Delhi District Court
State vs . Subir Dass on 10 May, 2016
IN THE COURT OF HARVINDER SINGH,
METROPOLITAN MAGISTRATE - 06 (NDD),
PATIALA HOUSE COURTS, NEW DELHI.
FIR No.15/2003
PS - Parliament Street
State Vs. Subir Dass
Unique Case ID No.02403R0022592003
J U D G M E N T
(a) Sr. No. of the case 24/02/12
(b) Date of offence(s) 20.05.2002
(c) Complainant B. D. Diwakar S/o Late Sh. Kewal Singh R/o 21/3,
Schedule - B, Servant Quarters, Rashtrapathi Bhawan,
New Delhi.
(d) Accused Subir Dass S/o Sh. D. L. Dass R/o E - 819, C. R. Park,
New Delhi.
(e) Offences Under Section 279, 338 and 201 of The Indian Penal Code,
1860.
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 24.04.2003
(i) Date when judgment Not Reserved
was reserved
(j) Date of judgment 10.05.2016
1. The charges leveled in the charge sheet against the accused are that on 20.05.2002 at about 09:30 am at Xing, Jantar Mantar, Parliament Street Road, New Delhi, accused was driving vehicle scooter bearing registration number DDI5499 in high speed and in rash and negligent manner so as to endanger human life and personal safety of others and while so driving in abovesaid manner, struck his FIR No.15/2003 Page No.1 of 13 scooter against one B. D. Diwakar and caused grievous injuries to him and further with intention to cause disappearance of evidence and to screen himself, gave false information about the incident to the doctors. According to prosecution, accused has committed offences punishable under Section 279, 338 and 201 of The Indian Penal Code, 1860.
2. After completion of investigation, charge sheet was filed. Copy of the challan was supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973. Charge was framed against the accused under Section 279, 338 and 201 of The Indian Penal Code, 1860 vide order dated 11.08.2004 to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE Main Witness(es)
3. In order to prove the guilt of accused, prosecution has examined eight witnesses. PW1 B. D. Diwakar in gist has deposed that on 20.05.2002 at about 09:30 am, he was returning after leaving his wife and when he was crossing the road, the accused came driving his scooter bearing registration number DDI5499 in high speed, in rash and negligent manner and hit it against him due to which his right leg got broken and he also received injuries on other parts of body. Accused revealed his name as Sudhir Dass, took him to hospital by three wheeler, made him sit at OPD and himself went inside the hospital. Accused did not reveal to the doctor that incident was caused by him. Accused took telephone number of his residence and after some time, his fatherinlaw Ramji Lal, his sisterinlaw Sujita, his wife Rekha and his FIR No.15/2003 Page No.2 of 13 friend Jai Prakash reached at the hospital. His xray was got conducted, his leg was plastered and was called after eight days. After one month, he got admitted in the hospital and he was operated. He also gave complaint mark 'A' to police, but, no action was taken. He prepared complaint Ex.PW1/A through his counsel and handed over to PS Parliament Street. In his crossexamination by Ld. APP for the State, he deposed that accused disclosed in the hospital that he is relative of injured and tried to save himself. He also deposed that he could not pursue his normal routine and when he recovered he made complaint to the police. PW1 was examined, crossexamined by Ld. APP for the State, crossexamined by accused and was discharged.
4. PW3 Ct. Ram Babu Rao and PW6 SI Shamim Khan in gist have deposed that on 23.01.2003, complaint of complainant was received by PW6, FIR was registered on the same and investigation was handed over to PW6. PW6 prepared site plan Ex.PW6/A at instance of complainant, recorded his statement under Section 161 of The Code of Criminal Procedure, 1973, served notice to the owner of offending vehicle vide Ex.PW6/B on which owner appeared and gave reply vide Ex.PW6/C. PW6 then seized papers of offending vehicle vide memo Ex.PW3/A, seized offending vehicle vide memo Ex.PW3/B, seized driving license of accused vide memo Ex.PW3/C, arrested accused vide memo Ex.PW3/D and conducted his personal search vide memo Ex.PW3/E. PW6 got mechanically inspected the scooter, got conducted TIP of accused vide application Ex.PW6/D and proceedings of the same being Ex.PW6/C. PW6 seized documents of the complainant vide Ex.PW3/F, obtained opinion Ex.PW4/A of doctor upon them and further collected papers FIR No.15/2003 Page No.3 of 13 Ex.PW6/G (collectively). After completion of investigation, PW6 filed challan in the Court. PW3 and PW6 correctly identified the accused in the Court. PW3 and PW6 were examined, crossexamined by accused and were discharged. Formal Witness(es)
5. PW2 HC Sukhbir Singh has proved and exhibited formal FIR Ex.PW2/A and endorsement on Rukka Ex.PW2/B in his evidence. PW2 was examined, crossexamined by accused and was discharged.
6. PW4 Deen Dayal has proved and exhibited report bearing number CR No.20995/02 Ex.PW4/A in his evidence. PW4 was examined, crossexamined by accused and was discharged.
7. PW5 T. U. Siddiqui has proved and exhibited mechanical inspection report Ex.PW5/A in his evidence. PW5 was examined, crossexamined by accused and was discharged.
8. PW7 Sh. S. K. Sharma, the then Ld. MM has proved and exhibited application of IO for TIP Ex.PW7/A, copy of TIP proceedings Ex.PW7/B, his endorsement on application of the IO for providing copy of the same as Ex.PW7/C in his evidence. PW7 was examined, not crossexamined by accused despite opportunity given and was discharged.
9. PW8 SI Sanjeev Kumar Verma has deposed that in month of May -
June, 2002, he received complaint of the complainant Sh. B. D. Diwakar, made inquiry into the complaint, visited address of the complainant, however, could not met him as his house was found locked despite many visits. He was then transferred from FIR No.15/2003 Page No.4 of 13 PS Connaught Place and he handed over the complaint to Reader to SHO. PW8 was examined, crossexamined by accused and was discharged.
10. Prosecution evidence was closed on 24.03.2015.
STATEMENT OF ACCUSED
11. The statement of accused was recorded under Section 313 of The Code of Criminal Procedure, 1973 read with Section 281 of The Code of Criminal Procedure, 1973 separately. Incriminating evidence was put to him. Accused person denied all the allegations and stated that he is innocent and has been falsely implicated in this case. He admitted that he was driving his vehicle scooter bearing registration number DDI5499 at the date, time and place of incident, however, he was driving his scooter in normal speed and did not hit the injured B. D. Diwakar. He further stated that he took the injured to hospital on humanitarian ground as he was passing through the spot of incident. Accused opted not to lead evidence in his defence and matter was fixed for final arguments.
12. Final arguments from both sides heard. Record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS & FINDINGS 13.1(a) In this matter, the first and major contention which has been raised by the defence is that incident in question is alleged to have happened on 20.05.2002 whereas formal FIR in this matter was registered only on 23.01.2003. It is further contention of the defence that the case of prosecution should be thrown away on account of delay of registration of FIR only.
FIR No.15/2003 Page No.5 of 13 13.1(b) On the other hand, it is the contention of the prosecution that delay in registration of FIR has been properly explained. PW1 has deposed that he gave complaint to the police in reasonable time vide mark 'A' and since police did not take any action, therefore, he ultimately moved the application after recovery from incident on which FIR was registered. It is further contention of the prosecution that delay in registration of FIR, therefore, stands properly explained in this matter. 13.2 Submissions of both sides considered.
In the judgment of "Sahebrao & Anr. Vs. State of Maharashtra"
(2006) 9 SCC 794, Hon'ble Supreme Court of India has held that : "The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."
"At this juncture, we would like to quote the following passage from State of H. P. Vs. Gian Chand wherein this Court observed : "Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the Court, the delay can not by itself be a ground for disbelieving and discarding the entire prosecution case."
In the judgment of "State of H.P. Vs. Shree Kant Shekari" (2004) 8 SCC 153, The Hon'ble Supreme Court of India has held that : "18. The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any even, delay per se is not a mitigating circumstance for the accused when accusations of rape are involved. Delay in lodging the first information report cannot be used as a ritualistic formula for discarding the prosecution case and doubting its authenticity. It only puts the Court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered, the Court is to only see whether it is satisfactory or not. In case if the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay, it is a relevant factor. On the other hand, satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of the prosecution case. As the factual scenario shows, the victim was FIR No.15/2003 Page No.6 of 13 totally unaware of the catastrophe which had befallen her. That being so, the mere delay in lodging of the first information report does not in any way render the prosecution version brittle. These aspects were highlighted in Tulshidas Kanolkar Vs. State of Goa."
In the judgment of "Amar Singh Vs. Balwinder Singh & Ors." (2003) 2 SCC 518, The Hon'ble Supreme Court of India has held that : "In our opinion, the period which elapsed in lodging the FIR of the incident has been fully explained from the evidence on record and no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged at 9.20 p.m. on the next day. There is no hardandfast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful. It necessarily depends upon facts and circumstances of each case whether there has been any such delay in lodging the FIR which may cast doubt about the veracity of the prosecution case and for this a host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station etc. have to be taken into consideration. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. in the connection it will be useful to take note of the following observation made by this Court in Tara Singh V. State of Punjab3 ;(SCC p.541,para4) The delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are, one cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being griefstricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course, in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstance of each case".
In the judgment of "Bijoy Singh and another Vs. State of Bihar", AIR 2002 SUPREME COURT 1949, Hon'ble Supreme Court of India has held that : "7. The delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the Court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime.........................If the delay in reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the Court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if reasonable, plausible and sufficient explanation is tendered, no adverse inference can be drawn against it." 13.3 In view of the abovesaid judgments, it is clear that it is settled principle FIR No.15/2003 Page No.7 of 13 of law that delay in lodging of formal FIR is itself not a ground to doubt the case of prosecution and to discard it in toto. If delay in lodging of FIR is noted by the Court, it would first search, if any reasonable explanation has been furnished for delay in lodging of FIR or not. If the delay in lodging the FIR has been reasonably explained which depends on given facts and circumstances of each case, no adverse inference would be drawn due to mere delay in registration of FIR. If Court comes to conclusion that the explanation offered for delay in registration of FIR is not satisfactory and there is possibility of embellishment on account of such delay, the Court will scrutinize the evidence on record with greater care and caution and if there are indications of fabrication, the case of prosecution can be rejected, however, if in given circumstances after close scrutiny, no indication of fabrication or embellishment is found, it would then not be the sole ground to reject case of prosecution. Now, reverting back to the facts and circumstances of this case, the incident in question has been stated to have happened on 20.05.2002 at about 09:30 am and the formal FIR in this matter was registered on 23.01.2003. So, there is delay of around eight months in registration of formal FIR. The explanation furnished by complainant/PW1/injured for delay in registration of FIR is that he made complaint Mark 'A' to the SHO PS Parliament Street on 20.05.2002, but no action was taken and after he got recovered from the incident, he made complaint vide Ex.PW1/A on which the present FIR was registered. PW8 SI Sanjeev Kumar Verma has also been examined in this matter who has deposed that he received the complaint of complainant B. D. Diwakar regarding accident by driver of scooter namely Subir FIR No.15/2003 Page No.8 of 13 Dass in month of May - June, 2002, he made inquiry into the said complaint, visited the address of complainant number of times, but, could not met him as he found his house locked during his visits. He was transferred to PS Connaught Place and handed over the said complaint to Reader to SHO PS Parliament Street. Now, if we examine the explanation given by prosecution for delay in registration of FIR, it lacks credibility due to number of reasons. Though, the complaint Mark 'A' is dated 20.05.2002, but perusal of stamp on same reveals that it was received in PS only on 20.06.2002. Even Mark 'A' has been written in past sentence and it appears that the maker of the complaint Mark 'A' though has stated the day of incident as the day on which he is making complaint, but he is referring to the incident and his treatment as to have been done in past. PW1 has himself deposed in his examinationinchief that his fatherinlaw, his sisterinlaw, his wife and his friend reached at the hospital on the day of incident and after treatment he was discharged and further was called again after eight days from the day of incident. In given circumstances, if the complainant had been available at his house then he should have met PW8 and the FIR could have been recorded well advance in time. Mark 'A' appears to be antedated in this matter, the explanation given by PW8 that he could not found the complainant at his house despite number of visits also does not inspires the confidence of this Court as the complainant has deposed that he was admitted in the hospital only after one month of the incident, therefore, the explanation that complainant lodged complaint Ex.PW1/A after recovery from the incident and then FIR Ex.PW2/A was recorded does not inspires the confidence of the Court. In totality of circumstances, prosecution has FIR No.15/2003 Page No.9 of 13 miserably failed to explain the said delay in registration of FIR, hence, the evidence of the prosecution has to be scrutinized minutely with utmost care and caution though it itself is not a sole ground to reject the case of prosecution. 14.1(a) The other major contention which has been raised by the defence is that the incident did not happen with the scooter of the accused, he was driving his scooter at normal speed. He did not hit the injured B. D. Diwakar and he merely took the injured to hospital on humanitarian ground as he was passing through the spot of incident.
14.1(b) On the other hand, it is the contention of the prosecution that the incident in question happened with the vehicle of accused. He was driving the vehicle in rash and negligent manner at the time of incident, hit the complainant/injured and caused injuries to him, therefore, he should be held guilty in this matter.
14.2 Submissions of both sides considered.
It is pertinent to mention here that it is not in dispute that the accused was present with his scooter bearing registration number DDI5499 at the date, time and place of incident. The PW1 has deposed before the Court that on day and time of incident, he was crossing the road near Jantar - Mantar, accused came driving his scooter bearing registration number DDI5499 in high speed and in rash and negligent manner and hit him due to which high right leg got broken and he also received injuries on other parts of body. Accused revealed his name as Sudhir Dass, took him to hospital by a three wheeler where he got him admitted, took telephone number of FIR No.15/2003 Page No.10 of 13 his residence, informed his family on which his fatherinlaw, his sisterinlaw, his wife and his friend reached at the hospital. In his crossexamination, he has deposed that some vehicles were moving on the road at that time. He has also deposed that accused fell down from scooter and scooter of accused also skidded at the spot of incident. He has also deposed that he was in full senses throughout. He has also deposed that he told Senior Medical Officers about the incident, though, he has also stated that he had not given them details. He has also admitted that he has deposed before MACT vide Ex.PW1/D1 that the accused fled away from the spot after hitting him, the date of incident was 25.05.2002, he was not aware about the name of accused and same was revealed to him by IO only. In given circumstances, first of all the only factum qua rash and negligent driving by accused which has been attributed by him is high speed. High speed is a relative term. A speed of 70 - 90 kilo meter per hour is permitted on highways and on minor roads speed of 40 - 50 kilo meter per hour is permitted even for two wheelers. A speed of 40 - 45 kmph of vehicle would appear to be fast speed to a person who is standing by the side of the road, though the driver of vehicle may be driving it in a reasonable limits in given circumstances. He has also deposed in his crossexamination that he cannot tell the speed of offending vehicle. PW1 has also admitted in his crossexamination that there was no traffic signal at that spot. Though, PW1 has deposed that accused was driving his vehicle in rash and negligent manner, but except that bald statement or that scooter was in high speed, he has not clarified how the accused was rash or negligent in driving the vehicle. No circumstance has been brought on record by prosecution as to what was FIR No.15/2003 Page No.11 of 13 the condition of the traffic, how many vehicles were crossing the road at that point of time and what was the speed of offending vehicle of the accused so to suggest any rashness in driving by accused. As far as aspect of negligence is concerned, nothing has been brought on record from which it could be inferred that the accused breached any duty. In absence of clarity of abovesaid circumstances, evidence on record is itself not sufficient to establish rashness or negligence in the driving of offending vehicle by the accused. It is also doubtful whether the incident happened with the vehicle of the accused or PW1 received injuries because of fall from scooter as recorded in his MLC Ex.P1. If we consider the said factum in light of delay in registration of FIR, it may be quite possible that incident happened as reported in MLC Ex.P1, therefore, PW1 and his family members refrained from promptly reporting the matter to the police. There is also substance in defence that the vehicle of the accused was not involved in the incident, since as per the mechanical inspection report Ex.PW5/A, no damage was reported by the Mechanical Inspector in his report. PW5 has categorically deposed that he can ascertain damage to a vehicle if it is involved in any incident even eight months prior to the inspection. PW1 has deposed in his crossexamination that the accused fell down and scooter of the accused skidded at the spot of incident. Had it been so some minor damage or some fresh paint must have been observed by the mechanical expert at the time of inspection of scooter. In given circumstances, the involvement of scooter in the incident also becomes doubtful in this matter. It has also came on record in the cross examination of PW1 that the name of accused was revealed to him by the IO of this FIR No.15/2003 Page No.12 of 13 case, so in given circumstances, the earlier deposition of PW1 that accused revealed his name as Subir Das and he gave incorrect information to the doctor about the incident also becomes doubtful one. The same becomes even more doubtful keeping in mind the fact that the wife, friend and other relatives of injured reached hospital on the day of incident and he was discharged from the hospital on said day only with instructions to come again after eight days. In totality of circumstances, where the deposition of PW1 is contradictory as to material facts at different times of trial and in different proceeding, there has been extraordinary delay in registration of FIR, it is doubtful whether the scooter of the accused was involved in the incident and further where it is doubtful (even if it is presumed that incident happened with the vehicle of accused) whether he was driving it in rash and negligent manner or not, accused is entitled to benefit of doubt in this matter. In totality of circumstances, the prosecution has failed to prove its case beyond shadow of reasonable doubt and hence, the accused person is entitled to benefit of doubt and acquittal in this matter.
16. In view of the aforementioned facts and circumstances, accused person namely Subir Dass is hereby given benefit of doubt in this matter and is hereby acquitted for offences punishable under Section 279, 338 and 201 of The Indian Penal Code, 1860.
Announced in the open Court on May 10, 2016.
(HARVINDER SINGH) M.M.06/PHC (NDD), New Delhi/10.05.2016 FIR No.15/2003 Page No.13 of 13