Delhi District Court
State vs . Mohd. Ismail. on 20 April, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE04, DISTRICT
SOUTH EAST; SAKET; COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Mohd. Ismail.
FIR No. 878/16
PS. Govind Puri
U/s. 279/304A IPC
JUDGMENT
1) SI No. of the case : 4314/16
2) The date of commission of offence : 16.11.2016
3) The name of the complainant : HC Ashok Kumar
4) The name & parentage of accused : Mohd. Ismail
S/o Noor Mohd.
5) Offence involved : 279/304A IPC &
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 20.04.2022
Date of Institution : 15.09.2017
Judgment reserved on : 20.04.2022
Judgment announced on : 20.04.2022
FIR No. 878/16 State Vs. Mohd. Ismail Page no. 1 of 10
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated, the case of the prosecution is that on 16.11.2016 at about 07.30 AM, Near Hanuman Mandir, Tughlakabad Extn., New Delhi within the jurisdiction of PS Govind Puri, the accused Mohd. Ismail was driving the Dump truck vehicle bearing registration No. HR 55N 5349 on a public way in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the same, caused fatal injuries to one pedesgtrian Mohd. Shoaib. The FIR was registered for the offence punishable u/s 279/304A IPC.
2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. A formal notice of accusation for the offence punishable U/s 279/304A IPC was served upon the accused. The accused pleaded not guilty and claimed trial.
3. In order to establish its case prosecution has examined five witnesses.
4. PW1 ASI Ashok Kumar has deposed that on 17.11.2016 after receiving DD No.47B he alongwith Ct. Vishal went to the ESIC Hospital, Okhla where he collected the MLC of Mohd Shoaib. Doctors told him FIR No. 878/16 State Vs. Mohd. Ismail Page no. 2 of 10 that the patient was referred to another hospital because of urgency. The relatives of the injured had taken him to some unknown hospital. He went to the place of incident. He did not get any information from anywhere for a long time and no eye witness was found. He made a tehrir on DD no.47B Ex.PW1/A, handed over the same to Ct. Vishal and sent him to the PS for registration of FIR. After registration of the FIR, Ct. Vishal and ASI Omkar Singh came to the spot as further investigation was marked to ASI Omkar Singh.
5. PW2 ASI Omkar Singh has deposed that on 17.11.2016 he was posted as ASI at PS Govindpuri. On that day, after registration of the FIR, the investigation of the present case was marked to him. After receiving the copy of FIR and original rukka, he went to the place of incident. He met HC Ashok Kumar at the place of incident. No eyewitness was present at the spot and no vehicle was present there. That he recorded the statement of HC Ashok u/s 161 CrPC. Thereafter, he received the information that the injured has expired in the hospital. After the dead body identification by the relatives of the deceased, the postmortem was got conducted. After postmortem, the body was handed over to the relatives of the deceased vide memo Ex PW2/A. Thereafter, the relatives of the deceased namely Afsar came to the PS and gave a written complaint Ex.PW2/B. He deposed that, Afsar took him to the place of incident and he prepared the site plan Ex.PW2/C at the instance of Afsar. That he recorded the statement of Afsar u/s 161 CrPC.
FIR No. 878/16 State Vs. Mohd. Ismail Page no. 3 of 10
6. PW2 further deposed that during the investigation of the present case, he inquired about the ownership of the truck bearing registration no. HR55N 5349. After receiving the information he gave notice Ex.A9 to the owner of the offending vehicle u/s 133 MV Act. The owner produced the offending vehicle and s driver i.e. the accused Ismail. The witness interrogated the accused and thereafter arrested and personally searched him vide memos ExPW2/D and Ex PW2/E respectively. He also seized the offending vehicle, its Insurance certificate and other documents i.e. RC, permit and certificate of fitness, and the driving license of accused vide memos Ex PW2/F, Ex PW2/G, Ex PW2/H, Ex PW2/I respectively. The mechanical inspection of the vehicle was conducted. He stated that the accused refused to take part in the TIP proceedings. This witness has also correctly identified the accused in the court. He also identified the vehicle from the photographs Ex.P1 (Colly).
7. PW3 Retired ASI Jitender Singh has deposed that in the month of February 2017 further investigation was marked to him. He collected the postmortem report Ex.A6 of the deceased. That he examined the eyewitness namely Afsar Alam and recorded his supplementary statement u/s 161 Cr.PC.
8. PW4 Ct. Vishal has deposed that on 17.11.2016 he was FIR No. 878/16 State Vs. Mohd. Ismail Page no. 4 of 10 posted as Constable at PS Govind Puri. On that day IO/HC Ashok Kumar received DD no.47B and in furtherance of the same he and IO HC Ashok Kumar went to the ESI Hospital, Okhla. There IO collected MLC of injured Shoaib. They came to know that relatives of injured Shoaib had shifted him to an unknown hospital. Thereafter IO endorsed the DD entry no.47B and prepared the rukka and handed over the same to him for registration of FIR. He got registered the present FIR through the then DO. After the registration of FIR, further investigation was marked to ASI Onkar Singh. He alongwith IO/ASI Onkar Singh went to the spot. Despite their best efforts they could not find any eyewitness at the spot.
9. He deposed that on 12.02.2017 he further joined the investigation. That the owner of offending vehicle i.e. mini truck bearing registration no. HR55N 5349 alongwith the accused Ismail came to the PS. IO served the notice u/s 133 MV Act upon the owner of the abovesaid vehicle. IO seized the offending vehicle vide seizure memo Ex.PW2/F. IO further seized documents of the offending vehicle and the DL of accused vide separate seizure memo Ex.PW2/G, ExPW2/H and Ex.PW2/I. IO arrested accused vide arrest memo Ex.PW2/O and conducted personal search vide memo Ex.PW2/E. He has correctly identified the accused in the court and the offending vehicle from its photographs Ex.P1 (colly).
FIR No. 878/16 State Vs. Mohd. Ismail Page no. 5 of 10
10. PW5 Md Afsar has deposed that on 16.11.2016 he alongwith his brotherinlaw namely Shoaib was walking from Okhla to TKD Village and at about 7.15 PM they reached in front of Hanuman Mandir, TKD Village when one truck bearing no. HR55N 5349 being driven at a very high speed, in zig zag and rash and negligent manner hit his brotherin law from behind causing him to fall down. He shouted at the driver of the truck upon which he stopped. He came down and asked him to take the injured Shoaib to a hospital. That he assisted them in boarding a TSR. The driver told that he will be following them to the hospital. He took Shoaib to the ESI hospital but the driver of the truck escaped from the spot with the truck. At the ESI Hospital Shoaib was attended for his injuries but from there he was referred to the Safdarjung Hospital. That he took him to the Safdarjung in an Ambulance. He was admitted to the hospital where he was pronounced dead at about 4.00 AM of the same night. That he was told by the doctors that till the police officials from the PS in whose jurisdiction the incident took place came to the hospital, the body could not be released to him. The body was sent for postmortem.
11. PW5 further deposed that from there he went to Tugalaqabad after taking an auto rickshaw to complain to the police. He met one police official namely Mr. Onkar to whom he narrated the incident and who asked him to leave for the Safdarjung Hospital. That SI Onkar arrived after about an hour of him reaching the hospital. Mr. Onkar arrived in the hospital in the morning of the next day and the body was FIR No. 878/16 State Vs. Mohd. Ismail Page no. 6 of 10 released to them at about 4.30 PM. He stated that some documents were prepared at the time of release of body.
12. On 05.10.2018 accused had made a statement U/s. 294 CrPC thereby admitting the DD no.47B, endorsement by the DO, FIR No.878/16, certificate u/s 65B of Indian Evidence Act, MLC No.205/16, postmortem report no.2235/16, mechanical inspection report of vehicle no.HR55N 5349, TIP proceedings conducted by Ld MM Ms. Gomti Monacha, reply of the notice u/s 133 MV Act, superdarinama by superdar as Ex.A1 to Ex.A10 respectively.
13. All the witnesses were cross examined by Ld. Defence counsel for accused.
14. Upon completion of P.E., statement of accused u/s 313 Cr.PC was then recorded. The accused denied the allegations and pleaded innocence. He has chosen not to lead defence evidence and hence DE was closed.
15. Thereafter the court proceeded to hear the respective arguments of the Ld. APP and of the Ld. Counsel of the accused. I have heard the arguments and have also perused the record.
16. Ld. APP for the state has prayed for the conviction of the FIR No. 878/16 State Vs. Mohd. Ismail Page no. 7 of 10 accused in the light of the testimony of eye witness PW5 Mohd. Afsar. It is submitted that the identity of the accused is to be considered in the light of reply of the registered owner of the offending vehicle on the notice U/s. 133 MV Act wherein he had stated that the accused was driving the truck at the time of the incident which caused the death of the victim. Hence, the rashness and negligence on the part of the accused has also been proved.
17. On the other hand Ld. Defence counsel has prayed for acquittal of the accused on the ground that the prosecution has failed miserably to establish its case. It is also argued by the Ld. Defence counsel that the eyewitness i.e. PW5 Mohd. Afsar has been planted to claim the insurance amount. It is argued that the evidence led by the prosecution failed to show any rashness or negligence on the part of the accused. It is prayed that the accused should be acquitted.
18. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of the accused is but, the golden rule of the criminal jurisprudence is that the case of the prosecution has to stand on its own legs.
19. The case of the prosecution hinges on the testimony of the eyewitness PW5 Mohd. Afsar. This eye witness in his examination in FIR No. 878/16 State Vs. Mohd. Ismail Page no. 8 of 10 chief has stated that the accused Mohd. Ismail was not the same person who was driving the truck at the time of the unfortunate incident. Therefore, the identity of the accused remains unestablished. It was incumbent on the prosecution to establish the identity of the accused as the offender. The prosecution has failed to do so in the instant case.
20. The arguments of Ld. APP for the State that considering the reply of the registered owner to the notice U/s. 133 MV Act wherein he had stated that the accused was driving the truck at the time of incident fails to find an appeal with this court. Even though the owner had stated that he had given the truck to the accused for driving on the day of the incident, the fact of the eye witness PW5 Mohd. Afsar stating that the accused was not the driver creates a serious doubt in the case of the prosecution. The benefit of such doubt should be given to the accused. Moreover this court finds itself reluctant to rely on the testimony of Mohd. Afsar. As per the said witness he had seen the incident and had met the IO/ASI Onkar Singh on the day of the incident i.e. 16.11.2016 and on the subsequent day as well. Despite that the FIR was not registered on the basis of his statement. The prosecution has failed to show as to why the statement of this witness U/s. 161 CrPC was recorded on 13.12.2016 i.e. almost one month after the incident. In such circumstances, the arguments of the Ld. Defence counsel that this witness has been planted to claim the insurance amount cannot be disregarded.
FIR No. 878/16 State Vs. Mohd. Ismail Page no. 9 of 10
21. In view of the court, the unexplained and inordinate delay in recording the statement of the eye witness is fatal to the case of the prosecution. This court is of a conclusion that the prosecution has failed to prove the guilt of the accused Mohd. Ismail beyond reasonable doubt for the offence punishable u/s 279/304A IPC. He stands acquitted for the same. Ordered accordingly.
Announced in open court (JITENDRA PRATAP SINGH)
on 20.04.2022 MM4/SED/SAKET Courts
Delhi
FIR No. 878/16 State Vs. Mohd. Ismail Page no. 10 of 10