Delhi District Court
Sunil Kumar S/O Sh. Hari Narain vs State Of Delhi on 5 August, 2011
IN THE COURT OF SHRI R.K. GAUBA: DISTRICT JUDGE
& ADDITIONAL SESSIONS JUDGE I/C, SOUTH DISTRICT:
SAKET NEW DELHI
Criminal Appeal No. 26/2011
ID No.: 02406R0108782011
Sunil Kumar s/o Sh. Hari Narain,
R/o A96, Budh Vihar, Tajpur Pahari,
Badarpur, New Delhi 44 ... Appellant
Versus
State of Delhi ... Respondent
Instituted on: 06.05.2011
Judgment reserved on: 05.08.2011
Judgment pronounced on: 05.08.2011
J U D G M E N T
1. This criminal appeal has been preferred against the judgment dated 15.04.2011 passed by Sh. Sunil Beniwal, Metropolitan Magistrate 01 (SouthEast) in criminal case registered as No. 236/2 of 2002 on the basis of charge sheet submitted on 13.08.2002 on conclusion of investigation into FIR No. 492/2001, Police Station Badarpur, under Sections 279/337/ Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 1 of 8 304A IPC. Vide the impugned judgment, the Magistrate found the appellant guilty and convicted him for offences under Sections 279/337/304A IPC. The Magistrate thereafter heard arguments and passed order on sentence on 19.04.2011, whereby the appellant was awarded simple imprisonment for two months under Section 279 IPC, simple imprisonment for three months under Section 337 IPC and simple imprisonment for six months under Section 304A IPC, all of which were directed to run concurrently. The appeal also questions the correctness, legality and propriety of the said order on sentence.
2. The appeal has been resisted by the State.
3. I have heard Sh. Suresh Kumar, advocate for the appellant and Ms. Anita Hooda, Chief Public Prosecutor for the State. I have gone through the trial court record.
4. The trial court record would show that the FIR was registered on the basis of statement (Ex. PW 1/A) of Yamin Khan (PW1) before the investigating officer PW5, then SI K. P. Malik ( hereinafter the I.O.), some time before 10.45 AM on 22.09.2001. According to the said FIR, the first informant PW1 was proceeding on his scooter number DL1SJ8946 Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 2 of 8 (hereinafter, "the scooter") with his eight years old son Kamal Hussain on the pillion, when at about 09.00 AM at a junction of roads known as Ali crossing, a bus bearing registration no. DL 1P A3837 (hereinafter, "the bus") hit the scooter from behind, as a result of which the child on the pillion fell down along with his father and scooter. The bus allegedly ran over the minor child on the road. It is the case of the prosecution that the said injured child succumbed to the injuries on the spot.
5. Even as per the FIR, the bus driver had come down of the vehicle and after seeing what had happened had run away from the spot. FIR would not mention his description or name or other particulars in any manner. The record would show that the appellant was arrested by the I.O. on 22.09.2001 vide arrest memo Ex. PW 5/F after personal search vide memo Ex. PW 5/E. The said two documents purport to have been attested by a witness named Surinder Kumar son of Sh. Udey Singh. They would not indicate as to what connection the said Surender Kumar had with the appellant. Ex. PW 5/G shows that the appellant was released on the basis of bail bond submitted by the said Surender Kumar son of Sh. Udhey Singh resident of Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 3 of 8 253 Nehru Colony (Patera), Badarpur, New Delhi.
6. Charge sheet was silent as to on what basis the appellant had been connected with the crime. It appears the charge sheet as originally presented indicated the names and particulars of eight witnesses. It was signed by the SHO Police Station Badarpur on 23.11.2001. The name of Surender Kumar son of Udey Singh has been later added by way of interpolation as witness no. 9 in the charge sheet.
7. In his statement, the I.O. would concede that he had not given any notice under Section 133 of Motor Vehicles Act. According to him, the accused had surrendered himself at the police station at about 5/6 PM. This is the reason why, the I.O. explained, that he took no steps for arranging for any TIP.
8. During his statement PW1 would identify the appellant as the driver of the bus. According to him, he had seen the appellant in the police station on the same day in the evening. He would not remember the time of he having seen the appellant in the police station. He is not the signatory to any document of arrest of the appellant. The I.O. is stated to have recorded his statement about he having identified the appellant as the driver Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 4 of 8 of the bus at the relevant time. Similarly, the prosecution case that Surinder Kumar son of Sh. Udey Singh, the owner of the bus had also given statement to the I.O. that the appellant was the driver of the bus on the relevant date and time. In his examination in chief, the I.O. would not say that the appellant was produced in the police station as the driver by Surinder Kumar, owner of the bus. This is a theory, which he would develop during the crossexamination. The prosecution claims Surinder Kumar had made a statement to such effect before the I.O. during the investigation. The Trial court record, however, does not contain any such statement under Section 161 Cr.P.C. On being asked, the Chief Public Prosecutor has now placed on the record of the appeal, photo copy of statement under Section 161 Cr.P.C. of Surinder Kumar son of Sh. Udey Singh.
9. It has been pointed out by the counsel for the appellant that the supplementary statement of PW1 about he having identified the appellant as the driver of the bus and the statement of Surinder Kumar under Section 161 Cr.P.C. revealing that the appellant was driver of the bus on the relevant date and time have been recorded on 15.02.2002. This would be much after charge sheet Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 5 of 8 had been signed by the SHO PS Badarpur on 23.11.2001.
10.Be that as it may, Surinder Kumar son of Sh. Udey Singh had been added as a witnesses for the prosecution. The trial court record shows he was served with a summons for 24.03.2005. The proceedings recorded on 24.03.2005 do not show the presence of the said witness before the court. The proceedings indicate the learned Magistrate had not even cared to notice as to which witness had been served for that date.Therefore, no duress process came to be issued against Surinder Kumar on account of his absence. The trial court record does not show any fresh process having been issued to Surinder Kumar thereafter; this, even though there was a specific order to such effect as per order sheet dated 04.01.2008.
11. Given the fact that Surinder Kumar was an important witness, since his evidence was crucial to reach a clear conclusion as to connection of the appellant with the bus in question on the relevant date and time, the prosecution was required to take necessary steps, for getting his presence secured before the court. Further, it was incumbent on the Magistrate to issue process and secure the presence of the witness. It appears both Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 6 of 8 the prosecution and the learned Magistrate have failed to take necessary steps in this regard. The prosecution evidence was ordered closed on 18.02.2010 without taking care to ensure that all efforts had been made to bring all the necessary witnesses before the court.
12.In the above facts and circumstances, the trial conducted by the Magistrate is vitiated it being not proper that evidence of the prosecution has been throttled. Truth cannot be reached without securing the presence of the crucial witness Surinder Kumar. Further, the possibility of evidence having been created also needs to be investigated and probed. It needs to be clarified by the prosecution as to how statements under Section 161 Cr.P.C. had been recorded on 15.02.2002 and came to be added after the charge sheet had been prepared and signed on 23.11.2001. For this, the I.O. and the then SHO of Police Station Badarpur need to give some explanation.
13.In above facts and circumstances, the impugned order is set aside. The matter is remanded to the court of Magistrate with the directions for further trial in accordance with law. For such purposes, the witness Surinder Kumar shall be summoned, if Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 7 of 8 necessary, by issuance of duress process and examined. Further, the learned Magistrate shall recall the IO and also summon the then SHO PS Badarpur to seek their explanations on the aspect mentioned above before taking a fresh final decision in the case.
14. The appeal stands disposed of with above observations and directions.
15.The appellant shall appear before the concerned court for further proceedings on 01.09.2011.
16.Trial court record along with copy of this judgment be sent back.
17. File of the appeal be consigned to record room.
Announced in open Court today
on this 05th day of August, 2011 (R.K. GAUBA)
District Judge &
Additional Sessions Judge,
I/C, South District
Saket, New Delhi
Crl. Appeal No. 26/11 Sunil Kumar Vs. The State 8 of 8