Delhi District Court
Sh. Rajesh Kumar vs The State (Nct Of Delhi) on 29 August, 2012
IN THE COURT OF SH. ASHUTOSH KUMAR :
ADDITIONAL SESSIONS JUDGE3 : DWARKA COURTS : DELHI
In the matter of:
CA No. 20/2012.
Sh. Rajesh Kumar
S/o Sh. Ram Lal
R/o Village Bhagauta,
District Bijnaur, UP. ... Appellant.
Vs.
The State (NCT of Delhi). ... Respondent.
Date of Filing of Appeal : 25.5.2012.
Date of Advancing Arguments : 27.8.2012.
Date of Judgment : 29.8.2012.
JUDGMENT
1. Vide this judgment, I shall dispose of this appeal u/s 374 CrPC filed by the appellant/convict against the impugned judgment dated 26.4.2012 and order on sentence dated 1.5.2012 passed by Sh. Tarun Yogesh, Ld. MM1, SouthWest District, Dwarka Courts, Delhi, whereby the appellant/accused was convicted for the offence u/s 279/304A IPC and was sentenced to simple imprisonment for two months for the offence u/s 279 IPC and rigorous imprisonment for six months for the offence u/s 304A IPC.
CA No. 20/12. Rajesh Kumar Vs. State. Page No. 1 of 10.
2. Arguments heard. Perused entire record including TCR.
3. The fact that while driving the Maruti car bearing registration no.
DL6C6189, one Sanjay S/o Sh. Har Kishan Lal, had expired in the road accident on 20.6.1998 at about 10.15 pm, Near Red Light T Point, GGR Parade Road (on the way from Gurgaon to Delhi) and the fact that the said car as well as the truck bearing registration no. URM4562 were found in accidental condition, do not appear to be in dispute, and even otherwise the Ld. Trial Court has rightly held on the basis of evidence of the witnesses and material on record that the same stands duly proved.
4. The bone of contention in the appeal is the identity of the appellant/convict as the one who caused the accident while driving the aforesaid truck and the causing of the said accident due to rash and negligent driving by him. The case of the accused as per the suggestions given to the prosecution witnesses and statement of accused u/s 313 CrPC, is that he was not driving the said truck on the date of incident and had not caused the accident. As per the case of the prosecution, there is only one eye witness PW7 Surender Kumar and that the said accident took place on 20.6.1998 at 10.15 pm and no eye witness was found at the spot or at the hospital on the day of accident as admitted by the PW11 (IO) in his cross examination and the said eye witness came into the picture by reaching PS Dhaula Kuan on 22.6.1998 (two days after the incident) and the IO recorded his statement. PW7 (eye witness) in his cross examination has admitted that he was running a CA No. 20/12. Rajesh Kumar Vs. State. Page No. 2 of 10.
government canteen at PS Chanakya Puri at the time of accident and the time of running of the canteen was from 6.00 am to 7.00 pm and that on the date of accident, he went to his home on two wheeler, after closing the canteen. It is surprising as to how after closing the canteen at 7.00 pm at PS Chanakya Puri, the said witness was present near the place of accident at about 10.15 pm (after 3 hours and 15 minutes of accident) as it is common knowledge that the distance between PS Chanakya Puri and the place of accident is approximately 56 kms which would have taken 1015 minutes to cover by a two wheeler in the year 1998, when the alleged accident took place, as the traffic during those days was less (due to lesser population) compared to present time. Further, from the testimony of the said PW it is clear that he was going to Rani Bagh to his relative's place, via Dhaula Kuan, from his canteen. It is common knowledge that the shortest route from PS Chanakya Puri to Rani Bagh is through the road from the Teen Murti which passes through the President's House and Wilingdon (Ram Manohar Lohia) Hospital. Further, to avoid traffic, any normal prudent person would have reached Moti Bagh and then taken Ring Road to reach Rani Bagh via Dhaula Kuan. There was no occasion or reason for a person going from PS Chanakya Puri to Rani Bagh to follow the route where the accident took place as the same was 23 kms off route from Dhaula Kuan Roundabout (during those days) towards Gurgaon side. Also, admittedly as per the said witness on 20.6.1998 when he allegedly saw the accident being caused by the accused, he did not stop at the spot or did not offer any medical aid to accused or did not even make a call to the CA No. 20/12. Rajesh Kumar Vs. State. Page No. 3 of 10.
police station concerned or even at 100 number on that date or even on the next day i.e. on 21.6.1998. Further, even as per the claim of the said witness, he had not telephonically talked to his relative (at Rani Bagh) to whose place he was allegedly going and hence it can be inferred that he was going in a routine manner without any urgency. It is further not the case of the prosecution that the said witness was in a hurry due to any particular problem or urgency due to which he did not stop at the spot on the date of accident. Further, the behaviour of the said witness is not that of a normal prudent person who has allegedly witnessed an accident, resulting in the death of the deceased. Further, admittedly he did not even reach the hospital or approached the police even on the next day. Also the same when seen coupled with the fact that the said witness approached the police only on 22.6.1998 (i.e. two days after the incident), creates doubt on his presence at the spot. For argument sake even if it is assumed that the said witness was present at the spot and had witnessed the accident, the said witness has merely stated that the accused was the one who had caused the accident while driving the said truck in a rash and negligent manner. The witness has merely used the said word 'rash and negligent' in a stereo typed manner without describing as to how the said truck was being driven, at what speed, what was the width of the road and traffic on the said road at that point of time. The said witness has merely deposed that the driver of the said truck was coming from the opposite side and hit the said Maruti car. Nowhere he has described as to from which side the truck was coming, whether from the Dhaula Kuan side or from the CA No. 20/12. Rajesh Kumar Vs. State. Page No. 4 of 10.
Gurgaon side and the said witness has also not described his position, as per the site plan Ex PW11/B. Further, his said statement when seen in the light of site plan Ex PW11/B prepared on 21.6.1998 by the IO, it appears that this witness wants to say that the said truck was coming from Dhaula Kuan side and jumped to the wrong side of divider from where the said Maruti car of deceased was coming from Gurgaon side. However, even if the same is inferred, the same is in contradiction with site plan Ex PW11/B, wherein the said Maruti car in accidental condition is shown at point B and the truck has been shown at point A just behind point B, while going from Gurgaon to Dhaula Kuan, which cannot be the case. If the testimony of this witness is to be believed on the said point then the vehicles should have been in the reverse position. Further, PW10, the owner of the said truck has deposed that at the time of accident, his driver Rajesh Kumar (appellant/convict herein) was driving the truck and the said witness has proved his reply Ex PW10/A1 to the notice u/s 133 of Motor Vehicle Act, bearing his signature at point A, wherein it is mentioned that the appellant was driving the said truck on the date of accident. Admittedly, no employment record or any other material which may show that the appellant was working with said owner on the date of accident, as the driver of the said truck, has been produced or proved on record. Further, even if for argument sake if it is believed that he was working as driver, admittedly PW10 is not a eye witness to the accident. It could very well have been possible that the appellant may not have been driving the said truck on the said date or may have handed over the said truck CA No. 20/12. Rajesh Kumar Vs. State. Page No. 5 of 10.
to any helper or to any other person for driving. For proving the offence, it was essential for the prosecution to prove the identity of the appellant as the one who was driving the truck in a rash and negligent manner and causing of the death of the deceased due to the said accident. The testimony of PW10 does not prove that the appellant was the one who was driving the truck in question at the time of accident or had caused the accident. Further, as per the case of the prosecution, the accident took place on 20.6.1998 and PW7 came into the picture on 22.6.1998 when he had claimed that he witnessed the accident and the appellant had surrendered in the Court on 26.6.1998. Neither the PW7 (eye witness) nor the PW11 (IO) in their testimony have stated as to how the IO identified and came to the conclusion that the accident was caused due to rash and negligent driving of the said truck by the appellant/convict. The PW7 in his testimony has not stated that during investigation he had identified the accused as the one who had caused the accident on 20.6.1998. The PW7 (eye witness) has not deposed that he had identified the accused (appellant herein) on 26.6.1998 in the Court, as the one who had caused the accident (as per story of prosecution). Also PW11 (IO) has not deposed that on 26.6.1998, he came to know about the identification of the accused, as the one who had caused the accident on the basis of identification of the accused by the eye witness (PW11 Surender Kumar). Then it is surprising as to how the IO came to the conclusion that the accused (appellant herein) was the one, who had caused the accident. This is a serious lacunae in the case of the prosecution, which creates doubt on the story of the CA No. 20/12. Rajesh Kumar Vs. State. Page No. 6 of 10.
prosecution. Further, admittedly no judicial TIP of the accused was conducted, although the accused was not arrested at the place of occurrence and was unknown to the eye witness. Admittedly the accused was not arrested at the spot on the date of incident on 20.6.1998 but had surrendered on 26.8.1998 (i.e. after the six days) before the Court and neither the name nor the identity of the accused was known prior to that. The PW7 in his testimony on 14.10.2011, has identified the accused for the first time as the one who had caused the accident i.e. after more then 13 years from the date of incident. In the absence of any other supporting or corroborating material, I am of the considered view that the identification of the accused for the first time in the Court after lapse of so much time from the date of accident, without judicial TIP of the accused, is not sufficient (as the said evidence by its very nature is of inherently weak character) to hold that the accused (appellant herein) was the one who had caused the said accident. On the said point, I am fortified in my view by the law laid down by the Hon'ble Supreme Court in case titled as Hem Singh @ Hemu Vs. Vinod @ Raju & Others, (2009) 6 SCC 748, wherein in para no. 19 and 20 it was held as under: "19. ... ... ... Courts, as is well known, ordinarily, do not give much credence to identification made in the Court for the first time and that too after a long time.
20. In Mahabir Vs. State of Delhi, (2008) 16 SCC 481, this Court held: "10. As was observed by this Court in Matru Vs. State of UP, (1971) 2 SCC 75, CA No. 20/12. Rajesh Kumar Vs. State. Page No. 7 of 10.
identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in Court.
(See Santokh Singh Vs. Izhar Hussain, (1973) 2 SCC 406) The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act, 1972 (in short 'the Evidence Act'). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade.
This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, CA No. 20/12. Rajesh Kumar Vs. State. Page No. 8 of 10.
circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.
11. It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provision of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character."
5. Further in the case of Sukhbir Singh & Another Vs. State of Punjab, 2011 STPL (Web) 270 SC, in para 6, it was held by the Hon'ble Supreme Court as under: "6. ... ... ... It is true that there is no inflexible rule that an identification made for the first time in Court has to be always ruled out of consideration but the board principle is that in the background there is no other evidence against an accused on identification in Court made long after the event is clearly not acceptable. ... ... ..."
6. In view of aforesaid discussions, I am of the considered opinion that the identity of the accused as the one, who was driving the truck in question and while driving the said truck in a rash or negligent manner, had caused the accident resulting into the death of deceased, has not been proved by the prosecution beyond CA No. 20/12. Rajesh Kumar Vs. State. Page No. 9 of 10.
reasonable doubt. The Ld. Trial Court has not correctly appreciated the evidence of the eye witness in its correct perspective and the surrounding circumstances. Consequently, the impugned judgment dated 26.4.2012 and order on sentence dated 1.5.2012 is set aside. Resultantly, the appellant/convict is acquitted for the offences u/s 279/304A IPC. The bail bond and surety bond stands cancelled. Surety discharged. Documents of the surety, if any, be released after cancellation of endorsement.
7. The appeal is disposed of accordingly. The TCR alongwith copy of this judgment be sent to the Ld. Trial Court for information and for consignment as per rules.
8. Appeal file be consigned to record room after necessary compliance.
Announced in the open Court on 29.8.2012.
(ASHUTOSH KUMAR) ADDITIONAL SESSIONS JUDGE3 :
DWARKA COURTS : DELHI CA No. 20/12. Rajesh Kumar Vs. State. Page No. 10 of 10.