Delhi District Court
State vs . Vivek Rathore Fir No. 478/2008 on 29 July, 2021
State vs. Vivek Rathore FIR No. 478/2008
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-05, EAST DISTRICT,
KARKARDOOMA COURT, DELHI
State vs. Vivek Rathore
FIR No. 478/2008
U/sec. 279/304-A IPC
PS: Krishna Nagar
Date of institution of the case: 02.03.2009
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 29.07.2021
Unique I. D. No. 1097/2016
JUDGMENT
a) Date of commission of the offence : 05.11.2008
b) Name of the complainant : Sh. Ramesh
c) Name of the accused and his parentage : Vivek Rathore, S/o Shri Gulab Chand Rathore, R/o. T-226, Gali No. 3, Gautam Puri, PS Usman Pur, Delhi
d) Offence complained of or charged : Sec. 279/304- A IPC
e) Plea of the accused : Pleaded not guilty
f) Final order : Acquitted
g) Date of such order : 29.07.2021
h) Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 5 November 2008, information regarding accident was received. This information was recorded as DD No. 4-A at police station Krishna Nagar and the same was assigned to ASI Mohd. Ali Page 1 of 12 State vs. Vivek Rathore FIR No. 478/2008 for necessary action. Accordingly, he along with Constable Premveer went to the spot and found a Tempo and one cycle rickshaw in accidental condition. Driver of the Tempo was also present there. On enquiry, he came to know that injured had been shifted to Dr. Hedgewar hospital. Therefore, he went to the said hospital leaving behind Constable Premveer to guard the spot and collected the MLC of injured Ramesh. After enquiry from the concerned doctor about the fitness of the injured, he recorded statement of injured Ramesh Ex.PW11/A, on the basis whereof the present FIR was registered at police station Krishna Nagar and investigation was undertaken.
On 8 November 2008 the injured succumbed to his injuries. Consequently, section 304-A IPC was added.
After completion of the investigation, charge-sheet under sections 279/304-A IPC was filed against the accused. Consequently, he was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Thereafter, charge under sections 279/304-A IPC was framed against the accused to which he pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined as many as eleven (11) witnesses.
PW1/Dalip was projected as an eye witness to the alleged manner of accident. His evidence was recorded in part. He stated that on the date at about 03:00 p.m., while he was sleeping at footpath, he heard a noise and when he reached at the place of accident, he saw public persons gathered there. He stated that one rickshaw was lying on the road in broken condition. He stated that injured was removed to hospital by police. Thereafter, he was dropped from the list of witnesses vide order dated Page 2 of 12 State vs. Vivek Rathore FIR No. 478/2008 20.09.2017 as his attendance could not be procured in spite of the process issued from the office of DCP.
It is pertinent to note that he has not spoken anything about the offending vehicle or its driver and the manner of the accident. He has also not claimed himself to be an eye witness to the accident.
PW2/Gulab Chand was the owner of offending vehicle.
PW3/ASI Dharam Singh was the Duty Officer, who recorded the FIR/Ex.PW3/A. PW4/Tasnimuddin Siddique was the Mechanical Inspector, who had mechanically inspected the offending vehicle vide Ex.PW4/A. PW5/Desh Raj and PW6/Hari Kishan had identified the body of the deceased.
PW7/HC Raj Kumar had accompanied the IO during investigation.
PW8/Dr. Akash Jhanjee has proved the post mortem report Ex.PW8/A. PW9/HC Premveer Singh had also accompanied the IO during investigation.
PW10/Dr. A. Saha has proved the MLC Ex.PW10/A. PW11/ASI Mohd. Ali was the IO of the case.
PW/Suresh, PW/Alam and PW/Kishan could not be examined as prosecution witnesses and were dropped from the list of witnesses by the learned predecessor Judge vide order dated 18.11.2016, 18.04.2017 and 06.03.2020 respectively Thereafter, PE was closed and statement of accused was recorded under section 313 of the Code of Criminal Procedure, 1973 (herein after referred to as the Code). He denied the allegations. However, he did not examine any witness in his defence.
I have heard the learned defence counsel and learned APP for the State through V/C (CISCO WEBEX) and have also perused the records very carefully.
Page 3 of 12State vs. Vivek Rathore FIR No. 478/2008 Decision and brief reasons for the same Undisputedly, it is a case of a motor vehicular accident. The only issue is whether the accident was caused due to the negligence of accused Vivek Rathore?
Since the accused pleaded not guilty, like in all criminal cases, the prosecution has the burden of proving his guilt beyond reasonable doubt. The burden does not shift. There exists no burden on the accused to prove his version or his innocence. It is trite that accused can only be convicted on the strength of the prosecution and not because of weaknesses in his defence.
To bring home the guilt of accused , prosecution has cited as many as sixteen (16) witnesses in the list of witnesses annexed with the charge-sheet. Out of these sixteen witnesses, PWs Suresh, Alam, Dilip and Kishan were the public witnesses while rest witnesses are formal witnesses. However, the public witnesses could not be examined as a prosecution witness because as per the report submitted by the office of worthy DCP, they were not traceable. Consequently, they were dropped from the list of witnesses by the learned predecessor Judge. Though PW/ Dalip entered the witness as PW1 but his examination could not be completed. Vide order dated 20.09.2017, he was also dropped from the list of witnesses by the learned predecessor Judge for want of his whereabouts.
It was argued on behalf of the accused that there is no evidence on record, on the basis of which it can be held that the accident was caused due to rash and negligent driving of the Tempo by its driver. He submitted that the prosecution has failed to examine any independent witness or rather any witness to prove the rash and negligent driving on the part of the accused. He submitted that all the alleged eye witnesses to the accident were dropped by the learned predecessor Judge as they were not traceable as per the report of the DCP.
Page 4 of 12State vs. Vivek Rathore FIR No. 478/2008 He further submitted that accused has been falsely implicated in this case. He submitted that the accident was not caused by the accused and even his vehicle was not involved in the accident. He submitted that had the Tempo been run over the deceased, the IO should have noticed blood stains either at the spot or on the vehicle but he did not notice any blood stains. He drew the attention of the court towards the testimony of the IO. Relevant part of testimony reads as under:-
"I did not notice any blood at the spot when I reached at the spot. I did not notice any blood on the abovementioned Tempo."
He, therefore, prayed that accused may be acquitted of the charge leveled against him.
Per contra, it was argued on behalf of the State that during the course of investigation, statement of the deceased was recorded by the IO under section 161 of the Code, which is admissible in evidence as "dying declaration" and it does not require any corroboration. According to learned APP for the State the statement of the deceased is sufficient to convict the accused of rash and negligent driving. He also placed reliance on a judgment passed by the Hon'ble Supreme Court of India in the case of Paniben vs. State of Gujarat reported in AIR 1992 SC 1817 wherein it was held as under:
"It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under:
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. Mannu Raja v. State of M.P., [1976] 2 SCR
764....."Page 5 of 12
State vs. Vivek Rathore FIR No. 478/2008 He submitted that testimony of PW1 can be taken into consideration as sufficient corroboration to the dying declaration. He submitted that incomplete testimony of PW1/Dalip is admissible in evidence under section 33 of the Indian Evidence Act.
In rebuttal, it was argued on behalf of the accused that the said statement/Ex.PW11/A cannot be treated as a "dying declaration" for the following reasons:-
(i) that before recording the alleged statement, the IO had not obtained any fitness certificate from the doctor;
(ii) the said statement/Ex. PW11/A was not recorded by any doctor or S.D.M., or even in the presence of the concerned doctor, therefore, it creates doubt about it being the statement of the deceased;
In reply, it was stated by the learned APP for the State that before recording the statement of the injured (since deceased), he was declared "fit for statement" by the doctor. He also drew the attention of the court towards the MLC/ Ex.PW10/A wherein it is mentioned "fit for statement".
Per contra, it was submitted by the learned defence counsel that the doctor who had allegedly given the fitness certificate was not examined by the prosecution. He also drew the attention of the court towards the testimony of the doctor who had prepared the MLC wherein he stated that "I do not remember whether any police official visited at the hospital prior to the referral of the patient to the Sr. Ortho."
He, therefore, submitted that the alleged statement/ Ex.PW11/A is a "suspect" document and possibility of the IO fabricating the said statement cannot be ruled out.
Page 6 of 12State vs. Vivek Rathore FIR No. 478/2008 Thus, according to learned defence counsel, no reliance can be placed on the alleged dying declaration without some corroborative evidence, which corroboration is not forthcoming on record.
He submitted the incomplete statement of PW1 cannot be taken into consideration. He placed reliance on a judgment passed by the Hon'ble High Court of Delhi 2006, Rajdhani Law Reporter, 49 (Note) wherein it was observed that if a witness is partially examined and is not available for the cross-examination then his incomplete statement cannot be read in evidence at all and the incomplete statement has no evidential value.
As per section 32 (1) of the Indian Evidence Act when a statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, such statement would be relevant.
The relevant part reads as under:
32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:-
(1) When it relates to cause of death --When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and Page 7 of 12 State vs. Vivek Rathore FIR No. 478/2008 whatever may be the nature of the proceeding in which the cause of his death comes into question.
Admittedly, the injured was brought to the hospital on 5 November 2008 at about 03:32 a.m., where his MLC/Ex.PW10/A was recorded. The doctor/PW10 referred him to SR Ortho for detailed examination and management. However, he died on 8 November 2008.
It was argued on behalf of the State that the injured was in fit state of mind when his statement was recorded.
I have perused the MLC/Ex.PW10/A. Though the MLC finds mention "fit for statement" but the doctor who had allegedly given the certificate has not endorsed the same by putting his signatures.
The doctor/PW10, who has proved the MLC, has also not owned the fitness certificate. Contrary to this, he feigned ignorance if the IO or any police official visited him before referring the injured to SR Ortho for further management.
Even if it is presumed that deceased was in fit state of mind, still there is nothing on record to suggest that he was capable, mentally and physically, to make any statement.
Further, there is nothing on record to suggest that IO had questioned the deceased regarding his state of mind to make the statement and that it was made voluntarily. In the case of Lallubhai Devchand Shah (AIR 1972 SC 1776) passed by the Hon'ble Supreme Court of India, the omission of the person who recorded the dying declaration to question the deceased regarding his state of mind to make the statement was considered to be a very serious one.
The post-mortem report of the deceased/ Ex.PW8/A reveals that there were as many as eight (8) injuries on his person including three head injuries. Considering the number Page 8 of 12 State vs. Vivek Rathore FIR No. 478/2008 and nature of injuries, it is difficult to believe that the deceased would have been in a fit state of mind to make a statement.
Even the doctor who made the endorsement on the MLC was not examined. At the cost of repetition, I may record that PW10/doctor has not stated anything about the fitness certificate. Nor he was examined by the Prosecutor on this aspect. This also creates a doubt in the mind of the court as to whether the injured was actually in a proper mental condition to make a consciously truthful statement.
The alleged dying declaration/Ex.PW11/A bears thumb impression of the maker (deceased) and the person recording the same i.e. the IO. Though the IO has admitted his signature on Ex.PW11/A but has not stated anything about the thumb impression of the deceased. Nor he was questioned by the prosecutor in this regard. Thus, the prosecution has not proved beyond reasonable doubt that the thumb impression on Ex.PW11/A was actually of deceased.
As per prosecution, in the statement/dying declaration/ Ex.PW11/A, the injured (since deceased) clearly named accused Vivek to be the person who caused the accident.
It is not the case of prosecution that deceased knew accused Vivek Rathore. Yet the alleged dying declaration finds mention the name of the accused, his fathers' name and address. In such circumstances, it is not understandable how the name could be mentioned by the deceased in his dying declaration unless the name was suggested to him by some body. Thus, the possibility of prompting cannot be excluded.
In view of the above discussion, I am not inclined to place any reliance on Ex. PW11/A, the alleged dying declaration and hence, exclude the same from consideration.
Page 9 of 12State vs. Vivek Rathore FIR No. 478/2008 Once this evidence is rejected, there is no other evidence which can be said to prove the ingredients of the offence alleged against the accused.
As far as the statement of PW1 is concerned, I am of the view that even if the entire version of PW1 is taken to be correct, still, it cannot be concluded that accused had committed the offence alleged against him.
It is the case of the prosecution that the deceased was sleeping on his cycle rickshaw when he was hit by the offending vehicle. As a result of accident, the deceased and his rickshaw came under the Tempo and were dragged with the vehicle. However, there is no material on record to come to the conclusion that body was dragged by the offending vehicle. Even the doctors who had examined the deceased or conducted the post mortem have not mentioned dragging marks on the body.
Before I part with this case, I may record that the IO has not conducted the investigation in a proper and scientific manner.
The clothes of the deceased could have provided evidence in this case. The clothes of deceased and the offending vehicle ought to have been sent to FSL for examination. In some circumstances, where a motor vehicle has gone over a body, grease and debris may be found on the clothing. Laboratory examination of the offending vehicle could have also revealed stains of blood or saliva of the deceased on the surface of the vehicle.
The physical evidence was also not photographed by the IO in its position before being collected. Often the position of the material is of as much importance as the type of material itself.
Page 10 of 12 State vs. Vivek Rathore FIR No. 478/2008
Result
The prosecution has a duty to prove its case beyond reasonable doubt. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt. A Court cannot draw an inference of guilt from mere suspicion.
Suspicion, no matter how strong cannot take the place of legal proof.
The Hon'ble Supreme Court of India in the case of Sujit Biswas vs. State of Assam decided on 28th May, 2013 held as under:-
6. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that `may be' proved, and something that `will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason that the mental distance between `may be' and `must be' is quite large, and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between `may be' true and `must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between `may be' true and `must be' true, the court must maintain the vital distance between mere conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny, based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a Page 11 of 12 State vs. Vivek Rathore FIR No. 478/2008 reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. (Vide: Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 SC 343; State through CBI v. Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan v. State of U.P., AIR 2012 SC 1979).
In the case at hand, the accused is alleged to have committed the offence punishable under sections 279/304-A IPC. It was the duty of the prosecution to prove beyond reasonable doubt that accused drove the offending vehicle in rash or negligent manner and caused the death of the injured. However, the prosecution has miserably failed to establish that there was any rash and/or negligent act on the part of the driver-accused and that death was occasioned by either rash and/or negligent driving of the vehicle or any negligent act of accused. In absence of any evidence on these two counts, accused Vivek Rathore is entitled to acquittal Consequently, accused VIVEK RATHORE stands acquitted of the charge leveled against him.
File be consigned to record room after due compliance.
BABITA
Digitally signed by BABITA
Announced in open PUNIYA
Location: Court No.3,
Karkardooma Courts, Delhi
Court on 29th day of July, 2021 PUNIYA Date: 2021.07.29 15:06:37
+0530
(Babita Puniya)
MM-05/East District, KKD
Courts, Delhi/29.07.2021
This judgment contains 12 pages and each page bears my signature.
(Babita Puniya) MM-05/East District, KKD Courts, Delhi/29.07.2021 Page 12 of 12