Delhi District Court
State vs . Rajan on 30 October, 2018
IN THE COURT OF SH. PRANJAL ANEJA
METROPOLITAN MAGISTRATE-01, SHAHDRA DISTRICT,
KARKARDOOMA COURTS, DELHI
State Vs. Rajan
FIR No. 117/06
PS: M.S. Park
U/s 279/304A IPC
a. Comp. ID No. of the case : 83973/2016
b. Date of commission of offence : 26.03.2006
c. Date of institution of the case : 06.07.2006
d. Name of complainant : ASI Ram Pal
e. Name of accused : Rajan
S/o Sh. Satya Prakash
R/o J-20, Dilshad Colony,
Dilshad Garden, Delhi.
f. Offence complained of : U/s 279/304A IPC
g. Plea of accused : Pleaded not guilty
h. Arguments heard on : 25.09.2018
i. Final order : Acquitted
j. Date of judgment : 30.10.2018
JUDGMENT
FACTS IN BRIEF :
1. Briefly stating, the case as per prosecution is that on 26.03.2006 at about 09.55 p.m., at Flyover, GT Road near Police FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 1 of 12 Picket Booth M.S. Park, Delhi within the jurisdiction of PS M.S. Park Delhi, accused Rajan was driving the vehicle (TSR) bearing no. DL 1RE 5094 in a rash and negligent manner so as to endanger human life and personal safety of others and hit the above said vehicle against one unknown pedestrian aged about 55 years male who succumbed to injuries and thus accused cause death not amounting to culpable homicide and thereby committed offence punishable U/s 279/304A IPC.
2. After completion of investigation, charge-sheet was filed. Upon taking cognizance of the offence, accused was summoned and supplied copy of charge-sheet in compliance of section 207 of Cr.P.C. Charge u/s 279/304A IPC was framed on 14.05.2008. Accused pleaded not guilty and claimed trial.
3. In order to prove its case the prosecution examined nine witnesses. PW1 is Sh. Tasnimuddin who conducted mechanical inspection of the offending vehicle, PW2 is duty officer Retd./SI Dhanvir, PW-3 is ASI Ram Pal, PW4 is Lal Chand who is superdar of offending vehicle, PW-5 is Murari Lal, PW-6 is Holi Ram who brought the dead body to GTB hospital, PW-7 is Dr. Parmeshwar Ram, PW-8 is Sh. Harish Chander Pandey Technical Assistant from GTB hospital and PW-9 ASI Om Prakash.
4. Statement of accused u/s 313 Cr.P.C was recorded on 22.01.2018 wherein accused opted to lead defence evidence. However despite opportunities accused failed to lead DE and thereafter, vide order dt. 01.02.2018, DE was closed.
FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 2 of 12
5. I have heard the arguments of Ld. APP for the State as well as of Ld. Counsel for accused. I have also gone through the evidence on record.
REASONS FOR DECISION :
6. In order to establish the guilt of the accused, prosecution was under obligation to prove charge upon the accused that while driving the vehicle (TSR) bearing no. DL 1RE 5094 in a rash and negligent manner so as to endanger human life and personal safety of others, accused hit the above said vehicle against one unknown pedestrian aged about 55 years male who succumbed to injuries and thus accused caused death not amounting to culpable homicide.
7. The testimonies of prosecution witnesses is touched upon in brief as follows:-
7.1 PW1 Sh. Tasniuddin conducted the mechanical inspection of offending vehicle i.e. Bajaj TSR bearing no. DL 1RE 5094 and exhibited his inspection report as Ex. PW1/A. In cross-examination by ld. Defence Counsel, PW-1 after seeing the report stated that front mudguard, right side front show dented/pressed, brakes were ok. PW-1 denied to the suggestions that dents were not fresh.
7.2 PW-2 Retd. SI Dhanvir is the duty officer and proved DD entry no. 29A as Ex PW2/A, copy of FIR no. 117/06 as Ex.
PW2/B and endorsement on rukka as Ex. PW2/C. FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 3 of 12 Nothing was asked in cross-examination from PW-2 despite being opportunity granted.
7.3 PW-3 ASI Ram Pal is the eye witness of the incident and deposed that on 23.06.2006 he was on picketing at Flyover and at about 09.15 p.m. he was standing on the picket booth and saw that one TSR no. DL 1RE 5094 came from the side of Dilshad Garden to Shahdara, was being driven in rash and negligent manner and high speed by its driver, hit against the pedestrian who was crossing the road and driver of the said TSR did not stop the TSR after hitting the pedestrian. PW-3 further deposed that he took lift from a motorcyclist who happened to reach the spot and chased the TSR and he was stopped after some distance. PW-3 deposed that he informed about the incident through wireless set and injured was took by PCR Van to GTB hospital and driver of TSR was apprehended by him who disclosed his name as Rajan. PW-3 further deposed that he handed over the accused to IO/SI Muktiyar Singh and IO recorded his statement Ex. PW3/A and thereafter got registered the FIR through Ct. Om Prakash. PW-3 further deposed that IO prepared the site plan Ex. PW3/B at his instance, seized the vehicle vide seizure memo Ex. PW3/C and relevant documents i.e. DL, RC, Fitness certificate, permit and insurance of said TSR vide memo Ex. PW3/D and also seized the goods of injured vide memo Ex. PW3/E. PW-3 correctly identified the accused and photographs of the offending vehicle as Ex. P1 to P4 collectively.
In cross-examination by ld. Defense counsel, PW-3 stated that he did not measure the speed of offending vehicle FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 4 of 12 and does not remember the make of motorcycle and name of motorcyclist who helped him to chase and apprehended the accused as he went away without disclosing his name and identity. PW-3 denied to the suggestion that there was no motorcycle that is why he does not remember the name of motorcyclist or make of motorcycle. PW-3 stated that accused was apprehended at a distance of 40-50 meters after the spot. PW-3 further denied to the suggestion that spot was thickly populated area or that it was busy road. PW-3 stated that offending vehicle was brought to the spot by him from the place of apprehension of the accused and handed over the same to IO at the spot and further stated that pedestrian was carrying white like plastic katta.
7.4 PW-4 Sh. Lal Chand is the superdar who released the offence vehicle i.e. TSR vide superdarinama Ex. PW4/A and stated that on the date of incident the offending vehicle was driven by accused Rajan. Accused Rajan is correctly identified by PW-4.
Nothing was asked by accused in cross-examination from PW-4 despite opportunity being granted.
7.5 PW-5 HC Murari Lal brought the register no. 19 and exhibited the entry no. 1631 as EX. PW5/B vide which offending vehicle i.e. TSR no. DL 1RE 5094 and some articles were deposited.
Nothing was asked by accused in cross-examination from PW-5 despite opportunity being granted.
FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 5 of 12 7.6 PW-6 Sh. Holi Ram had brought the dead body to GTB hospital on the instruction of police official and stated that deceased was not known to him.
In cross-examination by ld. Substitute APP, PW-6 admitted that the deadbody was shown to him at GTB hospital on 31.03.2006 was of a beggar who used to wander and present at Railway Station Shahdara.
Nothing was asked by accused in cross-examination from PW-6 despite opportunity being granted.
7.7 PW-7 Dr. Rameshwar Ram identified the signature and hand-writing of Dr. Palab Hazarika at point A on the MLC Ex. PW11/A. Nothing was asked by ld. Defense counsel in cross- examination from PW-7 despite opportunity being granted.
7.8 PW-8 Sh. Harish Chander Pandey proved the postmortem prepared by Dr. Atul Gupta as Ex. PW8/A and identified the signature of Dr. Atul Gupta at point A. Nothing was asked by ld. Defense counsel in cross- examination from PW-8 despite opportunity being granted.
7.9 PW-9 ASI Om Prakash accompanied the IO during investigation and deposed that upon receiving of DD no. 29A by SI Mukhtiyar Singh Ex. PW2/D, he alongwith IO SI Mukhtiyar Singh reached at the spot i.e. Shahdara Flyover near police booth where he came ot know that the injured has gone to GTB FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 6 of 12 hospital and thereafter they went to GTB hospital where IO obtained MLC of injured and found the injured unfit for statement. PW-9 deposed that after that they again reached at the spot where Ct. Ram Pal handed over TSR (Auto) bearing Reg. No. DL 1RE 5094 alongwith driver to the IO and IO recorded statement of Ct. Ram Pal, prepared rukka and get the FIR registered through him. PW-9 further deposed that thereafter IO seized the offending vehicle, DL of accused, RC, Fitness certificate, permit and Insurance and utensil. PW-9 further deposed that on 27.03.2006, accused was arrested and personally searched vide memo Ex. PW9/A & PW9/B. PW-9 correctly identified the accused before the court.
In cross-examination by ld. Defense counsel, PW-9 stated that DD no. 29A received by SI Mukhtiyar Singh at about 10.00 p.m. and IO handed over rukka to him at about 11.45 a.m. and he returned at the spot after registration of FIR at about 12.30 a.m (midnight).
8. In the above analysis of the testimonies, it is seen that there is only one eye witness to the incident who is ASI Ram Pal examined as PW-3 in this case. While in his examination-in-chief, he deposed that the TSR was being driven in rash and negligent manner and in high speed by its driver but in cross-examination he could not state about any particular speed at which the vehicle was driven. He simply stated that the speed was very high and he did not measure it.
9. PW-3 further deposed in examination-in-chief that the said TSR hit against the pedestrian who was crossing the road and driver of FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 7 of 12 TSR did not stop thereafter. In cross-examination, PW-3 appears to be confused with regard to the existence of the Zebra crossing near the spot. Initially he deposed that he does not remember if there was zebra crossing near the spot but later he denied to the suggestion that there was no zebra crossing. He further deposed that there was no cut in the road and rather volunteered to state that there was center reservation between the road. In light of this deposition, the site plan Ex. PW3/B is seen. PW-3 stated that the same was prepared by the IO at his instance. In this site plan there is no zebra crossing shown. In fact, there is a continuous divider or reservation partitioning the road is seen and there is no cut seen between the divider/partition or near the spot. This clearly means that a person cannot cross the road from one side to the other and in case he does so, he has to manually climb the divider or the partition, as the case may be. From the deposition and site plan it is also clear that there is no zebra crossing at or near the spot of alleged incident. It is further pertinent to note that there is no red light /traffic signal on or near the spot. Admittedly, the road is a GT Road on which vehicles usually ply at a reasonably high speed. In such cases if a person attempts to cross such road without any zebra crossing or red light having known that there is no cut between the divider across the road and in such attempt he is hit by the speedily going vehicles on the said road then the above negligence of such person cannot be attributed on the vehicle which may hit him. Such is the case in the present FIR. As analyzed from the testimony and given facts and circumstances of the case, it is observed that when the victim/deceased tried to cross the road without having taken any precautions and there being no traffic signal/red light or zebra crossing or even any cut for going across the other side of the road, he was FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 8 of 12 allegedly hit by the offending TSR driven by the accused. The victim/deceased was clearly negligent in his act of crossing the road especially at the time of night i.e. at around 10.00 p.m. Except the usage of phrase "rash and negligent manner" there is no evidence on record against the accused to prove that he was driving his TSR at such high speed or in such manner which displayed rashness and/or negligence on his part so as to make his liable for causing the death of victim.
10. It is observed by Hon'ble Supreme Court of India in State of Karnataka Vs. Satish 1999(1) JCC (SC) 97, that the prosecution has to specifically prove the rashness or negligence and merely vehicle running at high speed does not ipso facto implies driving negligently or rashly as criminality cannot be presumed rather it has to be proved unless law presumes so. In the present case, there is not even the evidence that offending vehicle was moving at a very high speed so as to be rash or negligent in causing the alleged accident. The prosecution has failed to prove the essential ingredient of Section 279/304A IPC for which the accused has been charged.
11. Further noted that no public person has been joined in the investigation as an eye witness to corroborate the version of PW-3. The spot is a GT Road which is always busy with traffic and if efforts were taken then public witness(es) could have been easily joined but no sincere efforts have been seen on the part of police to join any other independent witness. Regarding the importance of joining independent witness during investigation in a case like the present one, reliance may be placed on the following case laws:
FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 9 of 12 In a case law reported as Anoop Joshi Vs. State 1999(2) C.C. Cases 314 (HC), Hon'ble High Court of Delhi has observed as under:
"18. It is repeatedly laid down by this court that in such cases it should be shown by the police that sincere efforts have been made to join independent witnesses. In the present case, it is evident that no such sincere efforts have been made, particularly when we find that shops were open and one or two shopkeepers could have been persuaded to join the raiding party to witness the recovery being made from the appellant. In case any of the shopkeepers had declined to join the raiding party, the police could have later on taken legal action against such shopkeepers because they could not have escaped the rigours of law while declining to perform their legal duty to assist the police in investigation as a citizen, which is an offence under the IPC".
In Sadhu Singh versus State of Punjab, (1997) 3 Crimes 55 (PH) wherein it is held that:
"there can be cases when public witnesses are reluctant to join or are not available. All the same, the prosecution must show a genuine attempt having been made to join public witnesses. It is further held that a stereotype statement of non availability of FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 10 of 12 any public witness will not be sufficient particularly when at the relevant time, it was not difficult to procure the services of public witness."
Keeping in view of the above authorities, I am of the considered opinion that prosecution has failed to show a genuine effort to make a public witness with regard to the accident despite the spot being a busy road.
12. Other witnesses are IO and accompanying police constable who merely carried out the investigation. The doctors who appeared as witness merely testified upon the MLC and postmortem. One more witness was examined as PW-6 to identify the dead body but strangely it is noted that in his deposition he initially stated that he had brought the dead body to GTB hospital on the instruction of police but later in cross-examination by ld. APP he admitted that dead body shown to him at GTB hospital was of a beggar. The testimonies of all these persons is of no help to the prosecution in establishing any guilty upon the accused.
13. In view of the above appreciation of evidence and all the circumstances of this case taken together doubt is created over the prosecution story and no confidence is inspired to hold any opinion of guilt in this case. 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 accused is, but the golden rule of criminal jurisprudence is that the case of the FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 11 of 12 prosecution has to stand on its own legs. It is evident from the above analysis that prosecution has failed to establish that the accused committed the offence charged upon him.
14. Accordingly, the accused Rajan is acquitted in this case.
Digitally
signed by
PRANJAL
PRANJAL ANEJA
ANEJA Date:
Dictated Directly on the 2018.10.30
16:58:32
Computer System and +0530
Announced in the open (PRANJAL ANEJA)
Court on 30.10.2018 Metropolitan Magistrate-01
Shahdra District, Karkardooma
Courts, Delhi.
FIR No. 117/06 PS M.S. Park State V. Rajan (30.10.2018) Pg No. 12 of 12