Delhi District Court
State vs . Hukam Singh on 12 February, 2016
IN THE COURT OF SH. DEVENDER KUMAR GARG, ACMM,
SOUTHEAST DISTRICT, SAKET, NEW DELHI.
Case No. RBT345/I dated 28.02.2014
Unique Case ID No. 02403R0533532005
FIR No. 735/04
PS : Badarpur
U/s : 279/304A IPC
State Vs. Hukam Singh
Date of Institution : 27.09.2005
Date of reserve of order : 31.01.2016
Date of announcement : 12.02.2016
J U D G M E N T
1. Serial No. of the case : RBT345/I dated 28.02.2014
2. Name of the Complainant : HC Nabab Singh
3. Date of incident : 11.11.2004
4. Name of accused person : Hukam Singh S/o Sh.Amar Singh, R/o Village Bhangel, Bhatta Colony Distt. Gautam Budh Nagar (U.P.)
5. Offence complained of : U/s 279/304A IPC
6. Plea of accused : Pleaded not guilty
7. Final Order : Acquitted
8. Date of such Order : 12.02.2016 FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 1 of 14 BRIEF REASONS FOR SUCH DECISION:
1. The brief facts of the case of the prosecution are that on 11.11.2004 at unknown time in front of Govt. Sr. Sec. School No.2, Mathura Road, Opp. NTPC Gate No.1, New Delhi, the accused was driving a Dumper / Truck No. HR38C6893 in a manner so rashly or negligently so as to endanger human life and personal safety of others and whlie driving the said vehicle in the said manner, he struck against a motorcyclist namely Sh.Pawan Negi and thereby caused his death.
2. After completion of the investigation, charge sheet for offences u/s 279/304A IPC was filed and vide order dated 27.9.2005, cognizance was taken. On appearance of the accused, copy of charge sheet was supplied to him free of cost.
3. Vide order dated 30.01.2008, charge u/s 279/304A IPC was framed against the accused, to which, he pleaded not guilty and claimed trial. Charge is as follows : "That on 11.11.2004 at unknown time in front of Govt.
Senior Secondary School No.2, Mathura Road, opp. NTPC Gate No.1, within jurisdiction of P.S. Badarpur, New Delhi, you were driving the Dumper/Truck No.HR38C6893 in a manner so rashly or negligently so as to endanger human life and personal safety of others and thereby committed an offence punishable under section 279 IPC and within my cognizance. FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 2 of 14 Secondly on the aforesaid date, time and place, while driving the said vehicle in the said manner struck against motorcyclist and caused death of one Pawan Negi and thereby you have committed an offence punishable u/s 304A IPC and within my cognizance.
4. To prove its case, prosecution has examined nine witnesses i.e. PW1 Sh.Kedar Nath, PW2 Sh.Anand Singh, PW3 Sh.Hoshiyar Singh, PW4 Sh.Gyanender Awana, PW5 Sh.Kalam Singh, PW6 Ct. Satbir Singh, PW7 Ct. Satyawan, PW8 HC Papu Ram and PW9 ASI Nabab Singh. Following documents were exhibited during prosecution evidence: Mechanical inspection reports of both the vehicles as Ex.PW1/A and Ex.PW1/B, identification memos of dead body as Ex.PW2/A and Ex.PW3/A, reply of notice u/s 133 of M.V. Act as Ex.PW4/PX1, seizure memo of both the vehicles as Ex.PW6/A and Ex.PW6/B, search memo of dead body as Ex.PW6/C, dead body handing over memo as Ex.PW6/D, arrest memo of accused as Ex.PW7/A, persoal search memo of accused as Ex.PW7/B, seizure memo of DL of the accused as Ex.PW7/C, seizure memos of insurance and RC of offending vehicle as Ex.PW7/D and Ex.PW7/E, copy of DD No.53A as Ex.PW9/A, rukka as Ex.PW9/B, notice u/s 133 M.V. Act as Ex.PW9/C, applications for interrogation and arrest of accused as Ex.PW9/D FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 3 of 14 and Ex.PW9/E, post mortem report of the deceased as Ex.PW9/F, Form No.25.35 as Ex.PW9/G, two photographs of the offending vehicle as Ex.PX/1 and Ex.PX/2 and photographs of the motor cycle as Ex.P1 and P2 (colly)
5. Accused also admitted u/s 294 Cr.P.C. the documents i.e. FIR as Ex.A1, post mortem report of the deceased as Ex.A2 and MHC(M) register no.19 as Ex.A3.
6. Thereafter, PE was closed vide order dated 05.11.2015. Statement of the accused was recorded under Section 313 Cr.P.C on 28.11.2015, wherein he denied deposition of witnesses against him and he has stated that he is innocent and has been falsely implicated in this case. He further stated that he is illiterate and does not know about the proceedings of the court. He further states that he moved application for surrender before the court at the instance of owner of vehicle in question as he was working under him at that time. He further states that owner of the vehicle had not told him about the present case and took his signature on blank paper and got him falsely implicated in this case. He further states that he is innocent and he has been falsely implicated in the present case by owner of the vehicle in question to save the actual culprit who was driving the vehicle at the time of the FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 4 of 14 accident. He further states that he was not driving the vehicle in question on the date, time and place of the alleged accident and he had not committed any accident. Accused did not lead any defence evidence and DE was closed vide order dated 28.11.2015.
7. I have heard Sh.Ashesh Kumar, Ld. APP for the State and Sh.Rajesh Bagga, Ld. counsel for accused and have gone through the entire record carefully.
8. Ld. APP has contended that the prosecution has succeeded in proving the case against accused beyond reasonable doubt.
9. On the other hand, Ld. counsel for accused has contended that accused is innocent and has been falsely implicated. He has further contended that the proseuction has failed to prove its case against the accused beyond reasonable doubts, therefore, accused is entitled to be acquitted.
10. For deciding the present matter, it would be appropriate to refer section 279/304A IPC which read as under :
279. Rash driving or riding on a public way Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 5 of 14 imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
304A. Causing death by negligence. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
11. Perusal of the file would show that PW5 Kalam Singh is eye witness as per the prosecution case in this matter. He has deposed that he is residing at Dabua Colony, NIT, Faridabad (Haryana) and on 11.11.2004, he was going to Mayur Vihar on his motor cycle and on Pawan Negi, his neighbour, was also going on his motor cycle of Yamaha make and he was ahead of Sh.Pawan Negi. He has further deposed that one truck bearing no. HR38C6893 came in a high speed and hit Sh.Pawan Negi from behind and he fell on the road. He further deposed that driver of the truck crushed the head of Pawan Negi by running over it and Pawan Negi expired on the spot. He further deposed that he got shocked on seeing this incident. He further deposed that people gathered at the spot and he called at 100 number. He further deposed that he got disturbed due to this accident and police came to house of the deceased. He further deposed that thereafter he FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 6 of 14 never went to the spot and police recorded his statement in the police station around 7 days. The witness has identified the accused in the court.
12. The above said witness was crossexamined by Ld. Counsel for accused. Perusal of the examinationinchief of PW5 would show that nowhere he has mentioned the time of alleged accident, however, statement u/s 161 Cr.P.C. which appears to be recorded on 12.11.2004, would mention the same as 6.40 a.m. The time is extremely important in such matters and the said witness did not depose the same in his examinationinchief, which in itself is material contradiction when the same is read with his statement u/s 161 Cr.P.C.
13. Perusal of crossexamination of PW5 would show in which he has deposed that he does not know when his statement was recorded by the police. He has further deposed that it was however recorded after around 10 days of the accident. Perusal of the statement u/s 161 Cr.P.C. of PW5 would show in which date of 12.11.2004 is mentioned. The same is also material contradiction which pertains to the investigation of the present matter. In his examinationinchief also, PW5 deposed that police recorded his statement around 7 days. Perusal of the file would show that PW9 ASI Nabab Singh has FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 7 of 14 deposed that he recorded statement of eye witness namely Kamal Singh and also deposed that he prepared site plan at his instance. The said site plan bears date of 12.11.2004. The same shows material contradiction in the deposition of PW5 and PW9.
14. Perusal of the examination of PW5 would show in which he has deposed that he got disturbed due to this accident and thereafter never went to the spot. He has also not deposed in his examinationin chief about the preparation of site plan Ex.PW9/H, however, PW9 ASI Nabab Singh who is investigating officer of this matter, has deposed that he interrogated PW5 and took him to the spot and at whose instanace site plan was prepared. In his crossexamination, PW5 has deposed that the deceased was at the distance of 1520 feet ahead of him and PW5 was driving his motor cycle at speed of around 40 KM and deceased was driving at the speed of 45 KM. He has further deposed that the offending vehicle had hit the deceased from behind. The prosecution has nowhere explained in what manner the offending vehicle hit the motor cycle of the deceased when PW5 was following him and there was only distance of 15 to 20 feets between their motor cycles. In the site plan Ex.PW9/H also, the location of vehicles in question have not been shown. It is not the case of the FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 8 of 14 prosecution that the offending vehicle came in between of PW5 and deceased. PW5 has also admitted in his crossexamination that there is a red light at some distance ahead of spot of incident, however, he did not see whether vehicles were stopping at the red light or not. This court is of the opinion that when existance of a red light is admitted near the alleged place of accident, possibility of lower speed of offending vehicle cannot be ruled out. In his crossexamination, PW5 has deposed that accused did not apply the brake and dragged the deceased with his motor cycle and run over his head, due to which, deceased crushed. Nowhere the investigating officer has collected marks of dragging and neither there is investigation on the said point, which could have been material for substantiating the case of the prosecution. No photographs of the spot have been placed on record except of vehicles in question.
15. PW5 Sh.Kalam Singh has deposed in his cross examination that after the accident, he had come back to his house and informed the neighbourer of the deceased and did not tell it to the deceased family as there were all women in his family at that time. PW5 has admittedly left the spot within 10 to 15 minutes of the alleged accident and even did not wait for the police to come despite FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 9 of 14 the fact that he himself had stated that he had made call to the police. The said fact that said PW was not found on the spot is clear from the deposition of police officials, who have deposed that no eye witness was found at the spot. All the above said contradictions and conduct of PW5 show that PW5 is not a trustworthy witness.
16. The prosecution has examined Sh.Gianender Awana, who is owner of the offending vehicle and has also not supported the case of the prosecution. He was crossexamined by Ld. APP for State, in which he has deposed that he did not give any statement to the police. He denied the suggestion that on 11.11.2004 he had given his truck to the accused for bringing the rori or that about 6.45 a.m. when reached near NTPC gate, accused had caused accident with motor cycle in question, however, he has admitted reply to notice u/s 133 of M.V. Act Ex.PW4/PX1. In his volunteered, he had stated that he had written whatever was stated to him by the police and same was not written on his own. The prosecution has examined PW9 ASI Nabab Singh, who has deposed that no witness was found at that time, however, search was made. He has deposed about investigation, which was conducted on 12.11.2004 also. He deposed that site plan was prepared at the instance of PW5, however, PW5 did not depose that it was prepared FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 10 of 14 on his instance. PW9 has further admitted that a lot of public persons gathered at the spot, but he did not find any eye witness to the accident among those public persons.
17. Ld. Counsel for accused had contended that PW5 has nowhere stated that why he was going to Mayur Vihar when he resides at Faridabad and he further contended that in his crossexamination, PW5 has admitted that he works in Haryana Rajya Bijli Board, but no investigation was conducted by IO whether he was present at his office or not.
18. Perusal of the file would show that no investigation has been made by investigating officer on said point which was very material particularly when PW5 did not come to the police on said day or next date after incident.
19. It has been held by Hon'ble Delhi High Court in judgment titled as "Abdul Subhan vs. State", 2007 Crl. L. J 1089 that "At the outset I would like to observe that I am appalled by the investigation, or shall I say the lack of it, that was carried out in this particular case. I may also note that I am of the view that the testimony of PW3 head constable Munim Dutt, even if taken to be entirely true only leads to the conclusion that the vehicle driven by the present FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 11 of 14 petitioner was being driven at a high speed. This in itself does not mean that the petitioner was driving the vehicle rashly or negligent. Furthermore, the testimony of PW3 leads to ambiguities and doubts and, I am afraid, my conscience does not permit me to convict a person under Section 279 / 304A IPC on the nature and degree of evidence that is on record in this case. There are so many questions which remain unanswered. What is meant by highspeed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this incident. Was the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura Road? Or, was he on Mathura Road turning towards Sher Shah road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve into the path of petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out and the quality of investigation carried out is quite unsatisfactory. It is well known in criminal cases that it is for the prosecution to establish its case beyond reasonable doubt. Unfortunately, in the present case, I find that the prosecution has FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 12 of 14 failed to achieve this standard. On the other hand, there are grave doubts that the petitioner is at all guilty of the offences for which he has been convicted and sentenced."
20. It has been held by Hon'ble Delhi High Court in judgment titled as "Vinod Kumar vs. State", dated 13.10.2011 passed in Crl. Rev. P. No.131/2010, that "4. No evidence or any other material was placed on record by the prosecution to show the manner in which the petitioner was driving the said vehicle to prove the rashness and negligence of the petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the petitioner. There is no evidence placed on record to show the speed of the vheicle or the manner in which it was being driven to show rashness and negligence on the part of the petitioner, especially when the area was a crowded one."
21. Taking into consideration all the above said facts and circumstances, I am of the view that the prosecution has failed to prove its case against the accused beyond reasonable doubt. It is FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 13 of 14 settled law that the prosecution has to prove its case beyond reasonable doubts. Hence, accused Hukam Singh is acquitted from offences u/s 279/304A IPC.
Announced in the open (DEVENDER KUMAR GARG)
court on 12.02.2016 ACMM / SOUTHEAST / SAKET
NEW DELHI.
FIR No.735/04, P.S. Badarpur State Vs Hukam Singh Page 14 of 14