Delhi District Court
Rakesh Kumar vs State ( Nct Of Delhi) on 7 August, 2009
IN THE COURT OF SHRI M.R. SETHI:
ADDL. SESSIONS JUDGE (FTC) (WEST) DELHI.
Criminal Appeal No.02/09.
Rakesh Kumar
Son of Jagdamba Parsad
R/o RZ-D-28,West Sagar Pur,
Delhi.
......Appellant
Versus
State ( NCT OF DELHI)
.....Respondent
Date of Institution: 25.3.09
Date of Arguments: 28.7.09
Date of Judgment: 07.8.09
J U D G M E N T:
1 Present judgment shall dispose off an appeal filed against judgment dated 21.02.2009 and order on sentence dated 28.02.09 passed by learned Court of Shri Raj Kumar Tripathi, ACMM (West) in case FIR No.977/97, PS Janak Puri.
Rakesh Kumar Vs State By the impugned judgment dated 21.2.09, learned trial court was pleased to convict the appellant for having committed offences punishable under Section 279/304-A IPC and vide the order on sentence dated 28.2.09, learned trial court was pleased to sentence the present appellant to six months RI and also fine of Rs.500/-. In default SI 15 days for offence under Sec.279 IPC and RI for 2 years alongwith fine of Rs.10,000/-. In default SI six months for offence punishable under Sec.304- A IPC. Out of the fine amount, an amount of Rs.8,000/- was to be paid to the next kin of the deceased Mangre. Both the sentences were ordered to run concurrently and benefit of Section 428 Cr. P. C was also awarded to the convict. 2 Succinctly stated, case of the prosecution was to the effect that on 27.8.97 at about 9.00 PM at A-1 & A-2 Cut,Pankha Road, Janak Puri, Delhi, the present appellant Rakesh Kumar was found driving bus No. DL-1P-2126 in a rash and negligent manner and while so driving the vehicle, he hit two cyclists and caused their death. In order to prove its case, prosecution had examined 10 witnesses. However, the entire prosecution story revolved around testimony of PW.2 ASI Dal Chand, who has been projected as being eye witness. After prosecution evidence was closed, statement of accused Rakesh Kumar Vs State was recorded under Sec. 313 Cr. P. C and accused examined one Raju in his defence as DW-1. Thereafter, final arguments were advanced and the impugned judgment passed. 3 In the present appeal before this court, the impugned judgment has been challenged inter-alia on the grounds that the judgment is not supported by convincing evidence and is based upon conjectures and surmises and is illegal. It was mentioned in the appeal that benefit of doubt which should have been given to the accused, had not been so given. It was claimed that there was no corroboration to testimony of ASI Dal Chand (PW-2) as there was no public witness, who had been joined in investigation and examined. It had been claimed that the accident was a blind accident committed by someone else. Learned Trial Court having placed reliance only on prosecution witnesses and not upon the defence witness was also challenged. It was further claimed that appellant was not driving the offending vehicle at the time of accident and had not been caught at the spot and had been falsely implicated.
Rakesh Kumar Vs State 4 During course of his submissions, learned counsel for appellant submitted that no reliance could be placed on testimony of PW.2 who was the only witness, who implicated the appellant in this case. Learned counsel submitted that although testimony of PW.2 had not been tested on touch stone of cross-examination,still there were inherent improbabilities in his testimony which made his testimony doubtful. Learned counsel further submitted that testimony of DW-1 had been brushed aside by the learned trial court without giving any weightage to the same, by referring the defence witness as being an interested witness. Learned counsel submitted that if a DW can tell a lie, so do the prosecution witnesses. Another point of argument advanced by learned counsel was, that the offending vehicle had been apprehended after about one month of the date of accident, although bus number was reportedly in knowledge of the Investigating Officer allegedly from day one. It was pointed out that no explanation had come on record regarding the delay in this regard. It was further submitted that neither the mechanical inspection report was proved on record nor the investigating officer examined.
Rakesh Kumar Vs State 5 Rebutting the submissions, learned Addl. PP for State submitted that identity of accused was no longer in doubt in view of testimony of PW.2 and PW.10. Ld APP submitted that these witnesses had not been cross-examined by the accused despite opportunity having been granted and hence, unrebutted testimony of PW.2 and PW.10 was enough for conviction of the accused. It was submitted that accused had been duly identified in court by PW.2 who had also stated about the accused having driven the vehicle in a rash and negligent manner at the time of accident. It was submitted that there was no illegality or infirmity in the impugned judgment. Dismissal of the appeal was prayed for. 6 After the appeal had been assigned to this court, trial court record had been summoned and has been duly perused by this court. Perusal of record reveals that three witnesses i.e PW-1, PW.2 & PW.3 were examined on 29.5.06 and none of them was cross-examined by the accused. It would be pertinent to mention herein, that counsel for accused reportedly was not present in court on the said date. Same is the position in respect of PW.9 & 10. Even the other intervening witnesses were not cross-examined by learned counsel for the accused.
Rakesh Kumar Vs State 7 In this regard learned counsel for the appellant has placed reliance on Juwarsingh & Ors Vs State of MP [ (AIR 1981 Supreme Court 373] wherein, it was observed that cross-examination was not the only method of discrediting a witness . It was further observed that if testimony of a witness on the face of it is unacceptable, the courts are not bound to accept the testimony merely, because there was no cross- examination. Present is not a case where an effective opportunity had been granted to the accused who failed to cross-examine the witness. Perusal of record makes it evident that only an illusory opportunity appears to have been granted to the accused to cross-examine the sole eye witness (PW-2) as the accused was unrepresented before the learned trial court when testimony of PW.2 was recorded on 29.5.06. 8 As such, the courts of law have to look into the testimony keeping in view other connected material on record and not accept the same as gospel truth.
8-A In this regard, this court is reminded of observations made by Hon'ble Mr Justice Sunil Gaur in Crl. Appeal No.506 of 2006 (Shakeel Ahmed Vs State) wherein His Lordship was Rakesh Kumar Vs State pleased to observe :
" To say the least, the trial court ought to have provided a legal aid counsel to the appellant/accused before proceeding with the cross-examination of material witnesses, including (PW1) and (PW2) and ought not to have close the cross-
examination by the accused by simply recording as under:-
" XXXX by accused Nil. Opportunity Given."
His Lordship was further pleased to observe that even though the accused was having a counsel at the beginning of the trial, it is a hard fact that the real trial is the crucial stage of recording of evidence and if at that stage, accused does not have free legal assistance, then trial is vitiated.
9 No doubt, PW-2 during course of his testimony, has deposed in accordance with allegations of prosecution against the accused. He has also identified the accused. Still, there are some other materials which have to be looked into by this court in order to appreciate the testimony of PW.2 HC Dal Chand. Perusal of trial court record reveals that FIR in this case was registered on basis of testimony of HC Dal Chand recorded on 27.8.97 wherein, he claimed to be an eye witness.
Rakesh Kumar Vs State Perusal of rukka Ex PW2/A reveals that although HC Dal Chand had deposed about the incident and had also mentioned the registration number of the offending vehicle, he had not given any description of driver of the offending vehicle and had also not claimed that he can identify the driver, if shown to him.
10 In this regard, it would be pertinent to mention that alleged accident took place on 27.8.97 while notice under Sec.133 Motor Vehicle Act was admittedly served upon owner of the vehicle on 22.9.97. The accused admittedly was never put up for being identified in a judicial test identification parade and apparently, had been identified by the witness for the first time in court.
11 The Investigating Officer was never examined by the prosecution before the learned trial court and in absence of his testimony, this court while sitting in appeal is at a loss to comprehend as to what investigation has been conducted regarding the offending vehicle from 27.8.97 till 22.9.97. As per case of prosecution, registration number of the offending vehicle was in knowledge of the Investigating Officer from the day one, but, there is nothing on record to show that any Rakesh Kumar Vs State attempt whatsoever, was done by him to trace out owner of the vehicle or serve notice under Sec.133 M.V. Act upon him till 22.9.97.
12 There is further nothing on record to show that any message had been flashed immediately after the accident for apprehending the offending vehicle. HC Dal Chand in his rukka statement had claimed that the offending vehicle had been driven away by its driver after the accident. 13 As per case of the prosecution, one of the injured who subsequently expired, had been taken to the hospital by some public person. Now, this public person was neither cited nor examined by the prosecution. His identity is revealed on perusal of MLC of the unknown deceased. It is mentioned therein, that he had been admitted by one Rajesh Singh. His address is also mentioned in the MLC. The other deceased had been got admitted by HC Rajinder as per MLC Ex PW1/A. Now neither HC Rajender nor the public witness Rajesh, who had taken the two injured to the hospital have been examined in this case. Both of them were material witnesses, whose presence is documented as being the persons who had brought the deceased to the hospital. Their non-examination Rakesh Kumar Vs State casts doubt on truthfulness of case of the prosecution and it appears that prosecution had tried to hide more than it was prepared to reveal.
14 It would not be out of place to mention herein that step motherly treatment appears to have been given by the learned trial court to the defence witness Raju. This witness, who was examined as DW.1, was the conductor in the offending bus. His testimony had been brushed aside by the learned trial court with a single sentence that the defence witness is an interested witness as he has deposed in favour of accused being the conductor in the same bus in which the accused was the driver. Now, conductor is not an employee of the driver and cannot be said to be under power or control of the driver. Admittedly, no such suggestion had been given to this witness by Ld APP for State during course of his cross- examination. It would also be pertinent to mention herein, that DW-1 during course of his examination in chief had categorically stated that he was on duty in the offending bus on 27.8.97 and that the bus did not ply on the route on the spot of incident and no accident took place with their bus. Interestingly, not even a suggestion was given to this witness during course of his cross-examination by learned APP for Rakesh Kumar Vs State State regarding the accident having been caused by the present appellant while driving the offending bus at the spot. 15 It had been observed by the HOUSE OF LORDS in Woolmington Vs The Director of Public Prosecutions. That it is not for an accused to establish his innocence but for the prosecution to establish his guilt. It was further observed that just as there is evidence on behalf of the prosecution, so there may be evidence on behalf of the accused which may cause a doubt as to his guilt. Hon'ble Supreme Court of India in State of Haryana Vs Ram Singh [ (2002 Crl. L. J. 987)] had observed that the evidence tendered by defence witnesses cannot always be termed to be a tainted one, that the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. In considered opinion of this court, learned trial court ought to have given equal weightage to testimony of DW-1 and ought not to have brushed it aside in the manner in which it has been done.
16 While going through the impugned judgment, this court has observed that in para no.13, learned trial court has observed that no suggestion was put to the Investigating Officer of the case regarding non-joining of public persons in Rakesh Kumar Vs State the investigation and that if any question would have been asked in that regard, the Investigating Officer would have clarified the position or give the answer. Perhaps learned trial court over looked the fact that the Investigating Officer was never examined in this case.
17 This court is also not persuaded to blindly accept the testimony of PW.10, who claimed himself to be owner of the offending vehicle and has stated that Rakesh Kumar, who was his driver, was driving the offending vehicle at the time of accident i.e at 9.00 PM on 27.8.97 at the spot. Now, admittedly PW.10 Shri Jai Dutt was not an eye witness, nor was he reportedly present at the spot at the time of incident. It belies imagination as to how in these circumstances he can say that it was the accused who was driving the offending vehicle at the date, time and place of accident.
18 Upon consideration of all the aforesaid facts and circumstances of present case, this court is of considered opinion that prosecution had failed to bring home guilt of the accused and anyway, the appellant before this court is entitled to benefit of doubt. This court is not oblivious of the fact that Rakesh Kumar Vs State two lives have been lost in the accident, but due to lack of evidence on record and shoddy investigation, in considered opinion of this court, the liability or rather the culpability of having caused the accident cannot be foisted upon the appellant before this court.
19 Perusal of record also reveals that out of total fine amount of Rs.10,500/-, sum of Rs.8,000/- had been ordered to be paid to the next kin of deceased Mangre. Perusal of trial court record further reveals that the entire fine amount had already been deposited by the appellant before the learned trial court and out of the same, sum of Rs.6000/- appears to have been handed over to father of the deceased who had come from Rai Barrelly on 16.3.09. Notice appears to have been sent to the next of kin of deceased for handing over the balance compensation amount by the learned trial court. 20 Although this court is accepting the appeal of the appellant and setting aside the conviction as well as order on sentence, in view of peculiar facts and circumstances of the case, the appellant is restrained from recovering the compensation amount of Rs.8,000/- already paid to next of Rakesh Kumar Vs State kin of the deceased. He would only be entitled to receive back the balance fine amount already deposited by appellant with the learned trial court. The amount paid towards compensation ( Rs.8,000/-) shall be deemed to be a ex-gratia payment by the appellant to the heirs of deceased. 21 With the aforesaid observations, the appeal is accepted and the impugned order of conviction as well as order on sentence are set aside. File be consigned to record room.
Announced in open court (M. R.SETHI)
on 07.8.2009. ADDL.SESSIONS JUDGE-(FTC)
(WEST): DELHI
Rakesh Kumar Vs State