Delhi District Court
State vs . Amir Khan on 10 January, 2013
State Vs. Amir Khan
IN THE COURT OF MS AANCHAL MM-8, (CENTRAL),
TIS HAZARI COURTS, DELHI.
In the matter of:
State
Vs.
Amir Khan
FIR No. 77/98
P.S. I.P. ESTATE
JUDGMENT
1. Sr. No. of the case : 712/2/99
2. Date of institution : 12.03.99
3. Name of the complainant : Sh. Jitender Kumar
4. Date of commission of offence : 28.02.98
5. Name of accused : Amir Khan
S/o Hussain
R/o C-394/6, Maha
Laxmi Enclave,
Karawal Nagar,
Delhi.
6. Offence complained of : 279/304 A IPC
7. Plea of guilt : Accused pleaded
not guilty
8. Date of reserving the Judgment : 27.09.12
9. Final order : Acquitted
10. Date of such Judgment : 10.01.13
Page 1 of 9
State Vs. Amir Khan
1 The present case arising out of FIR No.77/99 u/s. 279/304A IPC is
based on the allegations that on 28.02.98 at about 8.30 PM at BSZ Marg Near PyareLal Bhawan, Delhi within the jurisdiction of PS. I.P. Estate, the accused was driving bus bearing No. DL-1LPA-0854 rashly and negligently in such a manner so as to endanger human life and personal safety of others and struck against a pedestrian Veneet @ Jinkoo and caused his death which is not amounting to culpable homicide. After the investigation, charge-sheet was filed.
2. Provisions of S-207 Cr.P.C. were complied with and after hearing the arguments, notice of allegations for the commission of the offence punishable u/s- 279/304 A IPC was given to which the accused pleaded not guilty and claimed trial.
3. For proving its case, the prosecution produced following 10 witnesses:
(a)PW1 Jitender Kumar deposed that on 28.02.98 he along with his cousin Veneet was coming from finishing his work and at red light at ITO bus bearing no. DL-1-854 coming from the side of Mukherjee Nagar at very fast speed and struck against Veneet from the centre of the bus. He went to PCR official of PCR Van standing at distance of 20-30 Yards. Vineet was moved to JPN hospital. His statement (ExPW1/A) was recorded. He made call to Jai Prakash from PCO at ITO. Accused was identified on 01.03.98 at Page 2 of 9 State Vs. Amir Khan Police Station. This bus stopped at far distance when public persons raised voice and driver/accused ran away from spot. Bus no. DL1PA-0854 Vineet when he was crossing the road at BSZ Marg from ITO Pyare Lal Bhawan at about 8.30 Pm due to rash and negligent driving of accused and IO prepared site plan.
(b)PW2 Jai Prakash identified the body of deceased Vineet in Maulana Azad Medical College Mortuary vide statement (ExPW2/A).
(c) PW3 HC Pawan Kumar, was duty officer who recorded FIR No. 77/98 (ExPW3/A) in his own handwriting on the basis of rukka brought by Ct. Jitender sent by SI Sunil Kumar on 28.02.98.
(d)PW4 HC Ram Singh deposed that on 01.03.98, ASI Sunil Sharma gave notice u/s 133 M.V. Act to bus owner Pradeep on which he disclosed the name of accused as the driver of offending bus at the time of accident and IO arrested the accused on the identification of the complainant and personally searched him vide memo (ExPW4/A), seized DL of accused vide memo (ExPW4/B) and recorded his statement.
(e)PW5 SI Lajja Ram deposed that he was assigned Page 3 of 9 State Vs. Amir Khan investigation of the case. He collected post-mortem report and prepared challan and sent to the Court.
(f) PW6 Dr. Akash Jhanjhi deposed that he conducted post mortem on the dead body of deceased Vineet @ Chinku brought by SI Sunil Sharma and prepared detailed post mortem report (ExPW6/A).
(g)PW7 HC Virender Singh deposed that on 28.02.98 at about 8.30 PM on receipt of DD No.21A, he accompanied IO SI Sunil Sharma and found one dead body and blue line bus no. DL1PA0852 standing at some distance at ITO Red Light at the spot. One eye witness Jitender was also present near the dead body. IO recorded the statement of Jitender, prepared rukka, handed over the same him for registration of FIR and original rukka. IO seized the bus.
Dead body of deceased was taken to JPN mortuary on 01.03.98, the dead body was identified by relative of deceased and after post mortem, body was handed over to relative. This witness identified the bus as the offending bus as reflected in photographs (ExP1 to ExP5).
(h)PW8 Sh. Brahmanand deposed that on 01.03.98, he had identified the dead body of his nephew Vinod @ Tinku vide identification memo (ExPW2/A).
(i) PW9 Pradeep Kumar deposed that he was registered Page 4 of 9 State Vs. Amir Khan owner of bus bearing no. DL1PA-0854, he replied notice u/s 133 M.V Act in which he stated that on 28.02.98, the above-said vehicle was driven by the accused. He also deposed that he released the vehicle on superdari (ExPW9/B).
(j) PW10 Inpr. Sunil Kumar deposed that he along with Ct. Virender reached at spot on receipt of DD No.21A regarding accident at BSZ Marg Near Pyare Lal Bhawan, and found one dead body was lying there and one bus no. DL1PA-0854 was also present there and he recorded the statement of one Jitender Kumar Kashyap, who was cousin of deceased (ExPW1/A).He prepared rukka(ExPW10/A), got the FIR registered through Ct. Virender, prepared site plan(ExPW10/B), took possession of bus, copy of which is available on police file Mark X2 and prepared inquest documents (ExPW10/C), recorded statement of witnesses (ExPW2/A) and (ExPW10/D), deposited the case property into Malkahana, notice u/s 133 MV Act(ExPW10/E) was served upon Sh. Pradeep Matta owner of the bus, received reply(ExPW9/A), arrest and personal search of the accused vide memo (ExPW5/C) and (ExPW9/D), seized DL of accused, released the accused on personal bond, got medical inspection of vehicles, release the tempo of superdar, prepared inquest papers(ExPW9/E), got conducted Post-
Page 5 of 9State Vs. Amir Khan mortem and collected post mortem report and after charge sheet was filed in the Court.
4. Statement of accused u/s 313 Cr.P.C is recorded and the accused did not lead evidence in defence.
5. Arguments heard and record is perused carefully.
6. The prosecution proposed that PW1 had seen the accused driving the offending bus. PW1 has admitted the suggestion made by Ld. APP that it was at about 08.30 pm. During his examination, he deposed that driver had run away from the spot after getting down from the bus and he went to the police station on 01.03.98 where he had identified the accused. He admitted the suggestion that police called at police station on 01.03.98 and had shown the accused to him. It is the admitted case of prosecution that the driver of offending bus was not found at the spot after the accident and the bus was lying near the spot in abandoned condition. PW9 registered owner of bus who replied to the notice u/s 133 M.V Act that accused was driving the bus on 28.02.98, does not maintain any register regarding his employees. He stated that he had employed two drivers on his bus. Those drivers used to drive the bus for the period of 15 days in each month. The accused has taken a consistent stand in the trial that he was not driving the offending bus at the relevant time. The question arises whether the prosecution has proved that the offending bus was being driven by the accused and none else. It was admittedly the time of night. Site Page 6 of 9 State Vs. Amir Khan plan is not reflecting any of the street light available near the spot. PW2 had deposed that he was ahead of deceased. Whole of the record and investigation is unable to reveal what was the distance between PW1 and deceased when the offending vehicle hit the deceased. Whether there was sufficient light which could enable one to see the face of driver? Whether the accident occurred when PW2 was facing deceased or it occurred when PW2 had his back towards deceased? Reasonably it cannot be expected that the front light of the vehicle would not be on at 08.30 pm and those lights would not be affecting one's clear vision. What was the reason that PW2 happened to visit the PS at a time when owner produced the accused as driver? Why was TIP of accused not preferred to be conducted? Whether any investigation was carried to procure the document from registered owner to substantiate that accused was driving the offending vehicle at the relevant time? It is admitted by PW2 that driver stopped the offending bus about at a far distance from the spot i.e at ITO Red Light. The photographs placed on record are depicting nothing. Neither the number of bus, nor the place where the bus is found sopped, nor is the distance between the place of hit and the place where bus was stopped, nor any damage or any mark of accident/hit is reflected. The PW1 had no chance to interact with the driver. From the available evidence on record, there is no doubt that PW2 could at maximum have only a glimpse of driver and he had no chance to interact with the driver, which is unable to establish the identity of accused as driver of offending vehicle beyond reasonable doubt. In Sadhu Singh V/s Page 7 of 9 State Vs. Amir Khan State of Punjab, 1997 (3) Crimes 55, Hon'ble Punjab & Haryana High Court observed as under:-
'' 5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused''.
Further Hon'ble Apex Court has observed in Mousam Singha Roy v. State of West Bengal, (2003) 12 SCC 377:
"the law does not permit the courts to punish the accused on the basis of moral conviction or on suspicion alone. The burden of proof in a 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."
7. PW1 deposed nothing about to infer the factum of rashness or negligence but the fact that the bus was being driven with fast speed. No other evidence is produced which could justify invocation of principle of res ipsa loquitor in the present case. Even otherwise such exception is not pleaded at all. In the case of State of Karnataka v. Satish 1998 SCC (CRI) 1508, Hon'ble Supreme Court has held that driving at a high-speed by itself does not imply negligence or rashness. Merely because the truck was being driven Page 8 of 9 State Vs. Amir Khan at a "high-speed" does not bespeak of either "negligence" or "rashness" by itself. None of the prosecution witness suggested, even approximately, as to what they meant by "very fast speed"
which is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "very fast speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved.
8. It is admitted case of the prosecution that there had been a foot- over bridge near the bus stand and underpass was also available. Railling of height of about 5 feets approximately was available over the middle divider. These facts presents that the deceased had taken the risk to cross the road from a point which was not meant for same. Accordingly, the contributing negligence of deceased cannot be overruled.
9. Therefore the accused is entitled for the benefit of doubts and the accused Amir Khan s/o Hussain is hereby acquitted for the offence punishable u/s 279/304A IPC. PB and SB shall stand discharged on the expiry of six months in compliance of section-437 A Cr.PC.
Announced in the open court (Aanchal)
Today 10.01.13 MM-08 (Central)/Delhi
10.01.2013
Page 9 of 9
State Vs. Amir Khan
FIR No. 77/1998
P.S. I.P. ESTATE
10.01.2013
Present: Ld. APP for the State.
Accused in person .
Vide separate judgment of even date, the accused Amir Khan s/o Hussain is hereby acquitted for the offence punishable u/s 279/304A IPC. PB and SB shall stand discharged on the expiry of six months in compliance of section-437 A Cr.PC.
Superdarinama stands canceled.
Copy of this Order and Judgment be given to Ld APP free of cost as requested.
File be consigned to record room.
(Aanchal) MM-08 (Central)/Delhi 10.01.2013 Page 10 of 9