Delhi District Court
State vs . on 13 April, 2021
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 859/2018
Case ID No. -: DLSW020049902018
FIR No. -: 112/2017
Police Station -: BHD Nagar
Section(s) -: 279/337 IPC
In the matter of -
STATE
VS.
JITENDER
S/o Dalip Singh
R/o Village Ujwa, Taai Pana, New Delhi
.... Accused
1. Name of Complainant : Gourav
2. Name of Accused : Jitender
Offence complained of or Section 279/337 of Indian Penal
3. :
proved Code, 1860
4. Plea of Accused : Not Guilty
5. Date of commission of offence : 29.06.2017
6. Date of Filing of case : 25.01.2018
7. Date of Reserving Order : 05.04.2021
8. Date of Pronouncement : 13.04.2021
9. Final Order : Acquitted
Argued by -: Sh. Naween Kumar, Ld. APP for the State.
Sh. Yashbir Singh Kadiyan, Ld. counsel for the accused.
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BRIEF STATEMENT OF REASONS FOR THE DECISION -:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 29.06.2017, the complainant/injured Gourav was going towards Najafgarh from Mitrao Village in his Maruti 800 car bearing registration no. DL 9CJ 2724. While taking a turn towards the petrol pump, a speeding DTC bus bearing registration no. DL 1PC 8079 hit his car, which resulted in damages to the car and injuries to the complainant. It is alleged that the accused Jitender, who was the driver of the offending vehicle, was driving the same in a rash and negligent manner on the fateful day. The complainant with the help of some known person reached Jaffarpur Hospital and got treatment.
As such, it is alleged that the accused committed the offences punishable under Section 279/337 of Indian Penal Code, 1860 (hereinafter, "IPC"), for which FIR No. 112/17 was registered at Baba Haridas Nagar Police Station.
INVESTIGATION AND APPEARANCE OF ACCUSED-
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against accused Jitender was filed.
3. On his appearance, a copy of charge-sheet was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice of accusation under Sections 279/337 IPC was framed against the accused. In reply to the said notice, the accused Cr. Case No. 859/2018 STATE VS. JITENDER Page 2 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:29:16 +05'30' pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE-
4. During trial, the prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW 1 : Gourav (injured) PW 2 : Ct. Subhash (proves investigation) PW 3 : ASI Naresh Kumar (IO) PW 4 : WHC Raj Bai (formal) PW 5 : Mahavir (DTC employee) PW 6 : Harphool Singh (DTC employee) PW 7 : Dr. Uttam Kondle (proves MLC) DOCUMENTARY EVIDENCE Ex. PW1/A : Statement of complainant Ex. PW1/B : Seizure memo of RC of Car Ex. PW1/C : Seizure memo of DL of complainant Ex. PW1/D : Seizure memo of car Ex. P1 : Photographs of the vehicles Ex. PW2/A : Arrest memo of accused Ex. PW2/B : Personal search memo of accused Ex. PW2/C : Seizure memo of offending vehicle Ex. PW2/D : Seizure memo of DL Seizure memo of documents of offending Ex. PW2/E :
vehicle Ex. PW3/A : DD no. 14A Ex. PW3/B : Tehrir Ex. PW3/C : Notice under Section 133 MV Act Ex. PW3/D : Bail bonds Ex. PW3/E : Site plan Ex. PW3/F : Mechanical inspection report of car Cr. Case No. 859/2018 STATE VS. JITENDER Page 3 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:29:25 +05'30' Mechanical inspection report of offending Ex. PW3/G :
vehicle
Ex. PW4/A : DD no. 19 regarding MLC
Ex. PW4/B : FIR
Certificate under Section 65B Evidence
Ex. PW4/C :
Act
Ex. PW5/A : Authorization letter of Depot Manager
Ex. PW5/B : Duty slip
Ex. PW5/C : Superdarinama of offending vehicle
Ex. PW5/D : Panchnama
Ex. PW5/E : Driver memo
Mark PW
: Documents of offending vehicle
6/A
Ex. PW7/A : MLC
5. Gourav (PW1) is the star witness of the prosecution, being the injured. He deposed on oath that on 29.06.2017, he was going to CNG pump from his house in his car bearing registration no.
DL 9CJ 2754. When the witness took turn towards the HP Petrol Pump at Mitrao Village, a DTC bus, coming at high speed from the side of Mitrao Village, hit his car from the left side. The registration no. of the bus was DL 1PC 8079. As a result of the collusion, he sustained injuries and he went to the Jaffarpur Hospital with his friend. After returning to the spot, the witness gave the statement to the police and handed over his documents. He stated that the accident took place due to rash and negligent driving of the accused. He identified the accused and photographs of the vehicles involved in the accident 5.1. In his cross examination, Gaurav (PW1) stated that the accident took place at 09.40 AM and at the time of accident, his friend Cr. Case No. 859/2018 STATE VS. JITENDER Page 4 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:29:34 +05'30' Sagar was accompanying him in another car. He admitted that neither him nor his friend Sagar called the PCR. He stated that when he reached the spot after getting treatment from the hospital, he found the accused, his conductor and other public persons on the spot. He stated that he never went to the spot alongwith the police officials during the investigation but also stated that the site plan was prepared at his instance, on the spot. He admitted that he took a turn from the cut in the divider on the road, so as to reach the petrol pump. He further admitted that there was another cut in the divider, at about 100 meters ahead of the cut that he used. He stated that the cut from where he had taken right turn was in front of the HP petrol pump. The witness deposed that the speed of the DTC bus was 60-70 km/hour when it hit his car. He admitted that he had already seen the DTC bus coming in his direction, before taking the cut. However, he stated that it was at a safe distance, before he took the turn.
6. Ct. Subhash (PW2) was posted as constable at P.S. BHD Nagar on the date of incident. He stated that around 10.40 AM, a call was received in the police station with respect to the incident. When he reached the spot alongwith ASI Naresh, they found one DTC bus bearing number DL 1PC 8079 and one Maruti 800 Car bearing registration no. DL 9CJ 2754, at the spot. The accused was also there. Thereafter, when they reached the hospital, they did not find the complainant. However, they returned to the spot and found the complainant there. After the registration of the FIR, the witness went back to the spot and the vehicles were then taken to the police station alongwith the accused. The accused was then arrested. The witness identified the photographs of the vehicles.
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6.1 In his cross examination, Ct. Subhash (PW2) stated
that when the information was received vide DD No. 14A on 29.062.107, he was at the Police Station alongwith the IO. He admitted that after reaching the spot, he alongwith the IO left for Jaffarpur Hospital in search of the victim. When they reached back, they found only the victim and the accused on the spot. No other person was found on the spot. The IO had directed the accused to make a phone call to his officials and bring the documents pertaining to the DTC bus to the Police Station. He stated that the DTC official came to the Police Station. When a specific question was put to the witness, he stated that the arrest memo and the personal search memo of the accused were prepared at the spot.
7. ASI Naresh (PW3) is the IO in the present case. He deposed on oath that he reached the spot alongwith Ct. Subhash (PW2) on the date of incident and found the two vehicles at the spot. He further stated that the driver of the DTC bus was present at the spot. However, the complainant was not found there. The accused was also at the spot. After the witness made a call to the number of the caller, it was found out that the complainant had gone to RTRM Hospital. The witness further deposed that he met the victim, when he returned to the spot from the hospital and thereafter, he prepared the tehrir. After registration of FIR, Ct. Subash came back from the Police Station and the accused was arrested after interrogation. He further stated on oath that he telephonically called the incharge of the Depot and prepared the site plan at the instance of the complainant. He further deposed about the investigation done by him in the present case. He stated that he prepared the site plan at the instance of the Cr. Case No. 859/2018 STATE VS. JITENDER Page 6 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:29:52 +05'30' complainant. He identified the photographs of the vehicles. A court question was put to the witness regarding seizure of duty slip of the accused Jitender. He stated that he was not aware about the said fact. Further, he stated that he forgot to examine the duty clerk who had recorded the departure entry of the accused and also forgot to array the superdar of the offending vehicle as a witness. 7.1 During the cross examination, ASI Naresh (PW3) stated that he was on another PCR call when he received DD no. 14A, at about 11 AM on 29.06.2017. He stated that Ct. Subhash was accompanying him at that time. He stated that when he reached the spot he found that both the vehicles were already removed from the spot. The witness deposed that he called back on the number who made the PCR and after talking to the caller and the nearby persons, it came to fore that the victim has been transferred to RTRM hospital. He admitted not disclosing the fact of calling the PCR caller in his investigation report. The witness further stated that he met Harphool Singh, Incharge of DTC depot, at the spot. He testified that he has taken the photographs of the vehicle through his mobile, however, the same were not placed on record. He also stated that when he met the victim Gaurav another person was accompanying him. The witness had also exhibited the mechanical report as the mechanical inspector has passed away. However, he admitted to not filing any other document to show that he had worked with the mechanical examiner in any other case.
8. Mahavir (PW5) deposed on oath that he was working as Traffic Inspector in the DTC and he had got the vehicle released on superdari, after being authorized by the Depot Manager. He stated Cr. Case No. 859/2018 STATE VS. JITENDER Page 7 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:30:01 +05'30' that he had prepared the duty slip on the basis of the driver memo. 8.1 During the cross examination, Mahavir (PW5) stated that the duty memo was not prepared by him. He admitted that the attendance of the driver and the conductor are recorded in the Fleet Register maintained by the DTC Depot, which was not produced by the witness. He stated that the accused was scheduled to take the bus from Depot on school duty between 7 am to 8 am and thereafter, he was scheduled to reach Uttam Nagar from Dwarka at 08.30 am to 09.00 am. After 09.00 am, he was scheduled to take the bus from Uttam Nagar to Old Delhi Railway Station and was supposed to return Uttam Nagar at about 12.30 PM. He stated that the memo was manually altered by the concerned person, whose name he did not know.
9. Harphool Singh (PW6) deposed on oath that on 29.06.2017, the police had called him to the Police Station with relevant documents pertaining to the offending vehicle. He has proved on record the documents of the vehicle. 9.1 During the cross examination, Harphool Singh (PW6) stated that he did not go to the spot on the date of incident and had reached the police station at 04.00-04.30 PM on the said date. He stated that the bail bonds were prepared in the police station in his presence as he has given surety to the accused.
10. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
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STATEMENT OF ACCUSED AND DEFENCE EVIDENCE-
11. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 281 read with Section 313 CrPC. In reply, the accused stated that the present case is a false case and the documents are forged. He stated that he wished to lead defence evidence. However, later on, the accused vide separate statement stated that he did not wish to lead any evidence in his defence.
ARGUMENTS-
12. I have heard the ld. APP for the State and ld. counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
13. It has been argued by the ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the oral testimony of the witnesses is duly corroborated with the documents on record like the mechanical inspection report, MLC etc. Further, the IO has proved the investigation conducted by him. As such, it is prayed that the accused be punished for the said offences.
14. Per contra, ld. counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. Ld. counsel has argued that the testimonies of the witnesses is inconsistent and the prosecution version suffers from material contradictions. He has contended that the ingredients of the offence Cr. Case No. 859/2018 STATE VS. JITENDER Page 9 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:30:21 +05'30' are not fulfilled by the material on record. As such, he contends that the accused is entitled for the benefit of doubt. It is prayed that the accused be acquitted of the said offences.
INGREDIENTS OF THE OFFENCE-
15. Before dwelling into the facts of the present case, it would be apposite to discuss the legal standards required to be met. In order to establish the offence under Section 279 of the IPC, the prosecution has to prove that the accused was driving the vehicle on a public way in a rash or negligent manner, so as to endanger human life or cause hurt/injury to any person. Likewise, for the offence under Section 337 IPC, it has to be proved that due to such rash or negligent act, simple hurt has been caused by the accused to the victim.
16. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The injuries on the injured are not disputed in the present case. The prosecution has proved the MLC, Ex. PW7/A on record. As per the MLC, there are abrasions present on the parieto occipital, shoulder, chest areas. Tenderness is also seen on the chest area.
RASHNESS OR NEGLIGENCE-
17. The gravamen of the offence under Section 279/338 IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these Cr. Case No. 859/2018 STATE VS. JITENDER Page 10 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:30:31 +05'30' terms has now been settled by judicial pronouncements of superior courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual which having regard to all the circumstances out of which the charge arises, it may be the Cr. Case No. 859/2018 STATE VS. JITENDER Page 11 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:30:41 +05'30' imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries. It is to be ascertained if the act of the accused in driving the vehicle in the present case amounted to a rash or negligent act, in light of the above discussion.
18. In the present case, the injured Gourav (PW1) has deposed that on the fateful day, he was going to the Petrol Pump and he took a turn towards the pump. He saw the offending vehicle coming from the side of Mitrao Village at very high speed. The witness then stated that the accident took place due to rash and negligent driving of the accused. In the examination-in-chief, the witness did not give any approximation of the high speed. However, when he was questioned during his cross-examination, he stated that the speed of the bus was around 60-70 km/hr when it struck his car. Thus, as per the oral testimony of the injured, the vehicle was travelling at a high speed of 60-70 km/hr when the accident occurred.
19. However, mere fact that the vehicle was travelling in high speed does not impute rashness or negligence. In this regard, it has been held by the Hon'ble Apex Court in Ravi Kapur vs. State of Cr. Case No. 859/2018 STATE VS. JITENDER Page 12 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:30:49 +05'30' Rajasthan (2012) 9 SCC 284 that the speed cannot be a determinative factor for coming to a conclusion that the person was driving rashly or negligently. Further, it was observed in State of Karnataka vs. Satish (1998) 8 SCC 493, as under :-
"4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"."
The Hon'ble High Court of Delhi in Abdul Subhan vs. State (N.C.T. of Delhi) 133 (2006) DLT 562 also held that mere allegation of high speed does not tantamount to rashness or negligence. Admittedly, the offending vehicle was travelling in its own lane, when the accident occurred. The witness has not stated how the vehicle was driven in a rash or negligent manner, apart from being driven in high speed. Even otherwise, the speed approximation of the witness also appears to be incorrect as the speed governor of the offending vehicle was functioning at the time of incident. This fact is evident from the mechanical inspection report Ex. PW3/G. As per Rule 118 of the Central Motor Vehicle Rules, 1989 (before amendment on 2015) and in terms of notification F. No. MLO(VIU)/TPT/2017/165/315 dated 17.07.2018 of the Transport Department, Delhi (the offending vehicle Cr. Case No. 859/2018 STATE VS. JITENDER Page 13 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:30:59 +05'30' was registered prior to 2015 amendment and therefore is not covered by the decision in Rana Motors Pvt. Ltd. vs. Govt. of NCT Delhi 2020 SCC OnLine Del 1212), a speed limit of 40km/hr has been set for such category of vehicles like the offending vehicle. Therefore, even high speed of the offending vehicle is not proved in the present case.
20. Further, there are certain unanswered questions, viz, was the road a busy road? What was the status of the traffic on the date of incident? Were there other vehicles around the spot, at the time of incident? No evidence has been led to show the surrounding circumstances which would point towards the fact that the speed of the vehicle, was infact high, in view of the peculiar circumstances of the area, on the date of incident. No skid marks etc. have been proved on record. Thus, even though the mechanical inspection reports point towards damages, mere fact that the accident occurred does not point towards criminal rashness or negligence. In such situation, independent witnesses would have augmented the case of the prosecution. No public persons have been examined by the prosecution in the present case. The injured PW1 in his deposition has stated that his friend Sagar was accompanying him on the date of accident. However, the said friend was never joined in the investigation by the IO. During his cross-examination, the IO PW3 has stated that although there was one more person accompanying the injured, he was not the eye-witness. However, no statement of such person was recorded by the IO under Section 161 CrPC. In this regard, Ct. Subash (PW2) in his cross examination has stated that when they reached the spot, they only met injured Gourav and the Cr. Case No. 859/2018 STATE VS. JITENDER Page 14 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:31:08 +05'30' accused. No other person was found. Thus, the testimonies of the witnesses including the injured is not reliable on this point.
21. Further, as per the complaint of the injured Ex. PW1/A, when the accident occurred, the accused was nabbed by the public persons on the spot. Thus, the presence of public persons at the time of incident, is established. However, no such public person was joined by the IO in the present case. The IO PW3 in his cross-examination stated that no other eye-witness was found. This statement appears to be directly contradictory to the complaint of the injured, Ex. PW1/A. Although it is true that non-joining of independent witnesses cannot be a sole ground to discard the evidence of prosecution witnesses (Refer Appabhai vs. State of Gujarat AIR 1988 SC 696), however, despite availability, non-joining of public persons makes the prosecution version doubtful.
22. Notably, the injured admitted in his cross-examination that he had seen the offending vehicle approaching, before he took the turn. Ld. counsel for the accused has relied upon Rule 9 of the Motor Vehicles (Driving) Regulations, 2017 to contend that the vehicle on the right has the right of way, if there is an intersection and the vehicle is taking a right turn. The reliance of the ld. counsel for the accused on the provision appears to be justified as the provision clearly lays down that at intersections and junctions, the vehicles approaching from the right have the right of way. From the evidence on record, it is borne out that the injured had seen the offending vehicle approaching before he took the right turn. The offending vehicle was approaching from the right side of the injured. Therefore, the fact circumstance is clearly covered under the provision quoted Cr. Case No. 859/2018 STATE VS. JITENDER Page 15 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:31:17 +05'30' above. As such, it cannot be said that the accused was driving in a rash and negligent manner.
23. Another document worth mentioning is the site plan Ex. PW3/E. As per the site plan, a road containing a divider is seen. The divider has a cut, from which the injured took the turn. However, as per the testimony of the injured PW1, there was another cut around 100 meters ahead from the cut, which the injured took. It is the version of the defence that the next cut was the authorised cut for the entrance to the Petrol Pump. However, the site plan is completely silent with respect to the second cut. No such cut has been depicted in the document. Further, the injured was admittedly going to the Petrol Pump at the time of incident. However, the exact location of the pump, which would have helped in deciphering the location of the Petrol Pump vis-à-vis the second cut, is not depicted in the site plan. As such, the site plan, not being an accurate representation of the actual scenario, cannot be relied upon.
24. Thus, from the above discussion, the irresistible conclusion is that the accused has been able to throw doubt on the version of the prosecution and the fact that the accused was driving rashly or negligently, is not proved beyond reasonable doubt.
OTHER INCONSISTENCIES-
25. Although the accused is entitled to the benefit of doubt on the above discussion itself, there are certain other inconsistencies in the case of the prosecution, as argued by the Ld. counsel for the accused, which invigorates the defence of the accused. The same are as follows-
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A. Presence of IO - As per the testimony of the IO PW3,
when the information vide DD No. 14A (Ex. PW3/A) regarding the incident was received by him, he was attending another PCR call with Ct. Subash (PW2). However, he did not remember the place where he was present. The deposition of the IO is directly contradictory to the deposition of Ct. Subash (PW2), who stated in his cross-examination that he was at the Police Station with the IO when the information was received vide the said DD No. These contradictory testimonies throws doubt on the genuineness of the investigation carried out in the present case. The same is further doubtful owing to the circumstances discussed below.
B. Arrest of accused - The arrest memo of the accused is Ex. PW2/A. As per the arrest memo, the accused was arrested in front of the HP Petrol Pump, Mitrao. The IO ASI Naresh Kumar (PW3) has stated in his testimony that once Ct. Subash (PW2) had reached the spot after registration of the FIR, he had arrested the accused on the spot. However, Ct. Subash (PW2) in his examination-in-chief has stated that the accused was arrested in the Police Station. He later in his cross examination stated that the arrest memo was filled at the spot.
C. Presence of DTC official - As per the version of the IO PW3, after he arrested the accused on the spot, he telephonically called the incharge of the Depot and gave him notice under Section 133 of the MV Act, Ex. PW3/C. He categorically deposed during his cross-examination that the incharge of the DTC Depot, Harphool Singh (PW6) met him on the spot. However, this desposition of the IO is directly contradictory to that of Harphool Singh (PW6) and Ct.
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Subash (PW2). PW2 has stated in his cross examination that the DTC official had come to the Police Station. The IO had also asked the DTC official to come to the Police Station with the relevant documents pertaining to the offending vehicle. PW6 Harphool Singh also testified that the police had called him to the Police Station on 29.06.2017. He categorically stated that he did not go to the spot on the date of incident. Therefore, even the version that the accused was arrested on the spot, appears to be incorrect as admittedly this witness stood surety for the accused.
D. PCR Caller - The IO PW3 took the stand and deposed that once they reached the spot, a call was made to the caller and it was revealed that the injured has been shifted to RTRM Hospital. During his cross-examination, he stated that the mobile number of the PCR caller was 8750001738. The same was revealed by the IO after going through the record. He stated that when he called the PCR caller, the accused was with him. The number was revealed by the witness after going through DD No. 14 A, Ex. PW3/A. Ld. counsel for the accused has argued that the deposition of the witness is totally false as the PCR caller was none other than the accused himself. He has relied on Ex. PW3/D, a document proved by the prosecution, to contend the same. Perusal of Ex. PW3/D reveals that the same is bail bond furnished by the accused to the IO. The signatures of the IO are on the document. It is noticed that the number of the alleged PCR caller and the number of the accused as mentioned on Ex. PW3/D is the same. As such, the deposition of the IO is totally belied by the said fact. The prosecution has failed to adduce any evidence to disprove that accused was not the PCR caller.
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E. Duty Slip of the accused - The evidence adduced to
show that the accused was driving the offending vehicle, on the date of incident, is the duty slip of the accused, Ex. PW5/E. However, the witness PW5 admitted that the said duty slip was prepared by some other section and attendance of driver was recorded in the Fleet Register, which was not proved on record. The witness further admitted that the memo was materially altered, and the same was not done by him. Thus, the probative value of the document is not much. As such, the prosecution has failed to establish the said fact beyond reasonable doubt.
F. Photographs - The IO PW3 admitted in his cross- examination that he had taken photographs of the vehicles on his mobile phone, at the spot. However, the same were not produced by the witness. Further, the photographs produced on record were taken by the superdars and were handed over to the IO, without any negatives. Therefore, the photographs cannot be said to be duly proved as per the Indian Evidence Act, 1872.
26. Therefore, from the above discussion, it is clear that the prosecution has been unable to prove the offences under Section 279/337 IPC beyond reasonable doubt. The testimonies of the police witnesses are not reliable, as observed. It appears that the investigation was done in the Police Station itself. Therefore, the circumstances on record warrant benefit of doubt to the accused.
CONCLUSION -
27. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offence Cr. Case No. 859/2018 STATE VS. JITENDER Page 19 of 20 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2021.04.13 12:31:57 +05'30' of Section 279/337 of the IPC beyond reasonable doubt. The basis of the offences charged in the present case is rash or negligent driving of the accused. The prosecution has failed to prove that the accused was driving rashly or negligently on the date of incident. The documentary evidence on record does not support the prosecution version in this regard. Apart from this, the reliability of the police witnesses is questionable as the defence has been able to punch holes in the version of such witnesses. As such, I have no hesitation to hold that the prosecution has failed to prove its case beyond a shadow of reasonable doubt.
28. Resultantly, the accused JITENDER is entitled for benefit of doubt and is hereby found not guilty. He is hereby ACQUITTED of the offences under Section 279/337 IPC.
ORDER -: ACQUITTED Pronounced in open court on 13.04.2021 in presence of accused through Video-Conferencing.
Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date: 2021.04.13
12:32:12 +05'30'
(DEV CHAUDHARY)
Metropolitan Magistrate - 07
South-West District, Dwarka Courts,
New Delhi,
Note: This judgment contains 20 pages and each page has been signed by me.
Cr. Case No. 859/2018 STATE VS. JITENDER Page 20 of 20