Delhi District Court
State vs . Upender on 3 November, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. UPENDER
FIR NO. 289/10
PS: MOTI NAGAR
U/S: 279/304-A IPC
JUDGMENT
Case no. : 59913/16
Date of commission of offence : 10.09.2010
Date of institution of the case : 02.06.2011
Name of the complainant : HC Jagdish Prasad
Name of accused and address : Upender S/o Sh. Mathura Rai
R/o VPO Siri Nagar, PS
Rewati, Distt. Balia, UP.
Offence complained of or proved : U/s 279/304-A IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date on which reserved for judgment : 03.11.2018
Date of announcing of judgment : 03.11.2018
******************************************************************************************************************************* BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Upender pursuant to charge sheet filed by PS Moti Nagar U/s 279/304-A IPC subsequent to the investigation carried out in FIR No.289/10.FIR No. 289/10, PS Moti Nagar Page 1/9
2. As per the prosecution, on 10.09.2010 at about 12.45 AM on a road Zakhira Flyover Moti Nagar, Delhi, accused was driving a truck bearing no.
HR-55D-8086 in rash and negligent manner. While driving so, he struck against a motorcycle bearing no. DL-4SBN-6365 ridden by one Chand Raja and caused his death. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offence punishable U/s 279/304-A IPC.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, notice for offence punishable under section 279/304-A IPC was served upon the accused to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined ten witnesses in total.
5. PW1 Sh. Vinay Jain stated he was working at M/s R.V. Akash Ganga Infrastructure Ltd. at 209, First Floor, A-6, DDA Local Shopping Complex, Paschim Vihar as General Manager. It is stated that accused was an employee in the aforesaid company working as a driver and were driving truck no. HR-55D-8086. It is further stated that on the date of incident I.e. 10.09.2010 accused was driving the truck mentioned above. It is further stated that the truck was taken into possession by the police and vide the resolution Ex.PW1/A the same was released in favour of PW1. The witness correctly identified the photographs of offending vehicle as Ex. P1. This witness was cross examined on behalf of accused.
FIR No. 289/10, PS Moti Nagar Page 2/96. PW2 ASI Jagdish Prasad stated that on 10.09.2010 he was performing his picket duty at Zakhira Flyover. It is stated by PW2 that the motor cycle bearing no. DL-4SBN-6365 riden by victim injured person was moving from Punjabi Bagh towards Anand Parbat. It is further stated that the vehicle bearing no. HR-55D-8086 driven by accused came from behind the said motorcycle in rash and speedy manner hitting the motorcycle from right side and the motor cycle rider fell down and got injured. PW2 further stated to have witnessed the incident and called the PCR which came at the spot and took the injured at Jai Prakash Narayan hospital. It is further stated by PW2 that IO ASI Maman Singh came at the spot and recorded his statement and took the driver of the offending vehicle with him to the hospital. Statement of PW2 is Ex. PW2/A. This witness also exhibited the arrest memo as Ex. PW2/B and personal search memo Ex.PW2/C. This witness was cross examined on behalf of accused.
7. PW3 Sh. Nanak Chand and PW4 Sh. Abhimanyu exhibited on record their statements qua identification of dead body of deceased Chand Raja as Ex.PW3/A & PW4/A and dead body handing over memo as Ex.PW3/B. These witnesses were not cross examined on behalf of accused.
8. PW5 Dr. Monish Pradhan, Assistant Professor from Forensic Medicine, MAMC exhibited on record the postmortem report no.722/10 of deceased Chand Raja prepared by Dr. Anju Rani as Ex.PW5/A. This witness was cross examined on behalf of accused.
9. PW6 SI Ravinder Kumar was the duty officer, who exhibited on record computer generated copy of FIR as Ex.PW6/A, endorsement on the rukka as Ex.PW6/B and DD no.5A as Ex.PW6/C. This witness was cross examined on behalf of accused.
FIR No. 289/10, PS Moti Nagar Page 3/910. PW7 ASI Maman Singh stated that on 10.09.2010, he received the information vide DD no.5A regarding accident at Zakhira Flyover. Upon receiving of information he along with Ct. Krishan reached at the spot where a offending vehicle/truck no. DL-4SBN-6365 and motorcycle make Bajaj Pulsar bearing no.HR-55B-8086 were found. It is stated that HC Jagdish also met to them on the spot whose statement was recorded by the IO. It is further stated that photographs of the place of accident were taken. Same are exhibited as Ex. PW7/A1 (colly). The witness further deposed qua the manner and his involvement in the investigation. In his evidence PW7 exhibited rukka as PW7/A, site plan as Ex. PW7/B, seizure memo of the truck and motor cycle as Ex. PW7/C and Ex. PW7/D respectively. The witness stated that accused also came at the spot and from there accused was taken to PS. In the meantime, the information from LNJP hospital was received about the death of the injured persons. It is stated that IO left for the hospital after coming back to PS and arrested accused vide memo already exhibited on record. This witness further exhibited on record the seizure memos of the documents produced by the registered owner as Ex.PW7/E and PW7/F respectively. It is stated that the D/L of accused was seized vide seizure memo Ex. PW7/G. After completion of investigation, PW7 filed the charge sheet before the Court. This witness was not cross examined on behalf of accused.
11. PW8 ASI Devender Kumar exhibited on record the mechanical inspection reports of Bajaj Pulsar Motorcycle bearing no.DL-4SBN-6365 and TATA Truck Concrete Mixer bearing no. HR-55D-8086 prepared by him as Ex.PW8/A and PW8/B respectively. This witness was cross examined on behalf of accused.
12. PW9 ASI Krishan Kumar also deposed on the same lines as that of PW7 ASI Maman Singh. This witness was cross examined on behalf of accused.
FIR No. 289/10, PS Moti Nagar Page 4/913. PW10 Dr. Arvind Mohan identified the signatures of Dr. Obaid at point A on the MLC Ex.PW10/A. This witness was not cross examined on behalf of accused.
14. No other witness was left to be examined, hence PE was closed vide order dated 23.05.2018.
STATEMENT OF ACCUSED U/S 313 Cr.P.C :
15. Statement of accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated that he has been falsely implicated in the present matter. Accused opted not to lead defence evidence.
ARGUMENTS:
16. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 279 & 304-A are proved beyond doubt.
17. On the other hand, Ld. counsel for accused has argued that there is no legally admissible evidence against the accused. It is argued that none of the witnesses supported the case of prosecution, hence their testimony cannot be relied upon. Arguing further Ld. counsel submitted that prosecution has failed to prove the guilt of accused beyond reasonable doubt due to tainted testimony of PWs, hence accused is entitled to be acquitted.
FIR No. 289/10, PS Moti Nagar Page 5/9FINDINGS:
18. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
19. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences U/s 279/304-A IPC. Section 279 IPC punishable for offence of driving a vehicle in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person. Section 304 A IPC provides punishment for causing death of any person by doing any rash or negligent act not amounting to culpable homicide.
20. In order to bring home the guilt of accused, prosecution has to prove three aspects. Firstly, that accused Upender was driving the offending truck bearing no. HR-55D-8086 on 10.09.2010 at about 12.45 AM on Zakhira Flyover road, Moti Nagar, Delhi. Secondly, the said offending vehicle was being driven by the accused in rash or negligent manner causing the accident in question. Thirdly, due to said accident victim Chand Raja succumbed to his injuries.
21. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused not guilty for any offence charged herein and he deserves acquittal for the following reasons:-
22. Prosecution witnesses have categorically identified the accused as driver of the offending vehicle at the time of accident. Nowhere in the cross-examination of prosecution witnesses it has been disputed by the FIR No. 289/10, PS Moti Nagar Page 6/9 accused. In fact in his statement U/s 313 Cr.P.C also accused has not disputed the driving of the offending vehicle at the time of incident. In view of the evidence led on record, the identity of the accused as driver of the offending vehicle stands established, hence first aspect stands proved.
23. Now coming to the second aspect that is whether the accused was driving the vehicle in rash or negligent manner at the time of accident. At the outset it is pertinent to mention that there is no public witness except the police official ASI Jagdish Prasad who has witnessed the accident. The testimony of PW2 ASI Jagdish Prasad does not inspire the confidence due to the infirmities and contradictions occurring in his testimony during deposition before the court that shakes the veracity of his testimony and the possibility of being planted witness cannot be ruled out for the following reasons :-
Firstly, PW2 has merely stated that the offending vehicle hit against the motor cycle from side while coming in rash and speedy manner. He has not explained the circumstances and the manner in which the offending vehicle was being driven by the accused. Merely stating that he was coming in rash and speedy manner does not establish the negligence or rashness on the part of the accused. There is no skid marks on the road proved. There is no mentioning of actual speed of the offending vehicle. The position/lane of motorcycle is not mentioned. What was the structure of the road at the place of accident as it was a flyover and the road may be inclining or declining that may show the speed of truck. No such circumstances have been shown on record in evidence.
24. Secondly, the witness PW2 in his examination in chief stated that he called the PCR van about the incident, however, in his statement Ex. PW2/A he stated that the PCR call was made by somebody else. Another material contradiction in his testimony is that PW2 stated in his examination in chief that accused Upender was arrested in his presence by the IO at the spot whereas IO ASI Maman Singh PW7 stated that the FIR No. 289/10, PS Moti Nagar Page 7/9 accused was arrested after coming back at PS. PW9 ASI Krishan Kumar also supported the statement of IO qua the place of arrest of the accused which is again contradictory to the statement of alleged eye witness PW2. These facts throw strong doubt on the presence of the witness PW2 at the place of accident.
25. PW-2 during his cross examination stated that he saw offending vehicle from a distance of 100-150 yards and simultaneously he stated that the distance between the spot and the place of accident is about 50- 100 mtrs which is again a contrary statement. If it is assumed that PW2 was 50-100 mtrs away from the spot, no location has been reflected of the picket in the site plan Ex. PW7/B as the accident has took place on the mid of the flyover. There is nothing to prove on record w.r.t.the duty being performed by ASI Jagdish Prasad at picket. In his examination in chief also PW2 has nowhere mentioned about the timing of his duty and the exact DD entry vide which he was on picket duty. The aforesaid material discrepancies creates strong doubt on the presence of PW2 at the spot on the date of accident. The testimony of PW2 is highly probable to be believed in view of the aforesaid discrepancies.
26. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
FIR No. 289/10, PS Moti Nagar Page 8/927. In view of the observations given above and the evidence led on record, this Court is of the view that the prosecution could not prove beyond reasonable doubt that the accident had taken place due to rash or negligent driving by the accused. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused namely Upender is hereby acquitted of all the charges in the present case.
28. Requirements of Section 437-A Cr.P.C. have been complied with. File be consigned to Record Room after due compliance.
Digitally signed VISHAL by VISHAL
PAHUJA
PAHUJA Date: 2018.11.04
16:07:21 +0530
ANNOUNCED IN THE OPEN (VISHAL PAHUJA)
COURT ON 03.11.2018 MM-04 (WEST)/DELHI
Containing 09 pages all signed by the presiding officer.
Digitally signedVISHAL by VISHAL PAHUJA PAHUJA Date: 2018.11.04 16:07:26 +0530 (VISHAL PAHUJA) MM-04 (WEST)/DELHI FIR No. 289/10, PS Moti Nagar Page 9/9