Delhi District Court
State vs . Rahul Fir No.302/19 on 1 August, 2022
State vs. Rahul FIR No.302/19
IN THE COURT OF MS. UDITA JAIN GARG: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
State vs. Rahul
FIR No.302/19
U/Sec. 279/338 IPC & 146/196 MV Act
PS: Hari Nagar
Date of institution of the case: 29.06.2021
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 01.08.2022
Cr. Case No.7445/21
CNR No.DLWT020113942021
JUDGMENT
a) Date of commission of the offence : 26.06.2019
b) Name of the complainant : Sh. Raj Kumar
c) Name of the accused and his parentage : Rahul S/o Late Sh. Ram Parvesh R/o H. No. MH-471, Post Office Wali Gali, Samalkha, Village, New Delhi-110037.
d) Offence complained of : Sec. 279/338 IPC & 146/196 MV Act e) Offence charged of : Sec. 279/338 IPC & 146/196 MV Act f) Plea of the accused : Pleaded guilty for the Page No.1 of 9 State vs. Rahul FIR No.302/19 offence punishable u/Sec. 146/196 MV Act. Pleaded not guilty for the offence punishable u/Sec.279 /338 IPC g) Final order : Acquitted h) Date of such order : 01.08.2022
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 27.09.2019, information was received at police station Hari Nagar regarding accident. This information was recorded vide DD No.72A in the police station and matter was entrusted to SI Pooran Mal for necessary action. Thereafter, he reached Central hospital and found that injured Heera Lal was admitted in ICU. He collected the MLC of injured Heera Lal. Thereafter, IO recorded the statement of complainant (father of injured) who stated that he is a priest and on 26.06.2019 at about 07:00 am, he alongwith his daughter namely Sheetal and his son Heera Lal, aged 5 years, was coming from BB Black Park and was going towards temple. When he crossed the boundary of the park, suddenly one car which was driven by the accused came from Chhatrapati Shivaji Gate in a rash and negligent manner and hit his son namely Heera Lal. When the accused/driver tried to escape, the complainant with the help of public persons caught him, who thereafter disclosed his name as Rahul. The number plate of offending vehicle was of yellow colour. The accused took the complainant and his son Heera Lal to DDU hospital and after making prescription slip by the doctor, he took them to Central Hospital and admitted his son. He then ran away from the hospital alongwith his vehicle without the knowledge of complainant. The said incident was not reported by complainant to the police as he got frightened but on the very next day i.e. 27.06.2019 when the accused did not come to the hospital to take care of his son, he called PCR and Page No.2 of 9 State vs. Rahul FIR No.302/19 informed about the whole incident who informed the court that he himself was driving the vehicle on date of the incident. On the basis of the statement of complainant, FIR under section 279/304A IPC & 146/196 MV Act was lodged in PS Hari Nagar against the accused/driver of the offending vehicle bearing registration number DL1LT-6653 and investigation was undertaken.
A notice under section 133 of the Motor Vehicles Act was served upon the owner of the offending vehicle. After completion of the investigation, charge-sheet under sections 279/338 IPC & 146/196 MV Act was filed against accused/driver Rahul. Consequently, he was summoned to face the trial. On his appearance in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Thereafter, charge under sections 279/338 IPC & 146/196 MV Act was framed against accused to which he pleaded guilty and did not claimed trial for the offence u/s 146/196 MV Act. However, he pleaded not guilty and claimed trial for the offence u/s 279/338 IPC.
With a view to connect the accused with the crime, the prosecution has cited as many as nine witnesses including the complainant.
PW1/Raj Kumar was the complainant who failed to remember the date of incident. He testified that about four years back at about 06:00 am, he alongwith his son was coming from the park. When he was crossing the boundary of park, he saw that one vehicle had hit his son namely Heera Lal and caused him injury. However, he could not see the driver and registration number of the offending vehicle. He deposed that his son was taken to DDU hospital. He deposed that he could not identify the driver as he could not see him.
Since the witness resiled from his previous statement he was declared hostile and was cross examined by the learned APP for the State with the permission of the court. He during his cross-examination by the learned Page No.3 of 9 State vs. Rahul FIR No.302/19 APP for the State stated that he cannot say, if the date of incident was 26.06.2019. He denied the suggestion that he stated to the police that when he was crossing the boundary of the park, he saw that one EECO Van bearing no.DL1LT-6653 came from the side of Chhatrapti Shivaji Market gate in a rash and negligent manner and hit against his son. He also denied the suggestion that the public persons apprehended the accused and he disclosed his name as Rahul. He denied the suggestion that the accused is the same person who was driving the offending vehicle in a rash and negligent manner at the time of the accident. He also denied that he was intentionally not identifying the accused as he has been won over by the accused.
Vide his separate statement, he stated that he does not want to pursue the present case and wants to compound the offence u/Sec.338 IPC being the natural guardian of injured.
Since the sole eye witness/ complainant had resiled from his previous statement regarding the manner of driving and identity of accused, PE was closed by the order of the court as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature and the request of the learned APP for the State to examine remaining witnesses was declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that "...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
Since there was no incriminating circumstance against the accused, Page No.4 of 9 State vs. Rahul FIR No.302/19 recording of his statement under section 313 of the Code was also dispensed with.
I have heard the learned counsel for the accused and the learned APP for the State and have perused the records very carefully.
Section 279/338 IPC Undisputedly, it is a case of a motor vehicular accident. The only issue is whether it was the accused who caused the accident while driving the car either negligently or rashly?
Since the accused pleaded not guilty, like in all criminal cases, the prosecution has the burden of proving his guilt beyond reasonable doubt. The burden does not shift. There exists no burden on the accused to prove his version or his innocence. It is trite that accused can only be convicted on the strength of the prosecution and not because of weaknesses in his defence.
A successful prosecution of a criminal action largely depends on proof of two things: the identification of the author of the crime and his actual commission of the same. An ample proof that a crime has been committed has no use if the prosecution is unable to convincingly prove the offender's identity.
In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the Page No.5 of 9 State vs. Rahul FIR No.302/19 offence.
The Hon'ble High Court of Delhi while dealing with the identity of the accused in the case of Ashraf vs State held as under:-
"....However, in case a witness is completely hostile with regard to identity of the accused even in his examination-in-chief and nothing could be elicited from him to show the involvement of the accused in the offence in the cross-examination by the APP, such a testimony cannot be accepted and made the basis of the conviction....."
On the issue of identification of the accused as the driver of the offending vehicle, the complainant/PW1 changed his stance during cross-examination and re-examination and stated that he cannot identify the driver as he could not see him During his cross-examination by the learned APP for the State, when it was suggested to him that accused was the driver of offending vehicle, he denied the same.
Rest witnesses are formal in nature and identify of the accused as the driver of the offending vehicle cannot be proved from their testimonies.
Thus, in my considered view, identity of the accused Rahul as the driver of the offending vehicle is not established beyond reasonable doubt.
The prosecution has failed to establish beyond reasonable doubt that accused Rahul was behind the wheels of the car at the time of accident.
Rash and negligent driving Even if it is presumed that accused Rahul was indeed the driver of the offending vehicle, still the factum of rash and negligent driving has to be proved by the prosecution which is sine qua non for convicting a person under section 279/338 IPC.
Now let us examine if the prosecution has been able to prove that the Page No.6 of 9 State vs. Rahul FIR No.302/19 accident was caused due to rash and negligent driving of the offending vehicle by its driver.
In order to bring home the guilt of the accused, the prosecution has cited as many as nine (9) witnesses in the list of witnesses annexed with the charge- sheet. Out of these nine witnesses, PW1 was the complainant while rest witnesses are formal in nature and the guilt of the accused cannot be established from their testimonies, inasmuch as, the alleged incident was neither took place in their presence nor it is the case of the prosecution.
Thus, the entire edifice of the prosecution is the statement of the complainant/eye witness Raj Kumar. In the said statement, he claimed that his son Heera Lal have received bodily injury on account of the offending vehicle DL1LT-6653 being driven in a rash and negligent manner by its driver.
Nothing has come on record to show the manner in which the driver of offending vehicle was driving the said vehicle to prove the rashness and negligence of the accused. No photographs of the spot have been taken. The complainant who is also the sole eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by its driver.
At this stage, it would be advantageous to refer a judgment passed by the Hon'ble Supreme Court of India in the case of Braham Dass vs. State of H.P decided on 5 May 2009 wherein it was held as under-
"...... Therefore, for bringing in application of either section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
Section 338 IPC As far as offence punishable under section 338 IPC is concerned, the complainant has compounded the same being the natural guardian of Page No.7 of 9 State vs. Rahul FIR No.302/19 victim/injured. Offence punishable under section 338 IPC is compoundable by the person mentioned in third column of the Table appended to sub- section (1) of section 320 of the Code with the permission of the court and where the victim/injured is under the age of 18 years, the offence can be compounded by any person competent to contract on his behalf. Therefore, in view of the statement of complainant, accused Rahul stands acquitted of the offence punishable under section 338 IPC.
Result In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion.
The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and Page No.8 of 9 State vs. Rahul FIR No.302/19 comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense.
(Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
In the light of the aforesaid, I find that the State has failed to prove its case beyond reasonable doubt that the accused was driving the vehicle either negligently or rashly or that while driving the vehicle in said manner struck against the son of the complainant and caused injury.
Consequently, accused namely Rahul is ACQUITTED of the offence punishable under sections 279 IPC. The accused Rahul also stands ACQUITTED for the offence punishable under section 338 IPC on compounding.
File be consigned to record room after due compliance. Digitally
signed by
UDITA
Announced in open UDITA JAIN
Court on 01st day of August, 2022 JAIN Date:
2022.08.01
18:07:03
+0530
(Udita Jain Garg)
MM-06, West District,
Tis Hazari Courts/ Delhi/01.08.2022
This judgment contains 9 pages and each page bears my signature. Digitally
signed by
UDITA
UDITA JAIN
JAIN Date:
2022.08.01
18:07:09
+0530
(Udita Jain Garg)
MM-06, West District,
Tis Hazari Courts/ Delhi/01.08.2022
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