Delhi District Court
State vs . Paramjeet Singh & Ors. on 23 March, 2021
IN THE COURT OF SH. ABHINAV PANDEY, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. PARAMJEET SINGH & ORS.
FIR NO. 109/11
PS: MOTI NAGAR
U/S: 279/337/338 IPC & 177 OF M.V. ACT & 323/325/34 IPC
JUDGMENT
Case no. : 60204/2016
Date of commission of offence : 23.04.2011
Date of institution of the case/filing : 24.09.2011
of charge sheet.
Name of the complainant : Sh. Gurcharan Kumar
Name of accused and address : (I) Paramjeet Singh S/o Sh.
Ranjeet Singh, R/o: H. No.
I-437, Karampura, Moti
Nagar, Delhi.
(ii) Bhagat Singh S/o Late
Sh. Surjeet Singh, r/o H.
No. I-437, Karampura, Moti
Nagar, Delhi.
(III) Balwant Singh S/o Late
Sh. Surjeet Singh, r/o H.
No. I-437, Karampura, Moti
Nagar, Delhi.
(IV) Gurmail Singh S/o Late
Sh. Surjeet Singh, r/o H.
No. I-437, Karampura, Moti
Nagar, Delhi.
Offences alleged by the prosecution : U/s 279/337/338/304-A IPC &
177 of M.V. Act & 323/325/34
FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 1
of IPC.
Plea of the accused : Pleaded not guilty
Final Order : Acquitted of all charges.
Date on which reserved for judgment : 06.03.2021
Date of announcing of judgment : 23.03.2021
************************************************************************************
1. BRIEF FACTUAL POSITION:
1.1 This is the prosecution of accused persons namely Paramjeet Singh, Bhagat Singh, Balwant Singh and Gurmail Singh pursuant to charge sheet filed by PS Nangloi alleging commission of offences U/s 323/325/34 IPC and offences u/s 279/337/338/304-A IPC, and u/s 177 of M.V. Act with respect to accused persons, subsequent to the investigation carried out by the police in FIR No.109/11.
1.2 As per the prosecution, on 23.04.2011 at about 06.30 pm in front of H. No. 217, I Block, Karampura, Moti Nagar, Delhi, accused Paramjeet Singh was driving vehicle bearing registration No. DL-1K-0134 on the public way in a very rash and negligent manner. While driving so, he hit against one motorcycle bearing registration no.DL-7BC-2553 and caused simple injuries to complainant Sh. Gurucharan and also caused grievous injuries to complainant Sh. Gurucharan (as it is doubtful whether the victim received simple injuries in the accident and grievous injuries due to the beatings followed by the accident or vice versa), and while driving the aforementioned vehicle, accused Paramjeet Singh did not carry badge duly issued by the transport authority. It is further alleged in the present FIR that thereafter, accused Paramjeet Singh alongwith his associates Bhagat Singh, Balwant Singh and Guramail Singh, in furtherance of their common intention, voluntarily caused simple hurt to complainant /victim FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 2 Sh. Gurucharan and also caused grievous injuries to complainant Sh.
Gurucharan and committed the offences punishable u/s 323/325/34 IPC. Accordingly, after the investigation, police filed the present charge sheet against the accused persons for commission of offences punishable u/s 279/337/338 IPC & 177 of M.V. Act, and u/s 323/325/34 IPC.
1.3 Complete set of charge sheet and other documents were supplied to the accused persons. After hearing arguments, notice u/s 251 for offence punishable under section 279/337/338 IPC & u/s 177 of M.V. Act was served upon the accused Paramjeet Singh to which he pleaded not guilty and claimed trial, and charges for offences u/s 323/325/34 IPC were framed against the accused persons Paramjeet Singh, Bhagat Singh, Balwant Singh and Gurmail Singh to which they pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution in support of present case has examined 10 witnesses in total.
S. No. Name of Prosecution Documents Dates of Dates of cross witnesses. Exhibited in examinatio examination.
Evidence. n in chief.
PW1 Sh. Gurcharan Kumar (I) Complaint Ex. 27.01.2016 27.01.2016
PW1/A;
(II) Site plan Ex.
PW1/B
(III) Arrest memo
and personal
search memo of
accused Balwant
Singh Ex. PW1/C
and Ex. PW1/D
respectively;
(IV) Arrest memo
and personal
search memo of
FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 3
accused Bhagat
Singh Singh Ex.
PW1/E and Ex.
PW1/F
respectively;
(V) Arrest memo
and personal
search memo of
accused Gurmail
Singh Ex. PW1/G
and Ex. PW1/H
respectively;
PW2 Sh. Gurmeet Kumar (I)Arrest memo 22.03.2016 22.03.2016.
and personal
search memo of
accused Paramjeet
Singh Singh Ex.
PW2/A and Ex.
PW2/B
respectively;
PW5 HC Hukum Chand (I) Recording of 06.08.2016 06.08.2016
information of the
incident in
Roznamcha
register at serial
no. 11 B vide Ex.
PW5/A.
PW7 SI Rameshwar (I) Copy of FIR 08.12.2016. 08.12.2016.
Ex. PW7/A & (II) Endorsement on the tehrir Ex.
PW7/B.
PW8 SI Kamal Kohli (IO) (I) Application to 24.02.2018 04.01.2019
doctor regarding &
recording of 04.01.2019
statement to
complainant Ex.
PW8/A;
(II) Rukka Ex.
PW8/B;
(III) Notice u/s
133 M.V. Act Ex.
PW8/C;
FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 4
(IV) Seizure
memo of
offending vehicle
Ex. PW8/D;
(V) Seizure memo
of DL, insurance,
RC Ex. PW8/E
and Ex. PW8/F
respectively.
(VI) Seizure
memo of vehicle
belonging to
complainant Ex.
PW8/G.
(VI) Identity of
vehicle bearing
no. D7SBC2553
as Ex. P1.
Since the accused had admitted the genuineness of the mechanical inspection report in terms of Section 294 Cr.P.C., therefore HC Dilbagh Singh was dropped from the list of witnesses and accordingly, on 24.10.2019, PE was closed.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 Statement of accused persons were recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to them, to which they pleaded innocence, and stated that they have been falsely implicated in the present matter, and no offence was committed by them. Accused persons opted not to lead defence evidence.
4. ARGUMENTS:
4.1 Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offences U/s 279, 337, 338 IPC and U/s FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 5 177 of M.V. Act are proved beyond reasonable doubt against accused Paramjeet Singh, and offences u/s 323/325/34 IPC are proved beyond reasonable doubt againt all the accused persons.
4.2 On the other hand, Ld. counsel for defence has argued that there is no legally admissible evidence against the accused persons. It is argued that the negligence on the part of the accused in driving the offending vehicle or assault upon the complainant pursuant to common intention of accused persons could not be proved on record. It is further argued that the prosecution has failed to prove the guilt of accused persons beyond reasonable doubt due to tainted testimony of PWs, hence accused persons are entitled to be acquitted.
5. BRIEF STATEMENT OR THE REASONS FOR DECISION:-
5.1 Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record have been perused carefully.
5.2 I have bestowed my thoughtful consideration to the rival submissions made before me. Accused persons are indicted for the offences U/s 279/337/338 IPC and 323/325/34 IPC .
5.3 Under Section 101 of the Indian Evidence Act, the burden of proving the guilt of the accused is upon the prosecution, and the same has to be proved by the prosecution beyond reasonable doubt. While it is necessary that proof beyond reasonable doubt should be adduced in all criminal cases, it is not necessary that it should be perfect. If a case is proved too perfectly, it is argued that it is artificial, if a case has some flaws, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 6 punished, many guilty men must be callously allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot be let away with it, merely because the truth suffers some infirmity, when projected through human processes. Judicial quest for perfect proof often accounts for police presentation of fool-proof concoction. Why take up? Because the Court asks for manufacture to make truth look true? No, we must be realistic. Theoretical possibilities may not shake up, fanciful weakness may not defeat, when verdicts are rested on the sure foundations. Stray chances of innocence haunting the corridors of the court cannot topple concurrent findings of guilt. [(Inder Singh vs. State of Delhi (AIR 1978 SC 1091)].
In State of Madhya Pardesh Vs. Dharkole @ Govind Singh & Ors (2004 13 SCC 208), Hon'ble Supreme Court has held that doubts would be called reasonable if they are free from a zest of abstract speculation, and that reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. "Reasonable Doubt' must grow out of evidence in the case or from the lack of it, as opposed to mere vague apprehension. In Shivaji Sahabrao Bobde & Ors. Vs. State of Maharashtra (AIR 1973 SC 2622), Hon'ble Supreme Court has held that the cherished principle or golden thread of proof beyond reasonable doubt, which runs through the web of our law, should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solitude reflected in the attitude that a thousand guilty men may go, but one innocent martyr should not suffer, is a false dilemma. Only reasonable doubts belong to the accused. Otherwise, any practical system of justice would then break down and lose its credibility. The evil of acquitting a guilty person light heartedly as a learned author (Granville in proof of guilt) has saliently observed, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittal become general, they tend to lead to a cynical disregard of the law, and this, in turn, leads to a public demand for harsher legal presumptions against indicated 'persons', and more severe punishment of those found guilty. Thus, too frequent FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 7 acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. Thus, it has been emphasized time and again by Hon'ble Supreme Court and Hon'ble High Court of Delhi that the miscarriage of justice may arise from the acquittal of the guilty, no less than from the conviction of the innocent and our judicial enthusiasm for presumed innocence must be moderated by the pragmatic need to make our criminal justice system potent and realistic.
5.4 In the present case, it is doubtful whether the victim received simple injuries in the accident and grievous injuries due to the beatings followed by the accident or vice versa but it is an undisputed fact that the accident happened first and the quarrel and beatings followed the same. Accordingly, this Court proceeds to see first whether the offences u/s 279/337 or 279/338 IPC are made out against the accused Paramjeet Singh. To determine the same, the prosecution has to establish that;
(i) Maruti van bearing registration no. DL-1K-0134 is the offending vehicle and accused Paramjeet Singh was driving the offending vehicle at the relevant point of time when the incident happened.
(ii) Accused Paramjeet Singh was driving the vehicle as aforesaid in a rash and negligent manner so as to endanger human life and personal safety of others.
(iii) The complainant/ victim suffered simple and grievous injuries as a result of being hit by the aforesaid offending vehicle, being driven in the aforesaid manner.
Charges u/s 279/337/338 of IPC have been framed against the accused Paramjeet Singh only as it is an admitted fact that the remaining accused persons came to the spot only after the incident.
While the first ingredient needs to be established beyond reasonable doubt with the aid of eye -witnesses and circumstantial evidence, the third ingredient is self-explanatory and the fourth ingredient FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 8 needs to be proved by medical evidence, it is the second ingredient which requires inter-pretation and explanation.
The second requirement for proving the guilt of the accused is that the death or grievous hurt had been caused as the accused was driving the vehicle in a rash and negligent manner. It has been held in Bhala Chand Waman Rao Pathe Vs. State of Maharashtra SC 1964, there is a difference between a rash act and a negligent act. Criminal negligence is the gross and culpable, neglect or failure to exercise with reasonable and proper care and to guard against injury, either to the public generally, or to an individual in a particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. On the other hand culpable rashness is acting with the consciousness that the mischievous effect will follow, but in circumstances which show that the actor has exercised the caution incumbent upon him and if he had exercised caution, he would have had the consciousness and illegal consequences may follow, but in a vain hope that they will not, and often, with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence, on the other hand, is acting without the consciousness that illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had exercised caution, he would have had the consciousness. The immutability arises from the neglect of the civic duty of circumspection.
It has been held by Hon'ble Supreme Court of India in Ratna Shalvam Vs. State of Karnataka 2007 3 SCC 474 that Section 304 A of IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. This provision is directed at offences outside the range of Section 299 and 300 of IPC. The provision applies only to such acts which are rash and FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 9 negligent and are the direct cause of death of another person. Negligence and rashness are essential elements U/s 338 IPC. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case.
5.5 As far as identification of the accused as the driver of the vehicle at the relevant point of time is concerned, PW-1 Gurcharan Kumar, eye witness has stated in his examination in chief that on 23.04.2011 at about 06.30 am, he was going on motorcycle bearing registration no. DL-7SBC-2553 which was being driven by him and his brother Gurmeet Kumar was the pillion rider. He has further stated that when they reached house no. I-217, Karam Pura, one Maruti Van bearing registration no. DL-1K-0134 came from the left side being driven in a rash and negligent manner, and hit against his motorcycle due to which the witness and his brother Gurmeet Kumar fell down on the road. He has further stated that he, alongwith his brother Gurmeet Kumar went near the Maruti Van and confronted the driver, who tried to run away from the spot. The defence counsel has not confronted or contradicted PW-1 in his cross-examination to the effect that the accused Paramjeet Singh was not the person who driving the vehicle at the relevant point of time. PW-2 Gurmeet Kumar has stated in his examination in chief that on 23.04.2011 at about 06.30 am, when he alongwith his brother Gurcharan Kumar were passing through the house no. I-217 on their motorcycle, a school van bearing no. DL-1K-0134 came in a very high speed and hit against them, due to which they fell down and sustained injuries. He has further stated that the offending vehicle was being driven by the accused Paramjeet Singh. This witness identified the accused in the Court. The witness has further stated that the police had arrested the accused Paramjeet Singh in his presence vide arrest memo Ex. PW 2/A and his search was conducted vide personal search memo Ex. PW2/B. The witness has not been contradicted in his cross-examination about the offending vehicle being FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 10 any vehicle other than Maruti Van bearing registration no. DL-1K-0134 or the driver of the offending vehicle being any person other than accused Paramjeet Singh. FIR bearing the name of the accused and the registration number of the vehicle has been proved by PW-7 as Ex. PW7/A. PW-8 IO SI Kamal Kohli has proved the statement of complainant as Ex. PW8/A, notice u/s 133 of M.V. Act as Ex. PW8/C, seizure memo Ex. PW8/D, Ex. PW8/E and and Ex. PW8/F. PW-8 has also testified about signing the arrest memo and personal search memo Ex. PW2/A and Ex. PW2/B pertaining to accused Paramjeet Singh. Vide statement at Bar dated 24.10.2011, ld. counsel for the accused persons had admitted the genuineness of the mechanical inspection report and the same has been exhibited as Ex. P1. In his examination-in-chief u/s 313 Cr.P.C, accused Paramjeet Singh has not specifically stated that he was driving the vehicle at the relevant point of time, but he has impliedly admitted the same as he has stated that the complainant in the present case himself fell down on the road when he was driving the motorcycle at a high speed, due to which he could not manage the balance of the same. Therefore, on the basis of evidence on record, the identity of the offending vehicle as Maruti Van bearing registration no. DL-1K-0134 and identity of the accused Paramjeet Singh as driver of the offending vehicle at the relevant point of time stands established, beyond reasonable doubt.
5.6 Rash and negligent driving resulting into injuries to the victim.
PW-1 Sh. Gurucharan Kumar has stated in his examination in chief that offending vehicle Maruti Van bearing registration no. DL-1K- 0134 came from the left side, being driven in rash and negligent manner, but has not explained as to how the driving of the accused was rash and negligent. It has been held by the Hon'ble High Court of Delhi in Kishore Chand Joshi Vs. State (2018 SCC online Del 12337) that a witness can no doubt, depose as to the manner of driving or speed of the vehicle, however he cannot render an 'opinion' as to rashness and negligence. This is because rashness and negligence is an opinion which FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 11 may vary from person to person, depending upon the perception of an individual. Speed alone is not the criterion for deciding the rashness or negligence or part of the driver.
Further, no skid marks or tyre marks have been obtained of the spot to indicate that the vehicle was being driven at a high speed. [Ram chander vs. State {2017} 4 SCC 2676 and Abdul Suhham Vs. State (NCT of Delhi) 133 2006 DL 562 also referred to ].
In his cross-examination PW-1 has admitted that he has seen the offending vehicle which came from the left side. He has further stated that he fell on the road on the left side and that the offending vehicle hit his motorcycle from its driver side i.e. the right side. As per the site plan Ex. PW1/B as well, the offending vehicle came from the left side. In such circumstances, it seems to be not possible for the complainant/ victim's motorcycle to fall down on the side of being hit by the offending vehicle, and naturally the motorcycle should have fell down on the opposite side i.e. on its right side. As per the mechanical inspection report Ex. P1 (previously marked 8/2) there is no fresh damage on the offending van on either the right side or on the left side, whereas the mechanical inspection report of the bike states that there are scratches on the left side and the mirror is damaged. Therefore, the mechanical inspection report and the site plan appears to be in contradiction with the statement of PW-1 in his cross-examination.
Witness PW-2 has also stated in his examination in chief that the offending vehicle came in a very high speed but has not stated the manner in which the driving of the accused was rash and negligent, or that the speed was so much as to loose control upon the vehicle by the accused. In his cross-examination, PW-2 states that the offending vehicle was coming from the left side of the cross-road/ chowk and accident took place at the chowk where four streets joined. He further states that the offending vehicle hit against his motorcycle from the mid portion, and that they fell on their right side. This is a material contradiction with the statement of PW-1, who stated that they fell on their left side after being hit by the offending vehicle. PW-2, in his cross-examination, has denied the FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 12 suggestion that they fell from the motorcycle due to sudden application of breaks, in balancing of motorcycle on suddenly seeing potholes (Gadhha) on the road, or that the accused has not hit their motorcycle with the offending vehicle.
Also PW-2 states in his examination in chief that he made a call to the police at 100 number and managed to escape and go to his home. This is a very important fact which nowhere comes in the testimony of PW-,1 and this ommission amounts to a material contradiction.
PW-3, PW-4 and PW-6 are admittedly not eye witness to the present incident as they have been narrated the entire incident by the others, and their evidence comes in the category of hearsay, and also does not fall under any of the exceptions to the rule of hearsay, as mentioned in the Indian Evidence Act.
PW-5, PW-7, PW-8 and PW-9 had also reached the spot of occurrence after the incident and are not eye witness to the incident and IO PW-9 has also not independently collected any evidence (e.g. CCTV footage or skid marks of the offending vehicle) which may point out towards rashness or negligence of the accused while driving the vehicle at the relevant point of time. PW-10 Dr. Yogendra Nath Maurya from DDU Hospital has appeared as a witness to prove MLC Ex. PW10/A, stating the injuries suffered by the victim to be grievous in nature, as there was evidence of sub-arachnoid heamorrage in the left temporo-parietal region, but the same does not directly indicate towards rashness or negligence on the part of the accused in driving the vehicle. The said witness has also admited in his cross-examination that he cannot tell as to for how many days the injured remained admitted in the hospital, which signifies no susbtantive support for the claim of the complainant/ victim about the same for explaining the delay in lodging of the FIR. Therefore, there is no plausible reason for a delay of 10 days on behalf of the complainant in giving statement to the police, and in such a situation, any embellishment cannot be rule out. [State of Andhra Pradesh Vs. M. Madhusudhan Rao (2008) 15 SCC 582 relied upon].
Also PW-10 has admitted in his cross-examination that the injuries FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 13 suffered by the victim could have been a result of fall on the ground.
Therefore, there is no evidence to prove rashness or negligence on the part of the accused Paramjeet Singh in driving the offending vehicle Maruti Van bearing registration no. DL-1K-0134. Accordingly, prosecution has failed to prove the offences u/s 279/337/338 of IPC against the accused Paramjeet Singh beyond reasonable doubt.
Also, no evidence has been produced and no witness has testified on behalf o the prosecution for the offence u/s 177 of M.V. Act 1988 and therefore, charges under this provision also do not stand established.
5.7 Now this Court proceeds to examine whether the accused persons Paramjeet Singh, Bhagat Singh, Balwant Singh and Gurmail Singh in furtherance of their common intention, caused simple and grievous hurt to the complainant/ victim Gurucharan Kumar and thereby committed the offence punishable u/s 323/325/34 of IPC.
Section 319. Hurt- Whoever caused bodily pain, disease or infirmity to any person is said to cause hurt.
Section 320. Grievous Hurt- The following kinds of hurt only are designated as "grievous"-
First - Emasculation.
Secondly- Permanent privation of the sight of either eye.
Thirdly- Permanent privation of the hearing of either ear, Fourthly- Privation of any member or joint.
Fifthly- Destruction or permanent impairing of the powers of any member to joint.
Sixthly- Permanent disfiguration of the head or face.
Seventhly- Fracture of dislocation of a bone or tooth.
Eighthly- Any hurt which endangers life or which causes the sufferer, to be during the space of twenty days, in severe bodily pain, FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 14 or unable to follow his ordinary pursuits.
Section 321 - Voluntarily causing hurt- Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person and does thereby cause hurt to any person, is said "voluntarily to cause hurt".
Section 322 Voluntarily causing grievous hurt- Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt is said "voluntarily to cause grievous hurt".
Section 323. Punishment for voluntarily causing hurt- Whoever, except in the case provided for by Section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year or with fine which may extend to one thousand rupees, or with both.
Section 325. Punishment for voluntarily causing grievous hurt- Whoever, except in the case provided for by section 335, voluntarily causes grievous hurt, shall be punished with imprisonment of either description for a terms which may extend to seven years, and shall also be liable to fine.
Section 23 of Indian Penal Code defines 'wrongful loss' as loss by unlawful means, of property, to which the person losing it is legally entitled.
Section 44 of the Indian Penal Code defines "injury" as any harm whatever, illegally caused to any person in body, mind, reputation or property.
Section 43 of the Indian penal Code states that the word 'illegal"
is applicable to everything which is an offence or which is prohibited by law, or which furnishes a ground for a civil action.
Section 34 of Indian Penal Code states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 15 done by him alone. Thus, this provision stresses upon the existence of common intention as well as participation of each accused by committing a 'criminal act', not necessarily in itself amounting to an offence. Common intention may be proved by conduct, as it can be formed in the course of occurrence itself, and there is no need to specifically prove a pre- meditation or prior conspiracy [Abdulla Kumhi Vs. State of Kerala, AIR 1991 SC 452, Hari Om Vs. State of U.P. (1993) 1 Crimes 294 (SC)].
The first requirement to prove the offence alleged against the accused persons is to establish their presence at the relevant time at the spot of occurrence. Accused Pramjeet Singh's presence is established as per the aforesaid discussion, and now this Court has to examine the evidence brought on record by prosecution to prove the presence of the accused persons Bhagat Singh, Balwant Singh and Gurmail Singh as well as on the spot of occurrence at the relevant point of time. PW-10 has stated in his examination in chief that accused Paramjeet Singh made a call to someone and thereafter two persons came there, who caught hold of him and started beating him. He identified the accused persons in the Court, but in his statement to the police Ex. PW1/A, he has not mentioned the name of the any of the accused persons other than the accused Paramjeet Singh. In his cross-examination by the defence, the witness has admitted that he had identified the accused Balwan Singh, Bhagat Singh and Gurmail Singh at the time of their arrest, and that these persons were present at the police station when he identified them. He admitted that he cannot tell as to from which pace these persons were arrested, but his signatures are found on arrest memo of all the aforesaid accused persons and in the light of the aforesaid discussion, the arrest memo of accused persons thus comes under a shadow of doubt. This witness has stated in his examination in chief that accused Paramjeet Singh called the other accused persons over the phone on the spot of occurrence. Thereafter, all of them assaulted PW-1 and PW-2. As per the examination in chief of PW- 9 IO ASI Birchha Singh, accused persons had not been arrested from the spot. There is no disclosure statement of accused Paramjeet Singh, who was present at the spot, regarding the presence of some other persons at FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 16 the spot. The victim had admittedly never seen the accused persons before the incident. IO did not investigate into the call records of accused Paramjeet Singh so as to ascertain whether he had called the accused persons, at the relevant time from the spot of occurrence. There is no investigation into the CDR location of the remaining accused persons to indicate as to whether they were present at the spot of occurrence at the relevant point of time. In such a situation, there is no explanation, at all, in the charge sheet, as to how did the IO trace out and arrest the remaining accused persons.
Also PW-1 states in his cross-examination that he could not make statement on or before 03.05.2011 as he was physically not in a position to make any such statement. He admits in his cross-examination that doctor had only orally instructed him to take complete rest and that he had not given any such instructions in writing. This seems to be unnatural as if there was any such requirement, the doctor must have mentioned the same in the discharge summary of the aforesaid witness. He also stated that he was semi-conscious while being taken into the hospital in PCR Van but in his statement given allegedly on 03.05.2011, he says that he was conscious of the fact that the accused at that very time (in that state) told his name to be Paramjeet Singh. The statement of PW-1 is therefore full of major contradictions and does inspire confidence. Also, he admits in his cross-examination that the site plan was not prepared by the IO in his presence. There appears to be clearly a cutting/ over writing/ correction in the date mentioned on the site plan, and it appears that date '29.04.2011' has been altered to make it as '03.05.2011', about which the IO PW-9 ASI Birchha Singh could offer no reasonable explanation in his examination in chief or in his cross-examination. Also PW-2 states in his cross- examination that 5 to 7 minutes must have been taken in the altercation and the acident. MLC Ex. PW10/A mentions the time of medical examination to be 07.30 am. As per the testimony of PW-1 and PW-2, the accident and the altercation allegedly took place at around 06.30 am to
06.45 am. It seems to be highly improbable that other accused persons were so near to the place of occurrence that they came within few minutes FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 17 of the alleged call by accused Paramjeet Singh, assaulted the victims, and PW-1 was taken to the hospital all within a span of less than 45 minutes. Also since PW-2 admits that he had left the spot, it seems highly fishy as to why he did not give any intimation to the police that they were assaulted after the accident.
As already discussed, the statements given by PW-3, PW-4 and PW-5, fall within the category of hearsay evidence but even these witnesses have stated that they got a call from the witness Gurmeet Kumar regarding the 'accident' and not regarding any assault. PW-8 SI Kamal Kohli has also stated in his examination in chief and cross- examination that he received information regarding an 'accident'. The said witness PW-8 also admits in in his cross-examination that when he reached at the spot after receipt of information, one person who was running a cloth ironing shop told him that after the accident, a 'quarrel' had taken place. But admittedly the statement of the said cloth ironing shopkeeper had not been recorded by the IO, nor had such witness been produced as prosecution witness, for the reasons best known to the IO. PW-9 admits in his cross-examination that he does not remember as to who apprised him about the mobile number of the accused persons. A perusal of the record reveals that in his statement to the police Ex. PW1/A , the complainant did not give mobile number of any of the accused persons to the police and there is no disclosure statement of accused Paramjeet Singh giving the mobile phone of any of the co-accused persons to the police, nor is there any DD entry regarding role and presence of the remaining accused persons Balwan Singh, Bhagat Singh and Gurmail Singh. PW-10 Dr. Yogender has also admitted in his cross- examination that injury suffered by the victim could be a result of a fall on the ground. Since self infliction of injuries does not seems to be possible in the light of the facts and circumstances of the present case, the only inference regarding injures of the complainant seems to that their vehicle got dis-balanced upon collusion with the offending vehicle or otherwise, they fell down and sustained injuries. Rashness and negligence on the part of the driver of the offending vehicle accused Paramjeet Singh could FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 18 not be proved by the prosecution. Assault of complainant by accused Paramjeet Singh or the presence of other remaining accused persons Balwan Singh, Bhagat Singh and Gurmail Singh on the spot of occurrence, or assault by them could also not been proved by the prosecution beyond reasonable doubt. Accordingly, no such evidence has come on record so as to establish the guilt of the accused persons Paramjeet Singh, Balwan Singh, Bhagat Singh and Gurmail Singh for the offences u/s 279/337/338/323/325/34 IPC & 177 of M.V. Act beyond reasonable doubt. Accordingly, all the accused persons namely Paramjeet Singh, Balwan Singh, Bhagat Singh and Gurmail Singh are acquitted of all the charges in the present case. Digitally signed by ABHINAV ABHINAV PANDEY PANDEY Date: 2021.04.01 17:32:05 +0530 ANNOUNCED IN THE OPEN (ABHINAV PANDEY) COURT ON 23.03.2021 MM-04 (WEST)/DELHI Containing 19 pages all signed by the presiding officer.
Digitally signed by ABHINAV ABHINAV PANDEY
PANDEY Date: 2021.04.01
17:32:17 +0530
(ABHINAV PANDEY)
MM-04 (WEST)/DELHI
FIR No. 109/2011, PS Moti Nagar State Vs. Paramjeet Singh & Ors. 19