Delhi District Court
State vs . Kali Charan on 10 October, 2018
CNR No. DLCT020010612009
IN THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR No. DLCT020010612009
CIS No. 301937/16
State Vs. Kali Charan
FIR No. 27/09
PS. Kamla Market
U/s. 279/304A IPC
JUDGMENT
1) The date of commission of offence : 04.03.2009
2) The name of the complainant : ASI Bodh Raj
3) The name & parentage of accused : Kalicharan
S/o. Shri Shiv Charan
R/o. Village Bhopur,
PS. Jahangira Bad,
Bulandsahar, UP.
4) Offence complained of : U/s.279/304A IPC
5) The plea of accused : Plead not guilty
6) Final order : Acquitted
7) The date of such order : 10.10.2018
Date of Institution : 01.09.2009
Judgment reserved on : 28.09.2018
Judgment announced on : 10.10.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused is that on 04.03.09, at
about 9.35 PM, at Thomson Road, Opposite Shivaji Park, Near Railway
CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 1/9
CNR No. DLCT020010612009
Colony, Kamla Market, Delhi, within the jurisdiction of PS Kamla Market,
he was reversing a truck Mixmiller, bearing registration no. HR 55G7594,
(hereinafter as 'offending vehicle') in rash or negligent manner and while
so driving hit against a person namely Ratnesh S/o. Shiv Shanker Prasad,
who got crushed under the rear tyres of offending vehicle and got expired.
2) After completion of investigation, charge sheet was filed against the
accused. In compliance of Sec. 207 Cr.PC, documents supplied to the
accused. Arguments on point of notice were heard. Vide order dated
22.07.2010, a notice u/s. 279/304A IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined nine witnesses. Statement of accused was recorded under section 313 Cr.P.C, in which he denied all the allegations and opted to lead defence evidence. Accused examined one Rajbir as his defence witness.
4) I have heard the arguments of Ld. APP for State and Ld. Counsel for accused. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follows :
Eyewitness 5.1) PW3 Mukesh Kumar deposed that on 04.03.09 he went to met Ratnesh who was working at Project Site of Delhi Metro. He deposed that he saw that offending vehicle was being reversed by the accused in high speed and in negligent manner and the offending vehicle ran over Ratnesh.
He deposed that accused fled away from the spot and he went to inform CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 2/9 CNR No. DLCT020010612009 the relatives of the deceased. He correctly identified the accused in the court.
Doctors 5.2) PW7 Dr.Anju Rathi and PW8 Dr. Bhim Singh proved the postmortem report of Ratnesh as Ex.PW7/A. Witnesses to the Investigation 5.3) PW9 IO /SI Bodh Raj ddeposed that on 04.03.09 after receiving DD No. 27A, he alongwith Ct. Randhir went at the spot where he found deceased Ratnesh lying under the offending vehicle. No eyewitness was found at the spot. The dead body was sent to mortuary. Tehrir Ex.PW2/B was prepared and FIR got registered. He deposed that the offending vehicle was seized vide memo Ex.PW5/A and the site plan Ex.PW3/D1 was prepared. The accused was produced by engineer Sanjeev at the PS Kamla Market. The eyewitness Mukesh also appeared before him in the PS. Thereafter, the accused was arrested and personally searched. Postmortem of the dead body was got conducted. The offending vehicle was got mechanically inspected vide Ex. PW6/B and the same was seized vide memo Ex.PW9/A. He identified the offending vehicle by virtue of photographs available on record.
Formal Witnesses 5.4) PW1 Brijesh Kumar and PW4 Shiv Shanker Prasad proved the dead body identification memo of the deceased Ratnesh as Ex. PW1/A and dead body handing over memo as Ex.PW1/B. 5.5) PW2 SI Mahender Singh proved the present FIR as Ex.PW2/A and CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 3/9 CNR No. DLCT020010612009 endorsement on rukka as Ex.PW2/B. DD No. 27 dated 04.03.09 was proved as Ex.PW2/C. 5.6) PW5 Ct. Ajay Kumar deposed that he took the copy of the present FIR and the original rukka from the duty officer and handed over the same to IO ASI Bodh Raj. He deposed that the offending vehicle was seized vide Ex.PW5/A. 5.7) PW6 Retired SI Manohar Lal Dhyani proved the mechanical inspection report of the offending vehicle as Ex.PW6/B.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) In the present case it is not disputed that the accused Kalicharan was the driver of the offending vehicle at the time of the incident. In the examination u/s. 313 Cr.PC, the accused stated that he was not driving the offending vehicle negligently. He deposed that he was reversing the vehicle at the instructions of the helper who was giving signal from the back side and he was watching those signals from the side mirror. He deposed that the indicators of the vehicle were kept on and there was no negligence on his part. The defence witness Shri Rajbir, who was examined as DW1, also deposed that the accused was the driver of the offending vehicle at the time of the incident. In his testimony it is also came on record that the deceased got expired as he came under the tyres of CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 4/9 CNR No. DLCT020010612009 offending vehicle. Thus, by virtue of admissions made by the accused u/s.313 Cr.PC and the defence evidence led it is proved on record that at the time of incident in question the accused was driving the offending vehicle and deceased Ratnesh got expired as he came under the wheels of offending vehicle.
8) Thus, the only poser remains to be decided as to whether the accused was rash or negligent while reversing the offending vehicle or not. Qua this fact, the prosecution is relying only on the testimony of PW3 Mukesh Kumar, who was examined as a sole eyewitness in the present case. The other are formal witnesses and are not witnesses to the alleged fact of rashness or negligence on the part of the accused. Thus, the testimony of PW3 is required to be appreciated carefully to see as to whether the burden of proof of the prosecution as to the proving of rashness or negligence on the part of the accused stands discharged or not.
9) PW3 deposed that on 04.03.09 at about 9.00 9.30 PM, he was coming from his office and reached at Minto Road, Railway Colony. He deposed that he met Ratnesh at the Metro Project and he saw him standing near the project site and the work was going on. He deposed that in the meantime offending vehicle being reversed by the accused in high speed and in negligent manner ran over Ratnesh. He deposed that he raised alarm and accused fled away from the spot. He deposed that Ratnesh expired at the spot and he went to inform the relatives of deceased Ratnesh.
10) PW3 was cross examined by Ld. Defence Counsel wherein CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 5/9 CNR No. DLCT020010612009 following facts came on record:
a) PW3 did not have any specific work to go to the Minto Road. He went to met Ratnesh just for formality.
b) Site plan was prepared at the instance of PW3.
c) No employee of Metro was present at the spot.
d) PW3 immediately went away from the spot and he did not
even try to seek any medical attention to deceased.
e) He did not make any call at 100 number nor he approached nearby police post or the police station.
f) He went to the family of the deceased to inform them.
g) He was called by IO in the police station on 05.03.09.
11) The above mentioned facts are required to be appreciated. Ld. Defence Counsel vehemently argued that PW3 is a planted witness, which was denied on the part of the State.
12) The conduct of PW3 after the incident in question is not a conduct of reasonable person and does not instill the faith of this court at all. The first fact which raises some kind of doubt on the presence of PW3 at the spot is that he did not have any specific work at the place of the incident and he just went to met the deceased and at the same time the incident in question occurred. Further, PW3 did not take any step to secure any kind of medical attention for the deceased. He even not tried to seek any help from any person who must have been available at the spot for removing the deceased who was lying under the tyres of offending vehicle. PW3 CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 6/9 CNR No. DLCT020010612009 chosen to fled away from the spot to inform the family members of PW3. Had PW3 present at the spot then he must have taken some steps to secure the medical attention to the deceased or to help deceased in any manner. It is true that different persons act differently in a given situation but it is also ture that the court has to see the reasonable conduct of a ordinary prudence man in the given circumstances.
13) PW3 not even informed to the police by making a call at 100 number or to approach the nearby police post. He allegedly opted to inform the family members of the deceased. This is also not came on record that PW3 was the friend or the relative of the deceased and he knew the residence of the deceased prior to the incident also. PW3 deposed that he even did not have the contact number of the family members of the deceased.
14) PW3 deposed that the site plan was prepared by the IO at his instance. IO /PW9 deposed that he prepared the site plan Ex.PW3/D1 prior to the reaching of Mukesh Kumar at the spot. IO also deposed in the cross examination that he prepared the site plan at the spot after sending the rukka to the police station but prior to receiving the copy of FIR when admittedly PW3 was not available with the IO. Surprisingly, the site plan bears the signatures of PW3. If PW3 was not present with the IO at the time of the preparation of the site plan then how the signatures of PW3 are appearing on the site plan. In the cross examination, PW3 also deposed that he did not visit the spot alongwith IO SI Bodh Raj. If that be so, then it is clear that the site plan was prepared by the IO while sitting in the PS. CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 7/9 CNR No. DLCT020010612009 The authenticity of the site plan is also came under the cloud of doubt.
15) PW3 deposed that he was called by IO SI Bodh Raj to met him in the PS on 05.03.09. IO /PW9 deposed that the PW3 reached at the spot of his own and he was not called by him. This is contrary facts and are very material facts of the present case. If IO did not know PW3 and the family members of the deceased also not told IO about PW3 then how PW3 was called by the IO to come in the police station on 05.03.09. This reveals that the story of the prosecution has some voids. Further, IO deposed that PW3 came at the spot. Contrary to that PW3 deposed that he was called at the PS and he not came at the spot with the IO. All these facts leads to further doubt on the presence of PW3 at the spot at the time of incident.
16) It is also pertinent to mention here that in the statement u/s.161 Cr.PC of PW3 which forms the part of the judicial file it is mentioned by PW3 that after the incident the accused came out of the offending truck and he told his name as Kalicharan to PW3 and thereafter fled away from the spot. This fact not deposed by PW3 in the examination in chief. In the examination in chief, PW3 nowhere deposed that accused came out of the offending truck and told his name as Kalicharan to him. PW3 deposed contrary to his statement u/s.161 Cr.PC. The testimony of PW3 is not credible.
17) In view of the above mentioned discussion, it could be said that PW3 is not credible witness. His presence at the spot is doubtful and he seems to be a planted witness. There are gaping holes in the case of prosecution and the accused is entitled to benefit of the same. It is well CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 8/9 CNR No. DLCT020010612009 settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
18) Accordingly, accused Kalicharan S/o. Shivcharan is hereby acquitted from the present case. File be consigned to record room subject to compliance of section 437A Cr.PC.
Digitally signed KAPIL by KAPIL
KUMAR
KUMAR Date: 2018.10.10
16:54:40 +0530
Announced in open court (Kapil Kumar)
on 10.10.2018 MM5/Central District
Tis Hazari Courts/Delhi
CIS No. 301937/16, State Vs. Kali Charan, FIR No. 27/09, PS. Kamla Market, U/s. 279/304A IPC 9/9