Delhi District Court
State vs . Ganesh on 20 November, 2018
IN THE COURT OF MS. JASJEET KAUR: ADDITIONAL CHIEF METROPOLITAN
MAGISTRATE / NORTH, ROHINI / DELHI
Cr. Case No. 5290171/2016
STATE Vs. Ganesh
FIR No.42/09
P.S. MUKHARJEE NAGAR
Date of institution of case : 26.06.2009
Date on which case reserved for judgment : Not reserved
Date of judgment : 20.11.2018
JUDGMENT :
a) Date of offence : 09.02.2009
b) Offence complained of : U/s 279/304A of IPC
c) Name of complainant : Sh. Amarjeet Singh,
S/o Sh. Charan Singh,
d) Name of accused, his parentage, : Ganesh,
& address S/o Sh. Ashrafi Kamat,
R/o Village Bara Bhrna,
PS Bihra, District Sahrsa,
(Bihar), P.Add.-H.No.290,
Village Shalimar Bagh, Delhi.
,.
e) Plea of accused : Pleaded not guilty.
f) Final order : Acquittal
BRIEF FACTS OF CASE OF PROSECUTION ARE AS FOLLOWS :-
1. On 09.02.2009, at about 2 p.m, an accident had taken place in front of Century Property at West Permanand Colony on Burari Road, in which one FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 1/22 pedestrian named, Smt. Jamila Peter had lost her life. It is the case of prosecution that accused Ganesh was driving a Tata Bus bearing registration no.DL 1PA 1896 in a rash and negligent manner and when the said bus had reached near Century property at West Parmanand Colony on Burari Road, Delhi, it had struck against one lady namely, Jamila Peter who was crossing the road. As a consequence of collision with the offending bus, victim Jamila Peter had sustained fatal injuries on her person.
2. On these facts a case was registered against accused Ganesh, vide FIR bearing no.42/09 of PS Mukharjee Nagar, ExPW3/A on the basis of statement of complainant Amarjeet Singh, ExPW1/A. During the course of investigation, victim Jamila Peter was medically examined vide MLC ExPW6/A and her body was identified by her son Vikas Peter and nephew Arun Mukhia vide identification statements ExPW2/A and ExPW5/A respectively. Besides postmortem on the body of deceased was conducted vide report ExPW11/A and thereafter death summary of deceased Jamila Peter ExPW12/A was also prepared. The mechanical inspection of the offending bus was conducted vide inspection report ExPW9/A. Also, the accused was arrested and personally searched vide arrest memo ExPW1/D and personal search memo ExPW1/E respectively. After the completion of investigation, charge sheet was filed against accused Ganesh for the alleged commission of offence of causing death by rash and negligent driving on a public road U/s 279/304A IPC of Indian Penal Code, 1860 (hereinafter referred as IPC).
3. During the course of trial notice of accusation U/s 251 the Code of Criminal Procedure 1973 (hereinafter referred to as Cr.P.C.). was served upon the accused for the alleged commission of offences punishable U/s 279/304A IPC on 26.06.2018 to which the accused had pleaded not guilty and had claimed trial. Thus the accused had opted to contest the matter.
4. Upon the accused pleading not guilty to the notice U/s 251Cr.P.C. served FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 2/22 upon him, an opportunity was given to prosecution to prove its case by leading evidence in support of the same. Prosecution examined 12 witnesses in order to prove its case. A brief account of the depositions made by the witnesses of prosecution is reproduced below:
5. PW-1 Amarjeet Singh deposed that on 09.02.2009, while returning to his residence at village Daka from Kingsway Camp, he was walking 8-10 steps behind one lady named, Jamila Peter and when they had reached Parmanand Chowk at about 2 pm, he had noticed that while crossing the road said Jaimla Peter had been hit by one bus bearing no.DL 1PA 1896 which was coming from the side of Kingsway Camp in a rash and negligent manner and after seeing the aforementioned accident he had immediately rushed to his house for bringing his car, however when he had returned to the spot with his car he had noticed that neither the injured nor the driver of the offending bus were present at the spot. He stated that he has made inquiry about injured Jamila Peter from nearby clinics and hospitals but was unable to trace her whereabouts and after some time somebody had informed him that victim Jamila Peter had been taken to Hindu Rao Hospital by a PCR Van. He deposed that upon reaching Hindu Rao Hospital he had met accused Ganesh and had learnt about the death of victim Jamila Peter. He further deposed that in the meantime, IO ASI Madan Lal had reached the hospital alongwith one Constable and subsequently, he had returned to the spot alongwith the IO and the Constable whose name he could not recall. He stated that IO had got the spot photographed from one photographer and had recorded his statement ExPW1/A. He further deposed that IO had also prepared site plan ExPW1/B and had arrested and personally searched the accused vide arrest memo ExPW1/C and personal search memo ExPW1/D respectively. He testified that IO had seized the driving license of accused and the documents of the offending vehicle including its Registration Certificate (RC), insurance and FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 3/22 permit vide seizure memo ExPW1/E and ExPW1/F respectively. He correctly identified the accused during the recording of his deposition.
In his cross examination by Sh. V. P. Singh, learned counsel for the accused, PW-1 deposed that he new the deceased prior to the date of occurrence of the accident in question. He stated that his friend Robin had telephonically told him that the injured had been removed to Hindu Rao Hospital when he himself was near New Life Hospital. He admitted that Robin was not present at the spot at the time of occurrence of the alleged accident. He deposed that IO had not done any writing work in relation to him at the hospital and the IO was busy doing his own work at Hindu Rao Hospital. He stated that his statement was recorded by the IO at the PS on the next day following the date of occurrence of the accident in question and he had also seen the driver of the offending vehicle at the police station on the next day. He stated that he had seen the offending bus for the first time from a distance of about 15 meter. He further deposed that he had not immediately informed police officials about the occurrence of the accident as he had gone to his house to bring his vehicle. He stated that no one had specifically informed him about the fact that the injured lady had been taken into Hindu Rao Hospital and he had himself come to know about this fact. He, however, admitted that his friend Robin had told him about the factum of removal of injured to Hospital. He deposed that he had not made any request to public person who had gathered at the spot. to take the injured lady to hospital and had fetched his car from his house for taking the injured to the hospital. He admitted that he was acquainted with the shopkeepers of the shops located on the both sides of the spot of occurrence. He admitted that a teacher and school children were present in the offending bus but expressed his inability to tell as to whether the teacher and school children were still present at their spot or not when he FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 4/22 had returned to the spot with his car. He admitted that he had not produced accused Ganesh before the IO at the police station on the next day following the day of occurrence. He deposed that he had signed all the documents ExPW1/B to ExPW1/F at the police station.
6. PW-2 Vikas Peter deposed that on 10.02.2009, he had identified the dead body of his mother Jamila Peter at the mortuary of Hindu Rao hospital vide his statement, ExPW2/A. Sh. VP Malik, learned counsel for the accused had not availed the opportunity given to him by the court to cross examine PW-2.
7. PW-3 HC Birendra deposed that on 09.02.009 while working as a duty officer at PS Mukharjee Nagar at 5 PM to 1 am, he had registered the FIR No.42/09 ExPW3/A in the present case on the basis of rukka sent by ASI Madan Lal through Ct. Shokeen Pal. He also proved his endorsement on rukka as ExPW3/B. Accused Ganesh had not availed the opportunity given to him by the court to cross examine PW-3.
8. PW-4 Ct. Shokeen Pal deposed that on 09.02.2009, on receipt of a PCR call regarding accident, he had accompanied IO ASI Madan Lal to the spot opposite Century property in front of West permanand Colony, Burari road, Delhi, where they had found one bus bearing no.DL 1PA 1896 lying in accidental condition. He stated that on being informed about the fact that the injured persons had already being shifted to Hindu Rao Hospital IO ASI Madan Lal had proceeded to the said hospital whereas he himself had stayed back at the spot. He had further deposed that after his return to the spot alongwith complainant Amarjeet Singh, IO had prepared a rukka on the basis of which he had got registered the FIR No.42/09 of PS Mukharjee Nagar and on receipt of a copy of the said FIR IO had seized the offending bus vide seizure memo ExPW1/C and had also prepared the site plan. He further deposed that in a short while the driver of the offending bus, that is, FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 5/22 accused Ganesh had reached the spot alongwith the owner of the offending bus and IO had arrested the accused vide arrest memo ExPW1/D, after personally searching the accused vide personal search memo ExPW1/E. He supported the PW-1 on the factum of seizure of Driving License of the accused vide seizure memo ExPW1/F. He stated that IO had also seized the photocopies of RC, Insurance and Permit of the offending bus vide seizure memo ExPW4/A and had got the spot photographed in his presence. Accused Ganesh had not availed the opportunity given to him by the court to cross examine PW-4.
9. PW-5 Arun Mukhia deposed that on 10.02.2009, he had identified the dead body of his maternal aunt (mami) Jamila Peter at the mortuary of Hindu Rao hospital vide his statement, ExPW5/A. The accused had not availed the opportunity given to him by the court to cross examine PW-5.
10. PW-6 Dr. Dheeraj deposed that on 09.02.009, while working as a CMO at Hindu Rao Hospital at about 3 PM, he had medically examined one victim of road traffic accident, namely, Jamila Peter, aged about 70 years, vide MLC No.922/09 ExPW6/A whereby he had referred her to emergency medical officer surgery and emergency medical officer Orthopedics as well as to ICU.
In his cross examination by Sh. V. P. Malik, learned counsel for the accused PW- 6 deposed that at points A1 to A2 on MLC ExPW6/A, he had mentioned that the police officials who had brought the victim Jamila Peter to the hospital had informed him that the victim lady was lying on the road side, near Singh Petrol Pump at SBI Colony, Pratap Bagh.
11. PW-7 Lady Ct. Urmila, deposed that on 09.02.2009 while working as a Daily Diary writer at PS Mukharjee Nagar from 9 am to 5 pm at about 2.18 pm on receipt of a PCR Call from wireless operator regarding accident, she had recorded DD No.38B, ExPW7/A. She further deposed FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 6/22 that thereafter at about 4.45 PM, she had received another PCR call regarding the death of the injured victim of aforementioned accident at Hindu Rao Hospital through HC Raj Kumar and had reduced the said intimation into writing vide DD No.46B ExPW7/B. Sh. VP Malik, learned counsel for the accused had not availed the opportunity given to him by the court to cross examine PW-7.
12. PW-8 HC Ram Karan deposed that on 09.02.2009, while working as IC Commander-59 in PCR North Zone, Model Town at about 2 PM on receipt of a call regarding accident, he alongwith his driver and gun man had reached at Singh Petrol Pump, SBI Colony, Pratap Bagh in a PCR Van and had removed the injured lady namely Jamila Peter to Hindu Rao Hospital where he had got her admitted at about 3 PM before returning to the Base. The accused had not availed the opportunity given to him by the court to cross examine PW-8.
13. PW-9 Retd. ASI Devender Kumar deposed that on10.02.2009, at the request of IO, he had mechanically inspected a Tata Bus bearing no. DL 1PA 1896 at PS Mukharjee Nagar vide mechanical inspection report ExPW9/A. In his cross examination by Sh. VP Malik, learned counsel for the accused, PW-9 deposed that scratch marks on the offending vehicle might have been caused by some object. He, however expressed his inability to recall exact length of the scratch marks found on the body of the offending vehicle.
14. PW-10 SI Madan Pal deposed that on 09.02.2009, while working as an ASI at PS Mukharjee Nagar on receipt of a PCR call regarding accident vide DD No.38B, he alongwith Ct. Shokeen Pal had gone to the spot opposite Century property in front of West permanand Colony on Burari Road, Delhi, where they had found one bus bearing no.DL 1PA 1896 lying in accidental condition. He stated that on being informed about the fact that FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 7/22 the injured persons had already being shifted to Hindu Rao Hospital, he had left Ct. Shoken Pal at the spot before proceeding to Hindu Rao Hospital, from where he had collected MLC of injured Jamila Peter bearing no.922/09. He stated that at the hospital he had recorded statement of eye witness Amarjeet Singh ExPW1/A and had also met accused Ganesh. He further deposed that upon his return to the spot alongwith the eye witness and the accused, he had prepared rukka ExPW10/A and had got registered FIR no.42/09 at PS Mukharjee Nagar through Ct. Shokeen Pal. He stated that on receipt of a copy of the said FIR along with original rukka, he had prepared site plan ExPW1/B at the instance of complainant Amarjeet Singh and had seized the offending bus vide seizure memo ExPW1/C. PW-10 SI Madan Pal further deposed that he had arrested the accused vide arrest memo ExPW1/D after personally searching the accused, vide personal search memo ExPW1/E. He supported the PW-1 on the factum of seizure driving license of the accused vide seizure memo ExPW1/F. He stated that he had also seized the photocopies of RC, Insurance and Permit of the offending bus vide seizure memo ExPW4/A and had taken the photographs of the spot by using his mobile phone. He further deposed that he had got the postmortem conducted on the body of the deceased and had thereafter handed over the body of the deceased to her relatives vide handing over memo ExPW10/B. He deposed that he had recorded statement of Ct. Shokeen Pal, PCR Incharge and other witnesses before filing the charge sheet.
In his cross examination by Sh. VP Malik, learned counsel for accused, PW-10 deposed that injured had been admitted at Hindu Rao Hospital by PCR official HC Ram Karan and the accused was present at Hindu Rao Hospital when he had reached the said hospital. He clarified that he had arrested the accused at the spot after visiting the hospital. He denied the suggestion that he had recorded the statement of the FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 8/22 complainant on the next day following the day of the occurrence of the alleged accident. He deposed that he had conducted inquiry from shopkeeper of Aggarwal Sweets who had told him that he was not aware about the occurrence of the alleged accident on account being busy in his work. PW-10 deposed that he had clicked the photographs of the spot from his own camera and had shown the position of the stationery bus in the site plan.
15. PW-11 Dr. Sharad Chaurasiya perused the postmortem report no.1600/09, dated 10.09.2009 of deceased Jamila Peter, ExPW11/A and correctly identified the signatures of Dr. John Verghese on the said report on the basis of his familiarity with the handwriting and signatures of the said doctor who was his former colleague at Hindu Rao Hospital prior to leaving services of the said hospital and whose current whereabouts were not known to Hindu Rao Hospital. The accused had not availed the opportunity given to him by the court to cross examine PW-11.
16. PW-12 Sh. RK Bansal deposed that on 09.02.2009 at about 4.21 PM, death summary ExPW12/A of one victim of road traffic accident, namely, Jamila Peter aged about 70 years medically examined vide MLC NO.922/09 had been prepared by Dr. Sandeep Aggarwal, Senior Resident and he had counter signed the said death summary at point A. He clarified that Dr. Sandeep Aggarwal used to work under his supervision prior to leaving services of the said hospital and his current whereabouts were not known to Hindu Rao Hospital. Sh. V.P Malik, learned counsel for the accused had not availed the opportunity given to him by the court to cross examine PW-12.
17. After the prosecution closed its evidence an opportunity was given to the accused to explain all the incriminating circumstances that had appeared against him in the testimonies of witnesses of prosecution in his statement u/s 313 FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 9/22 Cr.P.C. recorded on 22.09.2018. The accused had denied all the incriminating circumstances and materials that were put to him and had claimed that he had been falsely implicated in the present case. Accused had calimed that there was no negligence or rashness on his part and PW1 Amarjeet Singh had been planted as a witness in the present case as he knew the deceased prior to the occurrence of the alleged accident. However, no witness had been examined by the accused in his defence.
18. Final arguments have been heard from Ld. APP for State as well as from Sh. V.P Malik, learned counsel for the accused on 27.10.2018 and 19.11.2018.
19. Ld. APP for State has argued that prosecution has proved its case against accused by examining one material witness, that is, PW-1 Amarjeet Singh, who has fully supported the case of prosecution by deposing that the accused was driving his bus in a rash and negligent manner and had the same against one aged lady who was crossing the road Opposite Century Property at West Permanand Colony on Burari Road due to which, the said pedestrian lady, namely, Jamila Peter had sustained fatal injuries. Ld. APP for State had further argued that vide MLC of the victim / deceased Ex. PW6/A and her postmortem report ExPW11/A it has been proved that victim lady Jamila Peter had died due to cumulative effect of all injuries caused by blunt force impact sustained by her against a hard object or surface. Thus, learned APP for State has submitted that the ingredients of offences punishable u/s 279/304A of IPC have been proved against the accused and he deserves to be held guilty for the commission of said offences.
20. Per contra, Sh. VP Malik, learned counsel for accused has advanced the following arguments in defence of the accused. Firstly, learned defence counsel has argued that the prosecution has not led any reliable evidence to prove its case against the accused and the presence of the only eye FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 10/22 witness of the prosecution at the spot is doubtful, in view of the fact that the eye witness has made several mutually contradictory statements about having seen the accused at the spot, the date and the place of apprehension of the accused and the mode through which victim Jamila Peter was taken to hospital as well as about the source from which he had come to know about the fact that the injured lady had been taken to Hindu Rao Hospital.
21. Secondly, learned counsel for the accused has argued that the eye witness PW-1 Amarjeet Singh had not seen the accused at the spot of occurrence and has claimed to have seen the accused subsequently at the police station and therefore, PW-1 Amarjeet Singh has identified the accused to be the driver of the offending bus only at the instance of police officials who had shown the accused to him at the police station, however, instead of showing the accused to him IO should have made efforts to get test identification of the accused conducted through eye witness Amarjeet Singh in the presence of a Magistrate so as to ensure that PW-1 Amarjeeet Singh was infact capable of identifying the accused. Thus, the learned counsel for the accused has submitted that the failure of the IO to get a Judicial Identification Parade of the accused conducted through eye witness has been conducted by the IO has given a fatal blow to the case of prosecution. With these submissions learned counsel for the accused has prayed that benefit of doubt should be given to the accused.
22. I have considered the rival submissions of learned APP for State as well as of the learned counsel for the accused in the light of provisions of section 279/304A of IPC and the law of precedents.
23. In order to establish criminal liability of the accused for the commission of offences punishable u/s 279/304A of IPC, it is necessary for prosecution to establish that the accused was driving the offending bus on FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 11/22 a public way in a manner so rash and negligent as to endanger the human life and personal safety of others and while so driving his vehicle the accused had caused an accident resulting in fatal injuries to the victim of the said accident. In other words, firstly, prosecution had to prove beyond reasonable doubt that the accident in question has been caused by the offending vehicle being driven by the accused. Secondly, prosecution was also required to prove that the impugned vehicle was being driven in a rash and negligent manner at the time of occurrence of the accident in question. Thirdly, the prosecution was required to establish that the act of the accused of driving his vehicle rashly and negligently was the proximate and the most immediate cause of the fatal injuries sustained by the victim of the accident in question. In this context, sections 279 and 304A of IPC provide 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 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.
24. In the light of aforecited provisions of section 279/304A of IPC it can be safely concluded that in order to hold any person guilty for the commission of offences punishable under section 279/304A IPC firstly, it is imperative for prosecution to establish the identity of the offending vehicle FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 12/22 and its driver beyond reasonable doubt. Secondly, prosecution is required to establish that the offending vehicle was being driven in a rash and negligent manner by the accused. Thirdly, prosecution is expected to prove that the act of the accused of driving his vehicle in a rash and negligent manner was the proximate and most immediate cause of the injuries sustained by the victim of the accident in question. In other words, prosecution is expected to prove that the injuries detected on the person of the victim had emanated from the act of the accused of driving his vehicle in a rash and negligent manner.
25. In the present case one material witnesses, that is, PW1 Amarjeet Singh has correctly identified the bus in question as the offending vehicle and the accused as the person who was driving the said bus at the time of occurrence of the accident in question. However, there are several material contradictions and inconsistencies in the deposition made by the this eye witness which are enumerated herein below.
26. Firstly, in his examination in chief PW-1 Amarjeet Singh has stated that after he had returned to the spot with his car for taking the injured to hospital some person had informed him that the injured had already been taken to Hindu Rao Hospital by a PCR Van, however thereafter in his cross examination recorded on the same day, PW-1 had stated his friend Robin had told him that the injured had been taken to Hindu Rao Hospital. Subsequently, in his further cross examination recorded subsequently on 06.05.2016, he had again changed his stand and had stated that no one had specifically informed him that the injured lady had been taken to Hindu Rao Hospital and he had himself discovered this fact. Immediately, thereafter he had once again changed his stand and had stated that his friend Robin had telephonically intimated him about the removal of injured lady to Hindu Rao Hospital.
FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 13/22
27. Secondly, the only material witness of prosecution has made mutually contradictory statement about the place where he had seen the accused for the first time. In this context, it is pertinent to note that eye witness PW-1 Amarjeet Singh has not disclosed anywhere in his examination in chief as to whether he had seen the accused at the spot of occurrence of the alleged accident or not. In his examination in chief PW-1 had stated that upon reaching the Hindu Rao Hospital he had met the accused and the IO. However, in his cross examination conducted by learned defence counsel, PW-1 had again changed his stand by deposing that he had seen the accused at the police station on the next day following the date of occurrence of the alleged accident. In such circumstances it is prima facie evident from the deposition of PW-1 that he had not seen the accused at the spot and had perhaps seen the accused either at the hospital or at PS Mukharjee Nagar. Thus, there is a material contradiction in the testimony of PW-1 regarding the place where he had seen the accused for the first time. In this context, a perusal of the apprehension memo of the accused reveals that accused had been arrested a the spot in front of century property at West Permanand Colony on Burari road at 7.20 PM on the day of occurrence of the alleged accident, that is, 09.02.2009, that is on the day of occurrence itself. Therefore, the deposition of PW-1 Amarjeet Singh regarding the date, place and time of apprehension of the accused contains various contradictions and PW-1 has wrongly stated in his cross examination that the accused was apprehended at PS Mukharjeee Nagar on the next day following the date of occurrence of the accident in question.
28. Thirdly, it is pertinent to note that the conduct of eye witness is suspicious as he has stated that after seeing the accident he had immediately ran to his house to fetch his car for taking the injured lady to FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 14/22 hospital, however a prudent person present at the spot would try to help an injured person and would hire any private vehicle available nearby for taking the injured to hospital instead of going to his residence to bring his car.
29. Fourthly, it is pertinent to mention that PW-1 Amarjeet Singh, PW-4 Ct. Shokeen and PW-10 IO SI Madan Pal have made contradictory statements about, date, time and place of apprehension of the accused. In this context, it is pertinent to menton that PW-1 has deposed that accused was apprehended on the next day following the day of occurrence of the alleged accident, that is, 10.02.2009 whereas, PW-4 Ct. Shokeen Pal and PW-10 IO SI Madan Pal have categorically stated that accused was arrested from the spot of occurrence on the day of occurrence of the accident in question. The above mentioned contradictions in the testimony of PW-1 Amarjeet Singh and other witnesses have diminished the credibility to a great extent.
30. Fifthly, there is another lacunae in the statement of eye witness PW1 Amarjeet Singh who has not attributed any specific act of rashness and negligence upon the accused and has made a bald ascertion to the effect that the offending bus was being driven in a rash and negligent manner.
31. It has been time and again observed by the Hon'ble Supreme Court of India that material contradictions and improvements in the testimonies of the witnesses which effect the core of the prosecution case should not be brushed aside lightly and a careful scrutiny of improvement and embellishment in the testimonies of eye witnesses should be made so as to ascertain their credibility. Similar observations were made by the Hon'ble Supreme Court of India of the judgment passed in the case of Sunil Kumar Sambhudayal Gupta & ... vs State Of Maharashtra, Crl Appl No. 891 of 2004, decided on 11 November, 2010. Wherein the Hon'ble Apex Court has cautioned that the omissions in the FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 15/22 statement of any witness which amount to contradictions in material particulars and effect the root of the case would be sufficient to discredit the testimony of an eye witness. Relevant extract of the observations made in para 21 of the judgment are reproduced below :-
21. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited.
32. It was similarly observed by Apex Court in the case of Bihari Nath Goswami Vs Shiv Kumar Singh & Ors Crl. Appeal No. 1113 of 1997 decided on 24.02.2004 that exaggeration made by material witnesses while deposing in the court do not buy themselves weaken the case of prosecution, however, they impose a duty upon the court to carefully scrutinize the entire evidence led by prosecution to test the credibility of prosecution version of the case. Relevant extract of observations made by the Hon'ble Apex Court in the said judgement is reproduced below.
Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility.
33. In the light of afore cited opinion expressed by Hon'ble Supreme Court of India in the decided cases of Sunil Kumar Sambhudayal Gupta vs State Of Maharashtra (Supra) and Bihari Nath Goswami Vs Shiv Kumar Singh & Ors (Supra) It can be safely concluded that the material contradictions and improvement made by a witness while deposing in the court should not be brushed aside lightly and a court must carefully scrutinize the deposition of an eye witness so as to ascertain as to whether the contradiction in his or her testimony effect the core of the prosecution case or not before relying upon the FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 16/22 deposition of any material witness. In the present case PW-1 Amarjeet Singh has made several mutually contradictory statements about having seen the accused at the spot of occurrence or not, about the date, time and place of apprehension of the accused and the mode through which victim Jamila Peter was taken to hospital as well as about the source from which he had come to know about the fact that the injured had been taken to Hindu Rao Hospital. These and several other material contradictions in the testimony of PW1 detailed above make him unreliable witness whose sole testimony can not be relied for arriving at a finding of guilt against the accused.
34. Having arrived at a finding that PW-1 Amarjeet Singh is an unreliable witness whose testimony can not be relied upon for arriving at ta finding against the guilt against the accused without corroboration with other reliable evidence, I shall now consider the second argument advanced in defence of the accused whereby the learned defence counsel has submitted that the identity of the accused has not been duly proved as his test identification through eye witness was never conducted in the presence of a magistrate during the course of investigation of the present matter.
35. In this context, a perusal of the court record shows that PW-1 Amarjeet Singh has nowhere stated in his examination in chief or cross examination that he had infact seen the accused at the spot of occurrence. He has infact stasted in his examination in chief that he had seen the accused alongwith the IO at Hindu Rao Hospital. However, subsequently during his cross examination, PW-1 has stated that he had seen the accused for the first time on the next day following the date of occurrence at PS Mukharjee Nagar, where the accused was arrested in his presence. In such circumstances, it is difficult to ascertain as to whether eye witness PW-1 Amarjeet Singh had infact seen the accused at the spot of occurrence or not and there is a grave suspicion that accused might have been shown to PW-1 Amarjeet Singh by the police officials either at the PS MUkharjee Nagar or at Hindu Rao Hospital. In this context, it is pertinent to note that it is a FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 17/22 rule of prudence that accused person is not previously known to the eye witness then it is a rule of prudence that Test identification of the accused be got conducted through eye witness so as to confirm as to whether the eye witness had actually seen the accused at the time of commission of the alleged accident or not.
36. It is trite law that ordinarily test identification (TIP) of an accused should be conducted in cases where the accused was not previously known to the victim to lend assurance and credibility to the testimony of a witness, who identifies an accused previously not known to him for the first time in the Court after the commission of an offence. However, failure of the investigating officer to get a judicial TIP of accused conducted is not in itself fatal to the case of prosecution in all circumstances.
37. In this respect, Hon'ble Supreme Court of India has observed in the case of State Of Himachal Pradesh vs Lekh Raj And Anr [2000] l SCC 247 that it is a safe rule of prudence to look for corroboration of the sworn testimonies of witnesses in the Court as to the identity of the accused who were stranger to them, in the form of test identification proceedings. Although this rule of prudence was subject to just exceptions in cases where the Court was impressed by the testimony of a particular witness which appeared to be reliable to the Court without a test identification or other corroboration. However, the Hon'ble Aprx Court had cautioned that under ordinary circumstances where the witness of prosecution has not had the sufficient opportunity to see the offender for a considerable period of time or had not even interacted with the offender then prosecution must endeavour to ascertain as to whether the witness was infact capable of identifying the offender by subjecting the offender/accused to a Test Identification Parade conducted through eyewitness. Observations made by the Hon'ble Supreme Court of India in para of the judgment reproduced below are noteworthy in this context and are reproduced below ; FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 18/22 In her statement before the Trial Court the prosecutrix admitted that she had not known the respondent No. 2 earlier and further that no Identification Parade was conducted :by the investigating agency. She further admitted having seen the respondent No. 2 in the Court only after the day of occurrence. How the respondent No. 2 was named as an accused person is a mystery shrouded with doubts which has not been properly and sufficiently explained by the prosecution.
During the investigation of a crime the police agency is required to hold Identification Parade for the purposes of enabling the witness to identify the person alleged to have committed the offence particularly when such person was not previously known to the witness or the informant. The absence of Test Identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the Court regarding his involvement. Identification Parade may also not be necessary in a case where the accused persons are arrested at the spot. The evidence of identifying the accused person at the trial for the first time is, from its very nature, inherently of a weak character. This Court in Budhsen & Anr. v. State of U.P., [1970] 2 SCC 128 held that the evidence in order to carry conviction should ordinarily clarify as to how and under what circumstances the complainant or the witness came to pick out the particular accused person and the details of the part which he allegedly played in the crime in question with reasonable particularly. In such cases test identification is considered as safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them. There may, however, be exceptions to this general rule, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely without such or other corroboration. Though the holding of identification proceedings are not substantive evidence. Yet they are used for corroboration purposes for believing that the person brought before the court was the real person FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 19/22 involved in the commission of the crime. The identification parade even if held, cannot, in all cases, be considered as safe, Sole and trustworthy evidence on which the conviction of the accused could be sustained. It is a rule of prudence which is required to be followed in cases where accused is not known to the witnesses or the complainant.
38. Similar views were also expressed by the Hon'ble Supreme Court of India in the case of Dana Yadav @ Dahu & Ors vs State Of Bihar (2002) 7 SCC 295 wherein Hon'ble Supreme Court of India had reiterated that identification of an accused for the first time in the court by eyewitness who is stranger to the accused is inherently a weak form of evidence and such identification of the accused in the court should ordinarily be corroborated by a previous identification of the accused at the Test Identification Proceedings to lend credence to the sworn testimony of the witness recorded in the court. The observations made by Hon'ble Supreme of India in the judgment passed in this are reproduced below : It is also well settled that failure to hold test identification parade, which should be held with reasonable dispatch, does not make the evidence of identification in court inadmissible rather the same is very much admissible in law. Question is what is its probative value? Ordinarily identification of an accused for the first time in court by a witness should not be relied upon, the same being from its very nature, inherently of a weak character, unless it is corroborated by his previous Identification in the test identification parade or in any other evidence. The purpose of test identification parade is to test the observation, grasp, memory, capacity to recapitulate what a witness has seen earlier, strength or trustworthiness of the evidence of identification of an accused and to ascertain if it can be used as reliable corroborative evidence of the witness identifying the accused at his trial in court. If a witness identifies the accused in court for the first time, the probative value of such uncorroborated evidence becomes minimal so much so that it becomes, as a rule of prudence and not law, unsafe to rely on such a piece of evidence.
39. In the light of aforecited opinion expressed by Hon'ble Supreme Court of FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 20/22 India in the decided cases of State Of Himachal Pradesh vs Lekh Raj And Anr [2000] l SCC 247 and Dana Yadav @ Dahu & Ors vs State Of Bihar (2002) 7 SCC 295 respectively, I am of the considered opinion that test identification parade of an accused person is desirable in cases where the accused is not previously known to the witness particularly in cases where the accused is neither arrested from the spot nor his identity is sufficiently described in the complaint on the basis of which the FIR is registered. In the present case accused Ganesh was not previously known to the eye wintess, that is, PW1 Amarjeet Singh and PW1 Amarjeet Singh had nowhere stated in his deposition that he had infact seen the accused driver of the offending bus at the spot of occurrence on the day of occurrence of the alleged accident. He has made contradictory statement about the place where he had seen the accused for the first time as well as the place at which the accused was arrested and in such circumstances, there is no ground to arrive at a conclusive finding about the fact as to whether eye witness PW1 Amarjeet Singh had himself identified the accused or he had identified the accused at the instance of police officials who had shown the accused to the eye witness either at the police station or Hindu Rao Hospital. Therefore the identification of the accused for the first time in the court by the eye witness is not trustworthy as the accused was not previously known to eye witness and the presence of the eye witness at the spot is itself doubtful in view of the fact that he has made several mutually contradictory statements about the date, place and time when he had first seen the accused, about the date, time and place of apprehension and arrest of the accused as well as about the mode through which the injured had been taken to the hospital and about the person through whom he had received intimation about shifting of injured to Hindu Rao Hospital.
40. Besides, there is another lacunae in the statement of eye witness PW1 Amarjeet Singh who has not attributed any specific act of rashness and FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 21/22 negligence upon the accused and has made a bald ascertion to the effect that the offending bus was being driven in a rash and negligent manner.
41. Moreover, there is another short coming in the manner in which investigation has been conducted by the IO and it is pertinent to mention that PW1 Amarjeet Singh has categorically stated in his deposition that the offending bus was a school bus in which school teacher and children was present at the time of occurrence of the accident in question, however none of the school teacher or school children have been cited as a witness by the IO or examined by the prosecution in support of its case.
42. These and various other lacunae in the case of the prosecution detailed above have gave a fatal blow to the case of the prosecution. Hence, prosecution has failed to prove its case beyond reasonable doubt as the only eye witness of prosecution is not a reliable witness and has not attributed any specific act of rashness of negligence upon the accused. Accordingly, accused Ganesh is acquitted for the commission of offences under Section 279/304A IPC for want of sufficient incriminating evidence against him.
43. In compliance of provisions of section 437A of Cr.PC, accused is admitted to bail on furnishing bail bond in the sum of Rs.25,000/ with one surety in the like amount. It is clarified that the accused as well as his surety shall remain bound by the personal bond and surety bond respectively furnished by them for the next six months with effect from the date of entering into the bond. Accused seeks sometime for furnishing surety. Heard. Time granted.Previous bail bond furnished by the accused during trial and stands extended till 24.11.2018.
44. File be consigned to record room after compliance of necessary formalities. Digitally signed JASJEET by JASJEET KAUR KAUR Date: 2018.11.24 14:21:59 +0530 Announced in open court (Jasjeet Kaur) on 20.11.2018 ACMM (North): Rohini, Delhi FIR No. 42/2009 State Vs Ganesh PS Mukharjee Nagar 22/22