Delhi District Court
State vs . Amit on 11 December, 2014
IN THE COURT OF SH. GAJENDER SINGH NAGAR, MM-04,
WEST DISTRICT, TIS HAZARI COURT,DELHI
STATE Vs. AMIT
FIR No. 267/2005
PS: MOTI NAGAR
U/S: 279/338 IPC
JUDGMENT
Sr. no. of the case : 953/2/10
Unique Case ID no. : 02401R0060372010
Date of commission of offence : 29.05.2005
Date of institution of the case : 21.12.2006
Name of the complainant : Sh. Badlu Ram
Name of accused and address : Amit
S/o Sh. Mahender Singh
R/o 46-C, DDA Flats,
Pandav Nagar, Delhi.
Offence complained of or proved : U/s 279/338 IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 11.12.2014
******************************************************************************************************************************* BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. As per the prosecution, on 29.05.2005 at about 06:40 PM at Rama Road, Patel Nagar Chowk, Moti Nagar, Delhi, the accused was driving motorcycle bearing no. DL-6SQ-7176 in a rash and negligent manner so as to endanger human life and without caring for the safety of other and while so driving hit one cyclist namely Badlu Ram and caused grievous injuries to him. Accordingly, after the investigation, police filed the present charge sheet against the accused.FIR No. 267/2005, PS Moti Nagar Page 1/11
2. Complete set of copies were supplied to the accused. After hearing arguments, notice U/s 251 Cr.P.C. was served upon the accused by my Ld. Predecessor for trial of offence U/s 279/338 IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. The Prosecution in support of present case has examined following witnesses.
4. PW1 Badlu Ram stated that on 29.05.2005 at about 09:00 AM he was coming from Rama Road with his cycle but he was not riding the cycle and cycle was in his hands. It is stated by him that when he reached at Patel Nagar Chowk, a motorcycle rider came from the side of Shadipur Flyover in a very fast speed and in rash and negligent manner and struck him, however, he does not remember the number of motorcycle. It is stated that his cycle slipped from his hand and he fell down at the side of road. It is stated that he sustained injuries in his right leg and another part of the body. It is stated that that the accused who is present in the court tried to run away from the spot but public gathered and apprehended him. It is stated by him that accused brought him to DDU Hospital. It is stated by him that IO recorded his statement Ex.PW1/A. This witness was cross-examined by the Ld. APP after taking permission from the Court. During cross-examination, it is stated by him that it might be that he had given his visiting card to a passerby to write the registration number of offending vehicle which he does not remember today as the incident pertains to 3 years ago and he is 75 years old. He accepted that IO had seized his visiting card in which passerby had written the registration number of offending vehicle vide seizure memo Ex.PW1/B. It is stated by him that he does not remember whether IO had prepared site plan at his instance. It is stated by him that he does not remember whether police had arrested accused or not. He denied the suggestion that he is deposing falsely being won over by accused. This witness was cross-examined by Ld. FIR No. 267/2005, PS Moti Nagar Page 2/11 defence counsel. It is stated by him that he was coming from Rama Road and again revert back to Moti Nagar. He accepted that he had already cross the Patel Road and intends to Moti Nagar. It is stated that he cannot show the place of occurrence of the accident in the site plan as he is illiterate. It is stated by him that he does not remember that he had mentioned the place of occurrence at Patel Nagar chowk. He accepted that he is illiterate person and he cannot tell the registration no. of the vehicle. It is voluntarily stated by him that he was hit from the backs. He accepted that accident occurred at the time when the work of construction of Metro Rail was in progress. He accepted that accused Amit took him to the hospital in an auto-rickshaw. It is voluntarily stated that accused had taken him only when he was apprehended by the public person present there. It is stated that police official had met him at the DDU hospital. It is stated that he never visited the spot after the incident. It is further stated that the police had not prepared site plan in his presence. It is stated that he does not remember whether his statement was recorded by the police or not. It is stated that police came to his house after several days. It is stated that he visited Chetarpal hospital at Bali Nagar on the same day. It is stated that he voluntarily admitted in Chetarpal hospital. It is stated that no MLC or any inspection was done at DDU hospital. It is stated that he does not know how he came to Chetarpal hospital. It is stated that police had not arrested the accused in his presence. It is stated the he cannot tell the speed of the offending vehicle. It is stated that he cannot tell if offending driver was also injured or not. It is stated that he does not know whether any passerby had noted down the number of motorcycle and given to him. It is stated that he does not know whether any witness or passerby went alongwith him to PS or hospital. It is stated that he cannot tell if the motorcycle in question had hit him.
5. PW2 Sh. Mahender Puri stated that he is the registered owner of motorcycle bearing no.DL-6SQ-7167 and accused Amit who is his son also used to drive the above motorcycle and he was driving the motorcycle on the day of accident. It is stated by him that during FIR No. 267/2005, PS Moti Nagar Page 3/11 investigation the motorcycle was seized by the IO and he took the motorcycle on superdari vide superdarinama Ex.PW2/A.
6. PW3 Ct. Ashok stated that on 29.05.2005 he was posted at PS Moti Nagar. It is stated that on that day on receipt of DD No.6A he alongwith ASI Ramphal went to the place of accident i.e. at Rama Road, Patel Nagar Chowk, where they found motorcycle no.
DL-6SQ-7167 lying in an accidental condition and they came to know that injured has been removed to unknown hospital. It is stated by him that on the spot IO received DD No.10B and accordingly IO left him at the spot and went to DDU Hospital. It is further stated that IO came back to the spot and prepared rukka and rukka was handed over to him. Accordingly, he went to PS, got the FIR registered, came back to spot and handed over the copy of FIR and original rukka to IO. It is stated by him that IO seized the motorcycle vide memo Ex.PW3/A and also seized the cycle vide seizure memo Ex.PW3/B. It is stated by him that on the same evening, he accompanied the IO to the hospital where accused Amit present in the Court was also present there. IO arrested the accused vide memo Ex.PW3/C at the pointing out of the complainant and seized the D/L of the accused vide memo Ex.PW3/D and RC of the offending motorcycle vide memo Ex.PW3/E and IO also recorded his statement.
7. PW4 Dr. Vipul stated that on 29.05.2005 he was posted at DDU Hospital and on that day he medically examined injured Badlu Lal vide MLC no.13137 Ex.PW4/A. It is stated by him that after medical examination, the patient was referred to Ortho and from Ortho side the patient was examined by Dr. Amit Verma, who has opined the nature of injuries as grievous at point B as the injured suffered fracture over right leg i.e. shaft of tibia and fibula. It is stated by him that he is identifying the handwriting as well as signature of Dr. Amit Verma as he has seen him writing and signing in the course of his duties during the aforesaid period.
8. PW5 SI Ramphal stated that on 29.05.2005 he was posted at PS Moti Nagar and on that day on receipt of DD No.6A he alongwith Ct.
FIR No. 267/2005, PS Moti Nagar Page 4/11Ashok Kumar went to place of occurrence i.e. Rama Road, Patel Nagar Chowk, Moti Nagar, Delhi. It is stated by him that there they found one motorcycle bearing no.DL-6SQ-7167 in an accidental condition and he came to know that injured has been removed to unknown hospital. In the mean time, he received DD No.10B and accordingly, he left for the hospital whereas Ct. Ashok remained at the spot. It is stated that he reached DDU hospital and found injured Badlu Ram admitted in hospital vide MLC No. 13137. It is stated by him that he requested injured Badlu Ram to make the statement but injured stated that he would make statement after treatment. It is stated that he kept DD pending and in the meantime, Badlu Ram got himself admitted in Khetrapal hospital and he went to the hospital on the same evening and recorded the statement of Badlu Ram and prepared rukka Ex.PW5/A and handed over the rukka to Ct. Ashok who got the FIR registered, came back to hospital and handed over copy of FIR and rukka to him thereafter they went to the spot and prepared site plan Ex.PW5/B. It is stated that he also seized the motorcycle vide seizure memo Ex.PW3/A. It is stated that in the hospital, he met accused Amit, who was arrested on the identification of the complainant vide arrest memo Ex.PW3/C and his personal search was conducted vide memo Ex.PW5/C and he also seized the cycle belonging to the complainant vide memo Ex.PW3/B and visiting card produced by the complainant Ex.PW1/B and RC of motorcycle was seized vide memo Ex.PW3/E and D/L of the accused was seized vide memo Ex.PW3/D. It is stated that motorcycle was mechanically inspected vide his application Ex.PW5/D. It is stated that he recorded the statement of the witnesses and collected the opinion on MLC and after completion of the investigation he filed charge sheet. In his cross examination, it is stated by him that when he reached the spot he found the cycle and the motorcycle on the spot. It is stated that the said vehicles were in standing condition. He admitted that he had not taken the complainant to the site at the time of preparation of the site plan Ex.PW5/B. He denied the suggestion that the road between point A and A on the site plan was closed due to FIR No. 267/2005, PS Moti Nagar Page 5/11 metro construction during the period of alleged accident. He further denied that there were barriers between point A and A and the road was closed between point A and A. He admitted that he did not find any eye witness of the said accident. He denied the suggestion that the spot of alleged accident shown in the site plan is incorrect. He further denied that the complainant had not identified the accused in the hospital. He denied that he is deposing falsely.
9. PW6 Retired ASI Devender Kumar exhibited mechanical inspection report of offending motorcycle as Ex.PW6/A.
10. PW7 HC Suresh Kumar exhibited FIR as Ex.PW7/A and endorsement on rukka as Ex.PW7/B.
11. No other PW was examined, hence PE was closed.
THE DEFENCE :
12. Statement of accused was recorded U/s 281 Cr.P.C r/w Section 313 Cr.P.C, wherein he pleaded innocence and stated that he has been falsely implicated in the present case. It is stated that the accident was not caused by him, however, out of sympathy and humanity he had taken the injured to hospital. Accused opted to lead defence evidence and examined Sh. Kamal Kumar as DW1 and himself as DW2.
13. DW1 Sh. Kamal Kumar stated that on 29.05.2005 at about 9:00 AM, he was going towards Kirti Nagar due to some work at Camlin Geometry Box manufacture. It is stated by him that when he was approaching near Kirti Nagar turning from Shadipur flyover, he saw a person was sitting on the road due to accident occurred from an unknown vehicle which after accident fled away from the spot and the peoples were gathered around them. It is stated that the work of metro rail was in progress and barricades were installed in the middle of the road by which nobody can pass any vehicle to the another side and after parking his car on the site, he approached the injured, no body was willing to carry him to the hospital, one young boy namely Amit who was also present there, this witness told Amit to take the injured to FIR No. 267/2005, PS Moti Nagar Page 6/11 the nearby hospital and also given him his visiting card so that if need arises he can approach him in future. It is stated that after about 4-5 months, accused Amit made a phone call to this witness stating the police had made a false case against him and implicated him in the case in which he had helped the injured to take him to the hospital on humanitarian ground. It is stated that this witness was present at the spot and accused Amit had nothing to do with the accident. It is stated that accused Amit helped the injured at the request of public persons gathered at the spot. In his cross-examination, it is stated by this witness that he had given his visiting card to the accused as everyone was apprehensive in taking the injured to the hospital due to police case. It is stated by him that accused had probably taken the injured in a TSR to the hospital. It is stated by him that he himself not tried to stop/arrange any vehicle for taking the injured to hospital. He denied the suggestion that he is deposing falsely to help the accused.
14. DW2 Amit Puri (accused) stated that the incident is dated 29.05.2005 at about 09:00 AM, he was coming from Shadipur Depot and was going towards Moti Nagar from the flyover. It is stated by him that he had noticed that an accident had occurred on the other side of the road. At that time metro construction work was being carried out in between the road due to which the barriers were installed in the middle of the road. It is stated by him that there was a small opening in between the barriers which was sufficient only for pedestrian to cross the road. It is stated that there was no traffic signal on the flyover. It is stated by him that he parked his bike on the side of the road and went across the road to see what had happened. On going there, he noticed that an old man had met with an accident. It is stated that the injured was crying for help and nobody was coming forward to help him. Meanwhile one Mr. Kamal who was present at the spot, he was not familiar to him, he advised him to take the injured (old man) to the hospital. He told him that he is unable to take the injured as he was not having car. It is stated that the people who had gathered there got arranged the TSR and he took that old man to the hospital as per the FIR No. 267/2005, PS Moti Nagar Page 7/11 suggestions of those people who had gathered there. It is stated by him that Mr. Kamal had offered him some money but he refused, on this said Mr. Kamal had given him his visiting card and told him to contact him in case of need. It is stated by him that he had taken the injured to PS directly, where again he was advised to take the injured to the hospital. It is stated by him that police officials told him that they will follow him to the hospital. It is stated by him that he took the injured to DDU hospital as advised by the police. It is stated that he got that injured old man admitted in the hospital. It is stated by him that doctor asked him to sign a form. When he told the doctor that he was not relative of the injured, doctor told him that the person who brings the injured to hospital is supposed to fill up that form. He filled up that form accordingly and signed it. It is stated that he returned to the spot and found his motorcycle missing. Thereafter, he went to PS Moti Nagar, there he was informed that the accident was caused by him, thereafter his motorcycle was seized. It is stated by him that he called his parents immediately. It is stated that he immediately went to the hospital and asked that old man whether he was the person who caused the accident, that injured old man declined the same and said that the accident was caused by some other vehicle. It is stated that he was detained in the hospital by the injured old man after arrival of his family members he started demanding money from him and falsely implicated him in this case. It is stated that when he refused to pay the money he threatened him to implicate in the court case. It is stated that he was taken to PS and the FIR was registered late in the night at about 09:00 PM. It is stated by him that he got his vehicle released from court on superdari. In his cross-examination, it is accepted by him that he had not lodged any complaint with senior officials of the police for taking action against erring police officials. It is accepted by him that he had not shown the visiting card of Mr. Kamal Kumar to the police or requested them to verify the facts from independent persons. It is accepted by him that there were scratches on his motorcycle on its right side, however, it is voluntarily explained by him that those scratches FIR No. 267/2005, PS Moti Nagar Page 8/11 were old one.
THE ARGUMENTS:
15. Ld. APP for state has argued that injured / eye witness has supported the prosecution and his testimony has remained unrebutted.
That on a combined reading of testimony of prosecution witnesses, offence U/s 279 and 338 IPC are proved beyond reasonable doubt.
16. On the other hand, Ld. Counsel for accused has stated that there is no legally sustainable evidence against the accused. Even the statement of injured do not implicate the accused. The case is based on circumstantial evidence at best and there is no incriminating evidence against the accused.
THE FINDINGS:
Offense u/s 279 and 338 IPC:
17. Arguments adduced by Ld. APP and Defence Counsel have been heard and evidence and documents on record are carefully perused.
18. The prosecution in this case had to prove the following :
1. Firstly, the identity of the accused as driver of the offending vehicle; AND
2. Secondly, the accident has taken place due to rash and negligent driving by the accused, causing grievous hurt to the victim.
19. In the present case identity of the accused as the driver of the offending motorcycle is not established beyond reasonable doubt due to following reasons:-
i). In his examination-in-chief or in cross-examination, the injured Badlu Ram could not tell the number of the motorcycle which had hit him. In his cross-examination, it is stated by him that he does not know the number of the motorcycle, which had hit him. It is stated by him that he cannot tell if he was hit by the motorcycle in question or some other vehicle.
ii). The injured has not stated in as many words that accused was riding FIR No. 267/2005, PS Moti Nagar Page 9/11 the motorcycle in question. As it is stated by him that he was hit by a motorcycle from back side due to which he fell down on the road and sustained injury in right leg and other body parts. Thereafter, it is stated by him that accused who is present in the Court tried to run away from the spot but public gathered and apprehended him. From this testimony, it is implied by the prosecution that accused was riding the offending motorcycle but on the basis of this statement this Court cannot held beyond reasonable doubt that accused was driving the offending motorcycle.
iii). In his cross-examination, it is stated by injured PW1 Badlu Ram that motorcycle coming at a very fast speed and in a very rash and negligent manner struck against him. However, in his cross-
examination, it is stated by him that he cannot tell the speed of the offending vehicle as he was hit from the back. Thus, the witness is making inconsistence statements which raises a doubt if the motorcycle which had struck against the injured was being driven in rash and negligent manner.
iv). As per the site plan the accident had occurred in the middle of the road. It is stated by the victim that he was not riding his bicycle rather he was walking alongwith his bicycle. In such situation, it remains unexplained as to why the injured was walking in middle of the road, as generally people used to walk with cycles on the left side of the road. This fact shows that injured was not acting diligently as he was walking in the middle of the road.
v). In the present matter no independent eye witness or persons of public gathered at the spot have been cited as prosecution witness. On the other hand, accused has examined one Kamal Kumar as DW1 and has also examined himself as DW2 to state the defence of the accused on oath before the Court. Both DW1 and DW2 have stated that accused was not responsible for the accident rather he had taken the injured to the hospital out of sympathy. Testimony of both DW1 and DW2 remained unrebutted even during their cross-examination.
20. In these circumstances from the testimony of the injured either the FIR No. 267/2005, PS Moti Nagar Page 10/11 identity of the accused as driver of offending vehicle or identity of the offending vehicle or the factum of rashness and negligence could not be proved beyond reasonable doubt. Hence, the accused deserves acquittal as his defence that accident had not been caused by him and he had taken the injured to hospital out of human sympathy.
21. At this stage it would be fruitful to remember that it is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. Further it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to acquittal.
22. Thus, in the considered opinion of this Court, the prosecution could not prove beyond reasonable doubt that the accident was caused by accused Amit. The evidence coming on record entitles the accused for the benefit of doubt. Therefore, accused Amit S/o Sh. Mahender Singh is hereby acquitted of all the charges in the present case.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 11.12.2014 MM-04 (WEST)/DELHI
Containing 11 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) MM-04 (WEST)/DELHI FIR No. 267/2005, PS Moti Nagar Page 11/11