Delhi District Court
State vs . Vivekanand on 20 July, 2018
IN THE COURT OF SH. DEEPAK KUMAR II, METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI.
FIR No. 382/16
PS. Dwarka North
under Section.279/337 IPC
State Vs. Vivekanand
CNR No. DLSW020025062017
JUDGMENT
A. SL. NO. OF THE CASE : 1046/17.
B. DATE OF INSTITUTION : 03/02/2017.
C. DATE OF OFFENCE : 21/06/2016.
D. NAME OF THE : Sh. Parkash Kumar
COMPLAINANT S/o Sh. Bal Kishan
E. NAME OF THE : Vivekanand
ACCUSED S/o Sh. Upender Prasad
Yadav
F. OFFENCE
COMPLAINED OF : under section279/337 IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquitted.
I. DATE OF SUCH ORDER : 20/07/2018.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as stated in the charge sheet are that on 21/06/2016 at about 2:00 PM, near red light sector13/14, Dwarka, New Delhi within the jurisdiction of police station Dwarka North, New Delhi the accused Vivekanand was found driving his offending vehicle/car bearing no. DL1RTA 4524 in a rash and negligent manner and while driving his vehicle in State Vs. Vivekanand, FIR No.267/13, P.S. Dwarka North, u/s 279/337 IPC No. 1046/17 Page No. 1/5 abovesaid manner, he hit the same against one pedestrian Sh. Prakash Kumar and caused simple injuries to due to him. On the basis of the statement given by the eye witness/complainant Parkash Kumar the present FIR No.382/16, under section279/337 IPC was registered at PS Dwarka North, New Delhi. On conclusion of investigation, the challan under the aforesaid sections against the accused was filed in the court.
2. Thereafter, the accused was summoned by the learned predecessor of this court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC, the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge under section 279/337 IPC was made out against the accused and accordingly, on 26/05/2017 the charge was framed against him by the Ld. Predecessor of this court. The accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In the instant case, the prosecution has not examined any witness as complainant/injured i.e. Prakash Kumar remained unserved despite service through DCP concerned. The report in pursuance of process issued to him was received back to the effect that he has left the address 78 months back. Therefore, the chances of complainant/ injured being traced were very bleak.
4. The complainant/injured Parkash Kumar was the only eye witness of the incident/accident. However, he remained untraceable, despite several sufficient opportunities being afforded to the prosecution. He was even summoned through DCP SouthWest, but it also yielded no fruitful State Vs. Vivekanand, FIR No.267/13, P.S. Dwarka North, u/s 279/337 IPC No. 1046/17 Page No. 2/5 results. The remaining witnesses were either police officials or formal witnesses, who were admittedly not the eyewitness to the accident/incident and thus, their testimonies was not likely to substantiate the culpability of the accused. Therefore, no fruitful purpose would have been served by examining the said remaining witnesses. Therefore, PE was closed. Since, there was nothing incriminating against the accused therefore, recording of statement of accused was also dispensed with. Consequently, DE was also closed and final arguments were heard.
5. I have heard Ld. APP for the state and Ld. counsel for the accused. I have carefully perused the case file.
6. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
7. In order to prove the guilt of the accused the prosecution is required to prove the following ingredients as mentioned under section 279/337 IPC:
(i) The accused was driving his offending vehicle on a public way;
(ii) He was driving the same in rash or negligent manner;
(iii) The said act/driving has endangered human life or personal safety of others; and
(iv) He caused simple injuries to a person due to the aforesaid rash or negligent act/driving.
8. In the present case, there was only one eyewitnesses/ injured State Vs. Vivekanand, FIR No.267/13, P.S. Dwarka North, u/s 279/337 IPC No. 1046/17 Page No. 3/5 to the accident who remained untraceable. He was the vital/material/crucial witness for proving the prosecution version. The non examination of the said witness has proved fatal to the prosecution case as in absence of his indispensable testimony, the prosecution case cannot be substantiated. Therefore, the prosecution version remained unproved.
9. Even if for the sake of arguments, it is assumed to have been established that the injured sustained injuries in an accident committed by the accused, in that case also it cannot be inferred that the accused was driving his vehicle in a rash or negligent manner, unless the said mens rea i.e. guilty intention is proved by the prosecution beyond any reasonable doubt. The accused cannot be convicted on presumptions or surmises, rather, all the ingredients including rash or negligent act as mentioned under section 279/337 IPC are required to be established. But in the instant case, the eye/witness/injured remained untraceable. Therefore, it cannot be held with certainty that the accident took place due to culpable rash and negligent act of the accused or also that the accused is solely responsible for the injuries received by the injured. The findings given by Hon'ble Apex Court in case titled as B.C. Ramachandra Vs. State of Karanataka, 2007 Cri. L.J 475. are relevant and reproduced as under:
"In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. The said ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur"
10. There is not even an iota of incriminating evidence against the accused to fix his liability under section 279/337 IPC. The prosecution has failed to prove its case by leading convincing and cogent evidence and thus State Vs. Vivekanand, FIR No.267/13, P.S. Dwarka North, u/s 279/337 IPC No. 1046/17 Page No. 4/5 have failed to discharge the onus placed upon it. Hence, the accused is entitled to benefit of doubt.
11. In the light of the above discussion, the accused Vivekanand is acquitted for the offences under section 279/337 IPC. Bail bonds are canceled and sureties be discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
Digitally signed by DEEPAK DEEPAK KUMAR
KUMAR Date: 2018.07.20
16:08:46 +0530
ANNOUNCED IN OPEN COURT (DEEPAK KUMARII)
Today i.e. 20/07/2018 MM06/DWK/NEW DELHI
State Vs. Vivekanand,
FIR No.267/13,
P.S. Dwarka North,
u/s 279/337 IPC
No. 1046/17 Page No. 5/5