Delhi District Court
Criminal Case/176/2010 on 27 February, 2015
IN THE COURT OF METROPOLITAN MAGISTRATE-05
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Raj Kishore
FIR No. 176/2010
Police Station : Dwarka North
Under Section : 279/338 IPC
Unique Case ID Number: 02405R0611452010
Date of institution : 09.08.2010
Date of reserving : Oral
Date of pronouncement: 27.02.2015
JUDGMENT
a) Serial number of the case : 165/6/14
b) Date of commission of offence : 02.05.2010
c) Name of the complainant : Sub Inspector Kashmiri Lal,
PIS no. 16970019,
Police Station Dwarka North.
d) Name, parentage and address : Raj Kishore,
of the accused S/o Sh. Ram Bilas,
R/o Village Jogahan,
Post Office Sukhroli,
Police Station Pekhulia,
District Basti, Uttar Pardesh.
e) Offence complained of : Section 279 read with Section
304 A IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted of the offences pun-
State v. Raj Kishore
FIR No. 176/2010 P.S.: Dwarka North Page 1 of 15
ishable under Section 279
read with Section 304 A IPC
h) Date of final order : 27.02.2015
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment the accused is being acquitted of the offences punishable under Section 279 read with Section 304 A of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 176/2010 Police Station Dwarka North for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on the night intervening 01.05.2010 and 02.05.2010 at unknown time, near cremation ground, T-Point, Sector-18, Dwarka, New Delhi within the jurisdiction of Police Station Dwarka North, the accused was driving a truck (tanker) bearing No. HR 38G 7001 in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause injury to any other person and while driving the aforesaid truck in the aforesaid manner, he hit against one Sh. Manmohan @ Amit Gupta (hereinafter referred to as the 'deceased'), who was standing near another stationary tanker, and thereby caused his death not amounting to culpable homicide.
ACCUSATION AGAINST THE ACCUSED
3. Vide order dated 01.10.2011 passed by the learned predecessor State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 2 of 15 of this Court, notice of accusation under Section 251 Cr.P.C. for the offences punishable under Sections 279 and Section 304 A of the I.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
4. Vide order dated 24.10.2013 passed by the learned predecessor of this Court, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of FIR No.176/2010 under section 279/338 IPC police station Dwarka North, which was admitted by the accused and accordingly exhibited as Ex.FIR.
EVIDENCE OF THE PROSECUTION
5. The prosecution in all examined eight witnesses.
6. PW-1 Sh. Anil Gupta and PW-7 Sh. Ram Gopal Gupta are the relatives of the deceased Sh. Manmohan @ Amit Gupta who had identified the dead body of deceased in the mortuary of DDU Hospital vide dead body identification memos Ex.PW1/A and Ex.PW6/C and to whom the dead body was handed over vide memo Ex.PW1/B. PW-2 Sh. Puran Chand is the mechanical inspector who had conducted mechanical inspection of the water tankers bearing No. HR38H7327 and HR38G7001 vide reports Ex.PW2/A and Ex.PW2/B respectively. PW-3 Sh. Amit Goel is the registered owner of the tanker bearing No. HR38H7327, attorney of the registered owner of tanker bearing No. HR38G7001 and superdar in respect of both the said vehicles allegedly State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 3 of 15 involved in the accident in question. He had replied to the notice under Section 133 of the Motor Vehicles Act served upon him. PW-4 Constable Devender is the police official who had joined the investigation with the first investigating officer. PW-5 Sh. Aklakh is the eye-witness to the alleged accident. PW-6 Sub Inspector Kashmiri Lal is the first investigating officer in the present case. PW-8 Assistant Sub Inspector Suraj Pal is the second investigating officer in the present case.
STATEMENT / DEFENCE OF THE ACCUSED
7. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he was not driving the vehicle in question and was on leave on the relevant day. He stated that he was taken to the police station by the owner of the vehicle and asked to sign certain documents. He also stated that the eye-witness Sh. Aklakh (PW-5) works for the owner of the offending vehicle and has deposed at the instance of the owner.
DEFENCE EVIDENCE
8. The accused examined one witness in his defence. DW-1 Sh. Pardeep deposed that on 28.04.2010 he had come from his village in search of work/employment and stayed with the accused from 28.04.2010 till 03.05.2010 during which period nothing had happened.
COURT PROCEEDINGS
9. The case was received by way of transfer by this Court on 06.02.2014.
State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 4 of 15 ANALYSIS AND FINDINGS
10. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Sanjeev Rawat, learned counsel for the accused have been considered.
I. Charge under Section 279 I.P.C.
11. In order to bring home the guilt of the accused in respect of the offence under Section 279 I.P.C. charged against him, the prosecution was required to prove the following:
(i) that it was the accused who was driving the offending vehicle on the date, time and place of the alleged accident;
(ii) that it was the vehicle i.e. tanker/truck bearing No. HR38G7001 which was being driven by the accused on the date, time and place of the alleged accident; and
(iii) that the accused was driving the offending vehicle in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person.
Re: Identity of the accused
12. In order to establish the identity of the accused qua the accident in question i.e. to establish that it was the accused who was driving the offending vehicle on the date, time and place of the alleged accident, the prosecution has examined two witnesses, i.e. PW-3 Sh. Amit Goel and PW-5 Sh. Aklakh.
State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 5 of 15
13. PW-3 Sh. Amil Goel is the registered owner of the tanker bearing No. HR38H7327, attorney of the registered owner of tanker bearing No. HR38G7001 and superdar in respect of both the said vehicles allegedly involved in the accident in question. In his testimony, he merely deposed that he is the registered owner of the vehicle (tanker) bearing no. HR 38H 7327 and had got the same released on superdari vide superdarinama Ex.PW3/A. Further, PW-3 deposed that he had received a notice under Section 133 Motor Vehicles Act, to which he gave his reply Ex.PW3/B. In his reply Ex.PW3/B to the notice under Section 133 of the MV Act Ex.PW8/A, PW-3 has stated that he is the elder brother of the registered owner of the vehicle bearing No. HR38G7001 and looks after the said vehicle. He has further stated therein that on the night intervening 01st and 02nd May, it was the accused who was driving the offending vehicle at the time of the alleged accident. However, in his cross-examination, PW-3 admitted that usually he does not maintain any record of the driver and that he has two more vehicles. Moreover, since admittedly PW-3 Sh. Amit Goel was not an eye-witness to the alleged accident, his testimony to the aforesaid effect is of no aid to the prosecution to establish the identity of the accused with regard to the alleged accident.
14. PW-5 Sh. Aklakh is the sole eye-witness in the present case. As per the prosecution story, PW-5 Aklakh had witnessed the accident in question as he was repairing the truck bearing No. HR38H7327 at the spot of the accident and the deceased, who was the care taker of the said vehicle, was standing near him to the left of the said truck on the State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 6 of 15 relevant date and time. In this regard, the prosecution has relied upon a statement dated 04.05.2010 of the said witness recorded under Section 161 Cr.P.C. In his examination-in-chief, PW-5 correctly identified the accused as the driver of the truck in question at the time of the alleged accident. However, for the reasons to follow, the said identification of accused Raj Kishore by PW-5 Sh. Aklakh is not found to be reliable.
15. Firstly, while the alleged accident had taken place on the night intervening 01.05.2010 and 02.05.2010, the statement of PW-5 Sh. Aklakh under Section 161 Cr.P.C. was recorded only on 04.05.2010 i.e. after two days of the incident. The said delay in recording the statement of an eye witness has, however, remained unexplained on the part of the prosecution and is, therefore, a major lacuna in the case of the prosecution. As per the police report, the complainant/PW-6 Sub Inspector Kashmiri Lal did not find any eye witness of the accident either at the spot or at the hospital and had got the case registered on the DD entry. It is most unnatural conduct on part of the alleged eye- witness to have failed to inform the police about the accident in question or accompany the injured/deceased to the hospital and to have altogether disappeared from the scene, if the alleged accident had in fact occurred in his presence as alleged. In his cross- examination, PW-5 has stated that he had gone to the police station on the next day, i.e. 02.05.2010 or 03.05.2010, with the owner of both the vehicles. However, it has not been explained by the prosecution as to why his statement was not recorded on the said day of his visit to the police station. Further, there is nothing on record to suggest that PW-5 Aklakh along with deceased Manmohan was deputed to repair the State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 7 of 15 vehicle bearing no. HR 38H 7327 on the date and time of the incident. The alleged Sh. Aslam, owner of the workshop where PW-5 was allegedly employed, who had allegedly deputed PW-5 to repair the said truck has neither been cited nor examined by the prosecution. In view of the aforesaid, the very presence of PW-5 Sh. Aklakh at the spot at the time of accident appears to be doubtful.
16. Even if the presence of PW-5 Sh. Aklakh at the spot at the time of the alleged accident was to be believed, for the reasons discussed hereunder, the identification of the accused by the said witness cannot be relied upon to hold that it was the accused who was driving the offending vehicle at the relevant time.
17. While the accused has been specifically named by PW-5 Sh. Aklakh in his statement under Section 161 Cr.P.C. recorded by the police as Raj Kishore @ Baba, there is nothing in the said statement to show that the accused was known to the said witness prior to the alleged accident and, if so, how. There is not even any averment in the examination in chief of PW-5 to the effect that the accused was known to him from before the alleged accident. It is for the first time in his cross-examination that the witness stated that he knew the accused from before and had met him twice or thrice before the incident. However, the witness has not explained as to how he knew the accused.
18. In his examination in chief, PW-5 deposed that after the offending tanker had hit the deceased, it stopped at a distance of about 100 meters and thereafter the driver of the said vehicle got down and State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 8 of 15 ran from the spot. Thus, it cannot be believed that the driver of the offending vehicle could have been seen by the witness from a distance of 100 meters that too in the dark as it was around midnight when the accident allegedly took place. While, in his cross-examination, PW-5 stated that he had seen the driver of the offending vehicle when the two vehicles had collided as there was a street light on the divider which had thrown some light on the face of the driver, the same is not believable inasmuch as the driver of the truck/tanker in question, sitting at a considerable height from the ground level, could not have been visible to the witness who as per his own version was sitting down on the road and repairing the gear box of the other stationary tanker.
19. Further, in his cross-examination, PW-5 stated that there was no light at the spot where he was working except for the small bulb which he was carrying for carrying out repair work and which was held by one Sh. Aslam. However, thereafter he denied the suggestion put to him in his cross-examination that he had not seen the accused and stated that he had seen the driver of the offending vehicle when the two vehicles had collided as there was a street light on the divider which had thrown some light on the face of the driver. Thus, while at one place PW-5 stated that there was no light at the spot except for that emitting from the small bulb held by Sh. Aslam, at another place he has stated that there was street light on the divider and thereby contradicted himself. Further, in his cross-examination, PW-5 has stated that he had noticed the headlights of the offending vehicle and admitted that due to the reflection of headlights of the tanker, one could not see or identify the driver. However, he volunteered to explain that due to turning point, the State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 9 of 15 reflection was not facing directly on his eyes.
20. In view of the above, the prosecution has failed to establish that it was the accused who was driving the vehicle in question on the date, time and place of the alleged accident.
Re: Identity of the offending vehicle
21. The case of the prosecution is that on the relevant date, time and place the accused was driving the truck/tanker bearing No. HR38G7001. The sole eye-witness cited or examined by the prosecution, i.e. PW-5 Sh. Aklakh, did not state the registration number of the offending vehicle. In fact, during his examination in chief, despite the case property i.e. truck/tanker in question having been produced by the superdar, PW-5 stated that he was unable to identify the same as the offending vehicle due to lapse of time. Thus, he could not identify the truck bearing No. HR38G7001 as the offending vehicle despite the same having been shown to him. As such, his testimony is of no aid to the prosecution on the point of identity of the truck/tanker bearing No. HR38G7001 in respect of the alleged accident. There is no other material on record to connect the truck/tanker bearing No.HR38G7001 with the alleged accident.
22. In view of the aforesaid, the involvement of the truck bearing No. HR38G7001 in the accident in question has not been established by the prosecution.
23. Since, as discussed above, the identity of the accused as well as the truck/tanker bearing No.HR38G7001 qua the alleged accident has State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 10 of 15 not been established beyond reasonable doubt, there is no need to dwell upon the remaining ingredient pertaining to the manner in which the vehicle was being driven.
Re: Other factors for doubting the prosecution version
a) Delay in examining the sole eye-witness
24. While the alleged accident had taken place on the night intervening 01.05.2010 and 02.05.2010, the statement of the alleged eye-witness Sh. Aklakh under Section 161 Cr.P.C. was recorded only on 04.05.2010 i.e. two days after the incident. The investigating officer PW-6 Sub Inspector Kashmiri Lal stated in his cross-examination that no witness was found at the spot when he reached there upon receipt of the DD No.3A Ex.PW6/A. In contrast thereto, PW-5 Sh. Aklakh stated that police had arrived at the accident spot in his presence and had stayed at the spot for about half an hour. While as per PW-5, his statement was recorded on the next day in the police station when he went there with the owner of the vehicles, PW-6 deposed that the eye witness PW-5 Sh. Aklakh met him and introduced himself as an eye witness of the accident, when he visited the spot on 04.05.2010. In fact, contrary to the version of the investigating officer, the alleged eye- witness PW-5 Sh. Aklakh stated in his cross-examination that he never went to the spot after the day of accident. Thus, not only was there delay in recording the statement of the eye-witness, and that too unexplained, but the date, time and place of recording of the said statement is also doubtful.
State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 11 of 15
b) Non-examination of witness Aslam
25. Further, as per PW-5, at the time of the accident, he was repairing a tanker/truck in the light of a bulb and one Aslam was holding the said bulb. Thus, as per the version of PW-5 Aklakh, the said Sh. Aslam was also present at the spot at the time of accident. However, the said Sh. Aslam has neither been cited nor examined by the prosecution in the present case. Further, there is nothing on record to suggest that the police had made any efforts to examine Sh. Aslam during the course of investigation.
c) Inconsistencies in the versions of the complainant and contradictions in the testimony of witnesses
26. There are inconsistencies in the versions of the complainant in the complaint and his testimony recorded in the court and there are also certain other material contradictions in the testimony of the prosecution witnesses which create a reasonable doubt as to the truthfulness of the prosecution story.
27. While as per PW-5, his statement was recorded by the police on the next day of the incident i.e. on 02.05.2013 or 03.05.2013, his statement recorded under Section 161 Cr.P.C. is dated 04.05.2013 i.e. two days after the incident.
28. In his testimony in Court, PW-5 stated that one Aslam was also present with him at the spot at the time of the accident. However, the presence of the said Aslam has not been mentioned in the statement of PW-5 recorded by the investigating officer under Section 161 Cr.P.C.
State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 12 of 15
29. Further, while as per the investigating officer PW-6, the statement of PW-5 Aklakh was recorded on 04.05.2013 when he had come to the spot of his own, as per PW-5, he had never visited the spot after the accident.
30. In his examination-in-chief, PW-5 stated that he had identified the accused when he was produced in the police station by the owner of the vehicle. In his cross-examination, PW-5 stated that he had visited the police station on the next day of the accident i.e. 02.05.2015 or 03.05.2013 with the owner of the vehicles. However, as per the prosecution case, notice under Section 133 Motor Vehicles Act was served upon the owner of the offending vehicle and pursuant to the same, the owner of the offending vehicle along with accused appeared in the MACT Cell on 07.05.2013.
31. While as per PW-5 Aklakh, there was no light at the spot where he was working, except a small bulb held by one Aslam for carrying out repair, however, as per PW-4 Constable Devender and PW-6 Sub Inspector Kashmiri Lal, there was street light at the spot.
32. While in his statement recorded under Section 161 Cr. P. C., the witness Sh. Aklakh has given the exact date and time of the accident, in his statement recorded in the court, PW-5 could not tell the date or month of the incident even by approximation. Further while as per PW-5, the accident took place at about 11-12 night, the DD number 3A regarding the accident was received in the police station at about 1.35 am.
State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 13 of 15
33. Whereas in his examination-in-chief, PW-6 Sub Inspector Kashmiri Lal stated that he had prepared the site plan at the instance of the eye-witness, in his cross-examination, he stated that he had prepared on the basis of the position of the vehicles as noticed by him.
34. Further, in his cross-examination, PW-6 stated that the site plan was prepared in 02.05.2015 whereas in his examination-in-chief, he had deposed that he had prepared the site plan on 04.05.2015 after he had met the eye-witness at the spot.
35. Thus, in view of the aforesaid detailed discussion, this Court finds it difficult to believe the prosecution version and hold the accused guilty of the offence punishable under Section 279 I.P.C. The accused is granted the benefit of doubt and is accordingly acquitted of the offence punishable under Section 279 I.P.C.
II. Charge under Section 304A IPC
36. For bringing home the charge under Section 304A I.P.C., the prosecution was required to prove that (1) death of a person (Sh. Manmohan @ Amit Gupta) had been caused, and (2) the same was caused by the accused by doing a rash or negligent act. As already discussed above, the prosecution has failed to establish beyond reasonable doubt that it was the accused was driving the offending vehicle at the time of the alleged accident or that the accused committed any rash or negligent act or did any act so rashly or negligently as to endanger human life, or the personal safety of others. Thus, the accused is allowed the benefit of doubt and is acquitted of the offence punishable under Section 304A I.P.C. State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 14 of 15 CONCLUSION
37. Accordingly, the accused is acquitted of the offences punishable under Section 279 I.P.C. as well as Section 304 A I.P.C.
38. File be consigned to record room.
Announced in open Court on 27.02.2015.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 27.02.2015 State v. Raj Kishore FIR No. 176/2010 P.S.: Dwarka North Page 15 of 15