Delhi District Court
State vs . Prem on 5 July, 2011
1
IN THE COURT OF SH. MANISH KHURANA, M. M. OUTER
Rohini Courts, Delhi
State Vs. Prem
P. S. Bawana
JUDGEMENT
(a) The FIR no. of the case : 132/2002
(b) Unique Identification No. : 02401R0183402002
(c) The date of commission of offence : 13.05.2002
(d) The name of complainant : Sh. Kuldeep S/o Daya Chand
(e) The name and parentage of accused : Prem S/o Sh. Surji, R/o
C56, Shahbad Dairy, Delhi.
(f) The offence complained or proved : U/s 279/304 A IPC
(g) The plea of accused : Pleaded not guilty and
claimed trial.
(h) Date of Institution : 11.11.2002
(i) The date on which : 05.07.2011
judgment was reserved
(j) The final order : Acquitted
(k) The date of such order : 05.07.2011
Brief statement of the reasons for the decision:
1. The prosecution story in brief is that on 13.05.2002 at 10.30 am at Ganga Toli Mandir, DSIDC, Sector3, Bawana, Delhi, within the FIR No. 132/2002 P. S. Bawana 2 jurisdiction of P S Bawana, the accused Prem was found driving the Dumper bearing No. HR55A0236 in a manner so rash and negligent so as to endanger human life and personal safety to others and while so driving he caused the death of one boy namely Mukesh not amounting to culpable homicide and thereby committed an offence punishable u/s 279/304 A IPC for which FIR no. 132/2002 was registered against the accused.
2. After supply of copies U/s 207 Cr.P.C, notice u/s 279/304 A IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. In support of its case prosecution has examined 05 witnesses.
4. PW1 Sh. Kuldeep deposed that he did not remember the date and month. Even he could not tell the year but deposed that on the fateful day at about 2.002.30 pm he visited his farms near DSIDC, then he observed at some distance from his farms that some police persons had gathered and he also went to see what was happening there. Further he could not tell the name of the police person who made to sign him on a blank paper. He further deposed that the police obtained his signature of some other persons gathered there on some blank papers and neither any public person nor he inquired the police persons as to why they FIR No. 132/2002 P. S. Bawana 3 obtained their signature on blank paper. Thereafter he came back at his farms. He could not tell anything about the present case.
5. Ld. APP sought permission to cross examination the above said witness as he was resiling from his previous statement made to the police u/s 161 Cr. PC.
6. During his cross examination by Ld. APP for the state, witness stated that he was 10th pass and he could read Hindi language. He further stated that he had signed on blank papers. He admitted that under the statement Mark A his signature are there at point A. The same is Ex. PW1/A. He further admitted that he used to supply building material and only one year ago he had closed that business. He deposed that he used to take vehicle on hire in order to supply the building material and used to supply building material on Rikshaw in his village and he never hired the dumper. He also deposed that he had seen the accused Prem after coming in the Court premises and he did not know him before. This witness denied having made any statement to the Police. He denied the suggestion that he had seen the accused Prem Kumar on the fateful day. He further stated that he did not know any person with the name of Mukesh. He denied the suggestion that he was deposing falsely or that he had been won over by the accused.
FIR No. 132/2002 P. S. Bawana 4
7. Opportunity to cross examine this witness was given to the accused but to no avail.
8. PW2 WHC Sushila deposed that on on 13.05.2002 she was posted at P S Bawana as Duty Officer from 8.00 am to 4.00 pm. She further deposed that on that day at about 10.45 am she received an information about an accident from a public person on phone. She recorded the said information vide DD entry No. 7A which is Ex. PW2/A. She further deposed that on the same day at about 1.30 pm she also received a rukka from Ct. Satish sent by SI Ram Karan and on the basis of the same she recorded the present FIR. Copy of the same is Ex. PW2/B bearing her signature at point A. She also made endorsement on rukka from point A to A which is Ex. PW2/C bearing her signature at point A. (OSR).
9. Opportunity to cross examine this witness was given to the accused but to no avail.
10.PW3 Sh. Kuldeep (photographer) deposed that he works as a photographer and used to run a Studio namely Monika photo Studio. He further deposed that 13.05.02 one policeman came to him and asked him to take the photographs of the dead body. Thereafter he alongwith him went to the spot i.e. DSIDC, Sector3, Bawana. Thereafter he took FIR No. 132/2002 P. S. Bawana 5 four photographs of the dead body whose face was crushed by accident at the instructions and directions of the IO. IO recorded his statement. After developing the photographs he handed over the same to IO. The same is Ex. PA to Ex. PD collectively.
11.Opportunity to cross examine this witness was given to the accused but to no avail.
12.PW4 Sh. Ranbir Singh deposed that he lived at the above mentioned address and run a shop of building material. He further deposed that he was the superdar in this case and in the year 2002 he was informed by his driver Prem that an accident took place by Dumper bearing No. HR55A0236 which was being driven by him and also on the same day, he was informed by the police official who came to his office about the same. He handed over the documents of his Dumper above mentioned to the police. IO recorded his statement. He brought the case property i.e. Dumper of above mentioned number which was got released on Superdari by him and the case property i.e. Dumper above mentioned is Ex. P1.
13.Opportunity to cross examine this witness was given to the accused but to no avail.
14.PW5 SI Ram Karan deposed that on 13.05.02 he was posted at P. S. FIR No. 132/2002 P. S. Bawana 6 Bawana as SI and on receiving DD No. 7A, he alongwith Ct. Satish Kumar reached at the spot i.e. DSIDC, Sector3, Bawana, Delhi where he found the dead body of one boy namely Mukesh (as his name was disclosed during investigation), Dumper No. HR55A0236 and one eye witness Sh. Kuldeep Singh S/o Daya Nand and accused Prem. He further deposed that he recorded the statement of eye witness Kuldeep Singh the same is already Ex. PW1/A and he prepared the rukka Ex. PW5/A bearing his signature at point A and handed over the same to Ct. Satish for registration of the case at P. S. After the registration of the case Ct. Satish returned at the spot alongwith copy of FIR and original rukka and handed over the same to him and in the meantime he prepared the site plan at the instance of the eye witness Kuldeep which is Ex. PW5/B. He further deposed that the offending vehicle i.e. Dumper of above mentioned number was seized vide memo which is Ex. PW5/C. He instructed Ct. Satish to bring one photographer and accordingly he brought the photographer namely Kuldeep S/o Ran Singh with him. He further deposed that on his instruction and directions photographer Kuldeep took four photographs of the dead body of the deceased which is already Ex. PA to PD. He further deposed that he arrested the accused and conducted his personal FIR No. 132/2002 P. S. Bawana 7 search vide memo Ex. PW5/D and Ex. PW5/E respectively, both bearing his signature at point A. Thereafter accused Prem handed him over the RC of the vehicle, insurance documents and the same were collectively seized vide memo Ex. PW5/F. He further deposed that he inquired about the deceased boy but no information was received about the boy except his name as Mukesh from Village Puth Khurd. The dead body of the deceased boy was sent to BJRM Hospital through Ct. Satish for preservation as his identity was not known. Thereafter he alongwith, accused Prem alongwith offending vehicle above mentioned came to P. S. In the P. S. the accused was released on bail and he recorded the statements of the witnesses. He further deposed that on 14.05.02 mechanical inspection of the above mentioned vehicle was conducted at his request. The same is Ex. PW5/G. He recorded the statement of the witnesses. He inquired about the deceased but nothing was known about his identity. Even hue and cry notice was issued and also the information was sent on wireless about the dead body but could not find any clue about this. He further deposed that on 20.05.09 he got conducted the postmortem of the dead body of Mukesh in BJRM Hospital. He further inquired and searched for the relatives of the deceased boy but could not find anything about this. He seized the the Pant and Shirt of the deceased Mukesh for identification FIR No. 132/2002 P. S. Bawana 8 vide memo Ex. PW5/H and were deposited in the Malkhana and on the same day cremation ceremony of the deceased boy was conducted through him. He correctly identified the accused in the Court.
15. During his cross examination by Sh. V K Sharma, Ld. counsel for the accused he stated that he did not remember the time when he reached at the spot and he did not collect the chance print of the tires of the offending vehicle on the face of the deceased but he again said that as the eye witness Kuldeep was already present at the spot there was no need to collect the chance print. He admitted that the photographs of the spot or of the deceased did not show the offending dumper. He denied the suggestion that he did not join the investigation or that accused has been falsely implicated in the present case. He further denied the suggestion that the boy was an insane who had already died and was lying at the spot.
16.No other witness was examined by the prosecution despite various opportunities and the PE was closed.
17. Accused was examined U/s 281 Cr.P.C. and all the incriminating evidence coming on record was put to the accused.
18.The accused submitted that he is innocent and has been falsely implicated in this case and denied for leading DE.
19.I have heard Ld. APP for State and counsel for the accused and perused the record.
FIR No. 132/2002 P. S. Bawana 9
20.I have given a considered thought to the rival submissions made by Ld. APP for the state and Ld. Counsel for accused keeping in view the material available on the judicial file.
21.It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further it is a settled proposition of the criminal law that in order to prove its case on judicial files prosecution is supposed to stand on its own legs and it cannot drive any benefit whatsoever from the weakness if any in the defence of the accused. Further it is a settled proposition of the criminal law that burden of proof of the version of the prosecution in a criminal trial through out the trial is on the prosecution and its never shifts to the accused. Also it is a settled preposition of the criminal law that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubts entitles the accused to acquittal.
22.In this case the prosecution is required to prove that the accused Prem was driving the offending vehicle in a rash and negligent manner and while driving so he caused the death of victim Mukesh.
23.In this case PW1 Kuldeep who was the alleged eye witness for the prosecution has totally given up the case of the prosecution and has FIR No. 132/2002 P. S. Bawana 10 failed to identify the offending vehicle as well as the accused in the Court. He has categorically denied having made any statement to the police.
24.Hence in this case the sole eye witness for the prosecution has not supported the case of the prosecution. The prosecution has miserable failed to prove that accused Prem was driving the vehicle in a rash and negligent manner and caused the death of victim Mukesh.
25.All the remaining witnesses examined are the formal in nature and solely on the basis of the testimony of the formal witness case cannot be said to have been proved against the accused.
26. Keeping in view the facts and circumstances of the present case I am of the considered opinion that the prosecution has failed to prove that the accused Prem caused the death of the victim due to his rash or negligent driving. Therefore the accused Prem stands acquitted from the charges u/s 279/304 A IPC.
ANNOUNCED IN THE OPEN COURT
TODAY ON 05.07.2011 (MANISH KHURANA )
METROPOLITAN MAGISTRATE
ROHINI DELHI
FIR No. 132/2002 P. S. Bawana