IN THE COURT OF METROPOLITAN MAGISTRATE-12 (SOUTH- WEST), DWARKA COURTS, NEW DELHI Presided by: Ms. Manika State v. [ENTITY] FIR No. 102/2010 Police Station : Chhawla Under Section : 279/[SECTION] [ACT] Unique Case ID Number: 02405R0609562010 Date of institution : 11.10.2010 Date of reserving : 28.05.2012 Date of pronouncement : 28.05.2012 JUDGMENT
a) Serial number of the case 03/01/12 b) Date of commission of 23.06.2010 offence c) Name of the complainant Sh. [ENTITY] S/o Sh. [ENTITY] d) Name, parentage and Sh. [ENTITY] S/o Sh. [ENTITY] address of the accused [ENTITY] R/o RZ 9/10, Durga Vihar Phase-I, New Delhi-110043. e) Offence complained of [SECTION] [ACT] f) Plea of the accused "Not guilty" State v. [ENTITY] g) Final order Acquitted h) Date of final order 28.05.2012 BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Vide this judgment the accused is being acquitted of the offence punishable under [SECTION] of the [ACT] (hereinafter referred to as '[ACT]') in the instant case FIR No. 102/2010 Police Station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 23.06.2010 at about 10.10 PM on main Jhatikara Road ahead of Prem Nagar, Rewala, Khanpur Basti, the accused was found driving vehicle being red coloured Yamaha Fazer motorcycle bearing no. HR-26AZ-6765 in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person, and while driving the aforesaid motorcycle in the aforesaid manner, he hit the complainant Sh. [ENTITY], who was driving motorcycle bearing no. DL 9SK-4378, with the aforesaid motorcycle and caused grievous injuries on his person.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section State v. [ENTITY] 173 of the [ACT] (hereinafter referred to as '[ACT]') was filed and the accused was consequently summoned.
4. The case was received by way of transfer by this Court on 12.03.2012.
CHARGE/ACCUSATION AGAINST THE ACCUSED
5. Vide order dated 07.12.2010 passed by the learned predecessor of this Court, notice under [SECTION] [ACT] for the offence punishable under [SECTION] of the [ACT] was served upon the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
6. Vide order dated 23.04.2012, in compliance with the provisions of [SECTION] of the [ACT], the accused was called upon to admit or deny the genuineness of the MLC bearing no. 23/10 dated 23.06.2010 and FIR bearing no. 102/10 under [SECTION] [ACT], both of which documents were admitted by the accused and were accordingly exhibited as Ex. PA-1 and Ex. PA-2 respectively. In view of the admission made, the evidence of Dr. [ENTITY] and duty officer Head Constable [ENTITY] was dispensed with.
EVIDENCE OF THE PROSECUTION
7. The prosecution in all examined seven witnesses. PW-1 Sh. [ENTITY] is the complainant/injured. He deposed that on 23.06.2010 at about 10.10 PM, when he was going to his village Daulatpur on his motorcycle bearing no. DL 9SK-4378 and reached State v. [ENTITY] ahead of Prem Nagar, Revla, Khanpur Basti, one motorcycle came from the front side at a high speed and in a zig zag manner and hit him. He stated that, as a result thereof, his motorcycle fell on the road and his leg sustained a fracture. He stated that he was removed to a private hospital namely Sinha Fracture and Trauma Centre on Khair Road, Najafgarh, where the police recorded his statement on the next day. He deposed that the offending motorcycle was a red coloured Yamaha Fazer bearing no. HR 26 AZ- 6765 although he had wrongly mentioned the number of the motorcycle as 'HR 26AJ-6765' at the time of accident as the alphabet 'Z' in the number of the motorcycle was rubbed and looked like 'J'. He stated that when the police officials traced the said motorcycle it was found to be of black colour of make Bajaj Pulsar. He stated that his statement in this regard was also recorded by the police officials. He deposed that after 15-20 days he went to the police station in an ambulance (private van) where the investigating officer Head Constable [ENTITY] had lined up 6-7 persons and asked him to identify the accused. He correctly identified the accused in Court. He identified his signatures on arrest memo Ex. PW1/B and personal search memo of the accused Ex. PW1/C. He identified the motorcycle in the photographs Ex. P-1 and Ex. P-2 as the motorcycle which had hit him and caused the accident. PW-2 Sub-Inspector [ENTITY] was the police official who had accompanied the investigating officer to the spot on receipt of call regarding the accident. He stated that he did not remember the exact date of the incident as it had occurred about two years back. Further, he could not tell the registration number of the motorcycle of the injured, which according to him was found in an State v. [ENTITY] accidental condition at the spot. He stated that upon reaching the spot he came to know that the injured had already been removed to Sinha hospital. He deposed that while he remained at the spot, the investigating officer went to the hospital and returned with Constable [ENTITY]. He stated that the investigating officer seized the motorcycle bearing no. DL 9SK-4378. PW-3 Sh. [ENTITY] is the person who had removed the injured/complainant to the hospital. PW-4 Constable [ENTITY] is the police official who had accompanied the investigating officer to the hospital on 24.06.2010 for recording the statement of the injured Sh. [ENTITY]. He stated that he took the rukka to the police station for registration of the FIR and got the FIR registered. He deposed that after handing over the rukka and copy of FIR to the investigating officer, he alongwith the investigating officer went to Revla, Khan Pur, Prem Basti, where they met PSI [ENTITY] and found one motorcycle bearing no. DL 9SK-4378 in accidental condition and the same was seized vide memo Ex. PW4/A. PW-5 Sh. [ENTITY] is the owner of the offending vehicle upon whom a notice under [SECTION] of the [ACT] had been served. Though he admitted his signatures on the reply to the said notice Ex. PW5/A, he stated that the said reply had been written by him under the pressure of the investigating officer. He deposed that at the time of the accident, the offending vehicle was under his custody and the accused had no concern with the same. PW-6 Sh. [ENTITY] is the mechanical inspector, who had conducted the mechanical inspection of the offending vehicle as well as the motorcycle of the injured. He identified his signatures on his reports Ex. PW6/A and Ex. PW6/B. PW-7 Head State v. [ENTITY] Constable [ENTITY] is the investigating officer. He stated that he had recorded the statement of the injured Ex. PW1/A, prepared rukka Ex. PW7/B, seized motorcycle bearing no. DL 9SK-4378 vide memo Ex. PW4/A, prepared site plan Ex. PW7/C, served notice Ex. PW5/A on the owner of the offending vehicle, arrested the accused vide memo Ex. PW1/B and conducted personal search of the accused vide memo Ex. PW1/C. ARGUMENTS
8. Addressing final arguments, Sh. [ENTITY], learned Assistant Public Prosecutor for the State, submitted that the complainant/PW-1 had identified the accused as well as established the identity of the offending vehicle. He contended that the prosecution has also successfully established that the accused was driving the offending vehicle at a high speed and, therefore, rashly. He submitted that grievous injuries have been proved to have been caused to the complainant. He urged that the prosecution has accordingly successfully established its case warranting conviction of the accused. He relied upon the following authorities:
(i) [PRECEDENT];
(ii) [PRECEDENT];
(iii) [PRECEDENT]; and
(iv) [PRECEDENT].
9. On the other hand, Sh. [ENTITY], Advocate, learned counsel for the accused contended that the prosecution had failed to State v. [ENTITY] establish the identity of the accused as well as the motorcycle bearing No. HR 26 AZ-6765 in relation to the accident alleged to have been caused by the accused. He argued that mere high-speed cannot be deemed to tantamount to rashness or negligence. He urged that the prosecution has failed miserably in proving its case against the accused, who deserves to be acquitted. In support of his submissions, learned defence counsel relied upon the decisions in:
(i) [PRECEDENT]; and
(ii) [PRECEDENT].
FINDINGS
10. The record has been thoroughly and carefully perused. The respective submissions of the learned Assistant Public Prosecutor for the State and learned counsel for the accused have been considered.
I. Charge under [SECTION] [ACT]
11. In order to bring home the guilt of the accused in respect of the offence under [SECTION] [ACT] charged against him, the prosecution was required to prove the following:
(i) That it was the accused who was driving the offending vehicle on the date, time and place of the alleged accident;
(ii) That it was the vehicle bearing no. HR26AZ-6765 which was being driven by the accused on the date, time and place of the alleged accident; and
(iii)That the accused was driving the offending vehicle in a manner so rash or negligent as to endanger human life or personal State v. [ENTITY] safety of others or likely to cause hurt to any other person.
Re: Identity of the accused
12. The only eye-witness and hence the most material witness in the instant case is PW-1 Sh. [ENTITY] i.e. the complainant/injured. The accused was not known to PW-1/complainant prior to the accident. In his statement Ex. PW1/A, the complainant/PW-1 had not given any description of the accused to the police. During his examination, PW-1 identified the accused in the Court i.e. after about one and a half years from the date of incident. PW-1 deposed in his examination-in-chief that due to the impact of the accident he fell in a field and asked the accused to help him, however, the accused left the spot without helping him. However, in his cross-examination, he admitted, "It is correct that accused never stopped at the spot and ran away after the accident". From his testimony, therefore, it appears that PW-1 had either not seen the accused at all at the time of or immediately after the accident or had seen him only for a brief/passing moment. Keeping in view the state of mind of a person, who has met with an accident, which has allegedly caused a fracture in his leg, it would be difficult to believe that a fleeting glance of the driver of the offending vehicle would form such an impression of the features etc. of the driver of the offending vehicle in his mind as to enable him to recollect the same and identify the driver of the offending vehicle even after a long lapse of time.
13. What is also pertinent here is that, as per the testimony of PW-1, the accident took place at about 10.10 PM i.e. during the night. Considering that the accident took place during the night, the presence State v. [ENTITY] or otherwise of light at the spot assumes importance for judging whether the injured PW-1 could have seen the accused so clearly as to be able to identify him later. In his cross-examination, PW-1 stated that he could not tell as to what type of light was there at the spot as it was affixed outside the farm house. He did not mention the presence of any street light on the road where the accident took place. While the investigating officer PW-7 asserted that there were street lights at the spot, PW-2 another police witness, who had visited the spot alongwith PW-7 upon receipt of call regarding the accident, specifically admitted, "It is correct that no street light was there". Further, there are no photographs or other evidence on record to prove that there in fact were street lights or some other arrangement of lighting on the road in question and particularly at the place of the accident. Moreover, even assuming that there were street lights or some other source of light in place, whether the same were burning at the time of the incident and the spot where the incident took place was so located as to receive the light emanating from these sources were required to be made out by the prosecution, which has failed to do so. Therefore, there is not sufficient evidence to infer that there was sufficient light at the spot at the time of the accident to allow the complainant/PW-1 to have clear vision of the driver of the offending vehicle. Thus, the possibility that PW-1 had not seen the accused, or had not been able to see him clearly, cannot be ruled out.
14. Moreover, no judicial test identification parade was conducted in the present case. While the investigating officer PW-7 has stated that he did not get test identification parade conducted in the present case, State v. [ENTITY] in his examination-in-chief, PW-1 stated that, when he reached the police station in an ambulance, the investigating officer had lined up 6-7 persons (in his cross-examination, he mentioned the number as 10) and asked him to identify the accused. He deposed that the said persons had been called by the [ENTITY] himself. He further stated that the said persons were of varying ages and included the father of the accused. Firstly, such a proceeding/exercise in the nature of a test identification parade being carried out by the investigating officer without any permission from or information to the Court is beyond the legal framework. Not only this, as stated by PW-1 in his cross- examination, the investigating officer included persons of varying ages in those lined up by him for identification by the injured/complainant. Further, no record of the said proceedings has been placed alongwith the police report by the investigating officer. The said proceeding/exercise is not only a nullity but, in the Court's view, it also has the effect of prejudicing the accused because the only inference possible therefrom is that the accused had been shown to the complainant at the police station by the investigating officer. It may have been possible that but for the aforesaid proceedings carried out by the investigating officer, the complainant/PW-1 may not even have been able to identify the accused in the Court.
15. Learned Assistant Public Prosecutor for the State contended that if photo identification of the accused conducted by the investigating officer is permissible in law, as recognized in the case of [PRECEDENT], the proceedings involving physical identification of the accused State v. [ENTITY] lined up amidst other persons in the police station, as conducted by the investigating officer in the instant case, ought also to be deemed to be permitted by way of analogy. The decision in the aforesaid case is not applicable on the facts of the present case insofar as the issue of test identification parade or photo identification is concerned. In the said decision the accused had refused their TIP and thereafter photo identification was conducted in which they were duly identified by the witness. It was held by the Hon'ble Apex Court in the aforesaid decision that the factum of photo identification by the witness was a relevant and admissible piece of evidence. It further held that photo identification and TIP are only aides in the investigation and do not form substantive evidence. In the case at hand, however, no judicial TIP was got conducted by the investigating officer, who instead chose to conduct an exercise in the nature of a TIP in the police station itself, rather than in the presence of a Magistrate, that too flouting the precautionary principles which ought to be observed while conducting a test identification parade.
16. In [PRECEDENT], the Hon'ble Apex Court observed as under:
"8. In a case where the witness is a stranger to the accused and he identifies the accused person before the Court for the first time, the Court will not ordinarily accept that identification as conclusive. It is to lend assurance to the testimony of the witnesses that evidence in the form of an earlier identification is tendered. If the accused persons are got identified by the witness soon after their arrest and such identification does not suffer from any infirmity that circumstance lends corroboration State v. [ENTITY] to the evidence given by the witness before the Court. But in a case where the evidence before the Court is itself shaky, the identification before the magistrate would be of no assistance to the prosecution.
10. Therefore, in the absence of cogent evidence that PWs 1 and 2 by reason of the visibility of the light at the place of occurrence and proximity to the assailants had a clear vision of the action of each one of the accused persons in order that their features could get impressed in their mind to enable them to recollect the same and identify the assailants even after a long lapse of time, it would be hazardous to draw the inference that the appellants are the real assailants. There is no whisper in Ex. P-1 that there was some source of light at the scene. The omission cannot be ignored as insignificant. When the Investigating Officer has visited the scene, he made reference to the street lights, petrol bunk light etc. Whether the street lights and the petrol bunk/light had been burning at the time of the occurrence and the spot where the incidence happened was so located as to receive the light emanating from these sources are required to be made out by the prosecution. When this significant fact is left out in the earliest record, the improvement in the course of the investigation and trial could be of no avail. When no natural light was available and the street light was at a distance it is unlikely that the eyewitnesses by momentary glance of the assailants who surrounded the victim had a lasting impression and the chance of identifying the assailants without mistake. The credibility of the evidence relating to the identification depends largely on the opportunity the witness had to observe the assailants when the crime was committed and memorize the impression."
State v. [ENTITY]
17. Further, in [PRECEDENT], relied upon by the learned defence counsel, the Hon'ble High Court of Delhi in paragraph 13 observed:
"Accused was a person unknown to PW-1; PW-1 had seen to him for a passing moment. As per his version he had identified him in the court for the first time which was after two years; as per PW-9, PW-1 had identified the accused in the police station; in either eventuality such an identification is a valueless identification. Admittedly, no judicial TIP had been conducted in this case for which there is no explanation by the Investigating Officer. Notice under [SECTION] of the [ACT] had been served upon the owner but at the time when the owner [ENTITY] PW-8 had come into the witness box, this notice had not been put to him; PW-8 had nowhere been asked as to whether the reply appended on Ex. PW-9/G is the reply given by him. This is a serious omission. This omission coupled with the fact that no TIP had been conducted for which there is no explanation by the Investigating Officer; the fact that the eye- witness was not known to the accused; accused had fled away from the spot; accused had been apprehended three days later; accused had been produced in the police station where he was identified by PW-1; such an identification become a valueless piece of evidence under [SECTION] of the [ACT]; identity of the accused has not been established. Prosecution not having proved its case beyond all reasonable doubt, the fundamental rule of criminal jurisprudence being that the prosecution must stand on its legs; prosecution having failed to discharge this burden, accused is thus entitled to a benefit of doubt and the necessary consequences which flow from it."
State v. [ENTITY]
18. In [PRECEDENT] it was held:
"20. Thus, as [ENTITY] did not know the appellant before the occurrence and no Test Identification Parade was held to test his power of identification and he was also shown by the police before he identified the appellant in Court, his evidence becomes absolutely valueless on the question of identification. On this ground alone, the appellant is entitled to be acquitted. It is rather surprising that this important circumstance escaped the attention of the High Court while it laid very great stress in criticizing the evidence of Dr. [ENTITY] when her evidence was true and straightforward.
21. For these reasons, therefore, we are unable to place any reliance on the evidence of [ENTITY] so far as the identification of the appellant is concerned."
19. For the aforesaid reasons, in light of the observations made by the Hon'ble Apex Court and the Hon'ble High Court of Delhi in the aforesaid cases, the identification of the accused by PW-1 in the Court ought to be rejected. In view of the aforesaid, the testimony of PW-1, who is admittedly the only eye-witness, cannot be relied upon on the aspect that it was the accused who was driving the vehicle on the date, time and place of the accident in question.
20. The only other witness examined by the prosecution for establishing the identity of the accused in relation to the offence in question is PW-5 Sh. [ENTITY], who is the registered owner of the vehicle being motorcycle bearing no. HR 26AZ-6765. While PW-5 admitted his signatures on the reply Ex. PW5/A to the notice under State v. [ENTITY] [SECTION] of the [ACT] served upon him by the investigating officer, he stated that the reply had been written by him under the pressure of the investigating officer, who threatened him to falsely implicate him in another case. PW-5 deposed on oath that at the time of the accident, the aforesaid motorcycle was in his custody and the accused had no concern with the said vehicle or the present case. He was cross-examined by the learned Assistant Public Prosecutor for the State, however, PW-5 denied the suggestion that he had handed over his aforesaid motorcycle to the accused on 23.06.2010 or that the accident in question was caused by the accused. Thus, even the testimony of PW-5 does not support the prosecution story that the vehicle in question was being driven by the accused on the date, time and place of the accident in question.
21. Thus, the prosecution has failed to establish that it was the accused who was driving the offending vehicle on the date, time and place of the alleged accident.
Re: Identity of the offending vehicle
22. The case of the prosecution is that on the relevant date, time and place the accused was driving a motorcycle make Yamaha Fazer bearing no. HR-26AZ-6765. Perusal of Ex. PW1/A, which is the first statement of the injured/complainant/PW-1 recorded by the investigating officer on 24.06.2010, reveals that in the said statement the number of the vehicle has been mentioned as 'HR-26AJ-6765' rather than 'HR-26AZ-6765'. A supplementary statement of the complainant under [SECTION] [ACT] recorded by the investigating State v. [ENTITY] officer on 24.06.2010 itself is also on record. It is stated therein that the complainant had later on recalled that the correct number of the vehicle, which had hit against his motorcycle, was 'HR-26-AZ-6765' rather than 'HR-26-AJ-6765'. However, in his testimony in Court, PW-1 did not state that he had of his own later on recalled the correct number of the offending vehicle to be HR26AZ-6765 and told the same to the police. Rather, in his examination-in-chief, PW-1 stated that he had mentioned the number of the offending vehicle as 'HR-26-AJ-6765' in place of 'HR-26-AZ-6765' as at the time of accident the alphabet 'Z' was rubbed and was looking like 'J'. Immediately after the said statement in his examination-in-chief, PW-1 has stated that upon efforts by the police to trace the offending vehicle, the motorcycle bearing no. HR-26AJ-6765 was found to be of make Bajaj Pulsar and black in colour. From the aforesaid testimony of the complainant/injured, what is evident is that it was not that in the first instance he had wrongly mentioned the number of the offending motorcycle to the investigating officer on account of a lapse in his memory but because he had in fact noted the number of the motorcycle as 'HR-26AJ-6765' as the alphabet 'Z' had appeared to him as alphabet 'J'. What is further evident from his aforesaid testimony is that it was not that he had on his own account later on recalled the correct number of the offending vehicle as 'HR-26AZ-6765', but it was only after the police had informed him that the number of the offending vehicle i.e. HR-26AJ-6765 as stated by him did not match/tally with the other description (make and colour) of the said motorcycle as provided by him and probably also suggested that instead the number 'HR-26-AZ-6765' did tally with the other description State v. [ENTITY] of the offending vehicle, that the complainant/PW-1 had realized that he may not have noted down the number correctly. The aforesaid, if true, is based merely on a hit and trial approach which cannot form the basis of a conviction in criminal cases.
23. Further, PW-7, in his cross-examination, stated, "I had moved any application for obtaining the details of the owner of the offending vehicle i.e. motorcycle bearing no. HR 26 AZ-6765 to the transport authority, Gurgaon. I do not remember the date and time on which the said application was moved. However, the same was moved in the year 2010. I do not remember if copy of the aforesaid application was filed by me alongwith the challan. The aforesaid application was moved by me after the registration of the FIR. I cannot say if the transport authority is open during the night. I had recorded supplementary statement of the injured [ENTITY] at the police station however I do not remember the date on which the same was recorded." As per the statement of the complainant Ex. PW1/A, the same was recorded on 24.06.2010. The statement of the complainant under [SECTION] [ACT] was also purportedly recorded on 24.06.2010 itself. As stated by PW-7 in his cross-examination, the application for obtaining details of the offending vehicle was moved by him before the transport authority after the registration of the FIR. The FIR was registered at 08.45 PM. Accordingly, there could have been a time gap of only about three hours and fifteen minutes between the recording of aforesaid two statements. Had it been a plain case of lapse in memory of the complainant resulting in mentioning the number of the offending vehicle incorrectly at the first instance and thereafter stating it correctly in the State v. [ENTITY] supplementary statement under [SECTION] [ACT] having recalled the correct number, the story of the prosecution may have been believable. However, since PW-1 has stated that he had realized that the number had been wrongly noted down by him only after the efforts on part of the police to trace out the offending vehicle, it is difficult to believe the prosecution version that within the available three hours and fifteen minutes, that too late in the night, the investigating officer not only proceeded to the spot and conducted proceedings, as detailed by him and PW-4 in their respective testimonies, but also made inquiry regarding the offending vehicle from the concerned transport authority and thereafter recorded the supplementary statement of the complainant. It is more so, since it is common knowledge that public offices such as the office of a transport authority usually close by evening and are not open during night. Further, the investigating officer has not filed any copy of the application as allegedly moved by him before the transport authority. In view of the aforesaid, the entire prosecution story regarding the involvement of the motorcycle bearing no. HR26-AZ-6765 in the accident in question is rendered under a cloud of doubt.
Re: Manner in which offending vehicle was driven
24. PW-1, i.e. the injured and the sole eye-witness, deposed that the offending vehicle came from the front at a high speed and in a zig-zag manner.
25. As regards testimony of PW-1 that the offending vehicle was being driven in a zig-zag manner, the same does not find any State v. [ENTITY] corroboration. This Court is, therefore, hesitant in believing the sole testimony of PW-1 in that regard.
26. As regards the statement that the offending vehicle was being driven at a high speed, the same does not by itself tantamount to rashness or negligence as is required to be established for bringing home the charge under [SECTION] [ACT]. Reliance is placed upon the decision of the Hon'ble Supreme Court in [PRECEDENT], wherein it was observed as under:
"3. Both the trial court and the appellate court held the respondent guilty for offences under [SECTION], [SECTION] and [SECTION] [ACT] after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.
4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High Speed" is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be State v. [ENTITY] presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. 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". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged".
27. The aforesaid decision was also relied upon by the Hon'ble High Court of Delhi in [PRECEDENT], wherein it was held that a mere allegation of high speed would not tantamount to rashness or negligence. Thus, merely because the injured/complainant/PW-1 has alleged that the offending vehicle was being driven at a high speed does not lead one to the conclusion that there has been negligence on part of its driver, State v. [ENTITY] more so as 'high-speed' is a relative expression and there is no material on record either to show what was the speed limit on the road in question at the relevant time or the speed at which the offending vehicle was being driven at the relevant time.
28. Though, in his statement Ex. PW1/A recorded by the investigating officer, he has stated, " saamne se ek motorcycle chaalak apni motorcycle ko badi tez raftaari va gaflat va laaparvahi se road par idhar udhar chalaata hua aya ", in his cross examination, PW-1 stated that he did not know the meaning of the word 'Gaflat'.
29. In view of the above, in the opinion of this Court, the prosecution has not proved that at the relevant time the offending vehicle was being driven in a manner which was so rash or negligent as to endanger human life or personal safety of others or to cause hurt to any other person.
Re: Other factors for doubting the prosecution version
a) Contradictions in testimony of prosecution witnesses
30. There are material contradictions in the statements of the prosecution witnesses which create a reasonable doubt as to whether in fact an accident as alleged had even taken place.
31. There is inconsistency in the statements of the witnesses as to the time of the alleged accident. The complainant/PW-1 stood by his statement Ex. PW-1/A and deposed that the accident had occurred on 23.06.2010 at about 10.10 PM. PW-2 did not remember even the date, let alone the time, of the incident. PW-3 deposed that he was going State v. [ENTITY] from his village Daulatpur towards Najafgarh at about 09.30 to 10.00 PM when he found the injured/complainant lying on the patri near Aayudham Society after the accident had already taken place. The investigating officer PW-7 stated that the call had been received at 10.00 PM, i.e. even before the accident had taken place as per the testimony of PW-1 as well as his statement Ex. PW1/A, while, as per DD no. 34 A dated 23.06.2010 Ex. PW7/A, the call was received at 10.25 PM.
32. Further, while, as per the MLC Ex. PA-1 of the complainant/injured, the right leg of the complainant/injured was bleeding profusely, as per PW-4, he did not remember if there were any blood stains at the spot and PW-7 also stated that no blood stains could be seen at the spot.
33. While the supplementary statement of the complainant was recorded on 24.06.2012 and as per PW-1 he was discharged from the hospital after 8-9 days from the date of the accident, as per PW-7, he recorded the said supplementary statement of the injured/complainant at the police station. It is clear, thus, that either the statement of the complainant under [SECTION] [ACT] Is a manipulated document or that either one of the aforesaid witnesses have deposed falsely. In both cases, the circumstance goes against the prosecution.
b) Absence of independent witnesses
34. The only eye-witness cited and examined by the prosecution is the injured/complainant PW-1. The only other public witness cited and examined by the prosecution is PW-3 Sh. [ENTITY], a resident of State v. [ENTITY] the village to which the injured belongs, who admittedly knew the injured/complainant earlier as well and can, therefore, easily be termed as an interested witness.
35. In his cross-examination, PW-1 stated, "At the spot the bus of my village i.e. Daulatpur came and many passengers came to see me." He also deposed, "There are several farm houses on that road and there are several guards in each of the farm house." In his cross- examination, PW-2 deposed, "One [ENTITY] was situated near the spot. I do not know whether any guard was posted at [ENTITY] or not." PW-3 also stated that a crowd of 15-20 persons was present at the spot. Further, even PW-7 admitted, "It is correct that there are farm houses on either side of the place of accident. It is wrong to suggest that there are guards on the gates of the farm houses at the place of accident. Whether the road is busy or not depends on the time but entry is open throughout the day and night". It is correct that there is an old age [ENTITY] near the spot inhabited by human beings. The same is at distance of 30-40 meters from the spot." From the aforesaid testimonies of the prosecution witnesses, it is more than clear that several independent public witnesses, whether eye-witnesses to the alleged accident or otherwise, would have been readily available at the spot. None has, however, been admittedly either examined by the investigating officer under [SECTION] [ACT] nor cited/examined as a witness. The same casts a doubt on the truth of the prosecution story.
c) Delay in recording statement of injured/complainant
36. While the accident had allegedly taken place at about 10.10 PM State v. [ENTITY] on 23.06.2010, the statement of the injured/complainant Ex. PW1/A had been recorded only on 24.06.2010. The endorsement on the rukka bears the time of receipt as 08.45 PM on 24.06.2010. Thus, there had been considerable delay in recording of the statement of the complainant/injured. The explanation furnished by PW-1 is that though the police had visited the hospital on the day of the accident, his statement was not recorded on the same day as he was not in a position to make a statement. PW-7, i.e. investigating officer, stated in his examination-in-chief that he had moved an application for recording the statement of the injured but the injured refused to give statement due to heavy pain. However, neither is there any such application on record nor is there any opinion of the doctor declaring the injured unfit to make statement. Thus, the delay in recording of the statement of the injured and consequently in the registration of FIR have not been sufficiently explained.
d) Deficiencies in investigation
37. In his cross examination, PW-4 stated that no photographs of the spot were taken in his presence and the investigating officer PW-7 also admitted that no photographs of the place of accident were taken. The explanation furnished by PW-7 for not taking photographs of the place of accident was that no photographer was available. The same is a highly lame excuse for not getting the place of occurrence photographed.
38. While PW-4 stated that there were remains of broken indicator of a vehicle at the spot, the investigating officer PW-7 deposed that he did State v. [ENTITY] not seize anything except the motorcycle of the injured. It is not understood as to why the investigating officer would not collect/seize pieces of evidence such as broken parts/pieces of a part of a vehicle involved in an alleged case of an accident.
39. In view of the aforesaid detailed discussion, this Court finds it difficult to believe the prosecution version and hold the accused guilty of the offence punishable under [SECTION] of the [ACT]. The accused is granted the benefit of doubt and is accordingly acquitted of the offence punishable under [SECTION] of the [ACT].
II. Charge under [SECTION] [ACT]
40. For bringing home the charge under [SECTION] of the [ACT], the prosecution was required to prove that (1) grievous hurt had been caused to the injured/complainant, and (2) the same was caused by the accused by doing an act so rashly or negligently as to endanger human life, or the personal safety of others. As already discussed above, the prosecution has failed to establish beyond reasonable doubt that it was the accused who was driving the offending vehicle or caused the alleged accident. Further, the prosecution has also not established beyond reasonable doubt that the accused did any act so rashly or negligently as to endanger human life, or the personal safety of others. Thus, the accused is allowed the benefit of doubt and is acquitted of the offence punishable under [SECTION] of the [ACT].
CONCLUSION
41. Accordingly, the accused is acquitted of the offence punishable State v. [ENTITY] under [SECTION] [ACT] as well as [SECTION] [ACT].
42. File be consigned to record room after compliance of [SECTION] of the [ACT]
Announced in open Court on 28.05.2012 (MANIKA) Metropolitan Magistrate-12 (South-West), Dwarka Courts, New Delhi 28.05.2012 State v. [ENTITY]