Delhi District Court
Mahesh Kumar vs The State (Nct Of Delhi) on 1 April, 2013
IN THE COURT OF SH. R.K. GAUBA: DISTRICT & SESSIONS
JUDGE (SOUTH) : SAKET NEW DELHI
Criminal Appeal No. 220/2012
ID No.: 02406R0283752012
Mahesh Kumar
s/o Sh. Ram Avtar
R/o T90, Ward No.6.
Islam Colony, Mehrauli,
New Delhi. ... Appellant
Versus
The State (NCT of Delhi) ... Respondent
Instituted on: 17.11.2012
Judgment reserved on: 25.03.2013
Judgment pronounced on : 01.04.2013
J U D G M E N T
1. This appeal seeks to challenge the judgment dated 16.10.2012 and order dated 17.10.2012, both passed by Ms. Namrita Aggarwal, Metropolitan Magistrate 09 South District on the file of criminal case no. 414/1 of 2012 (2010). The case had been registered on the basis of charge sheet submitted in the court of Metropolitan Magistrate on 01.07.2010 on conclusion of Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 1 of 12 investigation into FIR No. 90/2010 of Police Station Vasant Vihar under Section 279/338/304A IPC. Vide the impugned judgment, the appellant was held guilty and convicted for offences under Section 279/338/304A IPC. Vide the impugned order, the trial court awarded as punishment rigorous imprisonment for two months with fine of Rs. 500/ for offence under Section 279 IPC; rigorous imprisonment for one year with fine of Rs. 1,000/ for offence under Section 304A IPC and rigorous imprisonment for nine months with fine of Rs. 500/ for offence under Section 338 IPC. In case of default in payment of fine, the appellant was directed to further undergo simple imprisonment for 15 days, one month and 15 days respectively. All the sentences were directed to run concurrently.
2. On notice, respondentState has appeared to contest the appeal.
3. I have heard Sh. L. K. Verma, advocate for the appellant and Sh. Inder Kumar, Additional Public Prosecutor for the State. I have gone through the trial court record.
4. In view of the directions that are being passed, pursuant to appeal at hand, it is necessary to take note of the background Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 2 of 12 facts very briefly.
5. The FIR of the case was registered on the complaint (Ex. PW 1/A) made in writing by Rishi Gupta (PW1) a resident of Vasant Kunj, New Delhi claiming, interalia, to be an eye witness to the occurrence which is the subject matter of the case. The accident is shown to have involved two vehicles, one being a truck make Eicher 407, bearing registration no. DL 1LG 9216 (hereinafter referred to as "the truck") and the other car make Ford Fiesta bearing registration no. PB08 PD 9293 (hereinafter referred to as "the car"). The evidence on record shows the car was moving on Saheed Jit Singh Marg from Adhchini to Katwaria Sarai which is from east to west. On the other hand, the truck is shown to have been moving in the opposite direction, i.e., from east to west, i.e. Katwaria Sarai to Adhchini. It is alleged that at about 11.40 PM in front of Qutub Hotel, both the vehicles collided with each other head on. According to the prosecution case, the car was driven at the relevant point of time by Sanjay Jain (PW2). His wife Nandani @ Menu was traveling with him in the same vehicle. As a result of collision, both of them suffered injuries. While injuries of Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 3 of 12 PW2 were found to be grievous in nature, the injuries suffered by Nandani @ Menu proved to be fatal.
6. In his complaint Ex. PW 1/A, which formed the basis of FIR, PW1 claimed that he was also moving on the road and had seen the accident happening. He alleged that the truck was moving at a speed of 100 Kms per hour, while the car was moving at a speed of 40 Kms per hour. He would attribute the responsibility at the door of the trick driver. He alleged while deposing in the court that after the accident, the truck driver had stopped his vehicle at a distance of abut 800 meters from the point of impact and, thereafter, fled away from the spot. PW2, the person stated to be the driver of the car, in his evidence alleged that the truck driver had driven his vehicle in a highly dangerous manner. He claimed to have lost consciousness after the impact and to have regained consciousness in the hospital after few days.
7. PW1 claimed in the FIR that he would be in a position to identify the truck driver. He indicated that he had seen him at the spot. PW2 also claimed ability to identify the truck driver, he having seen his face through the front window (of the truck).
8. During crossexamination of PW1 and PW2, suggestions have Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 4 of 12 been given to question their ability to identify the appellant as the truck driver. In this context, the defence also pointed out with reference to admission coming on record through the statement of SI Ajit Pal Tomar (PW5) to the effect that the charge sheet as presented did not clearly make allegations about the appellant being the driver of the truck on the relevant date, time and place. The prosecution also relies on the evidence of Smt. Manju Devi (PW3), the registered owner of the truck, who is stated by prosecution to have given a reply implicating the appellant in the act of the driving of the truck in answer to notice under Section 133 Motor Vehicles Act issued and served vide Ex. PW 3/A. PW3 during her crossexamination has disowned the said reply by claiming ignorance stating that it was her husband who looks after the business of five vehicles including the truck owned by her.
9. What was, however, a very crucial evidence, relied upon by the prosecution was the response of the appellant, after the arrest, during proceedings of test identification parade (TIP). The charge sheet was accompanied by copy of TIP proceedings stated to have been recorded on 25.05.2010 by Sh. Jitender Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 5 of 12 Mishra, Metropolitan Magistrate, New Delhi. According to the prosecution story, the appellant when produced before the said Magistrate for TIP had declined to join, seeking to justify it by claiming that he had been shown to the witnesses at the spot and in the police station.
10.In the present case, the defence taken by the appellant is denial of the allegations that he was driving the truck at the time of accident. He claimed he was driving another vehicle of the same registered owner. In the given facts and circumstances the TIP proceedings arranged by the IO forms a very crucial evidence.
11. After the trial had commenced, upon plea of the appellant to the notice under Section 251 Cr.P.C. being recorded on 01.07.2010, the prosecution had been called upon to adduce its evidence. The case was at the stage of prosecution evidence on 10.08.2011 when two witnesses (PW2 and PW3) were examined. After the said witnesses had been discharged, the learned Magistrate proceeded to record the statement of the appellant, presumably at the instance of the defence counsel. The statement of the appellant has been recorded in the following manner.
"I am not disputing the genuineness of FIR and hence deposition of DO Bhona Ram is Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 6 of 12 dispensed with under Section 294 Cr.P.C.
Further, MLC report is also not disputed.
Hence, the deposition of Dr. Vijender is also dispensed with under Section 294 Cr.P.C.
Further postmortem report is also not disputed. Hence, the deposition of Dr. R. P. Singh is also is also dispensed with under Section 294 Cr.P.C. Further the deposition of Ld. MM Sh. Jitender Mishra is also is also dispensed with under Section 294 Cr.P.C, as TIP proceedings are also not disputed."
12. Taking note of the above mentioned statement and the submissions of the defence counsel, the Ld. Magistrate recorded, by way of his separate order sheet that the "deposition of the corresponding witness (Dr. Vijender, Dr. R. P. Singh, Sh. Jitender Mishra, Metropolitan Magistrate and HC Bona Ram) were "dispensed with under Section 294 CR.P.C."
13.In the facts and circumstances of the case at hand, a proper and formal proof of the stand taken by the appellant at the stage of he being called upon to participate in TIP (during investigation) was of utmost importance. The manner in which the collection of evidence involving recording of formal deposition of the concerned witnesses has been dispensed with has left much to Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 7 of 12 be desired.
14. Section 294 Cr.P.C. reads as under: "294. No formal proof of certain documents. (1) where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved."
15.The aim of the provision is to ensure speedy trial by cutting short the procedural formalities. The short cut is not meant to compromise with the principles of fair trial and right of fair Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 8 of 12 hearing to the accused. It is a beneficial provision which can be used as a matter of routine by prosecution to shorten the length of trial and enhance the cause of justice. The proviso to Section 294(3) Cr.P.C. as well as Section 58 of Evidence Act, nonetheless give power to the court to require a fact to be proved otherwise, even though admitted.
16.Undoubtedly, the documents in the nature of FIR, MLC, Post mortem Report, as also TIP proceedings, are covered within the meaning of the expression "document" as used in Section 294 Cr.P.C. Without doubt, a person facing criminal trial as an accused, or his pleader, can be called upon under Section 294 Cr.P.C. to admit or deny the genuineness of such documents and in case any of such document is admitted, the opposite party (prosecution in the case at hand) is relieved of the responsibility to produce "formal proof of such document". Section 294(2) Cr.P.c. clearly stipulates that where the genuineness of any document "is not disputed", i.e. where a document has been admitted under Section 294(1) Cr.P.C., such document "may be read in evidence" in the trial "without proof of the signatures of the person to whom it purports to be signed". Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 9 of 12
17. If a document, not admitted under Section 294 Cr.P.C., is to be proved, the procedure requires the corresponding witness to be called in, and examined in court, in the presence of the accused with reference to such document. Upon the witness affirming on oath the necessary facts, the document is admitted into evidence and if the witness has given formal proof about his signature, or about it having been brought into existence, as per prevailing practice, the document is given a label in the form of an exhibit.
It is part of practice in the criminal courts that the document, thus, proved during oral testimony of a witness, when exhibited, this fact is duly authenticated on the face of the document by the Presiding Judge/Magistrate. It is the authentication of the document, thus given exhibit number, which completes the exercise and ensures that the document can be later properly referred to.
18.Mere statement of the accused stating that TIP proceedings were "not disputed" is not a correct procedure to be followed for applying the provision contained under Section 294 Cr.P.C. The admission of the document must be recorded on the face of the document and the document thus admitted under Section Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 10 of 12 294 Cr.P.C. must be authenticated simultaneously by the Presiding Magistrate taking it on record formally in evidence as an exhibited document.
19.No such exercise as indicated above having been undertakes, and the TIP proceedings recorded by Sh. Jitender Mishra, Metropolitan Magistrate New Delhi not even having been brought on record (the copy on the record does not even bear the signatures of the Magistrate), a crucial evidence has been kept out from consideration.
20.In my considered view, the short shrifting of the procedure by improper application of Section 294 Cr.P.C., particularly in the context of TIP may have brought about a distortion. In absence of any formal proof, the said material is not available for reliance to the prosecution. At the same time, defence is unable to refer to it in the context of the facts which have come out during crossexamination of PW1, thereby creating handicap even for the defence.
21. In view of the above, the impugned judgment and order on sentence are set aside. The matter is remanded to the Metropolitan Magistrate for further proceedings in accordance Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 11 of 12 with law. For removal of doubts, it is directed that the learned Magistrate shall issue necessary process to procure the presence of the learned Magistrate who presided over the TIP proceedings which are part of the reliance for the prosecution, as indeed other witnesses relating to the registration of FIR, MLC and Postmortem examination report unless, of course, the said documents are properly introduced in the evidence on the basis of admission under Section 294 Cr.P.C., the steps taken for which must, however, strictly adhere to the requirements of law.
22.The trial court record along with copy of the judgment be sent back for further proceedings.
23.The jurisdiction of criminal cases of police station Vasant Vihar has since shifted to New Delhi Sessions Division. The appellant is directed to appear before the CMM (New Delhi) on 15.04.2013 for further proceedings/directions.
24.The file of the appeal be consigned to record room.
Announced in open Court today
on this 01st day of April, 2013 (R.K. GAUBA)
District & Sessions Judge (South)
Saket/New Delhi
Crl. Appeal No. 220/2012 Mahesh Kumar Vs. State Page No. 12 of 12