Delhi District Court
State vs Sanjeev Kumar on 8 May, 2015
IN THE COURT OF SH. PAWAN KUMAR, MM01,
SOUTH EAST, SAKET COURTS, NEW DELHI
State V/s Sanjeev Kumar
FIR No.: 317/06
P.S.: Lodhi Colony
U/s: 279/304 (A) IPC
1.Serial No. of the case : 769/12
2.Date of commission of offence : 06.09.2006
3.Name of the Complainant : HC Suresh Chand
No. 1333/SD
4.Name of the accused, and : Sanjeev Kumar
his parentage and residence S/o Jail Pal Singh
R/o H. No. 168/10B,
Vasundhara
Ghaziabad( U.P.)
5.Date when reserved for judgment : 18.04.2015.
6.Date of pronouncement of Judgment : 08.05.2015.
7.Offence Complained of or proved : 279/304 (A) IPC
8.Plea of accused : Pleaded not guilty
9.Final Judgment : Acquitted
1. The accused stood for trial for commission of offence u/s 279/304 A IPC. The present case FIR was registered on the DD no. 28 A dated 06.09.2006 P.S. Lodhi Colony. The said DD entry was recorded on receiving the information from P.S. Kalkaji regarding the accident and MLC of the injured Rehman. The case of the prosecution in brief is that on 06.09.2006 the accused was driving a motorcycle bearing no. UP14V2466 and the injured was the pillion rider. It is alleged that the accused was driving the motorcycle at the high speed and hit the unknown vehicle going ahead of it. Due to the impact the FIR No.317/06 State Vs. Sanjeev Kumar Page No. 1 of 11 pillion rider sustained injuries. The injured was shifted to the hospital with the help of other public persons. Initially information was given to P.S. Kalkaji and the police official collected the MLC of the injured. The police officials of P.S. Kalkaji recorded the statement of the accused and on being satisfied that the incident pertains to P.S. Lodhi Colony he informed accordingly. On the basis of the aforesaid allegations the present case FIR was registered against the accused and investigation was conducted.
2. On completion of the investigation, the charge sheet under section 279/304 A IPC was filed by the IO against the accused. The copy of the charge sheet was supplied to the accused under Section 207 Cr.P.C.
3. Notice under section 251 Cr.P.C. was served upon the accused for the commission of offences u/s 279/304A IPC to which he pleaded not guilty and claimed trial.
4. Thereafter, matter was put to prosecution evidence. Prosecution has examined Nine (9) witnesses to prove its case against the accused.
PW3 HC Ashok Tomar and PW5 Ct. Brijpal are the eye witnesses of the incident. Both the witnesses were on vehicle checking duty at the spot. They deposed that at about 1.45 pm one motorcycle bearing no. UP14V2466 being driven at a fast speed came from Kotla Mubarakpur side and hit one vehicle from the back side which was going ahead of the said motorcycle. On hearing the noise they sent the injured to the hospital in other vehicle. IO prepared the site plan at the instance of PW3. PW3 and PW5 witnessed the arrest of the FIR No.317/06 State Vs. Sanjeev Kumar Page No. 2 of 11 accused. Both the witnesses identified the accused in the court. PW8 SI Rajbir Singh deposed that on 07.09.2006 he was posted at P.S. Kalkaji and on that day on receiving DD no. 15A he visited AIIMS hospital and found the injured Rehman admitted there. He obtained the MLC of the injured. He recorded the statement of Sanjeev Kumar( accused herein), who was present with the injured at the time of incident. Since the incident had happened in the jurisdiction of P.S. Lodhi colony therefore, he sent the statement of Sanjeev Kumar and MLC of the injured to P.S. Lodhi Colony.
PW9 ASI Suresh Chand is the investigating officer of this case, he deposed that on receiving DD no. 28A dated 06.09.2006 he went to the AIIMS hospital and found the injured Rehman admitted vide MLC no. 113245. No eye witness was found at the spot. The MLC was already taken by SI Rajbir of P.S. Kalkaji. He received the MLC as the same was handed over to Ct. Mohan Lal. He prepared the tehrir Ex.PW9/A on the DD entry and got the FIR registered. On 07.09.2006 accused himself came to the police station and produced the offending vehicle. He seized the motorcycle vide seizure memo Ex.PW9/B. On 08.09.2006 he met HC Ashok Kumar and Ct. Vedpal at the spot and they narrated the incident to him. He prepared the site plan at the instance of HC Ashok Kumar and the same is Ex.PW9/C. The offending motorcycle was sent to the FSL for mechanical inspection. On 14.09.2006 he seized the driving license of the accused vide memo Ex.PW9/D. He arrested the accused and conducted his personal search vide memo Ex.PW3/A and PW9/E. The injured had expired on 15.09.2006 and the post mortem of the deceased was got conducted at the request of ASI Jaipal.
PW6 Ct. Mohan Singh deposed that on receiving DD he along FIR No.317/06 State Vs. Sanjeev Kumar Page No. 3 of 11 with SI Suresh Chand went to the AIIMS Hospital and collected the MLC. IO prepared the tehrir and handed over to him for the registration of the FIR. After the registration of the FIR he went to the spot and handed over the copy of the FIR and rukka to the IO. They returned to the P.S. Lodhi Colony where the accused handed over the motorcycle and the same was taken into possession.
PW7 Sh. T.U. Siddiqui conducted the mechanical inspection of the offending vehicle and the inspection report is Ex.PW7/A. PW1 Sh. Manik Rehman deposed that he had identified the dead body of his son and received the same after post mortem. PW2 HC Harphool was the Duty officer and deposed that on 07.09.2006 he recorded the present case FIR on receiving the rukka sent by HC Suresh Chand. The copy of the FIR is Ex.PW2/A. PW4 Sh. Pradeep Kumar deposed that on receiving the notice u/s 133 M.V. Act he gave the reply Ex.PW4/A1 and produced the offending vehicle at P.S. Lodhi Colony. He got released the vehicle on superdari vide superdaginama Ex.PW4/A. He produced the case property Ex.P1.
5. The accused admitted the factum of registration of MLC and post mortem report of the deceased. On the admission of the accused u/s 294 Cr.P.C. the corresponding witnesses were dropped. On examination of the material prosecution witnesses, prosecution evidence was closed. All the incriminating facts came in evidence against the accused were put to him while recording his statement U/s 313 Cr.P.C. The accused opted not to lead defence evidence.
6. I have heard the arguments put forth by the Ld. APP for FIR No.317/06 State Vs. Sanjeev Kumar Page No. 4 of 11 the state and by Ld. Defence Counsel. I have also perused the materials available on record.
7. It is the case of the prosecution that accused caused the death of deceased by driving the offending vehicle in rash or negligent manner. To prove these allegations, the prosecution must prove
(i) That the accused was driving the vehicle or that he was riding
(ii) That it was a public way on which he was driving or riding,
(iii) That he was driving or riding in a rash or negligent manner.
8. It is the case of the prosecution that accused was driving the offending vehicle at the high speed in rash and negligent manner and hit an unknown four wheeler. The pillion rider of the offending vehicle sustained injuries and expired. The defence of the accused is that the incident happened due to the rash driving of the unknown vehicle and he has been falsely implicated in this case.
9. In a case of Section 279/304 A IPC the prosecution has to specifically establish firstly that the accused was driving the vehicle at the time of incident and the vehicle was driven by the accused in a rash and negligent manner.
10. In the present case, the identity of the accused being the driver of the offending vehicle is not disputed or denied. The defence of the accused is that on the day of incident he was driving the offending vehicle and the deceased was the pillion rider. When they reached at the spot one four wheeler riding ahead of them suddenly applied the break due to which the FIR No.317/06 State Vs. Sanjeev Kumar Page No. 5 of 11 motorcycle hit the four wheeler.
11. In the case of offences u/s 279/304A the rashness and negligence of the accused must be specifically established by the prosecution. PW3 and PW5 are the eye witnesses of the incident. Both the witnesses deposed that the accused was driving the offending motorcycle at the high speed. It is interesting to note that both the witnesses deposed that on hearing the noise they went to the spot. Admittedly both the witnesses were on vehicle checking duty and therefore they had no opportunity to see the vehicles riding on the other side of the road. Moreover, the witnesses could not tell the make and registration number of the four wheeler with which the offending vehicle was collided. In such circumstances it is not believable that the witnesses had seen the offending vehicle before the incident being driven rashly or negligently. Furthermore both the witnesses merely stated that the offending vehicle was driven at the high speed. It is settled preposition that the mere fact of high speed is not sufficient to reach at the conclusion that the vehicle was being driven rashly or negligently.
12. It is argued on behalf of the accused that PW3 and PW5 are the planted witness being the police official. In Karamjit Singh v. State(AIR 2003 SC 1311), the Hon'ble Supreme Court has held that :
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper FIR No.317/06 State Vs. Sanjeev Kumar Page No. 6 of 11 judicial approach to distrust and suspect them without good grounds'.
Recently, The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP(AIR 2007 SC 3106) and held that, "It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced tat what was stated by a witness has a ring of truth, conviction can be based on such evidence'.
13. In order to rely upon the testimony of an eye witness his presence on the spot must be specifically established. In the cross examination PW3 and PW5 could not tell the DD entry of their arrival and departure in the police station. During cross examination PW 3 stated that he does not remember the DD number vide which he was on patrolling duty. The arrival and departure entries of the police officials who had witnessed the FIR No.317/06 State Vs. Sanjeev Kumar Page No. 7 of 11 incident is a vital piece of evidence. Conspicuously, no departure or arrival entries of PW3 and PW 5 recorded in the daily diary register of Police Station is placed on record by the prosecution. The police officials are under the statutory duty to mark their departure and arrival in the register kept for the purpose as per the PPR rules. It is apposite at this juncture to reproduce Chapter 22 Rule 49 of Punjab Police Rules, 1934, provides as under:
"22.49 Matters to be entered in Register No. II - The following matters shall, amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personality by signature or seal.
Note: The term Police Station will include all places such as Police Lines & Police Posts where Register No. II is maintained.
14. PW3 and PW5 were posted at the police station Lodhi Colony and the place of incident pertains to the same police station. Admittedly they had neither informed to the concerned police station, PCR or Ambulance. Here it is pertinent to mention that initially the information was given to the police station Kalkaji. Both the eye witnesses were not found at the spot by the IO. The statement of both the witnesses was recorded after two days of the incident. During this time they did not inform to the IO regarding the said incident.
15. The aforesaid facts and discussion creates doubt over the presence of both the witnesses at the spot at the time of FIR No.317/06 State Vs. Sanjeev Kumar Page No. 8 of 11 incident. As per the settled law laid down by the Hon'ble Apex court the testimony of the police official should be scrutinize with extra care and caution. The deposition of both the witnesses is not trustworthy and reliable and do not inspire the confidence. The evidence of both the witnesses and other facts support the defence that both the witnesses have been planted by the IO.
16. The investigation in this case is conducted very carelessly. There are serious contradictions in the testimony of the material prosecution witnesses. PW8 is the first IO of P.S. Kalkaji who collected the MLC of the injured. He deposed that he searched Sanjeev Kumar who was present with the injured at the time of incident and recorded his statement. He further deposed that he handed over the statement of Sanjeev Kumar ( accused herein) and MLC to the IO of P.S. Lodhi Colony. The statement of the accused recorded by PW8 is on record. The said statement was not considered by the IO during investigation. The present case FIR was registered on the DD no. 28A. As per the rukka Ex.PW9/A Ct. Mohan handed over the MLC of the injured to the IO. The statement of the accused recorded by PW8 is not mentioned in the rukka for the reason best known to the IO.
17. The IO deposed that on 07.09.2006 i.e., the next day of the incident, the accused himself came to the police station and handed over the motorcycle and the same was seized vide memo Ex.PW9/B. In contradiction to that notice u/s 133 M.V. Act was given on 14.09.2006. The owner of the offending vehicle/ PW4 deposed that on receiving the notice u/s 133 M.V. Act he produced the motorcycle and got released on superdari.
FIR No.317/06 State Vs. Sanjeev Kumar Page No. 9 of 11Furthermore the offending vehicle was seized on 07.09.2014 and mechanical inspection was got conducted on 10.09.2014. The prosecution failed to explain the aforesaid anomalies.
18. As per the case of the prosecution PW8 SI Rajbir P.S. Kalkaji had collected the MLC of the injured and later on sent to the P.S. Lodhi Colony. As per PW6 he went to the AIIMS hospital along with the IO SI Suresh Chand and collected the MLC. In the MLC of the injured he was reported to be admitted by the person namely Rahul Sharma. The address of the said person in mentioned in the MLC. The said person was not examined by the IO during investigation and that is why he was not cited as the prosecution witness. In the cross examination IO could not explain the reason of non examination of the said witness.
19. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
20. The evidence of the alleged eye witnesses is not trustworthy. Even the presence of the eye witnesses is under the shadow of doubt. There are material contradictions and discrepancies in the investigation conducted by the IO. In my considered opinion the prosecution miserably failed to prove the charges against the accused.
21. So, keeping in view the above discussion and materials FIR No.317/06 State Vs. Sanjeev Kumar Page No. 10 of 11 available on record, I am of the considered view that charges against the accused U/s 279/304 (A) IPC are not proved by the prosecution beyond reasonable doubt. Hence, accused Sanjeev Kumar is acquitted for the offences U/s 279/304 (A) of Indian Penal Code.
22. File be consigned to record room after necessary compliance.
Announced in open Court today (Pawan Kumar) on 08.05.2015. Metropolitan Magistrate01, South East, Saket Courts.
FIR No.317/06 State Vs. Sanjeev Kumar Page No. 11 of 11