Delhi District Court
State vs . Damodar on 2 July, 2013
IN THE COURT OF MS. SAUMYA CHAUHAN
METROPOLITAN MAGISTRATE-07 (SOUTH EAST), SAKET COURTS,
DELHI
FIR No. : 114/11
PS : Sun Light Colony
Offence complained of : 279/338 IPC
Date of commission of offence : 27.03.2011
Unique Case ID No. : 02406R0237062011
C C No. : 177/3/11
State vs. Damodar
S/o Sh. Chatri Singh
R/o House No. 7D, Siddharth Basti,
New Delhi
............. Accused
Sh. Amresh Kumar
S/o Sh. Jai Prasad
R/o House No. 150, Hari Nagar Ashram
New Delhi
........... Complainant
Date of Institution : 12.08.2011
Plea of accused : Pleaded not guilty.
Date of reserving judgment/ order : 02.07.13
Date of pronouncement : 02.07.13
Final Order : Acquitted
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
ALLEGATIONS
The story of the prosecution is that on 27.03.2011 at about 9.40
PM at Mathura road, Hari Nagar Ashram, Footover Bridge, New Delhi, falling
within the jurisdiction of Police Station Sun Light Colony, the accused Damodar
was driving a motorcycle bearing number DL3SAJ 1477 in a rash and negligent
manner and while driving the said vehicle in such a manner, the accused hit
FIR No. 114/11 State Vs. Damodar Page No. 1 / 6
against one pedestrian and caused grievous injuries to him. Thus, accused
Damodar is alleged to have committed offence punishable under section 279 /
338 IPC.
FIR
On the basis of the said allegations and on the complaint of the
complainant Amresh an FIR bearing number 114/11 under section 279/338 IPC
was lodged at Police Station Sun Light Colony.
CHARGE
After investigation, charge-sheet under section 173 Cr.P.C was
filed on 12.08.2011. The accused was summoned to face trial and he was
supplied the copy of charge sheet as per section 207 Cr.P.C.
On the basis of the charge-sheet, a notice for the offence
punishable under section 279/338 IPC was framed against accused Damodar,
to which he pleaded not guilty and claimed trial on 02.02.2012.
JUDICIAL RESOLUTION
To bring home the guilt of rash and negligent driving to the
accused, three things need to be proved by the prosecution that to beyond any
reasonable doubt. The three essential ingredients are as follows:-
(1)That the accident actually took place.
(2)That the accident took place due to rash and negligent driving.
(3)That the accused was the person who was driving the vehicle at
the relevant time.
In order to prove the above said allegations, the prosecution has
cited 11 witnesses, of which Amresh Kumar is the injured/ complainant and
Vinod Gupta is the eye witness. All the other remaining witnesses are formal
witnesses and none of them is a witness to the accident, sufficient only to prove
that Amresh Kumar had suffered injuries and that an FIR with respect to the
said incident was lodged on the same day at PS- Sun Light Colony vide FIR
bearing No. 114/11.
FIR No. 114/11 State Vs. Damodar Page No. 2 / 6
The injured/complainant Amresh was summoned through IO/ SHO
as well as through DCP concerned. However, the summons were received back
unserved. Thus, vide order dated 24.11.2012, the said witness was dropped
him from the list of witnesses.
The eye witness Vinod Gupta was summoned to give evidence in
the court.
PW Vinod Gupta deposed that he is running a shop at Ashram
Chowk. He deposed that on 27.03.2011 he was present at his shop. At about
9.30-10.00 am, he saw that one motorcycle hit against two children who were crossing the road. Children fell down on the road and sustained injuries due to the hitting of motorcycle. After hitting, motorcycle ran away from the spot. Thereafter, he called at 100 number. PCR van came at the spot and took the injured to the hospital. He pointed out the place of accident to the police when police enquired him. Police prepared site plan at his instance which is Ex. PW1/A. He further deposed that he did not know the number of the motorcycle and name of the person who was driving the motorcycle at the time of incident.
He was cross examined by the Ld. APP for State. He admitted that two persons were got injured in the above said incident. He did not remember whether one injured person was the person who was crossing the road and the second injured person was the person who was driving the motorcycle. He deposed that his hotel is situated 10 steps far away from the place of occurrence. He denied the suggestion that the number of the offending motorcycle was DL3SAZ 1477. He further denied the suggestion that the motorcyclist along with his motorcycle fallen down on the road after the incident and also sustained injuries. He denied the suggestion that the PCR van had taken the injured person and injured driver /accused to the hospital. Witness could not identify the photographs of the offending vehicle in the court. Witness could not identify the accused in the court despite pointed by the Ld. APP.
During cross examination by the Ld. Defence Counsel, he admitted that at the place of accident, over-bridge for pedestrians was made on the road.
FIR No. 114/11 State Vs. Damodar Page No. 3 / 6As the complainant /injured is unserved even through DCP concerned and the eye witness has turned hostile, denying the entire prosecution story, carrying on with further prosecution evidence and recording testimonies of formal witnesses would have become only a futile exercise, and wastage of judicial time, resources and energy.
Since the eye witness Vinod Gupta has turned hostile and injured complainant Amresh is unserved even through DCP concerned, the prosecution can never prove that injuries caused to the injured in the present case was a result of an act of accused and that the accident was caused by the vehicle bearing number DL3SAJ 1477, which was being driven by the accused Damodar in a rash and negligent manner. The testimony of all the remaining witnesses together is insufficient to prove the allegations against the accused qua offences u/s 279/338 IPC.
The case is at the stage of PE, since there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.
In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:
"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the FIR No. 114/11 State Vs. Damodar Page No. 4 / 6 witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons
- cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) FIR No. 114/11 State Vs. Damodar Page No. 5 / 6 Accordingly, in the opinion of the court, in the light of the above cited judgment, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/338 IPC to make the ends of justice meet, and stop the proceedings against the accused.
Final Order Since the injured/complainant Amresh is unserved even through DCP concerned and eye witness Vinod Gupta has turned hostile and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against accused Damodar qua offences u/s 279/338 IPC and hereby releases the accused Damodar under sections 279/338 IPC, which shall have the effect of acquittal.
As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.
File be consigned to Record Room.
ANNOUNCED ON 02.07.13 (SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 02.07.13 Certified that this judgment contains 6 pages and each page bears my signatures.
(SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 02.07.13 FIR No. 114/11 State Vs. Damodar Page No. 6 / 6