Delhi District Court
State vs . Ish Sharma on 9 May, 2012
IN THE COURT OF SH. HEM RAJ, METROPOLITAN MAGISTRATE,
WEST - 09, TIS HAZARI COURTS, DELHI
STATE Vs. ISH SHARMA
FIR No : 195/1993
U/S : 279/338 IPC
P.S : Vikas Puri
1. Serial No. of the Case : 237/2010
2. Unique ID of the Case : 02401R0029311994
3. Date of Commission of Offence : 10.5.1993
4. Date of institution of the case : 14.12.1993
5. Name of the complainant : Shyam Sunder
6. Name of accused, parentage & : Ish Sharma S/o Sh. Ram Chander
address Sharma R/o House No. 1655,
Sector 28 , Faridabad, Haryana
7. Offence complained : U/S 279/338 IPC
8. Offence charged with : U/S 279/338 IPC
9. Plea of Accused : Pleaded Not Guilty.
10.Final Order : Convicted u/s 279/338 IPC
11.Date of Final Order : 9.5.2012
J U D G M E N T
1 Accused Ish Sharma has faced the trial for the commission of offences as provided u/s 279/338 IPC. The allegations against him, were that on 10.05.1993, at about 8.30 am, on the road between blockGGI to GGII he FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.1/24 was driving the maruti car bearing registration No. DL2C7097 in a rash or negligent manner, as well as in high speed, in a wrong side and while driving so he hit against one two wheeler scooter bearing No. DLW307 being driven by one Shyam Sunder from front side. Due to the impact, complainant Shyam Sunder fell down on the road alongwith the scooter and received injuries in his right hand and legs. The accused came out from his car and helped the complainant to stand upon his legs but then suddenly he left the complainant and ran away from the spot alongwith his car. At the same time, one Anil Kumar, the neighbour of the complainant also came at the spot who took him to the hospital. Accordingly, the investigation was carried out and chargesheet u/s 279/338 IPC and u/s 187 MV Act was filed against the accused.
2 In compliance of Section 207 Cr.P.C, the copy of the charge sheet along with other documents were supplied to accused. Later on, vide order dated 23.02.1995, notice for commission of offences under sections 279/338 IPC framed against the accused by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3 However, during the trial accused himself absented and coercive FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.2/24 process u/s 82 Cr.P.C. was executed against him. Accordingly, he was
declared as proclaimed offender vide order dated 13.05.2004. Vide order dated 26.09.2005, my Ld. Predecessor was pleased to consign this file to the record room with liberty to the prosecution to revive the same as and when accused was arrested in this case.
4 On 23.03.2006 accused was admitted on bail by my Ld. Predecessor when he was produced before the court and the case file was summoned from the record room for 28.03.2006. Thereafter, the case was proceeded for trial. However, the accused again did not appear in the court and again coercive process u/s 82 Cr.P.C. were issued against him. Again vide order dated 01.02.2011, the accused was declared as proclaimed offender in this case. However, on 12.10.2011, the accused was admitted on bail. 5 Later on, the prosecution has filed a supplementary charge sheet against the accused for the commission of offence u/s 174A IPC. On 14.2.2012 the accused was charged with the offence u/s 174A IPC. He pleaded guilty for the same and on his plea of guilt the accused was convicted for the same. He was sentenced to the imprisonment for the period already undergone by him. He was also sentenced to pay a fine of Rs. 1000/ FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.3/24 and was further directed to undergo simple imprisonment for a period of ten days in default of the same. The accused paid the fine.
6 In order to substantiate the allegations against the accused, in the main charge sheet, the prosecution examined seven witnesses. 7 PW1 Shyam Sunder was the complainant in this case. He deposed that on 10.05.1993, he was riding his scooter bearing No. DLW307 from GG I to GGII and a car coming from GGI in a fast speed struck against his scooter from front side due to which he fallen down. He further deposed that the driver stopped his vehicle, saw him and then ran away from the spot. In the meanwhile, his neighbour namely Anil Kumar resident of the same block came there and admitted the complainant in the hospital. He further deposed that his right hand got fractured. He deposed that police met him in the hospital on 10.03.1993 and recorded his statement as Ex. PW1/A. He correctly identified the accused as the driver of the offending car.
In the crossexamination, he denied the suggestion that there was a great rush of the traffic on the road or that he was driving the vehicle in a high speed or that accused blew horn of his vehicle or that accused was correct side on the road. He further stated that Anil Kumar was present there when FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.4/24 his statement was recorded by the police. He denied the suggestion that he was driving the vehicle in a fast speed.
8 PW2 Shyam Lal Chopra was the Mechanical Inspector in this case. He deposed that he mechanically inspected the car bearing No. DL2C7097 and scooter bearing No. DNW0307 at the request of the IO. He proved his report as Ex. PW2/A and B respectively.
He was not crossexamined on behalf of the accused.
9 PW3 ASI Lal Chand was the IO of this case. He deposed that on receipt of DD No. 17B, Ex. PW3/A, he reached at the spot alongwith Ct. Devender and found one scooter bearing No. DNW307 in accidental condition and the injured was already left to the hospital. Thereafter, he left the Constable Devender at the spot and reached DDU Hospital and received the MLC of injured and recorded his statement as Ex. PW3/B. Then he came back to the spot and ruqqa was prepared and FIR got registered. He proved the site plan as Ex. PW3/C, seizure memo of the scooter as Ex. PW3/D. He also proved the notice U/S 133 MV Act as Ex. PW3/E as well as seizure memo of offending car as Ex. PW3/F. He also proved the seizure memo of DL of the accused as Ex. PW3/G. FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.5/24 He was crossexamined by the Ld. Defence Counsel at length. He denied the suggestion that the accused was falsely implicated at the instance of the owner of the car.
10 PW4 J.C. Vashistha was the Record Clerk of the DDU Hospital and he submitted the MLC of the injured Shyam Sunder prepared by Dr. Anita Joshi who left the hospital. He deposed that he has been working in the hospital since 1983.
He was not crossexamined on behalf of the accused.
11 PW5 HC Balveer Singh was the DO in this case who proved the FIR as Ex. PW5/A. He was also not crossexamined on behalf of the accused. 12 PW6 Ct. Jagvinder Singh recorded the DD No. 17B in the Roznamcha. He deposed that DD Entry has been destroyed as per the routine after three years.
He was crossexamined on behalf of the accused.
13 PW7 Dr. B.B. Thukral, was the radiologist in this case. He proved his FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.6/24
XRay report as Ex. PW7/A and deposed that as per the report there was a fracture of right femur and under ulnar styloid process and forth metacarpal. 14 No other witness was examined by the prosecution despite the opportunities given.
15 In the statement U/S 313 Cr.P.C. accused admitted that on the relevant time, date and place, he was driving the car, however, he denied that he driving the same in rash or negligent manner and hit against the scooter of the complainant. He claimed to be innocent and to be falsely implicated by the police in this case. No defence evidence was brought by the accused in this case despite the opportunities given to him for the reasons best known to him.
16 It has been submitted by the Ld. APP that the prosecution has been able to prove the case against the accused beyond reasonable doubt for the commission of the offences, the accused has been charged with. He specifically drawn the attention of the Court towards the statement of the complainant. He submitted that despite crossexamination, the testimony of the complainant could not be shaken by the accused.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.7/24 17 On the other hand, Ld. Counsel for the accused has argued that
prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. He has argued that the prosecution has not proved the offence against the accused persons beyond reasonable doubt. He further argued that the complainant has not deposed the registration number of the offending car in his testimony. He further argued that the identification of the accused in the Court is of no value as the accused was identified by the complainant in the Court after two years and such identification should not be believed as there was no prior TIP of the accused. He further argued that the owner of the vehicle has not been examined in absence of which it has not been proved on the record that the offending vehicle was in the possession of the accused at the time of the accident. He further submitted that the investigation in this case was shoddy in as much as IO has not filed any photographs on the record of both the vehicles or of the spot. He further submitted that considering all the aforementioned facts and circumstances, the case of the prosecution cannot be set to have been proved beyond reasonable doubt. He further submitted that the accused was innocent and falsely implicated by the police in this case.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.8/24 18 I have heard rival submissions as advanced by the Ld. APP for the
State and the Ld. Counsel for the accused. I have also gone through the oral and the documentary evidence adduced on the record to appreciate contentions of the parties.
19 The accused has been charged with the commission of offence u/s 279/338 IPC.
20 To prove the case against the accused the prosecution was required to prove the following facts:
A. The identity of the accused being the driver of the offending vehicle;
B. That the accused caused the accident by his rash or negligent driving at a public place;
C. That the rash or negligent driving of the accused resulted the grievous injuries to the injured.
21. I shall now proceed to discuss the oral and the documentary evidence led by the prosecution in my quest whether the prosecution has been successful in bringing the evidence which can justify the conviction of the FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.9/24 accused or whether the accused deserves to be acquitted in this case. I shall discuss the evidence visavis each essential ingredients of the offences alleged against the accused.
THE IDENTITY OF THE ACCUSED 22 The prosecution has examined only one eye witness in this case i.e, the complainant, PW1 Shyam Sunder. In his deposition he has clearly mentioned that the accused Ish Sharma after committing the accident stopped his vehicle and saw him and thereafter, ran away from the spot. The complainant correctly identified the accused in the court as the person who caused the accident in this case. The Ld. Counsel has argued that in the absence of the TIP of the accused, the first time dock identification of the accused in the court has no value, as the complainant and the accused were not known to each other.
23 To appreciate the contention of the Ld. Defence Counsel it would be appropriate to consider the law of the test identification of the accused, as held by the catena of the judgments by the superior courts.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.10/24
24 In Vaikuntam Chandrappa and Ors. Vs State of Andhra Pradesh,
AIR 1960 SC 1340, it was observed by the Hon'ble Supreme Court that the substantive evidence of a witness is his statement in court but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in court as to the identity of the accused who are stranger to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding or any other evidence. The same principle was reiterated and followed in Budhsen and Anr. Vs.State of U.P, 1970 Cri.L.J1149, Ronny alias Ronald James Alwaris and Ors. Vs. State of Maharashtra,1998,Cri.L.J.1638 and Rajesh Govind Jagesha Vs State of Maharashtra,2000 Cri.L.J 380. 25 It is also well settled that the identification parades are held ordinarily at the instance of the investigating officer for the purpose of enabling the witnesses to identify either the properties which are the subject matter of alleged offences or the persons who are alleged to have been involved in the offence. Such tests or parades, in ordinary course, belong to the investigation stage and they serve to provide the investigating authorities with material to assure themselves if the investigation is proceeding on right lines. Through these identification parades that the investigating agency ascertains that the FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.11/24 suspected persons were the real culprits. (See: Rameshwar Singh Vs State of Jammu and Kashmir 1972 Cri.L.J 15 and Ravindra alias Ravi Bansi Gohar Vs. State of Maharashtra and others.(1998)6SCC609. 26 In "Kanta Prasad Vs. Delhi Administration 1958 Cri.L.J 1698, Kanan & Ors Vs. State of Kerela 1979 Cri.L.J 919 and State of Maharashtra Vs. Sukhdev Singh & Anr ,1992 Cri.L.J 3454). It was settled that failure to hold test identification parade, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Ordinarily identification of an accused for the first time in court by witness should not be relied upon, the same be from its very nature, inherently of a weak character, unless it is corroborated by his previous identification in the test identification parade or any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate of a witness and to ascertain if it can be used as reliable corroborated evidence of the witness identifying the accused at its trial in court. If a witness identifies the accused in the court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes as a rule of prudence and not law, unsafe to rely on such a witness.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.12/24 27 However the ordinary rule as mentioned in the aforementioned
judgments is the subject to the exceptions. In the judgment of State of Maharashtra Vs Sukhdev Singh (supra) it was held that if a witness had any particular reason to remember about the identity of the an accused, in that event, the case can be brought under the exception and upon solitary evidence of the identification of an accused in court for the first time, conviction can be based. Similarly in the case of Ronny alias Ronald James Alwaris (supra) it was held that where the witness had a chance to interact with the accused or that in a case where the witness had the opportunity to notice the distinctive features of the accused which lends assurance to his testimony in the Court the evidence of identification in court for the first time by such a witness cannot be thrown away merely because no test identification parade was held. In the case of Rajesh Govind Jagesha (supra) it was laid down that the absence of test identification parade may not be fatal if the accused is sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement or is arrested on the spot immediately after the occurrence and in either eventuality, the evidence of witnesses identifying the accused for the first time in court can form basis for conviction without the same being corroborated by any other evidence.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.13/24 28 After deliberating upon the entire law on the subject of identification of
the accused in a criminal trial the Hon,ble Supreme Court in the judgment of Dana Yadav @ Dahu and Ors.Vs State of Bihar, AIR 2002 SC 3325, summarised the law of the test identification parades in the following terms:
"37. In view of the law analysed above, we conclude thus:
(a) If an accused is well known to the prosecution witnesses from before, no test identification parade is called for as it would be meaningless and sheer waste of public time to hold the same.
(b) In cases where according to the prosecution the accused is known to the prosecution witnesses from before, but the said fact is denied by him and he challenges his identity by the prosecution witnesses by filing a petition for holding test identification parade, the court while dealing with such a prayer, should consider without holding a mini inquiry as to whether the denial is a bona fide or a mere pretence and / or made with an ulterior motive to delay the investigation. In case court comes to the conclusion that the dental is bona fide, it may accede to the prayer, but if, however, it is of the view that the same is a mere pretence and / or made with an ulterior motive to delay the investigation, question for grant of such a prayer would not arise. Unjustified grant or refusal of such a prayer would not necessarily enure to the benefit of either party nor the same would be detrimental to their interest. In case prayer is granted and test identification parade is held in which a witness fails to identify the accused, his socalled claim that the accused was known to him from before and the evidence of identification in court should not be accepted.
But in case either prayer is not granted or granted but no test identification parade held, the same ipso facto cannot be a ground for throwing out evidence of identification of an accused in court when evidence of the witness, on the question of identity of the accused from before, is found to be credible. The main thrust should be on answer to the question as to whether evidence of a witness in court to the identity of the accused from before is trustworthy or not. In case the answer is in the affirmative, the fact that prayer for holding test identification parade was rejected or although granted, but no such parade was held, would not in any manner affect the evidence adduced in court in relation to identitiy of the accused. But if, however, such an evidence is not free from doubt, the same may be a relevant material while appreciating the evidence of identification adducted in court.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.14/24
(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court.
(d) Identification parades are held during the course of investigation ordinarily at the instance of investigating agencies and should be held with reasonable despatch for the purpose of enabling the witnesses to identify either the properties which are subject matter of alleged offence or the accused persons involved in the offence so as to provide it with materials to assure itself if the investigation is proceeding on right lines and the persons whom it suspects to have committed the offence were the real culprits.
(e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witness for the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check value to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law.
(f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction.
(g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name of the accused before the police, but to this general rule there may be exceptions as enumerated above." 29 From the aforesaid observations of the Hon'ble Apex Court it is amply clear that the failure of the prosecution in conducting the test identification parade of the accused is always not fatal to the prosecution, and as a rule of prudence and not as a rule of law the test identification of the accused should be conducted especially when the accused is not known to the witness from FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.15/24 before, however, there can be exceptions to this as well. It has come on the record that in the deposition of the complainant that after committing the accident the accused had stopped to see him and ran away from the spot. Hence, in my considered opinion, he would have had the sufficient opportunities to see the accused. Moreover, there is no crossexamination by the accused that the complainant could not have seen the accused at the spot so as to note down the features of the accused. Also the conduct of the complainant was reasonable in view of the natural course of the conduct by the humans as the impression of the accused on the memory of the complainant was possible as the accused had run away after causing the accident wherein, the complainant received injuries. Further, the accused in the crossexamination of the complainant, suggested to him that he was driving the vehicle in the correct side of the road, which implies that the accused himself has admitted his presence at the spot at the time of the accident. Moreover, the accused in his statement under section 313 Cr.P.C, admitted that he was driving the car at the relevant time and the place. In absence of any crossexamination as well as, the facts discussed hereinabove,I do not find any merit in the contention of the Ld. Defence Counsel and hold that the prosecution has successfully proved the identity of the accused as the offender in this case.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.16/24 30 As far as the contention of the Ld. Defence Counsel is concerned that
the complainant has not deposed the number of the offending vehicle, in my opinion, is devoid of any merit, in as much as, in his statement the accused himself has admitted that he was driving a car at the relevant date, time and place. The said car was seized vide memo Ex PW3/F. The notice under section 133 MV Act has been proved on the record as Ex PW3/E by the IO and as per the same the accused was in the possession of the offending vehicle at the relevant time. In the crossexamination of IO a suggestion was given to him that he has been falsely implicated in this case at the instance of the owner of the vehicle but the accused has not been able to bring anything on the record to show any hostility or animosity on the record thereof. Accordingly, I hold that the contention of the Ld. Defence Counsel is liable to be rejected which is accordingly rejected.
RASHNESS OR NEGLIGENCE 31 In Idu Beg, (1881) 3 All 776 which has become locus classicus. it was held as under: "Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.17/24 either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted."
In the case of Rathnashalvan Vs. State of Karnataka 2007 I AD(Cr.) (S.C.) 433 the Hon'ble Supreme Court also observed the concept of criminal rashness and criminal negligence in the similar terms. 32 Since, the prosecution has examined only one eye witness in this case, hence, the question of rashness or negligence has to be decided in light of his testimony only. It is well settled principle of law that for any motor vehicle accident the rashness or negligence on the part of the accused cannot be assumed or presumed and rashness or negligence has to proved by the prosecution like any other fact positively. In his testimony the complainant Shyam Sunder has categorically deposed that the accused was driving his car on the wrong side and hit his car on the front side of the scooter. He specifically denied the suggestion that the accused was driving on the correct side and he also blew horn. He also stated in his crossexamination that there was a divider on the road. Here the only question which arises for consideration is that either the accused was on the wrong side of the road or the complainant was not driving the vehicle on the correct side of the road. Here the site plan ex PW3/A is very important document. The same shows FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.18/24 that there was a divider in the middle of the road. The road in the straight direction was closed due to the divider for the traffic coming from the side from where the accused was coming with his car. It further shows that a vehicle driver coming from the direction from where the accused was coming, if wants to go on the other side of the road i.e across the divider either he had to take a left turn and after few meters he had to take a Uturn from his right side. If the driver did not want to take that much of pain he had another option albeit not correct i.e to take a right turn from the direction where the accused was coming from, towards the wrong direction as the traffic was moving from the direction from where the complainant was coming and then take a short route to come on the other side of the road. However, in this manner one would have acted in the most rash or negligent manner as he had always had a chance hitting some vehicle which was coming in the right direction. Accordingly, it can be safely concluded that the accused while taking his vehicle to his right direction which was a wrong side for him, acted in utter rashness or negligence, as the same would always had a chance of hitting some vehicle which was coming on the correct side of the road, and which had happened in this case. It is apparently visible from the evidence on the record that the accused came on the wrong side of the road and thus, dashed against the scooter of the complainant. Hence, I am of the FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.19/24 considered opinion that the prosecution has successfully proved the rashness or negligence on the part of the accused in causing the accident.
THE INJURIES : WHETHER PROVED OR NOT 33 The next requirement to prove the case against the accused is whether the the prosecution has proved the injuries of the complainant as grievous which was caused in the accident. To prove the said fact the prosecution has relied upon the testimony of PW4 J.C.Vashist who was the record clerk and proved the signatures of Dr. Anita Joshi and further deposed that she has left the hospital deceased. He was not crossexamined by the accused. Ld.Defence Counsel has argued that in the absence of the concerned doctor the MLC cannot be taken as having proved in accordance with law. On the contrary Ld. APP submitted that the MLC is a public document and the court can take the cognizance of the same. In support of his contention he has relied upon the judgment of "Dalip Kumar alias Pinki Vs State" 1995 Cri.L.J 1742 by Hon'ble Delhi High Court. In the said case the concerned doctor who prepared the MLC could not be examined by the prosecution and only the record clerk was examined. It came in the crossexamination of the said witness (PW16) that the concerned doctor had left the job and his whereabouts are not known. The Hon'ble High Court held that once a document is admitted in the evidence after due proof the contents of the said FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.20/24 document would be admissible in the evidence. It was further held that MLC is prepared by public servant in discharge of his duties. That document is prepared in due course of his duty a public servant and therefore it would be a public document and contents of public document will be admissible in evidence. The said judgment relied upon by the Ld. APP is applicable to the facts of the present case. Therefore, in my opinion the contention of the Ld. Defence Counsel is liable to be rejected and I reject the same. The MLC Ex PW4/A shows that that there were fractures on the person of the complainant and the injuries have been opined as Grievous. Since it has already been discussed that the MLC is a public document prepared by the public servant in the discharge of his official duties and the fact that the same has been proved and exhibited on the judicial record, I accordingly find no impediment in looking into the MLC Ex PW4/A. Considering all the facts and circumstances I conclude that the prosecution has proved the nature of the injuries on the person of the complainant as Grievous. 34 Another argument which has been vociferously advanced by the Ld. Defence Counsel is that the prosecution has not examined the alleged neighbour Anil Kumar which has affected the case of the prosecution adversely, since in absence of his testimony the prosecution story cannot be FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.21/24 relied upon. In my opinion, the contention of the Ld Defence Counsel is not sound on merits and is liable to be discarded. Admittedly, the said Anil Kumar is not an eye witness in the case. As per the case of the prosecution, he had reached at the spot after the accident who took him to the hospital. In my considered opinion, the nonexamination of a witness who was not the eye witness is not fatal to the case of the prosecution. I find support in my aforementioned observations from the judicial pronouncement in the case of "Dalip Singh Vs. State of Punjab" , reported as AIR 1979 SC 1173. Accordingly, I have no option but to reject the contention of the Ld. Counsel for the accused and the same is accordingly rejected.
35 Lastly, the Ld. Defence Counsel has argued that the prosecution has failed to prove the case against the accused reasonable doubt. The concept of Beyond Reasonable Doubt was explained in the judgment of Sucha Singh and Another Vs. State of Punjab, AIR 2003 by the Hon'ble Supreme Court as under:
"21. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. [See Gurbachan Singh v. Satpal Singh and others, AIR 1990 SC 209 : 1990(1) RCR(Crl.) 297 (SC)]. Prosecution is not required to meet any and every hypothesis put forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava, AIR 1992 SC 840 : 1992(3) RCR(Crl.) 63 FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.22/24 (SC)]. A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. [See Inder Singh and Anr. v. State of (Delhi Admn.) (AIR 1978 SC 1091)]. Vague hunches cannot take place of judicial evaluation. "A judge does not preside over a criminal trial, merely to see that no innocent man is punished.
A judge also presides to see that a guilty man does not escape. Both are public duties." (Per Viscount Simon in Stirland v. Director of Public Prosecution (1944 AC (PC) 315) quoted in State of U.P. v. Anil Singh, AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."
In view of the aforementioned proposition of law as enunciated in the aforementioned judgment, the question which arises for the consideration here is that whether the defence has been able to create any reasonable doubt in the case. Hon'ble Apex Court has held that the reasonable doubt must emanate from the evidence in the case. The proof beyond reasonable is a guideline and not the fetish. Having considered all the contentions of the Ld. Defence Counsel, especially in view of the evidence adduced in this behalf and in the light of the well settled propositions of law, I am not in agreement with the contention of the Ld. Defence Counsel and hold that there is no reasonable doubt in the prosecution case. Accordingly, the same is dismissed being without any merit in the same.
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.23/24 36 From the aforementioned discussion it is apparently clear on the
record that the prosecution has successfully proved the case against the accused beyond the reasonable doubt. Hence, accused Ish Sharma is hereby convicted for the offence U/s 279/338 IPC. Let the parties be heard on the point of sentence.
ANNOUNCED IN THE OPEN COURT
TODAY i.e. ON 9.5.2012 (HEM RAJ)
MM09:WEST:THC
9.5.2012
FIR No. 195/1993 STATE V/s ISH SHARMA PAGE NO.24/24