Delhi District Court
State vs . Naresh Kumar on 2 April, 2012
FIR No. 372/98
PS Narela
dt. 02.04.12
Page no.1
IN THE COURT OF SHRI DEEPAK WASON
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 372/98
U/s. 279/337/304 A IPC
PS: Narela
State vs. Naresh Kumar
Date of Institution of case:-18.08.99
Date of Judgment reserved:- 02.04.12
Date on which Judgment pronounced:- 02.04.12
JUDGMENT
Unique ID no. :02401R0187052001 Date of commission of offence :03.09.98 Name of complainant :ASI Dhir Singh
Name and address of accused :Naresh Kumar S/o. Sh. Dharmvir R/o.Village Mamurpur, PS Rai District Sonepat, Haryana.
Offence complained of :279/337/304 A IPC Plea of accused :Pleaded not guilty Date of order :02.04.2012 Final order :Acquitted BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
That on 02/03.09.98, DD no. 27 A was received at PS Narela regarding an accident with regard to one motorcycle and one tractor trolley and on the basis of the said information, the present FIR bearing no. 372/98 was registered at Police station Narela. During the investigation, notice U/s. 133 Motor Vehicle Contd..../-FIR No. 372/98
PS Narela dt. 02.04.12 Page no.2 Act was given to the owner of the tractor trolley and accordingly, accused Naresh Kumar was arrested in the present case and he has been sent to face trial for the offences under Section 279/337/304 A IPC.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and notice was given to him vide order dated 02.12.99, to which he has pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined nine witnesses, out of thirteen witnesses as mentioned in the list of witnesses.
4. PW 1 is Sh. Sunil Kumar. He is the injured in the present case.
5. PW 2 is Ct. Sriniwas Murthy. He has accompanied the investigation with HC Gyan Singh and ASI Dhir Singh and deposed regarding the proceedings conducted by the IO.
6. PW 3 is Lady Head constable Saroj Bala. She has proved the copy of FIR as Ex. PW3/A. Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.3
7. PW 4 is Sh. Rajinder Singh. He had identified the dead body of deceased Sunil, his nephew vide Ex. PW4/A.
8. PW 5 is Assistant Sub-Inspector Gian Singh. He is the first Investigating officer (IO) of the case. He has deposed that on 03.09.98, on receiving DD no.27 A, he alongwith Ct. Sri Niwas Murti reached at Ram Dev Marg, DDA Flats in front of Harijan Colony, Narela and found one motorcycle bearing no. HR-12B-2419 Yamaha in an accidental condition. He has further deposed that tractor trolley was also found there. He has further deposed that in the meantime, PCR commander 36 had taken the injured to the hospital. He has further deposed that he went to HRH and left the constable at the spot. He has further deposed that he collected the MLC no.12796/98 of injured, who was declared brought dead. He has further deposed that no eye witness met him in the hospital and he came back at the spot. He has further deposed that on the basis of MLC, he prepared rukka and got the FIR registered through Ct. Sri Niwas. He has further deposed that further investigation was marked to ASI Tej Singh & SI Dhir Singh. He was not cross examined by accused.
9. PW 6 is Sh. K.V. Singh, Medical Record Clerk from HR Hospital. He has proved the postmortem report of deceased Sunil S/o. Sh. Ram Narain as Ex. PW6/A. He has also proved the MLC no.12795 dt. 03.09.98 as Ex. PW6/B. He was not Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.4 cross examined by accused. It is matter of record that this witness was again examined as PW 7 and has proved the MLC no.12796/98 of injured unknown as Ex. PW7/A.
10. PW 8 is Retired Assistant Sub-Inspector Dheer Singh. He is the second Investigating officer in the present case and has deposed that on on 03.09.98, on receiving information of accident through telephone, he reached at Ramdev Marg, DDA Flats, in front of Harijan Basti and met HC Gian Chand. He has further deposed that he found one tractor trolley without registration number and one motorcycle bearing registration no.HR-12B-2418 in an accidental condition. He has further deposed that he received MLC of injured persons out of which injured Sunil was declared brought dead. He has further deposed that in the meantime, Ct. Sri Niwas came at the spot and handed over copy of FIR and original rukka to him upon which he conducted further investigation in the case. He has further deposed that he prepared site plan at the instance of HC Gian Chand and seized the motorcycle and tractor trolley. He has further deposed that one Ram Narayan came at the spot. He has further deposed that he deposited the case properties in the malkhana. He has further deposed that he alongwith Ct. Sri Niwas and Ram Narayan reached at Hindu Rao Hospital, recorded statement of injured Sunil Kumar S/o. Sh. Ram Niwas, shifted the dead body of deceased Sunil S/o. Sh. Ram Narayan to Hindu Raod Mortuary, got dead body identified through his Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.5 father and one Rajender Singh, recorded identification statements and handed dead body of deceased to his relatives. He has further deposed that on 04.09.98, he moved an application to SI Umed Singh and got conducted the mechanical examination of both the vehicles. He has further deposed that he also conducted the investigation regarding ownership of the tractor trolley and came to know that the same belongs to one Naresh Kumar. He has further deposed that he served notice U/s. 133 M.V. Act upon the registered owner, arrested the accused, conducted his personal search and released the trolley on superdari. He has further deposed that the case file was transferred to SI Parveen for further investigation. He was cross examined by accused.
11. PW 9 is Retired Sub-Inspector Umed Singh. He has proved the mechanical inspection report of tractor trolley and one motorcycle bearing no. HR-13B-2418 as Ex. PW 9/A & Ex. PW 9/B. He was not cross examined by accused.
12. PW 10 is Sub-Inspector Praveen Kumar. He is the third Investigation officer of the case and has deposed that on 28.10.98, case file of present case was marked to him for further investigation upon which he collected the file from concerned MHC(R). He has further deposed that he deposited the MLC of injured Sunil and received the nature of injuries. He has further deposed that he also received the postmortem Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.6 report of deceased Sunil S/o. Sh. Ram Narayan and after completion of investigation, he prepared challan and filed the same in the court through concerned SHO for judicial verdict. He was cross examined by the accused.
13. It is matter of record that no other witness was examined by the prosecution despite being given last and final opportunity to conclude prosecution evidence through DCP office as well as IO of the case vide order dated 08.12.11 and accordingly, prosecution evidence was closed vide order dated 25.02.12.
14. Subsequent to the recording of statement of witnesses, statement of accused was recorded and all the incriminating evidence coming on record was put to the accused in which he has submitted that he has been falsely implicated in the present case. He has further submitted that he does not want to lead defence evidence and final arguments were heard.
15. I have heard the arguments of Ld. APP for the state, Ld. Counsel for accused as well as perused the record.
16. In the present matter, the accused has been charged for the offences U/s. 279/337/304 A IPC. To prove a case U/s. 279/337/304 A IPC against the accused, the prosecution has to Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.7 prove the following facts:-
a). that the accused was driving the vehicle i.e tractor trolley in a rash and negligent manner.
b). that while driving the said vehicle in the aforesaid manner, he struck against motorcycle bearing no. HR-12B-2418 and caused simple injury on the person of Sunil S/o. Sh. Ram Niwas and also caused death of Sunil S/o. Sh. Ram Narayan (not amounting to culpable homicide).
17. In the present matter, the testimony of injured/complainant/eye witness is a material one.
18. Now, coming to the testimony of PW 1 Sunil Kumar, who is injured in the present case. He has deposed in his examination in chief that on 03.09.98, at about 4.30/4.40 a.m. in the morning, he alongwith his friend Sunil Khatri S/o. Sh. Ram Narayan were going to the house of his elder sister at Bakwarpur on his motorcycle bearing no. HR-12B-2418. He has further deposed that his friend was driving the said motorcycle while he was sitting as pillion rider. He has further deposed that when they reached at Singhu Border road near Harizan Basti, meanwhile, one tractor trolley came from the side of Singhu Border and struck against their motorcycle. He has further deposed that the tractor was being driven at a very high speed in zig-zag manner. He has deposed that the same was driven by accused Naresh Kumar present in the court. He has further Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.8 deposed that he and his friend Sunil sustained injury. He has further deposed that he was taken to Hindu Rao hospital while his friend Sunil Khatri died on the spot itself. He has further deposed that he had seen the driver of the offending tractor who was apprehended by the public at the spot. He has further deposed that he become unconscious when he was taken to hospital. He was not cross examined by accused.
It is matter of record that this witness was again summoned for his cross examination after allowing application U/s. 311 Cr.P.C. filed on behalf of the accused on 23.03.11. In his cross examination, he has deposed that he does not remember the number of the motorcycle, since matter pertains to the year 1998. He also cannot say whether the motorcycle was hit from front or back. He cannot say whether the tractor was running or it was stationed. He even cannot say as to whose fault, the accident was taken place. He admitted it correct that his friend Sunil Kumar (deceased) was not wearing the helmet. He even cannot say who was the driver of the tractor. He further deposed that at the time of accident, it was dark.
This witness was again re-examined by Ld. APP for the state and in his re-examination, he admitted it correct that their motorcycle was struck against the stationed tractor trolley. He also admitted it correct that the stationed tractor trolley was on the metal road on left side. He again said that he cannot say whether the same was stationed on kuccha portion or on road.
Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.9
19. The testimony of PW 1 requires scrutiny as according to prosecution story, he is the material witness. Perusal of testimony of injured/complainant i.e. PW 1 Sunil shows that this witness has deposed two different version before the court. In his examination in chief, this witness has deposed that on 03.09.98 he alongwith his friend Sunil were going on their motorcycle and when reached at Singhu Border, one tractor with trolley came from the side of Singhu Border and struck against their motorcycle. He has further deposed that tractor was being driven by accused Naresh Kumar at a very high speed and in zig-zag manner. He also identified the accused Naresh Kumar present in the court. However, in his cross examination, this witness has deposed a different story before the court. In his cross examination, he has deposed that he cannot say that whether the motorcycle was hit from front or back. He has further deposed that he cannot say that whether the tractor was running or stationed. He has further deposed that he cannot say that as to whose fault, accident took place. He was also re-examined by Ld. APP for the state and in his re- examination, this witness has deposed that their motorcycle was struck against the stationed tractor trolley. The testimony of PW 1 is creating a doubt itself as to whose fault the accident had occurred as earlier, in examination in chief, PW 1 has deposed that tractor trolley was coming from side of Singhu Border and in his cross examination by accused and re-
Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.10 examination by Ld. APP for the state, he has deposed that tractor trolley was stationed. Hence, he has given two different stories before the court. Therefore, keeping in view the facts and circumstances, the court is of the view that the testimony of PW 1 is such that it gives a doubt whether accused was driving the offending vehicle or the offending vehicle was stationed at the relevant time. Further, perusal of Ex. PW9/A i.e. mechanical inspection of tractor trolley shows that the trolley was unfit for motion. It creates further doubt in the prosecution's story. It is also well recognized law that even there is a slightest doubt with respect to involvement of the accused, benefit has to go to the accused. Further, the testimony of PW 1 does not inspire the confidence of the court and not found credible. The court is of the view that prosecution has failed to prove the rash and negligent driving of the accused beyond reasonable doubt. Therefore, there is no evidence before the court by which it can be said that the prosecution has been able to prove that accused was driving the vehicle on the day of the accident in rash and negligent manner and thereby causing the accident in question. When this fact has not been proved beyond reasonable doubt, then there is no need to consider the other two aspects. This fact has not been proved by the prosecution, beyond reasonable doubt.
20. All other witnesses examined by the prosecution are formal in nature and admittedly, they are not the eye-witness of Contd..../-
FIR No. 372/98PS Narela dt. 02.04.12 Page no.11 the accident in question and no amount of their evidence can lead to the conviction of the accused. Since, PW 1 Sunil Kumar has totally deposed different version in his cross examination, I am of the view that benefit of doubt has to be given to the accused.
21. Hence, after scanning the entire record, I have no hesitation to hold that the prosecution has failed to prove the case against the accused, beyond reasonable doubt and accordingly, benefit of doubt is given to the accused. The accused is acquitted for the offence under Section 279/337/304 A IPC.
22. His previous bail bond is extended in terms of Section 437 A Cr.P.C.
23. File be consigned to Record room after necessary compliance.
DEEPAK WASON METROPOLITAN MAGISTRATE ROHINI DELHI ANNOUNCED IN THE OPEN COURT TODAY i.e on 02nd April, 2012.
Contd..../-