Delhi District Court
State vs . Taj Mohd. on 24 November, 2018
IN THE COURT OF SHRI SUMEET ANAND
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 67/2005
Cr C No. : 41272/16
PS : Mandir Marg
U/s : 279/337 IPC
State Vs. Taj Mohd.
JUDGMENT
A Case Identification 41272/16
Number
B Name of the Askaran Shankwar
Complainant
C Name of the accused Taj Mohd.
& his parentage and S/o Sh. Niyadar
address R/o Village Mubarkpur Musetiya,
PS Jayas, District - Raibareli, U.P.
D Offence complained of 279/337 IPC
E Date of commission of 09.02.2005
offence
F Date of Institution 21.03.2005
G Offence Charged 279/337 IPC
H Plea of accused Pleaded not guilty
I Order Reserved on 16.11.2018
J Date of 24.11.2018
Pronouncement
K Final Order Acquitted
FIR No.67/05 State Vs. Taj Mohd. Page 1 of 13
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Prosecution alleges that on 09.02.2005 at around 09:30 PM near RML Hospital accused Taj Mohammad was driving 'Tata 407' bearing registration number DL 1 LB 8037 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the said vehicle in the said manner at the said place and time accused Taj Mohammad hit a TSR carrying the complainant and his colleague, due to which the TSR turned turtle on the road, and the complainant and his colleague suffered injuries.
2. The FIR was registered on the complaint of PW-2 (complaint) Askaran Shankhwar. His complaint is EX PW 2/A. During the course of investigation, after service of notice under section 133 M.V. Act on the owner of the vehicle (PW-4 Chottey Lal) the accused Taj Mohammad was arrested in this case.
3. During the investigation a formal application for conducting the Test Identification Parade of accused was moved, however the accused refused to participate in the TIP.
4. After the completion of investigation a final report in the form of chargesheet under section 173 Cr.P.C was forwarded to the FIR No.67/05 State Vs. Taj Mohd. Page 2 of 13 court arraying accused Taj Mohammad as the accused.
5. After taking cognizance of offence and appearance of accused before the court the chargesheet was supplied to the accused and subsequently notice of accusation for commission of offences under section 279 and 337 IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
6. In order to prove its case beyond all reasonable doubts the prosecution examined 11 witnesses; viz.
i) PW-1 HC Joginder Singh (Duty Officer).
ii) PW-2 Askaran Shankwar (Complainant).
iii) PW-3 Krishan Varan Singh (Injured/eye witness).
iv) PW-4 Sh. Chhote Lal (Superdar of offending vehicle).
v) PW-5 Ct. Vijay Singh (Accompanied the IO of the case).
vi) PW-6 SI C.L. Meena (I/C PCR).
vii) PW-7 HC Ishwar Singh (Duty Writer of DD No.21A, dated
09.02.2005.
viii) PW-8 SI Vir Kumar (IO of the case).
ix) PW-9 Sh. Sunil Kumar Aggarwal (the then Ld. MM who had
conducted the TIP in this case).
x) PW-10 ASI (Tech.) Devender (Mechanical Inspector).
xi) PW-11 Dr. Srimanta Kumar Sahu (The Doctor who
prepared the MLC No.14960/5 and MLC No.14961/5).
FIR No.67/05 State Vs. Taj Mohd. Page 3 of 137. The prosecution, in order to prove its case, also relied upon the following documents; viz.
i. Point X - Endorsement on rukka made by DO.
ii. Ex.PW-1/A - FIR.
iii. Ex.PW-2/A - Statement of complainant.
iv. Ex.PW-4/A - Reply of Notice u/s 133 M.V. Act given by
Chotte La.
v. Ex.PW-4/B - Seizure Memo of RC and Insurance of Tempo
No.DL-1LB-8037.
vi. Ex.PW-5/A - Arrest Memo of accused.
vii. Ex.PW-5/B - Personal Search Memo of accused Taj Mohd.
viii. Ex.PW-5/C-Seizure Memo of Tempo No.DL-1LB-8037.
ix. Ex.PW-6/A - Site Plan.
x. Ex.PW-7/A - DD No.21-A, 09.02.2005.
xi. Ex.PW-7/B (OSR) - Endorsement on Register No.19.
xii. Ex.PW-8/A - Endorsement on rukka.
xiii. Ex.PW-8/B - Notice U/s 133 M.V. Act given to Sh. Chotte Lal.
xiv. Ex.PW-8/C - Mechanical Inspection Report of vehicle bearing no.DL-1LB-8037.
xv. Ex.PW-9/A - Request for conducting TIP.
xvi. Ex.PW-9/B - TIP proceedings.
xvii. Ex.PW-9/C - Request letter for proving copy of TIP proceedings.
FIR No.67/05 State Vs. Taj Mohd. Page 4 of 13xviii. Ex.PW-11/A - MLC No.14961/05of Krishna Varan Singh. xix. Ex.PW-11/B - MLC No.14960/05 of A.K. Sankhwal.
8. After prosecution evidence, the statement of accused under section 313 Cr.P.C was recorded, wherein all incriminating facts lead against the accused were put to him affording him an opportunity to give his explanation, if any. The accused in his statement pleaded his innocence and false implication. However, despite opportunity accused preferred not to lead any defence evidence.
9. At the stage of final arguments both prosecution and defence were hear at length.
10. I have perused the entire record and carefully appreciated the evidence lead by the prosecution.
11. The case involves two eye witnesses, who are also, according to the prosecution case, also the victims; i.e. PW-2 Askaran Shankwar and PW-3 Krishan Varan Singh. Except for these two witnesses, all other witnesses are either police witnesses, or formal witnesses; like the doctor who examined the victims and prepared their MLC, or the mechanical inspector, who conducted the Mechanical inspection of the offending vehicle. Hence it is primarily the testimony of PW-2 and PW-3 which deserves due FIR No.67/05 State Vs. Taj Mohd. Page 5 of 13 consideration.
12. As far as PW-3 Krishan Varan Singh, an eye witness and victim, is concerned he has not supported the case of the prosecution at all. It shall be absolutely apt to term PW-3 as a Hostile witness. In the entire testimony of PW-3 there is nothing incriminating qua the accused. Although the prosecution, in the cross examination of PW-3 suggested to him that he is not supporting the prosecution case as he has been won over by the accused, a suggestion which PW-3 negated, but the prosecution, except for a suggestion, failed to bring on record any fact or circumstances due to which PW-3 did not support the prosecution's case. Hence, the testimony of PW-3, who was a star witness to prove the prosecution's case cause a serious dent in the case of the prosecution.
13. In addition to the hostile testimony of PW-3 another significant flaw in the case of the prosecution is that the driver of the TSR, in which, as per the case of the prosecution, PW-2 and PW-3 were travelling, when they met with the accident, has not been made a witness in the case. The registration number of the TSR is not on record. The TSR was not seized in the case. Moreover, there is nothing on record to show that any attempt was made by the investigating authorities to identify the TSR and his driver.
FIR No.67/05 State Vs. Taj Mohd. Page 6 of 1314. According to the case of the prosecution, due to the accident the TSR turned turtle on the road; due to which PW-2 and PW-3 both sustained injuries. Hence, it is most likely that the driver of the TSR would have also sustained some injuries. However, there is nothing on record to show that the TSR driver was admitted to any hospital. Moreover, as after the accident the complainant / victim had recorded the registration number of the offending vehicle, it is highly unlikely that they did not record the number of the TSR in which they were travelling.
15. The alleged accident occurred near RML Hospital at around 09:30 PM. The victims / injured PW-2 and PW-3 were taken to the RML hospital. Their MLC's record the time of their production at 10:10 PM. It also records that they have been brought to the hospital by SI C.L. Meena.
16. SI C.L. Meena is PW-6. According to his testimony on the date of incident he was posted at PS Chanakyapuri and the information concerning the accident was received via PCR and thereafter he reached the spot and found the offending vehicle at the spot and he thereafter removed both the injured persons to hospital. According to his statement he also collected the MLC of the injured and PW-2 (Askaran Shankwal) gave his written complaint / statement to him, which he handed over to the IO.
FIR No.67/05 State Vs. Taj Mohd. Page 7 of 1317. The DD No. registered upon receiving the PCR complaint, on which PW-6 C.L. Meena reached the spot is not a part of record. It is a point left unexplained by PW-6 that under what circumstances, despite being posted at PS Chanakyapuri, he had to visit the spot of accident as the first respondent to the PCR call. It is also an unexplained fact by PW-6 that under what authority and circumstances he collected the MLC's of the injured from the hospital. The admitted fact that PW-6 collected the written complaint from PW-2 also suggests that PW-6 on his own commenced the investigation, without the investigating officer from the concerned Police Station reaching the spot of incident, or the hospital.
18. Interestingly, the most crucial document in an accident case, which is one of the keys to unlock the answers to various questions such as rashness and negligence of the driver of the offending vehicle i.e. the Site Map 'Naksha Mauka ' has not been prepared in this case at the instance of the complainant / injured or the victim; but the same has been made at the Instance of PW-6 SI C.L. Meena, who admittedly and undisputedly had not been a witness to the accident / incident and had reached the spot after receiving a PCR call.
19. The source of knowledge, based on which SI C.L. Meena got prepared the site map has not been dispelled by him in his FIR No.67/05 State Vs. Taj Mohd. Page 8 of 13 testimony. However, in his statement recorded by the Investigating officer, under section 161 Cr.P.C SI C.L. Meena has stated that he got prepared the site plan as per the information given by the complainant to him.
20. However, the complainant, PW-2, in his entire testimony nowhere states that he had given any details of the manner in which the accident occurred to a policer officer named C.L. Meena. Moreover, the site plan, allegedly prepared at the instance of C.L. Meena also nowhere bears either the signatures of C.L Meena, or of any other witnesses, in whose presence it was made.
21. Furthermore, after SI C.L. Meena sent a wireless message, on which DD NO. 21A was registered at PS Mandir Marg, the Investigating officer of this case reached the RML hospital. According to the testimony of PW-8 (investigating officer) after reaching the hospital SI C.L. Meena handed over the MLC's of both the injured and the written complaint of the complainant to the IO, which was sent to the PS after necessary endorsement through Ct. Vijay (PW-5) for registration of FIR. According to the testimony of PW-8 (IO) thereafter, he the site plan at the instance of CL Meena and thereafter seized the offending vehicle vide EX PW 5/C
22. Now, perusal of document EX PW 5/C i.e. the seizure memo of FIR No.67/05 State Vs. Taj Mohd. Page 9 of 13 the offending vehicle, in absolute contrary to the statement of PW-8, suggests that the offending vehicle was seized on 10.02.2005. the date of incident is 09.02.2005 at around 09:30 PM. According to the testimony of PW-6 and PW-8 the offending vehicle was at the spot. Moreover, according to the testimony of PW-8 it can be made out that the vehicle was seized on the same date, however, the document (seizure memo) records the date of the next day of the incident. Hence, it cannot be ruled out that the entire documentation has been done by the IO at the Police station and not at the spot.
23. Furthermore, there is a clear interpolation in the time of arrest of the accused in the arrest memo. No explanation, whatsoever has been given by the IO regarding such interpolation.
24. Furthermore, the Hon'ble Apex Court in the judgment of "State of Karnataka vs. Satish" SCC (CRI) 1508 and the Hon'ble Delhi High Court in case titled "Abdul Subhan vs. State" 2007 (1) CCC (HC) 414 observed that in the absence of material facts and circumstances indicating that the accused driver acted in a rash or negligent manner, he cannot be held guilty of the offence.
25. The uncorroborated testimony of PW-2 lack material particulars capable of imputing either rashness, or even the negligence upon FIR No.67/05 State Vs. Taj Mohd. Page 10 of 13 the accused while driving the offending vehicle. The alleged eye witnesses of the prosecution has neither stated the approximate speed of the offending vehicle at the time of incident / accident, or the manner in which the traffic was moving, or about the status of the traffic signals etc. Merely reiterating that the accused was driving the offending vehicle in a Rash and Negligent manner, is not, in the opinion of this court, sufficient to take the case of the prosecution beyond the bracket of "all reasonable doubts."
26. PW-2, in his testimony, has also stated that the accused was driving the offending vehicle in a zig zag manner, however, this fact has not been supported by the other eye witness / injured. Moreover, this fact, that the accused was driving the vehicle in a zig zag manner, in the absence of the facts regarding the movement of traffic on the road and the amount of vehicles on the road, alone by itself is not sufficient to take impute rashness or negligence.
27. Rashness and negligence in driving a vehicle are subjective concepts and no straight jacket formula can be put to use to ascertain the rashness or negligence while driving the vehicle. Criminal rashness and negligence have to be proved like a 'Relevant Fact' during the course of trial and this onus lies upon the prosecution. There cannot be any reason to presume rashness or negligence in driving the offending vehicle.
FIR No.67/05 State Vs. Taj Mohd. Page 11 of 1328. PW-2 in his testimony has complied with the statutory requirement by stating that the accused was driving the vehicle in a rash and negligent manner, however neither rashness, nor negligence could be proved by the prosecution during the trial. The uncorroborated testimony of PW-2 is absolutely deficient to conclusively opine the nature of manner in which the offending vehicle was being driven at the relevant time. And, this deficiency materially affects the case of the prosecution.
29. Accordingly, based on the above done discussion accused Taj Mohammad is hereby acquitted from this case and offences under section 279 and 337 IPC for the following reasons; viz.
i) The prime eye witness, also being the victim (PW-3) has not supported the case of the prosecution.
ii) The documents prepared by the investigating authorities, such as the Site Plan and the arrest memo cannot be relied upon at all, for the Site Plan being hit by rule of "Hear Say" and the Arrest memo being interpolated to crucial aspect as to the timing of arrest of accused.
iii) The seizure memo of the offending vehicle can also not be relied upon for having been prepared belatedly, suggesting that the entire documentation has been done on 10.02.2005 at the Police station, instead of being done at FIR No.67/05 State Vs. Taj Mohd. Page 12 of 13 the spot.
iv) The crucial witness i.e. the driver of the TSR has not been arrayed as a witness. No attempt has been made by the investigating authorities to search / identify the TSR driver. The TSR itself has not been recovered and seized and mechanically inspected.
v) No independent witness has been made to join the investigation.
vi) The injuries sustained by the victims / injured do not corroborate with the intensity of the accident that caused the TSR to turn turtle on the road.
vii) The prosecution has failed to prove either rashness or negligence on the part of the accused while driving the offending vehicle at the relevant date and time of the Digitally signed incident / accident. by SUMEET SUMEET ANAND ANAND Date:
2018.11.24 Announced in the Open (SUMEET ANAND) 17:43:09 +0530 Court on 24th November, 2018 MM-07/PHC/New Delhi FIR No.67/05 State Vs. Taj Mohd. Page 13 of 13