Delhi District Court
Sate vs . Nishar on 6 August, 2014
FIR No. 256/01
PS Narela
U/s. 279/337/304A IPC
Sate Vs. Nishar
IN THE COURT OF SH. SANDEEP GUPTA
METROPOLITAN MAGISTRATE: ROHINI COURT: DELHI.
FIR No. 256/01
PS Narela
U/s. 279/337/304A IPC
Sate Vs. Nishar
Date of Institution of case:- 24.04.03
Date of Judgment reserved:- 06.08.14
Date on which Judgment pronounced:- 06.08.14
JUDGMENT
Unique ID no. :02401R0271192003
Date of commission of offence :19.07.2001
Name of complainant :Sh. RamLal
S/o Sh. Jagannath, R/o
74/2, Master Colony, Mata Wali
Gali, Narela, Delhi.
Name and address of accused :Nishar
S/o. Sh. Dilawar Khan,
R/o H.No.21, Vill. Kureni,
Narela, Delhi.
Offence complained of :279/337/304A IPC
Plea of accused :Pleaded not guilty
Final order :Acquitted
Date of order :06.08.2014
BRIEF REASONS FOR DECISION:
The story of the prosecution in brief is as under:-
1. The accused Nisar S/o Sh. Dilawar Khan has been sent to face trial under Section 279/337/304A Indian Penal Code (hereinafter called as IPC) on the allegations that on 19.07.01 at about 9:10 a.m., at near neer Tara Farm house, Ram Dev Marg, Page No.1 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar Narela, Delhi he was found driving the vehicle i.e TSR bearing registration no. HR 46A 4234 in rash and negligent manner and caused simple injury on the person of Rampal, Ram Chander, and Gopal and caused death of Hari Om @ Dinesh (not amounting to culpable homicide) and on the basis of the said allegations, the present FIR bearing no. 256/01 was registered at Police station Narela.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C) and a charge is framed against the accused for the offence U/s. 279/337/304A IPC was served upon the accused on 26.06.04, to which he has pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined 13 witnesses.
4. PW1 is Sh. Rohtash, S/o Sh. Daulat Ram, R/o Village Nahari, Haryana, Sonepat. He deposed that he was the owner of TSR HR-46-4762 and his driver was Ajay Kumar but he did not know if any accident was caused by his driver or not. He further deposed that he was not called by the police for inquiry. Thereafter, he got released his TSR on superdari seized by the police. During his cross examination by Ld. Defence counsel he admitted that he was told by the driver that his TSR was not involved in the accident but somebody had hit their TSR when it Page No.2 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar was parked on the side of the road.
5. PW2 is HC Sarla, No. 247 NW, PS Alipur. She is the Duty Officer who on receipt of rukka from Ct. Lalit through HC Rajpal, registered the present FIR no. 256/01, which she has exhibited as Ex. PW 2/A and the endorsement on rukka Ex.PW2/B. She has not been cross examined by accused despite given opportunity.
6. PW3 is Ram Chander S/o Sh. Piarya Lal R/o V& P.O. Halal Pur, District Sonepat. He deposed that he was working at Halalpur Branch, Sonepat as Gunman. He further deposed that he did not know anything about the present case and he appeared on receiving the summons of the court.
7. This witness was cross examined by Ld. APP after seeking permission from the Court as he was resiling from his previous statement. During his cross examination by Ld. APP, he was confronted with statement mark A recorded u/s 161 Cr.P.C of portion A to A1 to which he denied having made such type of statement. He further denied the suggestion that on 19.07.01 he was travelling in a TSR from Singhu Border to his village and met with an accident with TATA 407 and due to negligent driving of the driver of the TSR this accident took place. He further denied the suggestion that he sustained multiple injuries on his head or he was deposing falsely being won over by the accused. He was not cross examined by the accused despite given opportunity.
8. PW4 is Sh. S.N. Bhardwaj, Medical Record Clerk, BJRM Hospital. He had brought the summoned record pertaining to the postmortem examination report no.274 dated 20.07.01 Page No.3 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar conducted on the body of Hari Om @ Dinesh. He further deposed that postmortem on the body of the deceased was conducted by Dr. Neeraj Kumar Sinha who has left the services of the hospital. The postmortem examination report is Ex.PW4/A. He identified the signatures of Dr. Neeraj Kumar Sinha. He has not been cross examined by the accused despite given opportunity.
9. PW5 is Gopal S/o Sh. Ajab Singh, R/o Village Nahri, Distt. Sonepat, Haryana. He deposed that about 6-7 years back, exact date he did not remember, he had met with an accident at Narela. He further deposed that at the time of accident he was travelling in a three wheeler tempo, its registration number I did not remember. He further deposed that he did not know how accident occurred or how he sustained injury or he did not know whether his statement was recorded by the police. This witness was cross examined by Ld. APP after seeking permission from the Court as he was resiling from his previous statement. During his cross examination by Ld. APP, he deposed that he did not know whether he made any statement to the police or not. He denied the suggestion that he was deposing falsely as he was won over by the accused persons. He has not been cross examined by accused despite given opportunity.
10. PW6 is Sh. Jag Narain Yadav, S/o Sh Rati Lal Yadav, R/o Village Lawani, PS Behra, Distt. Darbhanga, Bihar. He deposed that on 19.07.01 he received the information regarding the death of his known person namely Hari Om i.e. brother of Page No.4 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar Birender. Thereafter, he alongwith his friend Birender went to BJRM Mortuary and joined investigation with police officials and identified the dead body of Hari Om. Thereafter, IO recorded his statement Ex.PW6/A. He has not been cross examined by Ld. Defence counsel despite given opportunity.
11. PW7 is Sh. Birender Yadav S/o Sh. Jeeva Yadav @ Chaudhary Yadav, R/o Village Lawani, PS Behra, Distt. Darbhanga, Bihar. He deposed that on 19.07.01 he received the information regarding the death of his brother Hari Om Thereafter, he alongwith his friend Jag Narain went to BJRM Mortuary and joined investigation with police officials and identified the dead body of Hari Om. Thereafter, IO recorded his statement Ex.PW7/A. After postmortem he received the dead body of his brother Hari Om vide handing over memo Ex.PW7/B. He has not been cross examined by Ld. Defence counsel despite given opportunity.
12. PW8 is HC Shardhar Nand, No.133 SW, PS Lajpat Nagar, Delhi. He deposed that on 19.07.01 on receiving DD no. 17B he alongwith HC Rajpal Singh reached at the spot i.e. near Tara farm house, Ramdev Marg, Narela, Delhi and found two TSR number HR-46A-4234 and another TSR did not bear any registration number and both were in accidental condition. No eye witness was present at the spot. He further deposed that meanwhile, Ct. Lalit reached at the spot and gave DD no.5A to IO HC Rajpal Singh. Thereafter, he remained at the spot and IO alongwith Ct. Lalit went to the doctor Mukesh Aggarwal Hospital, Page No.5 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar Lampur road, Narela. Thereafter, IO took into possession both the TSR vide memo Ex.PW8/A and Ex.PW8/B. Thereafter, site plan was prepared. Thereafter the case property was deposited at Malkhana. Thereafter, IO recorded his statement. He was cross examined by Ld. Defence counsel.
13. PW9 is Ct. Satish Kumar, No.912, Crime, AKS, Sector 16, Rohini, Delhi. He deposed that on 27.07.01 he alongwith IO SI Sanjay Dahiya joined the investigation of the present case and reached at Dr. Mukesh Aggarwal hospital, Lampur road, Narela, Delhi for the search of accused, where doctor told them that accused Nishar S/o Sh. Dilawar Khan had been discharged. Thereafter, they reached at the house of accused i.e. H.No.21, Village Kureni, Narela, Delhi. Thereafter, accused Nishar was arrested and personally searched vide memo Ex.PW9/A and Ex.PW9/B. Thereafter driving licence of accused was taken into possession vide memo Ex.PW9/C. Thereafter, accused was released on bail. He correctly identified the accused.
14. During his cross examination by Ld. Defence counsel he denied the suggestion that he had not visited the house of accused or that accused was not arrested in his presence or that he was deposing falsely. He further denied the suggestion that all the documents were prepared while sitting at the PS.
15. PW10 is SI Lalit Kumar, No. D-4096, PS Bhalswa Dairy. He deposed that on 19.07.01 duty officer handed over him DD no.5A regarding the admission of some patients in Dr. Mukesh Aggarwal nursing home due to accident and one person Dinesh Page No.6 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar @ Hari Om had died in the accident. Thereafter, he took the same at the spot i.e. near Neer Tara Farm House, Ramdev Marg, Narela and handed over the same to IO /HC Rajpal Singh. Thereafter, IO left Ct. Shardhanand at the spot and he alongwith IO reached at Dr.Mukesh Aggarwal Nursing home. Thereafter, IO collected MLC of injured persons which was handed over to him for registration of FIR. After getting the case registered he reached at the spot and handed over the copy of FIR and original rukka to SI Sanjay Dahiya. Thereafter, he alongwith SI Sanjay Dahiya reached at Dr. Mukesh Aggarwal nursing home. Thereafter, IO prepared the inquest papers of the dead body and he deposited the dead body at BJRM hospital mortuary for postmortem. After postmortem, dead body was handed over to the relatives of the deceased vide handing over memo Ex.PW7/B.
16. During his cross examination by Ld. Defence counsel he deposed that he received the DD entry regarding the admission of some injured at Dr. Mukesh Aggarwal Nursing home. He further deposed that he did not know whether any witness were present at the spot. He denied the suggestion that all the documents were prepared while sitting at the PS.
17. PW11 is SI Sanjay Kumar, No.184/D, PS Shalimar Bagh, Delhi. He is the 2nd IO of the case who deposed about the investigation conducted by him. He deposed that on 19.07.01 further investigation of the present case was handed over to him. He alongwith Ct. Lalit reached at Mukesh Aggarwal hospital, Page No.7 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar Lampur road, Narela. Thereafter, he came to know that around 5 injured persons were admitted in the hospital and one person namely Hari Om @ Dinesh was found to be dead. Thereafter, HC Rajpal also informed him that driver of offending vehicle i.e. TSR no.HR 46A 4234 was also admitted in the hospital. Thereafter, he prepared the inquest papers of the dead body of Hari Om @ Dinesh and sent the dead body to BJRM hospital mortuary through Ct. Lalit. Thereafter, he alongwith HC Rajpal reached at the spot and found two TSR No. HR-46-4234 and another Sitara TSR whose registration number was not displayed. Ct. Shardhanand was also present at the spot. Thereafter, he called the photographer at the spot who took the photographs of the spot from different angles. Thereafter, he prepared the site plan Ex.PW11/A and TSR were taken into possession vide seizure memo Ex.PW8/A and ExPW8/B. Thereafter, both the TSR were sent to PS through Ct. Shardhanand. He further deposed that thereafter, he alongwith HC Rajpal went to hospital and recorded the statement of injured persons. Thereafter, both the TSR were deposited in the Malkhana. He further deposed that on 20.07.01 postmortem of the dead body of deceased Hari Om was conducted at BJRM mortuary. He further deposed that dead body was identified by his relatives Jag Narain and Bijender Yadav vide identification memo Ex.PW6/A and after postmortem, dead body was handed over to them vide handing over memo Ex.PW7/B. He further deposed that thereafter on 21.07.01 mechanical inspection of both the vehicles was conducted vide Page No.8 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar mechanical inspection report Ex.PW11/B and Ex.PW11/C. He further deposed that on 27.07.01, accused Nishar was arrested from his house vide arrest memo Ex.PW9/A and his personal search was conducted vide memo Ex.PW9/B. Thereafter his driving licence was seized vide memo Ex.PW9/C. Thereafter, on producing surety, the accused was released on bail. He further deposed that TSR Sitara bearing registration (later revealed) was released on superdari to its registered owner Rohtash S/o sh. Daulat Ram vide superdignama Ex.PW11/D. Thereafter, completion of investigation chargesheet was prepared and filed in the court.
18. During his cross examination by Ld. Defence counsel he deposed that he admitted that the fact that the HC Rajpal informed him that driver of the offending vehicle i.e. TSR no. HR 46A 4264 was also admitted in the hospital is not mentioned in the FIR. He further deposed that at the time of reaching at the spot no public persons were found there and due to this he did not make any inquiry from any public person. He further deposed that he recorded the statement of Ram Chander, Gopal and other persons but he did not remember their names. They were the eye witnesses of the present case. He admitted that he never recorded the disclosure statement of the accused Nishar. He denied the suggestion that the had not investigated the case properly or that he had not visited the spot or that he had falsely implicated the accused in the present case.
19. PW12 is Dr. Mukesh Aggarwal, Medical Officer, Dr. Page No.9 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar Mukesh Ortho Hospital, Narela, Delhi. He deposed that on 19.07.01 patient Ramlal S/o Sh. Jagan Nath aged about 45 years, Ramchander S/o Sh. Pyare Lal, aged about 52 years and Nishar Ahmed S/o Sh. Dilawar, aged about 30 years, Gopal S/o Sh. Ajab Singh, aged about 30 years and Hari Om @ dinesh S/o Sh. Chaudhary Yadav aed about 27 years all male had come to his hospital. He deposed that he examined all the patients and gave his opinion regarding nature of injuries. He further deposed that patient Rampal, Ramchander and Gopal sustained simple injury and patient Hari Om @ Dinesh and Nishar Ahmed sustained grievious injury. MLC's of all the injured were prepared which are Ex.PW12A to Ex.PW12/E.
20. During his cross examination by Ld. Defence counsel he deposed that he had not mentioned the alleged history of injuries of the patient. He admitted that after seeing the MLCs he could not tell how the patients received the injuries.
21. PW13 is Gulab S/o Sh. Chain Singh, R/o Village Saboli, Distt. Sonepat, Haryana. He was the registered owner of TSR no. HR-46A-4234 and got his TSR released on superdari form PS Narela. The photographs of the said TSR were on record and same were exhibited as P1. He correctly identified the accused. During his cross examination he deposed that he did not know who was driving the aforesaid TSR at the time of accident as at that time, 4-5 drivers used to run his aforesaid TSR.
22. It is a matter of record that after the examination of all the material witnesses vide order dated 05.09.2013, prosecution Page No.10 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar evidence was closed and thereafter, statement of accused was recorded separately, in which he has submitted that he is innocent and has been falsely implicated in the present case and simultaneously stated that he does not want to lead defence evidence and final arguments were heard.
23. I have heard the arguments advanced by Ld. APP for the state as well as the accused and perused the record.
24. In the present matter, the accused has been charged for the offences punishable under Section 279/337/304A IPC. To prove a case U/s. 279/337/304A IPC against the accused, the prosecution has to prove the following facts:-
a) that the accused was driving the vehicle i.e TSR bearing registration no. HR 46A 4234.
b) that the accused was driving the said vehicle in rash and negligent manner.
c) that while driving the said vehicle in the aforesaid manner, he caused simple injuries on the person of Sh. Rampal, Ram Chander and Gopal and caused death of Hari Om @ Dinesh (not amounting to culpable homicide).
25. In the present matter, the eye witnesses PW3 Ram Chander and PW5 Gopal have turned hostile and they have deposed nothing culpable against the accused. On the contrary, they have stated that they are not the eye witnesses of the accident. The said witnesses have also remained conspicuously silent about the manner in which the offending vehicle was being driven, meaning thereby, they have failed to utter even a single Page No.11 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar word regarding the alleged rash or negligent act of the accused. It is also noteworthy that one of the other eye witnesses cited by the prosecution namely Ram Pal remained unserved and untraceable despite repeated efforts and issuance of summons several times. Hence in nutshell, there is nothing incriminating/inculpatory in the evidence of the eye witnesses against the accused on record. All other witnesses are formal in nature whose no amount of evidence can tantamount to conviction of the accused. Hence, in these circumstances, there is no evidence on record to connect the accused with the offence for which he has been charged with.
26. Hence, in view of the discussion made above and after scanning the entire evidence, I have no hesitation to hold that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Accordingly, benefit of doubt is given to accused Nishar & he is acquitted of the said offences U/s. 279/337/304A IPC.
27. File be consigned to Record Room after necessary compliance.
(SANDEEP GUPTA) Metropolitan Magistrate Rohini/Delhi Announced in open court today, Dated 06 August, 2014 Page No.12 of 12 FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar FIR No. 256/01 PS Narela U/s. 279/337/304A IPC Sate Vs. Nishar 06.08.2014 Present : Ld. APP for the State.
Ld. counsel for the accused with accused Nishar on bail. I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, accused Nishar is acquitted of the said offence U/s. 279/337/304A IPC.
At the request of accused Nishar, his previous bail bond is extended in terms of Section 437 A of Cr.P.C.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi Page No.13 of 12