Delhi District Court
Sh. Prem Singh vs The State (Govt. Of Nct Of Delhi) on 8 February, 2013
IN THE COURT OF SH. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE :NORTH EAST:
KARKARDOOMA COURTS, DELHI
Criminal Appeal No.04/2012
Sh. Prem Singh, S/o Sh. Bhanwar Singh
R/o H. No.D312, East Gokalpuri,
Delhi - 110093. .....Appellant.
Versus
The State (Govt. of NCT of Delhi) .....Respondent.
Date of filing of appeal. : 22.08.2012.
Date of Arguments. : 30.01.2013.
Date of Order. : 08.02.2013.
J U D G M E N T
1. Aggrieved by the judgment and order on sentence dated 13.07.2012 and 23.07.2012 respectively passed by Ld. MM (NE), KKD Court, Delhi in the case bearing FIR No.577/2009 PS Seelampur U/s 279/304A IPC titled as State Vs. Prem Singh, whereby the accused/appellant was held guilty U/s 279/304A IPC and awarded sentence as under:
(i). no separate punishment, as per provision of Sec.
71 IPC, for the offence U/s 279 IPC;
(ii). For the offence U/s 304A IPC to undergo twelve months rigorous imprisonment alongwith fine of Rs.10,000/, one month SI, in default. The fine amount was directed to be paid to the LRs of deceased as compensation with further directions that the LRs shall be at liberty to move an appropriate application for withdrawal of the compensation amount within one month from the Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.1 of pages 9 date of notice, failing which the amount shall be forfeited to the State.
the accused/appellant has preferred the present appeal on 22.08.2012 interalia praying for setting aside the impugned judgment and order on sentence dated 13.07.2012 and 23.07.2012 respectively and to acquit the appellant.
2. Briefly, stated the facts necessary for the disposal of present appeal (as per the Trial Court record) are that on 02.10.1999 at about 5.45 p.m at Dharampura, T Point, Red Light, Delhi accused/appellant was driving a bus bearing registration no. UP20C6124 in a rash and negligent manner and while driving the vehicle rashly and negligently, accused struck against one Kanik Ram and caused his death not amounting to culpable homicide and thus committed an offence punishable U/s 279/304A IPC. Upon completion of investigation, charge sheet U/s 173 Cr.P.C was filed and the accused/appellant was consequently summoned. A formal notice for the offence U/s 279/304A IPC was served upon the accused/appellant on 12.11.2001, to which he pleaded not guilty and claimed trial. It is pertinent to mention here that in the initial charge framed on 12.11.2001, the registration number of the offending bus was reflected to be UP20C6104 instead of UP20 C6124. The said error was rectified and the charge was accordingly amended vide order dated 31.05.2012. In support of its case, prosecution examined as many as eleven witnesses. Thereafter, PE was closed. Than, the statement of accused U/s 313 Cr.P.C was recorded, wherein he has refuted the allegation levelled against him in toto and opted not to lead any evidence in his defence. Then after hearing the detailed arguments, Ld. MM (NE), KKD Court, Delhi vide the impugned judgment and order on sentence dated 13.07.2012 and 23.07.2012 respectively, the appellant/ accused was held guilty U/s 279/304A IPC and awarded the aforementioned sentence, to which the appellant is assailing on Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.2 of pages 9 the following grounds:
(i). The impugned judgment and order on sentence passed by Ld. Trial Court is based on surmises and conjectures and thus the same are liable to be set aside.
(ii). Ld. Trial Court has totally failed to appreciate the fact that the appellant has not caused any accident and even none of the eye witnesses has been able to identify the appellant Prem Singh as the driver of the offending vehicle. Further Sh. Shankar Lal (PW1) and DD No.21A does not make a mention of the registration number of the offending bus. Further PW4 Sh. Ram Pal Singh has himself admitted that there are two bus drivers on long route buses and therefore, a doubt is cast upon the prosecution version that the alleged incident was caused by the appellant. Neither the police has enquired from the conductor or appellant regarding second driver. PW4 produced Duty Slip, which neither bears the signature of the driver nor bear the badge number of driver of bus nor even mentioned the time of reaching to Delhi. He has also not produced any document, which proves that the bus was handed over to Ram Lal. As such both the impugned judgment and order on sentence are liable to set aside.
(iii). Ld. Trial Court has totally failed to appreciate the fact that the statement Ex.PW1/A and the rukka Ex.PW10/A mentioned the bus number to be UP20C6104, which was subsequently tampered to be UP20C6124. Further as per rukka/tehrir the time of the alleged incident is 6.45 p.m and the Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.3 of pages 9 same is having overwriting, as number of the offending vehicle has been over written as 6124 instead of 6104. Even as per mechanical report, there is no damage on any part of the bus of the appellant. Further not even a single passenger has been made an eye witness nor even the conductor of the bus has been made as witness by the prosecution in regard to the alleged incident, which shows that the case of the prosecution is based on the hearsay evidence and as such both the impugned judgment and order on sentence are liable to set aside.
(iv). Ld. Trial Court has failed to appreciate the fact that in the statement U/s 161 Cr.P.C of Ct. Ram Niwas, the number of the offending vehicle was rectified as 6124 instead of 6204, which creates doubt to the version of the prosecution. Further registration number of the offending vehicle has not been mentioned in the statement U/s 161 Cr.P.C of HC Shankar Lal and in the statement of Ct. Mahesh.
(v). Ld. Trial Court has totally failed to appreciate the fact that at the time of framing of charge the registration number of the offending vehicle was mentioned as UP20C6104 and on 31.05.2012 all the proceedings of the matter was completed but Ld. MM has changed/rectified the registration number of the offending vehicle as UP20C6124 in the said order.
(vi). Ld. Trial Court has totally failed to appreciate the fact that PW1 Ram Raj stated that there was a rainy day, due to which his friend fallen in the ditch, which was situated in the middle of the Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.4 of pages 9 patri, he immediately reached at the spot and picked out his friend Kanik Ram from the ditch. Lateron police vehicle has taken his friend Kanik Ram to the hospital. In this whole story/statement of PW1, there is no allegation of any accident has been made by the PW1, which shows that there was no accident.
(vii). Ld. Trial Court has failed to appreciate the fact that PW2 Ct. Mahesh Kumar has not disclosed the registration number of the offending vehicle in whole of his statement given before the Ld. MM. Further opportunity to cross examine PW3 Dr. J. Vishwas (Medical Officer) was not provided to the accused.
(viii). Ld. Trial Court has also failed to appreciate that PW5 Ram Sanjeevan stated in his chief that one bus came and caused accident to Kanik Ram but he has not disclosed the number of the bus or its identity. He also deposed that "I did not see the driver of the aforesaid bus, therefore, I cannot identify him. I can not tell the number of the bus. I can identify the same by colour. (vol. many bus of the same colour are plying)." During cross examination PW5 deposed that "I cannot say that the aforesaid bus of UP Roadways but it was government bus. On showing the accused/ appellant to PW5, he deposed that "I can not say whether he was the driver of the aforesaid bus or not as I did not see him".
(ix). Ld. Trial Court has failed to appreciate that PW7 HC Rajbir singh has not disclosed the bus number in his statement U/s 161 Cr.P.C but he made improvement in his chief examination after Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.5 of pages 9 reading the case file. Further PW8 Om Prakash deposed in his testimony that "I had not seen the accident and had not given any statement to the police". This clearly shows that the police has falsely implicated the appellant in the present case only to fill up the lacuna of the department.
(x). Ld. Trial Court has also failed to appreciate that PW9 ASI Bani Singh, the Duty Officer at PS Seelampur, Delhi did not produce the original DD Entry before the Ld. Trial Court, as it is fact that the bus number of the offending vehicle was mentioned in the said DD entry as 6104 but the said witness has manipulated the bus number of the said vehicle in case FIR as 6124, which clearly raise the finger on the story of prosecution.
(xi). Ld. Trial Court has further failed to appreciate that PW10 SI Aditya Ranjan has stated that he alongwith Ct. Mahesh and Jitender reached at the spot Dharampur, where a bus of UP Roadways was standing in accidental condition but despite that no registration number of the bus was mentioned by the said witness, which clearly shows that the bus of the appellant was not present at the spot. Moreover, as per mechanical inspection report, there was no damage found on the said bus.
(xii). Further it has not been appreciated that concerned IO has not given any clarification/ report in regard to the bus no.6104 and nor even Ld. Trial Court has demanded any clarification from the IO in regard to the bus no.UP20C6104 and in regard to the correction/manipulation in the Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.6 of pages 9 judicial file as well as FIR and other documents on the number of the offending vehicle.
(xiii). It has also not been appreciated by the Ld. Trial Court that no independent witness has supported the prosecution case. Further the testimonies of prosecution witnesses examined are contradictory/self contradictory in nature and such contradictions in the statements of witnesses goes to the root of the case of the prosecution.
3. I have heard the rival submissions of Ld. counsel for the appellant and also of Ld. Addl. PP for the State and have also perused the entire material on record including the Trial court record, the contents of the instant appeal particularly the grounds taken therein and I find that the instant appeal as filed is liable to succeed.
4. First of all, it is an admitted fact that the accused/appellant was not arrested at the spot, rather he was arrested after getting confirmation about the name of the accused/appellant from UP Roadways Station, Bijnor. None of the eye witnesses has been able to identify the appellant Prem Singh as the driver of the offending vehicle at the relevant time of accident. There is nothing on record to show that the accused/appellant was driving the offending vehicle at the relevant time. In his examination chief PW5 Ram Sanjeevan stated that one bus came and caused accident to Kanik Ram but he has not disclosed the number of the bus or its identity. He also deposed that "I did not see the driver of the aforesaid bus, therefore, I cannot identify him. I can not tell the number of the bus. I can identify the same by colour. (vol. many bus of the same colour are plying)." Further during cross examination PW5 deposed that "I cannot say that the aforesaid bus of UP Roadways but it was government bus. Even on showing the accused/appellant to PW5, he deposed that "I can not say whether he was the Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.7 of pages 9 driver of the aforesaid bus or not as I did not see him". Further PW8 Om Prakash deposed in his testimony that "I had not seen the accident and had not given any statement to the police". Further PW4 Sh. Ram Pal Singh (Sr. Station Inspector UP SRDC, Bijnor) has himself admitted that there are two bus drivers on long route buses and there is nothing on record to show that any inquiry was conducted by the police from the conductor or other officials of UP Roadways, Bijnor regarding second driver. Moreover, the Duty Slip produced by PW4 neither bears the signature of the driver nor bear the badge number of driver of bus. Even it does not find mention the time of reaching to Delhi. Therefore, a doubt is cast upon the prosecution version that the alleged incident was caused by the appellant. Further, PW1 Ram Raj stated that there was a rainy day, due to which his friend fallen in the ditch, which was situated in the middle of the patri, he immediately reached at the spot and picked out his friend Kanik Ram from the ditch. Lateron police vehicle had taken his friend Kanik Ram to the hospital. In the entire version narrated by PW1, the allegation regarding any accident caused by the accused/appellant is missing and this further creates doubt about the story of prosecution. Further PW2 Ct. Mahesh Kumar has not disclosed the registration number of the offending vehicle in whole of his statement given before the Ld. MM, whereas PW7 HC Rajbir Singh, who had not disclosed the number of bus in his statement U/s 161 Cr.P.C, made improvement in his examination inchief regarding the bus number. Moreover, PW9 ASI Bani Singh, the Duty Officer at PS Seelampur, Delhi did not produce the original DD Entry before the Ld. Trial Court and the said lapse on the part of prosecution remained fatal as by way of producing the original DD Entry, the doubt regarding the identity of the offending vehicle could have been easily removed. Further PW10 SI Aditya Ranjan has stated that he alongwith Ct. Mahesh and Jitender reached at the spot Dharampur, where a bus of UP Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.8 of pages 9 Roadways was standing in accidental condition but despite that no registration number of the bus was mentioned by the said witness, which creates doubt about the presence of the offending bus at the spot. Incidentally, the mechanical inspection report, also suggests that there was no damage found on the said bus. Moreover, no plausible explanation qua the unauthenticated overwriting/corrections in the rukka regarding number of bus and the time of occurrence has been tendered, which is fatal to the case of prosecution.
5. In view of aforesaid, it can not be said that the prosecution has been able to prove its case against the accused/appellant beyond the shadow of all reasonable doubts. The accused/ appellant is therefore entitled for an order of acquittal in his favour by giving him benefit of doubt. Resultantly, the impugned judgment and order on sentence are hereby set aside and accused/appellant is acquitted of the charges. His bail bond stands discharged. The fine paid by the accused/appellant, if any, be refunded to him.
6. TCR alongwith the copy of judgment be sent to the Ld. Trial Court for information.
7. Appeal file be consigned to Record Room after completion of necessary formalities.
(Announced in Open court
on 08th February, 2013) (RAKESH KUMAR)
Addl. Sessions Judge/North East
Karkardooma Courts, Delhi
Prem Singh Vs. The State (Govt. NCT of Delhi) (CA No.04/2012) Page No.9 of pages 9