Delhi District Court
Mr.Rajinder Kumar vs State (N.C.T. Of Delhi) on 30 August, 2012
IN THE COURT OF MS. NIVEDITA ANIL SHARMA,
ADDITIONAL SESSIONS JUDGE-03, WEST,
TIS HAZARI COURTS, DELHI
Criminal Appeal Number : 07 of 2012.
Unique Case Identification Number : 02401R0327222012.
Mr.Rajinder Kumar
Son of Mr.Jumman Lal
Resident of H.No.83, Rajender Park,
Nangloi, Delhi.
.............................................................................................Appellant.
versus
State (N.C.T. of Delhi)............................................................Respondent.
Date of institution : 20.07.2012.
Date of transfer of the file to this Court : 03.08.2012.
Arguments concluded on : 30.08.2012.
Order delivered on : 30.08.2012.
Appearances: Appellant on bail with legal aid counsel, Mr.Rajeev Mittal
Ms.Promila Singh, Additional Public Prosecutor for the
State/ respondent.
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ORDER
1. Mr.Rajinder Kumar, the appellant, has filed the present appeal against the judgment of conviction dated 31.05.2012 for the offence under sections 279/338 of the Indian Penal Code (hereinafter referred to as the IPC) and the order on sentence dated 02.06.2012 of the Court of the learned Metropolitan Magistrate, Tis Hazari Courts, Delhi in First Information Report (hereinafter referred to as the FIR) number 58 of 2002 Police Station Moti Nagar.
Criminal Appeal Number : 07 of 2012.
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2. The trial Court record was summoned and the notice of the appeal was issued to the State on which Additional Public Prosecutor has appeared.
3. Arguments at length have been heard on the appeal. I have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point.
4. It has been submitted by the appellant that the judgment of the conviction for the offence under sections 279/338 of the IPC and the order on sentence are not only contrary to law and facts on record but have also has resulted in gross miscarriage of the justice. The learned trial Court was swayed by the news papers and media reports and failed to appreciate the evidence led by the prosecution.
5. It has been submitted on behalf of the State, on the other hand, that the judgment of conviction and the sentence are absolutely correct.
6. The question is how to test the veracity of the prosecution story especially when it has some variations in the evidence. Mere variance of the prosecution story with the evidence , in all cases, should not lead to the conclusion inevitably to reject the prosecution story. Efforts should be made to find the truth, this is the very object for which the courts are created. To search it out, the Courts have been removing chaff from the grain. It has to Criminal Appeal Number : 07 of 2012.
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disperse the suspicious cloud and dust out the smear as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are created. It is the onerous duty of the Court within permissible limit to find out the truth. It means, on the other hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot-free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be created to the accused. For this, one has to comprehend the totality of facts and the circumstances as spelled out through the evidence, depending on the facts of each case by testing the credibility of the witnesses, of course after excluding that parts of the evidence which are vague and uncertain. There is no mathematical formula through which the truthfulness of the prosecution or a defence case could be concretized. It would depend upon the evidence of each case including the manner of deposition and his demeans, clarity, corroboration of witnesses and overall, the conscience of a Judge evoked by the evidence on record. So the Courts have to proceed further and make genuine efforts within judicial sphere to search out the truth and not stop at the threshold of creation of doubt to confer benefit of doubt.
7. Turning to the case in hand, I find that notice under section 251 Cr.P.C for the offences under section 279/338 IPC has been given to the accused for driving the offending vehicle i.e. bus make Tata Criminal Appeal Number : 07 of 2012.
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bearing registration number DL 1PA 1730 in a rash and negligent manner and causing accident with the involved vehicle i.e. motor cycle make Yamaha bearing registration number DL 4SN 5330 due to which the motor cyclist Mr.Habib Ul Rehman has received grievous injuries. He pleaded not guilty and claimed trial.
8. In order to prove its case, the prosecution has examined as many as seven witnesses i.e. PW1 Mr.Abdul Rehman, PW2 Ct.Diwan Singh, PW3 ASI Sukhmandar, PW4 Ex.ASI (Tech.) Devender Kumar, PW5 Dr.Ranbir Singh, PW6 SI Sanjay Kumar and PW7 Dr.Shahbuddin.
9. PW1 is the complainant/ injured/ victim. PW2 is a witness of investigation who had reached the spot along with PW6. PW3 is the duty officer who had registered the formal FIR of the case. PW4 had mechanically inspected both the offending vehicle i.e. bus make Tata bearing registration number DL 1PA 1730 and the involved vehicle i.e. motor cycle make Yamaha bearing registration number DL 4SN 5330. PW5 is the doctor who had medically examined patient Habib Ul Rehman son of Aziz Ul Rehman and proved the nature of the injury received by him as grievous. PW6 is the Investigation Officer. PW7 is the learned Metropolitan Magistrate who had conducted the proceeding regarding the TIP of the appellant in which the appellant had refused to get his TIP conducted.
10.In his statement under section 281 of the Criminal Procedure Code Criminal Appeal Number : 07 of 2012.
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(hereinafter referred to as the Cr.P.C.) read with section 313 of the Cr.P.C., the appellant controverted and rebutted the entire evidence against him submitting that he was not rash and negligent in driving but the motor cycle rider was negligent. He has preferred not to lead any evidence in his defence.
11. I find on careful perusal of the trial Court record especially the rukka, Ex.PW1, that the complainant / injured / victim is Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman. In the charge sheet the name of the complainant is mentioned as Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman. The list of witnesses has the name of Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman at serial number 1. The MLC, Ex.PW5/A, also shows the name of the patient / injured as Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman.
12. However, despite the complainant / injured / victim being Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman as per the record, the prosecution has produced one Mr.Abdul Rehman son of Mr.Azizu Rehman as the injured and examined him as PW1. It seems that a different man has been produced before the learned trial Court in the prosecution evidence as clearly the names as well as the parentage of the injured person, as per the record, and the person produced and examined by the prosecution are different. It is also not the case of the prosecution that Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman is also known as Mr.Abdul Rehman son of Mr.Azizu Rehman Criminal Appeal Number : 07 of 2012.
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13. Therefore, it is clear that the prosecution has failed to examine its most material star witness i.e. the injured / victim namely Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman. Solely on this ground, the prosecution story is not proved and the appellant has become entitled to be acquitted.
14.Perhaps the learned trial Court could have taken note while writing the judgment, elaborating the case law and the commentary on the relevant sections, that the name of the injured as per the record and the name of the PW1 are different and taken a clarification on the same from the prosecution or called any Court witness or recalled any witness for the said purpose, then this ambiguity would not have been there.
15. However, in such a situation as it cannot be said with certainty that PW1 is the actual the complainant / injured / victim. The person examined before the learned Trial Court as PW1, Mr.Abdul Rehman son of Mr.Azizu Rehman, does not appear to be the complainant / injured / victim, Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman.
16.The contention of the prosecution that the appellant was driving the offending vehicle (as not disputed by him in his statement under section 281 Cr.P.C. read with section 313 Cr.P.C. and that he had refused to participate in the TIP proceedings is of no help to the prosecution as the star witness of the prosecution i.e. the Criminal Appeal Number : 07 of 2012.
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complainant / injured / victim, Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman has not been produced and examined by the prosecution thereby giving a fatal blow to the prosecution case.
17.Therefore, it is clear that the prosecution has failed to prove its case against the appellant as the star witness i.e. the complainant / injured / victim, Mr.Habib Ul Rehman son of Mr.Aziz Ul Rehman has not been examined and consequently, the appellant was entitled to be acquitted.
18.In view of the foregoing reasons, the conscience of this Court is completely satisfied that the prosecution has been able to miserably failed to bring home the charge against the accused/ appellant and he merits to be acquitted.
19. I am of the considered opinion that there is a serious infirmity and illegality in the impugned judgment and order on sentence and the same are hereby set aside. The appeal is accordingly allowed. Fine, if any, deposited by the appellant be refunded to him.
20.The end result of the appeal is that the impugned judgment of conviction for the offence under sections 279/338 IPC and order on sentence are set aside.
21.Copy of the order be given to the appellant, dasti.
Criminal Appeal Number : 07 of 2012.
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22.The trial Court record along with a copy of this order be transmitted back to the concerned Court
23.The appeal file be consigned to the record room, after completion of the formalities by the Ahlmad.
Announced in the open Court on (Nivedita Anil Sharma) this 30th day of August, 2012. ASJ-03, West, Delhi.
Criminal Appeal Number : 07 of 2012.
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