Delhi District Court
Dalip Singh Fir No. 293/ vs State (Nct Of Delhi) on 28 September, 2018
IN THE COURT OF SHRI SANDEEP YADAV
ADDL. SESSIONS JUDGE02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Appeal No. 488/17
1. Dalip Singh FIR No. 293/11
S/o. Late Sh.Mahender Singh U/s.279/304A IPC
R/o. H.No. 586/3, Pandit Mohalla PS : New Friends Colony.
Mehrauli, New Delhi.
.... Appellant
Versus
State (NCT of Delhi)
.... Respondent
Date of Institution : 11.10.2017
Date of Arguments : 15.09.2018
Date of Judgment : 28.09.2018
JUDGMENT
1. Challenge in this appeal filed by Dalip singh is to the judgment dated 30.05.2017 whereunder appellant has been convicted under Section 279/304A IPC and order on sentence dated 14.09.2017 whereunder appellant has been sentenced to simple imprisonment for a period of six months for the offence under Section 304A IPC and fine of Rs. 50/ for the offence under Section 279 IPC. It has been directed that in default of CA No. 488/17 Sunil Singh Vs. State.
payment of fine, appellant will undergo simple imprisonment for a period of 7 days.
2. I have heard Sh. M.C. Sharma, learned counsel for appellant as well as Sh. A.T.Ansari, learned Additional Public Prosecutor for State and carefully gone through the trial court record.
3. It is mentioned in the impugned judgment that PW 1 Shamshuddin, brother of deceased, is the most important witness in this case and he has been projected as an eye witness. Therefore, it will be advantageous to advert to the deposition of PW 1. PW 1 Shamshuddin inter alia deposed that on 07.12.2011, he alongwith his brother namely Nizamuddin (deceased) were going to Zakir Nagar from Kalkaji on a motor cycle bearing no. 4533; they were standing on red light of Julena Chowk; PW 1 went to buy a cigarette; when PW 1 came back, he saw that a blue line bus bearing no. 4805 having route no. 534 came from back side and hit the motorcycle from back side and brother of PW 1 fell down; 45 persons came for the rescue and brother of PW 1 was taken to Holy Family Hospital where he expired; police was called and PW 1 gave his statement Ex. PW1/A. PW 1 Shamshuddin deposed that appellant was driving the offending bus; appellant was identified by PW 1 in the Court.
4. Sh. M.C. Sharma, learned counsel for appellant, during the course of arguments vehemently argued that presence of PW 1 at the spot CA No. 488/17 Sunil Singh Vs. State.
at the time of incident is seriously doubtful and in this regard referred to MLC (Ex.PW 6/A), mechanical inspection report (Ex.PW3/A), deposition of PW 1 and cross examination of PW 6 Mahendra Verma, Medical Record Office, Holy Family Hospital, New Delhi.
5. As per the MLC Ex. PW6/A, deceased was brought to the hospital by two persons namely Moinuddin and Azmrabbani. These two persons who took the injured to the hospital were vital witnesses in this case. However, there is no mention of any enquiry made by police from these two persons. These two persons who took injured to the hospital were not cited as prosecution witnesses. This is a serious lapse on the part of Investigating Officer.
6. In the MLC, there is a thumb impression and on the right side of same words 'LTI of unknown' are written. In the column meant for the name of injured, first the word 'unknown' is written and thereafter, word 'Nizamuddin' is written. There is overwriting in the column meant for religion and age of deceased. The inference that can be drawn from all these particulars mentioned in the MLC is that PW 1 did not accompany the injured to the hospital. Injured was initially brought to hospital by two persons namely Moinuddin and Azmrabbani, who were not familiar the name, age and religion of deceased. Hence, initially the injured was admitted as 'unknown' in the hospital. PW 6 Mahender Verma deposed in cross examination that patient reached the hospital at 5:50 PM and name CA No. 488/17 Sunil Singh Vs. State.
and address of patient was written in the MLC at 6:56 PM. This only shows that PW 1 reached the hospital almost one hour after admission of injured in the hospital and thereafter, his name and other particulars regarding religion and age were filled. Therefore, presence of PW 1 at the spot at the time of incident is seriously doubtful.
7. PW 1 Shamsuddin has deposed before the Court that when he and deceased were waiting on the motorcycle at the red light, he had gone to buy a cigarette from a nearby shop. The owner of said cigarette shop was not examined by the Investigating Officer. Therefore, it is not even clear as to whether there was any cigarette shop near the spot or not. Infact, PW 1 in cross examination deposed that he does not know Moinuddin and Azmrabbani. This further raises doubt about the presence of PW 1 at the spot. PW 1 has further deposed in cross examination that the head of deceased was entangled in the tyres of bus. However, no blood marks were found on the tyres of bus which is highly improbable.
8. The natural conclusion that can be drawn is that the version given by PW 1 Shamsuddin that he went to buy cigarette and when he came back, he saw the motorcycle which was being driven by his brother, being hit by a bus is a cooked up story. As per deposition of PW 1, the motorcycle was hit by the bus from back side. However, in photographs or in mechanical inspection report, no damage is shown on the back side of motorcycle. Further, the said cigarette shop is not shown in the site plan.
CA No. 488/17This also raises serious doubt about entire prosecution case.
9. PW 1 Shamsuddin has deposed that driver of offending bus was apprehended by him with the help of public persons. However, none of those public persons have been cited as witness in the present case. PW 1 Shamsuddin further deposed that he took 23 minutes for purchasing the cigarette. However, traffic signal hardly remain on red light mode for three minutes. Therefore, the deposition of PW 1 is not reliable.
10. The conclusion of aforesaid discussion is that PW 1 Shamsuddin was not present at the spot at the time of incident. Since, appellant was convicted mainly on the strength of deposition of PW 1, conviction of appellant is liable to be set aside. Accordingly, the impugned judgment dated 30.05.2017 and consequently order on sentence date 14.09.2017 are set aside. The appeal is allowed and appellant Dalip Singh is acquitted of the charge framed against him. Appellant has already furnished his bail bond and surety bond in terms of Section 437 A Cr.PC.
Trial court record be sent back alongwith copy of this judgment.
Appeal file be consigned to Record Room.
Announced in open Court.
On 28.09.2018.
(Sandeep Yadav) Addl. Sessions Judge02 (South East) Saket Courts/New Delhi.
CA No. 488/17