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Delhi District Court

State vs . Naseem Ahmed on 16 February, 2013

             IN THE COURT OF MS. SAUMYA CHAUHAN
     METROPOLITAN MAGISTRATE-07 (SOUTH EAST), SAKET COURTS,
                            DELHI

FIR No.                                       : 391/2004
PS                                            : HNDIN
Offence complained of                         : 279/304A IPC
Date of commission of offence                 : 07.07.2004
Unique Case ID No.                            : 02406R0991162004
State vs. Naseem Ahmed
S/o Sheikh Nasirullah
R/o House No. 124,
Sarai Kale Khan
New Delhi
                                                                .............. Accused

Sh. Algu
S/o Sh. Sidhari
R/o Indira Camp
G-58, Jhuggi Colony
Sun Light Colony, Delhi
                                                                ............. Complainant
C C No.                                   : 704/1/10
Date of Institution                       : 16.09.2004
Plea of accused                           : Pleaded not guilty.
Date of reserving judgment/ order         : 16.02.2013
Date of pronouncement                     : 16.02.2013
Final Order                               : Acquitted


        BRIEF STATEMENT OF THE REASONS FOR THE DECISION
                                    ALLEGATIONS
              The story of the prosecution is that on 07.07.2004 at about 11.00
PM at flyover Sarai Kale Khan, Ring Road, near Petrol Pump, New Delhi, falling
within the jurisdiction of Police Station HNDIN, the accused Naseem Ahmed
was driving a bus bearing number DL1PA 2768 in a rash and negligent manner


FIR No. 391/2004      State Vs. Nasim Ahmed                  Page No. 1 / 7
 and while driving the said vehicle in such a manner, the accused hit a rehri of
Arvind and caused his death. Thus, accused Naseem Ahmed is alleged to have
committed offence punishable under section 279/304A IPC.
                                           FIR
              On the basis of the said allegations and on the complaint of the
complainant Algu, an FIR bearing number 391/2004 under section 279/304A
IPC was lodged at Police Station HNDIN.
                                     CHARGE
              After investigation, charge-sheet under section 173 Cr.P.C was
filed on 16.09.2004. The accused was summoned to face trial and he was
supplied the copy of charge sheet as per section 207 Cr.P.C.
              On the basis of the charge-sheet, a notice for the offence
punishable under section 279/304A IPC was framed against the accused
Naseem Ahmed, to which he pleaded not guilty and claimed trial on
27.07.2006

.

JUDICIAL RESOLUTION To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows:-

(1)That the accident actually took place.

(2)That the accident took place due to rash and negligent driving. (3)That the accused was the person who was driving the vehicle at the relevant time.

In order to prove the above said allegations, the prosecution has cited 11 witnesses, of which one Algu is the eye witness. All the other remaining witnesses are formal witnesses and none of them is a witness to the accident, sufficient only to prove that the said Arvind had expired and that an FIR with respect to the said incident was lodged on the same day at PS- HNDIN vide FIR bearing No. 391/2004.

The eye-witness Algu was summoned to give evidence in the court. He deposed that on 07.07.2004 he was running a hawker shop of ice-

cream at Sarai Kale Khan. On that day after selling the ice-cream, he reached near petrol pump, Sarai Kale Khan. He deposed that his nephew after selling the ice-cream was going to his house at Indira Camp along with his rehri. Suraj and Surender were also with him. He deposed that one bus on route no. 427 came from backside which was being driven by the accused without blowing horn or giving indication. He took turn towards rehri and hit against his nephew Arvind. The rehri also got crushed and the bus ran over on the lower abdomen of body of Arvind. It was about 10.30 pm. He deposed that conductor side of the front wheel crushed Arvind. His nephew Arvind received serious injuries. It was very busy road. PCR reached there and his nephew was taken to the hospital. Police came there and recorded his statement which is Ex. PW2/A. Public gathered there. The accused was arrested on 09.07.2004 in his presence vide memo Ex. PW1/C. His personal search was conducted vide memo Ex. PW1/D. However, during cross examination, witness Algu deposed that he is illiterate so he did not know the route number and registration number of the bus. He deposed that he cannot tell if the bus in question was a private bus or DTC bus or a chartered bus. He deposed that he had not seen the driver of the bus at the time of alleged accident. He deposed that he had never seen the driver of the bus either at the place of accident or at police station. He deposed that he had never gone to the police station with regard to this case, nor police had ever called him at the police station with respect to the present case. He further deposed that the police had not met him at the place of incident but met him at the hospital. Thereafter, police never met him except on one occasion when he appeared in the court at Patiala House Court.

He further deposed that the Police had taken his statement and signatures at the hospital. He could not tell the number of papers on which police had obtained his signature. He deposed that he only gives his thumb impression and he does not make signatures, and the police had forcefully made him to write something as his signatures. He denied the suggestion that accident had not taken place as stated by him. He voluntarily deposed that FIR No. 391/2004 State Vs. Nasim Ahmed Page No. 3 / 7 since he came to know about the accident that is why he had reached at medical hospital. He admitted that he had not seen the accident but he heard about the same and after hearing this he reached at hospital. He denied the suggestion that he had given his examination in chief as he was tutored by the police in this regard.

The said witness was re-examined by the Ld. APP for State. During re- examination, he admitted that he had given his statement before the court in the Patiala House court. He deposed that police personnel was also there and they told him to reply to the questions put to him. Witness was asked whether he had given his true statement on 16.02.2013 or on 11.08.2008 when his examination in chief was recorded. To this the witness replied that he stated the truth on 16.02.2013. He voluntarily deposed that he is very troubled and he had received fractured in his leg at a time of accident.

A specific court question was put to the witness that whether he could identify the accused present in the court as the driver of the bus by which the accident was caused. However, the witness failed to identify the accused. He has denied the suggestion that he had seen the accident of his nephew Arvind happening. He has denied the suggestion that he had seen the offending bus and the driver of the said offending bus at the time of accident. He has denied the suggestion that he had identified the driver of the offending bus in presence of police and told the police about the identity of the accused.

As the complainant/sole eye witness has turned hostile, denying the entire prosecution story, carrying on with further prosecution evidence and recording testimonies of formal witnesses would have become only a futile exercise, and wastage of judicial time, resources and energy.

Since the sole eye witness has turned hostile, the prosecution can never prove that injuries caused to him in the present case was a result of an act of accused and that the accident was caused by the vehicle bearing number DL1PA 2768, which was being driven by the accused Naseem Ahmed in a rash and negligent manner. The testimony of all the remaining witnesses together is FIR No. 391/2004 State Vs. Nasim Ahmed Page No. 4 / 7 insufficient to prove the allegations against the accused qua offences u/s 279/304A IPC.

The case is at the stage of PE, since there is nothing incriminating against the accused for proceeding further and recording the statement of remaining formal witnesses would be futile and wastage of judicial time, resources and money.

In "P. Ramachandra Rao v. State of Karnataka" AIR 2002 SUPREME COURT 1856 ( Coram : 7 S. P. BHARUCHA, C.J.I., S. S. M. QUADRI, R. C. LAHOTI, N. SANTOSH HEGDE, DORAISWAMY RAJU, Mrs. RUMA PAL, A. PASAYAT, JJ.) the Honorable Supreme Court while commenting upon the right to speedy justice observed:

"22. Is it at all necessary to have limitation bars terminating trials and proceedings? Is there no effective mechanism available for achieving the same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest of the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally for every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Courts finds the adjournment of the same beyond the following days to be necessary for reasons to be recorded. Explanation-2 to Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases; and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts. Section 258, in Chapter XX of Cr.P.C., on Trial Summons

- cases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is FIR No. 391/2004 State Vs. Nasim Ahmed Page No. 5 / 7 almost never used by the Courts. In appropriate cases, inherent power to the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercised their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted." (emphasis supplied) Accordingly, in the opinion of the court, in the light of the above cited judgment, the court needs to exercise its power under section 258 Cr.P.C qua offences u/s 279/304A IPC to make the ends of justice meet, and stop the proceedings against the accused.

Final Order Since the eye witness Algu has turned hostile and in the light of the aforesaid discussion and cited judgments, the court while protecting the right of the accused to have speedy justice invokes the power conferred upon it under s.258 of Cr.P.C to stop the proceedings against accused Naseem Ahmed qua offences u/s 279/304A IPC and hereby releases the accused Naseem Ahmed under sections 279/304A IPC, which shall have the effect of acquittal.

As per section 437-A of the Cr.P.C, as inserted vide the Amendment Act, which came into force on 31.12.2009, the personal bond and the surety bond of the accused as well as surety shall remain intact for a period of six months from today.

File be consigned to Record Room.

ANNOUNCED ON 16.02.2013 (SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 16.02.2013 Certified that this judgment contains 7 pages and each page bears my signatures.

(SAUMYA CHAUHAN) MM-07(South East)/ Saket/ 16.02.2013 FIR No. 391/2004 State Vs. Nasim Ahmed Page No. 7 / 7