Delhi District Court
State vs Hari Om on 19 July, 2024
IN THE COURT OF MS. SAMIKSHA GUPTA
Addl. Chief Judicial Magistrate, First Class
South West District; Dwarka Courts: New Delhi
Date of Institution : 25.09.2018
Date of reserving judgment : 10.07.2024
Date of Judgment : 19.07.2024
In the matter of :
State Vs. HARI OM
FIR No.74 /2018
PS : Sector-23 Dwarka
U/s: 279/304-A/201 IPC
1. Registration. No. of Case : 28230/2018
2. CNR No. of Case : DLSW02-036294-2018
3. Name of complainant : Kamal Singh
S/o Sh. Dev Singh
R/o village Dada Mandi
PS Kalagarh, Distt. Paudi
Garhwal, Uttrakhand.
Also at: RZB-7, Gali No.23,
Sadh Nagar, Palam Colony, New
Delhi.
4. Name of accused : Hari Om
S/o Sh. Ishwar Singh
R/o House No.41, Village
Bamnoli, New Delhi.
State Vs. Hari Om
FIR 74/2018, PS Sector-23 Dwarka Page No.1 of 22
5. Offence charged under : 279/304-A/201 IPC
Sections
6. Plea of accused : Not guilty
7. Final Order : Acquitted
State represented by : Sh. Rohit Grewal, APP for State.
Accused represented by : Sh. Ajay Sharma, Advocate.
JUDGMENT
1. It is the case of prosecution that on 11.03.2018 at about 03:50 pm at Dwarka Bamnoli road, near Dhoolsiras, accused was found driving Scorpio car bearing registration No. HR-01AN-2002 in rash and negligent manner. While driving so, he hit against one motorcycle bearing registration No. DL-9SBD-3751 which caused death of Ashok Kumar and Dharmender. Further, during 11.03.2018 to 18.03.2018, accused caused disappearance of evidence by getting the bumper of aforesaid car repaired and painted in order to save himself from legal punishment. Thus, prosecution has set up a case under Section 279/304-A/201 IPC against accused Hari Om.
2. On the basis of investigation carried out by police, charge sheet was filed in Court and copy was supplied to accused.
3. On the basis of charge sheet, notice for committing offences punishable under Section 279/304-A/201 IPC was served upon accused to which he pleaded not guilty and claimed trial.
State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.2 of 22
4. In order to prove its case, the prosecution has examined ten witnesses, who are as under:
Sr. No Name Nature of Evidence 1. PW-1/Kamal Singh Eye witness 2. PW-2/Vishwajeet Singh Eye witness 3. PW-3/Ct. Ram Kishan Along with IO. 4. PW-4/Om Parkash Witness to identification of dead body 5. PW-5/Sunil Kumar Witness to identification of dead body 6. PW-6/Ishwar Singh Owner of offending vehicle 7. PW-7/ASI Ravinder Kumar Duty officer 8. PW-8/Chander Prakash Mechanical Expert 9. PW-9/Ct. Anil Photographer from crime team 10. PW-10/SI P.R.Hudda IO
5. Prosecution has relied upon the following documents:
S. No. Exhibits Documents
1. Ex.PW-1/A Statement of complainant.
2. Ex.PW-3/A Seizure of motorcycle No. DL-9SBD-3751
3. Ex.PW-3/B Seizure of broken pieces of glass of vehicles and
other parts of motorcycle
4. Ex.PW-3/C Arrest memo.
5. Ex.PW-3/D & Seizure of offending Scorpio car No. HR-01AN-
Ex.PW-3/E 2002 with documents and DL of accused.
6. Ex.PW-3/F Disclosure statement of accused.
7. Ex.P-1(colly) Photographs of Scorpio car and motorcycle State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.3 of 22
8. Ex.PW-4/A Handing over memo of dead body.
9. Ex.PW-6/A Reply of notice u/s 133 MV Act.
10. Ex.PW-7/A Computerised copy of FIR
11. Ex.PW-7/B Certificate under Section 65-B of Indian Evidence Act
12. Ex.PW-8/A Mechanical inspection reports of motorcycle Splendor 13 Ex.PW-8/B Mechanical inspection reports of offending vehicle Scorpio
14. Ex.9/1 19 photographs of spot (collectively)
15. Ex.9/2 11 photographs of motorcycle (collectively)
16. Ex.PW-10/1 DD No. 6-A
17. Ex.PW-10/2 DD No. 8A
18. Ex.PW-10/3 Ruqqa
19. Ex.PW-10/4 Site plan
20. Ex.A-1 MLC of Ashok Kumar
21. Ex.A-2 MLC of Dharmender
22. Ex.A-3 Identification of dead body.
23. Ex.A-4 Identification of dead body.
24. Ex.A5 & A6 Postmortem reports
25. Ex.A-7 Dead body handing over memo
26. Ex.PW-10/5 Inquest paper and request for postmortem
27. Ex.PW-10/6 Postmortem of deceased
28. Ex.PW-10/7 Notice u/s 133 MV Act
29. Ex.A-7 Articles seized from the spot.
(colly)
6. Thereafter, PE was closed and statement of accused was recorded State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.4 of 22 wherein he stated that he was not driving the offending vehicle on the date of incident. He did not lead any evidence in defence.
7. Arguments heard. Record perused.
8. To bring home the charge under Section 279 IPC, the prosecution is required to prove beyond reasonable doubt, the following components:-
(i) the accused was driving or riding the vehicle on public way;
(ii) the said vehicle was being driven rashly or negligently;
(iii) such rashness or negligence was sufficient to endanger human life or likely to cause hurt or injury to some person.
Similarly, to prove the charge under Section 304-A IPC, the prosecution is required to prove, beyond reasonable doubt, the following components:-
(i) death of any person;
(ii) such death was caused due to the rash or negligent act
of accused which did not amount to culpable homicide.
Similarly, to prove the charge under Section 201 IPC, the prosecution is required to prove, beyond reasonable doubt, the following components:-
(i) Accused must have knowledge/reason to believe that an offence has been committed;
State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.5 of 22
(ii) Accused must cause disappearance of evidence of the above said offence; and
(iii) It must be done with the intention of screening or sparing the offender from legal punishment, or,
(iv) Accused must give false information about the above said offence, with intention of screening the offender from legal punishment.
9. The evidence of prosecution witnesses in the present case has to be examined against this legal position.
(i) PW-1 Kamal Singh has deposed that on 11.03.2018 at about 03:40 a.m., he was going to his home on his bike along with Vishwajeet. Dharmender and Ashok were going on another bike on his right side. One white Scorpio car bearing registration No. HR-01AN-2002 came at high speed in a zig-zag manner which he saw in his rear view mirror. He took his bike to the side and saw that Scorpio hit the bike of Dharmender and Ashok from behind. Both of them fell down on road and were covered in blood. This witness called the ambulance and the PCR. Its number plate had fallen down at the spot. Ambulance and PCR arrived after ten minutes. Dharmender and Ashok were taken to Rockland Hospital but this witness was not informed by the doctors that they had expired. He gave his complaint to the police. Both the bodies were taken to DDU Hospital for postmortem. He correctly identified the car from its photographs. He correctly identified the accused present in Court.
During cross-examination, he stated that he was working in State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.6 of 22 Flipkart at Bamnoli since 2014. However, he did not have ID card of the same at the time of deposition. On the day of incident, their shift had started at 10 p.m. and entered at 3-3:30 a.m. He was driving his bike at 40 kmph at the time of incident. Deceased Ashok was riding the other bike and deceased Dharmender was pillion rider. He could not see the number of Scorpio car at the first instance. However, he saw the number of the car when it went ahead of his bike when he could see it in the light of the headlight. He admitted that Scorpio car had gone ahead of his bike and was between his bike and bike of Ashok and Dharmender. There were not many vehicles on the side where they were driving their bikes but trucks were coming from opposite directions. He denied the suggestion that deceased Dharmender and Ashok were driving the bike in a zig-zag manner and they hit the footpath due to which they fell down.
This witness was further cross examined on 28.02.2024 upon application under Section 311 Cr.PC. During such cross examination he stated that police had recorded his statement 2-3 days after the incident. He stated to police that he could see Scorpio car in the rear view mirror of his motorcycle. He had also stated that he took his bike to the side on seeing the Scorpio. He had also stated that Scorpio car had come in high speed in zig-zag manner from behind. He had also stated that number plate of Scorpio car had fallen down at spot and car was of white colour. However, said statements were not found in his statement Ex.PW-1/A, when he was confronted with the same. No hand written complaint was given to the police. He could not see the registration number of the offending vehicle as the same had left the spot at high speed. He stated that police had shown State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.7 of 22 him one number plate of vehicle at police station and had told him that the said number plate was of the offending vehicle prior to which he was not aware of the registration number of the vehicle. He did not see driver of offending vehicle on the day of incident. He saw the accused for the first time in Court when he was present for evidence. One police person had showed the accused to him on which basis this witness had identified the accused in Court. The road where accident had occurred was damaged and had various potholes. He admitted that he did not see any vehicle hitting the bike of deceased persons. He could not state whether bike of deceased had fallen down due to accident with some vehicles or due to potholes on the road. At the time of accident, he saw only Scorpio car passing near the bike of deceased. He denied the suggestion that his statement Ex.PW-1/A was written by police at their own instance. He had signed all the statements which he had given to the police.
He was cross examined by Ld. APP for State since he had resiled from his previous statement. He stated that he is well versed in Hindi and can read and write the same. He admitted that his statement Ex.PW-1/A was signed by him after going through the same. He could not recall whether he had stated on 28.01.2019 that one Scorpio car bearing No. HR01AN-2002 being driven at high speed hit the bike of Dharmender and Ashok. He admitted that his statement Ex.PW-1/A to the police was given on the basis of true facts as had happened on the date of accident. He denied the suggestion that he identified accused as the driver of Scorpio car on 31.03.2018. He admitted that his evidence on 28.01.2019 was given on oath. He denied the suggestion that he has been won over by the accused.
State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.8 of 22
(ii) PW-2 Vishwajeet Singh has deposed that on 11.03.2018 at about 03:40 a.m., he was going to his home on his bike along with Kamal Singh. Dharmender and Ashok were going on another bike on his right side. One white Scorpio car bearing registration No. HR-01AN-2002 came at high speed in a zig zag manner. He escaped getting hit by the car but Scorpio hit the bike of Dharmender and Ashok from behind. The car did not stop and driver drove away speedily. Both of them fell down on road and were covered in blood. They called the police. Ambulance and PCR arrived after ten minutes. Dharmender and Ashok were taken to Rockland Hospital but this witness was not informed by the doctors that they had expired. He gave his complaint to the police. Both the bodies were taken to DDU Hospital for postmortem.
During cross-examination, he stated that he was working in Flipkart at Bamnoli since 2015. On the day of incident, they had left early at about 3 a.m. Kamal was driving the bike and this witness was riding pillion. Deceased Ashok was riding the other bike and deceased Dharmender was pillion rider. He saw accused Hariom driving the car when they reached near the car on their bike. After the accident, Scorpio car had stopped for 1-2 minutes. He admitted that Scorpio car had gone ahead of his bike and was between his bike and bike of Ashok and Dharmender. There were not many vehicles on the side where they were driving their bikes but trucks were coming from opposite directions. He denied the suggestion that deceased Dharmender and Ashok were driving the bike in a zig-zag manner and they hit the footpath due to which they State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.9 of 22 fell down.
This witness was further cross examined on 28.02.2024 upon application under Section 311 Cr.PC. During such cross examination he stated that police had recorded his statement 2-3 days after the incident. He had stated to the police that Dharmender and Ashok were going on their bike to his right side. However, said statement was not found in his statement Mark X-2, when he was confronted with the same. He stated that he was driving the bike. He could not recall whether Kamal was present with him when they took the injured to the hospital. He could not see the driver of the offending vehicle at the time of accident. Police did not obtain his signatures on any document except his statement. He saw the accused in Court for the first time. One police person had showed the accused to him. He could not see the registration number of offending vehicle on the day of incident. He denied the suggestion that accused has been falsely implicated. He further denied that accused was not driving the offending vehicle on the date of accident.
(iii) PW-3 Ct. Ram Kishan has deposed that on receiving DD No.8A on 11.03.2018, he went to the spot along with SI P.R. Hudda where they found one bike No. DL-9SBD-3751 in accidental condition. On inquiry it is found that injured was shifted to the hospital. On reaching Rockland hospital, it was found that two injured persons were declared brought dead by the doctor. Deceased was shifted to mortuary. This witness collected copy of FIR and went to the spot again. IO had seized the aforesaid motorcycle and other articles such as broken pieces of glass of vehicles and other parts of motorcycle. On 19.03.2018, accused was State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.10 of 22 formally arrested by IO and offending vehicle No. HR-01AN-2002 was seized by IO along with documents of accused. Further investigation was conducted by IO. He correctly identified the vehicles from their photographs and the accused present in Court.
During cross-examination, he stated that he had gone to the spot in government gypsy and they had reached the spot at about 03:50 a.m. The bike was in damaged condition. One broken number plate, shoe and blood were also lying at the spot. IO had prepared site plan in presence of this witness. When he returned to the spot from mortuary, crime team was present at the spot and had taken the photographs. Seizure memo was prepared in the presence of this witness. He denied the suggestion that he did not join the investigation of present case with IO.
(iv) PW-4 Om Prakash had identified the dead body of his cousin/ victim Ashok Kumar on 11.03.2018 at DDU hospital. Handing over memo of dead body was signed by him.
He was not cross examined despite opportunity.
(v) PW-5 Sunil Kumar had identified the dead body of his brother/ victim Ashok Kumar on 11.03.2018 at DDU hospital. Handing over memo of dead body was signed by him.
He was not cross examined despite opportunity.
(vi) PW-6 Ishwar Singh had deposed that he was called the PS for inquiry regarding the offending vehicle i.e. white colour Scorpio, since he was the registered owner of the said car. He had also stated to the police State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.11 of 22 that his son Hari Om was driving the vehicle at the time of accident. His reply to notice under Section 133 MV Act was also signed by him. He correctly identified the offending vehicle from its photographs.
During cross-examination, he admitted that an accident had taken place at Dhoolsiras road, Dwarka Sector 24, on 11.03.2018. He could not state as to who was driving the vehicle at the time of accident.
(vii) PW-7 ASI Ravinder was formal witness and had recorded DD No.6A, DD No.8A. He had also got the present FIR registered. Certificate under Section 65-B Indian Evidence Act was also given by this witness regarding registration of FIR.
He was not cross-examined despite opportunity.
(viii) PW-8 Chander Prakash had conducted mechanical inspection of offending vehicle as well as victim's vehicle and had prepared reports Ex.PW-8/A and Ex.Pw-8/B regarding the same.
During cross-examination, he denied the suggestion that his report was manipulated to falsely implicate the accused.
(ix) PW-9 Ct. Anil was the photographer in the crime team. He had gone to the spot on 11.03.2018 upon instructions of IO to inspect the spot. Spot was inspected and this witness had clicked photographs of the spot. He also took photographs of victim's motorcycle kept at the PS. These photographs were handed over to the IO and his statement was recorded by IO.
State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.12 of 22 He was not cross examined despite opportunity.
(x) PW-10 SI P. R. Hudda has deposed that on receiving PCR call vide DD No.6-A on 11.03.2018, he went to the spot along with Ct. Ram Kishan where they found the complainant and victim's motorcycle in accidental condition. Statement of complainant Kamal Singh was recorded by this witness. One blood stained number plate bearing registration number HR01AN and one white colour body cover was found at the spot. Blood was found on the road. Pieces of plastic and glass and a pair of black shoes were also found at the spot. On receiving DD No.8A, he left the spot for Rockland hospital where he found that both injured Ashok and Dharmender had expired. Formalities regarding receiving dead bodies were done and he returned to the spot. Crime team was called at the spot which inspected and photographed the spot. Motorcycle of deceased was kept in PS and its photographs were also taken by crime team. Photographs and crime team inspection report was collected by IO. Ruqqa was prepared and FIR was got registered. Site plan was prepared by this witness. Motorcycle No. DL-9SBD-3751 was seized vide seizure memo and exhibits from spot were also seized. After the dead bodies were shifted to DDU hospital mortuary through Constable Ram Kishan, they were handed over to their relatives. Postmortem was got conducted. Notice under Section 133 MV Act was issued to the owner of offending vehicle. As per reply, accused was driving the said vehicle on the date of incident but accused was not produced before this witness. Accused had surrendered in Court after which he was formally arrested. Offending vehicle along with DL of accused and other documents were seized. Both State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.13 of 22 vehicles were got mechanically inspected and their reports were collected. Accused refused for his TIP. Complainant was present in Court on that day and identified the accused as the person driving the offending vehicle on the date of incident. Supplementary statement of complainant and eye witness was recorded. Further investigation was conducted and charge sheet was filed. He correctly identified one broken number plate bearing NO. HR-01AN, one rear view mirror of bike, one indicator of bike, one white colour body cover having Mahindra badging inside, a pair of black shoes, broken pieces of glass and plastic of black, white and red colour which he stated to having seized on the spot. He correctly identified the accused present in Court.
During cross-examination, he stated that information was received at about 04:15 a.m. and he reached the spot within 10 minutes from PS. He denied the suggestion that complainant was not present at the spot when he had reached there. PCR had taken the injured to the hospital but he could not recall as to who had accompanied the injured and got them admitted. He admitted that no witness was found in the hospital when he had reached there. Statement of complainant was recorded at the spot at about 02:30 a.m. Ruqqa was prepared in the hospital. He could not recall the name of the person at whose instance he had prepared the site plan. He did not conduct any investigation to verify about the persons who had got the injured admitted in hospital. He could not recall when notice under Section 133 MV Act was issued. He could not recall if any date for reply to said notice was mentioned in the notice. After the said notice Ex.PW- 10/7 and its reply Ex.PW-6/A was shown to the witness, he stated that date State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.14 of 22 was not written on Ex.PW-6/A inadvertently. He also stated that signed reply of notice was given by Ishwar Singh on 14.03.2018 which was also signed by this witness. He denied the suggestion that Ishwar Singh was called to PS and was threatened due to which he signed on some blank papers which was then manipulated by this witness. He denied the suggestion that accused was not driving the vehicle on the day of incident. He could not recall if notice to join investigation was given to complainant by him. He denied the suggestion that he had taken photograph of accused as well as of his surety to show the same to eye witnesses. He had directed ERV staff to remove motorcycle from the spot before inspection by crime team. He did not collect crime team report of the spot. He could not recall when he got to know about the registration number of the offending vehicle. He denied the suggestion that accused was falsely implicated.
10. Analysis & Findings-
(i) As per prosecution version, accused was driving one Scorpio car No. HR 01AN 2002 on the date and time of incident, in a rash and negligent manner. He hit one motorcycle and its riders sustained injuries and later succumbed to them.
Per contra, it is the version of accused that he was not driving the offending vehicle on the date of incident and that he has been falsely implicated.
(ii) As per prosecution version, PW Kamal was riding another bike alongside the bike of deceased and PW Vishwajeet was pillion rider. The State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.15 of 22 bulwark of prosecution case are the testimonies of these eyewitnesses. However, their evidence recorded in Court is diametrically opposite to their statements recorded by the police during investigation.
(iii) In their statements given to the police and also recorded in court during examination in chief, they had stated that one Scorpio car, being driven at high speed in a zig zag manner, had hit the victims' bike from behind, due to which they had sustained injuries and had died later. They had also revealed the registration number of the offending vehicle as HR 01 AN 2002. They had also identified the accused as the driver of offending vehicle. They had reiterated similar version of events during their cross examination.
(iv) However, they were recalled for further cross examination as per order of Hon'ble Delhi High Court. During their cross examination recorded on subsequent occasion, both eyewitnesses resiled from their previous statements in material particulars and were cross examined by Ld. APP. They also deposed that they did not see the registration number of the offending vehicle on the day of incident. They also stated that they did not see the driver of offending vehicle on the day of incident. The complainant PW Kamal also denied having mentioned in his complaint Ex.PW1/A that he had seen the driver of offending vehicle and that he could identify him. He also stated that it was the police officials who had shown him the number plate which had fallen after the incident at the spot and had told him that it belonged to the accused.
State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.16 of 22
(v) With both eye witnesses having turned hostile, grave suspicion has been cast on the prosecution version as to whether the car in question was being driven by the accused rashly and negligently. It is further doubtful as to whether the car of accused had actually hit the victims which led to their death.
(vi) Charge under Section 201 IPC has also been framed against the accused for causing disappearance of evidence. The only allegation of prosecution qua offence under Section 201 is that accused had disclosed that he had got the bumper of offending vehicle repaired and spray painted. No independent investigation has been done by IO to ascertain the liability of accused qua this offence. Further, disclosure of accused made to the IO cannot be proved against him as per Section 25 and 26 of Indian Evidence Act. Thus, there is no material on record to incriminate the accused for causing disappearance of evidence.
11. Lapses of Investigation It is pertinent to bring the following observations on record. The lack of proper and scientific investigation in this case is appalling.
The lack of investigation on the following aspects is glaring:
(a) IO has not explained the basis for concluding that the complete registration number of the offending vehicle was HR 01 AN 2002. It has come on record that one broken number plate containing incomplete registration number HR01A was found at the spot. However, IO has not clarified about the independent investigation done by him to conclude that the complete registration number was HR 01 AN 2002. It is State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.17 of 22 trite law that to convict an accused, the prosecution is required to travel the entire distance from may have to must have and the same cannot be based on conjectures.
(b) The site plan has been prepared in the most perfunctory and careless manner by IO, in breach of judgment of Hon'ble Delhi High Court in Abdul Subhan v. State and Standing Orders issued by Commissioner of Police. He has not shown the direction of movement of traffic or the direction of movement of vehicles. He has not shown the exact point of impact or tyre skid marks.
(c) He has not taken photographs of the surrounding areas so that the exact topography can be clearly understood, in breach of judgment of Hon'ble Delhi High Court in Abdul Subhan v. State and Standing Orders issued by Commissioner of Police.
(d) He has not noted down the weather conditions anywhere in the chargesheet, again in breach of judgment of Hon'ble Delhi High Court in Abdul Subhan v. State and Standing Orders issued by Commissioner of Police.
(e) He has not placed on record the crime team inspection report. (He had stated during evidence that crime scene was got inspected by crime team). It is appalling to note that he got the victim's motorcycle removed from the spot, before inspection by crime team, which amounts to tampering with the crime scene and casts serious doubts on the impartiality of IO and credibility of prosecution evidence.
(f) Further, the carelessness of IO is evident from the fact that some photographs of spot were placed on record, which were taken by Crime Team Incharge ASI Satpal. However, IO has not bothered to place State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.18 of 22 the certificate under Section 65B of Indian Evidence Act. Thus, these photographs, which could otherwise have been material evidence, have to be discarded, being inadmissible.
(g) IO has not explained as to why the materials seized from spot were not sent to FSL.
(h) IO did not bother to verify the particulars of persons who had admitted injured in the hospital. The testimony of such persons could have been material to establish the chain of events.
(i) IO, during his cross examination, could not recall when notice under Section 133 MV Act was issued. When he was confronted with the same Ex.PW6/A, he simply stated that date on the same was not written inadvertently. Such inadvertence, among scores of other inadvertences, on the part of IO, have proved fatal to the case of prosecution.
A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent, because no criminal court ought to convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a charge sheet is filed, the court is presented with a case which when taken objectively would lead to the inescapable conclusion that justice is served, to the victim as well as offender.
12. False testimony of prosecution witnesses
(i) As far as testimonies of PWs Kamal and Vishwajeet are State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.19 of 22 concerned, the said witnesses have lied on oath before this Court. Both aforesaid witnesses have claimed in their examination in chief that the registration number of the offending vehicle was HR 01 AN 2002 and that it was being driven by the accused. They had also stated that Scorpio car had come at high speed from backside in a zig zag manner and hit the bike of victims. However, they resiled from their testimony, specifically these facts, during their cross examination. These facts were duly brought to the notice of aforesaid witnesses during their cross examination by the Ld. APP and also by way of several court questions.
(ii) Further, as far as testimony of PW Ishwar Singh is concerned, the said witness has lied on oath before this Court. PW Ishwar had stated in his examination in chief that on the day of incident, his son/accused Hari Om was driving the offending vehicle. He had also identified the Scorpio car from its photographs. He also admitted that notice under Section 133 MV Act was served upon him by IO and he had replied to the same. However, during his cross examination, he stated that he could not tell as to who was driving the offending vehicle on the date of incident and that he did not know about the make of vehicle involved in the incident.
(iii) I am further supported in my opinion qua falsity of testimony of Ishwar Singh in as much as this witness had given in writing to the police that accused Hari Om was the driver of his vehicle bearing No. HR- 01 AN 2002 during investigation. This was in response to notice under Section 133 MV Act, which mandates that it is the duty of the owner of a motor vehicle to give all information regarding name, address, and licence State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.20 of 22 of the driver of the vehicle in his possession when such information is demanded by a police officer. In response to the said notice, owner/Ishwar Singh had stated that the driver of the offending car in this case was Hari Om. He has admitted to signing reply of notice u/s 133 MV Act Ex. PW6/A. During cross-examination of IO, it was put to him that reply from owner of offending vehicle/Ishwar Singh was sought at the instance of IO, who threatened to implicate Ishwar Singh in a false case and obtained his signature of various blank papers. It is matter of record that no complaint against the IO, in this regard, was made by Ishwar Singh to SHO or DCP or to any other police official.
(iv) Thus, it appears that PW Ishwar was trying to mislead the Court by first claiming that accused was driver of the offending vehicle and thereafter changing his stand by claiming that he did not know about the driver of the car. He has also admitted to have given in writing to investigating officer concerned that accused Hari Om was the driver of the offending vehicle.
(v) Before parting with this judgment, it is clear from record that PWs Kamal, Vishwajeet and Ishwar Singh have been found to have willfully/knowingly given false evidence during trial before this Court, with the intention that the said evidence would be used in trial of this case. Such conduct of PWs is deprecable and I am satisfied that it is necessary and expedient in the interest of justice that they be tried as per the provisions of Section 383 Bhartiya Nagarik Suraksha Sanhita, 2023 for State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.21 of 22 giving false evidence before this Court. Accordingly, I take cognizance for offence made punishable under Section 227/228 Bhartiya Nyaya Sanhita,2023 and said witnesses/accused Kamal, Vishwajeet and Ishwar Singh are called upon to show cause why they should not be sentenced for the said offence summarily.
13. Let copy of this judgment be sent to PWs/accused Kamal, Vishwajeet and Ishwar Singh which shall serve as notice for showing cause in the aforesaid terms.
14. Further, copy of the judgment be sent to DCP concerned and report be called as to what action is proposed to be taken against the IO for such shoddy investigation and gross violation of directions passed in judgment of Delhi High Court and violation of Standing Orders.
15. As to the case at hand, accused is entitled to benefit of doubt, owing to the tainted testimony of eye witnesses and more so, due to the faulty investigation by IO. Accordingly, accused Hari Om is acquitted for the offences made punishable under Section 279/304A/201 IPC.
Digitally signedPronounced in open Court by Samiksha
Gupta
on 19th of July, 2024 Samiksha Date:
Gupta 2024.07.19
16:48:24
+0530
SAMIKSHA GUPTA
Additional Chief Judicial Magistrate, First Class Dwarka Courts: New Delhi 19.07.2024 State Vs. Hari Om FIR 74/2018, PS Sector-23 Dwarka Page No.22 of 22