Delhi District Court
Fir No.345/05 Ps-Sarita Vihar State vs Shakil Ahmad Page No. 1 Of 15 on 10 October, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE
VS
SHAKIL AHMED
FIR No. : 345/2005
U/s. 279/304A IPC
PS : Sarita Vihar
A. Cr No. : 86746/2016
B. Date of Institution : 06.03.2007
C. Date of Commission of Offence : 22.07.2005
D. Name of the complainant : Atul Kumar
E. Name of the Accused : Shakil Ahmad
S/o Sh. Abdul Shakoor
R/o H. No. 861
Gali No. 22
Okhla Vihar
F. Offences complained of : 279/304A IPC &
U/s 132/134 M. V. Act
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not Reserved.
I. Final order : Acquitted.
J. Date of such order : 10.10.2018.
FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 1 of 15
JUDGMENT
Brief Facts :-
1. It is alleged by the Prosecution that on 22.07.2005 at about 09:00 AM, accused was driving RTV bearing no. DL-1VA-1411 at in a manner so rash and negligent so as to endanger human life and personal safety of others or to be likely to cause hurt or injury to any person. While diving the aforesaid vehicle in the aforesaid manner, he hit against one cyclist and cause death of Kishore Kumar. The accident took place at Agra Cancel road, Near Kat Ka Pul, in front of Madanpur Khadar Village. After conclusion of investigation, the accused was chargesheeted for offences punishable U/s 279/304A IPC & U/s 132/134 M. V. Act.
Cognizance taken accordingly and accused was summoned.
2. Upon his appearance, the accused was supplied with the copy of Chargesheet and documents in compliance of section 207 Cr.P.C. Thereafter, the matter was listed for arguments on charge.
3. After hearing, prima facie offences punishable U/s FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 2 of 15 279/304A IPC and U/s 132/134 M. V. Act were found to made out against the accused. Notice U/s 251 CrPC was framed accordingly. The accused pleaded not guilty and claimed trial. Accordingly, matter was listed for prosecution evidence.
4. To bring home the guilt of accused, prosecution examined 7 witnesses. Vide separate statement recorded U/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, the accused admitted the genuineness of
(i) TIP dated 03.08.05 conducted by Sh. Dig Vijay Singh, the then Ld. MM (ii) Postmortem Report no. 852/05 dated 23.07.2005 of deceased Kishore Kumar Singh prepared by Dr. Raghvendra Kumar, AIIMS Hospital (iii) MLC No. 91875/05 dated 22.07.05 of injured Kishore Kumar Singh prepared by Dr. O. P. Singh, AIIMS as Ex. C1 to Ex. C2 respectively and copy of FIR which is Ex.C3. Prosecution evidence was closed and the matter was listed for recording of statement of accused U/s 313 CrPC.
5. In his statement U/s 313 Cr.PC, accused denied the prosecution case and pleaded innocence. He stated that he is innocent and Police has falsely implicated him in the present case. Despite opportunity accused did not produce any witness in FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 3 of 15 defence. Thus, DE was closed on his statement dated 13.07.2018. Thereafter, matter was listed for final arguments.
6. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully.
7. The argument of Ld. APP is that there is enough material on record to substantiate the case against the accused. Ld. Defence counsel on the other hand has argued that the accused has been wrongly associated with the alleged offence and as such the accused is entitled to acquittal in the present case. Relevant Law:-
The settled propositions of criminal are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 4 of 15 criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
8. Sections 100 Clause 4 & 5 Cr.P.C: Requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Minor contradictions do not effect the credibility of the prosecution case.
9. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 5 of 15
10. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Law relating to Evidentiary value of testimony of Police Officers:
11. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.
Definition of rashness and negligence
12. What is rashness or negligence has been defined in FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 6 of 15 relevant paragraphs of the judgment of Ravi Kapur Vs State of Rajasthan 2012(7) SCALE354 which are quoted below:
Para11- "Negligence means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence."
B. Para 17- "A rash act is primarily an overhasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 7 of 15 rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
Ingredients to be proved.
13. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel. Before giving the reasons and my decision on the case, it would be pertinent to lay down the basic ingredients of Sec. 279 of IPC.
14. The accused is liable to be punished under Sec. 279 IPC when the prosecution proves the following ingredients :
(i) the accused should have been driving offending vehicle at the relevant time and place.
(ii) the manner of driving should be rash or negligent in a way to endanger human life or FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 8 of 15 which is likely to cause hurt or injury to any other person.
Now I will discuss whether the ingredients as outlined above have been satisfied by the prosecution or not :
15. PW-10 ASI Dhirender Kumar was the IO of the present case. He deposed that on 22.07.2005, he was posted at PS Sarita Vihar as HC. On that day, he received DD no. 5 regarding an accident occurred at Agra Canal Road, near Kath ka Pul, Madanpur Khadar, New Delhi. On receipt of said DD, he alongwith Ct. Rajbir went to spot and found one accidental bicycle. After sometime, duty officer informed him that injured had been shifted to AIIMS Hospital. Leaving Ct. Rajbir at the spot, he went to AIIMS Hospital and collected MLC of deceased in which doctor declared him 'brought dead'. Eye witnesses Atul, Pardeep and Kishan met him in the hospital. Ct. Chaman Lal was also present in the hospital. He recorded statement of Atul Kumar Ex.PW1/A and prepared rukka on the basis of his statement and sent the same to PS for registration of FIR through Ct. Chaman Lal. After preservation of dead body of deceased in mortuary, he FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 9 of 15 alongwith all three eye witnesses went to spot and prepared site plan Ex.PW10/B at the instance of complainant. He seized cycle of deceased vide seizure memo Ex.PW1/C. Ct. Chaman returned at the spot and handed him copy of FIR and original rukka. Thereafter, they all went to PS where he seized RTV bearing no. DL-1VA-1411 vide memo Ex.PW1/B. Eye witnesses had shifted injured in RTV to PS Sarita Vihar by using offending vehicle and from PS injured was shifted to AIIMS by using private vehicle. So RTV was parked at parking of PS.
16. On 23.07.2005, IO served notice U/s 133 M.V. Act Ex.PW10/C upon registered owner of RTV. In reply, registered owner replied that he had sold the aforesaid vehicle to Sujoy Ghosh. Thereafter, he served another notice under Section 133 M.V. Act to Sujoy Ghosh vide memo Ex.PW10/D. In reply of notice, Sujoy Ghosh replied that on the date of incident, his vehicle was being driven by his driver Shakeel Ahmed. On 30.07.2005, Sujoy Ghosh produced Shakeel Ahmed (accused) in Police Post Madanpur khadar where he arrested / personally searched accused vide memos Ex.PW4/A and Ex.PW4/B. IO also FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 10 of 15 seized Driving Licence of accused vide memo Ex.PW10/E. He also seized RC and insurance of offending vehicle vide memo Ex.PW10/F and Ex.PW10/G. He got verified the document of vehicle from the concerned authorities and tendered the accused for his TIP but he refused to participate in TIP on the ground that he had been shown to the witnesses. Offending vehicle got mechanically inspected. On 23.07.2005, IO moved an application for post mortem of dead body of deceased, application vide memo Ex.PW10/H. He prepared two dead body identification vide memos Ex.PW7/A and Ex.PW5/A. After post mortem dead body was handed over to the relatives of deceased vide handing over memo Ex.PW10/I. IO collected post mortem report and necessary documents from the hospital. He recorded statement of witnesses.
17. The accused was not arrested from the spot. The registered owner of the vehicle was Smt. Rama Devi. Notice U/s 133 M. V. Act was served upon her which was not replied by her but her husband. The IO had not obtained the copy of written Authority by virtue of which the husband of the registered owner FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 11 of 15 was empowered to reply to the Notice on her behalf. The alleged subsequent purchaser of the offending RTV was Sujoy Ghosh. Notice U/s 133 M. V. Act was also served upon him. In reply, he stated that Shakil Ahmad was driving the vehicle on the relevant date and time. The prosecution did not examine any of the alleged owners of the offending vehicle. The prosecution also did not place any document on record to show that the Shakil Ahmad was employed as Driver by Sujoy Ghosh or the registered owner on the relevant date and time. This omissions assumes relevance especially in view of the fact that accused was not arrested from the spot.
18. While PW-10 ASI Dhirender Kumar is the IO of the case, PW-1 Atul Kumar Dubey, PW-2 Kishan Chand Goswami and PW- 6 Pradeep Mishra were the passengers of the offending RTV and are the only public witnesses produced by the prosecution. Thus, their testimony is material for the purpose of just decision of the case.
19. PW-1 Atul Kumar Dubey, one of the passengers traveling in the said RTV deposed that the RTV was over crowded with FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 12 of 15 passengers and he was standing in the middle of the RTV. He stated that he cannot identify the driver of the said RTV.
20. PW-2 Kishan Chand Goswami was also one of the passengers of the RTV. He identified the accused as the driver of the said RTV but stated that the RTV was not being driven at High Speed nor did the accident take place due to the negligence of RTV Driver. He deposed that the Buffalo had hit the bicyclist due to which accident had taken place. He further deposed that the road where the accident took place was not in good condition and there were pot holes.
21. PW-6 Pradeep Mishra deposed that there were buffaloes on the road and the bicycle rider lost its balance owing to the movement of buffaloes on the road and fell on the road. He did not attribute any rashness or negligence on the part of the RTV Driver.
22. The Mechanical Inspection Report Ex.PW9/A has been duly proved by the prosecution. As per the report, there are minor scratches on the front left side bumper of the RTV. No Mechanical Inspection of the bicycle was carried out. The minor scratches on FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 13 of 15 the RTV are not sufficient to corroborate the offence unless consequential damage is also see on the victim's bicycle more specifically when one of the witnesses has deposed that victim was hit by buffaloes and fell on the road and did not attribute any rashness or negligence on the RTV Driver. No photographs of the site or the offending & victim's vehicle were clicked by the IO.
23. While PW-1, deposes that RTV was driven rashly and negligently, he also admits that he was standing in the middle of the RTV and could not see who was driving it. It would not be safe to place much reliance on the testimony of this witness unless the same is corroborated from other witnesses. PW-6 Pradeep Mishra contradicted the testimony of this witness by deposing that the RTV was not been driven rashly or negligently. This is a major contradiction in the case of the Prosecution. It cannot be said with certainty that RTV was being driven rashly and negligently. Thus, one of the essential requirements of Section 279 IPC has not been fulfilled in the present case. Benefit of doubt has arisen and must necessarily be extended to the accused. The accused Shakil Ahmad is FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 14 of 15 accordingly acquitted for commission of offence U/s 279 IPC. Since, the offence U/s 279 IPC has not been proved by the Prosecution, the accused is also acquitted for offence U/s 304 A IPC and U/s 132/134 M. V. Act.
Ordered Accordingly. Digitally signed
by SHIVANI
CHAUHAN
SHIVANI
Date:
CHAUHAN
Announced in the open 2018.10.11
09:57:52
Court on 10.10.2018 +0530
(SHIVANI CHAUHAN)
METROPOLITAN MAGISTRATE-05
SOUTH EAST DISTRICT
SAKET COURTS NEW DELHI
FIR No.345/05 PS-Sarita Vihar State Vs Shakil Ahmad Page no. 15 of 15