Delhi District Court
State vs . Vijay on 14 February, 2011
IN THE COURT OF SH. M. P. SINGH: METROPOLITAN
MAGISTRATE-02/WEST DELHI
STATE Vs. Vijay
FIR No. : 469/04
U/SEC : 279/304-A IPC
PS : Hari Nagar
Unique Case ID No.: 02401R1306812005
JUDGMENT
Serial no. of the case 737/II/05 Date of commission of offence '07.08.2004 Date of institution of the case '06.07.2005 Name of the complainant SI Desh Raj
Name of accused, parentage &Vijay s/o Bhagwan Dass r/o E-126, Om address Vihar, Phase-V, Uttam Nagar Delhi Offence complained of or proved Sections 279/304-A IPC Plea of the accused Pleaded not guilty Date of arguments '05.02.2011 Final order Acquitted Date of Judgment 14.02.2011
1. The case of the prosecution is as follows: On 07.08.2004 SI Desh Raj of Police station Hari Nagar received an information about road traffic accident vide DD No. 33A. He thereafter alongwith Ct. Mahender proceeded to the DDU Hospital at about 10:45 PM. The accident had taken place on the Ghanta Ghar Road between the maruti car number DBC7 belonging to the accused and the scooter of the deceased. The deceased was taken to the DDU Hospital by one Lalit Kumar s/o Ram Prakash. At the DDU Hospital the IO could not obtain the statement of the victim as he was declared unfit for statement. The IO SI Desh Raj alongwith Ct. Mahender reached the spot of the accident. Over there the offending vehicle DBC7 and the scooter number DL7SF0530 belonging to the deceased were found. Rukka was prepared and the FIR was registered. Later on it came to be revealed that the victim had passed away. Section 304-A IPC was added. Both the vehicles were seized and were deposited in the malkhana of police station Hari Nagar. Post mortem of the deceased Harinder was conducted and thereafter his dead body was handed over to his relatives. Both the vehicles were mechanically inspected. On 09.08.2004 the eye witness Mahender Pal Singh went to the police station Hari Nagar. The IO thereafter took the eye witness to the spot the incident and prepared the site plan and recorded his statement. The IO thereafter served a notice under section 133 MV Act upon the owner of the vehicle DBC7. The owner of the offending vehicle DBC7 was the accused himself. The accused replied to this notice and stated that he was driving the vehicle on the date, time and place of the incident. The accused thereafter was arrested. On completion of investigation chargesheet was filed against the accused on 06.07.2005.
2. Copies were supplied to the accused. And subsequent to the compliance with the provision of Section 207 of CrPC, notice for the offences punishable under sections 279/304-A IPC was served upon the accused on 24.05.2006 to which the accused pleaded not guilty and claimed trial.
3. After framing of notice, the matter was posted for prosecution evidence. During the course of prosecution evidence, the prosecution got examined six witnesses. Thereafter, the statement of the accused under section 313 Cr.P.C. was recorded on 05.02.2011 wherein the accused stated that he had been falsely implicated and that he was innocent. The accused opted not to lead defence evidence.
4. The six prosecution witnesses that were examined during the course of the trial are as follows:
I. PW1 Mahender Pal Singh, the eye witness II. PW2 HC Yogesh, Duty Officer who exhibited on record the FIR Ex. PW2/A. III.PW3 ASI Tech. Devender who had mechanically inspected both the vehicle vide mechanical inspection reports Ex. PW3/A and Ex. PW3/B IV. PW4 Dr. P.R. Narayan from Shri Ganga Ram Hospital. He had medically examined the victim and had declared him brought dead. He exhibited the death summary report of the deceased Harinder Singh Ex. PW4/A. V. PW5 SI Desh Raj, the IO of this case.
VI.PW6 Dr. B.N. Mishra the Medical Officer from Department of Forensic Medicine DDU Hospital who proved and exhibited on record the post mortem report of the deceased Ex. PW6/A.
6. I have heard the rival submissions at Bar and have gone through the records of this case.
7. The very first question that is to be determined is whether the accused was driving the offending vehicle maurti car number DBC7 on the date, time and place of the alleged incident or not. The accused has taken the defence that he was not at all driving his vehicle on the date, time and place of the incident. In this connection, it is to be noted that the only eye witness to the alleged incident PW1 Mahender Pal Singh has not at all supported the prosecution case on the point of identity of the accused. In his oral testimony before the court PW1 Mahender Pal Singh stated that although the accident was caused by a car, but he could not tell the registration number and the make of the same. PW1 Mahender Pal Singh could not also identify the person who was driving the car in question. Therefore, the testimony of PW1 Mahender Pal Singh on the aspect of identity of the accused is of no assistance at all to the prosecution.
8. Aside from the testimony of eye witness PW1 Mahender Pal Singh, the presence of the accused at the spot of the accident was sought to be established by the prosecution on the basis of the reply to the notice served by the IO PW5 SI Desh Raj under section 133 MV Act. This document is Ex. PW5/I. This document assumes importance for the reason that it is on the basis of this piece of evidence only that the prosecution may possibly establish the presence of the accused. The reply to the notice under section 133 MV Act was given by none else but the accused himself for the reason that the accused himself was the owner of the offending vehicle DBC7. It was the argument of the defence that the document Ex. PW5/I is strictly barred from being received in evidence as the same is in conflict with section 25 of the Indian Evidence Act. It was further the argument of the defence that the statement made by the accused in document Ex. PW5/I having been made to a police officer tantamounts to a confession and therefore the court cannot admit the same into evidence. Ld. APP for the State vehemently opposed this submission.
9. Section 25 of the Indian Evidence Act mandates that a statement in the nature of a confession made to a police officer by a persons accused of any offence shall not be proved as against him. Therefore, for section 25 of the Indian Evidence Act to come into play, it is essential that the persons must have been accused of an offence; secondly, the statement must be in the nature of confession and thirdly, that such confession statement must have been made to a police officer. Insofar as the fact that the statement on the document Ex. PW5/I was made to the police officer namely PW5 SI Desh Raj by the accused Vijay is concerned;
there is absolutely no doubt. However, what is required to be determined is whether the statement which was given by the accused in reply to the notice of the IO under section 133 MV Act is confession or not. Before proceedings further, it would be appropriate to take a look at the statement of the accused to the notice under section 133 MV Act. It was replied by the accused, "I Vijay s/o Bhagwan Dass r/o E-126, Phase-V Om Vihar, Delhi was driving car number DBC7 on 07.08.2004 at about 10:00 PM at night and I had struck against scooter DL7SF0530 near DTC Colony Ghanta Ghar Road, due to which the scooterist sustained injuries. At the time of the accident I was driving car number DBC7."
10.It is now well settled that a statement in order to amount to a "confession" must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of an incriminating fact, however grave, is not by itself a confession. A statement which contains an exculpatory assertion of some fact, which if true, would negative the offence alleged cannot amount to a "confession" (Pakala Narayana Vs. Emperor AIR 1939 Privy Council 47).
11.A perusal of the statement made by the accused on document Ex. PW5/I (which is reply to the notice under section 133 MV Act) reveals that the accused admits to the fact that he was driving the offending vehicle on the date, time and place of the accident; he also admits that the accident was caused by his vehicle. The incriminating facts admitted in this statement, do not, even if taken cumulatively amount to admission of all the facts which constitute the offence under section 279/304-A IPC. To bring home the offence under section 279/304-A IPC, in addition to the fact admitted in Ex. PW5/I, it has to be established that the offending vehicle was being driven rashly and negligently and further that the deceased passed away on account of such rash and negligent act. The element of rashness and negligence on the part of the accused and the passing away of the deceased due to such alleged rashness and negligence is missing in the statement Ex. PW5/I. For these reasons, it could be said beyond doubt, that the statement Ex.PW5/I given by the accused to the IO SI Desh Raj in response to the notice under section 133 MV Act does not amount to a confession within the meaning of section 25 of the Indian Evidence Act. It bears repetition to state that admission of incriminating fact howsoever grave cannot by itself tantamount to a confession in terms of the judgment of Privy Council in the abovementioned case.
12.In addition to the above, for section 25 of Indian Evidence Act to come into play it has to be shown that the confession was made by a "person accused of an offence". The expression "person accused of an offence" was elaborated upon in the case reported as R.C. Mehta Vs. State of West Bengal AIR 1970 SC 940. It was observed in this context by the Apex Court, "normally a person stands in the character of an accused when a first information report is lodged against him in respect of an offence before an officer competent to investigate, or when a complaint is made relating to the commission of an offence before a Magistrate competent to try or send to another Magistrate for trial of the offence." This observation was quoted with approval in the case reported as Veera Ibrahim Vs. State of Maharashtra AIR 1976 SC 1167. In the light of these principles, it is clear that when the statement of the accused was taken by the IO under section 133 MV Act the accused was not a person "accused of any offence" under sections 279/304-A IPC. FIR had been registered but it is important to bear in mind that the same was not registered against him. An accusation which would stamp him with the character of such a person was levelled only after he had given the reply under section 133 MV Act and not before. Therefore, it cannot be said that accused Vijay was a person accused of an offence under section 279/304-A IPC at the time when he had replied to the notice under section 133 MV Act. Therefore, in view of the foregoing discussion it is crystal clear that the statement of the accused given by him under section 133 MV Act is not a "confession" within section 25 of the Indian Evidence Act and same is admissible in evidence. Therefore, on the basis of document Ex. PW5/I, it is clear that it was none else but the accused who was driving the offending vehicle DBC7 on the date, time and place of the incident.
13.Having established that it was none else but the accused who was driving the offending Maruti Car number DBC7 on the date, time and place of the incident, the next question that is required to be determined is whether the Maruti Car number DBC7 that was being driven by the accused on the date, time and place in question had caused the accident or not. Or, to put it in another words the present issue is whether the offending Maruti Car number DBC7 was involved in the accident on the date, time and place of the incident or not. The accused has disputed this fact. In his statement under section 313 CrPC the accused stated that his vehicle was never involved in the accident. Ld. APP for the State in this regard relied upon the testimonies of PW1 Mahender Pal Singh and PW3 ASI Tech. Devender Kumar. Ld. APP for the State argued that although PW1 Mahender Pal Singh did not depose in favour of the prosecution on the point of identity of the accused; yet he did depose that the car which was being driven on the date, time and place of the accident had hit against the scooter of the victim. Ld. APP for the State argued that it is a settled law that testimony of a hostile witness can be admitted to the extent his deposition inspires the confidence of the court. Certainly, no exception can be taken to this well settled legal proposition. PW1 the eye witness Mahender Pal Singh in his evidence has stated that the vehicle involved in the accident was a car. PW3 ASI Tech. Devender in his evidence stated that on 08.08.2004 he had mechanically inspected the maruti car DBC7 and found fresh damages on the same. It has entirely gone unexplained by the defence as to how fresh damages were found in the maruti car DBC7 in the mechanical inspection that was conducted soon after the accident. PW3 ASI Tech. Devender was not cross examined by the defence as such his testimony remained unrebutted. Further, in terms of section 106 of the Indian Evidence Act, where a fact is within the knowledge of any person, the burden of proving the same is upon him. It was therefore for the accused to have established on record the circumstances under which the vehicle was found to be having fresh damages soon after the accident, if at all his vehicle was not involved in the accident. Further, besides putting a stray suggestion to the IO that he (the IO SI Desh Raj) himself had taken the vehicle and caused damage to the same, nothing concrete has been brought forth on record to establish that the vehicle of the accused was damaged on account of any other incident independent of the accident. Still further, in his statement under section 133 MV Act vide document Ex. PW5/I the accused does admit that his vehicle was involved in the accident and had struck against the scooterist of the Bajaj Scooter DL7SF0530. On the basis of evidence led on this point, I am convinced that it was the vehicle, Maruti car DBC7, which was being driven by the accused, that had hit against the scooter of the deceased on the date, time and place of the accident.
14.After having established that the accused was driving the offending vehicle DBC7 on the date, time and place of the incident and was involved in the accident; what remains to be decided is whether the accused had acted rashly and negligently in causing the accident. In this regard the testimonies of PW1 Mahender Singh who was the eye witness would be relevant. It is no doubt true that PW1 Mahender stated that the accident was caused due to very fast speed and also in a very rash and negligent manner of the driver of the said offending car. There is no other eye witness to the incident. Taking into account the testimony of PW1 Mahender Pal Singh and the other material on record, it is my view that the prosecution has not been able to establish the element of rashness and negligence on the part of the accused beyond reasonable doubt. This is for the following reasons. It has merely come in the testimony of PW1 Mahender Pal Singh that the accused was driving his vehicle at a very fast speed and in a rash and negligent manner. Fast speed by itself is not by itself a determinative factor for determining the rashness and negligence. There are number of decisions on this aspect. For reference the decision of the Apex Court in State of Karnataka Vs Satish 1998 SCC (Cri) 1508 can be relied upon. Fast speed is by itself a very-very relative term. In a very crowded street depending upon the situation a fast speed of a vehicle may be in the range of 30-40 kmph while it may not be so on a highway. Secondly, merely for an eye witness to state that the vehicle was being driven rashly and negligently would not suffice. The eye witness must state the precise mode and manner in which the vehicle was being driven rashly and negligently. He must state whether the offending vehicle had hit from the back or from the front or from the side ways or whether it was a head on collision. He must also state the point and the angle of collision of the two vehicles. In short, the witness should state about the entire circumstances under which the accident was caused which according to him was rash and negligent.
The witness has to state precisely as to what does he mean by rash and negligent act. Merely to state that the accused was rash and negligent is of no consequence at all. The prosecution cannot bring home the guilt of the accused merely on the basis that the phrase "rash and negligent" has found mentioned in the testimony of the eye witness. Rather than pointing out to the mere mention of the phrase "rash and negligent", the prosecution must positively bring on record the circumstances which make the act of the accused rash and negligent act. At the cost of repetition it has to be said that mere mention of the phrase "rash and negligent act" in the testimony of eye witness is no positive proof beyond reasonable doubt of the alleged rashness and negligence on the part of the accused. The prosecution has miserably failed to establish the aspect of rashness and negligence on the part of the accused.
15.Therefore, in view of the foregoing discussion the prosecution has failed to establish its case beyond reasonable doubt against the accused. The accused Vijay is acquitted of the offences under sections 279/304-A IPC.
ANNOUNCED IN THE OPEN COURT M. P. SINGH
th
ON 14 February, 2011 METROPOLITAN MAGISTRATE
DELHI