Delhi District Court
State vs . Mohd. Sheru on 10 September, 2012
IN THE COURT OF SHRI RAJINDER SINGH: METROPOLITAN
MAGISTRATE04 (SOUTH), SAKET COURTS:NEW DELHI
State Vs. Mohd. Sheru
FIR No. 323/2002
U/s 279/337/304A IPC
P.S. Kotla Mubarakpur
J U D G M E N T
Serial No. of the Case : 725/2
Unique Identification No. : 02406R0990432004
Date of Institution : 24.04.2004
Date on which case reserved for
judgment : 04.09.2012
Date of judgment : 10.09.2012
Name of the complainant : Ct. Shibu K. P., No.3234/SD
P.S. Kotla Mubarakpur, New Delhi
PIS No.22950591
Date of the commission of offence: 08.09.2004
FIR No. 323/2002
P.S. Kotla Mubarakpur Page No.1 of 13
Name of accused : Mohd. Sheru
s/o Sh. Mohd. Subrati
r/o H. No.J219, Ekta Vihar, Sector7,
R. K. Puram, New Delhi
Offence complained of : U/s 279/337/304A IPC
Offence charged of : U/s 279/304A IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
Date of Institution : 24.04.2004
Date on which case reserved for
judgment : 04.09.2012
Date of judgment : 10.09.2012
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
BRIEF FACTS:
On 08.09.2004 at about 10:00AM at Aurbindo Marg, Safdarjung Flyover, INA Colony, on a public way, within the jurisdiction of P.S. Kotla Mubarakpur, the accused was riding vehicle (two wheeler Scooter) No.DL5SJ7701 (hereinafter called the offending vehicle) in a rash and negligent manner. The accused suddenly applied brakes to the offending vehicle and tried to cross the central verge FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.2 of 13 on his right hand. The injured/deceased riding on motorcycle No.DL9SH6655, coming from behind tried to avoid the collision with the offending vehicle, however, the motorcycle of the injured/deceased collided with the offending vehicle. The injured/deceased rider fell down and succumbed to his injuries.
2. The report U/s 173 Cr. PC was filed on 24.04.2004. Cognizance of the offences was taken. Compliance of Section 207 Cr. PC was done.
3. Notice for the offences punishable U/s 279/304A IPC against the accused was framed on 23.07.2004. Accused pleaded not guilty and claimed trial. PROSECUTION EVIDENCE :
4. The prosecution to prove its case examined 10 (ten) PWs in all.
PW1 Sh. T. U. Siddiqui (mechanical inspector) is a formal witness. He conducted the mechanical inspection of vehicles No.DL9SH6655 and DL5SJ7701. The mechanical inspection reports are Ex.PW1/A & Ex.PW1/B respectively.
PW2 Sh. Danesh (sic) s/o Sh. Khalil Ahmed stated, on 08.09.2002 my father late Sh. Khalil Ahmed met with a road traffic accident. On 08.11.2002 my father was discharged from AIIMS Hospital, he was in coma. He continued in coma and expired on 09.06.2003. The police was not immediately informed. After some FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.3 of 13 time the police was informed. The postmortem of my father could not be got conducted. He died due to the injuries sustained in the accident.
During crossexamination by Ld. Defence Counsel, PW2 stated, it is wrong to suggest that my father died due to old age and not due to the accident.
PW3 Ct. Shibu K. P. (complainant/eye witness) stated, on 08.09.2002 I was posted at P.S. Kotla Mubarakpur. On that day I was on VVIP arrangement duty at Aurbindo Marg Opposite INA Colony at around 10:00AM. Scooter No.7701 came at a high speed, it was going towards Safdarjung Hospital. I do not remember the complete registration number of the scooter. Another motorcycle No.6655 (sic) was also going behind the said scooter, in the same direction. The scooter rider in order to take Uturn suddenly applied brakes. The motorcycle rider coming from behind also slowed down to avoid the collision but in the process the motorcycle hit the left side of the scooter. Both the riders fell down. Head of the motorcycle rider struck against the footpath and he started bleeding from his nose, ears and head. The motorcycle rider lost consciousness. The scooter rider did not sustain any severe injury. The scooter rider was known to me since he was having a kabari (junk dealer) shop in INA Market. With the help of the scooter rider I removed the injured to AIIMS Hospital in a TSR. I remained at the spot. IO came to the spot and recorded my statement. I pointed out the place of incident to the IO. The scooter was seized vide seizure memo Ex.PW3/B and the motorcycle was seized vide seizure memo Ex.PW3/C. The driving license of the accused was seized vide memo Ex.PW3/D. I identify the accused present in the Court today. FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.4 of 13
(With permission of the Court, Ld. APP asked leading questions to the witness) PW3 stated, it is correct that the complete number of the scooter was DL 5SJ7701 and the complete number of motorcycle was DL9SH6655.
During crossexamination by Ld. Defence Counsel, PW3 stated, the witness was specifically asked the question that in his statement to the IO, he stated that both the vehicles were going towards Safdarjung Madarasa whereas in his examinationinchief on 24.03.2005 he stated that the vehicles were going towards Safdarjung Hospital. PW3 stated that his statement before the Court is correct. It is correct that if a person takes turn to his right side, the vehicle coming from behind cannot hit the said vehicle on its left side. I was present at a distance of about 1015 steps from the place of accident. I had not informed the police on 100 number regarding the accident. Vol. I informed the local police station regarding the accident. It is wrong to suggest that I had not informed the police of P.S. Kotla Mubarakpur or that I was not present at the spot. The other staff members were also deployed at the spot for VIP arrangement. I did not hand over any duty slip to the IO. I cannot tell whether the accident took place due to the fault of the accused or the deceased.
PW4 SI Dev Karan (duty officer) is a formal witness. He proved the copy of FIR Ex.PW4/A. His endorsement on rukka is Ex.PW4/B (OSR).
PW5 Ct. Lakhmi Chand stated, on 08.09.2002 I was posted at P.S. Kotla Mubarakpur. On that day, on receiving DD No.5A, I went to the spot and FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.5 of 13 handed over the same to SI Madan Lal. SI prepared rukka and sent me to police station for registration of FIR. After registration of the FIR, I again went to the spot and handed over copy of FIR and original rukka to SI Madan Lal. IO recorded my statement.
PW6 Ct. Devender stated, on 08.09.2002 I was posted at P.S. Kotla Mubarakpur. On that day on receiving DD No.4A, regarding accident, I along with SI Madan Lal went to S. J. Flyover, INA where we found one motorcycle bearing No.DL9SH7701 in a state of accident. Ct. Shibu was also present there who claimed himself to be an eye witness of the accident. IO recorded his statement and during that time Ct. Lakhmi Chand reached the spot and handed over DD No.5A. IO sent Ct. Lakhmi Chand to the police station for registration of FIR. I along with SI went to AIIMS Hospital where Ct. Ajit, (Duty Constable) met us and produced the jamatalshi of the deceased. IO seized the same. Accused (correctly identified) was also present in the hospital. IO seized the scooter and motorcycle vide memos already Ex.PW3/B & Ex.PW3/C. Accused was arrested and his personal search was conducted vide memos Ex.PW6/A and Ex.PW6/B respectively bearing my signatures at point A. The jamatalashi of deceased is Ex.PW6/C bearing my signature at point A. The accused is present in court today. (Identity of the case property was not disputed by the accused).
PW7 Ct. Ajit Singh stated, I was posted as duty constable in AIIMS Hospital on 08.09.2002. One injured Khalil Ahmed was brought to the hospital. I FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.6 of 13 sent the information to police station and on personal search of the deceased/injured, certain articles were recovered which I handed over to the IO of this case who seized the same vide memo already Ex.PW6/C bearing my signature at point B. PW8 Dr. Madhusudan identified the handwriting and signature of Dr. Vivek Patre at point A on the Xray report Ex.PW8/A pertaining to the injured/deceased, on the basis of record maintained in the hospital. As per the report there was no fracture. Xray plates are Ex.X1 collectively pertaining to the injured/deceased.
PW9 Inspector Madan Lal Meena stated, on 08.09.2002 I was posted as SI at P.S. Kotla Mubarakpur. On receiving DD No.4A I along with Ct. Devender reached in front of INA, Safdarjung Flyover. Scooter No.DL5SJ7701 and motorcycle No.DL9SH6655 were found lying on the road, in a state of accident. Ct. K. P. Shibu (sic) was also present. I recorded his statement, he told me that the injured and the accused had been taken to AIIMS Hospital. In the meantime Ct. Laxmi Chand came along DD No.5A. I prepared rukka Ex.PW9/A and got the case registered through Ct. Laxmi. Ct. Shibu was left at the spot. I went to AIIMS Hospital. The injured was declared unfit for statement. I returned to the spot, at the instance of Ct. Shibu K. P. I prepared the site plan Ex.PW9/B. The motorcycle and the scooter were seized vide memo Ex.PW3/C & Ex.PW3/B respectively. The driving license of the accused was seized vide memo Ex.PW3/D. The accused was arrested and his personal search was conducted vide memos Ex.PW6/A & Ex.PW6/B respectively. The mechanical inspection of motorcycle of the deceased and the FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.7 of 13 scooter of the accused were got conducted, the mechanical inspection reports are Ex.PW1/A & Ex.PW1/B respectively. I prepared the challan and filed the same before the court.
During crossexamination by Ld. Defence Counsel, PW9 stated, it is correct that no telephonic message or information regarding this accident was given to the local police station by Ct. Shibu. It is correct that the departure and arrival entry of Ct. Shibu, for VIP security arrangement is not placed on record. It is true that at the spot of incident there is no designated place for taking Uturn. Due to this reason no Uturn is shown in the site plan Ex.PW9/B. It is wrong to suggest that the accused has been falsely implicated.
PW10 Sh. Rajbir Singh (record clerk) identified the handwriting and signature of Dr. K. P. Upadhyay at point A on MLC Ex.PW10/A pertaining to the injured/deceased Sh. Khalil Ahmed.
Vide order dated 02.06.2011, PE was closed.
Vide order dated 05.10.2011, PW3 & PW9 were allowed to be recalled for crossexamination. PW3 & PW9 were recalled and crossexamination on behalf of accused.
STATEMENT OF ACCUSED :
5. On 23.06.2011 statement of accused U/s 313 Cr. PC was recorded. FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.8 of 13 Accused denied all the allegations against him. The accused did not wish to lead defence evidence. Since the PW3 & PW9 were recalled for crossexamination only it was submitted by Ld. Defence Counsel that there was no need for recording supplementary S. A. U/s 313 Cr.PC.
DEFENCE EVIDENCE :
6. No defence evidence was led by the accused.
ARGUMENTS :
7. Arguments were advanced by Ld. APP for the State and Ld. Counsel for accused.
It was argued by Ld. APP for the State that the eye witness has fully supported the prosecution case. The other witnesses have also supported the prosecution case. The prosecution has proved its case beyond reasonable doubt.
It was argued by Ld. Counsel for accused that there is no evidence on record to show that the deceased expired due to the injuries allegedly received in the accident. No postmortem of the deceased was got conducted to ascertain the cause of death of the deceased. The eye witness PW3 stated that the accused applied sudden brakes to take a turn towards right side, however, PW9 the IO admitted that in the site FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.9 of 13 plan Ex.PW9/B, there is no right turn or Uturn shown. The incident allegedly took place on the flyover. In the site plan Ex.PW9/B it is clearly shown that there is a central verge dividing the traffic on the two sides of the flyover. There is no reason why the accused would have tried to take a right turn, when there is a central verge dividing the roads on both the sides of the flyover. PW3 also stated that after the collision the accused and the deceased both fell down along with their two wheeler vehicles. Had the accused also fallen at the spot, he would have sustain some injury which is not the case here. PW3 also stated, the injured/deceased was coming from hind side of the accused, the accused was trying to take a right turn. The injured/deceased along with his motorcycle collided on the left side of the scooter of the accused. Had the accused been taking a right turn, there was no occasion for any vehicle coming from behind to hit left hand side of the scooter of the accused. In view of the statement of PW3 it is clear that he was not present at the spot of incident. Even otherwise there is no record to show that on the relevant date and time the PW3 was on duty at the spot.
REASONING :
8. In the present case, PW3 Ct. Shibu K. P. is the only material eye witness cited and examined by the prosecution. It was argued that in view of the testimony of PW3, specially the sequence of events as narrated by PW3 it appears that FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.10 of 13 he did not see the incident.
PW3 stated that at the time of incident he was posted on VVIP arrangement duty at Aurbindo Marg Opposite INA Colony at about 10:00AM. The accused was going on his scooter. The injured/deceased was coming from behind the accused, on his motorcycle. The accused suddenly applied brakes to his scooter for taking a turn to his right side. The injured/deceased coming from behind slowed down his motorcycle and tried to avoid the collision, however, it could not be avoided. In the process the motorcycle of the injured/deceased hit the left side dicky (sic) of the scooter of the accused
9. I have perused the site plan Ex.PW9/B, therein it is shown that the incident took place on the flyover while the accused was going from AIIMS Hospital towards Safdarjung Tomb. There is a central verge on the flyover, dividing the flow of traffic on both sides of the flyover. It was argued by Ld. Defence Counsel that there is no "cut" or any right turn at the spot of incident. There was no reason/occasion for the accused to try taking a right turn.
As evident from the site plan Ex.PW9/B there was no occasion/reason for the accused to try taking a right turn at the spot. It was admitted by the IO PW9 that there was no Uturn at the spot of incident.
In view of the above, it appears highly improbable that the accused would have tried to take any right turn or Uturn at the spot of incident. FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.11 of 13
10. PW3 also stated that while the accused suddenly took a right turn, the injured/deceased coming on a motorcycle from behind hit on the left side of the scooter of the accused.
If the sequence of the events is logically analysed, it would be seen, had the accused tried to take right turn, his right side would have been exposed to the traffic coming from behind and his left side would have been away from the traffic coming from behind. Again there is no explanation why or how the motorcycle of the injured/deceased could hit the left hand side of the scooter of the accused, in the circumstances as narrated by PW3.
11. It was argued by Ld. Defence Counsel that had the accused as well as the injured/deceased, both fallen at the spot of incident, then both of them should have sustained injuries.
In the present case there is nothing on record to show that the accused also received any injury due to his fall at the spot of incident. It is highly improbable that the accused falling at the spot after the collision did not sustain any injury on his body.
12. The description of the incident given by the eye witness PW3 does not logically explain the sequence of events alleged to have taken place at the spot of incident. Even if, it is presumed that the PW3 was present at the spot of incident at the relevant date and time, it appears that PW3 did not see the actual incident. Even FIR No. 323/2002 P.S. Kotla Mubarakpur Page No.12 of 13 otherwise the prosecution did not produce any document to show that the eye witness PW3 was deputed for VVIP Arrangement Duty on the date of incident on the relevant spot and time.
13. There is nothing on record to show that the injured/deceased died as a result of injuries sustained in the incident. No postmortem was got conducted on the body of the deceased to ascertain the cause of death of the deceased.
14. In view of above discussion, it becomes doubtful whether the PW3 saw the actual incident. It is also not proved that the deceased expired as a result of injuries sustained in the accident. The benefit of doubt shall go to the accused. Accordingly, the accused Mohd. Sheru is acquitted of the offences punishable U/s 279/304A IPC.
15. File be consigned to Record Room after due compliance.
Pronounced in open court (RAJINDER SINGH)
on 10.09.2012 MM04(South):Saket Courts:New Delhi
10.09.2012
FIR No. 323/2002
P.S. Kotla Mubarakpur Page No.13 of 13