Delhi District Court
State vs . Rupesh Kumar on 7 March, 2022
IN THE COURT OF MS. ALKA SINGH
METROPOLITAN MAGISTRATE-08
(SOUTH-WEST), DWARKA COURTS, DELHI
DLSW020212632019
IN THE MATTER OF :
State Vs. Rupesh Kumar
FIR No. 363/13
PS : Uttam Nagar
U/s 279/304A IPC & Rule 6 of DMVR R/w 177 of MV Act
Date of Institution : 21.05.2015
Date of Judgment : 07.03.2022
JUDGMENT
1. Serial No. of the case : 10691/2019
2. Name of the Complainant : ASI Surti Ram, PS Uttam
Nagar
3. Date of commission of offence : 11.07.2013
4. Name of accused person : Rupesh Kumar S/o Ram Chander, R/o H. No.RZ-43, Q-Block, New Roshan Pura, Najafgarh, Delhi.
5. Offence charged : U/s 279/304A IPC & 6/177 of MV Act
6. Plea of accused : Not guilty
7. Final Order : Acquittal U/s 279/304A and State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 1 of 10 Conviction U/s 177 of MV Act.
BRIEF REASONS FOR ORDER:
1. The accused was chargesheeted for committing offences punishable under Section 279/304A IPC and Rule 6 (1) of DMVR R/w 177 of MV Act.
2. It has been alleged by the prosecution that on 11.07.2013, at Uttam Nagar Terminal, Near Outer Gate, accused was driving a bus bearing registration no.DL-1PC-0979 in rash and negligent manner and hit a person named Diwan Singh and caused his death.
Furthermore, the accused did not produce the driving badge when the same was demanded and thereby committed offence punishable Rule 6 (1) of DMVR R/w 177 of MV Act.
3. After conclusion of investigation, the present chargesheet was filed against the accused Section 279/304A IPC and Rule 6 (1) of DMVR R/w 177 of MV Act.
4. On receipt of chargesheet, cognizance of offence was taken and accused was summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
5. After giving opportunity to state as well as accused for making State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 2 of 10 submissions on charge, a Notice for offence Section 279/304A IPC and Section 177 of MV Act was framed against both the accused on 21.12.2015, to which he pleaded not guilty and claimed trial.
6. Prosecution examined five witnesses to prove its case.
7. ASI Shayam Nandan was examined as PW1, who was posted as MHCM in PS Uttam Nagar and received DTC Bus bearing no. DL- 1PC-0979 which was deposited by ASI Surti Ram and made the relevant entry in the register no.19. In his cross examination he stated that the bus was released on superdari on 23.10.2013. The photocopy of the relevant entry in the register no.19 was exhibited as Ex. PW1/A (OSR).
8. As PW2 prosecution examined Sachin Kumar who in his examination in chief stated that in the year 2013, he was going to his office at District Center and when he reached Uttam Nagar Bus Terminal, he saw that one senior citizen had come under the wheel of the DTC Bus and he helped the senior citizen and put him in auto and called at 100 number. The injured was then taken to the DDU Hopsital and he left for office. Since the witness was not supporting his earlier statement, permission was granted to ld. APP for state to cross examine the said witness. When the witness was confronted with his statement U/s 161 CrPC, particularly from point A to A1, the witness denied having made such a statement. He also stated that he did not see the accident taking place but only saw that the senior citizen was State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 3 of 10 already under the Bus. Thereafter, all the suggestions put forth by Ld. APP were denied by him. The witness was also cross examined by the defence counsel wherein he stated that he does not remember the when his statement was recorded by the police and since he has only studied till third standard, he cannot read and write. He further stated that he cannot give any details about the injured and that a lot of public had gathered at the spot. All other adverse suggestions of the counsel were denied by the witness.
9. As PW3 Sh. Shivender Rawat who was the son of the deceased and had identified the body of the deceased Diwan Singh vide identification Ex. PW2/A and the identification statement of his uncle Chandan Singh was Ex. PW2/B. Witness stated that he also received dead body after postmortem vide handing over memo Ex. PW2/C.
10. As PW4 SI Rajbir Singh was examined who was the second IO in the case and after preparing the charge-sheet filed the same in the court.
11. As PW5 prosecution examined the first IO of the case Retired ASI Surti Ram, who stated that on 11.07.2013 he was posted as ASI in PS Uttam Nagar and on receipt of DD no.35B Ex. PW5/A regarding an accident at Uttam Nagar Terminal, he alongwith Ct. Mahesh reached the spot and came to know that injured had already been taken to the DDU Hospital, since no eye witnesses were found, he also left State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 4 of 10 for DDU Hospital, where on MLC no.17138/13 injured Diwan Singh was found admitted and was in OT (Operation Theater). He further stated that he collected MLC Ex. PW5/1 and as per the MLC Driver Rupesh of DTC Bus had brought the injured to DDU Hospital but the injured could not survive and was declared dead by the Doctor. Thereafter, he received DD no.51B Ex. PW5/B and the dead body of the deceased was sent to mortuary. That thereafter, he returned to the spot with Ct. Mahesh and after making endorsement Ex. PW5/C on DD no.35B, sent Ct. Mahesh to PS with tehrir for registration of FIR. That he called the person who had made call at 100 number and he came at the spot, in the meantime Ct. Mahesh also returned to the spot and handed over original tehrir and copy of FIR. Thereafter, site plan Ex. PW5/D was prepared at the instance of this person as he was the eye witness of this incident. Witness stated that he does not remember the name of the person, although he recorded his statement. It was also stated by him that the bus was stationed near the spot and though he could not remember the entire number, he stated the last four digits to be 0979. After postmortem of the dead body same was handed over to the relatives and their statements were recorded by him. He further stated that during investigation notice U/s 133 MV Act Ex. PW5/E was served on Depot Manager, DTC Hari Nagar and he produced driver Rupesh alongwith DTC Bus and duty record of Driver Rupesh and thereafter, vide seizure memo Ex. PW5/F the offending bus was seized. The duty slip of driver Rupesh and the seizure memo vide which the photocopies of documents of the DTC Bus were seized State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 5 of 10 were exhibited as Ex. PW5/G and Ex. PW5/F respectively. The other relevant documents prepared / executed by the IO were also exhibited. In his cross examination he stated that he reached the spot within five minutes on receiving the information and at that time he did not prepare any document at the spot and proceeded to DDU Hospital and rukka was prepared only after he came back from DDU Hospital. He stated that he did not get the TIP of accused conducted by the eye witness. He then denied all the suggestions of the defence counsel having adverse inferences.
12. Since, no other witness was examined by prosecution, hence, the PE was closed and statement of accused was recorded under Section 313 Cr.P.C. to allow him to explain the incriminating circumstances appearing in evidences against him wherein the accused denied the allegations levelled against him and stated that he has been falsely implicated in the present case and no accident was cause by his vehicle rather he was helping the victim.
13. Since the accused chose not to lead any evidence in their defence, therefore, DE was closed and the matter was adjourned for final arguments.
14. Final arguments were thereafter heard on behalf of state as well as the accused.
15. It is submitted by Ld. APP for State that no supporting witness State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 6 of 10 have been examined by the defence to prove its version of theory and prosecution has been successful in establishing the guilt of the accused beyond reasonable doubts.
16. The defence counsel filed written arguments as per which neither there are any eye witnesses in the present case nor any other witnesses have been produced by the investigating officer. The site plan was not properly drawn by the IO and no statement of the doctor was recorded by the IO.
17. Per contra, it was the arguments of the ld. APP for the State that it is the matter of record that incident took place on 11.07.2013 in which injured died because he was ran over by a DTC bus. As per the account of eye witness Sachin, who took out the deceased from under the bus and called the police after which the matter was investigated by the IO. He further argued that it has been certified by Depot Managar that accused was driving the vehicle on that day and he only handed over the accused to the police alongwith the offending bus. Moreover, accused was found to be driving without driver's badge.
18. I have carefully considered the submissions made on behalf of the parties and have perused the case file meticulously.
19. Now this court shall appreciate the evidences one by one in order to decide whether the prosecution has been successful in proving its case.
State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 7 of 10
20. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
21. It is a settled law as well as matter of common knowledge that evidence of complainant/ victim and other public witnesses is the best available evidence and the case can be proved beyond reasonable doubts on the basis of testimony of said witness only. In the present case, PW1 Sachin Kumar who was the only public witness available in the present case and as per the claim of the prosecution, the eye State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 8 of 10 witness of the incident, completely resiled from his earlier statement given to police U/s 161 CrPC and stated that when he saw the injured the bus, he was already under the bus, however, he could not confirm the identity of the bus i.e. if the bus number was DL1PC0979 i.e. the offending bus. He also could not confirm the date of incident as 11.07.2013. Further, as per his statement during his cross examination conducted by the defence counsel, he stated that he cannot even read his previous statement as he is not much literate, thereby, entirely demolishing the credibility of his earlier statement.
22. Even as per the mechanical inspection report of the offending bus nothing of the sort has come on record which could suggest that the vehicle was involved in any kind of accident as no fresh damage has been indicated.
23. Thus, the remaining evidence if it can be called so, are not sufficient enough, on which the culpability or the liability of the accused can be based such as duty slip of driver Rupesh i.e. Ex. PW5/G as per which only this much can be said that too not conclusively that the accused was driving the alleged offending bus on the date of incident i.e. 11.07.2013, however, the prosecution has failed to show anywhere that the said bus was involved in the accident. Since, the prosecution has failed prove the guilt of the accused. The court has no hesitation in accepting the claim of the accused, made at the stage of recording of his statement U/s 313 CrPC State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 9 of 10 that he was infact helping the accused and has been wrongly implicated in the present case, which has also been corroborated by the testimony of the IO as per which it was driver Rupesh who had brought the injured to the DDU Hospital.
24. Thus, the only thing for which the accused can be held liable is the offence U/s 177 of the MV Act wherein he failed to produce the driver's badge as per the requirement of Rule 6 of Delhi Motors Vehicle Rules R/w Section 177 of MV Act.
25. In view of the above stated facts and circumstances and keeping in view the testimony of the key witness, this court is of the opinion that offences U/s 279/304A has not been proved beyond reasonable doubts against the accused. Therefore, benefit of doubt goes to the credit of accused and accordingly accused Rupesh Kumar S/o Ram Chander stands acquitted for the offence u/s 279/304A IPC and is convicted for offence U/s 177 of MV Act only.
26. Ordered Accordingly.
Pronounced in open Court, on this Day of 07th March, 2022. This judgment consists of 10 signed pages.
(ALKA SINGH) Metropolitan Magistrate-08/South-West Dwarka Courts: New Delhi State Vs. Rupesh Kumar FIR No.363/13 P.S. Uttam Nagar Judgment dated 07.03.2022 Page No. 10 of 10