Delhi District Court
Criminal Case/48/2008 on 6 September, 2012
1
IN THE COURT OF SH. JAY THAREJA, MM03, NEW DELHI DISTRICT,
PATIALA HOUSE COURTS, NEW DELHI.
Presided by : Mr Jay Thareja, DJS
State v Aashna Monga
FIR No. 48/08
PS Tuglak Road
U/S. 279/304A of Indian Penal Code, 1860 & 146/196 MV Act 1988.
Case ID No. 02403R0486222009
JUDGMENT
A) Sl. No. of the case : 30/2/12
B) The date of commission of offence : 26.03.2008
C) The name of the complainant : SI Bhagirath Mal D1164, PS
Tuglak Road, New Delhi.
D) The name and address of accused : Aashna Monga, W/o Sh. Anil
Kumar Monga, R/o H. No. A40,
Kailash Colony, New Delhi.
E) Offences complained of : 279/304A of IPC, 1860 &
146/196 MV Act 1988.
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 27.08.2012
Date of Institution : 18.04.2009
Date of Final Arguments : 06.09.2012
Date of Judgment : 06.09.2012
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated, the case of the prosecution is that on 26.03.2008 at about 10.50 p.m., at Aurangzeb Road, Qpoint near Taj Man Singh Hotel, within the jurisdiction of PS Tughlak Road, the accused was driving a BMW car 2 bearing no. DL3CJ5454, in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person and while driving the said vehicle in the said manner, the accused Aashna Monga had hit her car against the motorcycle DL9SA6823 causing the death not amounting to culpable homicide of the motorcycle rider, Shyam Thapa. Also, the case of the prosecution is that at the aforesaid date, time and place of the accident, the accused Aashna Monga was driving the car bearing no. DL3CJ5454 with out any valid insurance.
2. A perusal of the Court file reflects that the charge sheet in this case was filed by the State against the accused in Court on 18.04.2009. On the basis of the charge sheet, the Ld. Predecessor Court had taken cognizance of the offences under Section 279/304A of IPC, 1860 and Section 146/196 of the MV Act, 1988. On the date of filing of the charge sheet, the accused was present in the Court and was admitted to Court bail. After supply of documents to the accused in compliance of Section 207 of the Code of Criminal Procedure, 1973 (henceforth "Cr.P.C."), the Ld. Predecessor Court had framed the notice of accusation against the accused, whereby the accused was charged with the commission of the offences punishable under Section 279/304A of IPC. The accusation was read over and explained to the accused. The accused had pleaded not guilty and claimed trial.
3. During trial, the prosecution examined 11 witnesses namely PW1 Retd. SI Kedar Nath, PW2 Dr. Manish Kumath, PW3 Ajay Yadav, PW4 WHC Harriet, PW5 Lady Ct. Beena, PW6 Mr. Anil Monga, PW7 Dr. D. K. Das, PW8 HC Vijay Singh, PW9 Dr. Adarsh Kumar, PW10 Rajinder Singh and PW11 Ct. Jitender.
4. Out of the aforesaid 11 witnesses examined by the prosecution, 4 witnesses i.e. PW1 Retd. SI Kedar Nath, PW2 Dr. Manish Kumath, PW4 WHC Harriet and PW8 HC Vijay Singh were formal witnesses. PW1 Retd. SI Kedar Nath proved on record, the mechanical inspection report of car no. DL3CJ5454, Ex.PW1/A and mechanical inspection report of motorcycle no.
3DL9SK6823, Ex.PW1/B. PW2 Dr. Manish Kumath proved on record postmortem report, Ex.PW2/A and stated that the cause of death was "Septicemia, consequent upon injuries sustained by a blunt force which could be possible on RTA". PW4 WHC Harriet proved on record DD no. 5A dated 31.03.2008. PW8 HC Vijay Singh proved on record FIR No. 48/08, Ex.PW8/A (OSR) and endorsement on rukka, Ex.PW8/B.
5. During examinationinchief, PW3 Ajay Yadav stated that on 27.03.2008 at 10.30 p.m., he was coming from PS Connaught Place and going to his residence on Alto Car bearing no. DL3CA5223. While he was on his way, BMW bearing no. 5454 had over taken his vehicle. After some distance, he had seen that BMW bearing no. 5454 had hit against a bike and crowd was gathered at the spot. Upon joining the crowd, he had seen that a person hit by BMW bearing no. 5454 was lying on the road; that a man and a woman were in the BMW; that the BMW was being driven by the woman. He and the man sitting with the woman had taken the injured/patient to AIIMS. At AIIMS they were told to go to the Trauma Center. Since they had not found the Trauma Center, they had got the injured admitted at Sukhmani Nursing Home. The said proceedings had continued till 2.00 a.m. PW3 Ajay Yadav categorically stated that he had not seen the actual incident. (In view of the resiling of PW3 Ajay Yadav from his statement made under Section 161 of Cr.PC, the Ld. APP for the State had sought permission to cross examine PW3 Ajay Yadav. The permission was granted.) During cross examination by the Ld. APP for the State, PW3 Ajay Yadav admitted that the police had recorded his statement, Ex.PW3/A and that the correct time of the accident was about 10.30 p.m. However, PW3 Ajay Yadav denied having knowledge about the speed and sense of driving of the BMW car no. 5454 and about the arrest of the accused. Also, PW3 Ajay Yadav failed to identify the accused, who was present in the Court. During cross examination by the Ld. Advocate for the accused, PW3 Ajay Yadav reiterated that he had not seen the accident.
6. During examinationinchief, PW5 Lady Ct Beena stated that on 26.03.2008 she was posted at PS Tulak Marg as a Constable. In the night of 4 the said date she was on reserve duty at Parliament from 8.00 p.m. to 8.00 a.m. At about 11.30 p.m. she was called and subsequently taken to the spot of the accident by a Constable from PS Tuglak Road. On reaching there, she was made to sit with the driver of the offending car, Ms. Asha. Thereafter, she had conducted the personal search of Ms. Asha vide memo Ex.PW5/A. In her presence, the IO had arrested Ms. Asha vide arrest memo Ex.PW3/A, seized the driving licence of Ms. Asha vide seizure memo Ex. PW5/B and RC of the offending vehicle vide memo Ex.PW5/C. When SI Bhagirath had gone to the hospital at 2.30 a.m., Ms. Asha was left in her custody till the morning of the next day i.e. 27.03.2008. PW5 Lady Ct. Beena correctly identified the accused Aashna Monga. During cross examination, Lady Ct. Beena stated that she did not remember the name of the duty officer who had called her at the spot; that she did not remember the number of the car in which she was taken to the spot or the number of the accidental vehicle; that she did not remember if she had found any money, purse or jewelery on the person of the accused; that the IO had come back at 4.30 a.m. PW5 Lady Ct Beena denied that she had signed all the memos at the PS.
7. During examinationinchief PW6 Mr. Anil Monga stated that he is the registered owner of BMW car no. DL3CJ5454. On 26.03.2008, he was accompanying his wife, the accused Aashna Monga, who was driving in a normal speed and a normal manner. (In view of the resiling of PW3 Ajay Yadav from his statement made under Section 161 of Cr.PC, the Ld. APP for the State had sought permission to cross examine PW3 Ajay Yadav. The permission was granted.) During cross examination by the Ld APP for the State, PW6 Mr. Anil Monga stated that the deceased motorcyclist had come all of a sudden in a rash and negligent manner under the influence of alcohol and hit their car. PW6 Anil Monga denied that the accused was driving the car in a rash and negligent manner and that he was deposing falsely to save his wife. During cross examination by the Ld. Advocate for the accused, PW6 Anil Monga stated that he had shifted the injured motorcyclist to hospital with the help of another passerby.
58. During examinationinchief PW7 Dr. D. K. Dass stated that while working as Sr. Consultant (Orthopedics) at Sukhmani hospital he had examined Shyam Thapa on 26.03.2008 and prepared the prescription, Ex.PW7/A. During cross examination, PW7 Dr. D. K. Dass stated that Shyam Thapa had consumed alcohol; that he had given the prescription, Ex.PW7/A to the attendants of Shyam Thapa for the purpose of showing it to the Doctors at AIIMS. Upon being confronted with another prescription, Ex.PW7/B, PW7 Dr. D. K. Dass stated that its contents were correct and it had been prepared at the instance of the attendants of Shyam Thapa.
9. During examinationinchief, PW9 Dr. Adarsh Kumar stated that on 26.03.2008, the postmortem report, Ex.PW2/A was prepared under his supervision by Dr. Manish Kumath and that the cause of death of Shyam Thapa was septicemia consequent on injuries sustained by blunt force which could be possible in a case of road traffic accident, as alleged. During cross examination PW9 Dr. Adarsh Kumar reiterated that he had merely supervised the postmortem.
10. During examinationinchief, PW10 Rajinder Singh, Record Clerk, AIIMS proved the handwriting and signatures of Dr. M. Asif on the MLC No. 16431/08, Ex.PW10/A. During cross examination PW10 Rajinder Singh confirmed that the prescription Ex.PW7/B was on record with AIIMS.
11. During examinationinchief, PW11 Ct. Jitender stated that on 26.03.2008 he was posted at PS Tuglak Road. On that day he had accompanied SI Bhagirath Mal to the spot of the accident i.e. Qpoint, Aurangzeb Road. On reaching there, he had found one BMW car bearing no. 5454 and motorcycle bearing no. 6826 lying in an accidental condition. In his presence, the IO had got the spot photographed and made inquires. After the arrival of Ct. Beena, the IO had left him at the spot and gone to the hospital. After returning from the hospital, the IO had handed over the rukka to him for registration of FIR at PS Tuglak Road. After registration of FIR, he had returned back to the spot and handed over the copy of FIR and original rukka 6 to the IO. In his presence, the IO had seized the RC and DL of the accused Aashna Monga. The IO had also seized the two vehicles vide memos Ex.PW11/A and Ex.PW11/B and arrested the accused Aashna Monga after the arrival of Ajay Yadav at the spot. During cross examination, PW11 Ct. Jitender inter alia stated that he and SI Bhagirath Mal had reached the spot at 10.4511.00 p.m.; that the IO had returned from the hospital at 2.30 a.m.; that the rukka was prepared after the IO had returned from the hospital. PW11 Ct. Jitender further stated that he had not seen the injured; that he did not remember the time at which the call was received, the name of the hospital and the time at which, the IO had left for the hospital.
12. After examination of PW11 Ct. Jitender, the Ld. Advocate for the accused had requested that the prosecution evidence be closed because the star witnesses of the prosecution i.e. PW3 A. S. Yadav and PW6 Anil Monga had turned hostile regarding the rashness or negligence of the accused and the remaining witnesses i.e. Dilu Pun, Prasad Pun and the IO were not cited to depose about the rashness or negligence of the accused. Upon valuing the testimony of PW3 A. S. Yadav and PW6 Anil Monga, the submission made by the Ld. Advocate was accepted and the prosecution evidence was closed. Also, the statement of accused under Section 313 read with 281 of Cr.PC was dispensed with. The accused did not lead any evidence.
13. I had heard Sh. Rajat Kalra, Ld. APP for the State and Sh. Tarun Singhla, Ld. Advocate for the accused during the course of the day. In support of the defence of the accused, the Ld. Advocate for the accused had drawn reference to the testimonies of PW3 A. S. Yadav and PW6 Anil Monga and submitted that their testimonies prove that the accused was neither rash nor negligent at the date, time and place of the accident.
14. After perusing the record of the Court file and hearing the Ld. APP for the State as well as the Ld. Advocate for the accused, I find that in order to bring home the guilt of accused for the offences under Section 279/304A of IPC, 1860 the prosecution was required to prove the following facts: 7
i) That the accused was driving the BMW car bearing no. DL3CJ5454 at the date, time and place of accident;
ii) That the accused was driving the BMW car bearing no. DL3CJ5454 in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person;
iii) That the accused had caused the accident in question while driving the BMW car bearing no.
DL3CJ5454 in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person;
iv) That the death of Shyam Thapa was caused due to the said accident.
15. In order to prove the first fact, the prosecution has examined PW3 Ajay Yadav and PW6 Anil Monga. During examinationinchief both the said witnesses have identified the accused Aashna Monga as the driver of BMW car bearing no. DL3CJ5454 at the date, time and place of the accident. The said aspect of the testimonies of PW3 Ajay Yadav and PW6 Anil Monga have not been challenged by the accused. Thus, in view of the unequivocal testimonies of PW3 Ajay Yadav and PW6 Anil Monga, I find that the accused Aashna Monga was driving the BMW car bearing no. DL3CJ5454 at the date, time and place of the accident.
16. In order to prove the second and the third fact, the prosecution had cited A. S. Yadav and Anil Monga in the list of witnesses. Both the said witnesses were examined during trial. During examinationinchief, PW3 Ajay Yadav has deposed that he had not seen the actual accident and PW6 Anil Monga has deposed that the accident had occurred due to the rashness and negligence of Shyam Thapa. During cross examination, by the Ld. APP, both the said witnesses have stuck to their respective versions and remained hostile to the case of the prosecution. In view of their hostile testimonies and 8 the non descriptive nature of the photographs on the Court file, I find that the prosecution has failed to prove beyond reasonable doubt that at the date, time and place of the accident, the accused Aashna Monga was driving the BMW car bearing no. DL3CJ5454 in a manner so rashness or negligent as to endanger human life or to be likely to cause hurt or injury to any other person.
17. In light of the aforesaid finding, the accused Aashna Monga is acquitted of the offences under Section 279/304A of IPC, 1860. The supardars, if any stand discharged. The file shall be consigned to the Record Room after compliance of under Section 437A of Cr.PC by Aashna Monga.
Announced in open Court
today on 06.09.2012 (Jay Thareja)
MM03/ND
06.09.2012