Delhi District Court
Fir No. 157/10 State vs . Ram Dev & Ors Ps Jahangir Puri Page No. 1 ... on 10 February, 2020
IN THE COURT OF MS RICHA SHARMA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 157/10
U/s 279/304A IPC
PS: Swaroop Nagar
State v. Ram Dev & ors.
Date of Institution of case:04.06.2011
Date of Judgment reserved:10.02.2020
Date on which Judgment pronounced:10.02.2020
JUDGMENT
Unique ID no. : 5283577/16
Date of Commission of : 13.11.2010
offence
Name of the : Smt. Basanti Devi
complainant
Name of the accused : (1) Ram Dev S/o Sh. Vipati Ram
person (2) Wahida W/o Sh. Zalbe Shah
Offence complained of : 279/304A IPC
Plea of accused : Not guilty
Date of order : 10.02.2020
Final Order : Acquitted
FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 1 of 19
The story of prosecution is as under :
1. The case of the prosecution is that on 13.11.2010, at about 06:00 am, at Kadipur Mukhmailpur Road, Delhi within the jurisdiction of PS Swaroop Nagar, accused Ram Dev was found driving a vehicle i.e. Minidoor bearing registration No. DL1LL1363 in a manner so rash and negligent as to endanger human life and while driving so, he hit against one Sh. Atma Ram who succumbed to his injuries and thereby accused caused the death of Atma Ram (not amounting to culpable homicide) and thereby accused had committed offences punishable U/s 279/304A IPC (Indian Penal Code) and accordingly, accused had been facing the trial for the said offence.
2. Another, on 15.10.2010 at Jhuggi No. 52, Park Wali Gali, Kalandra Colony, Bhalswa Dairy within the jurisdiction of PS Swaroop Nagar, accused Wahida sold the minidoor bearing registration No. DL1LL1363 to Babu Khan alongwith the relevant documents including the insurance which was found as a fake document and thereby accused had committed offences punishable U/s 471 IPC (Indian Penal Code) and accordingly, accused had been facing the trial for the said offence.
Investigation
3. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused persons were arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused persons and challan was presented in the Court.
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4. Copies of challan and relevant documents were supplied to the accused persons free of costs as envisaged under Section 207 of Cr.P.C.
Charge
5. A prima facie case under Sections 279/304A IPC, was found to be made out against the accused Ramdev and under section 471 IPC, was found to be made out against accused Wahida. Notice was served upon the accused Ram Dev and charged was framed upon the accused Wahida, accordingly, on 30.07.2013 by the then Ld. MM. The accused persons pleaded not guilty and claimed trial.
List of witnesses and documents proved
6. In order to prove its case, prosecution had examined following witnesses and produced the following documents in its documentary evidence :
Sl PW Name Document proved Ex. No.
No. No.
1. PW1 Sh. Bharat Dead body identification Ex.PW1/A
Bhushan
2. PW2 Sh. Hira Mani Dead body identification Ex.PW2/A
3. PW3 Smt. Basanti Her statement Ex.PW3/A
Devi Site plan Ex.PW3/B
Arrest memo Ex.PW3/C
4. PW4 Babu Khan Seizure memo of Ex.PW4/A
documents Ex.PW4/B
Notice u/s 133 MV Act
FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 3 of 19
5. PW5 ASI Mangat DD No. 9A Ex.PW5/A
Ram
6. PW6 Retd. ASI/Tech Mechanical Inspection Ex. PW6/A
Devender Kumar Report
7. PW7 Ct. Azad Seizure memo of Ex.PW7/A
offending vehicle Ex.PW7/B
Seizure memo of
documents of offending
vehicles
8. PW8 Retd. SI Krishan
Kumar
9. PW9 Vivek Sharma Policy No. OG081101 Ex.PW8/A
1801000285179
10. PW10 Retd. SI Baljeet FIR Ex.PW10/A
Singh RUKKA Ex.PW10/B
11 PW11 SI Shyam Tehrir Ex.PW11/A
Sunder Mechanical Request Ex.PW11/B
Notice u/s 133 MV Act Ex.PW11/C
Notice u/s 133 MV Act Ex.PW11/D
Notice u/s 133 MV Act Ex.PW11/E
Personal Search Memo Ex.PW11/F
12 PW12 Dr. V. K. Jha Postmortem report Ex.PW12/A
13 PW13 Dr. R. S. Mishra MLC Ex.PW13/A
7. In order to prove its case, prosecution examined thirteen witnesses.
8. PW1 is Sh. Bharat Bhushan was the brotherinlaw (sala) of deceased Atma Ram. He deposed that on 13.11.2010, he went to BJRM Hospital Mortuary, where he identified the dead body of deceased. He further deposed that IO recorded his statement vide identification memo Ex. PW1/A, bearing his signatures at point 'A'. He further deposed that after the postmortem FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 4 of 19 the dead body was handed over to him and other relatives. This witness was not crossexamined by Ld. Defence counsel.
9. PW2 is Sh. Hira Mani was the brother of deceased Atma Ram. He deposed that on 13.11.2010, he went to BJRM Hospital Mortuary, where he identified the dead body of deceased. He further deposed that IO recorded his statement vide identification memo Ex. PW1/B, bearing his signatures at point 'A'. He further deposed that after the postmortem the dead body was handed over to him and other relatives. This witness was not crossexamined by Ld. Defence counsel.
10. PW3 is Smt. Basanti Devi W/o Late Sh. Aatma Ram. She stated that on 13.11.2010, at about 06:00 am in the morning, she alongwith her husband late Sh. Aatma Ram, were returning from the morning walk to their home via Khadi Pur to Mukhmerpur Road, they were walking on the right side and a driver of one mini door three wheeler bearing no. DL1LL1363 came from the front side driving the vehicle at very high speed from wrong side and hit her husband, and the vehicle overturned after hitting her husband. The driver of the said mini door vehicle came out of the overturned vehicle through window and ran away from the spot. She also called him to stop, but accused did not stop. PCR was called by the public. PCR came at the spot and took her husband to the BJRM Hospital where he was declared brought dead. Police recorded her statement in the hospital, which is Ex.PW3/A, bearing her signature at point A. Police prepared site plan at her instance, which is Ex.PW3/B. Accused was arrested on 07.12.2010 vide memo which is Ex.PW3/C, bearing her signature at point A. PW3 was cross examined by Ld. Defence Counsel.
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11. PW4 is Mohd. Babu Khan S/o Late Mohd. Habib Khan. He stated that on 15.10.2010, he had taken mini door vehicle bearing no. DL1LL1363 for plying on the contract for 11 months from accused Wahida. They had mutually prepared the agreement pertaining into the said contract. Accused Wahida had also handed over the documents pertaining to the above said vehicle i.e. RC, Fitness, Insurance on the same day. Later on, he handed over said document to the IO on 07.12.2010, which were seized vide memo which is ExPW4/A, bearing his thumb impression at point A. He also received notice u/s 133 MV Act which is Ex.PW4/B, bearing thumb impression at point A & C from the police and he replied on it. He also produced accused Ram Dev. He identified both accused. He also identified the documents which were given to him by the accused Wahida and the said documents are Ex.P6, P7, P8.
12. PW5 is ASI Mangat Ram, No. 3040/NW, DAP 1 st Battalion. He was working as Duty Officer from 08:00 p.m. to 08:00 a.m. and at about 06:30 am, he received information from wireless operator regarding accident at Kadipur to Mukhmelpur Road. He entered the same at sr. no. 9A and the copy of same was sent to IO ASI Krishan Kumar through Ct. Sunil for appropriate action. The DD is Ex.PW5/A. This witness was not crossexamined by Ld. Defence counsel.
13 PW6 is Retd. ASI/Tech Devender Kumar. He deposed that on 15.11.2010, on the application of ASI Shyam Sunder, he had mechanically inspected one vehicle i.e. Force Minidoor D Van bearing No. DL1LN1363. His detail inspection report of the vehicle is Ex.PW6/A, bearing his signature at point A. This witness was not crossexamined by Ld. Defence counsel.
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14. PW7 is Ct. Azad, No. 431/DAP, 1st Battalion, Kingway Camp. He stated that on 13.11.2010, he was posted at MACT Cell, PS Jahangir Puri. On that day, at about 06:45 am, one call regarding accident was marked to ASI Shyam Sunder. Thereafter, he alongwith ASI Shyam Sunder went to the spot there they found one vehicle bearing registration no. DL1LL1363 which was overturned and lying on the side of the road. They met one lady Basanti Devi who told them that she alongwith her husband were doing morning walk and the above mentioned came from behind and hit against her husband. She further told that her husband has been shifted to BJRM Hospital in a PCR Van. Thereafter, IO left him on the spot and went to BJRM Hospital. After some time IO came back at the spot and prepared one tehrir and handed over to him for registration of FIR. He left the spot and went to PS Swaroop Nagar for registration of FIR. After getting FIR registered, he came back at the spot and handed over the copy of FIR and original tehrir to IO. Thereafter, IO seized the offending vide seizure memo Ex.PW7/A, bearing his signature at point A. Thereafter, they deposited the offending vehicle in the malkhana and went to BJRM Hospital. IO made an application for preservation of the dead body and the dead body of deceased Aatma Ram was got preserved at BJRM mortuary. Thereafter, the dead body was identified by the relatives of the deceased. After that the postmortem on the dead body of deceased Aatma Ram was got conducted and later on the dead body was handed over to his relatives. Thereafter, IO send notice under section 133 MV Act to the owner of the offending vehicle.
He further stated that on 07.12.2010, he was present in the office of IO. Wife of the deceased was also present in the office. Meanwhile, one Babu Khan came at office and produced DL of accused and some documents of the offending vehicle and the same was seized vide seizure memo Ex.PW7/B, FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 7 of 19 bearing his signature at point A and already Ex.PW4/A. Babu Khan was accompanied by accused Ram Dev. On seeing accused Ram Dev, wife of deceased told to IO that he was the same person who had committed accident. Thereafter, accused was arrested vide memo already exhibited as Ex.PW3/C, bearing his signature at point B. This witness was crossexamined by Ld. Defence counsel.
15. PW8 is Retd. SI Krishan Kumar S/o Late Sh. Chiranji Lal. He deposed that on the night of 12/13.11.2010, he was posted at PS Swaroop Nagar and his duty hours from 08:00 pm to 08:00 am. On that day at about 06:30 am in the morning, on receiving no. DD No. 9A regarding an accident that happened on the road from Kadipur to Mukhmelpur, he alongwith Ct. Sunil Kumar headed towards the spot whereupon he saw a minidoor of white color bearing registration No. DL1LL1363 lying overturned. He did not find anyone at the spot. He had informed the MACT Cell at Jahangir Puri about the accident whereupon ASI Shyam Sunder and Ct.Azad Singh reached the spot. He handed over the DD to them. Thereafter, ASI Shaym Sunder recorded his statement. This witness was crossexamined by Ld. Defence counsel.
16. PW9 is Sh.Vivek Sharma, Assistant Manager, Motor Under Writing. Bajaj Alliance General Insurance Company. He stated that, as per record, the policy number OG0811011801000285179 is not issued by their company and vehicle bearing no. DL1LL1363 was not insured by their company. He further stated that as per record, policy already exhibited as Ex.P8 is fake and forged. This witness was not crossexamined by Ld. Defence counsel.
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17. PW10 is Retd. SI Baljeet Singh S/o Sh. Chand Roop. He stated that on 13.11.2010 he was Duty Officer. At about 09:10 am, Ct. Azad Singh handed over rukka to him, which was sent by ASI Shyam Sunder. He recorded FIR Ex.PW10/A and made endorsement on rukka Ex.PW10/B. This witness was not crossexamined by Ld. Defence counsel.
18. PW11 SI Shyam Sunder, No. 6286/D, PS Sector23 Dwarka, South West District. He is IO in the present case. He deposed on the same lines as that of PW7 Ct. Azad Singh. He accompanied PW7 during the investigation. His testimony is not being discussed in order to avoid repetition and for the sake of brevity. He further deposed that he recorded the statement of wife of deceased i.e. Basanti Devi which is already exhibited as Ex.PW3/A, bearing his signature at point B and prepared tehrir is Ex.PW11/A, bearing his signature at point A. He also made a request for mechanical inspection of the offending vehicle and request application is Ex.PW11/B, bearing his signature at point B. He issued notice u/s 133 MV Act to the owner of the offending vehicle Wahida is Ex.PW11/C, bearing his signature at point A. He also issued another notice u/s 133 MV Act i.e. Ex.PW11/D, bearing his signature at point A. Wahida had informed vide in her written reply that the offending vehicle had been given to a person Babu Khan on contractual basis. Thereafter, the notice u/s 133 MV Act was also issued to Babu Khan, which is Ex.PW11/E, bearing his signature at point B. He arrested and personally search the accused. Personal search memo is Ex.PW11/F, bearing his signature at point A. This witness was cross examined by Ld. Defence counsel.
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19. PW12 is Dr. V.K. Jha, CMO BJRM Hospital, Delhi. He identified the handwriting and signature of Dr. Sudesh on the postmortem report no. 1355/10, which is Ex.PW12/A, bearing the signature of Dr. Sudesh at point A. This witness was crossexamined by Ld. Defence counsel.
20. PW13 Dr. R. S. Mishra, CMO BJRM Hospital, Delhi. He identified the handwriting and signature of Dr. Sumit Arora on the MLC No. 17651, which is Ex.PW13/A, bearing the signature of Dr. Sumit Arora at point A. His name is written at point B. This witness was crossexamined by Ld. Defence counsel.
21. Thereafter, prosecution evidence was closed vide order dated 17.05.2017.
Statement under section 313 Cr.PC
22. After completion of prosecution evidence, statement of accused persons under Section 313 Cr.P.C. were recorded. All incriminating material brought on record were put to the accused persons to which they denied the allegations made against them and claimed themselves to be innocent and pleaded that he has been falsely implicated in this case. Accused persons lead evidence in their defence.
23. DW1 is Ram Dev S/o Sh. Vipati. (He is accused in the present case). He deposed that on 07.12.2010, he was present at his home. He further stated that Babu Khan (who is his neighbor) asked him to come alongwith him to the police station for releasing of vehicle belonging to Wahida which was seized at police station. Babu Khan had taken him to the police station. The police FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 10 of 19 officers took copy of his licence and Aadhr card and also asked him to sign the same. He further stated that after submission of this documents, later on, he got the knowledge that the vehicle was involved in an accident. He further stated that he was not driving the vehicle at the relevant point of time when accident took place and that the vehicle was driven by Babu Khan at the time of accident.
Arguments
24. On the basis of the above oral and documentary evidence on record learned APP requested for conviction of the accused and severe punishment as per law.
25. On the other hand, learned defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable shadow of doubt as prosecution has as such failed to establish the rashness and negligence on the part of the accused in the present case. Accordingly, he prayed for the acquittal of the accused.
Point for Determination:
26. This Court has weighed the rival submission made on behalf of the State as well as on behalf of defence in light of a testimonies and material appearing on record. It is observed, that in the present case the accused has been charge sheeted for the commission of offence under Sections 279 and 304A of IPC, to which the accused pleaded not guilty and claimed trial. In order to prove commission of offence, the following point arise for determination:
(i) Whether Atmaram died due to the injuries sustained in the road side accident that occurred on 13.11.2010.
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(ii) If death of Atmaram is proved, whether accused had caused his death by a rash and negligent act.
(iii) Whether accused Wahida had sold the minidoor No. DL1LL1363 to Babu Khan by using the fake insurance as genuine.
Answers to point for determination:
I) No. II) No. III) No. Reasons for determination
27. In order to sustain the conviction of the accused in present case, it becomes imperative to carefully anatomize and probe the testimony of the only eye witness examined by the prosecution. In the present case, the only star witness on whose deposition edifice of the story of prosecution has been built is PW3 i.e. Smt. Basanti Devi, who is also the wife of the deceased in the present case. This witness deposed that on the date of alleged accident i.e. 13.11.2010, at about 06:00 am in the morning, she alongwith her deceased husband were returning from morning walk and were going towards their home. She further stated that they were walking on the right side of the road and a driver of one mini door Three Wheeler vehicle (offending vehicle), came from the front side and hit against her husband. She further stated that the driver of the offending vehicle was driving the vehicle at a very high speed and was also coming from the wrong side. In annexation to the above she further stated that the vehicle over turned after hitting her husband and the driver of the offending vehicle came out through the window and ran away from the spot. She further stated FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 12 of 19 that PCR was called by the public and thereafter PCR took her husband to the BJRM Hospital where he was declared brought dead. Thus, in the light of the above deposition made by PW3 i.e. only star witness in the present case, following points arise for appreciation: Firstly, PW3 stated that the driver of the offending vehicle came out after the vehicle had over turned and ran away from the spot, implying thereby that the alleged accused was not apprehended at the spot as he had fled away and further this court deems it fit to draw attention at the aspects of the possibility of the victim not seeing the accused as she herself states that the accused came out through the window of the alleged offending vehicle and ran away. This aspect of the possibility of the witness not seeing the accused further stands fortified from the fact that PW3 categorically stated in her crossexamination that she can not tell whether the accused Ram Dev was also injured as he ran away from the spot, implying thereby that the witness did not get an opportunity to see the injuries if any sustained by the accused as he ran away from the spot and therefore, the possibility of the witness not seeing the accused at the time of the alleged accident can not be negated. At this stage, it also becomes relevant to state that the witness identified the accused in the court for the first time as the TIP of the accused was not conducted and no plausible explanation has been adduced by the prosecution for not getting the TIP conducted, more so in a scenario where the accused was not apprehended at the spot.
Second aspect which needs deliberation is with regard to the presence of PW3 i.e. Smt. Basanti Devi at the spot of the alleged accident perse. This aspects needs to be probed into as PW3 unambiguously and unequivocally states in her examination in chief that the offending vehicle came from the front side and hit against her husband and as a result of the same the vehicle was over turned but FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 13 of 19 the said deposition is in total contradiction to the averments made by PW7 i.e. Ct. Azad who deposed that on the fateful day he alongwith ASI Shyam Sunder went to the spot and met Basanti Devi, who told them that she alongwith her husband were doing morning walk when the offending vehicle came from behind and hit against her husband. Thus, from the above two different versions regarding the movement and the direction of the offending vehicle being made by one single witness i.e. PW3 Vasant Devi perse questions her presence at the spot as she has deposed totally contrary direction of the offending vehicle at the time when the vehicles allegedly hit the deceased.
Thirdly, court can not be unmindful of the fact that on one hand PW3 I.e.Basanti Devi avers that she alongwith her husband were returning from morning walk on the fateful day and going towards their home when the alleged incident happened, whereby the offending vehicle had hit against her husband who succumbed to his injuries and was declared brought dead at the hospital and though both i.e. the eye witness as well as the deceased were walking together on the right side of the road when the deceased received injuries of such a magnitude that he died even prior to his arrival at the hospital but the eye witness i.e. Basanti devi despite being next to the deceased at the time of the accident on the other hand did not receive a single scratch as there is neither any MLC pertaining to her on record nor has she anywhere stated in her deposition before the court or otherwise that she received any kind of injuries whatsoever as a result of the alleged accident.
Fourthly, court somehow find's it implausible to perceive that no person of ordinary prudence whose family member has received a fatal injury would not accompany the latter to the hospital but on the other hand would remain at the FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 14 of 19 spot, specially in a scenario where the PCR had already arrived and the situation has been brought to the notice of the police. In the case in hand also the wife of the deceased and the alleged eye witness i.e. Basanti Devi states that the PCR took her husband to the hospital implying thereby that she did not accompany him to the hospital and the said fact does not appeal to a prudent mind.
Fifthly, PW3 i.e. Basanti Devi states in her examination in chief that the police prepared the site plan at her instance but perusal of the site plan PW3/B clearly shows that the same does not bear her signature and this again puts her presence at the spot under scanner.
Sixthly, it is relevant to mention that neither is the accident questioned nor is the death of the deceased questioned and further even the offending vehicle involved in the present case is neither challenged nor questioned but what the prosecution had to establish in the present case beyond reasonable doubts was that the accused had caused the alleged accident by driving the said vehicle in a rash or negligent manner on the fateful day. However, as discussed above, prosecution has miserably failed to establish the presence of PW3 i.e. Basanti Devi at the spot as her testimony is full of material and glaring contradiction so simpliciter on the basis of her testimony the guilt of the accused remains unestablished. Now, it is to be looked into if the prosecution is able to bring home the guilt of the accused through other independent witnesses.
28. It is a matter of record that apart from PW3, no other eye witness has been examined by the prosecution in the present case. The presence of the eye witnesses and the public persons on the spot perse stands established as PW3 decisively states that the PCR was called by the public, implying thereby the public persons had gathered on the spot but no independent public witness has FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 15 of 19 been examined by the prosecution and no plausible explanation had been given for not doing the same. At this stage, it becomes relevant to state that PW11 SI Shyam Sunder states in his cross examination conducted by the Ld. Defence Counsel that he reached at the spot at about 07:00 am and saw that 10 to 15 public person had gathered after the accident. He further states that the public persons gathered at the spot stated that they had not witnessed the accident but no statement of any of the said public witnesses is also recorded regarding their refusal to their seeing of the accident.
29. Another crucial witness whose testimony needs to be examined is PW4 i.e. Mohd. Babu Khan. Perusal of the record shows that Babu Khan averred in his examination in chief that the accused was driving the offending vehicle on the fateful day and he had taken the said vehicle on contract for 11 months from accused Wahida but it is matter of record that the said relevant document by virtue of which accused Wahida had given the offending vehicle in question to PW Mohd.Babu Khan had never been brought on record. Perusal of the record furthers shows that the examination in chief of PW4 was deferred merely on this point that the witness PW4 Babu Khan sought some time to produce the original agreement that had beemn executed between him and accused Wahida for a period of 11 months for plying of the offending vehicle on contractual basis by Babu Khan but this witness never turned up again for his deposition. Further, it was for the prosecution to explain as to why the said witness i.e. Babu Khan was not further summoned or examined in chief or cross examined to throw light on the aspects of as to who was the person within whose supervision and superdari the said vehicle was on the fateful day of the accident? This aspect further become vital as vide statement dated 18.01.2014 accused Wahida had claimed herself to be the registered owner of the offending FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 16 of 19 vehicle and the said vehicle was got released by her on superdari vide Ex.P3, bearing her signature at point A on the said document and accused Wahida had nowhere stated or acceded to the fact that PW Babu Khan was the person with whom she had entered into any kind of contract, permitting him to ply the offending vehicle on contractual basis for a period of 11 months. Thus, the examination of PW4 i.e. Babu Khan and his cross examination was extremely crucial and vital to clear the clouds raised upon the case of the prosecution and nonexamination of PW4 by the prosecution has not only punctured the case of the prosecution but has also proved fatal to the prosecution. The examination of PW4 was also incumbent and necessary as the accused Ram Dev has taken a defence that on 07.12.2010 he was present at his house, when Babu Khan being his neighbour came to him and asked him to accompany him to the police station as the vehicle of accused Wahida which had been seized by the police was to be released. Accused Ram Dev further stated in his defence evidence that babu Khan took him to the police station on the pretext of getting the vehicle released on superdari but on reaching the police station, the police officials took the copy of his licence and Aadhar Card and asked him to append his signature and it was only later on, when it came to his knowledge that the said vehicle was involved in the accident and that he has been falsely implicated in the present case.
30. The examination of Babu Khan was further crucial as he stated that on the fateful day it was the accused Ram Dev who was driving the offending vehicle but it was only in his complete examination in chief and cross examination if conducted, it could have been enunciated that in what capacity was the accused driving the offending vehicle if at all he was driving the same on the fateful day. Further the fact that Babu Khan himself deposed that he had FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 17 of 19 entered into a plying contract with Wahida and therefore, the possibility of Babu Khan driving the said vehicle can not be negated in the factual matrix of the present case.
31. Even otherwise, if for the sake of arguments it is perceived that the accused was driving the offending vehicle on the fateful day and the version of the prosecution is believed to be a gospel truth, it further was incumbent upon the prosecution to prove rashness and negligence on the part of the accused as guilt can not be imposed upon a person simply because he was driving the alleged offending vehicle on the fateful day or at the time of the accident as the necessary ingredients to bring home the guilt u/s 279/304A IPC is to prove the rashness and negligence and in this case no iota of evidence has been led by the prosecution on these aspects.
32. No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused beyond reasonable doubt.
33. At this stage, court further deems it fit to state that it is a settled principle of criminal jurisprudence that culpability cannot be established on surmises and FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 18 of 19 conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case, it is pellucid that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
34. Therefore, in light of the above observations and finding, it can be safely culled out that case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses examined by prosecution.
35. Hence, in view of the aforesaid comprehensive discussion, the prosecution has miserably failed to prove the charges levelled against the accused persons and therefore, the accused Ram Dev is hereby acquitted from the offences u/s 279/304A IPC and accused Wahida is acquitted from charges levelled u/s 471 IPC as the charges levelled against her are u/s 471 IPC and this perse places burden upon the prosecution to have proved that the alleged insurance document was "Used" by the accused but in the absence of Babu Khan, being the star witness not being completely examined in this regard and only partly examined by the prosecution, the benefit of doubt goes in favour of accused Wahida. Digitally signed by RICHA Announced in open Court RICHA SHARMA SHARMA Date:
2020.02.12 16:20:55 on 10th Day of February 2020 +0530 (RICHA SHARMA) Metropolitan Magistrate07 (North)Rohini Courts:Delhi FIR No. 157/10 State Vs. Ram Dev & Ors PS Jahangir Puri Page NO. 19 of 19