Delhi District Court
State vs . Manish Kumar on 31 January, 2019
IN THE COURT OF MS SHEFALI BARNALA TANDON, MM-6 (C), TIS HAZARI
COURT, DELHI.
FIR No.24/2005
U/s. : 279/304A IPC
P.S. : Civil Lines
State Vs. Manish Kumar
JUDGMENT
1. CIS number of the case : 293023-2016
2. CNR number of the case : DLCT02-000333-2005
3. The date of commission of offence : 14.01.2005
4. The name of the complainant : Ct. Sukhpal
5. The name & parentage of accused : Manish Kumar
S/o Sh. Harish Chandra
R/o H.No.A-8/31, Sector-18,
Rohini, Delhi.
Presently residing at
R-829, First Floor,
New Rajender Nagar, Delhi.
6. Offence under which notice has been : U/s 279/304A IPC
served
7. The plea of accused : Pleaded not guilty
8. Final order : Acquitted of offence
U/s 279/304A IPC
Date of Institution : 23.03.2005
Judgment reserved on : 31.01.2019
Judgment announced on: 31.01.2019
FIR No.24/2005 State Vs. Manish Kumar 1 of 10
PS Civil Lines
STATEMENT OF THE REASONS FOR THE DECISION :-
1. Briefly stated, the facts of the case as unfolded from the charge- sheet are that on 14.01.2005, at about 6:10 PM, at Outer Ring Road near Hanuman Mandir, Majnu-ka-Tilla, situated, within the jurisdiction of PS Civil Lines, accused was found driving motorcycle bearing registration No.DL-8SU- 8511 in a manner so rash & negligent so as to endanger human life and personal safety of others and while driving so, hit against the cyclist namely Shankar Karas S/o Sh. Babu Ram and caused his death not amounting to culpable homicide. Thereby, the accused committed the offences punishable u/s 279/304A IPC and accordingly, charge-sheet was filed.
2. The copy of charge-sheet as well as its annexures were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and notice of the accusation u/s. 251 Cr.P.C. for the offence U/s 279/304A IPC was served upon accused Manish Kumar by the Ld. Predecessor of the Court vide order dated 21.10.2009, to which he pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined 11 witnesses. Relevant portion of testimony of witnesses is discussed hereinafter.
4. PW-1 Dr. Deepak Kumar Singh deposed that he examined the patient namely Manish Kumar, aged about 50 years, Male, who was brought in the casualty of the Sushrut Trauma Centre with alleged history of RTA on 14.01.2005. During examination, he prepared MLC of the patient bearing No.59820, proved as Ex.PW2/A and the patient was referred to Neuro Surgery FIR No.24/2005 State Vs. Manish Kumar 2 of 10 PS Civil Lines Emergency for further treatment and management.
5. PW-2 Sh. Sushil Kumar, PW-4 Sh. Mahesh Kumar and PW-5 Sh. Gobind Hazra deposed to have identified the dead body of deceased Shankar Karas in the Subzi Mandi Mortuary on 16.01.2005, being their Son-in-Law, Son and Son-in-Law respectively vide memo proved as Ex.PW2/A, Ex.PW4/A and Ex.PW5/A respectively.
PW-3 HC Shubhram (Duty Officer) proved the present FIR as Ex.PW3/A and endorsement on the rukka as Ex.PW3/B.
6. PW-6 ASI Kartar Singh {MHC (M)} deposited one cycle and a pair of shoes alongwith certain clothes, one motorcycle bearing registration No.DL-8SU- 8511 of make Bajaj Pulsar, one wrist watch and cash of Rs.29/- in Malkhana vide mud No.27/2815 on 14.01.2005 in the present FIR. He further deposed that on 18.01.2005, he got released the aforesaid motorcycle to one person namely Sh. Harish Chand. He proved the copy of the aforesaid Mud as Ex.PW6/A.
7. PW-7 Shri Bhagwan proved the record of motorcycle bearing registration No.DL-8SU-8511 as Ex.PW7/A. As per record, the said motorcycle was in the name of Sh. Hari Chand S/o Sh. Vishakh Mal
8. PW-10 ASI Devender (Mechanical Inspector) deposed that on 15.01.2005, he mechanically inspected one motorcycle of make Bajaj Pulsar bearing registration No.DL-8SU-8511 and his detailed report in this respect proved as Ex.PW10/A. As per report, head light plastic cover dented, wind glass broken, right side body part scratched and vehicle was fit for road test.
9. PW-8 ASI Bal Hussain deposed that on 14.01.2005, on receipt of DD FIR No.24/2005 State Vs. Manish Kumar 3 of 10 PS Civil Lines No.32, he alongwith ASI Krishan Singh went to near Hanuman Mandir, Outer Ring Road, Majnu-ka-Tilla, where they found one motorcycle bearing registration No.DL-8SU-8511 and one bicycle in accidental condition. The cycle was lying on the road and the motorcycle was stationed. On further investigation, they came to know that the injured has already been taken to Trauma Centre. IO left for the hospital leaving him at the spot. Thereafter, IO alongwith accused and Ct. Sukhpal came at the spot and handed over him one rukka. He left the spot at about 8.30 PM for PS, got registered the present case, went back to the spot and handed over the original rukka alongwith carbon copy of FIR to IO/ SI Kishan Singh. Then, IO arrested the accused and also seized the cycle, shoes and the said motorcycle. He also seized the driving licence & papers of the motorcycle and as the offence was bailable so accused was released on police bail at the spot itself. The seizure memo of the cycle, shoes and of the motorcycle, proved as Ex.PW8/A and Ex.PW8/B respectively. The RC, the Insurance papers and the driving licence of the accused were seized vide seizure memo proved as Ex.PW8/C and Ex.PW8/D respectively. The accused was arrested & personally searched vide memo proved as Ex.PW8/E & Ex.PW8/F respectively. Accused was correctly identified by him in the court that day.
10. In view of the testimony of the aforesaid witnesses, they are formal in nature, hence, only Complainant and Investigating Officer remains to be material witnesses in the present matter.
PW-9 ASI Sukhpal Singh (Complainant/ Eye-witness) deposed that on 14.01.2005, he was on patrolling duty from 1:00 PM to 8:00 PM at Outer Ring Road. On that day, at about 6:10 PM, while patrolling he reached near Hanuman Mandir where he noticed one motorcyclist was driving the motorcycle bearing registration No.DL-8SL-8511 and the said motorcyclist was coming from ISBT & was going towards the Wazirabad. The motorcyclist was driving the said FIR No.24/2005 State Vs. Manish Kumar 4 of 10 PS Civil Lines motorcycle at very high speed, in rash & negligent manner i.e. in a zig zag way and hit a cyclist, who was also coming from the side of ISBT. The cyclist fell down on the road. Then, he stopped the motorcyclist, whose name later-on revealed as Manish. He stopped one TSR/auto rickshaw and took the injured as well as the accused to the Trauma Centre Hospital where, IO/ ASI Kishan Singh also came there. He handed over the custody of accused to the IO. During treatment, injured was expired. He narrated the incident to the IO and he recorded his statement proved as Ex.PW9/A. From the hospital, they came back at the spot where they met Ct. Bal Hussain, then, IO prepared the site plan at his instance proved as Ex. PW9/B. IO handed over the rukka to Ct. Bal Hussain and got the case registered. Ct. Bal Hussain came back at the spot and handed over the copy of FIR alongwith original rukka to the IO. IO seized the motorcycle in question from the place of incident vide seizure memo already proved as Ex.PW8/B. IO also seized the cycle in question and shoes vide seizure memo proved as Ex.PW8/A. IO seized the documents, insurance, RC vide seizure memo already proved as Ex.PW8/C, RC has been proved as Ex.X1 and insurance has been proved as Ex.X2. IO also seized the driving license of accused vide memo proved as Ex.PW8/D. Accused was arrested & also got personally searched vide memo proved as Ex.PW8/E & Ex.PW8/F respectively. Thereafter, accused was released on police bail after fulfill the bail proceedings. IO recorded the statement of witnesses. The DD entry regarding his duty, proved as Ex.PW9/C. Accused was correctly identified by him in the court that day. He correctly identified the photographs of the case property and the spot, proved as Ex.P1, P2, P3, P4 and P5 respectively.
11. PW-11 Retired SI Kishan Singh (Investigating Officer) deposed that on 14.01.2005, on receipt of DD No.32PP, he alongwith Ct. Bal Hussain went to the spot where they found one motorcycle bearing registration No.DL-8SU-
FIR No.24/2005 State Vs. Manish Kumar 5 of 10 PS Civil Lines
8511 and one bicycle in accidental condition. At the spot, on inquiry, they came to know that the injured has been shifted to Trauma Centre. After leaving Ct. Bal Hussain at the spot, he went to Trauma Centre and on receipt of message on his wireless set that injured died during treatment at the Hospital where he obtained MLC of the deceased unknown. He met Ct. Sukhpal at the Hospital and Ct. Sukhpal informed him that accused Manish was the rider of the offending vehicle i.e. the aforesaid motorcycle and handed over accused to him at the hospital. He recorded the statement of Ct. Sukhpal proved as Ex.PW9/A. He got the dead body preserved at the Hospital. Thereafter, he alongwith Ct. Sukhpal and accused Manish came back to the spot. He prepared rukka at the spot proved as Ex.PW11/A and handed over the same to Ct. Bal Hussain, who left the spot to get the FIR registered. He prepared the site plan at the instance of Ct. Sukhpal already proved as Ex.PW9/B. After sometime, Ct. Bal Hussain came back to the spot with original tehrir & copy of FIR and handed over the same to him. Thereafter, he seized offending vehicle i.e. motorcycle and bicycle vide memo already proved as Ex.PW8/B and Ex.PW8/A respectively. He also seized the documents i.e. RC, insurance of abovesaid offending vehicle vide memo already proved as Ex.PW8/D. The said RC, insurance already proved as Ex.X1 and Ex.X2. He also arrested the accused & his personal searched was also got conducted vide memo proved as Ex.PW8/E and Ex.PW8/F respectively. Matter being bailable, accused was released on bail. Thereafter, they came back to PS and deposited the case property in Malkhana.
He further deposed that thereafter, dead body was got preserved at Sabzi Mandi Mortuary and messages were sent to identify the deceased. After the dead body was identified by the son of the deceased vide identification memo proved as Ex.PW4/A. After postmortem, dead body was handed over to his legal representatives. He also got the mechanical inspection of the offending vehicle conducted. After completion of investigation, he prepared the challan and filed FIR No.24/2005 State Vs. Manish Kumar 6 of 10 PS Civil Lines the same before the Court. He correctly identified the accused in the court that day. The accused did not dispute the identity of offending vehicle.
12. It is pertinent to mention here that accused admitted the genuineness of death certificate, death summary bearing No.25127 of deceased unknown exhibited as A1 & A2 respectively and postmortem of deceased namely Shankar vide report bearing No.76 dated 16.01.2005 exhibited as A3, during his statement recorded u/s. 294 Cr.PC qua admission/ denial of documents recorded on 25.10.2018 Hence, PWs namely Dr. P.N.Pandey, Dr. Sudhir Kumar, Dr. Jagdish Kumar Singh and Dr. Kulbhushan Goel were dropped from the list of witnesses.
Thereafter, prosecution evidence was closed.
13. Statement of accused u/s. 313 Cr.P.C. was recorded separately and all the incriminating evidence coming on record was put to the accused, which he denied in general and he has admitted that he was driving the offending vehicle bearing registration No.DL-8SU-8511 on the alleged date, time and place but the accident has not caused by his vehicle. He further stated that o n 14.01.2005, he alongwith Bhagwan Dass was coming from I.P.Extension Patparganj after meeting Some Counsel & when they reached near Hanuman Mandir, they found one person lying on the side of the road in accidental condition and blood was oozing out from his body. Therefore, he parked his motorcycle at one side of the road and took the injured to the Hospital through Auto. No accident has caused by him and he has been falsely implicated in the present matter.
14. Accused chose to lead evidence in his defence. He got examined Sh. Bhagwan as DW-1, who deposed that in the year 2005, he was working in a cloth shop in Rohini. He knew the accused as he used to came to purchase clothes from his shop. On 14.01.2005, he met the accused at Red Light Point FIR No.24/2005 State Vs. Manish Kumar 7 of 10 PS Civil Lines Mother Dairy, I.P.Extension from where, he took lift from the accused to Rohini and when they reached near Hanuman Mandir, Ring Road, they found a person in injured condition lying on the road and his cycle was lying above him. Then, upon request of accused Manish, he helped in removing the injured to Trauma Centre in TSR and from Trauma Centre, he left for his village.
Thereafter, accused closed the defence evidence.
15. Final arguments on behalf of Ld. APP for the State and Ld. Counsel for accused have been heard, during which Ld. Counsel raised suspicion about presence of only eye witness of prosecution i.e. PW-9 at the spot at the time of alleged incident. The entire record has been carefully perused including the judgment filed by the defence.
16. In view of the testimony of all the PWs, the only material/ eye witness of the prosecution in the present matter remains the complainant, examined as PW-9, however, during his cross-examination by the defence, he failed to remember whether he was carrying wireless set with him on the date and time of the incident or that he circulated any wireless message regarding the incident. Further, he admitted that he neither made any call to the police post regarding his presence at the Hospital alongwith injured nor informed that he admitted the injured in the Hospital. He also admitted that he did not inform about demise of the injured in the Hospital to the PS. But as per testimony of IO and DD No.23, proved as Ex.PW9/C, the complainant left the police post with the wireless set. Therefore, despite the fact that the complainant was carrying the wireless set, he was not the first informant of the alleged incident and he did not inform about his presence at Hospital and demise of the injured to Police Post/ PS, without any cogent reason.
Furthermore, he also admitted that he neither called the Pujari of the FIR No.24/2005 State Vs. Manish Kumar 8 of 10 PS Civil Lines Mandir, which was near the spot, for removing the injured to the Hospital nor inquired or took help of any public person despite the spot, being a crowded place as per the site plan.
He also admitted that he did not note the name of the driver or registration number of the TSR in which he shifted the injured to the Hospital. He deposed that while he shifted the injured to the TSR, he got blood stains on his hand, however, no such sample was given to the IO though, it was a vital piece of evidence.
17. During cross-examination of PW-11/ Investigation Officer by defence, he admitted that as per DD No.23 dated 14.01.2005, proved as Ex.PW9/C, the complainant/ Ct. Sukhpal left the police post for patrolling duty alongwith wireless set. He also admitted that on the MLC of the injured, proved as Ex.PW1/A, name of complainant Ct. Sukhpal has not been mentioned and it is mentioned that the injured was brought to the hospital by accused Manish Kumar.
Even the site plan Ex.PW9/B stated to be made by the IO at the instance of complainant does not bear the signature of complainant.
18. In view of the aforesaid testimony of Complainant & Investigating Officer and documents on record, the presence of complainant, who is the only eye/ prime witness of the prosecution in the present matter, seems doubtful at the spot on the date and time of incident, hence, his testimony cannot be relied upon by the Court as he seems to be a planted witness.
19. The cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving the guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if FIR No.24/2005 State Vs. Manish Kumar 9 of 10 PS Civil Lines any, must go in favour of the accused.
20. Under the aforesaid discussion, it can safely be concluded that in the present case the evidence on the record is not at all sufficient to hold the accused guilty of the alleged offences, hence, the prosecution has miserably failed to prove the guilt of the accused. Accordingly, accused Manish Kumar is acquitted of the offence U/s 279/304A IPC.
Digitally signed SHEFALI by SHEFALI
Announced and dictated in the BARNALA
BARNALA
TANDON
open Court today i.e. on 31.01.2019 TANDON Date: 2019.02.04
13:45:46 +0530
(Shefali Barnala Tandon)
MM-06, Central, Tis Hazari Court
Delhi/31.01.2019
All pages are duly signed.
FIR No.24/2005 State Vs. Manish Kumar 10 of 10
PS Civil Lines