Delhi District Court
State vs Kamal Kumar on 31 October, 2023
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IN THE COURT OF MS JYOTI NAIN
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 669/06
U/s 279/337/304A IPC & 3/181 MV Act
PS: Jahangir Puri
State vs. Kamal Kumar
Date of Institution of case: 29.01.2007
Date of Judgment reserved:26.10.2023
Date on which Judgment pronounced:31.10.2023
JUDGMENT
CIS Number : 5288856/2016 CNR Number : DLNT020001792007 Date of Commission : 21.09.2006 of offence Name of the : Baji Lal complainant Name of the accused : Kamal Kumar S/o Sh. Shyam Lal Offence complained : 279/337/304A IPC & 3/181 MV Act of Plea of accused : Not guilty Date of order : 31.10.2023 Final Order : Acquitted FIR No. 669/06 Jyoti Digitally signed by Jyoti Nain State Vs. Kamal Kumar Nain Date: 2023.10.31 17:36:16 +0530 2 BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is that, on 21.09.2006, at about 08:15 pm, at GT Karnal Road, near KDR RU Nagar, Jahangir Puri, Delhi within the jurisdiction of Police Station Jahangir Puri, accused was found driving vehicle registration No.DL1M0515 in a manner so rash and negligent, so as to endanger human life and personal safety of others and while driving the above said vehicle in above said manner, accused hit his tempo against the pedestrians, who were crossing the road and caused injuries to Baji Lal and death of Jagat Shah, who succumbed to his injuries (not amounting to culpable homicide).
It is further the case of prosecution that accued was also driving the aforesaid vehicle without having any driving license and thus accused committed offence (s) punishable under section 279/337/304A IPC and section 3/181 of Motor Vehicle Act. Thereafter, upon investigation, statements of witnesses were recorded. Thereafter, an FIR was registered against the accused.
Investigation
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant FIR No. 669/06 State Vs. Kamal Kumar Digitally signed by Jyoti Nain Jyoti Nain Date: 2023.10.31 17:36:20 +0530 3 record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C.
Charge
4. A prima facie case under Sections 279/337/304A IPC and 3/181 MV Act, was found to be made out against the accused. Notice was framed upon the accused accordingly. The accused pleaded not guilty and claimed trial.
Evidence
5. In order to prove its case, prosecution examined as many as ten witnesses.
6 PW1 is Baji Lal. He deposed that on 21.09.2006, at about 08:15 pm, he alongwith his coworker were coming back from their factory, when they reached in front of KDR factory, Rajasthani Udyog Nagar and were crossing the road, one tempo bearing No.DL1M 0515, which was coming from the side of bypass and was leading toward Azadpur, hit against them, which was driven by its driver in a very rash and negligent way. He further deposed that they FIR No. 669/06 State Vs. Kamal Kumar Jyoti Digitally signed by Jyoti Nain Date:
Nain 2023.10.31
17:36:25 +0530
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both fell down on the road. The offending vehicle, thereafter, struck against the Metro Barricades and stopped at some distance. He further deposed that on seeing them in injured condition, the driver of truck fled away from the spot, one passerby removed them to the BJRM hospital through a TSR. He identified the offending vehicle i.e. tempo through its photographs as available on record. He further deposed that police recorded his statement Ex.PW1/A, bearing his signature at point A. On 22.09.2006, IO prepared site plan of the place of occurrence at his instance, which is Ex.PW1/B and also recorded his supplementary statement mark A. He further deposed that on 23.09.2006, he was called at the police station, accused was also present there and he identified the accused as the same person who was driving the offending vehicle on the date of incident. He further deposed that accused was arrested vide arrest memo, which is Ex.PW1/C and personal search of accused was conducted vide memo Ex.PW1/D, both bearing his signature at point A. This witness was cross examined by Ld. Defence Counsel after he was recalled for crossexamination by the order/ judgment dated 04.02.2019 of Ld.ASJ05, North District, Rohini Courts, Delhi.
7. PW2 is HC Mohan Kamal, who accompanied the IO ASI Prit Pal to the spot on 21.09.2006, upon receipt of DD No.32PP, deposed that when he reached at the spot alongwith IO, tempo bearing No.DP1M0515 was found stationed on the road in accidental condition. IO left him at the spot to guard FIR No. 669/06 State Vs. Kamal Kumar Jyoti Digitally signed by Jyoti Nain Nain Date: 2023.10.31 17:36:29 +0530 5 the place of occurrence and thereafter went to the BJRM Hospital. He further deposed about the investigation part conducted by the IO in his presence, after IO returned back at the spot with the statement of complainant Brij Lal.
This witness was also cross examined by Ld. Defence Counsel after he was recalled for crossexamination by the order/ judgment dated 04.02.2019 of Ld.ASJ05, North District, Rohini Courts, Delhi.
8. PW3 HC Vijay Singh. He was on duty at BJRM Hospital on 21.09.2006, deposed of handing over of personal search articles of deceased to IO, who who recorded his statement.
9. PW4 Yogender Shah (brother of deceased). He identified the dead body of deceased Ex.PW4/A and receiving dead body of his brother vide receipt and Ex.PW4/B.
10. PW5 Vijay Kumar Gupta. He deposed that he was the registered owner of tempo No.DL1M0515. On 21.09.2006, his tempo met with an accident and which was being driven by the accused Kamal Kumar on the day of incident. He further deposed that notice u/s 133 MV Act Ex.PW5/A was served upon him to which,he replied from point A to A1, which bear his signature at point X. He further deposed that later on, he produced the accused to the police and he also identified the offending vehicle through its FIR No. 669/06 State Vs. Kamal Kumar Jyoti Digitally signed by Jyoti Nain Nain Date: 2023.10.31 17:36:33 +0530 6 photographs. He identified accused in the court as the driver of his tempo on 21.09.2006.
This witness was also cross examined by Ld. Defence Counsel after he was recalled for crossexamination by the order/ judgment dated 04.02.2019 of Ld.ASJ05, North District, Rohini Courts, Delhi.
11. PW6 Anil Sharma. (photographer). He deposed that on 22.09.2006, he was called to the spot by the IO. He reached the spot and clicked the photograph by digital camera. Later on, he developed the photocopy and gave the same to IO, which are already Ex.PW1/1 to Ex.PW1/4. He further deposed that his camera was working properly at that time and no tampering was made with the photographs.
12. PW7 is S.N. Bhardwaj, Postmortem Assistant, BJRM Hospital. He identified the signature and writing of Dr. Bhupender Chauhan at point A upon the PM Report of deceased Ex.PW7/A.
13. PW8 is HC Shishu Pal Singh. He was the then duty officer at PS Jahangir Puri, deposed of registration of FIR Ex.PW8/A, bearing his signature at point A. He also made endorsement on the original rukka vide Ex.PW8/B, bearing his signature at point A. Jyoti Digitally signed by Jyoti Nain Date: 2023.10.31 FIR No. 669/06 Nain 17:36:38 +0530 State Vs. Kamal Kumar 7
14. PW9 is SI Prit Pal Singh, No. 4676/D (IO of the present case). He deposed that on 21.09.2006, he was posted as ASI at PS Jahangir Puri, PP DDA Flat. On that day, he was on emergency duty from 08:00 pm to 08:00 am. On that day, on receipt of DD No. 32 PP at about 08:30 regarding accident. Accordingly, he alongwith Ct. Mohan Kamal went to spot i.e. infront of KDR factory, GT Karnal Raod. AT the spot, one tempo bearing No.DL1M 0515 was found in accidental condition.
He came to know that injured has shifted to hospital in other vehicle. He left Ct. Mohan Kamal at the spot and went to BJRM Hospital. He had obtained ME of the injured Baji Lal and MLC of unknown who was declared dead by the doctor. He recorded statement of Baji Lal already Ex.PW1/A, bearing his signature at point B. Then, he alongwith Baji Lal again came back at the spot. He prepared tehrir Ex.PW9/A bearing his signature at point A and got FIR registered through Ct. Mohan Kamal. He came back to the spot and handed over the copy of FIR and original tehrir to him. He called the photographer Anil Kumar at the spot who clicked the photograph which are already Ex.PW1/1 to Ex.PW1/4. He prepared the site plan already Ex.PW1/B at the instance of complainant. He recorded his supplementary statement. One eye witness namely Upender came to the spot. He recorded his statement and he seized the offending vehicle vide memo already Ex.PW2/A bearing his signature at point B. He again went to the hospital after sending the case property to the PS. FIR No. 669/06 Jyoti Digitally signed by Jyoti Nain State Vs. Kamal Kumar Nain Date: 2023.10.31 17:36:42 +0530 8 He preserved the dead body in mortuary. Duty constable of BJRM Hospital has handed over the personally search. He seized the same vide memo already Ex.PW3/A bearing his signature at point B. He deposited the same in the malkhana. He served the notice u/s 133 MV Act upon the owner of the vehicle which is already Ex.PW9/A. He prepared inquest paper Ex.PW9/A2. Then, he got the postmortem of dead body of deceased after dead body was identified by his relatives vide memo already Ex.PW4/A and Ex.PW9/B bearing his signature at pint X respectively. After postmortem dead body was handed over to their relative vide memo already Ex.PW4/B bearing his signature at pint X. He again came back to PP. Owner of the vehicle came to him in PP alongwith driver. He replied vide endorsement already Ex.PW5/A. Coincidentally complainant also reached at police post. When he identified the accused, upon which he recorded his statement. On interrogation, he formally arrested and personally searched the accused vide memos already Ex.PW1/C and Ex.PW1/D bearing his signature at point B. Accused was not having DL. He seized RC and insurance of the vehicle vide memo Ex.PW9/B and Ex.PW9/C bearing his signature at pint A. He further deposed that he got mechanically inspection of the offending vehicle vide memo Ex.PW9/E, bearing his signature at point A. He gave his report. Offending vehicle was released on superdarinama. He obtained PM report of the deceased and placed on record. Then he concluded the investigation and filed the chargesheet.
FIR No. 669/06 Jyoti Digitally signed by Jyoti Nain Date: 2023.10.31 State Vs. Kamal Kumar Nain 17:36:47 +0530 9
15. PW10 is Upender Kumar S/o Suraj Bhan. He deposed that on 21.09.2006, he was doing the work of repairing generator in Sanjay Gandhi Transport Nagar. On that day, he was going to Azadpur Mandi to purchase fruits. At around 07:30 to 08:00 pm, he reached just before the Traffic light of Jahangir Puri, he had seen that a Tempo Canter came in a very high speed and in very rough manner and hit two persons who were crossing the road and looking of labourer class.
The canter had stopped at some distance from there. At that time , half of the road was closed by barricades as the construction of Metro was going on. One of the injured had expired at the pot. He stopped there and took both the injured to BJRM Hospital in Auto. His statement was recorded at the hospital. He could not identify the driver of the offending vehicle as long time had passed and accident took place all of a sudden.
This witness was cross examined by Ld. APP for the State as he is resiling from his earlier statement.
16. After examination of the aforesaid prosecution witnesses, PE was closed and subsequently the statement of the accused was recorded u/s 313 cr.p.c read with section 281 Cr.P.C during which he stated that he has been falsely implicated in the present case. The accused opted not to lead defence evidence.
Jyoti Digitally signed by Jyoti Nain Date: 2023.10.31 Nain 17:36:51 +0530 FIR No. 669/06 State Vs. Kamal Kumar 10
17. It is pertinent to mention that Ld. Predecessor of this court had heard the final arguments and held the accused guilty for offence under section 279/337/304A IPC & section 3/181 MV Act and accordingly order on sentence was pronounced. Thereafter, accused went into Appeal and the judgment was set aside by the order of Ld. ASJ5, North District, Rohini Court and matter was remanded back to the trial court wherein opportunity was given to the accused to cross examine three of the prosecution witnesses i.e. PW1, PW2 and PW5. These three witnesses were duly cross examined by Ld. Ld. Counsel for the accused and thereafter the matter got listed for final arguments.
18. I have heard the arguments comprehensively from both the sides and have given my thoughtful consideration to the entire record.
Arguments
19. On the basis of the above oral and documentary evidence on record Ld. APP requested for conviction of the accused and severe punishment as per law.
20. On the other hand, learned defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable shadow of doubt as prosecution has failed to prove that it was the accused who was driving the offending vehicle at the time of incident and FIR No. 669/06 State Vs. Kamal Kumar Jyoti Digitally signed by Jyoti Nain Nain Date: 2023.10.31 17:36:55 +0530 11 since, even the identity of the driver of the offending vehicle is disputed, thus, accused be acquitted for the offences he has been charged under. Accordingly, he prayed for the acquittal of the accused.
21. The onus lies on the prosecution to prove these allegations against the accused.
22. In the present case, charges brought against the accused are under Sections 279/337/304A of IPC & u/s 3/181 MV Act for driving the vehicle in question in a rash and negligent manner and thereby causing death of one Jagat Shah and injuries to the complainant Baji Lal. The prosecution in order to bring home the guilt of the accused examined ten witnesses in its evidence. In order to prove the guilt of the accused, it was incumbent upon the prosecution to prove:
23. At the very outset, it is pertinent to mention, that the most important witnesses examined by the prosecution in the present case are PW1 i.e. Baji Lal and PW10 i.e. Upender Kumar as they have been cited by the prosecution as the injured and the eye witness but they have taken contradictory stands at the stage of investigation and trial.
Jyoti Digitally signed by Jyoti Nain Nain Date: 2023.10.31 17:37:02 +0530 FIR No. 669/06 State Vs. Kamal Kumar 12
That PW10 Upender Kumar has outrightly stated in his examination in chief that he can not identify the driver of the offending vehicle as a long time had passed and the accident had taken place all of a sudden. Since, this witness was resiling from his earlier statement, thus, Ld. APP cross examined him on this point but still PW10 sticked to his statement that he could not identify the accused due to lapse of time and had not seen the accused properly at the time of incident. Since, PW10 turned hostile on the point of identification of the accused, thus, the identity of the driver of the offending vehicle remained disputed.
That PW1 in his supplementary statement u/s 161 Cr.P.C and examination in chief, identified the accused whereas in his crossexamination he denied that he had seen the driver of the offending vehicle on the date of incident since it was night and the vehicle was at a distance of 100 meters away from the spot. That in his crossexamination, PW1 i.e. star witness has stated that the name of driver was told to him as Kamal by the police officer at the police station. That the same was told to him on the next morning of the incident. PW1 has further stated that it was the IO who had introduced him with the driver in the police station saying that " he is the driver of vehicle namely Kamal". That PW1 in his crossexamination stated that he only met the IO once during the investigation i.e. when he introduced him to Kamal.
Jyoti Digitally signed
by Jyoti Nain
Date: 2023.10.31
FIR No. 669/06 Nain 17:37:06 +0530
State Vs. Kamal Kumar
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PW1 in his crossexamination has stated that " The police official/ IO has done the investigation from me at the time of registration of FIR/ case only. No other proceedings have been done from me by the said police officer. No other document was prepared by the IO in respect of investigation of the present case except the registration of FIR".
In his examination in chief, PW1 has stated that IO prepared site plan of the place of occurrence at his instance and the same is Ex.PW1/B. Also in his supplementary statement u/s 161 Cr.P.C marked as Mark A, PW1 had stated that the site plan was prepared at his instance. Thus, there is contradiction in the statement of PW1 regarding preparation of the site plan at his instance.
PW1 stated that no photograph of the spot were taken in front of him and that he was not shown any photograph of the spot neither in the police station nor thereafter during the investigation.
PW1 in his crossexamination has further stated that he had signed one paper in the police station based upon which the FIR in question was registered. That even though he did not sign on a blank paper but he did not know as to what was written on the said piece of paper. That it was only the police officer who kept on writing himself and he kept mum, sat in silence, bowing down his head. That even his eye sight was not good at that moment and was unable to see things at that point of time. That it was after one month FIR No. 669/06 State Vs. Kamal Kumar Jyoti Digitally signed by Jyoti Nain Date:
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when he started recognizing things with his eye sight slowly. That even on the day of crossexamination i.e. 03.10.2023 i.e. after 17 years of incident, he has not recovered his eye sight and can see things with the help of spectacle only. Thus, PW1 has failed to identify the accused as the driver of the offending vehicle.
24. Further, there is contradiction in the statement given by PW1 u/s 161 Cr.P.C, his examination in chief and that during his crossexamination qua the place of incident. In his statement u/s 161 Cr.P.C and examination in chief, complainant has stated that the incident took place at KDR Marg, GT Road Karnal whereas during his crossexamination, he stated that the incident happened at Mukara Chowk. Thus, keeping in mind the above contradictions in the testimony of PW1, much reliance can not be placed on the same.
25. It is important to mention here that the testimony of PW5 i.e. the employer of the driver of the offending vehicle would also not help the prosecution to establish the identity of the accused as the driver of the offending vehicle since, in his crossexamination, PW5 has himself admitted that he had not given any record regarding salary, employment etc. of the accused to the IO or any police official. The prosecution has failed to bring on record any documents which could show that indeed it was the accused who was driving the offending vehicle on the fateful day.
FIR No. 669/06 State Vs. Kamal Kumar Jyoti Digitally signed by Jyoti Nain Date: 2023.10.31 Nain 17:37:14 +0530 15
Thus, in totality, the prosecution has failed to prove the fact that the accused was driving the offending vehicle on the date of incident beyond reasonable doubt.
26. In light of the glaring loop holes mentioned as above, it can be safely culled out, that the prosecution has failed to establish the identity of the accused as the driver of the offending vehicle owing to the contradiction in the testimony of star witness PW1 and eye witness PW10.
Thus, collective reading of the testimonies of the prosecution witnesses leads to the inferences that both the witnesses i.e. PW1 and PW10 have failed to identify the accused as the driver of the offending vehicle and have stated, that they did not see the accused on the day of the incident.
27. In view of the discussion here in above, on the whole the prosecution has failed to establish beyond reasonable doubt that indeed it was the accused who was driving the offending vehicle in a rash or negligent manner so as to endanger human life or likely to cause harm or injury to other persons. Hence, ingredients of offence U/s 279 IPC have not been proved beyond reasonable doubt. Also, when the identity of driver of the offending vehicle is not proved, FIR No. 669/06 State Vs. Kamal Kumar Jyoti Digitally signed by Jyoti Nain Date:
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criminal liability for the offence u/s 337/304A IPC & U/s 3/181 MV Act can not be fixed upon the accused.
28. It is important to mention that wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused and in the instant case, prosecution has failed to prove its case against accused beyond reasonable doubt.
29. At this stage, court further deems it fit to state, that it is a settled principle of criminal jurisprudence, that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. In the present case it is pellucid, that the case of the prosecution suffers from several glaring loopholes as there are numerous inconsistencies in the testimony of the witnesses is found.
FIR No. 669/06Jyoti Digitally signed by Jyoti Nain Date: 2023.10.31 State Vs. Kamal Kumar Nain 17:37:24 +0530 17
30. Therefore in view of the above said discussion it is pellucid, that the case of the prosecution suffers from several glaring loopholes and there are numerous inconsistencies in the testimonies. Hence, this court is of the considered opinion, that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Kamal Kumar stands acquitted from the charges U/s. 279/337/304A IPC & U/s 3/181 MV Act.
31. Previous Bail bond cancelled and surety discharged. Endorsement if any, be cancelled and documents if any, be returned, against acknowledgment after due verification.
File be consigned to Record room after necessary compliance. Bail bond u/s 437A cr.p.c furnished and accepted.
Announced in open court today
Jyoti Digitally signed
by Jyoti Nain
Date:
on 31st Day of October 2023 Nain 2023.10.31
17:37:30 +0530
(Jyoti Nain)
Metropolitan Magistrate
North District Court/Delhi
FIR No. 669/06
State Vs. Kamal Kumar