Delhi District Court
State vs . Dheeraj Fir No. 201/2018 on 21 November, 2019
State vs. Dheeraj FIR No. 201/2018
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE-06, WEST DISTRICT,
TIS HAZARI COURTS, DELHI
State vs. Dheeraj
FIR No. 201/2018
U/sec. 279/337/304-A IPC
PS: Mundka
Date of institution of the case: 10.09.2018
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 21.11.2019
Unique I. D. No. 7180/2018
JUDGMENT
a) Date of commission of the offence : 10.05.2018
b) Name of the complainant : Yunis
c) Name of the accused and his parentage : Dheeraj, S/o Shri Bhoop Singh R/o H. No. 1342-A, Ward No. 9, Sham Lal Bagh, Gali No. 3, Hisar, Haryana.
d) Offence complained of : Sec. 279/337 IPC e) Offence charged of : Sec. 279/337/304-A IPC f) Plea of the accused : Pleaded not guilty g) Final order : Acquitted h) Date of such order : 21.11.2019 1 of 12 State vs. Dheeraj FIR No. 201/2018
Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 10.05.2018 information was received in police station Mundka regarding accident near Pillar No. 724, Tikri Kalan. This information was recorded vide DD No. 18-A in the police station and the matter was entrusted to Head Constable Kuldeep for necessary action. Thereafter, he along with Constable Ravinder reached the spot and found one car bearing Registration number HR-20AE-5218 in accidental condition. He came to know the accused Dheeraj was driving the said car. ERV driver Constable Rishi handed over to him the custody of accused Dheeraj. Thereafter, IO handed over the custody of accused to Constable Ravinder and rushed to Jeevan Jyoti hospital where he came to know that injured has been referred to SGM hospital, Mangol Puri. Therefore, he went to SGM hospital and collected the MLC of injured "unknown" wherein he was declared "unfit to make the statement". He also collected the MLC of injured Yunis wherein he was declared "fit to make statement". IO recorded the statement of injured Yunis wherein he claimed to have received bodily injury on account of the offending vehicle HR-20AE-5218 being driven in a rash and negligent manner by its driver Dheeraj. Consequently, on the basis of his statement Ex.PW1/A, present FIR under sections 279/337 IPC was registered against the accused Dheeraj at police station Mundka and investigation was undertaken.
On 18.05.2018 injured "unknown", whose name later on revealed as Bahadur Thapa by the complainant, succumbed to injuries and a DD Entry 15-B to this effect was recorded at the police station Mundka. Thereafter, section 304-A IPC was added.
2 of 12 State vs. Dheeraj FIR No. 201/2018 After completion of the investigation, charge-sheet under sections 279/337/304-A IPC was filed against accused/driver Dheeraj. 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 279/337/304-A IPC was framed against accused to which he pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, the prosecution has examined only two witnesses including the complainant/injured.
PW1/Yunis was the injured. He testified that about two years ago at about 01:30 p.m., he was coming from Bahadurgarh after doing duty on his bicycle. One of the workers, whose name he does not remember, was also coming on his bicycle. When they reached near metro pillar no.724, one car came from the side of Bahadurgarh and firstly hit the bicycle of that worker and thereafter, his bicycle. They fell down on the road and he became unconscious. When he regained consciousness, he found himself in SGM hospital. Police official came there and recorded his statement Ex.PW1/A. He stated that police official had obtained his thumb impression on blank paper. He stated that he does not know about the number of car and he cannot even tell as to how the accident had taken place.
He stated that he cannot identify the driver of the car.
Since the witness resiled from his previous statement purportedly given to the Investigating Officer during the course of investigation, he was cross-examined by the learned APP for the State with the permission of the court and confronted him with his previous statement Ex.PW1/A. 3 of 12 State vs. Dheeraj FIR No. 201/2018 He during his cross-examination by the learned APP for the State stated that he cannot say if the date of incident was 10.05.2018. He denied having told the police that when they reached metro pillar no. 724, one car no. HR-20-AE-5218 came from the side of Bahadurgarh in a rash and negligent manner and hit against the bicycle. He denied the suggestion that driver of the car came to him and disclosed his name as Dheeraj and then he ran away from the spot or that police official took them to the hospital. He was confronted with his previous statement Ex.PW1/A wherein it was so recorded. He denied the suggestion that accused present in the court was driving the car in rash and negligent manner. He voluntarily stated that he did not see the driver of the car.
He denied the suggestion that he was deposing falsely and intentionally not identifying the accused as he has been won over by him.
When his attention was drawn towards the photograph of cycle Ex.P1 and photograph of I-20 car no. HR-20AE-5218, he correctly identified the bicycle Ex.P1. However, he stated that he cannot not identify the car as he did not properly see it. He denied the suggestion that he was deposing falsely.
PW2/SI Ramesh was the 2nd IO of the case. He testified that in the month of August, 2018, the case file of the present case was marked to him for further investigation. Accordingly, he recorded the statement of Kamla Devi who disclosed the name of deceased as Veer Bahadur. He stated that deceased was also known as Bahadur Thapa. Veer Bahadur and Bahadur Thapa was the same person. After completion of investigation, he prepared the challan and filed the same in the court.
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Since the sole eye witness/injured Yunis resiled from his previous statement regarding the manner of driving and identity of accused, PE was closed by the order of the court as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature and the request of the learned APP for the State to examine remaining witnesses was declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that:
"...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
Since there was no incriminating circumstance against the accused Dheeraj, recording of his statement under section 313 of the Code was also dispensed with.
I have heard the learned counsel for the accused and the learned APP for the State and have perused the records very carefully.
Arguments Learned counsel for the accused has taken this court through the entire evidence and submitted that the prosecution version regarding the incident is highly doubtful since the correctness of the statement made in the first information report purporting to have been lodged by PW1 is itself doubtful because PW1himself has disowned it.
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He placed reliance on a judgment passed by the Hon'ble Supreme Court of India in the case of Namdeo Daulata Dhayagude & Ors AIR 1977 SC 381 wherein it was held that where the story narrated by the witness in his evidence before the Court differs substantially from that set out in his statement before the police and there are large number of contradictions in his evidence not on mere matters of detail, but on vital points, it would not be safe to rely on his evidence and it may be excluded from consideration in determining the guilt of accused.
In support of his case, learned counsel also referred a judgment passed by the Hon'ble High Court of Delhi in the case of Mohan Shyam vs The State (NCT of Delhi) decided on 25th May, 2012 wherein it was held as under:-
".....Every person is bound to anticipate the dangers normally expected on the road and not challenge his own safety by driving in the dangerous fashion as evidenced in the present case. It is not that in every case of road accident, the driver of a commercial or heavy vehicle shall be presumed to be guilty of rash and negligent driving and without any iota of evidence against him; he will be deemed guilty from the start of the trial. . 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".......................".
He, therefore, prayed that the accused may be acquitted of the charge leveled against him.
Decision and brief reasons for the same All persons are presumed to be innocent and no person can be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt.
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The fact that a person has been arrested, sent behind the bars pending investigation or trial or charged for an offence gives rise to no inference of his guilt at trial. The law does not require an accused to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the accused, unless the court is satisfied beyond a reasonable doubt of accused's guilt on appreciation of prosecution evidence.
Section 279/337/304-A IPC Undisputedly, it is a case of a motor vehicular accident. The only issue is whether it was the accused who caused the accident while driving the car either negligently or rashly?
Section 279 IPC deals with rash and negligent driving. It reads as under:
279. Rash driving or riding on a public way- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both"
To constitute an offence under section 279 IPC, it must be proved that the person was driving the vehicle in a rash or negligent manner.
Section 304-A IPC provides punishment for causing death by negligence. It reads as under:-
304A. Causing death by negligence--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may
7 of 12 State vs. Dheeraj FIR No. 201/2018 extend to two years, or with fine, or with both.
While dealing with section 279/304-A IPC, the Hon'ble High Court of Delhi in the case of Niranjan Singh vs The State (Delhi Administration) 1997 CriLJ 336 observed as under:-
"................What Section 304-A, I.P.C. requires is causing death by doing any rash or negligent act, and this means that death must be the direct or proximate result of the rash or negligent act. I may in this connection usefully excerpt of the following observations of Sir Lawrence Jenkins is Emperor v. Omkar Rampratap, (1902) 4 Bom LR 679:-
"To impose criminal liability under S. 304-A, Indian Penal Code, it is necessary that the death should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of the author's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non."....................."
To bring home the guilt of the accused, prosecution has cited as many as twenty four witnesses in the list of witnesses annexed with the charge-sheet. Out of these twenty four witnesses, PW1 was the complainant as well as the victim while rest witnesses are formal in nature and the guilt of the accused cannot be proved from their testimonies, inasmuch as, the alleged accident was neither caused in their presence nor it is the case of the prosecution.
Thus, the case hinges on a single State witness i.e. the complainant/PW1.
The issue is: how genuine or credible is the testimony of PW1/complainant?
It is no more res-integra that an accused can be convicted on the basis of the uncorroborated evidence of a single competent and credible State witness.
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However, there is a risk which attaches to convicting the accused on the basis of the uncorroborated testimony of a single witness. There is a scarcity of evidence in the case and the testimony of the witness is the sole proof of the accused's guilt. In this situation the danger arises of poor observation, faulty recollection, and reconstruction of evidence after the event, bias, interest adverse to the accused and any other risk that the circumstances of the case suggest. Before the court relies on such evidence it must be satisfied that the quality of evidence must make up for the lack of quantity.
The criminal law was set into motion by the complainant Yunis. He told the police that it was the accused who caused the accident while driving the car bearing registration number HR-20AE-5218 in rash and negligent manner. Consequently, on the basis of his complaint Ex.PW1/A, present FIR was registered against the accused at police station Mundka.
Yunis was called to testify about the incident. He stated on oath that about two years ago, he was riding his bicycle. Another worker was also riding his bicycle. When they reached near Metro Pillar No. 724, one car which came from Bahardurgarh side, after hitting the bicycle of co-worker, hit his bicycle as a result of which he fell down on the road and become unconscious.
He feigned ignorance as to how it happened. He stated that he does not know the number of offending car.
He further testified that he cannot identify the driver of car.
As his evidence was in stark contrast to the facts he had allegedly disclosed in his statement to the police, the State successfully applied to have him declared a 9 of 12 State vs. Dheeraj FIR No. 201/2018 hostile witness and he was then subjected to a full and effective cross-examination on the statement by the learned APP, however, he denied the suggestion that the accident was caused by the accused while driving the car in rash in negligent manner. He reiterated that he did not see the driver.
Now if we deal with the evidence of the complainant as a whole starting with the time of accident, how he and another worker were hit by a car. As could be seen from the evidence, discussed in the preceding para of this judgment, after the accident, he became unconscious. This also finds corroboration from his MLC. As per MLC, when he was admitted in the hospital for treatment, he was unconscious. He denied the prosecution case that after the accident, accused came to him and disclosed his name as Dheeraj. He testified that his thumb impression was taken on blank papers. I find force in the submission of the defence counsel that a cyclist who is hit by a car must have been a traumatic experience. One wonders how the opportunity to observe faces and to remember the name could have prevailed in those circumstances.
During cross-examination, when his attention was drawn towards the accused present in the court, he stated that he did not see the driver and denied the suggestion put forth by the learned APP for the State that accused had caused the accident.
Despite cross-examination at length by the learned APP for the State, nothing could be elicited from him which could indicate complicity of the accused in the crime or that the accused caused the accident while driving the car rashly and negligently.
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Evaluating his evidence as a whole, I am of the view that he is not a credible and reliable witness.
Rest witnesses cited by the prosecution are more or less formal in nature. None of them has claimed to have seen the accused hitting the bicycles or driving the vehicle at the time of accident.
Conclusion PW1/complainant was the only star/material witness of the case. However, before the court he has not stated anything incriminating against the accused. He was cross-examined at length by the learned APP for the State with the permission of the court but nothing incriminating could be elicited from his cross-examination and he stuck to his hostile stand which he had taken in his examination-in-chief to complete disadvantage of the prosecution case. Thus, nothing could come out on the record to prove the necessary ingredients of the offence alleged against the accused.
In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. 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.
For the reasons which I have outlined above, I am of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused.
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Consequently, accused DHEERAJ is ACQUITTED of the crime charged.
Bail bond under section 437A of the Code furnished. Perused and accepted for a period of six months from today.
Announced in open Court on 21st day of November, 2019 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/21.11.2019 Digitally This judgment contains 12 pages and each page bears my signature. signed by BABITA BABITA PUNIYA PUNIYA Date:
2019.11.23 15:11:49 +0530 (Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/21.11.2019
12 of 12 State vs. Dheeraj FIR No. 201/2018 State vs. Dheeraj FIR No. 201/2018 PS: Mundka 21.11.2019 Present: Learned APP for the State.
Accused in person with counsel.
PW2/SI Ramesh is examined and discharged.
No other witness is present today.
Heard. File perused.
Perusal of the file reveals that the sole eye-witness/injured has not supported the prosecution regarding the manner of driving and the identity of accused. Rest witnesses are formal in nature and the guilt of accused Dheeraj cannot be established from their testimonies, inasmuch as, the accident was neither caused in their presence nor it is the case of the prosecution.
Thus, no useful purpose would be served by examining the rest of the witnesses, who are formal in nature. No prejudice would be caused to the prosecution if the evidence is closed as there are no chances of successful prosecution in view of paucity of evidence to prove the charges. Therefore, PE stands closed and request of the learned APP for the State to examine the remaining witnesses is declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The State (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that:
13 of 12 State vs. Dheeraj FIR No. 201/2018 "...In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date..........."
Since there is no incriminating circumstance against the accused, recording of his statement under section 313 of the Code is also dispensed with.
I have heard the learned counsel for the accused and the learned APP for the State and have perused the records very carefully.
Vide separate judgment of even date, accused DHEERAJ is ACQUITTED of the crime charged.
Bail bonds under section 437-A of the Code furnished. Perused and accepted.
File be consigned to record room after due compliance.
(Babita Puniya) MM-06, West District, Tis Hazari Courts/ Delhi/21.11.2019 14 of 12