Delhi District Court
Kaliram vs State Of Himanchal Pradesh, Air 1973 Sc ... on 11 September, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-
WEST), DWARKA COURTS, NEW DELHI
Presided by: Sh. Deepak Vats
State v. Naveen @ Meenu
FIR No.588/14
Police Station: Chhawla
Under Section: 279/337/304A IPC.
Date of institution : 23.01.2016
Date of reserving : 09.09.2019
Date of pronouncement : 11.09.2019
JUDGMENT
a) Serial number of the case 424287/16
b) Date of commission of of- 04.10.2014
fence
c) Name of the complainant ASI Sant Ram PS Chhawala
d) Name, parentage and ad- Naveen @ Meenu
dress of the accused s/o Sh. Raghubir Singh
r/o House no. 674, Nahri
Tod Wali Gali, Sonipat,
Haryana
e) Offence complained of Section 279/337/304A IPC.
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 11.09.2019
State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 1
BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix is that on 04.10.2014 at about 6:00 pm in between village Shikarpur and at Gumanhera, New Delhi, within the jurisdiction of PS Chhawala, accused Naveen @ Meenu was found driving Ritz Car No. DL2CAU 1068 in rash or negligent man- ner so as to endanger life of others and thereby struck against the bicycle and caused simple injury to Sh. Lakender and death of Sh. Sahdev. Therefore, it is alleged that accused has committed offences u/S 279/337/304A IPC.
2. Chargesheet was filed and copy of the same was supplied to the accused as per mandate of section 207 Cr.P.C. Notice under Section 251 Cr. P.C was served upon the accused for the offence under Section 279/337/304A IPC vide order dated 02.06.2016 to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined nine wit- nesses.
4. PW-1 Sh. Lakender Paswan in the present case is the eye witness to the alleged incident. IN his examination in chief he sated that at the time and place of alleged incident he along with de-
State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 2 ceased Sahdev was returning from to his house at village Ghuman- hera on his bicycle. He alleged that at the time of alleged incident one Marshal car came from his front side in a wrong direction and hit the bicycle which caused injury to PW 1 and death of deceased Sehdev. He further stated that after the accident the accused came near him and asked whether he was fine. Thereafter the accused ran away from the spot. Accused was correctly identified by the witness.
5. However, in his cross-examination PW 1 turned hostile and deposed that he immediately became unconscious after receiving the injuries and saw the accused first time in the PS. He further stated that he did not know the contents of the documents and the documents were not prepared by the police on his instructions and that police only took his thumb impressions.
6. In is cross examination by Ld. APP he again stated whatever he sated in his cross examination and further deposed that he sup- ported the case of prosecution in his examination in chief as he was asked by the police to do that.
7. PW-2 Sh. Puran Chand is Mechanical Inspector, who proved mechanical inspection of Maruti Ritz Car no. DL 2CAU 1068 vide Ex. PW 2/A. State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 3
8. PW-3 Sanjeev is witness to the dead body, who proved dead body identification memo vide Ex. PW 3/A,
9. PW-4 Rama Nand witness to the dead body handing over which is Ex. PW 4/A.
10. PW-5 W/ASI Saroj, Duty officer has proved the copy of Roz- namcha register of DD no. 29A, 30A, 31A and 33A vide Ex. PW 5/A1, Ex. PW 5/A2, Ex. PW 5/A3 and Ex. PW 5/A4. He also proved DD no. 48B vide Ex PW5/A. He also proved the copy of FIR and en- dorsement on rukka vide Ex. PW 5/B and Ex. PW 5/C. He also proved the certificate u/s 65 of Indian Evidence Act vide Ex. PW 5/D.
11. PW-6 Sh. Dharmender, is the registered owner of the offend- ing vehicle, who proved reply to the notice u/s 133 MV Act vide Ex. PW 6/A and its seizure memo vide Ex. PW 6/B. He released the ve- hicle vide superdari vide superdarinama vide Ex. PW 6/C. He de- posed that IO arrested the accused vide Ex. PW 6/D and his per- sonal search vide Ex. PW 6/E.
12. PW-7 Dr. Pawan Kumar is the witness to Post mortum of de- ceased and proved PM report vide Ex. PW 7/A. State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 4
13. PW-8 Ct. Somvir joined the investigation with the IO and has proved seizure memo of cycle and car Ex. PW 8/A and Ex. PW 8/B
14. PW-9 SI Sant Ram is the IO of the present case. He deposed regarding the investigation conducted by him. He further deposed that after completion of investigation he prepared charge sheet and filed the same before the court.
15. Accused admitted the MLCs no. 6381/14 and 6376/14 U/s 294 r/w 313 r/w 281 Cr.P.C and the same are exhibited as Ex. P/A/1.
16. It may be brought on record that PW IO/ ASI Jawar Lal did not appear before the court despite issuance of summons, B/Ws and NBWs as he was suffering from cancer and hypertension. There- after, vide order dated 24.05.2018 he was dropped from the list of witnesses.
17. After the completion of prosecution evidence, PE was closed and statement of accused u/S 313 Cr. PC was recorded wherein he stated that he was falsely implicated in the present case. He further deposed that he had not done anything wrong as he was not driving the alleged vehicle at the time of alleged incident. Accused did not opt to lead defence evidence.
State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 5
18. Thereafter, matter was listed for final arguments.
19. During the course of arguments, Dr. Yadvender Singh Ld. APP for the State submitted that the prosecution has proved its case against accused beyond reasonable doubts. He submitted that the identity of accused had not been disputed to the effect that he was driving the vehicle at the relevant point of time and had stuck against the bicycle, causing death of the deceased Sahdev. He submitted that the prosecution has proved that the accused was driving the ve- hicle in rash or negligent manner and this fact is also corroborated from testimony of PW1 Sh. Lakender Paswan. He further submits that the version as stated by PW-1 is also corroborated from the Site plan Ex. PW9/B. He further submitted that it is clear from the testi- monies of all the witnesses that the accused was driving the vehicle in a rash and negligent manner and the prosecution has proved its case by examining the reliable and cogent prosecution witnesses. Therefore, accused be convicted as per law.
20. Sh. Rakesh Sharma Ld. Defence counsel for accused submit- ted that prosecution has not proved its case against accused beyond reasonable doubt. He argued that eye witness /PW 1 has turned hostile in his cross examination. He argued that accused had been falsely implicated in this matter. He further submits that site plan Ex. PW9/B was prepared by IO at PS. Thus he has prayed that ac- cused be acquitted.
State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 6
21. I have heard submissions of ld. APP for the State and Sh. Rakesh Sharma, Ld. Defence counsel for the accused and perused the record carefully.
22. I have carefully perused the material on record and heard the submissions of the Ld. Counsels.
23. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
24. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 7
25. In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377 wherein it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further observed that it is a well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
26. Before proceedings further, it is necessary to discuss the meaning of expression "rash and negligent". Although the expression rash and negligent has not been defined in the Indian Penal Code, but the said terminology has been discussed by the Hon'ble Supreme Court in case titled as "S.N. Hussain vs State of Andhra Pradesh, AIR 1972 SC 685, State of H.P vs Piar Chand, Crl. Appeal no. 109/2003 decided on 02.06.2003 and in Ram Avtar vs State of Rajasthan II (2006) ACC 438", passed by Hon'ble Rajasthan High Court.
27. In S. N. Hussain case, criminal negligence has been defined as:
"The gross and culpable neglect or failure to exercise reasonable and proper care to guard against injury either to public generally or individual in particular. Culpable negligence lies in the failure to exercise State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 8 reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
Criminal rashness as defined in State of H.P vs Piar Chand's case and Ram Avtar's case is that:
"The criminal rashness is doing a dangerous or wanton act within knowledge that it is so and may cause injury without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or in difference as to the consequences.
Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing injury to the public or a person or an individual."
28. In the present case the star witness of the prosecution I.e PW 1 Sh. Lakhender Paswan has turned hostile during his cross examination. Though, in his examination in chief he supported the case of the prosecution and he was cross-examined as nil, opportunity given, he was re-summoned on filing of an application u/s 311 Cr. PC by the counsel for accused. In his cross examination he turned hostile and stated that he immediately became unconscious after the alleged incident and saw the accused for the first time in PS. He stated that the police did not record his statement only took his thumb impressions. He further stated that he State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 9 did not know regarding the contents of documents upon which his thumb impression were taken. He was cross-examined by Ld. APP wherein he again reiterated what he stated in his cross-examination. Thus, there are many contradictions/ improvements in the statement of lone eye witness of the prosecution and his testimony does not appear to be reliable.
29. Further, in the present case complainant was ASI Sant Ram Bhardwaj, who was also the first IO in the present case. It is settled principle of criminal law that a complainant cannot investigate his own case. In the case of Mohan Lal v State of Punjab, 2018 SCC Online SC 974 a three judge bence of Hon'ble Apex Court observed as follows :-
"in view of the conflicting opinion expressed by two judge benches of this court, the importance of a fair investigation from the point of view of an accused as a guaranteed constitutional right under Article 21 of the Constitution of India, it is considered necessary that the law in this regard be laid down with certainty. To leave the matter for being determined on the individual of the fact of a case may not only lead to a possible abuse of powers, but more importantly will leave to the police, the accused, the lawyer and the court in a state of uncertainty and confusion which has to be avoided. It is therefore, held that a fair investigation, which is but the very foundation of fair trial, necessarily postulates that the informant and the instigator must not be the same person. Justice must not only be done but must appear to be done also. Any possibility of bias State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 10 or a predetermined conclusion has to be excluded. This requirement is all the more imperative in laws carrying a reverse burden of the court " .
30. In view of the above observation of the Hon'ble Supreme Court of India the fact that the complainant has himself investigated the present matter casts shadow of doubt on the case of prosecution.
31. Furthermore, site plan Ex. PW 9/B does not bear signature of any witness. IO/ PW 9 SI Sant Ram Bhardwaj, has not explained in his examination in chief as to at whose instance he parepared the site plan. Admittedly, IO was not an eye witness to the alleged incident. This raises grave doubts about the authenticity of the site plan.
32. Another glaring lapse in the investigation is that the seizure memo of bicycle and offending vehicle Ex. PW 8/A and Ex. PW 8/B respectively state that PW 8 Ct. Sombir was a witness to the said seizure memos however, both these documents do not bear signature of PW 8 and he has admitted the same in his cross- examination. This makes the seizure memos suspicious and doubtful.
33. In view of the testimony of PW 1 Sh. Lakender Paswan and State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 11 the glaring lapses in conducting investigation of the present case as noted above, the court is of the view that prosecution has miserably failed to prove its case against accused beyond reasonable doubt. Therefore, accused Naveen @ Meenu is acquitted from all the charges i.e. 279/337/304 A IPC.
34. Documents, if any be returned to the rightful person. Bail bond and surety bond stands discharged. Endorsement, if any, be cancelled. Superdari, if any, stands cancelled. Case property, if any, be released to its rightful owner.
35. Bail bond u/s 437 A Cr PC is already on record.
36. File be consigned to record room.
Digitally signed Announced in open Court on 11.09.2019. DEEPAK by DEEPAK VATS VATS Date: 2019.09.13 16:54:08 +0530 (Deepak Vats) Metropolitan Magistrate-05 (South-West) 11.09.2019 State v. Naveen @ Meenu FIR No.588/14 PS : Chhawla 12