Delhi District Court
Criminal Case/372/2005 on 28 November, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE 02
SHAHDARA , KARKARDOOMA COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
FIR No. : 372/05
PS : Seema Puri
U/s 279/304 A IPC
Unique I.D. No. 02402R0239262006
State v. Asgar Ali
J U D G M E N T :
a) Serial No of the case : 311/RBT/13
b) Date of commission of offence : 02.07.2005
c) Name of the complainant : IO/SI Pitam Singh No. D2376
PSSeemapuri, Delhi.
d) Name parentage and : Asgar Ali
address of the accused S/o Late Sh. Maqsood Ali
R/oMohalla, Prem Nagar, Loni
Inter College, Ghaziabad (UP)
e) Offence complained of : U/s 279/304A IPC
f) Plea of accused : Pleaded not guilty
g) Date on which judgment was
reserved : 28.11.13
h) Final Order : Acquitted
i) Date of decision : 28.11.13
Brief Statement and Reasons for Decision:
1. Accused is facing trial on the allegations that on 02.07.2005 at about 8:10 pm at GT Road, Near Petrol Pump, FIR No. 372/05 State v. Asgar Ali page no. 1 of 8 Seemapuri, Apsara Border, Delhi, he was found driving Bus No. UP14R2737 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving caused death of Ali Ahmed s/o late Sh. Abdul Majid. After conclusion of investigation chargeseheet was filed for the offence U/s 279/304 A. On appearance of the accused, accusations were explained and notice for the offence U/s 279/304A was served upon the accused to which the accused pleaded not guilty and claim trial.
2. In order to prove its case, the prosecution examined eight witnesses.
PW1 Mohd Jamil stated to have identified the dead body of his fatherin law vide memo Ex.PW1/A and dead body was handed over to him vide memo Ex. PW1/B. PW2 Saleem stated that on 02.07.2005 he alongwith his neighbour Ali Ahmed were going to Ghaziabad, UP. They boarded DTC bus at Seelampur and left the bus at Apsara Border for boarding another bus to Ghaziabad. Thereafter, he boarded the bus which was going to Ghaziabad and deceased was coming behind him. One Bus no. UP14R2737 came from behind and hit his neighbour (deceased) who fell down on the road. PW2 immediately came out of the bus to attend his neighbour who was lying injured on the road. Somebody FIR No. 372/05 State v. Asgar Ali page no. 2 of 8 called police and the injured was taken to the hospital. He came back to his house and informed the relatives of the injured and again back to the hospital alongwith the relatives. In the hospital they came to know that the injured had succumbed to his injuries. On the next day the body was sent for postmortem whereafter the dead body was handed over to them. He could not identify the driver of the offending bus as he has not seen the face of the driver. He came to know that the driver had fled away from the spot leaving the bus. He stated that he can identify the bus by its registration number. As the witness was resiling from his earlier statement, he was cross examined by Ld. APP for the State. PW2 further stated that the bus was driven in a negligent manner. But despite cross examination and his attention being drawn to the accused, PW2 denied to identify the accused or to have given any description of the accused to the police. During crossexamination he did not remember the bus number which he boarded to go to Ghaziabad. The incident occurred about fifty metres behind the bus which he had boarded to go to Ghaziabad. He did not inform the police about the accident. It is only after two hours of the accident on his reaching GTB hospital, that he told the police that he had seen the accident. His statement was recorded on the next day in the police station.
FIR No. 372/05 State v. Asgar Ali page no. 3 of 8 PW3 SI Pratap Singh stated that he was posted at North East, PCR Bakkar 5 and his duty was between 8:00 am to 8:00 pm. At about 8:20 a.m a call regarding accident at red light at Apsara Border was received. On reaching the spot, he found one bus UP 14 R 2737 and one unknown person was lying beneath the front right tyre of the bus. He took the injured to GTB Hospital and he stated that he can identify the bus as Ex. P1.
PW4 HC/DO Shashi Bhushan registered the FIR Ex. PW4/A and made endorsement on the rukka as Ex. PW4/B. PW5 Sh. Azhar Ali identified the dead body of his father vide memo Ex. PW5/A. PW6 Ct. Ratan Singh stated to have taken six photographs from different angles as Ex. P2 of the bus in question. He produced the negatives as Ex. P3. PW7 Sh. Tasnimuddin Sidiqui proved the mechnical inpsection report as Ex. PW7/A. PW8 HC Prahlad Singh went alongwith the IO and he corroborated the version of the prosecution about the occurance of the incident. On the spot bus in question was stationed and blood stains were also present at the front right side wheel of the bus. They were informed that the injured has already been taken to GTB hospital. IO left for GTB hospital and came back after collecting the MLC of the injured. IO inquired about the eyewitnesses of the accident but his FIR No. 372/05 State v. Asgar Ali page no. 4 of 8 efforts were in vain. Thereafter IO prepared rukka and PW8 went to the PS to get the FIR registered and came back. In the meantime, IO called the crime team and photographs of the spot and the offending vehicle were taken. IO prepared the Site plan and seized the bus vide seizure memo as Ex. PW8/A. On 03..07.2005, he again joined investigation with the IO. IO arrested the accused vide memo as Ex. PW8/B, conducted personal search vide memo Ex. PW8/C, seized the driving license of the accused vide memo Ex. PW8/D. He correctly identified the accused in the Court. During crossexamination he admitted that even though it being a public place but there was no eye witness available at the spot. He did not remember the name of the owner who produced the accused in the police station.
3. Perusal of the documents placed on record by the investigating officer shows that the owner of the vehicle is one Smt. Krishna Kumari. She has neither been cited as a witness nor her statement u/s. 161 Cr.P.C. was recorded by the IO to show that it was the accused who was driving the vehicle at the relevant time. As there was no witness to the identity of the accused and to his presence on the spot, hence it would have been futile exercise to examine the remaining witnesses who are either police witnesses or witnesses of formal nature. Therefore prosecution evidence was closed after FIR No. 372/05 State v. Asgar Ali page no. 5 of 8 stopping the proceedings u/s. 258 Cr.P.C. As no incriminating evidence against the accused was found from the version of the Pws, hence statement of accused was dispensed with. The matter was listed for final arguments.
4. I have heard Ld. APP for the State and Sh. Ashok Kumar Goyal, Ld. Counsel for the accused and perused the Court record.
It is cardinal principle of the criminal law that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the case of the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused. Prosecution is required to prove the following ingredients to establish the guilt of the accused U/s.279/304A IPC:
(i) The accused was driving his vehicle on a public way;
(ii) Death of any person must have been caused;
(iii) It must have been caused by rash or negligent act/driving of the accused; and
(iv) Such death must not amount to culpable homicide.
5. To impose criminal liability under these sections, it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the promixate cause without the intervention of another's negligence. It must be a causa FIR No. 372/05 State v. Asgar Ali page no. 6 of 8 causans and it is not enough that it may have been only a causa sine qua non. In order to prove its case prosecution has to establish the identity of the accused, the identity of the vehicle, the injuries caused to the victim due to the accident and the rash or negligent driving by the accused due to which the accident was caused.
6. In the case in hand, there is only one alleged eyewitness to the incident i.e. PW2 Saleem. The accused has not been identified by the said eye witness/PW2 Saleem. No other eye witness has been found/examined and the accused was not arrested from the spot but he was arrested on 03.07.2005. As per deposition of PW8, there was no eye witness found/examined by the IO on the spot even though the spot is a public road. Hence the identity of the accused has not been established beyond reasonable doubt. Even though PW8 identified the accused in the Court but he stated to have been arrested not from the spot but later on 03.07.2005 on his production in the police station by the owner. Now PW8 does not know the name of the owner. Neither the statement of the owner was recorded nor the owner has been cited as a witness in this case by the IO for reasons best known to him. Therefore, the identity of the accused, which was to be established beyond reasonable doubt has remained unproved.
7. If, for the sake of arguments, it is assumed to have been FIR No. 372/05 State v. Asgar Ali page no. 7 of 8 established that the death of the victim was caused in an accident by the vehicle in question which occurred on date, time and place as alleged by the prosecution, in that case also it cannot be conclusively inferred that the accident was committed by the accused, unless the identity of the perpetrator of the said offence is established beyond any reasonable doubt. The identity of the accused is most germane aspect of the criminal trial. In the present case, no witness has appeared in the Court to identify the accused as perpetrator of the present offence. Therefore, identity of the accused has not been established. Thus, there is not even an iota of incriminating evidence against the accused to substantiate the prosecution version. Hence, the prosecution has failed to discharge its onus of proving the culpability of the accused. Hence, the accused is entitled to benefit of doubt.
8. In the light of the above discussion, accused stands acquitted for the offences U/s. 279/304A IPC. Accused is directed to furnish bail bonds in compliance of Section 437A Cr.P.C. Accused submits that his earlier bail bonds be extended. In view of the submission made, earlier bail bonds of accused extended for 06 months. File be consigned to record room after due compliance.
Announced in the Open Court Susheel Bala Dagar
on this 28th day of November, 2013 Metropolitan Magistrate
Karkardooma Courts, Delhi
All pages signed.
FIR No. 372/05 State v. Asgar Ali page no. 8 of 8