Delhi District Court
R/O. H. No. 64 vs The State on 1 March, 2017
IN THE COURT OF SH BRIJESH SETHI, DISTT. & SESSIONS
JUDGE (SOUTH-WEST) DWARKA COURTS, NEW DELHI.
Crl. Rev. No. 43/16
(ID No. CR/12705/2016)
Braham Parkash Yadav
S/o. Sh. Ganpat Singh Yadav
R/o. H. No. 64, Sector-15,
Part-I, Gurgaon, Haryana. ..... Petitioner
Versus
The State ..... Respondent
Date of Institution : 05.10.2016
Order reserved on : 27.02.2017
Order pronounced on : 01.03.2017
JUDGMENT
1. Vide this order, I shall dispose of the revision petition filed by the petitioner against the order dated 07.09.2016 of Ld. Metropolitan Magistrate, Dwarka Courts vide which, the Ld. MM has ordered to serve a notice u/s. 251 CrPC for offences u/s. 279/338 IPC upon the petitioner/ accused.
2. The brief facts as alleged by the prosecution are that on 29.10. 2014 at about 11.00 a.m. at T-point Smalkha, Dwarka Link Road, Kapashra, New Delhi within the jurisdiction of P.S. Kapashera, petitioner Bharam Parkash Cr No.43/2016 Braham Parkash Yadav vs. State 1 of 32 Yadav was found driving Gypsy bearing no. DL-1-6580 in a rash and negligent manner so as to endanger human life and personal safety of the others and while so driving, the aforesaid Gypsy, he had hit one motorcycle bearing no. DL-9-SL-2436 which was driven by on Sh. Arun Kumar Gupta and caused him grievous injuries.
3. The case has investigated by IO HC Naresh Chand and after completion of the investigation, he had filed a chargesheet u/s. 279/338 IPC.
4. The Ld. MM had taken cognizance of the offences on 16.12.2015. Thereafter on 07.09.2016 a notice under Section 251 CrPC for offences under Section 279/338 IPC was served upon the accused to which he had pleaded not guilty and claimed trial.
5. The present revision petition has been filed by the petitioner against the impugned order of Ld. MM dt. 07.09.2016 vide which notice has been served upon the petitioner u/s. 279/338 IPC. The Ld. Counsel for the petitioner has submitted that the order passed by the Ld. MM is not in accordance with law as the Ld. MM has failed to appreciate the fact that there is considerable delay in lodging the FIR and the evidence on record collected by the IO does not disclose commission of any offence by the petitioner.
6. Ld. Counsel for the petitioner has argued that the complainant did not make any police complaint till 23.11.2014 i.e. almost for four weeks after the incident. It Cr No.43/2016 Braham Parkash Yadav vs. State 2 of 32 is further argued by Ld. Counsel for the petitioner that during the investigation nothing has come on record regarding the identification of the driver at the time of alleged incident. The only material on the basis of which the petitioner has been charge-sheeted is the call detail record and even the said call record is one and half hour after the alleged time of incident. It is further submitted that Ld. Trial Court has failed to appreciate the law that to frame a notice against the accused there must be a prima facie strong suspicion, which is totally lacking in the present case.
7. Ld. Counsel for the petitioner has further argued that the Ld. Trial Court has failed to appreciate the fact that there is a consistent change with regard to the description of offending vehicle. D.D. No. 12A recorded at 11.10 A.M. (PCR Call) does not give description of the Vehicle. In MLC, the vehicle is described as police van and it mentions that there is alleged history of having been "hit by police van". However, no vehicle number is mentioned in MLC. In the discharge summary dated 01.11.2014, RTA (Motor cycle Vs. Car) is mentioned. Lastly only on 23.11.2014, the complainant has stated that a gypsy bearing no. DL-1-6580 had hit him. It is, thus, submitted by Ld. Counsel for the petitioner that there is a constant change of description of the vehicle i.e. from van to car and then from car to Gypsy. He has further argued that there is a delay of about four weeks in lodging the FIR.
Cr No.43/2016 Braham Parkash Yadav vs. State 3 of 32
8. It is further argued by Ld. Counsel for the petitioner that the Ld. Trial Court has failed to appreciate that the two statements of Ct. Man Singh (the driver on duty on the vehicle in question) recorded by the IO are contrary to each other. In the first statement dated 31.03.2015 Ct. Man Singh has stated that he was on duty on the day of incident and was in Saket Courts along with petitioner and whereas in the second statement dated 03.05.2015, he has stated that he had joined the duty at 12 noon only which is even contrary to his call record also.
9. It is further submitted by the petitioner that Ld. Trial Court has failed to appreciate that the details regarding the mechanical inspection report are not worthy of reliance as the motorcycle of the injured was seized on 30.03.2015 and inspected on 02.04.2015 i.e. almost five months after the incident.
10. It is further submitted by the petitioner that Ld. Trial Court has failed to appreciate that the alleged vehicle of the petitioner was seized on 28.07.2015 and inspected on 30.07.2015 i.e. after almost nine months after the incident and it is no where mentioned on record that both the vehicles have not been used for five/nine months before the Mechanical inspection. On the contrary, it is worth while to mention that the alleged vehicle of the petitioner was in dumpyard after being condemned since first week of June, 2015 i.e. two months before seizure. Ld. Counsel has, thus, argued that mechanical inspection report Cr No.43/2016 Braham Parkash Yadav vs. State 4 of 32 cannot be considered for framing notice against the petitioner.
11. It is further submitted by the Ld. Counsel for the petitioner that Ld. Trial Court has failed to appreciate the fact that the both complainant and the other alleged witness HC Laxman, have stated that they have not seen the driver of the alleged vehicle and cannot identify him.
12. Ld. Addl. PP for the State on the other hand has argued that there is sufficient material on record to frame a notice against the petitioner and Ld. Trial court has rightly framed a notice u/s. 279/338 IPC. Ld. Addl. PP for the State has further submitted that at the stage of framing of notice, the court need not go into the details of the evidence and since there is statement of the complainant on record giving number of the vehicle which was being driven by the petitioner, there is no infirmity in the order of the Ld. MM vide which he has framed a notice u/s. 279/338 IPC against the petitioner. He has, therefore, prayed for dismissal of the revision-petition.
13. I have heard the Ld. Counsel for the petitioner and Ld. Addl. PP for the State and also perused the record.
14. The law on the question of consideration of charge or framing of notice u/s. 251 CrPC is well settled. While framing a charge or a notice u/s. 251 CrPC, a Magistrate is expected to apply his mind to the facts of the case, Cr No.43/2016 Braham Parkash Yadav vs. State 5 of 32 keeping in view the essential ingredients of the offence for which the accused is sought to be charged. The obligation to discharge the accused under section 239 arises when the magistrate considers the charge against the accused to be groundless. The real test for determining whether the charge is groundless is to find out that the materials available on record, even if un- rebutted, would not make out any case whatsoever. The word "groundless" means without any basis or foundation. Where there is even a suspicion about commission of offence, the charge cannot be stated as groundless. In this regard, reliance can also be placed upon two judgments of the Hon'ble Supreme Court in "State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018"
and "State of M.P Vs. S.B. Johari 2000 Crl. L.J. 944 (SC)".
15. In the case State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018, the Hon'ble Supreme Court has observed as under :
"Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the Cr No.43/2016 Braham Parkash Yadav vs. State 6 of 32 accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-
examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. (emphasis supplied).
16. In Union of India Vs. Prafulla Kumar Samal 1979 Crl. L. J. 154, Hon'ble Supreme Court made the following observations regarding the test to be applied at the stage of consideration of the case for charge :
1) That the Judge while considering the question of framing the charges under section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out:
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be Cr No.43/2016 Braham Parkash Yadav vs. State 7 of 32 fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
17. Similar observations were made in State of M.P Vs. S. B. Johari 2000 Crl. L. J. 944(SC) in the following words :
"It is settled law that at the stage of framing the charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross-examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial." (empahsis supplied).
Cr No.43/2016 Braham Parkash Yadav vs. State 8 of 32
18. The above law was laid down by the Hon'ble Supreme Court is in respect of those trials where charge is to be framed against the accused. However, the principles of law narrated above will also apply to summon trial cases where a notice under Section 251 CrPC is to be served upon the accused.
19. As per the judgment of the Hon'ble Supreme Court in "Bhushan Kumar & Anr. Vs. State & Anr. (2012) 5 SCC 424," it is the bounden duty of the trial court in Section 251 CrPC to satisfy whether the offence against the accused is made out or not and to discharge the accused if no case is made out against him. The law laid down by the Hon'ble Supreme Court is reproduced as below;
"It is inherent in Section 251 of the Code that when an accused appears before the trial Court pursuant to summons issued under Section 204 of the Code in a summons trial case, it is the bounden duty of the trial Court to carefully go through the allegations made in the charge sheet or complaint and consider the evidence to come to a conclusion whether or not, commission of any offence is disclosed and if the answer is in the affirmative, the Magistrate shall explain the substance of the accusation to the accused and ask him whether he pleads guilty otherwise, he is bound to discharge the accused as per Section 239 of the Code". (emphasis supplied)
20. Let me now decide the question whether there is prima facie sufficient material on record to serve a notice u/s.
Cr No.43/2016 Braham Parkash Yadav vs. State 9 of 32 251 CrPC upon the petitioner for offences under Section 279/338 IPC and for that purpose let me examine the evidence collected by the Investigating Officer to find out that even if the same goes unrebutted or unchallenged, it would not make out any case against the accused.
21. Perusal of the record reveals that alleged accident had happened on 29.10.2014. However statement of the complainant Shri Arun Kumar Gupta was recorded on 23.11.2014. There is, thus, a delay of approximately 25 days in registration of the FIR. The statement of the complainant is relevant for the purpose of deciding the present revision petition and its translated version runs as follows:
To, SHO, PS Kapashera, Delhi.
"It is respectfully submitted that I am Arun Kumar Gupta S/o Shri Vidha Prasad Sahu and residing at H. NO. H 232 A, Gali no. 9, Raj Nagar-II, Palam Colony, Delhi, with my children and my permanent address is Village Mongroda, PS East Colony, Jamalpur, District Munger, Bihar. I am serving in Horizan Aerospace Company at Udhyog Vihar, Phase I, Gurgaon. On 29.10.2014, I was going on my motorcycle bearing no. DL 9SC 2436 from Palam to Gurgaon. At about 11am, I reached at Smalkha T Point, Dwarka Link Road and took a turn towards my right for going to Gurgaon and while I was crossing the T Point, the traffic light had turned Yellow and before I could cross the T Point, one Gypsy No. DL 1 CH6580 came from the side of NH8 driven by the driver in a rash and Cr No.43/2016 Braham Parkash Yadav vs. State 10 of 32 negligent manner without giving any horn and hit my motorcycle and ran away from the spot. Thereafter, I gave a call at no. 100 and I alongwith my friend went to Rockland Hospital in his car. You (IO) had come to take my statement twice or thrice in the hospital as well as at my residence and since we were discussing the matter at that time, therefore, I did not give any statement to you. Today I am giving the statement in writing so that appropriate necessary legal proceedings may be initiated against the driver who was driving the Gypsy. (emphasis supplied) Sd/-
Arun KumarGupta 9868364190 23.11.2014"
22. Perusal of the record further reveals that IO had recorded the supplementary statements of the complainant on 30.01.2015 & 30.03.2015 as well. In the first supplementary statement dt. 30.01.2015 the injured/complainant has clearly stated that he cannot identify the driver of the vehicle bearing no. DL ICH 6580 who had caused the accident. The translated version of these supplementary statements runs as follows;
Supplementary Statement of Sh. Arun Kumar Gupta, dt. 30.01.2015.
Statement of Shri Arun Kumar Gupta S/o Shri Vidha Prasad Sahu R/o H. NO. H 232 A , Gali no. 9, Raj Nagar-II, Palam Colony, Delhi :
Cr No.43/2016 Braham Parkash Yadav vs. State 11 of 32 U/s. 161 CrPC "I endorse my statement given earlier and make further statement to the effect that today on 30.01.2015 after my treatment I have met you at police station with my neighbour and visited the place of incident. My accident had happened on 29.10.2014 at T-point, Old Gurgaon Road, Dwarka Link Road. You had prepared the site plan on my instructions after inspecting the place of incident. I signed the site plan.
On 29.10.2014 the gypsy, which had hit my motorcycle had stopped for some time after the accident and I had seen its number which was DL 1CH 6580. The driver of the vehicle drove away with the vehicle. I cannot identify him if he appears before me. My friend had taken the motorcycle which had met with the accident to our company at Gurgaon and left it there. I will produce the motorcycle and medical documents to you. You have recorded my statement which I have read and understood the contents of the same and these are correct.
Sd/-
HC Naresh Chand No. 431/SW PS Kapashra Dt. 30.01.2015.
Supplementary Statement of Sh. Arun Kumar Gupta, dt. 30.03.2015.
Statement of Shri Arun Kumar Gupta S/o Shri Vidha Prasad Sahu R/o H. NO. H Cr No.43/2016 Braham Parkash Yadav vs. State 12 of 32 232 A , Gali no. 9, Raj Nagar-II, Palam Colony, Delhi :
U/s. 161 CrPC "I endorse my statement given earlier and make further statement to the effect that after the accident I was hospitalized at Rockland Hospital, Dwarka and after my treatment I had returned to my house at Ram Nagar, Palam, Delhi. After the accident my friend had taken my motorcycle bearing no. DL 9SL 2436 from the spot and left at the company office at Gurgaon. I was unable to walk and thereafter I had left for my village at Bihar. Today on 30.03.2015, I on my own have produced my motor-cycle bearing no. DL 9SL 2436 at police station. You have taken my motorcycle in your possession and I have signed the memo. You have recorded my statement which I have read and understood the contents of the same and these are correct.
Sd/-
HC Naresh Chand No. 431/SW PS Kapashra Dt. 30.03.2015.
23. Perusal of the above statements clearly reveals that there is inordinate delay in lodging the FIR and giving the number of offending vehicle. There is no plausible explanation for the same. The above statements also reveal that complainant had not seen the driver of the offending vehicle.
Cr No.43/2016 Braham Parkash Yadav vs. State 13 of 32
24. Perusal of record further reveals that two DD entries were recorded regarding the accident in question. The first DD entry i.e DD No. 12-A which is in Hindi was recorded on 29.10.2014 at 11.10 am. Though it is not happily worded, however, its translated version in English which conveys the meaning runs as follows:-
"DD No. 12-A Dt. 29.10.2014, P.S. Kapashera, New Delhi.
At about 11.10 (day time) G-54 came to DO room and produced one QST, which was received from W/Ct. Poonam, no. 8072/ PCR vide which it was informed that one accident has happened at Red light, near Dwarka. The mobile number of injured is 9868364190. DO registered this information in Roznamcha and informed HC Naresh, No. 431/SW on phone with direction for necessary further action in the matter.
Perusal of the above DD entry reveals that type of vehicle which had caused the accident or its number has not been mentioned therein.
IO has also placed on record another DD entry i.e. DD. No. 25-A recorded on 29.10.2014 at 7.05 pm. Though it is also not happily worded, however, its translated version in English which conveys the meaning runs as follows:-
DD No. 25-A, Dt. 29.10.2014, PS Kapashera, N. Delhi.
W/C. Anupma, no. 8049/PCR informed W/set G-50 Operator regarding QST PCR Call and Operator informed the DO at about 7.05 pm on phone, and the contents of the information are as follows;
Cr No.43/2016 Braham Parkash Yadav vs. State 14 of 32 That one Arun Kumar Gupta S/o. Sh. Vidhya Parsad Sahu, aged about 52 years R/o. 232-A, Gali no.9, Raj Nagar, Palam Colony who has met with an accident at Smalkha is admitted at Rockland Hospital, Sector-12, Dwarka vide MLC no. 174/14, after the accident. This information was registered in Roznamcha and its DD entry was prepared and sent to HC Naresh, No. 431/SW through Ct. Tarachand. HC Naresh was directed to reach hospital for necessary further action in the matter. Perusal of the above clearly reveals that number of vehicle has not come on record in the DD entries. As discussed earlier, the number of the vehicle has come on record only on 23.11.2014 i.e. after 25 days of the accident in the statement of the complainant and also in the statement of HC Laxman Singh recorded on 10.03.2015.
25. Perusal of the above translated version of the written complaint filed by the complainant and other material on record clearly reveals the following points:
(i) The complainant has not given his statement to the Investigating Officer from 29.10.2014 (i.e. the date of accident) till 23.11.2014. He has given the statement after about 25 days of the incident.
(ii) The reason given by the petitioner for not giving the complaint or statement to the IO was that he was discussing the matter in question.
(iii) The complainant has also admitted the fact in his statement that IO had come to him in the hospital as well at his residence for recording his statement but he Cr No.43/2016 Braham Parkash Yadav vs. State 15 of 32 had not given the same for the reason that he was discussing the matter.
(iv) According to IO, the doctor had declared the injured fit for statement. However, the injured/complainant did not give the statement for the reason mentioned above and therefore the call was kept pending by the IO.
26. Let me now discuss the effect of delay in lodging the FIR by the complainant. In my opinion, the delay of 25 days in giving the statement and lodging of FIR is fatal to the prosecution case for the reason that petitioner had enough time to contemplate, deliberate, consult and name any vehicle of his choice. There is absolutely no explanation given by the complainant for delay in lodging the FIR. He has only stated that he was discussing the matter. The question to be considered is whether the law allows a complainant to coolly think over the matter for couple of days and name any vehicle as per his choice.
In my opinion, the answer certainly lies in negative. In this regard I am also supported by the judgment of the Hon'ble Supreme Court in "State of Andhra Pradesh Vs. M. Madhusudhan Rao", (2008) 15 Supreme Court Cases 582". The relevant finding of the Hon'ble Court is reproduced as below;
"Having gone through the depositions of PW-1 and PW-3, to which our attention was invited by learned counsel for the State, we are convinced that in the light of the overall evidence, analysed by the High Court, the order of acquittal of the respondent is well Cr No.43/2016 Braham Parkash Yadav vs. State 16 of 32 merited and does not call for interference, particularly when the First Information Report was lodged by the complainant more than one month after the alleged incident of forcible poisoning. Time and again, the object and importance of prompt lodging of the First Information Report has been highlighted. Delay in lodging the First Information Report, more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of coloured version, exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Therefore, it is essential that the delay in lodging the report should be satisfactorily explained. (emphasis supplied) The Hon'ble court has held that delay in lodging the FIR more often than not results in coloured version or concocted story as a result of deliberations and consultation. As discussed earlier the complainant has failed to explain the delay in lodging of the FIR. The record shows that the injured was fit for statement but he chose not to make the statement for 25 days after the accident on the ground that he was discussing the matter. In my opinion, unreasonable delay in lodging the FIR throws grave doubt on prosecution version and the Cr No.43/2016 Braham Parkash Yadav vs. State 17 of 32 statement given by the complainant is not worthy of reliance at all.
27. Perusal of the record further reveals that on 10.03.2015, the IO had recorded the statement of one HC Laxman Singh who was posted in concerned Traffic Circle at the time of accident. He has stated that on 29.10.2014, at about 11am, he saw that one motorcycle has fallen down on the road. He had gone to the motorcyclist, and he had told him that one gypsy no. DL 1CH 6580 has hit him. The complainant i.e. the motorcyclist had, however, told him that he cannot identify the driver of the vehicle. Since the statement of above witness HC Laxman singh is very much relevant for the purpose of deciding the present revision petition, its translated version is, therefore, reproduced below for ready reference:
Statement of HC Laxman Singh, No. 3424/T, Kapashera Circle (Traffic), Dwarka New Delhi.
U/s. 161 CrPC "I am posted as Head Constable at the above mentioned address. On 29.10.2014, I was on duty from 8 AM to 8 PM at Smalkha, T-Point, Dwarka Link Road. At about 11:00 am one motor-cycle had fallen down at red light. I had gone there and driver of the motor-cycle had informed me that one Gypsy No. DL-1CH-
6580 has hit him. The said Gypsy had stopped for a while at the Red light. I have seen the number of the said vehicle which Cr No.43/2016 Braham Parkash Yadav vs. State 18 of 32 was DL-CH-6580. The driver of the said vehicle had driven away with the said vehicle towards Dwarka. I have not seen the driver of the vehicle. You have recorded my statement which I have read and understood the contents of the same and it is correct.
, Sd/-
HC Naresh Chand No. 431/SW PS Kapashra Dt. 10.03.2015.
It may be noted here that HC Laxman Singh was on traffic duty on the alleged date and time of accident. He has also stated that he cannot identify the driver of the offending vehicle. Let me now answer the question whether his statement is worthy of reliance and if it remains unchallenged will it point towards the guilt of the accused. Perusal of the record reveals that statement of the witness was recorded after about four months of the accident. The accident has happened on 29.10.2014 and statement of HC. Laxman was recorded by the IO on 10.03.2015. It is strange that he has not reported the accident to the concerned police authorities for about four months despite the fact that as a police official, it was his official as well as moral duty to report the factum of accident to the concerned authorities immediately. There is absolutely no explanation for such delay in giving the Cr No.43/2016 Braham Parkash Yadav vs. State 19 of 32 statement. In my opinion, such belated statement is not worthy of reliance at all and more so when the witness is a police official. Moreover, the statement also clearly reveals that HC Laxman is not an eye-witness of the accident. He has even admitted the fact that he has not seen the driver of the vehicle.
28. Besides the above points, there are other major contradictions in prosecution version regarding the identity of the petitioner who was driving the vehicle at the relevant time. Since both the complainant and HC Laxman have clearly stated that they have not seen the driver, the IO had issued a notice to the Dy. Commissioner of Police, Old Civil Lines on 12.01.2015, asking for the details of gypsy no. DL 1CH 6580 i.e. to which department it was allocated. Reply received on behalf of the Dy. Commissioner revealed that vehicle in question belonged to South East District. Thereafter on 12.02.2015, IO had written to MTI, South East District vide which he had requested him to give details of person who was driving the gypsy no. DL1CH 6580 on 29.10.2016 at 11am. As per the reply received from MTI vehicle was allotted to ACP/DIU SED, Shri B.P. Yadav, i.e. petitioner in the present case. Thereafter Head Constable Naresh Chand had written a letter to ACP asking as to who was driving the above mentioned gypsy on 29.10.2014. at 11am. Thereafter, ACP,DIU South East District had informed that at the said time i.e. 11am, Driver Ct.Man Singh was on duty and the vehicle was Cr No.43/2016 Braham Parkash Yadav vs. State 20 of 32 parked in Saket Courts and he was appearing in a case bearing FIR no. 357/14 u/s 3 SC/ST Act, PS N.F. Colony in the court of Ld. ACMM Shri Pritam Singh. The copy of the order dated 29.10.2014 passed by Ld. ACMM Saket Court, has been placed on record by the IO which reveals that petitioner B.P. Yadav ACP(DIU) was present in the said court on the date of accident. The ordersheet dated 29.10.2014 of the Ld. ACMM, Saket Court is as follows;
"FIR No. 357/14PS NFC 29.10.2014 An application for status report filed by complainant. An another application for extension of period for investigation filed by the IO.
Present: Ld. APP for the State.
IO, BP Yadav, ACP (DIU) South East District.
Complainant present with counsel, Sh. SD Kamal.
A Status Report filed by the IO.
Ld. Counsel for complainant submits that the accused still calling the complainant by her caste name and misbehaved with her and also thrown her household articles on 23.10.2014.
Cr No.43/2016 Braham Parkash Yadav vs. State 21 of 32 IO submits that the complainant has not provided her caste certificates due to which the investigation is not going ahead. IO further submits that he has written to the concerned SDM, Defence Colony regarding the status of the caste of complainant and as soon as he will receive the report from the SDM he will take further action.
Heard.
The case was registered on 16.08.2014 and more than two months have passed but till date no action has been taken against the accused persons due to this the accused persons are still causing trouble to the complainant who is an old lady. IO is directed to expedite the investigation and keep in mind that the complainant is an old lady and she is in need of protection. IO is further directed to file the further report on 25.11.2014. The period of investigation is extended accordingly.
Copy of order be given dasti to IO.
Sd/-
(PRITAM SINGH) ACMM/SED/SAKET COURTS 29.10.2014."
The above order reveals that petitioner was present in the court of Ld. ACMM, Saket on the date of incident. However, the ordersheet does not reveal the time when the matter was taken up.
Cr No.43/2016 Braham Parkash Yadav vs. State 22 of 32
29. Ld. Addl. PP for the state has argued that the order does not reveal that the petitioner was present in the court at 11 AM i.e. the time of alleged accident. The record reveals that the IO has also recorded the statement of the Ahlmad of the Court of Ld. ACMM, Saket and one Sh. S D Kamal, Ld. Advocate, who was representing the accused in FIR No. 357/14, PS NFC in the Court of Ld. ACMM, Saket to make out a case that petitioner was not present in court at the time of accident but was driving the vehicle in question at that time and while so driving he had caused injuries to the complainant. The translated version of the statements of the concerned Ahlmad and Ld. Advocate Sh. S D Kamal are as follows;
Statement of Shri Santosh Kumar, Ahlmad in the court of Sh. Pritam Singh, ACMM, Saket Courts, New Delhi.
U/s. 161 CrPC "I am working as Ahlmad in the court of Sh. Pritam Singh, ACMM, Saket Courts, New Delhi. Since 15.12.2014 I am working in this court. As per record, case FIR No. 357/14, PS NFC, was listed for miscellaneous purpose on 29.10.2014 and in the said case statement of Sh. B. P Yadav, ACP was recorded. I do not know the time. You have recorded my statement which I have read and understood the contents of the same and these are correct. , Sd/-
HC Naresh Chand No. 431/SW Cr No.43/2016 Braham Parkash Yadav vs. State 23 of 32 PS Kapashra Dt. 30.03.2015.
Statement of Shri S D Kamal, Advocate, chamber no. 325, Saket Courts, New Delhi.
U/s. 161 CrPC "I am practicing as an Advocate and my Chamber number is 325, Saket Courts, New Delhi and I am defence counsel in case FIR no. 357/2014, PS NFC. On 29.10.2014 this case was listed for miscellaneous purpose in the court of Sh. Pritam Singh, ACMM, Saket. I was present in the court during the proceedings.
Statement of Sh. B. P. Yadav, ACP was recorded after 2:00 pm. Today i.e. on 20.05.2015 you have come to my chamber no. 325, Saket Courts and I have joined the investigation. You have recorded my statement which I have read and understood the contents of the same and these are correct.
Sd/-
HC Naresh Chand No. 431/SW PS Kapashra Dt. 30.03.2015.
30. Perusal of the above statements confirms one thing that the petitioner was present in the court of Ld. ACMM, Saket on the date of alleged accident. According to the Ld. Advocate Sh. S D Kamal, the matter in which the Cr No.43/2016 Braham Parkash Yadav vs. State 24 of 32 petitioner was to appear was taken up at 2 PM by Ld. ACMM, Saket and statement of IO was recorded. However, it may be noted that time of appearance of petitioner in court is not mentioned in ordersheet. It is also necessary to take note of the fact that Ld. Advocate has stated that statement of IO/petitioner was recorded whereas no such statement was recorded as per ordersheet dt. 29.10.2014 of the court of Ld. ACMM, Saket. In my opinion even if the above contradictions are ignored and it is believed that petitioner's statement was recorded at 2 PM only, still there is nothing on record to show that IO had reached at 2 PM only and was not present there since morning i.e. 10 AM. The cause-list of Ld. ACMM reveals that the matter was listed as first item. The ordersheet does not show that matter was passed over and taken up later in the afternoon. Thus, there is no evidence to suggest that petitioner had reached the court only at 2 PM and in the morning at about 11 AM, he had caused the accident.
31. Perusal of the record further reveals that in order to fasten the criminal liability upon the petitioner, the IO has relied upon the call details of petitioner as well as his driver Man Singh. However, before call details are analyzed, it may be noted that there are contradictions in the statements of Ct. Man Singh itself. As per record, the petitioner has stated that driver Man Singh was driving the vehicle at the relevant date and time. Driver Man Singh has also initially accepted the said fact. He has, Cr No.43/2016 Braham Parkash Yadav vs. State 25 of 32 however, given two statements. Translated version of Statement of Ct. Man Singh dt. 30.3.2015 runs as follows:
Statement of Ct. (driver) Man Singh No. 1069/S/E P.I.S. No. 28970086/South-East Distt., Delhi.
"I am working as driver. As per your direction, I have joined the investigation in case FIR no. 544/2014 dated 23.11.2014 u/s 279/337 IPC P.S. Kapashrea, Delhi. I have to state that on 29.10.2014, I was posted as driver and was on duty on Govt. vehicle no. DL1CH 6580. On the said date, I alongwith the vehicle and ACP was present in Saket Court at 11am. ACP was present in the court of Shri Pritam Singh Ld. ACMM, Saket. Vehicle was stationed at Saket Court on 29.10.2014 at 11am and it was not taken/ driven to Kapeshera area. You have told me about the accident case and I have to state that I alongwith the vehicle were present in the Saket Court and, therefore, there is no question of any accident. No accident has been caused by me.
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30.03.2015 Belt No. 1069/S/E P.I.S. No. 28970086/S-E Attested HC Naresh Chand No. 431/SW PS Kapashera Cr No.43/2016 Braham Parkash Yadav vs. State 26 of 32 Surprisingly, another statement of Ct. driver Man Singh dated 03.04.2015 is on record and the translated version of the same runs as follows:
"I have to state that I Ct. (Driver) Man Singh having no. 1069/SED PIS No. 28970086 am working with Shri B.P. Yadav ACP South East District on vehicle no. DL 1CH 6580 for the last about eight-nine months as driver, you (IO) had told me about the accident which had taken place on 29.10.2014. I had reported for duty at 12 noon on 29.10.2014 and I do not know who had driven the vehicle before that. I have not caused any accident in Kapashera."
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Belt No. 1069/S/E Date 03.04.2015 P.I.S. No. 28970086/S-E Attested HC Naresh Chand No. 431/SW PS Kapashera Thus, there are two versions of driver Man Singh on record. In one version, he has clearly stated that he was present in the court along with ACP Shri B.P. Yadav (petitioner) at 11 AM on 29.10.2014 and the vehicle was stationed at Saket Court Complex. There is another Cr No.43/2016 Braham Parkash Yadav vs. State 27 of 32 statement in which he has taken a somersault and changed his version. The log book of the vehicle has not been produced to verify the above facts. The above two contradictory statements of driver Man Singh throws grave doubt on veracity of his version and he cannot by any stretch of imagination be held to be a reliable witness. Moreover, in my opinion statement of driver Man Singh is not of much relevance and even if it is believed for the sake of arguments, it at the most shows that he was not driving the said vehicle at the time of accident and he had not caused the accident. However, his statement by itself also does not prove the fact that petitioner was driving the vehicle at the time of accident. To prove the said fact, there has to be some evidence on record to show presence of petitioner at the place of accident along with vehicle in question. There is no evidence on record to suggest that accused was driving the said vehicle as both the complainant and traffic constable have stated that they cannot identify the driver of the vehicle and as discussed below even call details of petitioner do not prove the prosecution version.
32. Let me now analyse the CDR of mobile phones of petitioner as well as driver Man Singh to find out if criminal liability can be fastened upon the petitioner on the basis of the same. According to prosecution, the petitioner was having a telephone no. 9810042262 at the time when the accident had taken place. Perusal of the Cr No.43/2016 Braham Parkash Yadav vs. State 28 of 32 record reveals that the said number was in the name of his wife Suman. The accident has happened at 11 AM. The call details of the said phone does not show the location of the mobile phone at 11am. However it shows the location of mobile phone at 10.04.20 hour at 423/18, Civil Lines, Rajeev Chowk, Gurgaon-122001. In my opinion the location of the said mobile number does not help the prosecution for the reason that it is in the name of the wife of the accused and it has nowhere come on record that the said mobile was being used by the petitioner Braham Parkash. Thus, it is not possible to connect the petitioner/accused with the accident with the help of said mobile phone.
33. The call details of mobile phone of driver Man Singh also does not show his location at 11 am. The Call details in fact shows the location at 12.08 only and it is Village Manesar. The driver Ct. Man Singh in his statement dated 03.04.2015 has stated that he had reported for duty at about 12 noon. However, he did not seem to have reported for duty on 12 noon for the reason that as per location of his mobile phone he was in village Manesar, at that time. Thus call details do not lead the prosecution anywhere and contradictions in the statement of driver Man Singh renders his version totally unreliable. However the log book of vehicle undoubtedly would have helped a lot. But unfortunately it has not been seized by the IO to prove the movement of vehicle to various places along with date and time and particularly the fact that the Cr No.43/2016 Braham Parkash Yadav vs. State 29 of 32 vehicle was being driven by petitioner or not on the date and time of accident.
34. The above discussions and careful perusal of evidence collected by the IO reveals that even if the prosecution version as such is taken to be true, it does not make out a case under Section 279/338 IPC against the petitioner.
35. As discussed earlier, there is delay in lodging the FIR for about 25 days and the delay has not been satisfactorily explained. The complainant has given the reasons for delay in lodging the FIR and according to him, he was discussing the matter. In my opinion, to rely upon the statement of a person who was contemplating and discussing the matter for 25 days as to what statement should be given to police will not be a wise decision. There is absolutely no explanation as to why the complainant was discussing the matter for such a long period. The delay is so long and the complainant had so much time to think over the matter that he could have implicated anyone whomsoever he wished. Similarly the statement of other witness HC laxman Singh has been recorded after about four months of accident and there is absolutely no explanation as to why the witness who is a police official has not reported the incident immediately and he is, therefore, not worthy of reliance. Thus, there is no cogent material/ evidence to show that vehicle in question was involved in the accident.
Cr No.43/2016 Braham Parkash Yadav vs. State 30 of 32
36. The other material/ evidence placed on record by the prosecution is mechanical inspection reports of vehicles. In my opinion, these reports are also not worthy of reliance as the motorcycle of the injured was seized on 30.03.2015 and inspected on 02.04.2015 i.e. almost five months after the accident and similarly vehicle of the petitioner was seized on 28.07.2015 and inspected on 30.07.2015 i.e. after almost nine months after the accident and it has not come on record that both the vehicle have not been used/driven for five/ nine months respectively before the Mechanical inspection. To sum up, the mechanical inspection reports do not connect the vehicles with the alleged accident and more so when it has not come on record that in between the period i.e. from the date of accident till these were seized, the vehicles were not used by the complainant and petitioner and they had not received any dents or scratches on crowded roads of Delhi.
37. As discussed earlier, even the call detail report, do not pin point the presence of the petitioner at the spot at the time of alleged accident. The statement of driver Man Singh is also not worthy of reliance for the reason that earlier he stated that he was driving the vehicle and later on he told that he was on duty from 12 PM on the said date, whereas call details of his mobile shows his presence at Manesar at that time.
38. In view of the above major contradictions and inconsistencies appearing on record and in the absence Cr No.43/2016 Braham Parkash Yadav vs. State 31 of 32 of any cogent material/ evidence connecting the petitioner with the offences, in my opinion, no useful purpose will be served by continuing with the trial. The order passed by the Ld. MM is, therefore, set aside. The proceedings in the present case are stopped under Section 258 CrPC. The petitioner is discharged for the offences under Section 279/338 IPC.
39. Trial court record be returned with a copy of the judgment.
File of the revision petitions be consigned to record room.
Announced in Open Court (BRIJESH SETHI) On this 1st day of March, 2017 District & Sessions Judge South-West/Dwarka New Delhi Cr No.43/2016 Braham Parkash Yadav vs. State 32 of 32