IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS MANGAL RAM F.I.R. No: 81/99 R0131941999 U/[SECTION] A [ACT] P.S. Nangloi Date of Institution of Case : 10.09.1999 Judgment Reserved for : 25.08.2010 Date of Judgment : 25.08.2010 JUDGMENT:
(a) The serial no. of the case : 288/1/08 (b) The date of commission of offence: 30.01.1999 (c) The name of complainant: Sh. [ENTITY] S/o [ENTITY], R/o RZ C-186, Nihal Vihar, Nangloi, Delhi.
(d) The name, parentage, of accused: Sh. [ENTITY] S/o Sh. [ENTITY], R/o A-I/31 Sultanpuri Delhi.
Permanent Address : Village Badoli, PS Rajgarh, Distt. Alwar, Rajasthan.
(e) The offence complained of : U/[SECTION] A [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 25.08.2010 FIR No. 81/99 1/
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 30.01.1999 at about 4.30 pm at road in front of H. No. 98, H Block, Nihal Vihar, Nangloi, Delhi within the jurisdiction of police station Nangloi, accused [ENTITY] was driving a truck bearing registration no. HR-46-8984, in a rash and negligent manner thereby endangering human life and safety of others and while driving so he hit against a cycle and caused grievous injuries upon [ENTITY] and caused death of one [ENTITY] s/o [ENTITY] and thereby the accused committed offence punishable u/[SECTION] A [ACT].
2. Charge sheet filed in the court and in compliance of [SECTION] accused was supplied the documents. Thereafter vide order dated 11.12.2001, notice u/s [SECTION] framed against accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution so far examined seven witnesses.
A brief scrutiny of the evidence recorded in the matter is as under.
4. PW1 [ENTITY] deposed that on 30.01.1999 he took the photographs of the truck and the cycle at accidental spot i.e H Block, opposite H. No. 98, Nihal Vihar, Nangloi as Ex. P1 to P3 and their negatives are Ex.P4 to P6.
FIR No. 81/99 2/
5. PW 2 [ENTITY] deposed that on 30.01.1999 he was posted at PS Nangloi as Duty Officer and on that day on receipt of rukka sent by ASI [ENTITY] through Ct. [ENTITY], he registered the case FIR no. 81/99 Ex. PW2/A and after registration the case, he handed over the copy of FIR and original ruqqa to Ct. [ENTITY] 6 PW3 [ENTITY] deposed that on 01.02.1999 he conducted the mechanical inspection of truck no. HR-46-3984 at the request of IO and gave his detailed report as Ex. PW3/A. He further deposed that there were no fresh damages.
7 PW4 Dr. [ENTITY] deposed that on 31.01.1999 at about 10:00 a.m he conducted the postmortem on the body of [ENTITY] s/o [ENTITY] sent by ASI [ENTITY]. He further deposed that he observed multiple injuries including fracture of bones, ribs and laceration of lung. He further deposed that injuries were ante mortem in nature and possible in vehicular accident. He further deposed that death was due to hemorrhagic shock resulting from injuries. His report is Ex. PW4/A. 8 PW5 Ct. [ENTITY] deposed that on 30.01.1999 while he was posted at Police Post Nihal Vihar, he received a call at about 4:45 p.m. vide DD no. 15 and he along with ASI [ENTITY] reached at the spot there they found a truck no. HR-46-8984 (half body) in between the road. He further deposed that a cycle was also lying on the road and injured had already been removed by the police. He further deposed that ASI went to the hospital and he FIR No. 81/99 3/ remained present at the spot. He further deposed that prior to that photographs were also taken and after some time, IO came back at the spot and handed over him a ruqqa and sent him to PS for registration of the FIR. He further deposed that he came back at the spot along with ruqqa and copy of FIR and same was handed over to IO. He further deposed that driver of the said truck also came with the IO and IO seized the accidental cycle and truck and prepared seizure memos Ex. PW5/A and Ex. PW5/B. He further deposed that DL and documents of offending vehicle were seized vide seizure memo Ex. PW5/C and IO arrested accused and personal search of accused was conducted vide Ex. PW5/D. 9 PW6 [ENTITY] deposed that he has brought the attested copy of MLC no. 00750 of an unknown prepared by Dr. [ENTITY]. Same is Ex. PW6/A. 10 During his cross examination he admitted that he has no personal knowledge regarding the present MLC. He admitted that MLC was neither signed nor written by doctor in his presence.
11 PW7 SI [ENTITY] deposed that on 04.07.1999 he received the case file of the present case and on 15.07.1999 he received the MLC Ex PW7/A of injured [ENTITY] and PM report of deceased [ENTITY] Ex. PW7/B. He further deposed that on account of nature of injuries being grievous of accused [ENTITY] [SECTION] [ACT] was added. He deposed that he prepared the challan and file the same in the court.
FIR No. 81/99 4/ 12 During his cross examination he stated that he does not remember
today the name and designation from whom he collected the above mentioned two documents. He denied the suggestion that he cannot tell the same as he had not himself collected the above mentioned documents. He denied the suggestion that he was deposing falsely.
13 Record perused. Matter pertains to year 1999 i.e. 11 years old and is still pending at the stage of PE. As per the prosecution story FIR was lodged on the complaint one [ENTITY] s/o [ENTITY] and it is the prosecution case that he was one of the injured/eye witnesses in the alleged accident dated 30.01.1999 in which one person namely [ENTITY] had lost his life due to rash and negligent driving by accused [ENTITY] and the complainant received grievous injuries.
14 However, despite numerous opportunities prosecution failed to bring the said witness/complainant on record. Report on the summons dated 03.09.2002, 10.07.2006, 25.01.2007, 18.09.2007, 06.03.2008, 17.03.2009, 06.07.2009, 24.09.2009, 18.02.2010 and 21.05.2010 reveals that the complainant is not traceable. These summons have been duly forwarded by the SHO/IO concerned.
15. Apart from complainant [ENTITY], there is no other eye witness to the alleged accident. Therefore, the deposition of eye witness/complainant [ENTITY] (who himself was injured in the accident as per the prosecution case) was FIR No. 81/99 5/ sine qua non for establishing the charges against the accused as he could have proved as to who was driving the offending vehicle at the time of accident, the manner in which the accident occurred i.e. whether the same occurred due to rash and negligent driving of the offending truck by the accused driver i.e [ENTITY] or otherwise. In the absence of the eye witness neither the accident nor the identity of the accused as the driver of the offending vehicle can be established leave apart rash and negligent driving.
16. Prosecution proposed to examine 11 witnesses in all. Remaining witnesses examined and proposed to be examined are formal/official witnesses who came into the picture only after the alleged accident had occurred and information in this regard was received by them. None amongst them is the eye witness as conceded by the Ld. APP.
17. Therefore, continuation of trial shall be an exercise in futility with no prospect of a result in favour of the prosecution.
18. Even if for arguments sake it is believed though not proved that the accident involved the truck in question in the absence of any positive material/direct evidence there cannot be any presumption that it was the accused who was driving the truck at the time of accident. Similarly, there cannot be any presumption that the accident was caused by the accused while driving the said truck in a rash and negligent manner. What is rash/negligence varies from case to case and there cannot be any fixed FIR No. 81/99 6/ parameters for judging rashness/negligence. At the same time, there cannot be any assumption/presumption of the same. Even if the accident is proved unless rash and negligent driving stands proved a person cannot be convicted U/[SECTION] A [ACT]. Reliance can be placed upon "[PRECEDENT] and [PRECEDENT], [PRECEDENT] and [PRECEDENT].
19. Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true" and "must be true".
20. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. ([PRECEDENT]).
21. 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 presumed, subject of FIR No. 81/99 7/ course to some statutory exceptions. It was observed in [PRECEDENT] that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In [PRECEDENT] it was again held that in criminal cases burden is always is on prosecution and never shifts. In [PRECEDENT] and [PRECEDENT] it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. ([PRECEDENT] relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
22. Prosecution has failed to discharge its onus. Accused is entitled to acquittal.
23. I order accordingly.
([ENTITY]) MM (W)/Delhi 25.08.2010 FIR No. 81/99 8/ FIR No. 81/99 9/ PS Nangloi Pr: Ld. APP for state. Accused is present on bail. No PW is present. Record perused.
Matter pertains to year 1999. Sole eye witness of the prosecution story i.e complainant/injured [ENTITY] is not traceable. Same is reflected in report on summons dated 03.09.2002, 10.07.2006, 25.01.2007, 18.09.2007, 06.03.2008, 17.03.2009, 06.07.2009, 24.09.2009, 18.02.2010 and 21.05.2010. These summons have been duly forwarded by the SHO/IO concerned.
Remaining witnesses are formal in nature. There is no other eye witness of the accident. Same has been conceded by the Ld. APP after going through the case file. Prosecution was granted ample opportunity to bring the said witness on record but it failed to do so. Accused has already suffered the agony of protracted trial for 10 long years and trial cannot be allowed to go on till eternity as same shall be in violation of the fundamental right to speedy trial of the accused. Reliance may also be placed upon the law laid down in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
Continuation of trial shall be an exercise in futility with no prospect of a result in favour of prosecution.
Accordingly, PE stands closed and SA dispensed with as no worthy incriminating material has been brought forward against the accused.
Vide my separate judgment announced today in the open court, accused has been acquitted of the charges in the present case.
Bail bond cancelled, surety discharged, endorsement if any be cancelled, original documents be returned as per rules and procedure.
File be consigned to Record Room.
([ENTITY]) MM (w)/Delhi.
25.08.2010 1/