Delhi District Court
State vs . Bhagat Singh on 18 October, 2018
THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR NO. DL CT020001972005
CIS No. 290832/16
State Vs. Bhagat Singh
FIR No. 633/04
PS. Kotwali
U/s. 279/304A IPC
JUDGMENT
1) The date of commission of offence : 02.11.2004
2) The name of the complainant : Aneesh
3) The name & parentage of accused : Bhagat Singh
S/o. Harlal
R/o. 45/2, Fatehpur Beri, New
Delhi
4) Offence complained of : 279/304A IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 18.10.2018
Date of Institution : 27.05.2005
Judgment reserved on : 30.08.2018
Judgment announced on: 18.10.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused is that on 02.11.2004 at about
1:45 PM at ring road near monkey bridge towards Rajghat within the jurisdiction
of PS Kotwali he was found driving a bus no. DL 1 PB 3950 (hereinafter as
'offending bus' for short) in rash or negligent manner and while so driving over
took another DTC Bus and hit against a scooter no. DL 9SK 6168 (hereinafter as
'scooter' for short) which resulted into the death of scooterist Pardeep.
2) After completion of investigation, charge sheet was filed against the
accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused.
Arguments on point of notice were heard. Vide order dated 22.08.2006, a notice
u/s. 279/304A IPC was served upon the accused Bhagat Singh, to which he
pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined 13 witnesses. Statement
of accused was recorded under section 313 Cr.P.C r/w Section 281 Cr.PC in
which he denied all the allegations and wish to lead DE. He examined one
Rakesh Kumar in defence evidence as DW1.
4) I have heard the arguments of Ld. APP for State and Ld Counsel for
accused. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as
follows:
Eye Witnesses
5.1) PW1 Sh Aneesh deposed that on 02.11.2004, he saw the accused while
driving offending bus overtook another DTC Bus and hit against the scooter of
deceased Pardeep Kala for which he got expired. He deposed that the offending
bus was being driven in rash manner. He correctly identified the accused.
5.2) PW5 Kanwar Pal deposed that on 02.11.2004, he was on duty as driver
on DTC Bus no. DL 1PB 0924 and on that day when he was coming from ISBT
and was going towards ring road the offending bus which was being driven
rashly or negligently overtook his bus and hit against a scooter which was going
ahead of his bus. He was not able to identify the accused in the court.
Doctor
5.3) PW11 Dr Kulbhushan Goel proved the postmortem report no. 1770 dated
03.11.2004of deceased Pardeep Kala as Ex.PW11/A. Witnesses to the investigation.
5.4) PW8 ASI Rajender Singh and PW10 ASI Radha Krishan deposed on the same lines to the effect that after receiving DD no. 22 PP Yamuna Pushta they went to the spot of the incident i.e Ring road near monkey bridge where they found the scooter in accidental condition and injured was already taken to Trauma Center by CAT Ambulance. They collected the MLC of injured and one eye witness Aneesh was found in the hospital whose statement was recorded which is Ex.PW1/A. Thereafter they along with Aneesh came back at the spot and got the site photographed. Helmet was seized vide Ex.PW1/B. Rukka was prepared and FIR got registered. Site plan was prepared. The case property was deposited in the malkahana. Information was received regarding the death of injured and section 304A IPC was appended the case file was handed over to ASI Anup. Accused was correctly identified.
5.5) PW9 ASI Anoop Singh deposed that on 02.11.2004 the further investigation of the present case was marked to him and he served a notice U/s 133 MV Act to the owner of offending bus namely Kishan and directed the owner to produce the accused and the driver of offending bus at PP Yamuna Pusta. The notice was proved as Ex.PW9/A. On 03.11.2004 the postmortem of the dead body was got conducted and the dead body was handed over to the relatives of the deceased. On 05.11.2004, the offending bus was produced which was seized vide Ex.PW9/D. On 06.11.2004 the accused Bhagat Singh was produced in the police station and there he was arrested vide Ex.PW6/A. The documents of the offending vehicle were also seized. The offending bus and scooter of the victim were got mechanically inspected vide Ex.PW4/A and Ex.PW4/B respectively. Application was moved in the court to get the judicial TIP of the accused conducted but accused refused to join the TIP. Statement of witnesses U/s 161 Cr.PC were recorded and the chargesheet was filed in the court.
Formal Witnesses.
5.6) PW1 ASI Randhir Singh proved DD no. 32 A Dated 18.07.2012 as Ex.PW1/A. The present FIR was proved as Ex.PW1/B and endorsement on rukka as Ex.PW1/C. 5.7) PW1/A (mentioned as PW1) Sh Ashok Kumar Kala and PW2 V.K Sood deposed that they identified the dead body of Pardeep Kala in the mortuary. 5.8) PW3 Atal Sharma deposed that he took photographs of the spot at the instruction of HC Rajender on 02.11.2004 which were proved as Ex.PW3/A to Ex.PW3/D. 5.9) PW4 T.U Siddiqui deposed that on 05.11.2004 he mechanically inspected the offending bus and scooter vide Ex.PW4/A or Ex.PW4/B respectively. 5.10) PW6 Narender Singh not supported the case of prosecution and deposed that he does not remember as to whether the accused was driver of offending bus or not.
5.11) PW7 ASI Shaji Moan deposed that on 02.11.2004 he recorded the information as to the accident near monkey bridge towards Raj Ghat vide a DD entry but the record of concerned DD entry was destroyed vide orders of DCP Ex.PW7/2.
5.12) PW12 Sh Yudhister Rathi deposed that on 02.11.2004 he shifted the injured Pardeep Kala to Trauma Center with the help of police officials.
6) The defence witness Sh Rakesh Kumar deposed that accused Bhagat Singh was working in CR Transport Company in the year 2004 and he used to get the challans of the vehicles of the company disposed off.
7) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
8) The important witness of the present case is PW1 Aneesh who was allegedly present at the spot at the time of incident. The deceased Pardeep Kala was his colleague. His testimony is required to be appreciated minutely. PW1 deposed that he was the regional manager in the company Arristo Pharmaceutical Ltd while deceased Pardeep Kala was his senior being the sales executive. He deposed that they were on field duty at the time of the incident. He deposed that on 02.11.2004 he along with deceased Pardeep Kala were going towards LNJP Hospital from Yamuna Vihar. They were on different vehicles. Deceased Pardeep Kala was driving a scooter bearing registration no.6168 while PW1 was driving motorcycle no. DL 7SW 4644. He deposed that when they reached near Hanuman temple outer ring road he saw one blue line overtook one DTC bus and collided against the scooter being driven by deceased Pardeep Kala. He deposed Pardeep Kala fell down from the scooter. He deposed that nobody from the public came forward to help and after 15 minutes CAT Ambulance shifted Pardeep Kala to the Shushrata Trauma Center. He deposed that Pardeep Kala succumbed to injuries and he informed the relatives of deceased Pardeep Kala. He deposed that his statement Ex.PW1/A was recorded by the police. He correctly identified the accused in the court. PW1 further deposed that he along with Pardeep were going on the left side of the road and despite that blue line bus collided against the scooter of Pardeep Kala. He deposed that the site plan Mark X was not prepared in his presence. He further deposed that the seizure memo Ex.PW1/B bears his signatures but the scooter was not seized in his presence.
9) PW1 was crossexamined at length by Ld Defence Counsel. In the cross examination PW1 deposed that the ambulance came after half an hour of the incident and he had not asked any public person to take the injured to the hospital as he was under shock. He deposed that he does not remember the registration of DTC bus which was overtaken by the blue line bus. He deposed that accident took place at a curve on the road. He deposed that he had seen the driver of offending bus first time at the spot when the offending bus was stopped and the driver of the bus came out of the bus and fled away. He deposed that the bus was stopped about 100200 meters from the spot. Again said he cannot tell the exact distance. He deposed in the further crossexamination that the driver of offending bus stopped the offending bus at some distance from the spot and he came at the spot after deboarding the bus and fled away from the spot after looking at the scene. He deposed that he did not try to apprehend the driver of the offending bus at the spot. He deposed that he was not aware about the name of the accused at the time of accident and the accused took away the offending vehicle from the spot. He deposed that he had gone to the Trauma Center on his motorcycle along with the ambulance. He deposed that he met some police officials of PS Kotwali(Chandni Chowk) on the same day of the incident.
10) Ld Defence Counsel vehemently argued that PW1 is a planted witness by the IO at the instance of family members of the deceased as he was not present at the time of alleged incident at the spot. Per contra, Ld APP for the State argued that PW1 is the natural witness of the present case.
11) To appreciate the rival contentions of both the parties, the facts which came in the testimony of PW1 are required to be considered carefully to arrive at a conclusion as to whether the PW1 is a planted witness or he is a natural witness of the incident. The first disputed fact which came repeatedly in the testimony of PW1 is regarding the site plan Ex.PW8/A. PW1 specifically deposed in the examinationinchief recorded on 05.07.2010 that the site plan Ex.PW8/A was not prepared at his instance. The first IO ASI Rajender Singh/PW8 deposed in the examinationinchief that the site plan was prepared at the instance of eye witness Aneesh(PW1). Thus there is an apparent contradiction in the testimony of eye witness and the investigating officer. The site plan Ex.PW8/A does not bear the signature of PW1. If the site plan Ex.PW8/A was prepared at the instance of eye witness than as a rule of precaution IO must have taken the signature of PW1 on the site plan when the other documents prepared during the investigation bears the signatures of PW1. The site plan Ex.PW8/A is a crucial document of the present case. The place of the incident is a material question in the facts of present case and is consequential to comment upon the rashness or negligence on the part of accused. The State did not crossexamine PW1 on the aspect of site plan. It was nowhere put to PW1 by Ld APP for the State that the site plan was prepared at his instance. PW1 again reiterated in the cross examination that the site plan was not prepared at his instance and there was no confrontation to PW1 on this aspect by the State. This impliedly amounts to the admission on the part of the State that the site plan was not prepared at the instance of PW1. The genuineness of the site plan came under cloud of doubt.
12) PW1 deposed in the crossexamination that the accident took place at a curve on a road. During the crossexamination the site plan was put to PW1 and even then PW1 did not change his stand on this aspect. Thus as per eye witness the place of incident is a curve on a road. Contrary to that there is no curve shown in the site plan Ex.PW8/A. The straight road without any curve or cut has been shown in the site plan. This contradiction is unexplained on the part of State. IO nowhere deposed as to the place of incident having any curve. PW5 Sh Kanwar Pal, the driver of DTC bus, whose bus was allegedly overtook by the accused nowhere mentioned about any curve at the place of incident. Thus there is glaring contradiction as to the exact place of incident in testimony of PW1 who was allegedly present at the spot on his separate vehicle and the testimony of PW5 who was the driver of DTC bus and was present at the spot. This contradiction leads to a gaping whole in the case of prosecution as the exact place of incident and leads to doubt as to the presence of PW1 at the spot, this is so because the incident took place at the ring road near monkey bridge and that road does not had any curve as per the case of prosecution. Had PW1 present at the spot than there could not have been this contradiction as to the exact place of incident.
13) The another fact which further leads to doubt as to the presence of PW1 at the place of incident is that when the injured was taken to casualty area of Sushruta Trauma Center he was admitted as 'unknown'. This fact came on record vide MLC dated 02.11.2004 prepared by Dr Jitender Kumar and forms the part of chargesheet. PW1 deposed in the crossexamination that he went along with the ambulance to Sushurta Trauma Center. If that be so than why the name of injured was not revealed by PW1 at the time of the admission of the injured in the casualty. This impliedly makes out that PW1 was not present at the time of admission of injured in casualty. Thus PW1 did not go to the casualty of the hospital with the injured and he deposed falsely on this aspect.
14) Another crucial fact which came in the crossexamination of PW1 is that he had not asked any person on the road to take the injured to the hospital. Contrary to that he deposed in examinationinchief that he asked for help from public persons but none agreed. He deposed in crossexamination that ambulance came at the spot after about half an hour. It is true that it took time to a person to regain his senses after seeing a shocking incident but that time cannot be half an hour. In every possibility there must have been attempt by PW1 to ask public persons to help the injured.
15) Further, PW1 told the registration numbers of the offending bus, DTC bus, his motorcycle and of the scooter of the victim when his statement was recorded by the IO allegedly in the hospital on the day of incident. This is not disputed on the part of the State that the driver of offending bus fled away with the bus from the spot. If PW1 was under such a shock that he even could not ask the public persons to take the injured to the hospital than how PW1 remembered the correct complete registration numbers of four vehicles on the same day of the incident. This reveals that PW1 was in such senses that he could note down the registration number of the offending bus and the DTC bus but he could not ask any public person to help the injured. This does not instill the faith of this court. Either the statement of PW1 is antetimed or PW1 was not present at the spot. Thus the doubt as to the presence of PW1 at the spot converts into almost certainty that PW1 was not present at the spot.
16) In the crossexamination PW1 deposed that the accused fled away from the spot and he did not try to apprehend him. He was not able to tell the direction in which the accused fled away from the spot. If the PW1 was so much in senses that he note down the registration number of offending bus immediately after the accident along with the registration number of DTC bus which was also not found at the spot when the IO reached at the spot, than it is not possible that PW1 was not in such senses that he could not apprehend the accused. The conduct of PW1 speaks loudly about his absence at the spot of incident.
17) PW1 deposed in the examinationinchief that the accused stopped the offending bus at the short distance and on seeing the crowed he fled away with the offending bus. In the initial crossexamination he deposed that he had seen the driver of the offending bus first time when the bus was stopped and driver came out of the bus and ran away. This reveals that the driver of offending bus ran away while leaving the offending bus at the spot which is not the case of prosecution. In the further crossexamination PW1 tried to improve by stating that the driver of offending bus stopped the bus at some distance(which was mentioned by him around 100200 meters) from the place of incident, came back at the spot after deboarding the bus and after looking at the scene he ran with the bus. Thus PW1 made three statements as to the time when he saw accused at the time of incident ➢ Accused stopped the bus at the short distance and fled away along with the offending bus(examinationinchief).
➢ Accused stopped the bus, came out of the bus and ran away(initial cross examination, page2) ➢ Accused stopped the bus around 100200 meters from the spot, came back at the spot and looking at the scene, fled away from the spot along with the bus(crossexamination page3).
These three contrary deposition of PW1 as to the his chance of seeing the accused at the point of incident at the spot leads to doubt in the identification of accused by PW1 as the driver of offending bus. These inconsistent statement made by PW1 makes PW1 as the untrustworthy witness so far as the identification of accused is concerned.
18) It is true that the accused refused judicial TIP by stating that witness known him but this in itself is not sufficient to establish the identity of accused being the driver of offending bus as the presence of PW1 at the spot itself is doubtful rather not proved. The refusal of TIP may leads to the inference against the accused and could have been used to corroborate the testimony of other eye witnesses but this is not so in the present case. The accused was allegedly arrested on 06.11.2004 while the application for TIP was moved on 09.11.2004. It was mentioned in the notice U/s 133 MV Act that the driver of offending vehicle was to be produced on 04.11.2004. The offending bus was allegedly produced on 05.11.2004 and was seized on the same day. The documents of the bus were seized on 06.11.2004. The first poser arise as to why no proceedings was taken on 04.11.2004. Why the accused was not produced on 05.11.2004 and most crucial why the application for TIP was moved with the delay of three days. There was ample opportunity with the witness to see the accused. One cannot expect that the accused was kept in muffled face for three days. The TIP application must have been moved at the first instance without delay by the IO. This delay on the part of the IO makes the explanation given by the accused as to the refusal of TIP as a reliable one. Accordingly, this court is unable to draw any adverse any inference against the accused for his refusal too join judicial TIP.
19) In these circumstances it is highly doubtful that the registration number of offending bus was mentioned in the present case by PW1. This doubt further gains strength rather makes it certain, when the second IO/PW9 ASI Anoop Singh deposed in the crossexamination conducted on 24.04.2018 that the offending vehicle was mentioned in the present case on the basis of PCR call but the PCR caller refused to become witness in the present case. There is no PCR call record proved in the present case. Accordingly it could be deduced that since PCR Caller refused to become the witness the IO planted PW1 as a eye witness in the present case. PW1 is a unreliable witness.
20) PW1 further deposed in the examinationinchief that the seizure memo of the scooter Ex.PW1/B bears his signature but the same was not seized in his presence. On this aspect also there is no crossexamination on behalf of the State. It is mentioned clearly in the Ex.PW1/B that the scooter was seized in the presence of PW1 but the same has been refused by PW1. This fact makes the documents prepared during the investigating as unreliable documents.
21) The driver of DTC bus, PW5 Sh Kanwar Pal, supported the case of prosecution on all aspects but as to the identification of accused being the driver of offending bus. PW1 nowhere deposed the accused as the driver of offending bus. He deposed that the driver of offending bus ran away from the spot along with the bus and he was not able to see the face of driver of offending bus. On this aspect also the testimony of PW5 is contrary to PW1 as to PW5 nowhere deposed that offending bus was stopped and accused came back at the spot and thereafter fled away. This contradiction between two witnesses of the incident is also a crucial one and makes the presence of one of them doubtful. Thus the identity of accused being the driver of offending vehicle not proved by virtue of testimony of PW5 also.
22) PW6 Narender Singh not supported the case of prosecution and deposed that he does not remember whether the accused present in the court was the driver of offending bus or not. He denied each and every suggestion of Ld APP. Though in the reply of the notice U/s 133 MV Act he stated that the accused Bhagat Singh was the driver of offending bus but the same is not sufficient for the identification of accused as the witness not supported that document when he was examined on oath. That statement of witness has the status of previous statement of a person recorded during the investigation and can be used to corroborate or contradict a witness but the same is not a substantive piece of evidence which could be sufficient for proving a particular fact.
23) To sum up, PW1 Aneesh is a unreliable witness, the identity of the accused not came on record in the testimony of PW5 Kanwar Pal and PW6 Narender Singh also. The identity of the accused being the offender not proved on record. Accused is entitle to benefit of doubt. It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
24) Thus in view of above discussion, the prosecution is not able to discharge its burden of proof. Accordingly accused Bhagat Singh S/o Harlal is hereby acquitted from the present case. File be consigned to Record Room subject to furnishing of bail bonds as per section 437 A Cr.PC.
Digitally signed KAPIL by KAPIL KUMAR
KUMAR Date: 2018.10.18
16:36:26 +0530
Announced in open court (Kapil Kumar)
on 18.10.2018 MM5/Central District
Tis Hazari Courts/Delhi,