Delhi District Court
In Re: State vs Gopal Krishan on 7 July, 2012
IN THE COURT OF GAURAV RAO: METROPOLITAN
MAGISTRATE:SAKET COURTS : NEW DELHI
In Re: STATE VERSUS GOPAL KRISHAN
F.I.R. No: 500/98
U/s 279/337/304A IPC
P.S. Defence Colony
Date of Institution of Case : 15.09.1998
Judgment Reserved for : 07.07.2012
Date of Judgment : 07.07.2012
JUDGMENT:
(a) The serial no. of the case : 147/2/98
(b) The date of commission of offence : 2021/06/98
(c)The name of complainant : Const. Dewan Chand
(d) The name, parentage, of accused : Gopal Krishna s/o Thamban
Nair, R/o House no. A144,
Neeti Bagh, New Delhi.
Present Address :Nileshwar, P.s. Pudukai,
Distt. Kasarajad, Kerela.
FIR No. 500/98 State Vs. Gopal Krishan 1/19
(e) The offence complained of : U/s 279/337/304A IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 07.07.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 2021/6/98 at Khel Gaon Road, near Shiv Mandir, Andrews Ganj, Defence Colony, New Delhi, within the jurisdiction of police station Defence Colony, accused Gopal Krishan was found driving a maruti car bearing no. DL3CA8700 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he struck against cyclist Deshraj which resulted in his death as well as simple injuries upon Hile Raja who was the occupant of above car and thus thereby the accused committed offence punishable u/s 279/337/304A IPC.
2. Charge sheet was filed in the court and in compliance of Section 207 accused was supplied the documents. Thereafter vide order dated 20.07.1999 notice u/s 279/337/304A IPC was framed against accused to FIR No. 500/98 State Vs. Gopal Krishan 2/19 which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution examined 11 witnesses.
A brief scrutiny of the evidence recorded in the matter is as under:
4. PW1 Gautam Singh deposed that on the night of 2021 June 1998 he was posted at PS Defence Colony and on that day he along with HC Rajinder Singh went to Khel Goan near Shiv Mandir, Andrews Ganj in pursuance of the call of accident where they found one maruti car esteem bearing No. DL3C A8700 in accidental condition and one bicycle was also lying there and two home guard personnels were also there. He deposed that he remained at the spot and PCR vehicle had removed the injured to the hospital and HC Rajender Singh also went to the hospital. He deposed that thereafter HC Rajender came back to spot and handed over the tehrir to him which he took to the PS for registration of the case. He deposed that he came back to the spot along with the copy of FIR and the original tehrir. He deposed that spot was got photographed and HC Rajender took into possession the maruti car and the bicycle vide seizor memo Ex.
FIR No. 500/98 State Vs. Gopal Krishan 3/19
PW1/A and Ex. PW1/B respectively. He deposed that he does not
remember if the accused was arrested in his presence but personal search memo was prepared vide Ex. PW1/C.
5. During his crossexamination he stated that he does not remember if he along with HC Rajender Singh was on duty in the PS or in the area. He stated that at about 12 in the night HC Rajender Singh had received the call of accident on his wireless set. He stated that they went to the spot on a two wheeler scooter and had reached there within 5/10 minutes. He stated that except for the two Constables from DHG nobody was present at the spot. He stated that HC Rajender Singh made enquiries from the said Constable and recorded the statement of Const. Diwan Chand. He stated thereafter HC Rajender went to the hospital along with statement so recorded and returned from the hospital after sometime. He stated that he cannot give the said time even approximately. He stated that he did not conduct any proceeding on the spot. He stated that he was given the tehrir by the IO immediately after he came back from the hospital and took the same to the PS. He stated that he returned after about 1 hour, thereafter the car and cycle were taken into possession and the spot was got photographed. The photographer was called by the IO but he does not FIR No. 500/98 State Vs. Gopal Krishan 4/19 remember how was the message conveyed to him. He stated that the accused was not arrested in his presence. He stated that he does not know when and from where was the accused arrested. He stated that on the same night (time he does not remember) he went to AIIMS hospital for supervision of the corpse. He stated that postmortem on the same was conducted after 2/3 days. He again said that he does not remember when was the postmortem conducted but it was conducted in his presence. He does not remember if the corpse was identified in his presence. He stated that he had gone to the spot along with the IO along with receipt of DD no. 58B. He stated that DD was entrusted to them by the duty officer. He denied the suggestion that the proceedings of the case were manipulated in the PS and as such he had not been able to state exact or approximate details about the same. He denied the suggestion that he was deposing falsely being a police official.
6. PW2 Const. Pushpendera deposed that on 23.06.1998 he was posted at PS Defence Colony and on that day he went to South Voint Hospital GKII along with HC Rajender Singh where IO after taking the permission from the doctor made enquiries from one Gopal Krishan, accused and arrested him vide arrest memo Ex. PW2/A. He deposed that FIR No. 500/98 State Vs. Gopal Krishan 5/19 the personal search of the accused was carried out vide Ex. PW2/B. He deposed that DL of the accused was also seized vide seizure memo Ex. PW2/C. He deposed that his statement was recorded.
7. During his crossexamination he stated that the medical record of the accused may have been taken into possession by the IO. He stated that he and the IO had gone to the said hospital from the PS and had remained in the hospital for about 1 hour. He stated that accused was released on bail in the hospital itself. He stated that nobody came to the hospital during these proceedings. He stated that he, IO, doctor, accused and his surety were the only persons present in the hospital. He denied the suggestion that the proceedings had not been drawn as stated by him but were manipulated or that he was deposing falsely.
8. PW3 Ram Lal deposed that deceased Deshraj was his brother and on receipt of information regarding his accident he reached at AIIMS hospital on 21.06.1998 and he identified his dead body in the AIIMS mortuary vide his statement Ex. PW3/A
9. PW4 Retd. SI Nand Lal Dua deposed that on 22.06.1998 on the FIR No. 500/98 State Vs. Gopal Krishan 6/19 request of the IO he conducted the mechanical inspection of Maruti car no. DL3CA8700 at PS Defence Colony. His detailed mechanical inspection report is Ex. PW4/A, which is in his handwriting.
10. During his crossexamination he admitted that the roof of the vehicle was badly smashed and it is possible that the vehicle might have over turned.
11. PW5 Deewan Chand deposed that in the year 1998 he was posted as DHG Constable at PS Defence Colony and on the night of 21.06.1998 he along with Const. Prem Chand of DHG was in the night patrolling duty and during patrolling at about 1/1.15 a.m. they reached at Andrews Ganj Colony behind PS Defence Colony and he heard a loud noise of blast and when they came outside on khel goan road they found an accident had occurred. He deposed that when they reached at the spot one PCR van had already reached there. He deposed that he did not see the actual happening of the accident.
12. Thereafter Ld. APP crossexamined the witness after declaring him hostile. During his crossexamination conducted by Ld. APP he stated that FIR No. 500/98 State Vs. Gopal Krishan 7/19 his statement was recorded by the IO of the present case which is Ex. PW5/A. He denied the suggestion that he was an eye witness of the accident and he saw the actual happening of the accident. He denied the suggestion that he saw maruti car no. DL3CA8700 coming from the side of Srifort road at a very fast speed and in a negligent manner. He denied the suggestion that he saw the accused while driving the said car. He admitted that maurti car no. DL3CA 8700 and the cycle involved in the accident were seized by the IO in his presence vide seizure memo Ex. PW1/A and Ex. PW1/B respectively. He denied the suggestion that he was not deposing against the accused in order to save him. He denied the suggestion that he signed his statement Ex. PW5/A after reading the same. He voluntarily added that it was not read over to him by the IO before obtaining his signature on the same.
13. PW6 Const. Bhoore Singh deposed that on 21.06.1998 he was posted as photographer at Hauz Khas and he was called by the IO HC Rajender at the spot at Khel Gaon Road near Shiv Mandir. He deposed that he reached at about 3.15/03.30 a.m. and he took 11 photographs of the scene of spot from different angles. The photographs are Ex. P1 to P11. He deposed that he handed over the same along with negatives to FIR No. 500/98 State Vs. Gopal Krishan 8/19 the IO.
14. During his crossexamination he stated that he had taken the photographs of one car and one cycle only as per the instruction of IO.
15. PW7 K.K. Veenugopal deposed that in the year 1998 the maruti car 1000 bearing registration no. DL3CA 8700 was belonged to him and was registered in his name. He deposed that accused was driving his aforesaid car at the time of accident as told by the police. He deposed that he gave in writing to the police in June 1998 and the same is Ex. PW7/A.
16. During his crossexamination he stated that the accused was employed with him as an assistant cook and the accident was reported to him by the police on the following morning.
17. PW8 Dr. Sunil Kumar Sharma deposed that he has seen MLC no. 53427/98 pertaining to injured gopal and MLC no. 53428/98 pertaining to injured Hile Raja and the same have been prepared by Dr. E. Ruichen who has left the services of hospital and his present whereabouts are not known. He identified his signature at point A on MLC Ex. PW8/A and Ex.
FIR No. 500/98 State Vs. Gopal Krishan 9/19 PW8/B. He deposed that as per the MLC Ex. PW8/A and B, the nature of injuries is simple.
18. During his crossexamination he stated that in the year 1998 he was working as JR and Dr. E. Ruinchen was also as JR. He admitted that he had not personally examined the injured Gopal and Hile Raja. He admitted that MLC Ex. PW8/A and B do not mention the name of the person who had brought the injured to the hospital. He admitted that the contents on the MLC Ex. PW8/A and Ex. PW8/B between the points X1 and X2 are the carbon copy while the rest of the same are written in original ink.
19. PW9 Dr. Chittranjan Behra deposed that he has seen MLC no. 53426/98 pertaining to injured unknown and the same has been prepared by Dr. Om Prakash Ahuja who has left the services of hospital and his present whereabouts are not known. He identified his signature at point A on MLC Ex. PW9/A. He deposed that he had not worked with the said doctor and he identified the signature and handwriting of the said doctor on the basis of record. He deposed that as per MLC Ex. PW9/A the unknown injured had been brought dead.
FIR No. 500/98 State Vs. Gopal Krishan 10/19
20. During his crossexamination he stated that in the year 1998 he was not working in AIIMS and he joined AIIMS hospital in the year 2001. He stated that he does not know if Dr. Om Parkash Ahuja was serving in AIIMS in the year 2001. He admitted that he has never seen Dr. Om Parkash Ahuja writing or signing as he had never worked with him.
21. PW10 Const. Surender Singh deposed that on 21.06.1998 he was posted as Duty Constable, AIIMS hospital, Delhi and on that day one PCR van brought one dead and three injured persons in the hospital and they were admitted in the hospital. He deposed that he informed in this regard in the PS Defence Colony vide DD no. 58B, Mark A. He deposed that personal search of one unknown injured was conducted in his presence by the IO vide memo Ex. PW1/C.
22. During his crossexamination he admitted that he informed PS Defence Colony that unknown injured was got admitted in the AIIMS hospital by HC Satbir Singh.
23. PW11, Dr. T. Millo deposed that he has been deputed to depose that the PM report bearing no. 637/98 of deceased Desh Raj which is Ex.
FIR No. 500/98 State Vs. Gopal Krishan 11/19 PW11/A was prepared by one Dr. Vipin Chawla who was working as Junior Resident and had left the service of AIIMS hospital and his present whereabouts is unknown. He deposed that the said PM report was prepared by him in his own handwriting and bears his signature as during the course of working with him, he has seen him writing and signing the documents.
24. During his crossexamination he stated that he is working in AIIMS since 1997. He stated that Dr. Vipin Chawla worked in AIIMS probably till 1999. He admitted that records of the officials working in the hospital which includes their permanent address is maintained in the establishment branch of the hospital. He admitted that neither the postmortem was conducted nor the report was prepared in his presence.
25. This so far is the prosecution evidence in the matter. Today the matter was listed for recording the statement of the accused u/s 313 Cr.P.C. (SA) however in my opinion prosecution has failed to bring any worthy incriminating material against the accused which necessitates the recording of statement of accused u/s 313 Cr.P.C.
FIR No. 500/98 State Vs. Gopal Krishan 12/19
26. Record reveals that the prosecution had proposed to examine 16 witnesses in all. However, since the framing of notice i.e. 20.07.1999 till the opportunity to PE was closed vide orders dated 17.05.2012 prosecution could examine only 11 witnesses which included alleged eye witness Const. Deewan Chand who was examined as PW5. However as is evident from the deposition of PW5 Const. Deewan Chand he turned hostile and did not support the prosecution story on material count. His deposition proved to be of no help to the prosecution case and in fact his turning hostile proved fatal and sounded death knell for the prosecution case as apart from him the prosecution could not examine any other eye witness. The remaining witnesses as examined by the prosecution are formal in nature who came into picture only after the accident had occurred.
27. The relevant portion of deposition of PW5 which proved fatal and rendered the prosecution story unreliable is reproduced here under: " ................I heard a loud noise of blast. And when we came outside on Khel Gaon Rd. we found an accident occurred......................I did not see the actual happening of the accident. "
FIR No. 500/98 State Vs. Gopal Krishan 13/19
28. The relevant portion of his cross examination by Ld. APP for the State is reproduced here under as: " It is wrong to suggest that I am an eye witness of the accident and I saw the actual happening of the accident. It is wrong to suggest that I saw maruti car no. DL3CA.8700 coming from the side of Shri Fort Rd. at a very fast speed and in a negligent manner. It is wrong to suggest that I saw the accused now present in the court today while driving the said car............................................................. It is wrong to suggest that I signed my statement Ex. PW5/A after reading the same. Vol. It was not read over to me by the IO before obtaining my signature on the same."
29. He was star/material prosecution witness upon whose statement the present prosecution was launched/the FIR was registered. However he completely disowned the statement i.e. Ex. PW5/A thereby creating serious doubts upon the prosecution story. Neither the identity of the accused as the driver of the vehicle in question nor the circumstances in which the accident occurred could be proved from his deposition. To bring a case within the purview of Section 279/304A IPC, the prosecution has to prove that the accident was a result of rash and negligent driving by the FIR No. 500/98 State Vs. Gopal Krishan 14/19 accused. What is rash/negligence varies from case to case and has to be proved through direct/positive evidence. There cannot be any fixed parameters for judging rashness/negligence. At the same time, there cannot be any assumption/presumption of the same. Even if the accident is proved unless rash and negligent driving stands proved a person cannot be convicted U/s 279 IPC. In the case at hand there is no evidence whatsoever to even slightly suggest that the accused was driving the car much least he was driving the same in a rash and negligent manner which led to the accident. Reliance can be placed upon "State of Rajasthan v. Joita (Rajasthan) 2002 Cri.L.J. 3514 and Ishwar Singh v. State of Haryana, (P&H) 2000 (2) R.C.R. (Criminal) 571, K. Nageshwara Rao v. State of A.P. 2003 (4) R.C.R. (Criminal) 588, Niranjan Singh v. State (Delhi Adminstration) (Delhi) 1997 (1) R.C.R. (Criminal) 320and Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605
30. Once the alleged eye witness of the accident turns hostile/does not support the prosecution story and there is no other eye witness on record who could prove because of whose fault/negligence the accident occurred, a person cannot be convicted U/s 279/304A IPC as in that scenario the essential ingredients of Section 279/304A IPC regarding rash and FIR No. 500/98 State Vs. Gopal Krishan 15/19 negligent driving could not be established (State of Haryana v. Sher Singh (SC) 2009 A.I.R. SC 823).
31. Apart from PW5 turning hostile the prosecution story suffered immensely on the following additional grounds:
32. Firstly there was one more alleged eye witness of the accident i.e. Const. Prem Chand, DHG however despite the trail remained pending for almost 13 long years the prosecution could not bring him in the witness box. He remained not traceable all this while as reported by SHO/IO concerned His presence was sine qua non as he was a material witness and his absence further weakened the prosecution case.
33. Secondly, for reasons best known to the IO, IO did not join injured Hile Raja in the investigation and did not add his name in the list of witnesses to be examined in support of the case. May be as he was the occupant of the offending car and known to the accused, the IO was of the opinion that he would not have supported the prosecution case but said fact/opinion find no mention in the charge sheet. Failure on part of prosecution to examine Hile Raja created further doubt upon the FIR No. 500/98 State Vs. Gopal Krishan 16/19 prosecution story.
34. Thirdly, the IO and Const. Balak Ram also were not examined as they reportedly expired during the course of trial.
35. Fourthly, even the superdar created doubts upon the involvement of accused in the accident. His statement instead of strengthening the case of prosecution rendered it doubtful and suspicious. The crux of his deposition is that it was not he who had told the police that the vehicle at the time of accident was driven by the accused but it was other way round. Moreover he claimed that the accused was employed with him as a cook. If accused was a cook then where was the occasion for him to drive the car.
36. All these loopholes and contradictions casts further doubt on the prosecution case. Hence SA is dispensed with as same shall be exercise in futility/empty formality.
37. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true" and "must be true".
FIR No. 500/98 State Vs. Gopal Krishan 17/19
38. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( Daya Ram v. State of Haryana, (P&H)(DB) ,1997(1) R.C.R.(Criminal) 662).
39. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R. FIR No. 500/98 State Vs. Gopal Krishan 18/19 (Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
40. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
41. I order accordingly.
Announced in the open (Gaurav Rao)
Court on 07.07.2012 MM (SD)/Delhi
FIR No. 500/98 State Vs. Gopal Krishan 19/19
F.I.R. No: 500/98
U/s 279/337/304A IPC
P.S. Defence Colony
07.07.2012
Pr: Ld. APP for state.
Accused is present on bail along with his counsel.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
Accused has furnished fresh bail bonds u/s 437A Cr.P.C. considered and accepted.
File be consigned to Record Room.
(Gaurav Rao) MM (SD)/Delhi.
07.07.2012
FIR No. 500/98 State Vs. Gopal Krishan 20/19
FIR No. 500/98 State Vs. Gopal Krishan 21/19