Delhi District Court
State vs . Mahesh Kumar. on 19 March, 2011
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Mahesh Kumar.
FIR No. 1081/99
U/s. 279/337/304A IPC
PS Mangol Puri, Delhi.
JUDGMENT
a) The sl. no. of the case : 324/2.
b) The Unique ID No. of the case : 02401R0131942000.
c) The date of commission of the : 17/12/1999.
offence
d) The date of institution of case : 09/06/2000.
e) The name of the complainant : Sh. Mukesh Kumar S/o
Sh. Shayamu.
f) The name & address of accused : Mahesh Kumar S/o. Ram Dass
R/o. WZ-799/2, Palam
Village, New Delhi.
g) The offence complained of : U/s.279/337/304A IPC.
h) The plea of the accused : pleaded not guilty.
i) The date of reserving the order : 10/03/2011.
j) The final order : Acquitted.
k) The date of such order : 19/03/2011.
THE BRIEF REASONS FOR THE JUDGMENT :
1. Brief resume of facts of the present case are that on 17/12/1999, at about 4.15 FIR No. 1081/99 PS Mangol Puri. 1 pm, at patri (Footpath) Outer Ring Road, Near F-block, Jhuggi Camp, Mangol Puri, Delhi, accused was found driving Tata Tempo No. DL-1LB- 0876 on public way in rash and negligent manner endangering human life and public safety of others and while so driving he scaled his tempo over the footpath and struck against one pedestrian Smt. Bharpai, causing simple injuries on her person, thereafter the tempo struck against one rehri stationed on the footpath and caused the death of one Vicky S/o Sh Shayamu, aged about 6 years, who was sitting on the said rehri at that time. The complaint was made to the police. After investigation, the challan was filed by the police.
2. Complete set of copies were supplied to the accused. After hearing arguments, notice was served upon the accused for trial of offences U/s. 279/337/304A IPC by my Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3. In support of present case, the prosecution examined PW.1 Smt. Bharpai, the injured in this case, who turned hostile to the prosecution case. PW Mukesh Kumar was examined as eye witness to the incident. He was inadvertently examined as PW1. PW Mukesh Kumar also turned hostile to the prosecution case. PW2 is Dhoom Singh, who is also one of the eye FIR No. 1081/99 PS Mangol Puri. 2 witness in this case and was accompanying PW Mukesh Kumar at the time of accident. He also did not support the prosecution case and was declared hostile. PW3 is Dr. Samir Pandit, who had conducted the postmortem of deceased Vicky and proved his detailed report vide Ex. PW3/A. PW4 is Rohtash, the superdar of the offending vehicle, who got released the offending vehicle on superdari vide Ex. PW4/A. PW5 is ASI Jai Singh, who had mechanically inspected the tempo in question and proved his report Ex. PW5/A. PW6 is Bhuminathan, one of the eye witness in this case, who had a tea shop near the spot of accident and deposed about the occurrence of accident.
4. Statement of accused was recorded separately U/s. 313/281 CrPC, wherein he pleaded innocence and false implication in this case, however, he did not wish to lead evidence in support of his defence.
5. I have heard arguments from Ld. APP for State, accused and also gone through the evidence and documents on record carefully.
6. To prove the offences U/s. 279/337/304A IPC, the prosecution has to prove that the accused was the same person who was driving the offending vehicle and due to his rash or negligent driving, the present accident occurred, in FIR No. 1081/99 PS Mangol Puri. 3 which the pedestrian Smt. Bharpai sustained simple injuries whereas the child Vicky got expired.
The prosecution has examined seven witnesses in total, out of which PW.1 Smt. Bharpai is the injured. However, she has not supported the prosecution case. She has deposed in her examination in chief that the happened three years back while she was returning from her duty at about 4.00 PM. She deposed that when she reached near the jhuggies and was walking on the patri, she felt a jerk from behind, fell down and became unconscious. She deposed that, thereafter, she did not know what happened. She was declared hostile and was cross-examined by the Ld. APP, wherein, she has not supported the prosecution case and stated that she did not know if she was hit by a tempo. She also deposed in cross examination that she did not know if one boy had come beneath the tempo in the said accident. She only stated that she was taken to SGM hospital as she had sustained some internal injuries on her both knees and other parts of her body.
7. The prosecution has also inadvertently examined one eye witness PW Mukesh Kumar as PW1, who has deposed in his examination that the incident happened about 3-4 years back but he did not remember the date. He deposed that he was going to toilet which was across the road at some distance. He further deposed that one Dhoom Singh was also with him and one maruti van FIR No. 1081/99 PS Mangol Puri. 4 came from right side. He deposed that one child was coming for looting a kite and he was looking upwards. The driver of the vehicle applied brake and blew the horn but the child did not listen to the horn and the vehicle struck against the child and the driver of the vehicle took the child to the hospital and he informed the family members of the child. This witness was also cross examined by Ld. APP in which he admitted that the vehicle which struck against the rehri was a tata tempo bearing registration No. DL-1LB-
876. He also admitted the suggestion of Ld. APP that the tempo driver drove his tempo on the left side of the patri and then struck the rehri and thereafter the pedestrian lady. He also admitted the suggestion of Ld. APP that the accused present in the court was driving the said tempo and was apprehended at the spot. He also admitted that the said tempo was being driven at a very fast speed and in a rash manner. This witness was also cross examined by the defence counsel wherein he stated that he did not remember the number of the vehicle which caused the accident. It is palpable from the testimony from this witness that either he did not witness the accident happening or he did not intend to state the true facts before the court because in his examination in chief, he gave a totally different version of facts, which did not match the prosecution case at all. However, in his cross examinations, conducted first by Ld. APP and then by Ld. Defence counsel, he admitted whatever suggestions were put to him in favour and against the prosecution case. Thus, FIR No. 1081/99 PS Mangol Puri. 5 his testimony has no probative value.
PW2 Dhoom Singh, who was accompanying PW1 Mukesh Kumar, deposed that the incident happened about 2-3 years back but he did not remember the exact date. He deposed that one rehri was parked by the side of the road and one child namely Vicky was sitting on the said rehri. PW2 further deposed that one tata tempo struck against the said rehri after scaling over the patri and after crossing the patri, the said tempo got entangled in the nala. He deposed that the child Vicky came beneath the tempo and was crushed under the wheel of the tempo and remained under the wheel for half an hour. He deposed that 20/25 persons came and pushed the tempo backwards and removed the child from beneath the wheel of tempo. He deposed that he could not identify as to who was driving the tempo. This witness was also declared hostile and was cross examined by the Ld. APP. He admitted in his cross examination by Ld. APP that the said "truck" was being driven at a very fast speed and in a rash manner. He failed to recognize the accused, present in the court, as the person who was driving the aforesaid tempo. The registration number of the tempo was not put to this witness; neither was the tempo got identified by this witness in the court.
8. Regarding the postmortem, the prosecution has examined PW3 Dr. Samir Pandit, Medical Officer, SGM Hospital who has proved the postmortem report Ex. PW3/A and has opined that all the injuries were ante mortem in FIR No. 1081/99 PS Mangol Puri. 6 nature and the cause of death was coma and head injury, subsequent to road side accident.
9. PW4 is Rohtash, who had got released the offending tempo on superdari from the court. He deposed in his examination in chief that he had already sold the said vehicle 15-16 months prior to the accident. He also deposed that he did not know who was driving the offending vehicle on the date of accident. He was also declared hostile and despite his cross examination by Ld. APP, he did not support the prosecution case.
10.The prosecution has also examined PW6 Bhuminathan, as an eye witness. He deposed that the incident happened on 17.12.1999 when he was a tea seller at F-Block, MangolPuri and he was present at his tea shop at the time of accident. He further deposed that one Mukesh, Anita and Sunny were also sitting at his shop and were taking tea and one tempo no. 876 came at a fast speed and it suddenly took a turn and scaled over the footpath and struck against the rehri of Sunny and one child came under the tempo of the accused. He further deposed that they with the help of public persons removed the boy beneath the tempo and took him to SG hospital but that child expired and his postmortem was got conducted. He further deposed that one lady also sustained injuries in the said accident. He deposed that police came at the spot and conducted the proceedings and recorded his statement and seized the rehri and tempo vide Ex. PW1/B and Ex. PW1/C. This witness was examined FIR No. 1081/99 PS Mangol Puri. 7 by Ld. Defence counsel, wherein he deposed that his statement was recorded thrice by the IO on the day of accident. He admitted that no investigation was got conducted by the IO at the spot and all the inquiries were made from him in the hospital. Incidentally, the offending vehicle was not shown to any of the prosecution witnesses for identification.
11.The prosecution failed to examine the IO of the case despite repeated opportunities. No PW, except PW6 Bhoominathan had identified the accused as the driver of the offending vehicle. Even so, PW6 has not deposed that the accused was driving the tempo rashly or negligently. The PW6 also referred to one Mukesh, Anita and Sunny as the witnesses of the incident but they were not examined by the prosecution in support of this case. The direction of movement of the offending tempo has also not been described by PW6. This witness has also not narrated the detail of the incident in correct sequence because, as per prosecution case the offending tempo had first hit the pedestrian lady Smt. Bharpai and then it had hit the rehri on which the child Vicky was playing. Thus, the testimony of this witness also cannot form the basis of conviction of the accused.
12.In these circumstances, the prosecution has failed to prove the rashness or negligence of the accused while driving the offending vehicle, and has failed to prove its case beyond reasonable doubt. Hence, I hereby acquit the accused for the offences he has been charged with. He is on bail. His bail FIR No. 1081/99 PS Mangol Puri. 8 bond cancelled. Surety discharged. File be consigned to Record Room.
ANNOUNCED IN THE OPEN
COURT ON 19/03/2011. (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 + 1) Delhi
FIR No. 1081/99
PS Mangol Puri. 9