased FIR No. 317/12, PS Saket State Vs. Nebu Mathew 18 of 23 Vikrant was driving the motorcycle without helmet and he was under the influence of alcohol. This establishes that it was rather the deceased who had caused the accident and it was he who was on the wrong side of the law.
36. PW08 IO ASI Kuldeep Singh has feigned ignorance about the deceased being drunk at the time of accident and the said fact having being recorded in his MLC. He also feigned ignorance about the deceased not wearing any helmet at the time of the accident. He admitted that he did not record the statement of the pillion rider of the motorcycle driven by the accused. The explanation given by him, that the said pillion rider could not be traced, is not tenable as his complete address is mentioned in the MLC and he could have easily gathered his address during investigation. All this establish that the accused has been falsely implicated in the present case and he deserves to be acquitted of the charges leveled against him.
37. Per contra, it has been emphatically contended by ld. APP for the State that the accused has not disputed that collision, between the motorcycle driven by him and the motorcycle driven by the deceased, had taken place. The complainant PW05 Ms. Chandani Sharma has categorically deposed that the accused was driving the offending motorcycle at a very high speed on wrong side of the road. Driving a motorcycle on wrong side of the road by itself establishes that the accused is guilty of driving the offending motorcycle rashly or negligently so as to endanger human life and personal safety of others. The complainant has withstood the test of crossexamination and she has reiterated that the offending motorcycle was driven on the wrong side of the road due to which head on collision had taken place.
FIR No. 317/12, PS Saket State Vs. Nebu Mathew 19 of 23
38. The fact that a head on collision had taken place between the offending motorcycle driven by the accused and the motorcycle driven by the deceased is established from mechanical inspection reports of both the vehicles which are Ex. A5 and Ex. A6. All the police witnesses have deposed that both the motorcycles were lying at point A1 shown in the site plan, Ex. PW 8/B. Therefore, the prosecution has been successful in bringing home guilt of the accused and he deserves to be convicted for commission of offences punishable U/s 279/337/338/304A IPC.
39. The court is of the considered view that admittedly, two eye witnesses viz. PW02 Sh. Lalan Mishra and PW03 Mohd. Mobin Gauri had turned hostile and had not supported the prosecution case. The only remaining eyewitness viz. PW05 complainant Ms. Chandani Sharma has deposed that on 26.10.2012 at about 12:00 AM, she and her friend Sh. Vikrant Singh (deceased) were going to take food from PVR, Saket on a Pulsar motorcycle and when they reached near Max Hospital, she saw that the driver of a black colour Pulsar motorcycle came at a very high speed from wrong side and hit their bike. This version of the complainant is contrary to the prosecution case, as per which, the complainant and the deceased were riding the motorcycle on the Press Enclave Road towards village Hauz Rani side. During her crossexamination, she had stated that she does not know as to whether the accused had taken uturn or not. She had no idea as to whether after the accident, the public had shifted the accidental vehicles towards the road side or not.
40. Admittedly, DW02 Johny George was riding as a pillion rider on the motorcycle driven by the accused who had sustained injuries on his person. MLC of Johny George bearing no. 2862/12 was filed alongwith the chargesheet. However, FIR No. 317/12, PS Saket State Vs. Nebu Mathew 20 of 23 admittedly, IO failed to join him during investigation and cite him as a prosecution witness. Johny George has categorically deposed that the accident had taken place when the accused was trying to take a uturn from Max Hospital side towards Hauz Rani side. As per the case of prosecution, the accused was driving the offending motorcycle on a wrong side on Press Enclave Road towards Hauz Rani village side, at point A depicted in the site plan, Ex. PW 8/B. The case of the prosecution is contradicted from the testimony of this material eyewitness, as per whom, the accident had taken place near the divider situated on Press Enclave Road. It is no longer res integra that the accused is supposed to establish his defence by preponderance of probability and the accused has been successful in contradicting the case of the prosecution to that extent.
41. A perusal of MLC of the deceased, Ex. A10 shows that the deceased Vikrant was driving the motorcycle without helmet and he was under the influence of alcohol. This indicates that the deceased was also on the wrong side of the law.
42. PW08 IO ASI Kuldeep Singh has expressed ignorance about the deceased being drunk at the time of accident and the said fact having being recorded in his MLC. He also expressed ignorance about the deceased not wearing any helmet at the time of the accident. He admitted that he did not record the statement of the pillion rider of the motorcycle driven by the accused. The explanation given by him, that the said pillion rider could not be traced, is unsatisfactory as his complete address is mentioned in the MLC and he could have easily gathered his address during investigation.
43. Meaning of expression negligent act and rashness came up for FIR No. 317/12, PS Saket State Vs. Nebu Mathew 21 of 23 discussion in the case titled as Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605 and the Hon'ble Apex Court held : (1) A negligent act is an act done without doing something which a rea sonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reason able man would not do in the circumstances attending it A rash act is a negligent act done precipitately.
(2) Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law.
(3) Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
44. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R.(Criminal)
662).
45. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and FIR No. 317/12, PS Saket State Vs. Nebu Mathew 22 of 23 there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190, it was again held that in criminal cases burden is always is on prosecution and never shifts.
46. In view of the above discussion, the court holds that prosecution has failed to discharge the onus of establishing guilt of the accused. Accordingly, accused is acquitted of the charges leveled against him. He is directed to furnish bail bonds in terms of Section 437A Cr.P.C. forthwith. Original documents, if any, be returned to its rightful owner after cancellation of endorsement, if any.
File be consigned to Record Room.
Announced in the open (Sandeep Garg)
Court on 28.11.2016 ACMM (South),
New Delhi.
FIR No. 317/12, PS Saket State Vs. Nebu Mathew 23 of 23