Delhi District Court
State vs . Sandeep @ Goldi on 19 April, 2018
IN THE COURT OF SH. DEEPAK KUMAR II, METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI.
FIR No. 405/03
PS. Dabri
U/s.279/337/304A IPC
State Vs. Sandeep @ Goldi
CNR No. DLSW02000088/2004
JUDGMENT
A. SL. NO. OF THE CASE : 429235/16.
B. DATE OF INSTITUTION : 19032004.
C. DATE OF OFFENCE : 28052003.
D. NAME OF THE : Sh. Genda Lal
COMPLAINANT S/o Sh. Maan Singh
E. NAME OF THE : Sandeep @ Goldi
ACCUSED S/o Sh. Virender Singh
F. OFFENCE
COMPLAINED OF : U/s 279/337/304A IPC
G. PLEA OF ACCUSED : Pleaded not guilty.
H. FINAL ORDER : Acquittal.
I. DATE OF SUCH ORDER : 19042018.
Brief Statement of Reasons for Decision
1. Briefly stated the facts of the case, as alleged by the prosecution and as mentioned in the charge sheet are that on 28052003 at about 9:30 PM, at shop No. RZD38, 30 foota Road, Dwarkapuri, Vijay Enclave, New Delhi within the jurisdiction of police station Dabri, New Delhi, the accused Sandeep @ Goldi was found driving the vehicle Tata Tempo 407 bearing registration no. DL1LB6607 in a rash and negligent manner so as to endanger the human life and personal safety of others and while driving his FIR No. 405/03 PS. Dabri.
U/s.279/337/304A IPC State Vs. Sandeep Page 1/8 vehicle in abovesaid manner, he hit the same against the complainant Genda Lal and Om Prakash S/o Sh. Ram Swarup. Due to the said impact Genda Lal sustained simple injuries and Om Prakash S/o Sh. Ram Swarup died. On the basis of the statement given by the eye witness/complainant Genda Lal the present FIR No.405/03, under section 279/337/427 IPC was registered at PS Dabri, New Delhi. As Om Prakash S/o Sh. Ram Swarup had died during the investigation therefore, section 304A IPC was also added. The statement of witnesses were recorded, site plan was prepared and other steps were taken towards the investigation by the IO. On conclusion of the investigation, the challan under section 279/337/304A/34 IPC against the accused was filed in the court.
2. Thereafter, the accused was summoned by the learned predecessor of this court for facing trial under the aforesaid sections. In compliance of Section 207 CrPC, the copy of the challan and the documents annexed therewith were supplied to the accused. Prima facie charge under section 279/337/304A IPC was made out against the accused and accordingly, on 13042006 the charge was framed against him by the Ld. Predecessor of this court. Accused pleaded not guilty and claimed trial to the said charge. Thereafter, the case proceeded for prosecution evidence.
3. In the instant case, the prosecution has examined eight witnesses in support of its case.
4. PW1/SI Mohan Singh deposed that on 29052003, he was posted as DO at PS Dabri and the instant FIR No. 405/03 was recorded by him and he proved the same as Ex.PW1/A; he also proved the endorsement FIR No. 405/03 PS. Dabri.
U/s.279/337/304A IPC State Vs. Sandeep Page 2/8 on the rukka as Ex.PW1/B. This witness was not cross examined by the defence despite opportunity being afforded to them.
5. PW2 HC Umed Singh deposed that on 28052013 he was posted at PS Dabri as Constable and on receipt of DD No. 70B he alongwith SI Randhir Singh went to the spot, where they came to know that the injured has already been removed to some unknown hospital; after inquiry they came back to the PS and there they got the information that injured has been admitted to DDU hospital; thereafter they went to DDU hospital where injured Genda Lal was found and IO recorded his statement; another injured Om Prakash was unfit for statement; IO prepared the tehrir and got the case registered through him; after registration of FIR he reached the spot and handed over the carbon copy of FIR and original tehrir; he proved the seizure memo of the offending vehicle i.e. Tata 407 bearing registration no. DL1LB 6607 as Ex.PW2/A; accused was arrested by the IO at PS; he proved the personal search memo of the accused as Ex.PW2/C; seizure memo of the driving license of the accused was proved as Ex.PW2/D; IO recorded his statement. This witness also correctly identified the photograph of the Tempo as Ex.P1.
6. In his cross examination PW2 deposed that IO did not recorded the statement of the persons who told them that the injured has been shifted to the hospital.
7. PW3 Genda Lal deposed that he do not remember the exact month however, it was 28th of the Year 2003 and he had gone to purchase some articles from the shop of Jagdish in the night; at that time one vehicle came from the back side at a very fast speed and hit against him and one FIR No. 405/03 PS. Dabri.
U/s.279/337/304A IPC State Vs. Sandeep Page 3/8 other person; in the accident they received injury and he was treated in the DDU hospital and gave his statement to the police there only; he was not explained the statement and police obtained his thumb impression at the PS which were also not explained to him; he did not identified the driver. As the witness was resiling from her earlier statement therefore, he was permitted to be cross examined by the Ld. APP for the State. In his cross examination by the Ld. APP for the State he admitted that the statement Ex.PW3/X1 bears his thumb impression at point X. The witness denied the contents of his statement given by him to the police. Witness also failed to identify the accused and he further deposed that he had merely put his thumb impression at the instance of the police on the documents viz Ex.PW2/B, Ex.PW2/C, Ex.PW2/D, Ex.PW2/A and Ex.PW3/PX2 and stated that the contents of these documents were not explained to him. In the cross examination of this witness by Ld. Defence counsel nothing material came on record.
8. PW4 Ghanshyam also did not supported the case of the prosecution and as he was resiling from his earlier statement therefore, this witnesses was also permitted to be cross examined by the Ld. APP for the State. In his cross examination by Ld. APP for the State witness failed to identify the accused and denied having made any statement to the police as Mark X. This witness was not cross examined despite opportunity being afforded to the defence.
9. PW5 Jagdish also did not supported the case of the prosecution and deposed similarly on the lines of PW4 and PW3.
10. PW6 Jai Singh and PW7 Nannu Singh are the witness who had identified the dead body of the deceased. These witnesses were not cross FIR No. 405/03 PS. Dabri.
U/s.279/337/304A IPC State Vs. Sandeep Page 4/8 examined by the defence despite opportunity being afforded to them.
11. PW8 Retd SI Randhir deposed that on the lines of PW2 as he being the IO of the case; he proved the rukka as Ex.PW8/A; site plan as Ex.PW8/B and he also correctly identified the accused and the case property i.e. the photographs of the offending vehicle which were already Ex.P1. In his cross examination this witness deposed that he had not taken the photographs of the spot when he reached there; the public persons to police station. However he did not record their names as at that time he was in the hospital.
12. On 20052014 and 27022018, in his statements recorded under section 294 read with sections 313 and 281 CrPC, accused admitted the genuineness of the MLC of Genda Lal as Ex.AA, MLC of deceased Om Prakash as Ex.AB, death report of Om Prakash as Ex.AC, unatural death report of Om Prakash as Ex.AD, DD No. 70B dated 28.05.2003 as Ex.P/A/1, DD No. 5B dated 29.05.2003 as Ex.P/A/2 and mechanical inspection report dated 30.05.2003 as Ex.P/A/3 respectively. Thereafter PE was closed.
13. In the instant case, there are three alleged eyewitnesses of the accident i.e. complainant/injured Genda Lal, Ghanshyam and Jagdish. However, all of them have turned hostile and have failed to identify the accused. They have even failed to depose the manner in which the offending vehicle was being driven. The said witnesses were also crossexamined by Ld. APP for the State, but despite that nothing incriminating evidence against the accused could be extracted from them. IO of the case was also examined in the present matter but nothing incriminating against the accused came on record in his deposition. The remaining witnesses are either police officials or FIR No. 405/03 PS. Dabri.
U/s.279/337/304A IPC State Vs. Sandeep Page 5/8 formal witnesses, who are admittedly not the eyewitnesses to the accident and therefore, nothing incriminating has come on record from their testimonies against the accused.
14. In the case in hand, the prosecution has examined eight witnesses. But the said witnesses have deposed nothing incriminating against the accused in respect of the offence under section 279/337/304A IPC. Since, there has no incriminating evidence against the accused on record, therefore, the recording of the statement of accused under section 313 CrPC was dispensed with and DE was also closed. Subsequently, the case was listed for final arguments.
15. I have heard Ld. APP for the state and Ld. counsel for the accused . I have carefully perused the case file.
16. Cardinal principle of the criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused, exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
17. In order to prove the guilt of the accused the prosecution is required to prove the following ingredients as mentioned under section 279/337/304A IPC:
(i) accused was driving his vehicle on a public way;
(ii) death of any person or injury to any person must have been caused;
(iii) it must have been caused by rash or negligent act/driving of the accused; and
(iv) such death must not amount to culpable homicide.
FIR No. 405/03PS. Dabri.
U/s.279/337/304A IPC State Vs. Sandeep Page 6/8
18. The aforesaid eye witnesses namely Genda Lal, Ghanshyam and Jagdish are vital witnesses for proving the prosecution version as the entire case of the prosecution is based upon the foundation laid down by the statement given by them to the police. Therefore, not only the complaint of the complainant Genda Lal and version of other eye witnesses but also the prosecution version has remained unproved. The identity of the accused has also not been established as none of the eye witnesses have identified him.
19. Even, if for the sake of arguments, it is assumed to have been established that the injured sustained injuries in an accident committed by the accused, in that case also it cannot be inferred that the accused was driving his vehicle in a rash or negligent manner, unless the said mens rea i.e. guilty intention is proved by the prosecution beyond any reasonable doubt. The accused cannot be convicted on presumptions or surmises, rather, all the ingredients including rash or negligent act as mentioned under section 279/337/304A IPC are required to be established. But in the instant case, none of the eye witnesses have uttered even a single word against the accused regarding the alleged rash and negligent driving of the accused. Therefore, it cannot be held with certainty that the accident took place due to culpable rash and negligent act of the accused or the accused is solely responsible for the injuries received by the injured.
20. The findings given by Hon'ble Apex Court in case titled as B.C. Ramachandra Vs. State of Karanataka, 2007 Cri. L.J 475. are relevant and reproduced as under:
" In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. FIR No. 405/03 PS. Dabri.
U/s.279/337/304A IPC State Vs. Sandeep Page 7/8 The said ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur"
21. There is not even an iota of incriminating evidence against the accused to fix his liability under section 279/337/304A IPC by leading convincing and cogent evidence and thus have failed to discharge the onus placed upon it. Hence, the accused is entitled to benefit of doubt.
22. In the light of the above discussion, the accused Sandeep @ Goldi is acquitted for the offences under section 279/337/304A IPC. Bail bonds are canceled and sureties be discharged. Original documents, if any, be returned to the persons legally entitled, after canceling the endorsement, if any, on the said documents.
File be consigned to Record Room after due compliance.
ANNOUNCED IN OPEN COURT (DEEPAK KUMARII) TODAY i.e. 19042018 MM06/DWK/NEW DELHI FIR No. 405/03 PS. Dabri. U/s.279/337/304A IPC State Vs. Sandeep Page 8/8