Delhi District Court
State vs . Sanjay Kumar on 9 August, 2018
THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR NO. DL CT020007562007
CIS No. 297004/16
State Vs. Sanjay Kumar
FIR No. 70/07
PS. Nabi Karim
U/s. 279/304A IPC
JUDGMENT
1) The date of commission of offence : 28.02.2007
2) The name of the complainant : HC Moolchand
3) The name & parentage of accused : Sanjay Kumar
S/o. Janardhan
R/o. Village Baliya, PO Kota
Mukund Pur, PS & District
Maharajganj, UP.
4) Offence complained of : 279/304A IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 09.08.2018
Date of Institution : 01.11.2007
Judgment announced on : 09.08.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused Sanjay Kumar is that on
28.02.2007at about 6:20 AM at Paharganj flyover, DBG Road, near police picket Nabi Karim he was found driving bus no. DL 1P 6976(hereinafter as 'offending bus' for short) in rash or negligent manner and while so driving hit against one cycle rickshaw and caused death of Manoj Kumar S/o Shiv Parshad who was sitting in the cycle rickshaw.
2) After completion of investigation, charge sheet was filed against the accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused. Arguments on point of notice were heard. Vide order dated 06.01.2009, a notice u/s. 279/304A IPC was served upon the accused Sanjay Kumar, to which he pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined sixteen witnesses. Statement of accused was recorded under section 313 Cr.P.C in which he denied all the allegations and wish to lead DE. However no defence evidence was led and thereafter DE was closed.
4) I have heard the arguments of Ld. APP for State and Ld Counsel for accused. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as follows: Eye Witness 5.1) PW3 HC Moolchand deposed that on 28.02.2007, he was on picket duty at Paharganj flyover. He deposed that at about 6:20 AM he saw the accused came driving offending bus in rash or negligent manner and hit against a rickshaw due to which the person sitting in the rickshaw sustained injuries. He deposed that he informed control room and PCR removed injured to the hospital. IO ASI Ram Bhagat came at the spot along with Ct Meghraj. His statement Ex.PW3/A was recorded and thereafter offending bus was seized. He deposed that the site plan was prepared at his instance. He correctly identified the accused in the court. Witnesses to the investigation.
5.2) PW6 Ct Meghraj and PW13 SI Ram Bhagat deposed on the same lines that on 28.02.2007, after receiving DD no.5A Ex.PW13/A they reached at the spot where they found offending bus and cycle rickshaw in accidental condition. Injured already shifted to hospital. MLC of injured was collected. Thereafter at the spot the statement of HC Moolchand, who was the eye witness of the incident, was recorded. Rukka was prepared and FIR got registered. Site plan Ex.PW13/C was prepared. Offending bus and cycle rickshaw were seized. Notice U/s 133 MV Act was served upon the registered owner and thereafter accused was brought into the police station where he was arrested and personally searched. Mechanical inspection of the bus was got conducted vide Ex.PW8/A. On 02.03.2007 information was received vide DD no.8 A Ex.PW13/C that the injured Manoj got expired. Postmortem of dead body was got conducted. Investigation was completed and thereafter chargesheet was filed. They correctly identified the accused, offending bus and cycle rickshaw in the court by virtue of photographs ExP1(colly) Doctors.
5.3) PW14 Dr Nikunj Jain proved the MLC no. 10993 of the injured Manoj as Ex.PW13/D. 5.4) PW15 Smt Laksmi, Record Clerk of RML hospital proved the death summary of deceased Manoj as Ex.PW15/A. 5.5) PW13 Dr Anil Mittal proved the already exhibited postmortem report of the deceased Manoj as Ex.PW13/E. Formal Witnesses.
5.6) PW1 ASI Surender Kumar proved the present FIR as Ex.PW1/A. 5.7) PW2 Raju, PW5 Ravi and PW7 Siya Ram deposed that they identified the dead body of deceased Manoj in the mortuary and thereafter received the dead body of deceased vide Ex.PW2/A. 5.8) PW4 Sh Vijender Dalal deposed that he gave reply to the notice U/s 133 MV Act vide Ex.PW4/A and got the offending bus released on superdari vide Ex.PW4/B. 5.9) PW8 T.U Siddiqui proved the mechanical inspection report of the offending bus as Ex.PW8/A. 5.10) PW9 Ct Om Parkash deposed that on 28.02.2007 he was performing his duty as duty constable in LHMC Hospital. He deposed that one injured Manoj was shifted to the hospital by PCR Van where his MLC was prepared. He deposed that he handed over the personal search articles of the injured to the IO which were seized by the IO vide Ex.PW9/A. 5.11) PW10 Retd ASI Dharam Pal deposed that on 28.02.2007 he was on duty at Oscar27, IPCR Van. He deposed that he received a call from police control room that a accident took place at Paharganj flyover. He deposed that he shifted the injured to the hospital.
5.12) PW11 Chiranjee Lal Sharma deposed that on 01.03.2007 he clicked some photographs of offending bus and a broken rickshaw. Photographs were proved as Ex.PW1(colly).
5.13) PW12 Ct Rakesh deposed that on 02.03.2007 after receiving DD no.8 A he went to RML Hospital where ASI Ram Bhagat collected inquest paper of the deceased Manoj and thereafter they went to mortuary of JPN Hospital. Postmortem of dead body was conducted and thereafter dead body was handed over to the relatives of deceased.
6) It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of the accused beyond reasonable doubts. No matter how weak the defence of accused is but the golden rule of the criminal jurisprudence is that the case of prosecution has to stand on its own legs.
7) It is not in dispute that the accused was the driver of the offending bus. When the notice U/s 251 Cr.PC was served upon the accused he admitted that he was driving the offending bus. When the accused was examined U/s 313 Cr.PC there also accused admitted that he was driving the offending bus. Thus it stands proved on record by virtue of admission of accused that on the day of incident he was driving the offending bus.
8) The accused denied of driving the offending bus rashly or negligently. Accused stated during examination U/s 313 Cr.PC that he was driving the offending bus at a very slow speed due to foggy weather and low visibility. Thus the poser remains to be decided in the present case is whether the accused was rash or negligent while driving the offending bus at the time of incident or not.
9) The prosecution has examined only one eye witness in the present case who is PW3 HC Moolchand. PW3 deposed that on 28.02.2007 at about 6:20 AM when he was present at Paharganj flyover he saw the accused came driving offending bus from the side of Ajmeri Gate towards DBG Road in rash or negligent manner and hit against a cycle rickshaw due to which the person sitting in the rickshaw sustained injuries and become unconscious. He deposed that he informed the control room, PCR came at the spot and injured was shifted to the hospital. Thereafter IO ASI Ram Bhagat came at the spot along with Ct Meghraj. His statement was recorded and FIR got registered.
10) Ld Defence Counsel vehemently argued that PW3 is a planted witness and no reliance could be placed upon his testimony. Perusal of testimony of PW3 reveals that he remained at the spot from the time of accident and till the entire proceedings of the present case completed on the day of incident. If that be so than PW3 must be available at the spot when the IO ASI Ram Bhagat and Ct Meghraj came at the spot after receiving the information regarding the accident. PW6 Ct Meghraj and PW13 SI Ram Bhagat nowhere deposed in their examinationinchief that when they reached at the spot after receiving DD no.5 A Dated 28.02.2007 they met HC Moolchand. IO deposed that he met HC Moolchand when he came back from the hospital. PW10 ASI Dharampal who shifted the injured to the hospital from the spot also not deposed about the presence of PW3 HC Moolchand at the spot. Had PW3 was available at the spot during the entire period of the investigation conducted on 28.02.2007 than he must have met PW10, PW6 and PW13 when they reached at the spot. The fact that PW3 was not found at the spot by PW6, PW10 and PW13 when they reached at the spot after receiving the intimation regarding of accident, creates a doubt in the presence of PW3 at the spot of incident at the relevant time.
11) There is no documentary evidence on record in the form of departure entry or any other DD entry vide which it could be proved on record that PW3 HC Moolchand was on duty at the spot. As per Punjab Police Rules the departure entry of the staff posted in the police station is required to be done. Withholding this crucial evidence for proving the presence of PW3 at Paharganj flyover at the relevant time is supporting the argument of Ld Defence Counsel that PW3 was not present at the spot at the time of incident.
12) PW3 deposed that the injured was shifted to the hospital by PCR in his presence. When the question was asked from PW3 as to the presence of rickshaw puller Ram Pukar, PW3 deposed that rickshaw puller had went away. However the perusal of MLC Ex.PW13/D of the injured reveals that the injured was accompanied to the hospital by the rickshaw puller Ram Pukar. The statement U/s 161 Cr.PC of rickshaw puller Ram Pukar is also to the effect that he accompanied injured to the hospital. This reveals that PW3 was not present at the spot when the injured was shifted to the hospital. Had PW3 was present at the spot at the time of incident than he must have knowledge that the injured was accompanied by rickshaw puller to the hospital. This fact converts the doubt as to the presence of PW3 at the spot into certainty that PW3 was not present at the spot during the relevant time.
13) There is another glaring fact in the present case which leads to doubt on the entire investigation. Perusal of statement U/s 161 Cr.PC of rickshaw puller Ram Pukar reveals that his statement was recorded by the IO in the hospital prior to recording of statement of PW3 HC Moolchand. Ram Pukar also told to the police in the hospital that his rickshaw was hit by the offending bus which was being driven in rash or negligent manner. If that be so than why the rukka was not prepared on the statement of Ram Pukar by the IO. Why the IO not prepared rukka on the statement of independent witness rather on the statement of a police official is an unanswered question on the part of State. This reveals that the statement of rickshaw puller Ram Pukar was inserted by the police later on.
14) PW3 deposed in the crossexamination that after the accident accused went down from the bus and went away. PW3 is not an ordinary lay man rather a police official. PW3 not deposed that he tried to apprehend the accused. PW3 not shifted the injured to the hospital and was standing at the spot. It is not believable that PW 3 simply let the driver of the offending bus fled away from the spot. This also leads to the conclusion that PW3 was not present at the spot at the time of incident. Accordingly, in view of abovediscussion no reliance could be placed upon the testimony of PW3.
15) The rickshaw puller Ram Pukar could not be examined as prosecution witness in the present case as he remained unserved during the trial. Summons issued to him through concerned DCP also but of no avail. The report of DCP is on record vide letter no. 1812728/Legal Cell/Central District/Delhi dated 14.11.2017. The failure of the prosecution to examine crucial witness Ram Pukar is fatal to the case of prosecution.
16) Thus in view of abovediscussion it could be concluded that the case of the prosecution fails as PW3 is not a reliable witness and the rickshaw puller could not be examined. The other prosecution witnesses are formal witness to the investigation, doctors etc and by virtue of their testimony the rashness or negligence on the part of accused cannot be proved.
17) Even for the sake of arguments it is assumed that the PW3 was present at the spot at the time of incident than also the requirement of proving 'rashness' or 'negligence' on the part of accused stands not fulfilled. PW3 simply deposed that offending bus was being driven by the accused rashly or negligently. This is the blanket expression. It was not deposed by PW3 as to in what manner the offending vehicle was being driven by the accused. Whether the accused was driving the offending vehicle in zig zag manner or in some other negligent manner has not been brought on record specifically. The subjective opinion of the witnesses qua rash or negligent driving could not substitute the objective criteria for deciding the essential element of 'rash or negligent' act by the accused required for offence U/s 279 IPC. Here the observations made by Hon'ble High Court of Delhi in the judgment titled as Vinod Kumar Vs State Cr Revision Petition no. 131/10 decided on 13.10.2011 is relevant. Same are as follows: "No evidence or any other material was placed on record by the prosecution to show the manner in which the petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent driving which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one.
The essential ingredients to constitute an offence punishable under section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person. For an offence under section 304 A IPC the act of the accused must be rash and negligent, which should be responsible for the death which does not amount to culpable homicide. The prosecution in the present case has failed to how the act of the petitioner was rash and negligent manner to bring the same under the purview of sections 279/304 A IPC"
18) Thus by virtue of testimony of PW3 rashness or negligence not proved. In the rukka it is mentioned that PW3 told to the IO that the offending bus was being driven in high speed. Firstly the high speed in itself is not a rash or negligent driving. On this aspect reliance could be placed upon judgment titled as 'Abdul Subhan Vs. State(NCT of Delhi.), 2006, Cril.J 1089, 138(2006) DLT 562'. Further prosecution even fail to bring the fact as to the fast driving by the accused on record. No efforts were made to bring the approximate speed of the offending bus at the time of incident which might be termed as high speed considering the time and place of accident. No skid marks were lifted from the spot qua the alleged fact of fast driving by the accused. The alleged fact of driving the offending vehicle in high speed by the accused also not proved on record.
19) Further perusal of site plan Ex.PW13/C reveals that both rickshaw and offending vehicle were going from same direction i.e. east to west. It is shown in the site plan that the left side of the bus hit against the right side of the rickshaw. In this scenario the rickshaw must have suffered damages towards the right side.
However perusal of photographs ExP1(colly) reveals that the left side wheel and back portion of the rickshaw suffered damage. This is not possible in view of the directions of the vehicle mentioned in the site plan. The damage which the rickshaw suffered could be possible if the rickshaw was hit by the right side of the bus or both the vehicles coming in opposite directions hit against each other, which seems contrary to the site plan. Thus the site plan itself and the movements of the vehicles as depicted in the site plan are not believable. The benefit of the same should be given to the accused.
20) It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr. Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
21) Thus in view of above discussion, the prosecution is not able to discharge its burden of proof. Accordingly accused Sanjay Kumar S/o Janardhan Verma is hereby acquitted from the present case. File be consigned to Record Room subject to furnishing of bail bonds as per section 437 A Cr.PC.
Digitally signed by KAPIL KAPIL KUMAR
KUMAR Date:
2018.08.09
13:06:42 +0530
Announced in open court (Kapil Kumar)
on 09.08.2018 MM5/Central District
Tis Hazari Courts/Delhi,