Delhi District Court
State vs . Vinay on 1 September, 2018
IN THE COURT OF SH. VISHAL PAHUJA, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. VINAY
FIR NO. 111/09
PS: MOTI NAGAR
U/S: 279/304-A IPC &
u/s 3/181, 146/196, 39/192 MV Act
JUDGMENT
Case no. : 72162/16
Date of commission of offence : 14.05.2009
Date of institution of the case : 05.12.2009
Name of the complainant : Sh. Tilak Raj
Name of accused and address : Vinay s/o Sh. Babloo @
Rattan Lal, r/o I-889, I Block,
Mangol Puri Delhi.
Offence complained of or proved : U/s 279/304-A IPC & u/s 3/181,
146/196, 39/192 MV Act
Plea of the accused : Pleaded not guilty
Final Order : Acquitted
Date on which reserved for judgment : 31.08.2018
Date of announcing of judgment : 01.09.2018
******************************************************************************************************************************* BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. This is the prosecution of accused Vinay pursuant to charge sheet filed by PS Moti Nagar U/s 279/304-A IPC & u/s 3/181, 146/196, 39/192 FIR No. 111/09, PS Moti Nagar Page 1/9 MV Act subsequent to the investigation carried out by them in FIR No.111/09.
2. As per the prosecution, on 14.05.2009 at about 03.30 PM near Jhulalal Mandir, Moti Nagar, New Delhi, accused was driving a motorcycle bearing no. DL-7SAS-6831 on the public way in rash and negligent manner. While driving so, he hit his motorcycle against one pedestrian namely Smt. Usha Dua w/o Sh. Tilak Raj and caused her death. Accused was found driving motorcycle without holding a valid driving license, without insurance and RC. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offence punishable U/s 279/304-A IPC & u/s 3/181, 146/196, 39/192 MV Act.
3. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, notice for offence punishable under section 279/304-A IPC & u/s 3/181, 146/196, 39/192 MV Act was served upon the accused to which he pleaded not guilty and claimed trial.
During trial the accused pleaded guilty for the commission of offences punishable u/s 3/181, 146/196 and 3/192 MV Act and was convicted accordingly.
MATERIAL EVIDENCE IN BRIEF:
4. The prosecution in support of present case has examined ten witnesses in total.
5. PW1 Sh. Tilak Raj Dua deposed that on 14.05.2009 he along with his wife namely Smt. Usha Dua were coming from Acharya Bhikshu Hospital on foot after taking report at about 03.30 PM. It is stated that when they were crossing near Jhulelal Mandir (Karampura road which FIR No. 111/09, PS Moti Nagar Page 2/9 comes from Punjabi Bagh) meanwhile one scooter bearing no.
DL7SAS6831 came from the side of ring road Punjabi Bagh in a fast speed, rash and negligent manner and hit against his wife Smt. Usha Dua. It is stated that she sustained injuries at hand and leg. It is stated that due to the impact his wife was thrown into the air and fell on a stone. It is stated that he had taken her to Acharya Bhikshu Hospital and from there to Maharaja Agarsen Hospital. The witness identified the accused. It is stated that his statement was recorded which is Ex. PW1/A. It is stated that thereafter, IO accompanied accused and PW1 to Maharaja Agrasain Hospital where the wife of PW1 identified accused as the driver of the offending vehicle bearing no. DL7SAS6831 who caused the accident. It is stated that IO prepared site plan Ex. PW1/B and seized the said vehicle vide memo Ex. PW1/C. Thereafter, IO arrested accused vide memo Ex. PW1/D. It is stated that IO took the personal search of accused vide memo Ex. PW1/E. Thereafter, on 06.07.2009 PW1 identified the dead body of his deceased wife Smt. Usha at DDU hospital. It is stated that the identification memo is Ex. PW1/F. It is stated that IO recorded the supplementary statements of PW1. PW1 was cross-examined on behalf of accused.
6. PW2 HC Hareti Lal deposed that on 14.05.2009 he was working as MHC(M) and on that day IO SI Suresh Chand handed over to PW2 one motorcycle bearing no. DL-7SAS-6831. This witness exhibited on record entry in register no. 19 at serial no. 2667/09 as Ex. PW2/A (OSR). PW2 was not cross-examined on behalf of accused.
7. PW3 W/SI Veena was the Duty Officer, who exhibited on record the extract of DD no. 58B as Ex. PW3/A. PW3 was not cross-examined on behalf of accused.
8. PW4 HC Rohit deposed that on 14.05.2009 on receiving DD no.
FIR No. 111/09, PS Moti Nagar Page 3/958B regarding accident near Jhulelal Mandir, New Moti Nagar, he along with SI Suresh Chand went to the spot and found one motorcycle no. DL- 7SAS-6831 was lying at the spot in accidental condition. It is stated that the injured was taken to the hospital. It is stated that in the meantime, one person namely Vinay I.e. accused came and told the IO that motorcycle no. DL-7SAS-6831 belongs to him and he caused the accident and ran away from the spot due to fear of beating by the public. It is stated that thereafter DD no. 22A was received to the IO by which it came to know that the injured has been admitted to the hospital. It is stated that IO prepared the rukka/tehrir on the basis of which FIR was registered. This witness exhibited on record seizure memo of motorcycle as Ex. PW1/C, arrest memo and personal search memo Ex. PW1/D and Ex. PW1/E respectively. It is stated that the case property was deposited in malkhana. This witness correctly identified the case property I.e. offending vehicle. PW4 was not cross examined on behalf of accused.
9. PW5 SI Suresh Chand was the IO, who deposed on the same lines as that of PW4 HC Rohit. This witness deposed qua the manner and his involvement in the investigation. This witness exhibited the documents i.e. rukka as Ex. PW5/A. PW5 was cross-examined on behalf of accused.
10. PW6 ASI Jai Bhagwan was the Duty Officer, who exhibited on record the extract of DD no. 22A as Ex. PW6/A, computer generated copy of FIR as Ex. PW6/B and endorsement on the original rukka as Ex. PW6/C. PW6 was cross-examined on behalf of accused.
11. PW7 Dr. Anil Jindal exhibited on record MLC no.173 of patient Smt. Usha Dua as Ex.PW7/A. The X ray report no. 19068, 69, 70, 71 of patient Usha Dua dated 14.05.2009 is Ex. PW7/B. PW7 was cross-examined on behalf of accused.
FIR No. 111/09, PS Moti Nagar Page 4/912. PW-8 SI Yogender Singh was the second IO who deposed qua the manner and his involvment in the investigation. After completion of investigation PW8 filed the charge sheet before the Court. PW8 was cross examined on behalf of accused.
13. PW9 Retired ASI (Technician) Devender Kumar mechanically inspected the vehicle bearing no. DL-7SAS-6831 and his mechanical inspection report is Ex.PW9/A. This witness was cross examined on behalf of accused.
14. PW10 Dr. Neeraj Kumar Garg exhibited on record post mortem report bearing no. 746/09 dated 06.07.2009 as Ex. PW10/A.
15. No other witness was left to be examined, hence PE was closed vide order dated 14.08.2018.
STATEMENT OF ACCUSED U/S 313 Cr.P.C :
16. Statement of accused was recorded U/s 313 Cr.P.C wherein all the incriminating circumstances appearing in evidence were put to him to which he pleaded innocence and stated that he has been falsely implicated in the present matter. Additional Statement of accused was recorded u/s 313 Cr.P.C. wherein it is stated by accused that he has been falsely implicated in the present case. It is further stated that the accident in question was not caused by him. The accident was caused by one car rider and after hitting the said lady (deceased) the rider of the same fled away from the spot. Due to hit by the car the said lady fell down on the road and when accused tried to stop his motorcycle for the help of said lady, his motorcycle got slipped due to which public persons under false pretext or presumption confined his motorcycle and he was not in a FIR No. 111/09, PS Moti Nagar Page 5/9 position to take out his motorcycle from the confinement of public persons. Immediately after wards he went to PS where he stated to police officials that the public persons wrongly confined his motorcycle while he has no fault. Police officials stated to him to remain in the PS and later on he has been falsely implicated in the present case. Accused opted not to lead defence evidence.
ARGUMENTS:
17. Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offence U/s 279 & 304-A are proved beyond doubt.
18. On the other hand, Ld. Counsel for accused has argued that there is no legally admissible evidence against the accused. It is argued that no cogent evidence has been led on record to prove the negligence on the part of the accused. In fact, the deceased died due to her own fault as she was crossing the road which was not designated crossing. It is further argued that there are material inconsistencies in the testimonies of the prosecution witnesses including the star witness PW1. Arguing further Ld. counsel submitted that prosecution has failed to prove the guilt of accused beyond reasonable doubt due to tainted testimony of PWs, hence accused is entitled to be acquitted.
FINDINGS:
19. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
FIR No. 111/09, PS Moti Nagar Page 6/920. I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences U/s 279/304-A IPC. Section 279 IPC punishable for offence of driving a vehicle in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person. Section 304 A IPC provides punishment for causing death of any person by doing any rash or negligent act not amounting to culpable homicide.
21. In order to bring home the guilt of accused, prosecution has to prove three aspects. Firstly that accused Vinay was driving the offending motorcycle bearing no. DL-7SAS-6831 on on 14.05.2009 at about 03.30 PM near Jhulalal Mandir, Moti Nagar, New Delhi. Secondly the said offending vehicle was being driven by the accused in rash or negligent manner causing the accident in question. Thirdly due to said accident victim Smt. Usha Dua succumbed to her injuries.
22. After appreciating the evidence and going through the testimony of the prosecution witnesses this Court finds the accused not guilty for any offence charged herein and he deserves acquittal for the following reasons:-
23. It is pertinent to mention that there were public persons present at the time of accident, however, no independent public witness has been examined by the prosecution. As per the testimony of PW1 the accused was caught held by the public persons as stated in the cross examination. Hence, some independent witness from the public should have been examined by the prosecution but the prosecution has failed to do so. During the examination in chief of PW1 it is stated by him that the accused was driving the offending vehicle in a rash and negligent manner that caused accident. It is further stated that the offending vehicle was being driven at fast speed. This witness did not explain the circumstances as to FIR No. 111/09, PS Moti Nagar Page 7/9 in what manner the act can be called or said to be rash or negligent. It is important to note that without referring to circumstances or the manner, merely stating that the act was rash or negligent does not prove that the accused was driving the vehicle in rash or negligent manner. In his initial statement Ex. PW1/A i.e. rukka the witness did not refer the driving as rash or negligent and it is only improvisation in his testimony when recorded before the court. It is admitted by PW1 during his cross examination that he along with his wife (deceased) were crossing the road from a way which was created by cutting grills in the divider between the road side meaning thereby the way from which the deceased was crossing the road was not designated crossing. It has also come on record that the zebra crossing was also 1 km away from the said crossing. It has also come on record in the testimony of PW1 and the police witness that the road which was being crossed by the deceased is a busy road and the flow of traffic is quite huge. In view of the aforesaid admission it is apparently clear that the deceased himself was at fault while crossing the road which was not designated crossing thus invited the accident where the flow of traffic is generally high. Accordingly the rash or negligent driving on the part of the accused cannot be presumed in such circumstances,
24. There are other material discrepancies in the testimony of PW2 that created doubt in the story of the complainant. In his examination in chief PW1 mentioned the offending vehicle as the scooter instead of motorcycle. PW1 stated during his examination in chief that the IO brought the accused to Maharaja Agrasain Hospital where he and his wife (deceased) identified the accused as driver of the offending vehicle whereas as per the testimony of IO (PW5) SI Suresh Chand, the accused was not taken to the hospital nor he was caught by the public rather he ran away from the spot due to the fear of beatings by the public which is again a contradictory statement.
25. It is a settled proposition of criminal law that prosecution is FIR No. 111/09, PS Moti Nagar Page 8/9 supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution. Also, it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
26. In view of the observations given above and the evidence led on record, this Court is of the view that the prosecution could not prove beyond reasonable doubt that the accident had taken place due to rash or negligent driving by the accused. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, the accused namely Vinay s/o Sh. Babloo is hereby acquitted of all the charges in the present case.
27. Requirements of Section 437-A Cr.P.C. have been complied with. File be consigned to Record Room after due compliance.
Digitally signed by VISHAL VISHAL PAHUJA PAHUJA Date: 2018.09.01 17:01:20 +0530 ANNOUNCED IN THE OPEN (VISHAL PAHUJA) COURT ON 01.09.2018 MM-04 (WEST)/DELHI Digitally signed Containing 09 pages all signed by the presiding officer. VISHAL by VISHAL PAHUJA PAHUJA Date: 2018.09.01 17:01:28 +0530 (VISHAL PAHUJA) MM-04 (WEST)/DELHI FIR No. 111/09, PS Moti Nagar Page 9/9