Delhi District Court
State vs . Jagbir on 17 March, 2018
State vs. Jagbir
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE (MAHILA COURT-02), SHAHDARA,
KARKARDOOMA COURTS, DELHI
State vs. Jagbir
FIR No. 73/2003
U/sec. 279/304-A IPC
PS: Seema Puri
Date of institution of the case: 12.12.2004
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 17.03.2018
Unique I. D. No. T-08/2018
JUDGMENT
a) Sr. No. of the case : 271/2
b) Date of commission of the offence : 10.03.2003
c) Name of the complainant : D. D. No. 53-B
d) Name of the accused and his parentage : Jagbir
S/o Sh. Umed Singh
R/o Village Sultanpur,
PS Bawana, Delhi.
e) Offence complained of or proved : Sec. 279/304-A IPC
f) Plea of the accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 17.03.2018
FIR No.73/2003 Page No.1 of 15
State vs. Jagbir
i) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 10.03.2003 at 06:00 p.m., information was received in police station Seema Puri about an accident involving a TATA 407 near DTC Depot. This information was recorded vide DD No.53-B in the police station and the matter was entrusted to SI Sultan Singh for investigation. Thereafter, the IO along with Constable Kare Lal reached the spot where he found one tempo bearing registration number DL-ILD-1534 standing in accidental condition. He also came to know that injured has already been shifted to GTB hospital by PCR van. IO left the Constable Kare Lal at the spot and went to the hospital and collected the MLC of the injured wherein the doctor had declared the injured unfit for statement. Thereafter, he came back to the spot but no eye witness was found. Therefore, he made an endorsement on DD No. 53-A, prepared the rukka and handed over the same to Constable Kare Lal for registration of the FIR, who went to the police station.
In the meantime, Constable Ved Prakash and Constable Karan Singh, who had allegedly witnessed the incident, came there and the IO at the instance of Constable Karan Singh prepared the Site Plan. IO recorded the statement of both the alleged eye-witnesses and discharged them from the spot.
After some time, Constable Kare Lal came back at the spot with the original rukka and copy of FIR and handed over the same to the IO.
Thereafter, IO seized the offending vehicle. On 11.03.2004, the IO received a DD No. 43-B that the injured has succumbed to injuries at GTB hospital and thereafter, IO went to the hospital where he came to know that deceased has been shifted to mortuary. IO came back to police station and got the vehicle mechanically inspected.
During the course of investigation, IO gave a notice to the owner of the offending vehicle, who replied that accused was driving the vehicle at the time of accident. Thereafter, IO arrested the accused.
FIR No.73/2003 Page No.2 of 15State vs. Jagbir After completion of the investigation, charge-sheet under sections 279/304-A IPC was filed before the court. Consequently, accused persons were summoned to face the trial. On their appearance in the Court, the copies of documents, relied upon by the prosecution, were supplied to them as per norms.
PW1/SI Rameshwar was the Duty Officer, who recorded the FIR/Ex.PW1/A and made an endorsement/Ex.PW1/B on the rukka.
PW2/Dharam Pal was the owner of the offending vehicle. He stated that the police obtained his signatures on a paper and released the vehicle to him vide Ex.PW2/A. This witness was cross-examined by the learned APP for the State with the permission of the court as he resiled from his previous statement given to the IO during the course of investigation.
He during his cross-examination by the learned APP for the State admitted that the accused Jagbir Singh was his driver, however, he stated that he cannot say with surety that on 10.03.2003 accused Jagbir Singh was driving the vehicle bearing registration no. DL-ILD-1534 as he had two drivers.
He denied having received any notice under section 133 of the MV Act. He stated that police obtained his signatures forcibly on a paper.
PW3/Kamruddin was the father of the deceased. He proved the dead body identification memo Ex.PW3/A. PW4/Constable Ved Prakash was projected as an eye witness to the alleged incident. He stated that on 10.03.2003, he was posted at PS Seema Puri Traffic Circle and his duty hours were from 08:00 a.m. to 08:00 p.m. He stated that he along with Constable Karan Singh was present opposite DTC Depot, Seema Puri and at about 05:45 p.m., a TATA 407 bearing Registration No. DL-ILD-1534 came from the side of Old Seema Puri in high speed. One boy was standing in the back side of the tempo and shouting to stop the vehicle. The driver FIR No.73/2003 Page No.3 of 15 State vs. Jagbir slowed down the speed of the vehicle but he suddenly accelerated the speed when the boy was trying to get down and as a result, he fell down and sustained injuries.
The witness stated that they signed to spot the vehicle but the driver fled away from the spot leaving the vehicle there. PCR Van came there and took the injured to hospital.
The witness stated that the accused was driving the vehicle and he identified the accused standing in the dock.
He stated that they resumed their wok and went towards Mrignayni Chowk. He stated that thereafter, IO called them and recorded their statements.
The witness stated that the accident took place due to the fault of the driver of said tempo as he accelerated the speed of the tempo despite the fact that the boy was shouting to stop the tempo.
He during his cross-examination by the learned defence counsel stated that he made the departure entry in the Register but cannot tell the number of the entry. He stated that on that day, he along with Constable Karan Singh was on Motorcycle and reached the spot at about 05:35 p.m. He stated that he was present at a distance of 30 feet from the spot on opposite side and can identify the spot and his position in the Site Plan. However, when the site plan was shown to him, he stated that he cannot say at which point he was standing in the site Plan.
He stated that he was observing traffic coming from Toll Tax side and was looking towards the Toll Tax side.
During the cross-examination, a specific question was put to the witness why he did not apprehend the accused when he was running from the spot.
In reply to the said question, the witness stated that they were attending the injured as he has received severe injuries and was bleeding from head.
FIR No.73/2003 Page No.4 of 15State vs. Jagbir He stated that they did not lift the injured. He stated that neither he nor Constable Karan Singh called the police. He stated that he does remember after how much time PCR Van came there.
He stated that IO along with a Constable came at the spot in his presence but at that time he did not record his statement.
He stated that IO asked them to perform their duty and come back thereafter. He stated that the IO recorded his statement on the same day.
He stated that the crowd had gathered there and stated the name of injured as Mohd. Abid.
On that day, his complete cross-examination could not be recorded due to paucity of time.
When this witness was again re-called for examination, he stated that he did not try to take the injured to hospital as he rushed towards the accused to catch hold of him. He stated that accused fled away from the spot. He admitted that another Constable was also present with him and they were having Motorcycle.
He stated that there was no police office to guard the spot when they left the spot.
PW5/ASI Bal Kishan mechanically inspected the offending vehicle vide Ex. PWC/6 and found no fresh damage.
PW6/Constable Kare Lal stated that on receipt of DD No. 53-B, he along with IO went to the spot where they found one TATA 407 bearing Registration No. DL- 1LD-1534 stationed there.
The witness stated that they came to know that the injured has been taken to GTB Hospital. He stated that IO left him at the spot and went to GTB Hospital and directed him to enquire about the parents of the injured. He stated that accordingly, he made announcement in this regard from a Masjid. After sometime, IO came back at the spot and prepared the rukka and handed over to him for registration of FIR. Accordingly, he went to police station and got the FIR registered and came FIR No.73/2003 Page No.5 of 15 State vs. Jagbir back on the spot and handed over the original rukka and copy of FIR to the IO. Thereafter, IO seized the vehicle vide Ex.PW7/A bearing his signatures at point A. He stated that on 11.03.2003, the owner of the vehicle produced driver Jagbir Singh and IO gave notice under section 133 of MV Act to the owner and seized the DL of the accused vide Ex.PW7/B. IO arrested the accused vide Ex.PW7/C. He further submitted that the IO got conducted the post mortem of the deceased on 12.03.2003 at GTB hospital.
He identified the accused in the dock.
This witness during his cross-examination by the learned defence counsel stated that on the spot, some public persons were present but no police person was present.
He stated that no police person was present at the spot to guard the spot of incident. He took rukka at about 07:40 p.m., and till that time, no public person was available.
He stated that public persons told that PCR van has removed the injured to hospital and PCR officials were not examined by the IO.
PW8/SI Pyare Lal was posted on PCR Van. He stated that at about 06:00 p.m., one passerby informed him about the accident by tempo behind DTC Depot. Consequently, he along with other PCR officials reached there and found one TATA 407 in accidental condition and a child lying on the road in unconscious condition.
He informed PCR Control room about the accident and took the injured child to GTB hospital. He stated that he left a Constable at the spot and on 20.03.2003, IO recorded his statement.
This witness during his cross-examination by the learned defence counsel admitted the suggestion that he was the first person who attended the child. He stated that passersby had informed him that the tempo had caused the accident.
FIR No.73/2003 Page No.6 of 15State vs. Jagbir PW9/Azizuddin was the uncle of deceased. He identified the dead body in the hospital vide dead body handing over memo Ex.PW9/B. PW12/Harish Chand Pandey has proved the post mortem report/Ex.PW12/A. PW5 (sic)/Head Constable Karan Singh has stated that on 10.03.2003, he was posted as Traffic Constable in Seema Puri Circle and his working hours were from 08:00 a.m., to 08:00 p.m. He stated that at about 05:45 p.m., he along with Constable Ved Prakash was present at 70 Foota Road, opposite DTC Depot, Seema Puri. He stated that a TATA 407 bearing registration no. DL-1LD-1534 came from side of PS Seema Puri and was going towards DTC Depot, Seema Puri.
He stated that he saw a boy in the back side (trolley) of the tempo and was shouting "roko-roko". The driver of the vehicle slowed down the speed of the vehicle and when the boy was trying to get down, he accelerated the speed, as a result the boy fell down on the road.
He stated that he saw the driver of the vehicle and tried to stop the vehicle but he did not stop the vehicle and stopped it after about 200 meters and fled away leaving the vehicle there.
He stated that PCR Van came and removed the injured to hospital. He stated that the accident occurred due rash or negligent driving of the driver.
He stated that the IO met him at Mrignayni Chowk and enquired about the accident. He said that he informed the IO about having witnesses the accident.
He stated that thereafter, he along with the IO and Constable Ved Prakash reached at the spot and met Constable Kare Lal. He stated that the IO prepared the site plan at his instance.
This witness during his cross-examination by the learned defence counsel stated that he cannot tell the number of his departure entry. He stated that they neither informed their seniors nor made any PCR call regarding the accident.
FIR No.73/2003 Page No.7 of 15State vs. Jagbir PW10/SI Sultan Singh was the Investigating Officer of the present case. He testified that on 10.03.2003, he was posted at PS Seema Puri. On that day, he received a DD Entry no, 53-B at 06:00 p.m., regarding accident. He along with Constable Kare Lal visited the spot where he found a tempo bearing registration no. DL-ILD-1534 standing in accidental condition. Injured had already been shifted to GTB hospital by PCR van. He left Constable Kare Lal on the spot to guard the spot and went to GTB hospital and collected the MLC No. C-522. Injured was unfit for statement.
He stated that no eye witness was met in the hospital. Thereafter, he came back to the spot where also no eye witness was met. He made endorsement on the DD No. 53-B and handed over the same to Constable Kare Lal for registration of FIR.
He stated that Constable Kare Lal went to the police station.
He stated that in the meantime, Constable Ved Prakash and Constable Karan Singh came at the spot, who had witnesses the incident. He prepared the site plan at the instance of Constable Karan Singh and recorded their statements and discharged them from the spot.
He stated that Constable Kare Lal came at the spot and handed over the original rukka and copy of FIR to him. Thereafter, he seized the tempo.
On 11.03.2003, he received a DD Entry no. 43-B regarding the death of the injured.
He stated that he got the vehicle mechanically inspected. The owner of the vehicle came along with the driver. He gave notice to the IO under section 133 MV Act. Owner gave reply stating therein that the accused was driving the vehicle at the time of accident.
He stated that he interrogated and arrested the accused and also seized her driving licence.
FIR No.73/2003 Page No.8 of 15State vs. Jagbir This witness during his cross-examination by the learned defence counsel stated that he received the DD at about 06:00 p.m., and he reached the spot within 10-15 minutes by his Scooter.
He admitted the suggestion that when he reached there, he did not meet any eye witness.
PW11/SI Kiran Pal was the 2nd IO of the present case. He stated that on 09.07.2003, he had moved an application for conducting the TIP of the accused, however, accused had refused to participate in the TIP.
PW13/Dr. Parmeshwar Ram has proved the MLC/Ex. PW13/A. PW14/Constable Abhilash, was the MHC(M), who has proved the entry in Register No. 19/Ex.PW14/A. Thereafter, PE was closed and statement of accused was recorded to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication. However, he did not examine any witness in his defence.
I have heard the learned defence counsel and learned APP for the State and have also perused the records very carefully.
Decision and brief reasons for the same Let us examine if the prosecution has been able to prove its case beyond reasonable doubt against the accused Jagbir.
It was argued by the learned defence counsel that both the alleged eye witnesses are planted witnesses. Learned counsel pointed out that had they witnessed the accident, they would have lifted the injured to the hospital and would have also informed the police at 100 number.
In this regard, my attention was drawn to their testimonies.
FIR No.73/2003 Page No.9 of 15State vs. Jagbir He submitted that the conduct of both the Constables is highly un-natural. When they have witnessed the accident as claimed, one would expect them to help the victim or at least inform the PCR so that injured can be removed to hospital for medical treatment, which they did not do.
I may straight away mention that since both these witnesses were police officials, I have to evaluate their evidence with caution.
Both the alleged eye witnesses were police Constables and their conduct in not reporting the matter to the police and not taking the injured to hospital, although they have claimed to have witnessed the incident, is highly unnatural and improbable. There is nothing in their evidence to justify it.
It was next argued on behalf of the accused that the prosecution has not proved the departure and arrival entries regarding the patrolling in the area. He further contended that had this been true, there ought to have been some DD entry in the Register. He stated that in the absence of DD Entry, it cannot be said that they were actually patrolling in the area at the relevant time.
It is the case of the prosecution that PW4/Constable Ved Prakash and PW5/Constable Karan Singh were on vehicle checking on that day near the spot.
PW5/Constable Karan Singh (sic) during his cross-examination by the learned defence counsel stated that he cannot tell the number of his departure entry.
PW4/Constable Ved Prakash during his cross-examination by the learned defence counsel stated that he made the departure entry in the Register but cannot tell the number of the entry.
To appreciate the argument advanced on behalf of the accused, it would be advantageous to refer to clause (c) of Rule 22.49 Chapter 22 Punjab Police Rules which reads as under:-
FIR No.73/2003 Page No.10 of 15State vs. Jagbir
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at the police station or elsewhere, with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
From the reading of the above mentioned rule, it is evident that all police officials irrespective of their rank are bound to record their arrival and departure entry at the time of leaving their office. However, in the present case no such DD entry is placed and proved on record by the prosecution. At this stage, it would be advantageous to refer to the judgment of the Hon'ble Delhi High Court passed in the case of the case of Rattan Lal vs State 32 (1987) DLT 1=1987 (2) Crimes 29 wherein it was observed as under:
"If the investigating agency deliberately ignores to comply with the provisions of the Act the courts will have to approach, their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
In view of the above, I am of the considered view that the failure by the prosecution to bring on record the DD entries concerning the departure of the police officials for vehicle checking duty casts a shadow of doubt on the prosecution case regarding their presence at the spot at the time of accident. It was argued on behalf of the accused that there are material contradictions in the testimony of prosecution witnesses which go to the root of the matter. It was stated by both the alleged eye-witnesses that they were present at the spot at the time of accident and had witnesses the accident. However, it is stated by FIR No.73/2003 Page No.11 of 15 State vs. Jagbir PW8/SI Pyare Lal that he was posted on PCR Van and at about 06:00 p.m., one passerby informed him about the accident by tempo behind DTC Depot. Consequently, he along with other PCR officials reached there and found one TATA 407 in accidental condition and a child lying on the road in unconscious condition. He informed PCR Control room about the accident and took the injured child to GTB hospital. He stated that he left a Constable at the spot and on 20.03.2003, IO recorded his statement.
This witness during his cross-examination by the learned defence counsel admitted the suggestion that he was the first person who attended the child. He also stated that no police person was present at the spot.
Whereas PW4/Constable Ved Prakash has stated during his examination-in-chief that PCR Van came there and took the injured to hospital and thereafter, he resumed his duty at Mrignayni Chowk.
PW4/Constable Ved Prakash during his cross-examination by learned defence counsel stated that IO along with a Constable came at the spot in his presence. Whereas another alleged eye witness PW5 has stated that "thereafter, I along with Constable Ved Prakash returned back to our point i.e. at Mrignayni Chowk. Thereafter, IO/SI Sultan Singh of the present case met me at Mrignayni Chowk and inquired about the incident. I informed him that I was the eye witness of the incident. Thereafter, I along with IO and Constable Ved Prakash reached at the spot where we met with Constable Kare Lal.
Now, if we will see the testimony of the IO, he has stated that he along with Constable Kare Lal visited the spot where he found a tempo bearing registration number DL-ILD-1534 standing in accidental condition. Injured had already been shifted to GTB hospital by PCR van. He left Constable Kare Lal on the spot to guard the spot and went to GTB hospital and collected the MLC No. C-522. Injured was unfit for statement.
FIR No.73/2003 Page No.12 of 15State vs. Jagbir He further stated that no eye witness was met in the hospital. Thereafter, he came back to the spot where also no eye witness was met. He made endorsement on the DD No. 53-B and handed over the same to Constable Kare Lal for registration of FIR. He stated that Constable Kare Lal went to the police station. He further stated that in the meantime, Constable Ved Prakash and Constable Karan Singh came at the spot, who had witnesses the incident. The above noted contradictions go to the root of the matter and cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. Conclusion I am of the considered view that the evidence of both the alleged eye witnesses is not reliable inasmuch as their presence at the place of the incident is highly doubtful and that their conduct is also unnatural in not informing 100 number or in not taking the injured to hospital. I am of the view that they are not truthful witness and their conduct by itself, in my view, is sufficient to hold that they did not see the incident and are "planted witnesses".
Even if it is presumed that the accused was the person driving the vehicle at the relevant time, still there is no evidence to prove that he drove the vehicle rashly and negligently.
For bringing in application of either section 279 or 304-A IPC, it must be established that there was an element of rashness or negligence. {Braham Dass vs. State of HP (SC)} It is the case of the prosecution that the child was traveling in the load body of TATA 407, which is a commercial vehicle. There is no iota of evidence to show that the driver had any knowledge that any boy was traveling in the load body of the vehicle. Further, there is nothing on record to show that driver failed to take such care that a prudent driver ought to have.
FIR No.73/2003 Page No.13 of 15State vs. Jagbir Result In a criminal trial the guilt of the accused has to be proved beyond reasonable doubt and there is no place of conviction on the basis of conjunctures. 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 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 FIR No.73/2003 Page No.14 of 15 State vs. Jagbir 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).
Therefore, keeping in view the overall conspectus of the case, I am of the considered view that the prosecution has failed to discharge the burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused and has failed to prove beyond reasonable doubt that the accused Jagbir was driving the vehicle involved in the accident.
Therefore, I give benefit of doubt to the accused and accordingly, the accused namely Jagbir is acquitted of the charge levelled against him.
Bail bond under section 437A of the Code furnished. Perused and accepted for a period of six months from today.
File be consigned to record room after due compliance. Announced and dictated in open court on 17th day of March, 2018 (Babita Puniya) MM(Mahila Court-02/Shahdara KKD Courts/Delhi 17.03.2018 This judgment contains 15 pages and each page bears my signature.
(Babita Puniya) MM(Mahila Court-02/Shahdara KKD Courts/Delhi 17.03.2018 FIR No.73/2003 Page No.15 of 15 State vs. Jagbir State vs. Jagbir FIR No. 73/2003 PS: Seemapuri 17.03.2018 Present: Learned APP for the State Accused Jagbir on bail.
Statement of accused recorded. DE closed at request of the accused. Final arguments heard. File perused.
Vide separate judgment of even date, accused Jagbir is ACQUITTED of the crime charged.
Bail bond furnished under section 437-A of the Code shall remain in force for a period of six months from today.
(Babita Puniya) MM (Mahila Court-02)/Shahdara KKD Courts/Delhi/17.03.2018 FIR No.73/2003 Page No.16 of 15