Delhi District Court
State vs . Umed Singh on 9 October, 2018
THE COURT OF SH. KAPIL KUMAR
METROPOLITAN MAGISTRATE05, CENTRAL,
TIS HAZARI COURTS, DELHI
CNR NO. DL CT020017962012
CIS No. 296851/16
State Vs. Umed Singh
FIR No. 79/12
PS. Kamla Market
U/s. 279/338 IPC
JUDGMENT
1) The date of commission of offence : 18.07.2012
2) The name of the complainant : Ram Parsad
3) The name & parentage of accused : Umed Singh
S/o. Chander Shekar
R/o. H. No. 104, R Block, Gali
no.4, East Vinod Nagar, Delhi.
4) Offence complained of : 279/338 IPC
5) The plea of accused : Pleaded not guilty
6) Final order : Acquitted
7) The date of such order : 09.10.2018
Date of Institution : 18.10.2012
Judgment reserved on : 11.09.2018
Judgment announced on: 09.10.2018
THE BRIEF REASONS FOR THE JUDGMENT:
1) The case of prosecution against the accused is that on 18.07.2012 at about
7:10 PM near Civic Center round about, Kamla Market within the jurisdiction of
PS Kamla Market he was found driving Car no. DL 1YC 4120 (hereinafter as
'offending car' for short) in rash or negligent manner and while so driving hit
against a motorcycle bearing no. DL 8SNC 8714(hereinafter as 'bike' for short)
which resulted into grievous injuries to the motorcyclist/complainant Ram
Parshad.
2) After completion of investigation, charge sheet was filed against the
accused. In compliance of Sec. 207 Cr.PC, documents supplied to the accused.
Arguments on point of notice were heard. Vide order dated 08.01.2013, a notice
u/s. 279/338 IPC was served upon the accused Umed Singh, to which he
pleaded not guilty and claimed trial.
3) In support of its case, prosecution has examined 8 witnesses. Statement of
accused was recorded under section 313 Cr.P.C r/w Section 281 Cr.PC in which
he denied all the allegations and did not wish to lead DE.
4) I have heard the arguments of Ld. APP for State and Ld Counsel for
accused. I have also perused the record carefully.
5) The testimony of prosecution witnesses is being touched upon, in brief, as
follows:
Eye Witnesses
5.1) PW1 Ram Parshad deposed that on 18.07.2012 when he was coming
back from his office and reached at round about of Kamla Market he was hit by
the offending vehicle from back side for which he fell down on road and became
unconscious. He correctly identified the accused and offending vehicle in the
court.
Doctor
5.2) PW7 Dr Sanjeev Kumar proved the MLC of injured as Ex.PW7/A and
the Xray report of injured as Ex.PW7/B.
Witnesses to the investigation.
5.3) PW4 Ct Subhash Chand and PW8 SI Jai Pal Singh deposed on the same
lines that on 18.07.2012 after receiving DD no. 32 Ex.PW1/A they went to the
spot where they found the accused present along with the offending vehicle. The
injured/complainant was already taken to the hospital by the PCR. PW8 went to
the hospital where the statement of injured was recorded and MLC was taken.
The rukka was prepared by the IO after reaching at the spot vide endorsement
Ex.PW8/A and FIR got registered. Site plan was prepared. The offending vehicle
and the bike were seized vide Ex.PW4/A and Ex.PW4/B respectively. The DL of
the accused was seized. Accused was arrested and personally searched.
Mechanical inspection of the vehicles were got conducted. Statement of
witnesses were recorded.
Formal Witnesses.
5.4) PW1 ASI Randhir Singh proved DD no. 32 A Dated 18.07.2012 as
Ex.PW1/A. The present FIR was proved as Ex.PW1/B and endorsement on
rukka as Ex.PW1/C.
5.5) PW2 deposed that he got the offending vehicle released vide
superdarinama as Ex.PW2/A. He deposed that accused was the driver of
offending vehicle at the time of incident.
5.6) PW5 HC Ram Dutt proved the relevant entries made in register no.19 as
to the deposit of vehicles involved in the incident in question in the malkhana.
5.7) PW6 ASI Lal Chand deposed that on 03.04.2014 he shifted the injured
Ram Parshad to JPN Hospital by PCR.
6) It is the cardinal principle of criminal justice delivery system that the
prosecution has to prove the guilt of the accused beyond reasonable doubts. No
matter how weak the defence of accused is but the golden rule of the criminal
jurisprudence is that the case of prosecution has to stand on its own legs.
7) The main witness of the prosecution in the present case is the complainant
Ram Parshad who was examined as PW3 by the prosecution. The testimony of
PW3 is required to be appreciated carefully to see as to whether the prosecution
is able to discharge its burden of proof or not. PW3 deposed that on 18.07.2012
he was coming from his office while driving his bike. He deposed that when he
reached at the round about of Kamla Market the offending vehicle hit him from
behind for which he fell down on road and became unconscious. He deposed that
PCR came at the spot and took him to the LNJP Hospital. He deposed that public
persons apprehended the accused. He deposed that he does not know as to how
offending vehicle was being driven at the time of incident. He further deposed
that he regained his consciousness in the hospital and his statement was recorded
by the IO. He proved his previous statement as Ex.PW3/A. He deposed that he
along with IO came at the spot and the site plan Ex.PW3/B was prepared. He
deposed that accused was arrested vide Ex.PW3/C. He correctly identified the
accused and the offending vehicle.
8) The Ld APP for the State sought the permission of the court to cross
examine PW3 as he was not disclosing the entire facts. In the crossexamination
various suggestions were put to PW3 which were admitted by him. He admitted
that the accused was driving the offending vehicle in rash or negligent manner.
He deposed that he had seen the accused along with the offending car when the
PCR came at the spot.
9) At this stage the facts which came in the crossexamination of PW3 by Ld
Defence Counsel are required to be mentioned. PW3 deposed in the cross
examination that he had not seen the vehicle which struck him from behind prior
to the collision. He deposed that he cannot tell as to how fast the offending
vehicle was moving. He deposed that he came to know that accused was driver
of vehicle from the public persons. He deposed that he reached at the spot along
with the police officials from the hospital. He deposed that he went to Balaji
Hospital on the same day. He deposed that he was not taken to the police station
from the spot.
10) First, coming to the poser of the identification of accused being the driver
of offending vehicle. The testimony of PW3 is not so much credible as to the
identification of the accused. PW3 deposed that he fell down on the road and
became unconscious and regained the consciousness in the hospital. This in itself
reveals that PW3 did not have the opportunity to see the accused at the spot.
Thereafter PW3 deposed that he came to know the accused was the driver of
offending vehicle through public persons. Thus the knowledge of PW3 as to the
identification of accused being the driver of offending vehicle is hearsay. In the
examinationinchief itself PW3 deposed that he does not know as to who was
driving the offending vehicle. These facts makes it clear that PW3 is not a
credible witness as far as the identification of accused is concerned.
11) Though PW3 identified the accused in the court by stating that he was not
completely unconscious and he had seen the accused when the accused was
apprehended by public persons. This deposition does not instill the faith of this
court as contrary to this PW3 himself deposed that he regained his consciousness
in the hospital and he came to know from public persons that the accused was
driver of offending vehicle. All these facts dented the credibility of PW3.
12) IO/PW8 Retd SI Jai Pal Singh and PW4 Ct Subhash Chand deposed that
when they reached at the spot after receiving DD no. 32 A they found the
accused along with the offending vehicle. This seems not trustworthy. A person
who has committed the accident will not stay at the same place waiting for
police to arrest him. PW4 admitted in the crossexamination that there was no
police official with the accused when they reached at the spot. There is no public
witness in the present case. If the accused had the opportunity to fled away from
the spot then it seems not possible than that accused opted to stay at the same
place waiting for the police. Further PW6 ASI Lal Chand deposed that when he
shifted the injured to the hospital he did not see the accused at the spot. If the
accused was not at the spot when the injured was shifted to the hospital than how
accused came back at the spot and stand along with offending vehicle waiting for
the arrival of the police. This is untrustworthy. All these facts creates gaping
hole in the case of prosecution as far as the identification of accused is
concerned.
13) Now coming to the poser of rashness or negligence on the part of accused.
PW3 deposed that accused hit his bike from behind. When he was cross
examined by Ld APP for the State he admitted the suggestion that accused was
rash or negligent. What was the rashness or negligence on the part of accused not
came even in the crossexamination of PW3. Merely deposing that accused was
rash or negligent is not sufficient. What was the rashness or what was the duty
on the part of accused which was breached by him was required to be proved on
record specifically but the same was not done by the prosecution. Merely using
blanket expression of 'rashness or negligence' is not sufficient. Here the
observations made by Hon'ble High Court of Delhi in the judgment titled as
Vinod Kumar Vs State Cr Revision Petition no. 131/10 decided on
13.10.2011is relevant. Same are as follows: "No evidence or any other material was placed on record by the prosecution to show the manner in which the petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent driving which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one.
The essential ingredients to constitute an offence punishable under section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person. For an offence under section 304 A IPC the act of the accused must be rash and negligent, which should be responsible for the death which does not amount to culpable homicide. The prosecution in the present case has failed to how the act of the petitioner was rash and negligent manner to bring the same under the purview of sections 279/304 A IPC"
14) Now reverting to the examinationinchief of PW3 wherein he deposed that he was hit from back side by the offending vehicle. The site plan Ex.PW3/B is relevant at this stage. The place of incident is depicted at point 'A' in the site plan. The point 'A' is in the middle of the road. The direction of the movement of the offending vehicle is shown at the round about. The direction of the bike is shown from the lane going towards the round about. No traffic signal has been shown in the site plan. This inturns reveals that there was free movement of traffic. If PW3 was approaching the round about from a connecting lane than he should have been at the left side of the periphery of the round about. But the place of incident is just in front of the lane and at the middle of the road of the round about. This reveals that the bike rider did not take immediate left after coming on the round about rather he went straight in middle of the road of the round about. A vehicle moving at the round about can be taken by surprise if a vehicle coming from a connecting lane came in front of and that too in the middle of the road. In these circumstances, if the vehicle moving on the main round about hit a bike in the middle of the road coming from the connecting lane cannot be said to rash or negligent. This site plan makes out implied rashness on the part of bike rider and not on the part of driver of offending vehicle. A driver of a bigger vehicle cannot be called rash or negligent merely by the fact that he was driving the bigger vehicle. The rashness or negligence on the part of accused not proved.
15) The IO of the present case retired SI Jai Pal deposed in the cross examination that no exact speed of the offending vehicle came during the investigation and only injured told him that the offending vehicle was being driven in high speed so he assumed rashness or negligence on the part of accused. The injured deposed in crossexamination that he cannot tell the speed of offending vehicle and he even did not see the vehicle who hit his bike from back side. Moreover the injured became unconscious after the incident. If that be so than the injured was not in capacity to tell the IO as to whether the offending vehicle was being driven in high speed or not. Further IO admitted in the cross examination that the speed of vehicle not came out in the investigation and he assumed rashness or negligence on the part of accused as injured told him that the offending vehicle was being driven in high speed. The IO could not have assumed rashness or negligence merely by high speed as it is wellsettled law that high speed in itself not amounts to rashness or negligence. Reliance could be placed upon judgment titled as Abdul Subhan Vs. State(NCT of Delhi.), 2006, Cril.J 1089, 138(2006) DLT 562'
16) To sum up, the testimony of injured is not credible. The rashness or negligence on the part of accused not proved on record. It is well settled law that suspicion, however grave it may be, cannot take the place of proof and there is huge difference between something that 'may be proved' and 'will be proved'. In criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. The large gap between ' may be true' and 'must be true', must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution before the accused could be condemned as convict. Reliance could be place upon Judgments titled as Hanumant Govind Nargundkar & anr.
Vs State of M.P., AIR 1952 SC 343; Shivaji Sahabrao Bobade & Anr. Vs. State of Maharashtra, AIR 1973 SC 2622; Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622; Subhash Chand Vs State of Rajasthan, (2002) 1 SCC 702; Ashish Batham vs State of MP AIR 2002 SC 3206; Narendera Singh & Anr Vs State of MP., AIR 2004 SC3249; State through CBI Vs Mahender Singh Dahiya, AIR 2011 SC 1017; and Ramesh Harijan Vs State of U.P AIR 2012 SC 1979.
17) Thus in view of above discussion, the prosecution is not able to discharge its burden of proof. Accordingly accused Umed Singh S/o Chander Shekhar is hereby acquitted from the present case. File be consigned to Record Room subject to furnishing of bail bonds as per section 437 A Cr.PC.
Digitally signed by KAPIL KAPIL KUMAR
Date:
KUMAR 2018.10.09
17:03:07
+0530
Announced in open court (Kapil Kumar)
on 09.10.2018 MM5/Central District
Tis Hazari Courts/Delhi,