Delhi District Court
State vs . Davinder on 22 May, 2014
State Vs. Davinder
IN THE COURT OF SH. SACHIN SANGWAN: METROPOLITAN
MAGISTRATE-05/CENTRAL: DELHI
STATE VS. DAVINDER
FIR No. 454/05
P. S. Kamla Market
Date of institution of case : 28.02.2006
Date on which case reserved for judgment : 20.05.2014
Date of judgment : 22.05.2014
JUDGMENT :
a) Date of offence : 06.06.2005 b) Offence complained of : U/s 279/337 IPC c) Name of complainant ; Mohd. Latif d) Name of accused, his parentage : Davinder local & permanent residence S/o Lt. Sh. Amar Singh R/o:- D-182, Vill. Mangla Puri, Palam Colony, Delhi-45. e) Plea of accused : Pleaded not guilty. f) Final order : Acquitted BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS:
1. The case of the prosecution is that on 06.06.2005 at about 09.30 a.m. at Tagore Road near Bus Stand of Route No. 307, the accused was found driving FIR No. 454/05 Page No. 1 of 7 State Vs. Davinder Taxi No. DL1T3718 in rash and negligent manner so as to endanger human life and personal safety of others and that on the said date, time and place while driving the said vehicle in such manner the accused hit scooter no. DL6ST1716 and caused simple injuries to complainant Mohd. Latif and thereby committed offence U/s 279/337 IPC Act.
2. Accordingly, on 03.10.2008 charge U/s 279/304A IPC was framed against the accused Subhash Yadav to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined 4 witnesses.
A. PW 1 Ct. Bhudutt Singh deposed that on 06.06.2005 an information was received regarding an accident at Tagore Road. On said information, he along with ASI Ravinder Singh reached at the spot where they found one scooter no. DL6ST1716 in accidental condition. He deposed that injured was not found at the spot and they returned at PS. At about 01.20 p.m. another information was received from JPN Hospital, and when they reached at the main gate of the hospital, injured Mohd. Latif met them and statement of injured was recorded. He deposed that IO prepared a rukka and handed over the same to DO. IO prepared site plan at the instance of injured, the scooter of the injured bearing no. DL6ST1716 was taken into possession vide memo Ex.PW1/A. He further deposed that RC and DL of the accused was taken into possession vide memo Ex.PW1/B, Ex.PW1/C and Ex.PW1/D and accused was arrested vide arrest memo Ex.PW1/E and his personal search was taken vide memo Ex.PW1/F. FIR No. 454/05 Page No. 2 of 7 State Vs. Davinder B. PW2 Mohd. Latif deposed that on 06.06.2005, at about 09:30 PM, he was going on two wheeler scooter no. DL 6ST 1716 by a Tagore Road to New Delhi Railway Station. He deposed that when he reached near Bus Stand 307, a taxi no. DL 1T 3718 came from front side in a rash and negligent manner at a fast speed and hit him and he was at his side. Due to hitting, he fell down alongwith his scooter and the driver of taxi fled away along with taxi. PW2 deposed that accused Davender was driving the aforesaid taxi. He further deposed that he was removed to LNJP hospital and Police came there and recorded his statement Ex. PW-2/A. Police seized his scooter vide memo Ex. PW-1/A and he got released his scooter on superdari by executing superdaginama Ex. PW-2/B. C. PW3 HC Bansidhar deposed that on 06.06.2005, one PCR call was received regarding an accident. He went to JPN hospital, where he received MLC of injured Mohd. Latif. He took the MLC to DO PS Kamla Market. He further deposed that he went with the IO regarding investigation of the case and the IO prepared site plan.
D. PW4 ASI Ravinder Kumar deposed that on 06.06.2005, he was posted at PS Kamla Market as ASI. On that day, one PCR call was received regarding an accident. He alongwith Ct. Bhudutt went at the spot where they found one scooter no. DL 6ST 1716 in an accidental condition. Injured was not present at the spot. They inquired about the injured but did not get any response from any side. He further deposed that at about 01:20 PM, they received a call from JPN hospital regarding the accident. PW4 deposed that he recorded statement of injured Ex.PW2/A which was handed over to DO for registration of case and he endorsed the same vide Ex.PW4/A. FIR No. 454/05 Page No. 3 of 7 State Vs. Davinder He further deposed that he prepared site plan Ex.PW4/B at the instance of the injured and seized the scooter no. DL 6ST 1716 vide seizure memo Ex.PW1/A. PW4 further deposed that on 28.06.2005, taxi owner came to PS and handed over him the accused Davender and the offending taxi. PW4 seized the taxi vide seizure memo Ex. PW-1/B, arrested the accused vide arrest memo Ex.PW1/E, conducted his personal search vide search memo Ex.PW1/F, RC and DL of the accused were seized vide seizure memo Ex.PW1/C & D.
4. Thereafter, prosecution closed its evidence and the incriminating circumstances were explained to the accused. In his examination under Section 313 Cr. P.C. accused Davinder stated that he is innocent and has been falsely implicated in this case. He deposed that at the time of incident, he was present at the Taxi Stand and not at the spot and the IO has falsely implicated him in the present case.
5. In his defence, accused has examined Bharam Prakash as DW1, who deposed that he is a taxi driver by profession since year 2005. On 06.06.2005 he was present at Taxi Stand, IGI Airport along with accused Davender and other driver Satish. He deposed that on 06.06.2005 accused Davender was the driver of taxi number DL1T 3718. DW1 deposed that accused Devender was present with him at the taxi stand IGI Airport on 06.06.2005 from 08.00 am to 03.00 pm and the said taxi DL1T 3718 also remained there during that period. The said taxi is make Maruti Omni Van. At the said time the taxi was being run in interstate transport between Delhi and Punjab and the booking of the taxi was being done by Delhi Traffic Police. Officials of Delhi Traffic Police remained present there at the time of giving the duty. Duty slip regarding booking of the taxi was issued by the Delhi Traffic Police in triplicate (one was given to FIR No. 454/05 Page No. 4 of 7 State Vs. Davinder the passenger, one to the driver and one remained with traffic police). After completion of the duty the taxi used to be parked in the taxi stand at IGI Airport and if any driver removed his taxi from the taxi stand his turn was cut off by the traffic police and next turn came after about 3/4 days.
6. Sh. Satish Kumar was examined as DW2 by accused. DW2 also deposed on the same lines as testified by DW1. Thereafter accused closed his evidence and augments of both parties were heard.
DECISION OF THE CASE AND REASONS THEREOF
7. After considering the facts and circumstances of the case the Court has come to the conclusion that the prosecution has failed to prove its case against the accused beyond reasonable doubts. The reasons for the said conclusion are discussed in succeeding paras.
A. The main argument of counsel for accused is that there is contradiction per se in the case of prosecution regarding the make of offending vehicle. Court has considered the alleged lapse in the case of prosecution. In the present case the investigation was set into motion on the basis of the complaint made to police Ex. PW2/A. In the said complaint it is mentioned that the offending vehicle was black and yellow colored taxi bearing number DL 1T 3718. Further the said complaint itself categorically mentions that the taxi was of make Ambassador and its driver fled with the same from the spot. However, the vehicle in question in present trial is having said number but is a maruti omni van. Thus the vehicle mentioned in the complaint and FIR No. 454/05 Page No. 5 of 7 State Vs. Davinder the vehicle mentioned in trial are of completely different make. No explanation regarding the same has come up in charge-sheet or through any of prosecution witnesses. Thus said aspect is totally unexplained. Ld. APP for state has argued that the registration number mentioned in the complaint and in the charge-sheet and in the evidence is same and thus there is no confusion as to the identity of vehicle. He has also argued that complainant was not cross examined by the accused despite opportunity and therefore his testimony is un-rebutted. He has also argued that the accused has not disputed the mechanical inspection report of the vehicle no. DL 1T 3718. However Court is unable to agree to said arguments. When an accident occurs, the eyewitness first observes as to what is the kind of vehicle and only thereafter he observes the registration number of the vehicle. Admittedly some cars are alike and sometimes one can get confused regarding two vehicles of similar looks and design. However an ambassador car has a completely different body design from that of a maruti omni van. Thus the said contradiction is a material fact and even if accused failed to cross examine the prosecution witnesses, the said contradiction is not explained away.
B. The accused has raised a defence that he has not committed the offence in question. His specific plea is that at the time of alleged incident he was present at taxi stand and not at spot. He has even examined two witnesses to prove his defence of alibi. Further, it is to be noted that neither the vehicle was impounded from the spot nor the accused was arrested from the spot. As per PW4 the accused was produced by the owner of vehicle after 22 days of incident. He has deposed that accused refused to participate in TIP. However there is nothing on record to show that any TIP application was ever moved by IO and that the alleged refusal was recorded by FIR No. 454/05 Page No. 6 of 7 State Vs. Davinder any judicial officer. More so the alleged refusal is not even mentioned in the charge- sheet also. This fact creates further doubts in the case of prosecution. Here, it is worth mentioning that no description whatsoever of the driver has been mentioned in the complaint. There is no mention of physical attributes like height, complexion etc of driver or his age. Thus the main link between the accused and the incident is the testimony of complainant recorded in the court after 6 years of the incident wherein he identified accused as the driver of alleged offending vehicle. However, there is no independent witness to the incident and the testimony of sole eye witness fails to get corroboration from physical evidence. Therefore, considering the totality of circumstances this identification of accused has little probative value.
Therefore number of doubts have appeared in the case of prosecution and the benefit of doubt has to be given to the accused. Accordingly, accused Davender is acquitted of the offences charged against him u/s 279/337 IPC.
ANNOUNCED IN THE OPEN COURT (SACHIN SANGWAN)
TODAY ON 22nd May, 2014 MM-05 (CENTRAL), DELHI
FIR No. 454/05 Page No. 7 of 7