IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS TAPAN BARMAN F.I.R. No: 360/05 U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 30.08.2005 Judgment Reserved for : 02.07.2011 Date of Judgment : 02.07.2011 JUDGMENT:
(a) The serial no. of the case : 143/2 (b) The date of commission of offence : 30.06.05 (c) The name of complainant : Sh. [ENTITY] S/o Sh. Fauzdar, R/o Amit Nagar, Kachchi Colony, Mandoli, Delhi. (d) The name, parentage, of accused : [ENTITY] S/o Sh. [ENTITY], R/o WZ538/4 Gali No. 15 Sadh Nagar, New Delhi Present Address: A 60 Gautam Apartment G M Park, New Delhi Present Address : As above. (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 02.07.2011
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 30.06.05 at about 6:45 PM on Mool Chand Flyover, New Delhi within the jurisdiction of police station Defence Colony, accused [ENTITY] was found driving a vehicle i.e. Car bearing no. DL3CH5568 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he struck against the motorcycle of the complainant [ENTITY] which resulted in simple injuries upon him and thus thereby the accused committed offence punishable u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT] accused was supplied the documents. Thereafter vide order dated 22.11.2005 notice u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial. Though in the notice offence has been mentioned as 338 [ACT] however, it seems to be a typographical error in view of the nature of injuries as mentioned in the notice as well as the nature of injuries as reflected in the MLC.
A brief scrutiny of the evidence recorded in the matter is as under:
3. PW1 [ENTITY] deposed that on 30.06.05 at about 09.47 Pm while he was working as a DO at PS Defence Colony, he recorded the case FIR No. 360/05. Carbon copy of the same FIR is Ex. PW1/ A and he made endorsement on the rukka as Ex. PW1/B.
4. PW2 [ENTITY] deposed that he does not remember the exact date but on the day of accident he was returning to his house on Motorcycle No. DL 8ST 0931. At about 6:45 Am when he reached near Moolchand flyover, one car came from the front side and hit him as result he fell down on the ground and became unconscious. He further deposed that PCR Van came and took him to the hospital. He further deposed that the said car was of dark colour and was Maruti 800. He further deposed that IO recorded his statement i.e. Ex. PW2/A. He deposed that he could not identify the accused and as he became unconscious after the accident and also he could not tell the car number.
5. This witness was cross examined by the Ld. APP for the State. During his cross examination he admitted that statement EX. PW2/A bears his signatures and that he could not see the car number or the person who was driving the car at the time of accident as immediately after the accident he became unconscious. He denied the suggestion that he had been won over by the accused and that was why he was intentionally not telling the contents of his statement or that he was not deliberately identifying the accused. He stated that his signatures were obtained on his complaint by the IO and the same was not read over to him.
6. During his cross examination by Ld. Defence Counsel he stated that his statement EX. PW2/ A was not read over to him and he signed the same as per the directions of the police officials. He admitted that the motorcycle No. 0931 driven by him had hit the car from behind. He stated that the driver of the car had applied sudden brakes, therefore, his motorcycle hit the backside of the bumper of the car. He stated that the police did not took the photographs of the vehicles involved in the accident. He denied the suggestion that the car in question was standing at Mool Chand Flyover due to the fact that the fuse of the car had gone off. He denied the suggestion that the car was stationary at the time of the accident or that he was driving the motorcycle at a fast speed and he could not control the motorcycle and went on to hit the stationary car. He denied suggestion that he was deposing falsely.
7. I have perused the records. Prosecution proposed to examine 7 witnesses in all and apart from PW2 those 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 of the incident.
8. However, as is evident from the deposition of PW2 [ENTITY] i.e. the complainant/injured he turned hostile and did not support the prosecution story on material count. His deposition proved to be of no help to the prosecution case and in fact during his deposition he gave a totally contrary statement as against what was recorded in his complaint i.e. Ex. PW2/A which had formed the basis of the present prosecution. The relevant portion of his deposition which threw serious doubts upon the prosecution case is reproduced here under as: " I did not identify the accused as I became unconscious after the accident. I also do not remember the car number. "
9. The relevant portion of his cross examination by Ld. APP for the State is reproduced here under as: " It is correct that I could not see the car number or the person who was driving the car at the time of the accident as immediately after the accident, I because unconscious However, the signatures were obtained by the IO on my complaint and at that time I had not read over the same."
10. The relevant portion of his cross examination by Ld. Defence Counsel is reproduced here under as: " It is correct that the motorcycle No. 0931 being driven by me had hit from behind the car The driver of the car had applied sudden brakes, therefore, motorcycle was hit at the middle back side of the bumper of the car."
11. Thus, it is not clear from the deposition of this witness as to under what circumstances, the accident occurred. He gave a version which is totally contrary to the contents of Ex.PW2/ A. In fact in his examination in chief as well as in his cross examination he narrated two contrary circumstances, in which the accident occurred. If his deposition is read in its true import than the blame of the accident shifts from the accused to this witness i.e. the complainant/ injured i.e. PW2. Reason being that PW2 admitted that he had hit the car of the accused from the backside. Much contrary to this in his examination in chief he claimed that it was the vehicle of the accused which came from the front side and hit his motorcycle. This casts serious doubts upon the demeanor of the witness. He has rendered himself untrustworthy/unreliable.
12. Neither the identity of the accused as the driver of the vehicle in question nor the circumstances in which the accident occurred could be proved from his deposition. At most it only stands proved that on 30.06.05 an accident had occurred at Mool Chand Flyover, however, the exact circumstances, in which the accident occurred are not clear. To bring a case within the purview of [SECTION] [ACT], the prosecution has to prove that the accident was a result of rash and negligent driving by the accused. What is rash/negligence varies from case to case and has to be proved through direct/positive evidence. There cannot be any fixed 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] [ACT]. In the case at hand there is no evidence whatsoever to even slightly suggest that the accused was driving the car in a rash and negligent manner or that it was the rash and negligent driving of the accused which led to the accident. As discussed above the witness did not inspire confidence and his statement i.e. PW2/A cannot be relied upon. Reliance can be placed upon "[PRECEDENT] and [PRECEDENT], [PRECEDENT], [PRECEDENT] [PRECEDENT]
13. Once the alleged eye witness/complainant/ injured of the accident turns hostile/does not support the prosecution story and there is no other eye witness on record who could prove because of whose fault/negligence the accident occurred, a person cannot be convicted U/[SECTION] [ACT] as in that scenario the essential ingredients of [SECTION] [ACT] regarding rash and negligent driving could not be established ([PRECEDENT]).
14. 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".
15. 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]).
16. 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 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.
17. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
18. I order accordingly.
Announced in the open ([ENTITY]) Court MM (SD)/Delhi/02.07.2011 F.I.R. No: 360/05 U/[SECTION] [ACT] P.S. Defence Colony 02.07.2011. Pr: Ld. APP for state.
Accused is present on bail along with his counsel.
Matter is at the stage of PE , however, no PW is present today. As far as prosecution evidence is concerned record reveals that no worthy incriminating material has been brought forward against the accused so far. The complainant/ injured has turned hostile and there is no other eye witness.
In these circumstance, no purpose shall be served with further continuation of the trial.
PE is accordingly closed.
SA is dispensed with as the same shall be an empty formality 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 (SD)/Delhi.
02.07.2011