Delhi District Court
State vs Roshan Kanti on 13 October, 2023
THE COURT OF SH. UDBHAV KUMAR JAIN, MM-04,
SHAHDARA DISTRICT, KARKARDOOMA COURTS, DELHI
STATE v. ROSHAN KANTI
FIR No. -: 73/2017
Police Station -: Madhu Vihar
Section(s) -: 279/337/338 IPC
Cr. Case No. -: 6086/2018
1. CIS number : DLSH020107892018
2. Name of the complainant : ASI Devender Kumar
PIS No. 28823862
PS Madhu Vihar
3. Name of the accused, : Roshan Kanti
parentage & residential S/o Ganga Kanti
address R/o H.No.210 Phool Singh Market,
Karkardooma Village,
Delhi
4. Offence complained of or : 279/337/338 IPC
proved
5. Date of commission of : 21.02.2017
offence
6. Plea of the accused : Pleaded not guilty and claimed trial
7. Final Judgment : Acquittal
8. Date of judgment/order : 13.10.2023
Date of Institution: 28.11.2018
Date of Reserving Judgment: 13.10.2023
Date of Pronouncement of Judgment: 13.10.2023
Duration: 4 years 10 months
15 days
FIR No. 73/2017 State vs. Roshan Kanti Page no. 1 of 11
JUDGMENT
FACTUAL MATRIX
1. Briefly stated, the case of the prosecution against the accused is that on 21.02.2017 at around 12:20 pm in front of Prashant Apartment near Jai Laxmi Apartment on the main road, a person was riding a scooty bearing registration no. DL-1SAA-3916 rashly and negligently and in doing so he hit a rickshaw from which a lady and his child fell. The said person fled from the spot. Husband of the lady who fell on the spot with her child were taken to hospital by him. As such, it is alleged that the accused committed the offence under sections 279/337 of the Indian Penal Code, 1860 (hereinafter, "IPC") for which FIR No. 73/2017 was registered at Police Station Madhu Vihar, Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of FIR, the investigating officer (hereinafter 'IO') conducted investigation and it was found that the person riding the scooty was Roshan Kanti S/o Sh. Ganga Kanti. On culmination of the investigation, chargesheet against the present accused namely Roshan Kanti for the alleged commission of offences u/s 279/338 IPC was filed. Ld. Predecessor of this Court took cognizance of the offence u/s 279/338 IPC vide order dated 28.11.2018. After taking cognizance of the offence, accused was directed to appear and face trial before the Court. Accused appeared in court and he was supplied the copy of documents relied upon in the charge sheet in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC").
3. Since prima facie offences against the accused were made out, Ld. Predecessor of this Court vide order dated 17.01.2023 framed charge FIR No. 73/2017 State vs. Roshan Kanti Page no. 2 of 11 against accused Roshan Kanti for the offence punishable u/s 279/337/338 IPC, to which accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:
-
ORAL EVIDENCE
PW1 Ravinder Singh
PW2 Retd. SI Devendra Kumar
DOCUMENTARY EVIDENCE
Ex.PW2/A Site Plan
Ex.PW2/B Seizure Memo of scooty
Ex.PW2/C Seizure Memo of scooty
documents
Ex.PW2/D Seizure Memo of license of
accused
Ex.PW2/E Mechanical inspection report
Ex.PW2/F Notice u/s 133 MV Act
Ex.PW2/G Arrest memo of accused
Ex.PW2/H Personal search memo of
accused
Ex.PW2/I Supardari/Panchnama of vehicle
ADMITTED DOCUMENTS u/s 294 Cr.P.C.
Ex. A-1 DD No.46B dated 21.02.2017
Ex. A-2 FIR No.73/2017
Ex. A-3 Certificate u/s 65B I.E. Act.
Ex. A-4 Mechanical inspection of vehicle
no. DL1S-AA-3916
FIR No. 73/2017 State vs. Roshan Kanti Page no. 3 of 11
Ex. A-5 MLC No. 6313/17 of Elexive
Dhanraj
Ex. A-6 MLC No. 6315/17 of Archana
Sharma
5. Ravinder Singh (PW-1) in his examination-in-chief deposed that he worked as a Supervisor in Prashant Apartment, I.P. Extension, Patparganj, Delhi. On 21.02.2017 at about 12.00 p.m. to 1.00 p.m., he was sitting near the society gate of Prashant Apartment. He saw that one Scooty, at very fast speed and in order to save one auto the rider of scooty, made cut and hit one rickshaw from behind due to which rickshaw was toppled and one lady along with a child fell down from said rickshaw. Thereafter, he rushed towards the toppled rickshaw and lifted the lady and the child with the help of public persons who were gathered after accident. He did not note the number of scooty, someone else had recorded the number of scooty in the register of society.
Thereafter, someone took both the lady and the child. On 28.02.2017, IO came to the spot and had inquired regarding incident and witness narrated all the incident to IO and IO prepared site plan at his instance and recorded his statement. However, witness failed to identify the accused in the Court.
5.1.Since witness was not disclosing complete facts and was not identifying the accused, Ld. APP for the State cross-examined the witness. In his cross-examination, witness admitted that accused was driving scooty in rash and negligent manner and at very fast speed, that the place of occurrence was on the main road near Jay Laxmi Apartment. Witness however, denied the suggestions that he noted the number of scooty, that husband of injured lady came to spot, and he had given the number of FIR No. 73/2017 State vs. Roshan Kanti Page no. 4 of 11 said scooty to her husband. When witness was confronted with his statement u/s 161 CrPC witness was not able to tell whether the husband of lady took them to hospital. When attention of witness was drawn towards the accused, witness again failed to identify the accused. Witness denied the suggestions that he was not deliberately identifying the accused because he wanted to save him from the punishment of court, that he was intentionally not identifying the accused as he had compromised with him or that he was won over by accused and that he was deposing falsely. Witness was not cross-examined by Ld. Counsel for accused.
6. Retd. SI Devendra Kumar (PW-2) in his examination-in-chief deposed that on 21.02.2017 he was posted as ASI in PS Madhu Vihar. He received DD No. 46B Ex. A1 from Max Hospital, Patparganj, Delhi regarding accident. After receiving the said DD entry, he went to Max Hospital, Partparganj where he collected MLC of injured Archana Sharma, but she did not give any statement regarding incident. Thereafter, he went to the spot i.e., Main Road between Prashant Apartment and Jay Laxmi Apartment where he did not find any vehicle in accidental condition. Witness inquired about the accident, but he did not get any information regarding the same. On 22.02.2017, he went to the house of injured Archana Sharma, but no one was present on said address. Thereafter, witness called the husband of injured who told him that he had taken his wife and child to Bihar for treatment. On 28.2.2017, he went to the spot of accident where he met Supervisor of Prashant Apartment namely Ravinder who told him about the incident occurred on 21.02.2017. The said person told the witness that he gave number of scooty to the husband of injured. Thereafter, witness returned to PS and registered FIR upon DD entry No.46B as Ex. A2. Witness prepared site plan Ex.PW2/A at FIR No. 73/2017 State vs. Roshan Kanti Page no. 5 of 11 the instance of Ravinder bearing his signature at point A. Witness traced the scooty and gave notice u/s 133 MV Act Ex.PW2/F bearing his signature at point A. Thereafter, on 09.04.2017 he seized the scooty vide seizure memo Ex.PW2/B bearing his signature at point A. He also seized the documents relating to the scooty vide seizure memo Ex.PW2/C bearing his signature at point A. Witness also seized the license of accused Roshan Kanti vide seizure memo Ex.PW2/D bearing his signature at point A. He also got conducted mechanical inspection of scooty and received the mechanical inspection report Ex.PW2/E bearing his signature at point A. Thereafter, he arrested the accused Roshan Kanti vide arrest memo Ex. PW2/G bearing his signature at point A. He also conducted the personal search of the accused vide personal search memo Ex.PW2/H bearing his signature at point A. Since offence was bailable, he released the accused on bail. On 17.04.2017, said vehicle was released on superdari by court and panchnama Ex.PW2/I was prepared bearing his signature at point A. Witness correctly identified the accused who was present in the Court. Witness correctly identified the offending vehicle i.e., scooty from four photographs Ex. P1 to Ex. P4 attached with judicial file. When attention of witness was drawn towards the statement u/s 161 CrPC of witness Ravinder, witness deposed that he recorded the statement as told by the witness Ravinder.
6.1. On his cross-examination by Ld. Counsel for accused, witness deposed that he went to the spot during the period 22.02.2017 to 27.02.2017. He did not record any statement of public persons regarding accident during said period. Witness admitted that there was moving traffic on road. He recorded the statement of witness Ravinder at the spot i.e., Prashant Apartment where he worked as a supervisor. On 28.02.2017 Ravinder was sitting at the front gate of Prashant Apartment along with security FIR No. 73/2017 State vs. Roshan Kanti Page no. 6 of 11 guard. Witness did not record the statement of security guard. Witness admitted that site plan has no signature of Ravinder. Witness denied the suggestions that he was deposing falsely, that no accident took place from the scooty of accused and that he did not record any statement of witness Ravinder.
7. During course of trial, injured Archana Sharma and her husband Dhirender Kumar remained unserved even after steps taken through DCP concerned and accordingly they were dropped from the list of witness vide order dated 17.07.2023. Complainant was the eyewitness/material witness/injured in the present case and therefore the material witness could not substantiate the prosecution version.
8. The whole case of prosecution was dependent on injured Archana Sharma, her husband Dhirender Kumar and the testimony of PW-1 as they were material witnesses in the present case. PW-1 was in fact eyewitness of the case however, PW-1 turned hostile to the case of prosecution. The identity of accused and his presence on the spot in a criminal trial is of paramount importance and no person can be indicted for criminal liability unless his identity is established beyond any shadow of doubt. In the present case, since the injured Archana Sharma and her husband Dhirender Kumar remained unserved and eyewitness PW-1 and has not supported the version of the prosecution, no fruitful purpose will be served to examine other witnesses as they are formal in nature and even if their testimonies ever taken together, they will not establish the guilt of the accused.
9. Prosecution evidence was closed, vide separate order passed today, as recording of any further prosecution evidence in the present case would FIR No. 73/2017 State vs. Roshan Kanti Page no. 7 of 11 result into wastage of judicial time, money, resources and will also cause unnecessary burden upon the accused person. In this regard, reliance is placed upon a Division Bench Judgement of the Hon'ble High Court of Delhi in Govind & Ors. vs. The State (Govt. of NCT of Delhi) 104 (2003) DLT 510 wherein it was held that: -
"...In cases where the ultimate chance of conviction is very bleak for there is no prospect of the case and again conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion of a future date."
10. Right to speedy trial is constitutionally guaranteed fundamental right of the accused person. The present case pertains to an FIR of the year 2017 and continuing the trial any further, when it is clear that prosecution can never hope to prove its case against the accused, would be tantamount to violation of right to speedy trial of the accused. It has been held in P.Ramchandra Rao vs. State of Karnataka AIR 2022 SC 1856 that the court should exercise its power available under Criminal Procedure Code to give effect to the right of speedy trial to the accused. Similar observations were made in Pankaj Kumar vs. State of Maharashtra AIR 2008 SC 3057. Furthermore, in Satish Mehra vs. Delhi Administration & Anr. 1996 JCC 507 the Hon'ble Supreme Court has held that valuable time of the court should not be wasted merely for formal completion of procedure when there is no chance of the trial culminating in conviction.
STATEMENT AND DEFENCE OF ACCUSED
11. Since no incriminating evidence was brought forth by the prosecution, recording of statement of accused u/s 313 CrPC was dispensed with. Accused chose not to lead evidence in their defence.
FIR No. 73/2017 State vs. Roshan Kanti Page no. 8 of 11 ARGUMENTS
12. I have heard the Ld. APP for the State and Ld. Counsel for the accused. I have also given my thoughtful consideration to the material available on record.
POINT OF DETERMINATION
13. After going through the record and considering the material available on record, the only point of determination that is left is whether the prosecution can substantiate its case and prove the guilt of accused beyond reasonable doubt when the material witnesses did not turn up before the Court and one eyewitness has turned hostile.
REASONS FOR DECISION OF THE CASE
14. The general burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
15. The injured/victim and one material witness (husband of the injured) of the present case did not appear before the Court and they were dropped from the list of witnesses. In their absence, identification of accused remains doubtful. It is not the case that the alleged offence was committed behind closed doors, and it is highly unlikely that not even a single person saw the alleged commission of offence. There is no public witness to support the case of prosecution. Therefore, non-appearance of injured/victim and one material witness (husband of the injured) and absence of any public witness are factors which make the story of prosecution unbelievable.
FIR No. 73/2017 State vs. Roshan Kanti Page no. 9 of 11
16. Further, another material witnesses/eyewitness of the prosecution i.e., PW-1 turned hostile in the present case on the point of identity of accused. It is pertinent to note that under Indian law, the evidence of hostile witnesses is not discarded completely. The legal maxim, "false in uno false in ombnibus" is not applicable in India. With respect to the evidentiary value of hostile witness, it was observed by the Apex Court in the case of Rohtash Kumar vs. State of Haryana (2013) 14 SCC 434, as under: -
"25. It is a settled legal proposition that evidence of a prosecution witness cannot be rejected in toto, merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced, or washed off the record altogether. The same can be accepted to the extent that their version is found to be dependable, upon a careful scrutiny thereof. "
17. Now, if the whole evidence available on record is sift through then it is evident that the whole case of prosecution was dependent on the testimony of injured/victim, one material witness (husband of the injured) and eyewitness PW-1 who saw the accused committing the alleged offence. Neither presence of accused can be confirmed on the spot nor there is anything on record to connect the accused with the commission of the offence. As such, even if all the other prosecution witness cited in the list of witnesses were to be examined, the case of the prosecution could not be proved.
18. Furthermore, it has been held by Hon'ble Supreme Court in S.L. Goswami (Dr) v. State of M.P., (1972) 3 SCC 22 that the accused is entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution. The same view was reiterated by the Hon'ble Apex Court recently in Nanjundappa & Anr. v. The State of Karnataka 2022 SCC OnLine SC 628. In the present FIR No. 73/2017 State vs. Roshan Kanti Page no. 10 of 11 case, as already noted above, the prosecution could not discharge the onus of proving the ingredients of offence due to non-appearance of injured/victim & one material witness (husband of the injured) and the other material witness turning hostile. Thus, accused Roshan Kanti is entitled to benefit of doubt.
CONCLUSION
19. In view of the above discussion, the accused Roshan Kanti is hereby found not guilty. Accordingly, accused Roshan Kanti is hereby acquitted of the offences under section 279/337/338 IPC.
File be consigned to record room after due compliance.
Announced in open court today i.e., 13.10.2023.
(UDBHAV KUMAR JAIN) MM-04:SHD:KKD This judgment contains 11 pages all signed by the presiding officer.
FIR No. 73/2017 State vs. Roshan Kanti Page no. 11 of 11