Delhi District Court
State vs Salim S/O Ramzan on 8 June, 2017
IN THE COURT OF SH. DEVENDER KUMAR JANGALA
ADDITIONAL SESSIONS JUDGE03, WEST,
TIS HAZARI COURTS, DELHI
SC56255/2016
State Vs Salim S/o Ramzan
FIR No. 568/00
U/s. 279/304 IPC
PS Moti Nagar
ORDER ON CHARGE
08.06.2017
1.The present FIR bearing no. 568/00 was registered in the Police Station Moti Nagar on 01.11.2000 on receipt of DD no. 25A, under Section 279/337 IPC. The matter was investigated and after completion of the investigation, chargesheet against the accused for commission of the offence punishable under Section 279/304A/202 IPC and under Section 3/181 Motor Vehicle Act was filed. The chargesheet was filed on 16.07.2001, thereafter notice under Section 251 Cr.P.C. for commission of the offence punishable under Section 279/304A/202 IPC and under Section 3/181 Motor Vehicle Act was served upon the accused on 10.02.2003 to which he pleaded not UID No.56255/2016 State Vs Salim 1 of 7 guilty and claimed trial.
2. The prosecution to prove the notice for commission of the alleged offence examined 14 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded by the Ld. Metropolitan Magistrate on 15.09.2015. The accused in his statement under Section 313 Cr.P.C. sought opportunity to lead the defence evidence.
3. During the stage of defence evidence, the Ld. Addl. P.P. for the State moved an application for taking cognizance of the offence under Section 304 IPC. The Ld. Metropolitan Magistrate after hearing the arguments advanced by the Ld. Addl. P.P. for the State and Ld. Counsel for the accused was pleased to take the cognizance of the offence under section 304 IPC. The Ld. Metropolitan Magistrate has observed as under: Para 11 "From all the above stated discussion it is apparent that present accused caused death of deceased Satya Pal by not providing him medical treatment with the knowledge that he is likely by such act to cause death of the deceased. Thus, there is sufficient UID No.56255/2016 State Vs Salim 2 of 7 material on record to show that accused has committed offence under Section 304 IPC along with offence under Section 279/202 IPC and 3/181 Motor Vehicle Act.
4. The matter was committed under Section 323 Cr.P.C. to the Court of Sessions as the offence under Section 304 IPC was exclusively triable by the court of Sessions.
5. I have carefully perused the material on record and gone through the submissions of the Ld. Addl. P.P. for the State and Ld. Counsel for the accused.
6. It is submitted by the Ld. Addl. P.P. for the State that there is prima facie sufficient material on record to frame the charge for the commission of the offence punishable under Section 304 IPC. On the other hand, it is submitted by the Ld. Counsel for the accused that there is not an iota of evidence to support the story of the prosecution for the commission of the offence punishable under Section 304 IPC.
7. The perusal of the impugned order reveals that the Ld. UID No.56255/2016 State Vs Salim 3 of 7 Metropolitan Magistrate has taken the cognizance for the commission of the offence under Section 304 IPC on the basis of the statement of the accused recorded under Section 313 Cr.P.C. The Ld. Metropolitan Magistrate has observed that the accused had told everyone that he would take the injured to the hospital but he never took the injured to any hospital. That apparently the accused had not taken the injured to the hospital just to save himself from prosecution and to distort evidence of the case. However, in this effort of the accused has forgot his moral as well as legal duty to provide medical attention to the victim knowing fully well that the same likely to cause death of the victim. The Ld. Metropolitan Magistrate has further observed that the accused had even lied in his statement under Section 313 Cr.p.C. when he said that deceased refused to go to the hospital as his house was near while in fact the deceased could not reach even the border of Delhi alive which was just 30 kilometers away.
8. Before proceeding further, I need to examine the UID No.56255/2016 State Vs Salim 4 of 7 evidentiary value of the statement of the accused recorded under Section 313 Cr.P.C. It is settled principle of law that the obligation to put material evidence to the accused under Section 313 Cr.P.C. is upon the court. One of the main objects of recording of a statement under this provision of the Cr.p.C. is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defense, if the accused so desires. Where the accused takes benefit of this opportunity, then his statement made under Section 313 Cr.P.C., insofar as it supports the case of the prosecution, can be used against him for rendering conviction. Otherwise, the statement under Section 313 Cr.P.C. normally cannot be made the basis of the conviction of the accused. My view in this regard is fortified by the judgment of Hon'ble Supreme Court in case titled as Brajendra Singh Vs State of Madhya Pradesh (2012) 4 Supreme Court Cases 289, wherein it has been held as under: "It is a settled principle of law that the statement of an accused under Section 313 Cr.P.C. can be used as evidence against the accused, insofar as it supports the case of the prosecution. Equally true UID No.56255/2016 State Vs Salim 5 of 7 is that the statement under Section 313 Cr.P.C. simpliciter normally cannot be made the basis for conviction of the accused. But where the statement of the accused under Section 313 Cr.P.C. is in line with the case of the prosecution, then certainly the heavy onus of proof on the prosecution is, to some extent, reduced".
9. In the present case it is crystal clear that the deceased was neither medically examined nor any postmortem over his body was conducted. There is no medical evidence on record to prove the story of the prosecution. None of the witnesses cited/examined by the prosecution have supported the story regarding commission of the offence under Section 304 IPC. The Ld. Metropolitan Magistrate has heavily relied upon the statement of the accused recorded under Section 313 Cr.P.C. The Ld. Metropolitan Magistrate has excluded the exculpatory statement of the accused given under Section 313 Cr.P.C. on the ground that the same is false.
10. In view of the judgment Brajendra Singh Vs State of Madhya Pradesh (Supra), it is clear that simpliciter statement under Section 313 Cr.P.C. could not be sufficient ground to proceed against UID No.56255/2016 State Vs Salim 6 of 7 the accused to punish him or to frame the charge for the commission of the offence in the absence of any other evidence on record produced by the prosecution.
11. In view of above, the accused Salim is discharged for the commission of the offence punishable under Section 304 IPC. The matter is remanded back to the concerned court through Ld. Chief Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi, for further trial for the notice already framed.
12. Accused is directed to appear before the Ld. Chief Metropolitan Magistrate, West District, Tis Hazari Courts, Delhi on 10.07.2017.
13. Ahlmad is directed to sent the file complete in all respect well before time.
Announced in the open court
today i.e. 08th June, 2017
(DEVENDER KUMAR JANGALA)
ASJ03, WEST/DELHI
UID No.56255/2016 State Vs Salim 7 of 7