Delhi District Court
Briefly Stated Case Of The Prosecution ... vs Dharmender Singh Page 8/8 on 25 September, 2014
THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 07, (CENTRAL) ROOM NO. 137,
TIS HAZARI COURTS, DELHI.
STATE
VERSUS
DHARMENDER SINGH
FIR No. 194/02
P.S.: SUBZI MANDI
U/S: 279/304A IPC
1. Serial No. of the case : 02401R0164652002
2. Date of commission of offence : 09.08.2002
3. Name of the Complainant : CONSTABLE ABDUL RAHIM,
NO. 1181/T, PS Subzi Mandi,
Delhi.
4. Name of the accused, and
his parentage and residence : DHARMENDER SINGH,
S/o Sh. Jagdish Singh,
R/o 55A, LIG Flats, Tulsi Niketan,
Near Bhopara Theka, Gaziabad,
Uttar Pradesh.
5. Date when judgment : 25.09.2014
was reserved
6. Date when Judgment : 25.09.2014
was pronounced
7. Offence Complained of : Section 279/304A IPC
or proved
8. Plea of accused : Pleaded not guilty
9. Final Judgment : Acquitted for the offence U/s
279/304A IPC.
FIR No. 194/02
PS- Subzi Mandi
State Vs. Dharmender Singh page 1/8
Brief Statement of reasons for the decision of the case
1. Briefly stated case of the prosecution is that on 09.08.2002 at about 4.45 PM at Rani Jhashi road, near Tpoint, Roshanara Road, Delhi within the jurisdiction of PS Subzi Mandi, accused was driving bus bearing No. DL 1PA 6677 in rash and negligent manner and struck against Rajesh Kumar due to which he died. Accordingly, FIR was registered vide FIR No. 194/02, PS Kotwali U/s 279/304A IPC. The challan was filed on 31.10.2002.
2. On appearance of the accused, notice U/s 251 Cr.P.C was served upon him to which he pleaded not guilty and claim trial for offence under Section 279/304A IPC. Thereafter, the matter was put up for prosecution evidence.
3. Prosecution has examined twelve witnesses namely PW1 Krishan Swaroop, PW2 Harish Kumar Arora, PW3 Ct Abdul Rahim, PW4 ASI Ramesh, PW5 Ct Anil Kumar, PW6 Dinesh Kumar, PW7 Vinod Kumar, PW8 Kishan Kumar, PW9 Deepak Kumar, PW10 Dr. Rajesh Gupta, PW11 Inspector Suresh Chand and PW12 Retired ASI Techician Devender Kumar to prove the case of the prosecution. The evidence of each witness is relevant and will be discussed at later stages.
4. After the Prosecution evidence was closed the statement of accused was recorded under Section 313 Cr.P.C and all the incriminating evidence were put to him wherein he stated that the spot is bus stand and there was always traffic at the spot and public used to hang on the gates of bus. He further stated that he has not caused the accident and was not rash and negligent while driving and he himself surrendered to the police. He further stated that he do not want to led defence in his evidence. Thereafter, the final arguments were heard.
5. Ld APP for the State has argued that the offence against the accused FIR No. 194/02 PS- Subzi Mandi State Vs. Dharmender Singh page 2/8 is proved beyond reasonable doubts as all the witnesses have supported the version of the prosecution. He prays for conviction of the accused.
6. On the other hand, Ld counsel for the accused submits that accused was not rash and negligent while driving and he himself surrendered to the police. He prays for acquittal.
7. PROSECUTION EVIDENCE:
7.1 PW1 identified the dead body of the deceased being his son vide Ex. PW1/A. 7.2 PW2 is the supardar of offending vehicle No. DL 1PA 6677 and he stated that on 12.08.2002 he moved an application Ex. PW2/A for supardari and got the vehicle released on supardari vide Ex. PW2/B. 7.3 PW3 is the alleged eye witness of the accident. He stated that on 09.08.2002 he is the Traffic Police and was on duty at Tpoint, Roshanara Road, near Rani Jhansi Marg and on that day at about 4.45 PM he saw bus running on Route No. 212 coming from Barfkhana Chowk and going towards Pul Bangesh crossed Tpoint in rash and negligent manner and on hearing noise by public persons he reached the spot and stopped the bus.
He further stated that he went to the left side of the bus and saw one person lying dead on road crushed under the rear wheel of the bus and someone made call to PCR. He further stated that he lodged complaint Ex. PW3/A and handed over the accused and offending vehicle to the IO. During cross examination he stated that he had informed the IO about his duty at the spot but did not hand over any proof regarding his presence at the spot. He failed to recall whether any other police official was also on duty with him or not and whether traffic signals of the spot was in working order or not. He even failed to to recall as to which side traffic was open at the time of incident and admitted that he had not informed to the IO about the same.
FIR No. 194/02
PS- Subzi Mandi
State Vs. Dharmender Singh page 3/8
He admitted that spot is crowed area and vehicle cannot be driven in high speed. He stated that he told the IO that accused was driving offending vehicle in zig zag manner but when confronted with the statement where it is not so recorded, he failed to given any answer. Same was his reply when he was confronted with his statement whether accused was driving the offending vehicle in rash and negligent manner but same was not mentioned in Ex. PW1/A. He even failed to remember whether any public person or passenger of the offending vehicle was examined by the IO. He admitted that he had not moved the injured to the hospital. He denied the suggestion that he was not present at the spot due to which he had not moved the injured to the hospital and that is why he did not hand over his departure entry to the IO. He failed to remember whether site plan was prepared in his presence or not and admitted that he is not a witness of the site plan. He denied the suggestion that he had not signed the arrest memo since he was not present at the spot. He even denied the suggestion that metro work was going on at the spot on that day. When he was confronted with Ex. PW7/A (colly) which are the photographs showing the construction of metro work at the spot, he failed to give any answer but denied the suggestion that since, he was not present at the spot, therefore, he was not aware about metro work going on at the spot. He even denied the suggestion that some other vehicle caused the accident and accused has been falsely implicated.
7.4 Apart from PW3 another witness Jai Gopal was cited an eye witness but unfortunately before he could be examined he expired. Apart from these three witnesses, all other witnesses are witnesses of investigation carried out after the incident.
7.5 PW7 is the photographer who took the photographs of the spot. He
FIR No. 194/02
PS- Subzi Mandi
State Vs. Dharmender Singh page 4/8
stated that on 09.08.2002 on the request of the IO, he reached the spot and clicked photographs of the deceased as well as of the spot and offending bus which was Ex. PW7/A and its negatives Ex. PW7/B collectively. 7.6 PW10 is the Doctor who conducted the postmortem of the deceased and proved the same vide Ex. PW10/A and opined the nature of injuries as anti mortem in nature caused by blunt force impact due to being involved in vehicle accident.
7.7 PW11 is the IO of the case. he stated that on 09.08.2002 he received DD No. 47B Ex. PW11/A and while going to the spot he also received DD No. 48B Ex. PW11/B regarding the accident. He further stated that at the spot one traffic Constable Abdul met and handed over the accused who disclosed his name as Dharmender. He further stated that he called the photographer who clicked the photographs vide Ex. PW7/A and he recorded statement of Ct Abdul vide Ex. PW1/A and sent rukka for registration of FIR. He further stated that he prepared site plan at the instance of Ct Abdul. He further stated that one public witness Jai Gopal was an eye witness of accident and he recorded his statement. He also stated that about the removing of the dead body to the mortuary and handing over the same to the relatives of the deceased after postmortem. He also stated about the seizure of the offending vehicle as well as arrest and personal search of the accused. During cross examination he admitted that in DD No. 47B vehicle number was not mentioned and only factum of accident was there. He admitted that in PW11/A1 i.e site plan location of T point is nowhere mentioned. He further stated that when he reached the spot, he met Traffic Constable and 45 public persons. He admitted that he had not collected the duty roaster/departure entry of the said traffic Constable but denied the suggestion that said Constable was not on duty FIR No. 194/02 PS- Subzi Mandi State Vs. Dharmender Singh page 5/8 and therefore, he cannot collect the same. He admitted that construction of metro work was going on the spot but denied the suggestion that due to heavy construction of metro bridge, the spot was heavily congested. Surprisingly, he stated that site plan was prepared at the instance of Jai Bhagwan but in his examination in chief stated that site plan was prepared at the instance of Ct Abdul Rehim. He also stated that he had not mentioned the skid marks/blood stains in the site plan as he had not observed blood stains on the tyres but denied the suggestion that since no accident occurred with the vehicle No. DL 1PA 6677, therefore, there was no blood stains on the tyre/body. He admitted that he had not collected the bus chart from the concerned bus terminal/depot. He admitted that Ct Abdul is not an attesting witness of the arrest and he had not joined investigation at later stage. He denied the suggestion that some other vehicle hit the deceased and vehicle No. DL 1PA 6677 did not hit him. He also denied the suggestion that accused was not apprehended at the spot.
7.8 PW12 conducted mechanical inspection of offending bus vehicle bearing No. DL1PA6677 and and proved his report vide Ex. PW12/A.
8. APPRECIATION OF EVIDENCE:
8.1 In the present case, PW3 claimed that he was present at the spot at the time of accident and having duty hours from 8 am to 8pm whereas during cross examination he stated that he remained at the spot for about 10 minutes only which implies that he left the spot without completing his duty. Moreover, if he was present at the spot, he must be aware of metro work going on near the spot as shown in Ex. PW7/A i.e photographs of the spot. When suggestion was put to him that metro work was going on at the spot, he denied the same. He even failed to state the flow of traffic at the time of accident and whether the traffic signals was working or not. No FIR No. 194/02 PS- Subzi Mandi State Vs. Dharmender Singh page 6/8 duty roaster or departure entry has been brought on record to show the presence of Ct Abdul Rahim at the spot at the time of accident. The onus is now on the prosecution to prove his presence at the spot and must have atleast brought the departure entry of PW3 from the Traffic Circle, Subzi Mandi.
8.2 Eventhough, PW11 claimed that one Jai Gopal is also an eye witness of the accident but PW3 he stated nothing about the presence of Jai Gopal at the time of accident. Despite PW3 being police official, he himself not made PCR call. There is no explanation why he had not made the PCR call. 8.3 Moreover, as per DD No. 47B, one Ct Bhupender of PCR reported about the accident at Tpoint but said Ct Bhupender was neither cited as witness by the prosecution nor examined. The prosecution has also failed to place on record the bus roaster as approved by the concerned Terminal/Depot for plying of different buses on single route. 8.4 As per Ex. PW1/A i.e first information about accident in which it is only mentioned that one bus No. 212 came from side of Barfkhana Chowk and going towards Pul Bangash and near the Tpoint public shouted about crushing of one person under the bus but rashness or negligence attributed against the driver in the initial statement of PW3. On the other hand when he was examined as prosecution witness, he has stated that bus was coming in rash and negligent manner and during cross examination he stated that bus was driven in zig zag manner. This is a material improvement made by PW3 and there is no explanation why the alleged fact of zig zag manner of driver was not stated by PW3 while his statement was recorded.
Eventhough, he is a police Constable and must have signed his statement after reading the same, he could have asked the IO to include the alleged factum of driving in zig zag manner. The material improvement made by FIR No. 194/02 PS- Subzi Mandi State Vs. Dharmender Singh page 7/8 PW3 goes to the root of the case and in Yudhister Vs. State of Madhya Pradesh 1971 SCC 684 it has been held that when a particular fact deposed by the witness does not find mentioned in the FIR and in his statement recorded under Section 161 Cr.P.C, it is an improvement and it cannot be considered and therefore, no reliance can be placed on the testimony of PW3 Ct Abdul Rahim. The presence of PW3 at the spot is doubtful.
9. Accordingly, I am of the considered opinion that prosecution has failed in proving the allegations against the accused beyond doubt as it is the cardinal principal of law that it is the duty of the prosecution to prove the allegations against the accused and accused deserves the benefit of doubt. In view of the same, accused Dharmender Singh is acquitted for the offence punishable U/s 279/304A IPC with full honors. Bail bond stands cancelled. Surety stands discharged. Documents, if any be released. Case property be released to the rightful claimant. Supardginama stands cancelled.
File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT)
COURT ON 25.09.2014 METROPOLITAN MAGISTRATE07
CENTRAL/TIS HAZARI COURTS,
DELHI.
FIR No. 194/02
PS- Subzi Mandi
State Vs. Dharmender Singh page 8/8