Delhi District Court
State vs . Umesh Gupta on 5 March, 2012
IN THE COURT OF SH. DEVENDER NAIN
METROPOLITAN MAGISTRATE: NORTH06, DELHI
FIR No. 174/1998
Case ID: R0099312000
State Vs. Umesh Gupta
PS Maurice Nagar
U/s 279/337/338 IPC & 3/181 M.V. Act
Date of Institution of case : 11.01.2000
Date of Judgment : 05.03.2012
JUDGMENT:
a) Date of offence : 10.10.1998 b) Offence complained of : 279/337/338 IPC & 3/181 M.V. Act c) Name of accused, his : Umesh Gupta, parentage & residence S/o Kishan Lal Gupta, FIR No. 174/98 1 of 17 PS Maurice Nagar R/o 45/6B, Rikesh Apartment, Mall Road, Delhi d) Plea of accused : Plead not guilty e) Final order : Acquitted
BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:
1. That on 10.10.98 at about 7.15 pm at P.G. Hostel, Delhi University within the jurisdiction of PS Maurice Nagar accused drove his vehicle Maruti Esteem bearing No. DL3C6801 in a manner so rash and negligent so as to endanger human life and personal safety of the others and thereby committed an offence punishable u/s 279 IPC.
Secondly on the abovesaid, date, time and place and by driving abovesaid vehicle in abovesaid manner accused hit a two wheeler scooter No. DL65A8790 and caused simple injuries to one Sh.
FIR No. 174/98 2 of 17 PS Maurice Nagar
Vikash and grievous injuries to Sh. Mukesh Kumar and thereby committed an offence punishable u/s 337/338 IPC.
Thirdly, on the abovesaid date, time and place accused was driving the abovesaid vehicle without any license and thereby committed an offence punishable u/s 3/181 M.V. Act.
2. Court took cognizance of the abovesaid offences and the notice against accused was framed on 29.07.2000 and a prima facie case was made out against the accused and notice was accordingly framed against accused for offence punishable u/s 279/337/338 IPC and 3/181 M.V. Act to which accused pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined five witnesses.
4. PW1 is ASI Dharambir who deposed that on 10.10.98 he was posted at PS Maurice Nagar as Duty Officer and received the rukka sent through Const. Shankar Singh and on the basis of the same registered present FIR.
FIR No. 174/98 3 of 17 PS Maurice Nagar
5. PW2 is Sh. Mukesh Kumar who deposed that on 10.10.98 he alongwith Vikas Chawla was going to his house from Mall Road on the two wheeler scooter of Vikas Chawla being driven by him and PW2 was the pillion rider. PW2 further deposed that number of two wheeler scooter he have since forgotten. When at about 7.15 pm they reached near P.G. Mens Hostel suddenly one esteem car of mehandi colour No. DL3CK6801 came from the opposite direction at a very fast speed and suddenly came over to their side of the road and struck against their scooter and the car was being driven by one girl aged about 19/20 years and as a result of the accident they both fell down and sustained injuries and PW2 further deposed that his lower left jaw got broken with various injuries on his other part of the body and the right leg of the Vikas Chawla got amputated as a result of the accident and the said girl however drove away the car at fast speed from the spot and one Santosh Kumar of public was standing near by and he removed them to hospital Hindu Rao. PW2 further deposed that he can identify the said girl who was driving the said esteem car at the time of the accident as he had seen her at the time of accident. PW2 further deposed that he does not know FIR No. 174/98 4 of 17 PS Maurice Nagar accused Umesh Gupta present in the court on the date of evidence and PW2 further deposed that present accused was not driving the offending car at the time of accident. Court question was also asked to the PW2 that during the course of investigation you were ever shown the present accused Umesh Gupta or the said car No. DL3CK6801 to which he answered as no.
6. PW3 is ASI Dharamvir who deposed that on 10.10.98 he was posted at PS Maurice Nagar as Duty Officer and received the rukka sent through Const. Shankar Singh and on the basis of the same registered present FIR.
7. PW4 is Sh. K.V. Singh who deposed that he have been working since 1989 in HRH and he have seen MLC No. 14990 of injured Vikas dt. 10.10.98 which is in handwriting of doctor Rajesh Kumar Modi which bears his signatures at point A and B and said doctor has left the service in hospital and his present whereabouts are not known and he identified his sign as he have seen him writing and signing during his FIR No. 174/98 5 of 17 PS Maurice Nagar official duties.
At the time of cross examination, PW4 deposed that he have no personal knowledge of this case and MLC not prepared in his presence.
8. PW5 is Sh. Ishwar Singh who deposed that he have seen the MLC No. 5719/98 of Mr. Mukesh Kumar S/o Shankar Lal and MLC made on 10.10.98 at about 8.50 pm by doctor Sanjeev Gupta who have left the hospital and whereabout are not known and he identified his signature of doctor Sanjeev Gupta and he have also identified the handwriting and signatures during his official duties and MLC No. 5719/98 is Ex.PW5/A of signatures of doctor Sanjeev Gupta at point A. At the time of cross examination PW5 deposed that he have no personal knowledge in this and MLC not prepared in his presence.
9. On 05.03.12, statement of accused was recorded and all the incriminating evidence was put to the accused u/s 281 CrPC in which he denied all the allegations made against him in which Accused choose not FIR No. 174/98 6 of 17 PS Maurice Nagar to lead defence evidence.
10. At the time of final arguments it is submitted by Ld. APP for the State that his case is proved beyond reasonable doubts and all the contents of the section are completed and proved beyond reasonable doubt under which the present charge is framed. In reply to this, counsel for accused argued that witnesses produced on behalf of prosecution are not reliable at all as most of the witnesses are formal one. Moreover, through deposition prosecution miserably fails to prove its case and there are certain material contradictions in the prosecution version and on these points prayed that accused be acquitted.
11. I have given thoughtful consideration to the rival contentions made on behalf of both the sides, perused the judicial file very carefully. There are certain contradictions in the prosecution version. PW2 at the time of his examination in chief deposed that he does not know accused Umesh Gupta present in the court on that day. In the challan it has been stated on behalf of prosecution that one girl aged FIR No. 174/98 7 of 17 PS Maurice Nagar about 1920 years was driving the offending vehicle. However, in another version it has been mentioned that offending vehicle was driven by a male aged about 50 years. Prosecution miserably fails to give any explanation on this point. There are certain discrepancies in the prosecution version which has not been clarified on behalf of prosecution throughout the proceedings. Due to the abovementioned contradictions in the evidence lead on behalf of prosecution and in the absence of any independent public witness joins or produced on behalf of prosecution also creates great doubt over the version of prosecution. This failure on the part of prosecution creates reasonable doubts in the prosecution story. In this regard reliance may be placed on the following case laws: In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to FIR No. 174/98 8 of 17 PS Maurice Nagar join independent witnesses. in the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In a case law reported as Roop Chand Vs. The State of Haryana 1999 (1) CLR 69, the Hon'ble Punjab & Haryana High Court held as under:
"3. I have heard the learned counsel for the FIR No. 174/98 9 of 17 PS Maurice Nagar parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner".
4. It is well settled principle of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution FIR No. 174/98 10 of 17 PS Maurice Nagar case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the FIR No. 174/98 11 of 17 PS Maurice Nagar Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
In case law reported as Sadhu Singh Vs. State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:
"5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbably or lacks credibility, the benefit of doubt necessarily has to go to the accused".
FIR No. 174/98 12 of 17 PS Maurice Nagar
6. In the present case, the State examined two witnesses namely, Harbans Singh ASI who appeared as PW1 and Kartar Singh PW2.
Both the witnesses supported the prosecution version in terms of the recovery of opium from the person of the petitioner, but there was no public witness who had joined. It is not necessary in such recoveries that public witnesses must be joined, but attempt must be made to join the public witnesses. there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join a public witness or that they were not available. A stereotype statement of non availability will not be sufficient particularly when at the relevant time, it was not difficult to procure the service FIR No. 174/98 13 of 17 PS Maurice Nagar of public witness. This reflects adversely on the prosecution version."
In case law Nanak Chand Vs. State of Delhi reported as DHC 1992 CRI LJ 55 it is submitted as under: "that the recovery is proved by three police officials who have differed on who snatched the Kirpan from the petitioner and at what time. The recovery was from a street with houses on both sides and shops nearby. And, yet no witness from the public has been produced. Not that in every case the police officials are to be treated as unworthy of reliance but their failure to join witnesses from the public especially when they are available at their elbow, may, as in the present case, cast doubt. They have again churned out a stereotyped version. Its rejection needs no FIR No. 174/98 14 of 17 PS Maurice Nagar Napoleon on the Bridge at Arcola".
12. The manner in which the search of the Accused was conducted on the spot is also not satisfactory as the police persons had not offered their own search to the Accused before taking the search of Accused. At this juncture, it would be appropriate to refer to the judgment of Hon'ble Orissa High Court reported as Rabindernath Prusty Vs. State of Orissa, wherein it was held as under:
"10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/ from the accused. One of the formalities that has to be observed in searching a person in that the searching officer and other assisting him should give their personal search to the accused before searching the person of the accused. (See ARI 1969 SC 53:(1969 Cri L.J.
279), State of Bihar Vs. Kapil Singh). This rule is meant to avoid the possibility of implanting FIR No. 174/98 15 of 17 PS Maurice Nagar the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of PWs 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated".
Being guided by abovesaid case law, it can be said that search of the Accused by above said police officials was in complete violation of the above said case law and the same can be said to be illegal.
FIR No. 174/98 16 of 17 PS Maurice Nagar
13. In view of the aforesaid discussion, I am of the considered opinion that prosecution miserably fails to prove its case beyond reasonable doubt as such the duty of proving the same lies on the prosecution. Accordingly, Accused is acquitted. Bail Bond stands cancelled and Surety be discharged. Original documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. File be consigned to the Record Room after due compliance.
Announced in the Open Court (DEVENDER NAIN)
th
on 05 day of March, 2012 MM(NORTH06):DELHI
FIR No. 174/98 17 of 17
PS Maurice Nagar