Delhi District Court
State vs . Niyaz Ahmed on 20 August, 2022
IN THE COURT OF SH. SNEHIL SHARMA
METROPOLITAN MAGISTRATE (SOUTH-EAST) -08
SAKET COURTS : NEW DELHI
State Vs. Niyaz Ahmed
FIR no. 898 /2012
PS Jamia Nagar
JUDGMENT
a The Sl. No. of the case : 87201/2016 b The date of commission : 03.11.2012
c The date of Institution of the : 10.04.2013 case d The name of complainant : ASI Ranpal Singh through eyewitness Ram Pal e The name of accused and his : Niyaz Ahmed S/o Sh. Mohd.
parentage Jainuddin R/o E 43, Harkesh
Nagar, New Delhi.
f The offence complained of : 279/338/468/471 IPC and 3/181
MV Act
g The plea of accused : Not guilty
h Orders reserved on : 07.06.2022
i The final order : Niyaz Ahmad is acquitted for
offences u/s 279, 337 IPC (section
338 IPC is not made out as the
injuries are simple) and 3/181 MV
Act and convicted for offences u/s
471 IPC.
j The date of judgment : 20.08.2022
Brief statement of reasons for decision of the case
1. It is the case of the prosecution that on 03.11.2012 at FIR NO. 898/2012 PAGE 1 OF PAGE 18 PS Jamia Nagar about 6.40 p.m. at road no. 13, Jasola Bus Stand, Near Foot- over Bridge, New Delhi within the jurisdiction of PS Jamia Nagar accused Niyaz Ahmad was found driving bus bearing no. DLIPB8515 in a manner so rash and negligent so as to endanger human life and personal safety of other and hit one minor girl Kajal and caused grievous injuries to her. Further, accused used the driving license as genuine for the purpose of cheating despite knowing / having reasons to believe the same to be forged. In addition accused was driving said vehicle without any valid driving license. On completion of the investigation and necessary formalities, the charge-sheet was filed in the Court against the accused Niyaz Ahmad for the offences punishable u/s 279/338/468/471 IPC and 3/181 MV Act.
2. Prima facie offence was made out against accused and separate charge was framed against the accused Niyaz Ahmad for offences under sections 279/338/468/471 IPC and 3/181 MV Act, to which he pleaded not guilty and claimed trial.
3. The prosecution examined 10 witnesses in prosecution evidence. PW 1 Rampal, who stated that on 03.11.2012, his daughter Kajal was hit by a bus bearing no. DL 1PB 8515 being driven in a rash and negligent manner and that the said bus was being driven by the accused and hit minor daughter Kajal of PW-1 due to which Kajal sustained injuries. She was taken to the hospital, and then somebody called the police. The FIR NO. 898/2012 PAGE 2 OF PAGE 18 PS Jamia Nagar offending bus and the driver was at the spot at that time. It is further stated by the PW-1 that the accident had been done by the accused and PW-1 has correctly identified the accused in court.
4. PW2 Kajal, who is the victim and has been ascertained to possessed adequate understanding capacity by preliminary questioning has stated that she had been hit by one white coloured bus, while she was playing near the bus stand with her brother Govinda. She further deposed that she had sustained injuries on knee, hand, forehead and other body part and gain her consciousness in hospital.
5. PW3 TU Siddiqui, who is the government approved surveyor, stated that he had inspected the said bus and prepared mechanical inspection report Ex.PW 3/A.
6. PW4 Rohit Sinha, stated that he had reached the spot and came to know that an accident had occurred and that he informed the police. He deposed that on 03.11.2012 at about 6.15 to 6.30 PM when he was returning from his office, he saw crowed at foot-over bridge between Jasola and Sarita Vihar and asked from the public persons as to what had happened and someone from public person told him that an accident had happened on the opposite side and that is why he dialed 100 number. He admits that he does not know the vehicle number involved in accident.
FIR NO. 898/2012 PAGE 3 OF PAGE 18 PS Jamia Nagar
7. PW5 Ct. Rakesh, stated that he joined the investigation in this case on 17.03.2013 and went to house of accused with the IO and that IO arrested accused vide memo Ex.PW5/A and recorded disclosure statement Ex.PW5/C. It is further deposed that the IO recorded the disclosure statement of the accused in his presence. PW5 correctly identified the accused.
8. PW6 is Lalit Mann, stated that his mother Usha is the registered owner of bus bearing no. DL1PB8515 and that he looks after the said bus being her POA Holder and the said vehicle had been given by him to accused for being plied on the route from Jamia Nagar to Gurgaon and that on 03.11.2012, the said vehicle was being driven by accused. He also stated that notice Ex.PW 6/A was received by him u/s 133 MV Act and that he gave his reply on the said notice. PW-6 deposed that the accused working with him for the last five months and it was the accused himself who told him about the accident on 03.11.2012. Accused told him that two-three persons have stopped the vehicle and alleged that he had hit a girl. However, accused told them that he had not hit any girl. It is further deposed that PW-6 did not meet the injured girl and he did not find any accidental mark on the alleged vehicle.
9. PW7 is HC Manvir, who deposed that he reached the spot on 03.11.2012 at about 06.40 PM alongwith IO. He also deposed that at the spot they did not find any injured or accident FIR NO. 898/2012 PAGE 4 OF PAGE 18 PS Jamia Nagar vehicle and come to know that the PCR had taken the injured to the hospital and then he remained at the spot and IO left for the hospital. It is further submitted that after some time IO returned at the spot and handed over the rukka for registration of FIR to PW-7. PW-7 went to PS and got the FIR registered and returned with copy and handed over the same to IO. It is further submitted by PW-7 that my one statement was recorded on 03.11.2012 and other was on 09.11.2012 and on 03.11.2012 complainant PW-1 Rampal told them that the Bus bearing No. DL1PB8515 committed the accident and accused was driving the Bus at very fast speed. It is further submitted by PW-7 that on 09.11.2012 the owner of the offending vehicle submit that accused Niyaz Ahmad was his driver and was driving the vehicle on 03.11.2012. PW-7 also identified the accused correctly. PW-7 was further recalled for cross examination and then he submitted that when they reached at the spot no one met them.
10. PW8 is IO/SI Ran Pal Singh, who stated that he along with Ct. Manveer reached the spot on 03.11.2012 at about 6.40 PM after receiving a call regarding the accident vide DD no. 32 A and then he went to AIIMS Trauma Centre where he found Kajal (injured/ PW-2), who was declared unfit to give a statement and that he came back to the spot, prepared rukka Ex.PW 8/A, got FIR registered, prepared site plan, came to know about number of offending vehicle through a caller namely Rohit and gave notice u/s 133 MV Act to the owner and FIR NO. 898/2012 PAGE 5 OF PAGE 18 PS Jamia Nagar that owner of the offending vehicle came to the PS with accused and that PW-8 seized the documents and arrested accused and also got verified accused's DL, which was found to be fake. PW8 further stated that accused refused to get TIP conducted. It was also deposed by PW-8 that Manveer was at the spot and when he reached there no eye witness was present, though he tried to find the eyewitness. PW-8 correctly identified the vehicle and accused in court.
11. PW9 is Tarkeshwar Tiwari, Senior Clerk RTO, Deoria, who stated that DL bearing no. 15044 was issued by RTO Dewariya in the name of one Shamim Khan on 04.12.2009 (Ex. PW-9/A and Ex. PW-9/B).
12. PW10 is Usha, who stated that she had received notice Ex.PW 1/6 and gave her reply dated 09.11.2012 i.e. Ex.PW10/A and that the offending vehicle was got released by her on superdari, being its registered owner. She has correctly identified the vehicle.
13. All the incriminating evidence was put to the accused, namely, Niyaz Ahmad and accused stated that he has been falsely implicated in the present case and DL which has been confiscated by the IO vide seizure memo Ex.PW 7/F is not his DL and that he did not give the same to the IO. IO had earlier obtained his signatures on some papers. He was not aware about the contents of the said papers and further stated that his DL is FIR NO. 898/2012 PAGE 6 OF PAGE 18 PS Jamia Nagar DL bearing no.841556 issued by Licensing Authority Deoria, UP. In addition he stated that IO had also demanded some money from him and on refusal to pay money, he was falsely implicated by the IO in this case. Though accused stated that he wishes to lead DE. However, he called only one evidence on DE to prove the validity of DL and report submitted by RTO Deoria, UP, clarified that accused licence no. UP 52110010123 is valid for transportation from 17.02.2022 to 16.02.2027. He did not bring any more witness for DE despite opportunity and on 04.05.2022, DE was closed at the request of the accused.
14. It has been argued by Ld. APP for the State that case of the prosecution has been fully proved as all the evidences are in line with the prosecution story. On the other hand, Ld. Counsel for accused has argued that accused has been falsely implicated in the present case and there are discrepancies in prosecution story and fabricated case has been made against the accused and DL of the accused is not forged. It is further argued by the Ld. Counsel for the accused that PW1 was never cross examined and hence he cannot be read in evidence and offending vehicle is not proved from evidence.
15. I have heard Ld. APP for the State and Ld. Defence counsel for accused and considered the respective arguments as well as gone through case file very carefully.
16. It is settled proposition of criminal law that prosecution is FIR NO. 898/2012 PAGE 7 OF PAGE 18 PS Jamia Nagar supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the case is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
17. For the offence u/s 279 IPC, The Section necessitates two things: (i) Driving or riding in a public way and (ii) Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to others. To find out what is rash and negligent, the preliminary conditions are (I) how the vehicle is driven; (ii) whether it is driven rashly or negligently; and (iii) whether such rash or negligent driving endangers human life. Here endangering human life means that the accused was driving the vehicle in a public place in a way that endangered human life or was likely to cause harm or injury to others. It is forbidden to take the danger of conducting such an act carelessly or without regard for the consequences.
FIR NO. 898/2012 PAGE 8 OF PAGE 18 PS Jamia Nagar
18. To prove offence u/s 279 IPC, prosecution has relied upon PW1 / Ram Pal, PW 2/ Baby Kajal, PW4/ Rohit Sinha. PW1 has deposed that on 03.11.2012 at 6:30 PM his daughter reached near the bus stand and while playing, a bus bearing no. DLIPB8515 came from the Kalindi Kunj side in Rash and negligent manner and hit her daughter Kajal and she sustained injuries and taken to hospital by PCR. Accused has been identified by the PW1 in the court but the offending vehicle was not put for its identification and examination in chief was deferred.
19. Further PW1 in his complaint and in his examination in chief deposed that accused came from Kalandikunj side in rash and negligent manner and hit his daughter. But PW1 did not explain the circumstances on which, this court can reach to the conclusion that the driver was driving in rash and negligent manner as usually at the bus stands, bus speed remain slow.
20. This court finds that PW1 was partly examined in chief and neither his examination in chief was completed nor he was subjected to cross examination due to his untimely demise. As on 28.11.2016, he was dropped from the list of witnesses as report was received that PW1 has expired.
21. The general proposition that the evidence of a witness who is not subjected to cross-examination cannot be looked into, cannot be disputed. But the question to be considered in this FIR NO. 898/2012 PAGE 9 OF PAGE 18 PS Jamia Nagar case is whether the evidence of PW1 who was partly examined in chief and was not available for cross-examination due to his death in the meanwhile, is admissible in evidence or not. Cross- examination is a powerful weapon in the hands of adversary. Non-grant of an opportunity to cross-examine a witness may even attract the doctrine of fairness and may be held to be violative of principles of natural justice.
22. The law says that evidence of above discussed witness does not ipso facto become inadmissible and washed off the record - it still can be considered though of little weight" Kerala High Court Food Inspector vs James N.T. And Anr. on 10 November, 1997 citations: 1998 (1) ALT Cri 221, 1998 CriLJ 3494.
23. Now for the corroboration, if this court looks at the statement of PW2/ injured this court finds that neither any bus number is disclosed nor accused has been identified nor the manner that how the bus hit her is explained nor offending vehicle was put for identification before her by prosecution nor any description of the accused is disclosed and even the time is disclosed of morning (AM seems to be clerical mistake). Further she deposed that she was playing with her brother Govinda near the bus stand and she did not confirm his father's presence at the spot. It is found that Govinda was the eyewitness of the incident and he was never cited or brought before the court by the prosecution. She further deposed that she had FIR NO. 898/2012 PAGE 10 OF PAGE 18 PS Jamia Nagar sustained injuries on knee, hand, forehead and other body part and gain her consciousness in hospital. Further, order dated 10.07.2018 clarifies that photographs of the bus/ offending vehicle were never taken in this case during the investigation and has not been filed along with the charge-sheet and fresh photographs were ordered. Perusal of the charge-sheet shows that chassis number and engine number cannot be read from the fresh photographs too and photographs have not been exhibited and hence PW2 did not corroborate the statement of PW1 on the aspect of identity of the accused and identity of vehicle.
24. Further, we tried to corroborate the testimony of PW1 with PW4, PW4 deposed that he is not witness to the accident. PW4 has further stated that he was returning from office and proceeding towards his house and on the way he saw the crowd at foot-over bride between Jasola and Sarita Vihar and stopped. PW4 had merely dialed 100 number on asking of the public person. Also, PW1 submitted that offending bus and accused/ driver were at the spot only. But PW4/ Rohit Sinha in his statement deposed that he neither saw the accident nor know the accused person nor saw the victim as PW4 submitted that he was informed about accident by other persons present at the spot. This court fails to understand that why the eyewitnesses were not made part of the investigation rather a person who has never seen anything is cited and called as witness. Also PW4 did not find bus or accused at the spot.
FIR NO. 898/2012 PAGE 11 OF PAGE 18 PS Jamia Nagar
25. Furthermore, PW6/Lalit Mann deposed that accused told him that he had not hit any girl by the said vehicle and that he found no accidental mark on the said vehicle. PW7/ HC Manveer deposed that on the day of accident they reached at the spot about 6.40 pm but he did not find any injured or any vehicle there. Though he came to know that PCR had taken the injured to the hospital from there. He further submitted that he came to know about the incident, bus number and identity of the accused/ driver from PW1 i.e. Ram Pal / complainant. But PW8 deposed that he came to know about the offending vehicle through a caller namely Rohit/ PW4. But PW4/ Rohit deposed that he came to know about the accident from some other person and dialed at 100 number and left the place. PW4 further deposed that IO did not meet him. PW7 was recalled for cross examination where he deposed that when he reached at the spot no one met him. PW8 in his examination deposed that when he reached the spot no eyewitness was present there. He searched for the eyewitness but could not find which is a contradictory statement with PW7, who deposed that PW1 was the eyewitness and informed him the same. From the above narration this court fails to understand that why a father i.e. PW1 will wait for police at the spot rather than to take care of his injured daughter at the hospital. Further this court fails to understand that if as per PW7, PW1 was present there then how can the accused flee from the spot alongwith bus. Another aspect that owner of the bus (PW6) had brought the accused which cast doubt on the case of prosecution as to whether accused was actually driving FIR NO. 898/2012 PAGE 12 OF PAGE 18 PS Jamia Nagar the offending bus on the date of incident.
26. For the argument that public witnesses who actually saw the accused committing the accident and driving the vehicle in rash and negligent manner, is not made witness. I also rely upon observations in case titled Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, by Hon'ble High Court of Punjab & Haryana:
"...It is well settled principle of the law that the Investigating Agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case.
In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the Investigating Officer can take action against such a person under the law. Had it been a fact that he witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non-joining the witnesses from the public is an after thought and is not worthy of credence. All these facts taken together make the prosecution case highly doubtful..." In the absence of any independent witness having been joined in the investigation, possibility of false implication of the accused by the police in the present case cannot be ruled out.
FIR NO. 898/2012 PAGE 13 OF PAGE 18 PS Jamia Nagar
27. It is pertinent to mention that if we believe the story of the prosecution then also it is not explained that how a bus driver alongwith bus has eloped from the place after the accident where as per PW4, crowd was gathered. It was hearsay evidence but PW8/ IO deposed in court that he came to know about offending vehicle number through PW4. In these circumstances there is not a single witness who saw the accused driving the vehicle, who saw that bus was being driven in rash and negligent manner by the accused, who saw the accused fleeing away from the spot. Because it is a common noticeable fact that when this big accident had happened, usually public gathers and stops the vehicle.
28. Hence, prosecution has not proved that accused was the driver of the offending vehicle bearing no. DL1PB8515 and it was being driven in rash and negligent manner on the date of incident. If the bus was driven in rash and negligent manner then the other child or some other person present at the bus stop should also suffer and become victim of the said accident.
29. Additionally, PW6 (who is GPA holder of the bus) submitted that it was the driver (accused) who told him about the incident. PW6 also deposed that driver/accused told him that 2-3 persons are alleging that driver/accused had hit a girl. However, driver/accused told him that he had not hit the girl. The same is confirmed from the arguments where accused has argued that he (accused) had blown horn as the girl was playing FIR NO. 898/2012 PAGE 14 OF PAGE 18 PS Jamia Nagar near the bus stand and in fear, she suddenly hit herself in bus and accused is innocent. Because accused went away from the spot alongwith the bus without any altercation with father of the victim or with public present at the bus stand. PW8/IO also deposed that at 6:40 PM, he did not find injured or accident vehicle at the spot though he admits that within 10 minutes of call, he reached at spot and found that PCR has taken injured to hospital and opined injury as simple. If as per the PW1/ complainant, accused was at spot alongwith the bus and PCR took the injured to hospital (as per PW1 and PW8) then why PCR/ one of the police official of the PCR did not stop the accused at the spot alongwith bus to wait for IO to join the investigation.
30. Further PW7, could not disclose the complete version and on request of Ld. APP to cross him, he disclosed the facts and said that he met PW1/Ram Pal (i.e. father of the injured) at the spot. But this version he gave is not satisfactory as why a father will wait at spot rather than taking care of his injured daughter. PW7 in his further cross examination deposed that no one met them when they reached at crime spot while in examination in chief, he deposed that father/complainant met him. Hence, testimony of PW7 is not establishing the guilt beyond reasonable doubt.
31. As observed by the Supreme Court in State of Rajasthan FIR NO. 898/2012 PAGE 15 OF PAGE 18 PS Jamia Nagar v. Kalki (1981) 2 SCC 752) normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there however honest and truthful a witness be. Material discrepancies are those which are not normal and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party;s case, material discrepancies do so. Hence, the above discussed discrepancies are material discrepancies.
32. The above discussed discrepancies and lacuna in investigation alongwith the very fact that neither the identity of the accused is established nor his presence at the crime spot is admitted nor any eyewitness is brought. Therefore, there is no harm in coming to the conclusion that the case of the prosecution is not proved beyond reasonable doubt.
33. Hence, prosecution has failed to prove that accused was driving the vehicle in rash and negligent manner and caused accident and hence accused is acquitted for the offences u/s 279 and 337 IPC (section 338 IPC is not made out as the injuries are simple) and for 3/181 MV Act, it has to be proved that accused was driving the vehicle without DL but, none of the above prosecution witnesses have deposed that they have seen accused FIR NO. 898/2012 PAGE 16 OF PAGE 18 PS Jamia Nagar driving the vehicle in question on date of incident. Therefore, offence u/s 3/181 MV Act is not attracted.
34. Now, for the offence u/s 468 and 471 IPC, PW8 deposed that on verification of driving license of accused from the authority, he found it to be fake. One suggestion also came with respect to same that PW8 himself planted fake license on accused to falsely implicate him and the reason for false implications is shown as demand of Rs. 10000/- to settle the matter. But even after leading DE, same could not be proved as a part of defence. As not a single witness is called to prove the demand of money by the IO. Further PW9, Clerk from Deoria, RTO has deposed that DL seized from accused bearing no. 15044 was issued in the name of one Shamim Khan and not in the name of accused (Ex.PW9/B). Furthermore report received from licensing authority Deoria, UP submitted that license no UP52110010123 belongs to accused and Valid for transport from 17.02.2022 to 16.02.2027. But the date of accident is before 17.02.2022. Though accused Niyaz Ahmad has disputed the same DL and submit in his statement recorded u/s 313 Cr.PC that his DL number is 841556 but same was found made after the date of incident. Even the fact that accused was working as driver for the GPA holder of the bus is confirmed by PW6/ GPA holder of the bus and no explanation has ever come as how accused came in possession of fake DL. Hence, he can be convicted for the offence punishable u/s 471 IPC but for the FIR NO. 898/2012 PAGE 17 OF PAGE 18 PS Jamia Nagar offence punishable u/s 468 IPC evidences are not brought to show that accused has committed forgery of the DL in question and once it is not proved that forgery has been committed by the accused therefore essential ingredients of section u/s 468 IPC are not attracted.
35. Therefore, accused Niyaz Ahmad is acquitted for offences u/s 279, 337 IPC (section 338 IPC is not made out as the injuries are simple) and 3/181 MV Act and convicted for offences u/s 471 IPC.
36. Convict be heard on point of sentence separately.
37. Copy of judgment be provided to accused free of cost.
Announced in the open (Snehil Sharma)
Court on 20.08.2022 MM-08, (SE) SAKET COURTS,
NEW DELHI
FIR NO. 898/2012 PAGE 18 OF PAGE 18
PS Jamia Nagar