Delhi District Court
State vs . on 14 July, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 426066/2016
Unique Case ID No. -: DLSW020020202014
FIR No. -: 244/2012
Police Station -: BHD NAGAR
Section(s) -: 279/304A/174A IPC
In the matter of -
STATE
VS.
AMIT @ MITOO
S/o Sh. Krishan
R/o H. No. 232, Panna-Dheerjan Village,
Matan, PS Sadar,
Bahadurgarh, Haryana.
.... Accused
1. Name of Complainant : Bhikhari Dass
2. Name of Accused : Amit @ Mitoo
Offence complained of or
3. : 279/304A/174A IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 24.11.2012
offence
6. Date of Filing of case : 22.08.2014
7. Date of Reserving Order : 28.06.2022
8. Date of Pronouncement : 14.07.2022
9. Final Order : Acquitted
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Lenin Manocha, Ld. LAC for the accused.
Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 1 of 20INDEX -
(The headings are hyper-linked)
HEADING PAGES
1. Factual Matrix 2-3
2. Investigation and appearance of accused 3
3. Prosecution Evidence 3-7
4. Statement of accused and defence evidence 7-8
5. Arguments 8-9
6. Ingredients of the offence 9-11
7. Appreciation of evidence 11-17
8. Section 174A IPC 17-20
9. Conclusion 20
BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX -
1. Briefly stated, the case of the prosecution on 24.11.2012, the complainant Bhikari Dass and his younger brother Shambhu Dass, who were rickshaw pullers, were ferrying their passengers near Anaj Mandi, Najafgarh. It was around 02:10 pm, when a Bolero car bearing no. HR 13F 7301 (hereinafter, "offending vehicle") came at a high-speed, while being driven rashly and negligently. It over took the rickshaw of the complainant and in the next moment, rammed into the rickshaw of his brother and deceased Shambhu Dass, who was ahead of him. The culprit then fled from the spot. On account of the accident, Shambhu Dass sustained injuries and after treatment of some days, he succumbed to the injuries and expired. It is the case of the prosecution that the accused Amit @ Mitoo was driving the offending vehicle at the time of the incident. As such, it is alleged that the accused has committed offences punishable under Section 279/304A of Indian Penal Code, Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 2 of 20 1860 (hereinafter, "IPC"), for which FIR No. 244/2012 was registered at the Police Station Baba Haridas Nagar, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED -
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of charge-sheet was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). After summoning and before framing of charge, the accused absconded and proceedings under Section 82 CrPC were initiated against him. Despite proclamation, the accused failed to appear and was declared an absconder vide order dated 25.05.2016. On finding a prima facie case against the accused, charge under Sections 279/304A IPC and 174A IPC was framed against accused. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt -:
ORAL EVIDENCE PW-1 : Tejveer (photographer) PW-2 : Puran Chand (mechanical inspector) PW-3 : Bhikhari Dass (eye witness) PW-4 : Ct. Vikrant (accompanied IO) PW-5 : HC Satish Kumar (formal) PW-6 : Dr. Anil Yadav (doctor) Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 3 of 20 PW-7 : ASI Sadan Kumar (duty officer) PW-8 : SI Azad Singh (IO) PW-9 : ASI Radha Kishan (IO) PW-10 : ASI Suresh Kumar (IO) PW-11 : W/HC Bhagwati (dd entry writer) PW-12 : Balloo (owner of offending vehicle) PW-13 : Ct. Rajender (arrested accused) PW-14 : Ct. Sunil (process server) PW-15 : ASI Krishan Kumar(arrested accused) DOCUMENTARY EVIDENCE Ex. PW1/A : Photographs of incident and vehicle Ex. PW2/A : Mechanical inspection report Photographs and negatives of Ex. PW3/A :
offending vehicle Ex. PW3/C : Statement of Bhikhari Dass Ex. PW3/D : Site plan Ex. PW3/E : Cycle rickshaw seizure memo Ex. PW3/F : Arrest memo Ex. PW3/G : Personal search Ex. PW3/H : Dead body identification memo Ex. PW3/I : Dead body handing over memo Ex. P1 : Cycle rickshaw Ex. PW5/A : Seizure memo of Bolero car Ex. PW6/A : MLC No. 5193/2012 Ex. PW7/A : FIR (OSR) Ex. PW7/B : DD no. 31 dated 01.12.2021 Ex. PW7/C and Ex. : Rukka PW10/C Ex. PW8/A : DAR dated 30.04.2013 Ex. PW8/B : Panchnama Application for conducting Ex. PW9/A :
postmortem of deceased Ex.PW9/B : Inquest report Ex.PW10/A : DD no. 17A dated 24.11.2012 Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 4 of 20 Ex. PW10/B : DD no. 18A Ex. PW10/D : Notice under Section 133 MV Act.
Ex. PW10/E
Application for taking statement of the
and Ex. :
victim.
PW10/F
Ex. PW10/G : Statement of Ballu
Ex. PW10/H : Bail bond
Ex. PW10/I : Notice under Section 91 CrPC
Ex. PW10/J : Seizure memo RC
Ex. PW10/K
and Ex. : Seizure memo of Insurance
PW12A
Ex.PW12/B : Superdarinama
Ex. PW13/A : Arrest memo
Ex. PW13/B : Personal search
Ex. PW15/A : Kalandra
Ex. CW1/A : Report of process server.
ADMITTED DOCUMENTS (Under S. 294 CrPC)
Ex. A1 : DD no. 49B
Ex. X1 : Postmortem report
Ex. X2 : Dead body identification
Ex. X3 : Notice under Section 133 MV Act.
5. Bhikhari Dass (PW3) is the star witness of the prosecution, being the complainant and eye witness. He took the stand to depose that he alongwith his brother Shambhu Dass used to work as rickshaw pullers in Najafgarh area. On 24.12.2020, at about 02.10 PM, he and his brother were going on two different rickshaws. His brother was driving the rickshaw in front of him.
Suddenly, one Bolero car bearing no. HR 13F 7301 came in a rash and negligent manner at a very high speed and crossed him and went in front of him. The next moment he saw that the said Bolero car has hit his brother Shambhu Dass who was on rickshaw. He Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 5 of 20 correctly identified the offending vehicle. He deposed that the driver of the Bolero car had "Amit" written on his right hand, which he could see from the side glance when the offending vehicle passed from his side. He noted down the registration number of the offending vehicle. He further stated that PCR took his brother to hospital for treatment, where he expired during treatment. He then failed to identify the accused. Thereafter, on 28.11.2020 at 02.00 PM, he went to the police station to inquire about his case and he saw the accused and he identified him as driver of the offending vehicle.
5.1. In cross-examination Bhikhari Dass (PW3) denied the suggestion he saw the accused Amit @ Mitoo at the time of accident as driver of the offending vehicle. He also denied the suggestion that he has been won over by the accused or that he has taken money for not identifying him in the court. He deposed that two passengers each were sitting on his and his brother's rickshaw. He further stated that the public persons noted down the registration number of the vehicle.
6. ASI Suresh Kumar (PW10) is the first IO in this case. He stated on oath that on 24.11.2012, he was posted at PS BHD Nagar on emergency duty. On receipt of information, he went to the spot where he saw that one rickshaw in accidental condition and blood was splattered on the road. Injured had been shifted to RTRM Hospital by the PCR. One eyewitness namely Bhikhari Das met him there and his statement was also recorded. He then deposed about the investigation done and stated that he issued notice to the registered owner, who informed him that the accused was driving the offending vehicle on the date of incident. The accused was Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 6 of 20 arrested and the eye witness identified the accused in the police station. He correctly identified the offending vehicle and the rickshaw.
6.1. In cross-examination, ASI Suresh Kumar (PW10) stated that he did not collect the blood sample from the road as it was mixed with sand etc. He arranged to take photograph of the spot. He further stated that he did not place on record certificate under Section 65B of the Indian Evidence Act qua the photographs. He further stated that he reached at the spot alongwith Ct. Vikrant on his own motorcycle and did not make any departure entry as he had received the call. He admitted that the spot was a busy place.
7. Ct. Sunil (PW14) is the process server who had executed the proclamation issued against the accused. He stated on oath that he executed process under Section 82 CrPC against accused Amit @ Mittoo on 14.12.2015.
7.1. In cross-examination, Ct. Sunil (PW14) admitted that the house of the accused is in a residential area. He further stated that he did not take the photographs of the place and address after pasting the copy of process on the main gate of premises. He did not note the names of the persons from whom he enquired about the accused in the village. He denied the suggestion that he never visited the house of the accused and he prepared the report while sitting in the police station.
8. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE -
9. Thereafter, before the start of defence evidence, in Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 7 of 20 order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. He stated that he has been falsely implicated in the present case and he was not present at the spot. Pursuant thereto, he stated that he does not wish to lead any defence evidence.
ARGUMENTS -
10. I have heard the learned APP for the State and learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
11. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the eye-witness to the incident has categorically deposed about the rash and negligent manner in which the accused was driving the offending vehicle. The factum of incident is proved. Further, the other evidence on record has corroborated the version of the eye-witness the offences are proved beyond any doubt. As such, it is prayed that the accused be punished for the said offences.
12. Per contra, learned counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Learned counsel has argued that the eye-witness is not reliable as he has not identified the accused. It is argued that the incident occurred in a residential area, yet the police did not join any independent witness. He has contended that the eye-witness cited by the prosecution is related to the deceased and is an interested witness, whose testimony cannot be relied upon. It is argued that the Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 8 of 20 prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offences.
INGREDIENTS OF THE OFFENCE -
13. The accused has been charged for the offences of rash driving on public way (S. 279 IPC) and causing death by a rash or negligent act (S. 304A IPC) in the present case. Whereas under
Section 279 IPC, the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, under Section 304A IPC, death of the victim should be caused in pursuance of such rash or negligent act of the accused. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending in a rash or negligent manner, and due to such driving of the accused, the victim suffered injuries which led to his death. The act should not amount to culpable homicide.
14. Thus, the gravamen of the offences under Section 279/304A IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 9 of 20 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. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. 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.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
Thus, rashness implies doing an act despite the consciousness that it Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 10 of 20 might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. Further, the offence under Section 174A IPC pertains to non-appearance in pursuance of a proclamation issued under Section 82 of the CrPC. Failure to appear constitutes the offence.
15. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
APPRECIATION OF EVIDENCE -
16. The star witness of the prosecution is the brother of the deceased and the eye witness PW3. He has narrated about the incident as seen by him. His narration is to the effect that when he and his brother were going on their respective rickshaws on the road, the offending vehicle came from behind and rammed into the rickshaw of his brother. The factum of the accident is not in dispute. The victim passed away on account of injuries sustained during the accident is also not in dispute.
17. Regarding the accident, the onus is on the prosecution to prove three facts. The first is that the accident took place by the offending vehicle. The second is that the offending vehicle was being driven by the accused. The third is that offending vehicle was being driven by the accused in a rash or negligent manner. From the evidence, it is seen that the offending vehicle was not recovered Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 11 of 20 from the spot, as it is the case of the prosecution that the driver fled from the spot. The witness has deposed about the registration number of the offending vehicle and has also identified the photographs of the same. The witness in his examination-in-chief has stated that he had noted down the registration number of the vehicle. However, in his cross examination, he has changed his version to say that it was noted by the public persons. Thereafter, he stated that he did not know who noted down the registration number of the offending vehicle.
18. On appreciation of evidence of the star witness, it is clear that the prosecution has failed to prove the crucial facts. It is not proved that the accused was driving the offending vehicle on the date of accident. At the outset, it is noted that the accused is not owner of the offending vehicle. The IO PW10 issued notices (Ex. PW10/D and Ex. PW10/G) to the registered owner of the offending vehicle. In this case, the registered owner of the offending vehicle, as per the RC seized vide seizure memo Ex. PW10/K, is "Shri Aryavart Guashala Manndauthi". The present accused was then produced by the owner before the IO. In this regard, the prosecution has produced one Balloo, PW12, who claims to be the President of the said Gaushala. He deposed that on the date of accident, the accused was driving the offending vehicle. However, the said witness has not produced any record to substantiate his claim that he is the President of the owner-gaushala or that he has been authorised by the registered owner of the vehicle to depose in Court. In his cross examination, he has admitted that the accused is not his employee and that he is not an eye witness. He was also unable to produce any documentary evidence to show that the accused was Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 12 of 20 assigned duty on the date of incident by the gaushala and he admitted that he does not maintain any register in this regard. Therefore, the testimony of this witness is of no help to the prosecution.
19. In absence of any other material to show that the accused was the driver of the offending vehicle on the date of incident, only the testimony of PW3 remains in this regard. PW3 deposed in Court that the driver of the offending vehicle had "Amit" written on his right hand, which he could see from a momentary side glace when the vehicle crossed his rickshaw. To my mind, this assertion is doubtful on the face of it. The witness has deposed that the offending vehicle was being driven in a rash and negligent manner and in a "very high speed". It is difficult to fathom as to how the witness was able to read the name written on the hand of the driver of a high-speed car, from a distance, in a fraction of second. Even otherwise, the testimony on this point was ultimately found to be incorrect as the Court has observed during the deposition of PW3 that on the right hand of the present accused, it is written, "Meetu Pradhan" and not "Amit".
20. Further, during his examination-in-chief, the accused was specifically shown to the witness PW3 and asked if he identifies the accused as the driver of the offending vehicle. However, the witness replied in negative. Later, he said he identified the accused in the police station. Thereafter, he denied the suggestion that he had seen the accused as the driver of the vehicle. Since the witness had taken different stands with respect to the identity of the driver, a court question was put to him seeking clarification on the point. To the question, he stated that he had not Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 13 of 20 seen any person in the police station and he had not gone to the police station after the date of incident. He further stated that he had not stated that anything of that sort earlier in his deposition. Therefore, it is clear that the prosecution has totally failed to prove that the accused was infact the driver of the offending vehicle, at the time of offence. The eye witness has categorically declined to identify the accused as the said driver. The IO PW10 has deposed in his statement that PW3 had come to the police station to enquire about the progress of the case on 28.11.2012, when the accused, who was present in the police station, was identified by him. However, in view of the statement of PW3 that he never went to the police station except on the date of incident, the claim of the IO appears to be doubtful.
21. With regard to the third crucial fact of the manner of driving of the vehicle, the witness has not deposed as to what is meant by "very high speed". There is no approximation of the speed of the offending vehicle. What may be high speed for a rickshaw may not be high speed for a motorised vehicle. Even otherwise, mere fact that the vehicle was being driven at high speed does not imply rashness or negligence. It has been held by the Hon'ble Apex Court in Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 284 that the speed cannot be a determinative factor for coming to a conclusion that the person was driving rashly or negligently. Further, it was observed in State of Karnataka vs. Satish (1998) 8 SCC 493, as under -
"4. Merely because the truck was being driven at a "high speed"
does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 14 of 20 speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and 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. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"."
Further, the Hon'ble High Court of Delhi in Abdul Subhan vs. State (N.C.T. of Delhi) 133 (2006) DLT 562 held that mere allegation of high speed does not tantamount to rashness or negligence. There is no elaboration on the surrounding circumstances. Was the road busy? Were there other pedestrians, vehicles on road at the time of incident? Pertinently, the mechanical inspection report Ex. PW2/A of the offending vehicle depicts slight damages on the front bumper and right-side spot. The mechanical inspection was conducted four days after the incident and the offending vehicle was not in the custody of the police in the interim period. No visible damage can be seen in the photographs Ex. PW1/A. It is difficult to believe that a vehicle suffered very minimal damages despite being involved in a high speed collision. Further, the IO has also agreed that he did not seize any blood stains from the spot. No tyre skid marks have been collected or produced. Therefore, the deposition of the star witness in unreliable on all three crucial facts required to be proved by the prosecution.
22. It is also seen that the testimony of PW3 is not corroborated with the documentary evidence on record. In accident cases, the site plan assumes significance in understanding the Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 15 of 20 surrounding circumstances, inter-se position of the parties on the road etc. The site plan Ex. PW3/A in this case only depicts point A as the point at which the accidental vehicle of the victim was found, post the accident. The site plan was admittedly prepared at the instance of the eye witness. However, it does not depict the position of the eye witness and his rickshaw. It also does not show as to where the accident took place. Therefore, the site plan is not reliable.
23. Apart from PW3, no other witness of the accident has been cited by the prosecution. Although in normal circumstances, this would not have been material, given the fact that one witness has been brought to the stand. However, since the said witness, who is the relative of the deceased, is not reliable, any other independent witness would have invigorated the case of the prosecution. It is not the case that there were no independent witnesses at the spot. PW3 in his cross examination has stated that there were two passengers each on his as well as the deceased's rickshaw. Interestingly, the witness PW3 has also stated in his cross examination that a PCR Van was stationed next to the spot and it is the spot where PCR is ordinarily stationed. Despite the same, no official from the PCR van has been made a witness. The IO PW10 has also admitted that the spot was a busy area.
24. As such, it is crystal clear that there was ample availability of public persons at the spot, at the time of accident. The incident took place in broad daylight. However, despite availability, non-joining of public persons as witnesses casts a doubt on the prosecution version.
25. From the other material on record, including the Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 16 of 20 testimony of other official witness, the commission of the offences and its essential ingredients cannot be proved. The doubtful testimony of the sole eye witness has not proved the offences beyond reasonable doubt.
SECTION 174A IPC -
26. Apart from the main offences, the accused has been charged with the offence under Section 174A IPC. The offence under Section 174A IPC pertains to non-appearance in pursuance of a proclamation issued under Section 82 of the CrPC. Failure to appear constitutes the offence. Under Section 82 of the CrPC, whenever the Court comes to a conclusion that a person is absconded or concealed himself, despite issuance of warrants, a written proclamation is issued to require him to appear before the Court. In order to ensure that publication of the proclamation, certain requirements, stipulated in the provision, are to be met. The proclamation is to be publicly read in some conspicuous place of the town, village, it has to be affixed at the house or homestead of the person and a copy of the same is to be affixed in the Court house. A clear period of 30 days from the date of publication is to be given to the accused to appear before the court.
27. In order to prove the offence under the said provision, the prosecution has examined three witnesses. The first and the crucial witness is PW14 Ct. Sunil. He has entered the witness to depose that he was deputed to serve the process under Section 82 CrPC and on 14.12.2015, he went to the given address and found the house locked. A copy was affixed on the main gate of the address and one copy on the notice board of the court. He stated that Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 17 of 20 he also conducted munadi.
28. Learned counsel for the accused has argued that mandatory requirements of the provision have not been complied with and the testimony of the witnesses in this regard does not inspire confidence. Per contra, learned APP submits that the offence is cogently proved as against the accused.
29. In this regard, it is evident from the ordersheets that the accused had earlier appeared in the case and thereafter, on account of his non-appearance without any justifiable cause, NBWs were issued against him vide order dated 15.07.2015. Thereafter, process under Section 82 CrPC was issued vide order dated 04.11.2015 and it was made returnable for 22.01.2016. After recording the statement of the process server (PW14) on 25.05.2016, the accused was declared an absconding person.
30. Perusal of record reveals that during investigation of the case, the address of the accused is mentioned as resident of Panna Dheerjan, Village Matan, PS Sadar, Bahadurgarh, Haryana. The process issued under section 82 CrPC was also executed at the said address and the witness PW14 has only stated that he had gone to execute the process under section 82 CrPC on at the given address i.e. Panna Dheerjan, Village Matan, PS Sadar, Bahadurgarh, Haryana, which was found locked. He had pasted a copy of the process on the main gate of the address and one copy on the noticeboard. The witness has stated that he had conducted munadi. However, the testimony of the witness is bereft of material details. The witness has not stated as to how he had identified the house of the accused, as no house number was mentioned on the process. Although in villages of rural Haryana, specific house numbers may Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 18 of 20 or may not have been allotted, however, the witness has not even stated as to how he was able to identify the house of the accused there is no deposition to the effect that help of any villager was sought to identify the house of the accused. There is no testimony to the effect that public persons were gathered and the witness has only made a bald statement that he had conducted munadi. During the cross-examination, the witnesses admitted that he did not take photographs of the place and address after pasting the process on the main gate. He also has admitted to the fact that he did not note down the name of the persons from whom he enquired about the village about the accused.
31. After the accused was arrested on 21.02.2017, a kalandra was prepared under section 41 of the CrPC, which is exhibited as Ex. PW 15/A. In the said kalandra, the address of the accused has been mentioned in full. As per the same, the address of the accused is House No. 232, VPO Matan, Panna Dheerjan, Tehsil Bahadurgarh, District Jhajjar, Haryana. As such, it is evident that there were house numbers allotted at the said address and despite the same, the process server has not deposed about any details regarding the execution of the process.
32. In this circumstance, the execution of process by the witness cannot be said to be proved beyond reasonable doubt and it would be unsafe to convict the accused for the said offence, in absence of any cogent evidence. It cannot be said by certainty that the process, if at all executed, was done at the house of the accused. Therefore, the provision of Section 82(3) CrPC, is also not attracted. The testimony of the other witness, PW15, is of no help to the prosecution, as he had only filed the supplementary report. Thus, the Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 19 of 20 accused is entitled to benefit of doubt.
CONCLUSION -
33. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences under Section 279/304A/174A of the IPC beyond reasonable doubt. The basis of the offences charged in the present case is rash or negligent driving of the accused. The prosecution has failed to prove that the accused was driving the offending vehicle on the date of incident, beyond reasonable doubt. The testimony of the star witness cannot is doubtful and the does not prove the essential ingredients of the offence. No other public witness has been brought to the stand, despite abundant availability. For the offence under Section 174A IPC, it is not proved beyond reasonable doubt that the process was ever executed at the address of the accused. The other material on record does not inspire confidence and a conviction cannot be based on the said material.
34. Resultantly, the prosecution has failed to prove the offences beyond reasonable doubt and the accused is entitled to the benefit of doubt. As such, the accused AMIT @ MITOO is hereby found not guilty. He is ACQUITTED of the offences under Section 279/304A/174A of the Indian Penal Code, 1860.
Pronounced in open court on 14.07.2022 in presence of accused person. This judgment contains 20 pages and each page has been signed by the undersigned.
(DEV CHAUDHARY) Metropolitan Magistrate - 07 South-West District, Dwarka Courts, New Delhi, 14.07.2022 Cr. Case No. 426066/2016 State vs. Amit @ Mitoo Page 20 of 20