Delhi District Court
1 State vs . Manoj Kumar on 8 February, 2008
1 State vs. Manoj Kumar
IN THE COURT OF SH. AJAY GUPTA MM
TIS HAZARI COURTS : DELHI
FIR No. 285/01
State vs. Manoj Kumar
U/s 279/37/338 IPC
PS Prasad Nagar
1. Sl. no. of the case 20/02
2. Date of commission of offence 01.10.01
3. Name of complainant HC Satya Pal Singh
4. Name of accused Manoj Kumar s/o Babu Lal
5. Offence complained or proved U/s 279/337/338 IPC
6. Plea of the accused Pleaded not guilty
7. Submissions heard/order reserved 08.02.08
8. Final order Acquitted
9. Date of such order 08.02.08
J U D G M E N T
1. The allegations against the accused are that on 01.10.01 at about 9.35 am at Ravi Dass Marg near Khatta Dev Nagar accused was found driving 2 State vs. Manoj Kumar DTC bus no. DL1PA5701 in a rash and negligent manner due to which Mohan Singh who was traveling in the said bus standing near the window at the front gate, fell down and sustained grevious injuries. To this effect a DD No.12A was recorded upon which present case was registered, investigated into and accused Manoj Kumar was charge sheeted in this case.
2. The Ld. Predecessor of this court vide order dt. 22.07.03 was pleased to give a notice u/s 279/338 IPC to the accused to which he claimed trial.
3. In order to substantiate its allegations against the accused the prosecution examined as many as six witnesses.
4. First of all the prosecution examined one Jaswant Singh the conductor of the alleged offending bus as PW1. This witness deposed that he was working as conductor on bus no. DL1PA5701 of route no. 863 under DTC contract of Kilometer Scheme. He further deposed that the bus was over loaded and at about 9.15 am the bus reached at Kiker Wala Chowk, Karol 3 State vs. Manoj Kumar Bagh and when the bus moved from the bus stand about 30 yards he heard the noise that someone has fallen down from the front gate and after that the driver stopped the bus. He further deposed that when they came down from the bus he saw that the said person had received injury in his right leg then driver has taken the injured to Nursing Home. He further deposed that as he was siting on the conductor seat at back side of the bus he did not know as to how the said person had fallen down. On being hostiled this witness was also cross examined by the Ld. APP in which he denied that the person fallen from the front door of the bus as the driver had applied brake of the bus suddenly while he was driving the bus at fast speed and accident taken place due to his negligence.
5. PW2 is one Kanhaiya Lal, the rickshaw puller. This witness deposed that 01.10.01 he was going on his rickshaw and at about 9.30 pm when he reached at Satsang Crossing he saw one bus no.5701 came from the front side and driver of the bus had applied his break without any caution and one boy had fell down from the bus and received injury in his right leg and 4 State vs. Manoj Kumar he had been put and taken to Bali Nursing Home for medical treatment.
6. PW3 is Dr. Madhu Shukla. The witness deposed that on 01.10.01 at about 9.45 am the injured Mohan was brought by Mr. Manoj with alleged history of RTA, he examined the patient and later referred the patient to Dr. PK Bansal and proved the MLC of injured vide ex. PW3/A.
7. PW4 is HC Kalpana, the DO who deposed on the formal point of recording of FIR and proved copy of FIR vide ex. PW4/A.
8. PW5 is Ct. Ranbir Singh. This witness deposed that on 10.10.01 on receipt of DD no. 12A he along with HC Satyapal Singh reached the spot where they found one bus no. DL1PA5701under DTC was standing and met conductor Jaswant Singh. After that IO left him at the spot and went to Wali Nursing Home and came back along with driver of the bus. He further deposed that IO handed over him a tehrir on which he got the case registered and bus was seized vide seizure memo ex. PW2/B. He further 5 State vs. Manoj Kumar deposed that RC of the bus was also seized along with insurance papers and DL of the accused vide ex. PW2/C, ex. PW2/A and ex. PW2/D and accused was arrested in this case vide arrest memo and personal search memo ex. PW5/A and ex. PW5/B.
9. PW6 is HC Satyapal Singh, the IO of the case. This witness has deposed more or less on the similar terms as deposed by PW6. After that no other witness was examined and case was listed for statement of accused.
10. Statement of accused recorded u/s 281 Cr.P.C to which accused denied the allegations and submitted that he has been falsely implicated in this case. But he did not opt to lead any defence evidence. After that case was fixed for final arguments.
11. Arguments are heard on behalf of both parties. Case file and statement of witnesses are perused carefully. During the course of arguments Ld. APP argued that the prosecution has been able to prove its case against the 6 State vs. Manoj Kumar accused through the testimonies of prosecution witnesses.
12. On the other had Ld. counsel for accused submits that the prosecution has failed to prove its case against the accused beyond reasonable doubt. He further argued that PW1 has clearly stated that as he was siting on conductor seat at back side of the bus hence he did not say as to how the injured had fallen from the bus.
13. Bare perusal of statement of PW1 shows that nowhere this witness has deposed that the driver of the bus had applied its brake suddenly due to which the injured have fallen down. However PW2 deposed that he was going to his rickshaw and when driver of the bus has applied brake one boy has fallen down from the bus. But this testimony of PW2 is not beyond the shadow of doubt and does not inspire any confidence as this witness was neither traveling in the said bus nor he was present at the exact place of incident. From his statement it appears that he was going on his rickshaw and reached the spot after injured fallen from the bus.
14. Though PW2 in his statement deposed that the driver of the bus applied brake suddenly due to which injured fallen down but in his entire deposition PW2 nowhere stated that the accused present in the court was the driver of the alleged bus and he was driving the offending bus on the date of incident.
15. Furthermore in his examination in chief PW2 deposed that he was going on rickshaw while in his cross examination he deposed that he was standing near the spot at the corner of gali no. 68. In his cross examination PW2 deposed that at the time of taking the injured to he hospital in rickshaw accused and police official also accompanied him. While PW1 has testified that accused took the injured to alleged Nursing Home in a TSR. From the statement of witnesses it is not clear as to who ( police official ) accompanied injured to Nursing Home as from the statement of PW5 and PW6 it is clear that injured had already been rushed to Nursing Home before reaching them to the spot.
16. The most material witness in this case injured Mohan Singh who was traveling in the said bus standing near the window at the front gate of the offending bus. Several times summons issued to this witness but this witness could not be located and summons of this witness always received back unserved with the report that no such person is residing at the given address. His statement u/s 161 Cr.P.C is on record. From perusal of his statement it is clear that this Mohan Singh is the only key witness who had witnessed the whole incident and his testimony, if examined, could be the pivotal of the prosecution story for the just decision of this case. But his precious testimonies is lacking due to his nonexamination.
17. This court keeping in view the entirety of the facts and circumstances of the case and aforesaid discussions, holds that the prosecution has failed to prove its case beyond reasonable doubts against the accused. Hence accused Manoj Kumar is accordingly directed to be acquitted of charge leveled against him. Bail bond stands discharged and securities if any, be also cancelled after endorsement cancelled thereupon.
18. The story does not ends here. The conduct of the IO appears to be doubtful and it opens a horizon of new story. In the aforesaid case witness Mohan Singh is the only key witness/injured who had witnessed the whole incident and had received injuries. But this witness could not be traced/served and examined by the prosecution. From the report of the process of this witness it appears that IO has not verified the address of this witness and mentioned wrong address in the charge sheet. As per report on one of the process of this witness no house number with number of D166 is existing in Baljeet Nagar, Delhi. As per report in that colony number of houses is of "T" series and process was also sent at T166 Baljeet Nagar where one Joginder s/o Sardar Boota Singh stated to have met and submitted that he is residing at this address for the last more than twenty years.
19. In view of the provisions of section 170(2) Cr.P.C which reads as under: "When the officer in charge of a police station 10 State vs. Manoj Kumar forwards an accused person to a Magistrate or takes security for his appearance before such Magistrate under this section, he shall send to such Magistrate any weapon or other article which it may be necessary to produce before him, and shall require the complainant ( if any ) and so many of the persons who appear to such officer to be acquainted with the facts and circumstances of the case as he may kind necessary, to execute a bond to appear before the Magistrate as thereby directed and prosecute or given evidence ( as the case may be ) in the matter of the charge against the accused".
It was duty of the IO/SHO to obtain a bond from the witness with the undertaking that she/he would appear before the court and IO also aught to have placed on record copies of ICard, ration card, DL etc of the witness which was not done by the in this case. It also appears that the address of this witness Mohan Singh was not correctly mentioned in the charge sheet.
20. The aforesaid lacunae of the IO, prima facie shows that IO has not performed his duty well upto the mark and prima facie IO appears to have committed the aforesaid default with intend to save the accused from the punishment or for the reasons best known to him.
21. As per section 168 Cr.P.C which reads as under: "Report of investigation by subordinate police officer. When any subordinate police officer has made any investigation under this Chapter, he shall report the result of such investigation to the officer in charge of the police station".
In view of the aforesaid provisions all the proceedings and investigation are to be conducted under the supervision of the SHO concerned hence the then SHO is equally responsible for forwarding the present charge sheet to this court without complying the provisions of section 170(2) Cr.P.C. The aforesaid conduct of the IO and the then SHO, prima faice constitute an offence u/s 217 IPC. Hence a show cause not be issued to both of them to 12 State vs. Manoj Kumar appear in person and explain as to why a legal proceedings u/s 217 IPC be not initiated against them for the aforesaid reasons. Show cause notice be issued for 29.02.08. Ahlmad is directed to send a copy of this judgment along with notice also and consigned this file to record room after constituting a separate file.
( AJAY GUPTA ) METROPOLITAN MAGISTRATE TIS HAZARI COURTS DELHI Announced in open court on 08.02.08