Delhi District Court
State vs Vibhor Ahluwalia on 5 November, 2015
IN THE COURT OF SH. PAWAN KUMAR, MM01,
SOUTH, SAKET COURTS, DELHI
State V/s Vibhor Ahluwalia
FIR No. 227/05
U/s 279/337/304 A IPC
P. S. Lodhi Colony
1.Serial No. of the case : 696/12
2. Unique Identification No. : 02403RO687702005
2.Date of commission of offence : 24.08.2005
3.Name of the Complainant : SI Pratibha Sharma
4.Name of the accused and his : Vibhor Ahluwalia
parentage & residence address : S/o Sh. Lalit Ahluwalia
R/o G3/15, DLF
Phase1, Gurgaon,
Haryana.
5.Date when judgment reserved : 30.10.2015
6.Date when Judgment pronounced : 05.11.2015
7.Offence Complained of or proved : 279/337/304 A IPC
8.Plea of accused : Pleaded not guilty
9.Final Judgment : Acquitted
1. The accused Vibhor Ahluwalia has been facing the trial for the commission of offence u/s 279/337/304 A IPC. The present case FIR was registered on the DD entry no. 8A dated 24.08.2015, P.S. Lodhi Colony. The aforesaid information was recorded FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.1 of 13 regarding the admission of one unknown lady in injured condition in Moolchand Hospital. The case of the prosecution in brief is that on 24.08.2005 at about 1.00 pm the accused was driving his car bearing no. DL7CG0316 (hereinafter to be referred as the offending car) in rash and negligent manner and by driving so he hit one lady namely Shaheen Praveen ( hereinafter to be referred as deceased), who was returning after picking her daughter from the school. The deceased was declared brought dead in the hospital. The daughter of the deceased baby Aisha sustained injuries in the present case. It is alleged that accused had caused the incident by driving the offending vehicle in rash and negligent manner.
2. On completion of the investigation, charge sheet under Section 279/337/304A IPC was filed against the accused and copies of charge sheet and annexed documents were supplied to him in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, notice for the offences U/s 279/337/304A IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove its case against the accused, prosecution has examined fourteen (14) witnesses.
PW6 Vikas Pathania is one of the eye witness of the incident. He deposed that on 24.08.2005 he was posted as Guard in the Army Headquarter in front of Sai Baba Mandir, Lodhi FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.2 of 13 Colony. At about 1.00 pm he heard the noise and found one lady and one child in injured condition. The accused was found apprehended by the public person at the spot. The witness took the injured child to Ex servicemen Contributory Health Scheme inside the Army Headquarter. The Doctor medically examined the child. After some days he came to know that the injured had expired. He went to the police station and his statement was recorded. He identified the accused in the court.
PW7 Bal Bahadur Thapa is the another eye witness of the incident. He deposed that on 24.08.2005 he was returning after picking the child of his officer, and when he reached at main gate Sai Baba Mandir, one lady was also going ahead of him along her child from the same school. He was present at the side of the main road and after crossing the road he stood at the divider of the road. In the meantime he heard the noise of tyre of some vehicle and found the lady fell down from the bonnet of the vehicle bearing no. DL7CG0316. The driver of the vehicle came out and talk to someone on his mobile phone. People gathered at the spot and took the injured in the said vehicle to the hospital. He identified the accused in the court.
PW 2 Sh. Pawan Kumar deposed that one day he was coming from Kotla Mubarakpur and when reached near Sai Baba Mandir he saw the crowd gathered at the spot after the road accident which had already happened. He saw one lady lying on the road in accidental condition. The injured was taken to the hospital in offending vehicle. The witness was cross examined by Ld. APP as he resiled from his previous statement.
FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.3 of 13PW5 Shanu is one of the eye witness and deposed that he does not know anything about this case. The witness did not support the case of the prosecution and was cross examined by Ld. APP.
PW1 Talat Shahedi is the Husband of the deceased and he received the dead body of the deceased after post mortem vide handing over memo Ex.PW1/A. PW3 Smt. Venu Ahluwalia is the owner of the offending vehicle and deposed that she got released the vehicle on superdari vide superdaginama Ex.PW 3/A and the same is Ex.P1. She further deposed that on the day of incident the offending vehicle was handed over to the driver namely Virender. She made the endorsement on the notice u/s 133 M.V. Act Ex.PW3/A. PW4 Parshuram Singh deposed that on 31.08.2005 he along with Rajiv Negi and Dr. Bharti Bhardwaj examined the offending vehicle in police station. The detailed report is Ex. PW4/A. PW8 Dr. Rajanikanta Swain deposed on behalf of Dr. Raghuvendra Kumar, who conducted the post mortem of the deceased. The witness identified the handwriting and signature of the concerned Doctor. Post mortem report is Ex.PW8/A. PW9 Shri Kant Sharma deposed on behalf of Dr. S.R. A. Rizwi, who prepared the MLC and the same are Ex.PW9/A and PW9/B. PW10 Dr. Archana Vermani identified the signature and handwriting of Dr. S.R.A. Rizwi who prepared the MLC s of the deceased and injured.
FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.4 of 13PW11 T.U. Siddiqui conducted the mechanical inspection of the offending vehicle. The medical inspection report is Ex.PW11/A. PW12 HC Prakash Chand deposed that on 24.08.2005 he recorded the DD no. 7A and 8A. The DD entry is Ex.PW12/A. PW14 SI Pratibha Sharma is the Investigating Officer. She deposed that on receiving the DD entry no. 7A she along with Ct. Priyavarat and HC Rajender went to the spot but nothing was found there. On receiving the DD no. 8A she went to the Moolchand Hospital and collected the MLC of the injured person. The IO seized the offending vehicle in the hospital vide seizure memo Ex.PW13/A. The dead body of the deceased was shifted to AIIMS Mortuary. One eye witness namely Shanu was examined in the hospital. The witness gave the notice u/s 133 M.V. Act to the owner of the offending vehicle. The owner made the endorsement on the said notice. On the request of the IO the post mortem of the deceased was got conducted and the dead body was handed over to the relatives of the deceased. On the same day the owner of the offending vehicle produce the accused in the police station. The IO arrested the accused and conducted his personal search vide memos Ex.PW 13/B and PW13/C. The witness along with Ct. Priyavarat and accused went to the spot and one eye witness namely Pawan was found there and he identified the accused. IO prepared the site plan at the instance of the eye witness. The IO seized the RC of the offending vehicle and Driving License of the accused vide memo Ex.PW13/D ad PW13/F respectively. In the course of investigation the IO recorded the FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.5 of 13 statement of two other eye witnesses. On an application for TIP of the accused, he refused to participate in the TIP proceedings. The IO seized the blood stained rexin sheet of the offending vehicle vide memo Ex.PW14/C. PW13 HC Rajender Kumar accompanied the IO during investigation and deposed on the similar lines as stated by PW14/ IO.
5. The accused admitted the factum of the registration of TIP Proceedings in terms of Section 294 Cr.PC. The corresponding witnesses were dropped from the list of the witnesses.
6. After exhausting the list of prosecution witnesses, the prosecution evidence was closed. Statement of accused under Section 313 r/w 281 Cr.P.C was recorded. The accused opted not to lead defence evidence.
7. I have heard the arguments put forth by the Ld. APP for the state and by Ld. Defence Counsel. I have also perused the materials available on record.
8. In order to sustain conviction U/s 279/337/304A IPC, the prosecution has to establish that
(i) the accused was driving the vehicle at public place in rash and negligent manner;
(ii) and by such rash and negligent driving he caused death FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.6 of 13 and injuries to the deceased or injured.
9. The prosecution examined total 4 witnesses of the incident. PW2 Pawan Kumar and PW5 Sannu did not support the case of the prosecution. PW2 deposed that when he reached at the spot he found one lady lying on the road in accidental condition. PW5 deposed that he does not know anything about this case. Both the witnesses were cross examined by Ld. APP as they resiled from their previous statements.
10. PW6 and PW7 are the two other eye witnesses examined by the prosecution. PW6 deposed that he was posted as Guard in Army Head Quarter/ MES no. 5 in front of Sai Baba Mandir. He deposed that he heard the noise and went to the spot. He found one lady and female child lying in injured condition. The accused was found apprehended by the public person at the spot. Since the witness deposed that he reached at the spot after hearing the noise, therefore, it can be said that he had not seen the alleged incident. PW7 deposed that he was returning after picking the child of his officer from the school and one lady was going ahead of him along with her child from the same school. He deposed to have seen a car bearing no. DL7CG0316 and hit the lady. Due to the impact lady fell down on the road. Both the aforesaid witnesses identified the accused in the court.
11. It is argued on behalf of the accused that both the witnesses are planted witness and they deposed falsely in order to FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.7 of 13 strengthen the case of the prosecution. At this juncture it is pertinent to point out that in order to rely upon the testimony of any eye witness it is essential that his presence on the spot must be specifically established. PW6 deposed that he alone was posted as a Guard at the spot. He further stated in the cross examination that he had not handed over his duty roaster to the IO. He did not inform to the police station or any other higher authorities. There are certain improvements in the testimony of PW6. He had not stated to the IO in his statement that he took the injured child to Ex servicemen Contributory Health Scheme inside the Army Headquarter for medical treatment. No such record of medical treatment is collected during the investigation. The witness could not tell whether there was any Zebra crossing near the spot.
12. PW7 deposed that he was present at the divider of the road and saw one vehicle coming from his right side. In the meanwhile he heard the noise of tyre of some vehicle and also saw one lady fell down from the bonnet of the said vehicle on the road. In his cross examination he deposed that police never met him in connection with this case. He again said that police came after two days of the incident. He had not received any notice issued by the police. The witness did not make any call to the police regarding the incident. The testimony of PW7 is also full of improvement and contradictions. PW7 also did not hand over his duty roaster/ attendance register to the police. He admitted that the relatives of the deceased was serving in CRPF. The defence raised the serious doubt over the presence of PW6 and PW7 at the place of incident.
FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.8 of 1313. It is the case of prosecution that the investigation was initiated on receiving information of road accident vide DD no. 7 A dated 24.08.2005. As per the IO when he reached at the spot nothing was found there rather it would be correct to say that the IO was not able to locate the place of incident on her first visit to the so called spot. Another information was received vide DD no. 8A regarding the admission of one unknown lady in a road accident. The IO stated that on the next day she found one eye witness on the spot namely Pawan. The other witnesses were examined in the course of investigation after around 10 days of the accident. No notice was given to the witnesses to join the investigation. In this regard PW6 deposed that he himself went to the police station and got recorded his statement which is contradictory to the case of the prosecution. PW7 deposed that police came to meet him after two days of incident, whereas, IO deposed that she had recorded the statement of other eye witnesses after 10 days of the incident.
14. In the road accident cases spot investigation has a very material role to play. In the present case, on the first visit of the IO nothing was found at the spot . The exact place of incident was identified on the next day of incident when one eye witness was found and identified the accused and the spot. The broken part of the offending vehicle or blood stains were not found at the spot. As per the mechanical inspection report the headlights and some other parts of the offending vehicle were found broken. In this FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.9 of 13 eventuality there must have been some traces of the accident at the place of incident.
15. In the cases of Section 279/304 A IPC the prosecution has to establish the rashness or negligence of the accused. Out of the witnesses examined by the prosecution there are only two eye witnesses. PW6 deposed that he reached at the spot after hearing the noise. He cannot be said to the witness who had seen as to how the offending vehicle was being driven in rash and negligent manner. In true sense he cannot be said to be the eye witness. PW7 deposed that he was present at the divider and heard the noise of tyres of the vehicles and saw that one lady had fell down on the road from the bonnet of the car.
16. None of the witness deposed that the offending vehicle was being driven in rash or negligent manner. There is no evidence to establish the rashness or negligence of the accused driver. I found strength from the observation made by the Supreme Court of India in the case of State of Karnataka V/s Satish( 1998) 8 Supreme Court Cases 493, wherein it is observed that "In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.10 of 13 presumption of "rashness" or "negligence"could be drawn by invoking the maxim "res ipsa loquitur". "
17. In the accident cases, the investigation has very significant role to play particular in preparing the site plan and the mechanical inspection report of the vehicles involved. Justice Badar Durrez Ahmed make certain observations on this aspect in the judgment of Adul Subhan Vs. State NCT of Delhi, 2006 (133 ) DLT 562 that it is imperative for the Investigating Officer to prepare accurate site plan so that evidence may be appreciated properly in the court. He further observed that the exact point of impact as well as tyre skid marks on the point at which the vehicle goes to at rest after the collision should be demarcated clearly. The length of the tyre skid marks of the vehicle involved can be helpful in indicating the speed at which he vehicle was traveling/plying.
18. In the present case the investigation has been conducted very casually. The IO failed to locate the place of incident on her first visit on the DD entry no. 7A. No traces of the accident were found at the spot. The accused relied upon the Judgment of the Hon'ble Supreme Court in the case of Tori Singh & Anr. V/s State of Uttar Pradesh, AIR1962 SC,399, wherein it is held that the sketch map would be admissible so as it indicates all that the Sub Inspector saw himself at the spot, but any mark put on the sketch map based on the statements made by the witnesses to the Sub Inspector would be inadmissible in view of the clear provisions of section 162 of Criminal Procedure Code. I agree with the defence FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.11 of 13 raised by the accused that only that part of the site plan is admissible which is prepared by the IO on the basis of the factual position on the spot. The rest of the site plan which is prepared at the instance of any other witness can be treated as a statement of the witness recorded u/s 161 Cr.P.C.
19. The testimony of PW6 and PW7 is full of improvement and contradictions. Both the witnesses are not reliable and trustworthy. The deposition of both the witnesses do not inspire the confidence. Moreover, the presence of the eye witnesses on the spot is under the shadow of doubt. The investigation has not been conducted properly and there are many serious loopholes which put dent in the case of the prosecution. The defence has raised the reasonable suspicion over the case of the prosecution. The prosecution failed to establish that the accused was driving the offending vehicle and the offending vehicle was being driven in rash or negligent manner.
20. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
21. Considering the testimony of the witnesses, the court is of the view that the prosecution miserably failed to establish the FIR No. 227/05 State Vs. Vibhor Ahluwalia Page No.12 of 13 charge against the accused beyond reasonable doubt. Accordingly, the accused Vibhor Ahluwalia is acquitted of the offence punishable U/s 279/337/304 A IPC.
22. File be consigned to record room after necessary compliance.
Announced in open Court ( PAWAN KUMAR )
on 05th November, 2015 Metropolitan Magistrate01,
SouthEast, Saket Courts, New Delhi
FIR No. 227/05
State Vs. Vibhor Ahluwalia Page No.13 of 13