IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:SAKET COURTS : NEW DELHI In Re: STATE VERSUS SALAMAT ALI F.I.R. No: 425/03 U/[SECTION] [ACT] P.S. Sarita Vihar Date of Institution of Case : 17.08.2004 Judgment Reserved for : 03.07.2013 Date of Judgment : 03.07.2013 JUDGMENT:
(a) The serial no. of the case : 1003/2/10 (b) The date of commission of offence : 01.09.2003 (c)The name of complainant : [ENTITY] s/o [ENTITY] (d) The name, parentage, of accused : [ENTITY] s/o [ENTITY], R/o House no. G331, New Basti, Okhla Village, Jamia Nagar, New Delhi. Present Address : As above (e) The offence complained of : U/[SECTION] [ACT] (f) The plea of accused : Pleaded not guilty FIR No. 425/03 St. Vs. [ENTITY] 1/7 (g) The final order : Acquitted (h) The date of such order : 03.07.2013
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 01.09.2003 at about 06.30 p.m. at Service Road, in front of F Block, Shahin Bagh, New Delhi within the jurisdiction of police station Sarita Vihar, accused [ENTITY] was found driving a truck bearing no. DL1G1199 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he hit against a pedestrian namely [ENTITY] which resulted in simple injury to 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] accused was supplied the documents. Thereafter vide orders dated 15.09.2004 notice u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
3. So far prosecution has examined only three witnesses.
4. PW1 [ENTITY] deposed that he is the registered owner of vehicle no. DL1G1199 which he had taken on superdari. He deposed that at the time of FIR No. 425/03 St. Vs. [ENTITY] 2/7 accident accused was driving the vehicle in question.
5. PW2 ASI [ENTITY] deposed that on 01.09.2003 he was posted as Duty Officer at PS Sarita Vihar and on that day he recorded the case FIR i.e. Ex. PW2/A on receipt of rukka from Constable [ENTITY] sent by SI [ENTITY]
6. PW3 [ENTITY] deposed that on 02.09.2003 he conducted mechanical inspection of truck no. DL1LG1199 at PS Sarita Vihar and his report is Ex. PW3/A.
7. During his cross examination he stated that when he inspected brake of vehicle and other mechanical system were found ok.
8. Today matter was listed for PE however, no PW was present. Record reveals that complainant/injured [ENTITY] is not traceable for the last more than almost 7 years. Today also, summons as were issued against him have been received back with the report that he is not residing at the said address. I have also gone through report on summons issued since the framing of notice i.e. 15.09.2004 till date as well as have gone through the orders dated 28.06.2011, 29.10.2011, 31.01.2012, 21.08.2012, 31.10.2012 etc. passed by the Ld. Predecessor of this court as well as orders dated 25.03.2013 and 29.05.2013 passed by me. The summons were duly forwarded by the DCP/SHO/IO concerned.
FIR No. 425/03 St. Vs. [ENTITY] 3/7
9. Hence, despite numerous opportunities, prosecution failed to examine the complainant/injured/eye witness . Prosecution was granted ample opportunity to produce the said witness however, prosecution failed to bring him on record.
10. As per the prosecution story, it was [ENTITY] who was allegedly injured on 01.09.2003 on account of rash and negligent driving by accused [ENTITY]. Hence, the deposition of complainant/eye witness [ENTITY] was sine qua non for establishing the charges against the accused as he could have proved how and under what circumstances, accident dated 01.09.2003 occurred, who was driving the vehicle involved at the time of accident, because of whose fault the accident occurred i.e. whether due to rash and negligent driving of the accused as alleged by the prosecution or otherwise. He was the star/material witnesses of the prosecution case and in his absence the prosecution shall not be able to prove the alleged accident or the identity of the accused leave apart rash and negligent driving. His absence thus proved fatal and sounded death knell for the prosecution case as admittedly there is no other eye witness of the accident. Reliance can be placed upon "[PRECEDENT] and [PRECEDENT], [PRECEDENT], [PRECEDENT] Prabhakaran v. State of Kerala, (SC) 2007(3) FIR No. 425/03 St. Vs. [ENTITY] 4/7 R.C.R.(Criminal) 605
11. Prosecution proposed to examine 9 witnesses in all and 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.
12. Accordingly continuation of trial in the present matter which is already 10 years old shall be an exercise in futility as in all likelihood the prosecution story shall fall flat. PE is accordingly closed. As far as prosecution evidence is concerned record reveals that no worthy incriminating material has been brought forward against the accused so far. Accordingly SA is dispensed with as the same shall be an empty formality.
13. 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".
14. 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 FIR No. 425/03 St. Vs. [ENTITY] 5/7 so provided by any statute. This general burden never shifts, it always rests on the prosecution. ( [PRECEDENT]).
15. 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.
FIR No. 425/03 St. Vs. [ENTITY] 6/7
16. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
17. I order accordingly.
Announced in the open ([ENTITY]) Court today MM (SE)/Delhi/03.07.2013 FIR No. 425/03 St. Vs. [ENTITY] 7/7 F.I.R. No: 425/03 U/[SECTION] [ACT] P.S. Sarita Vihar 03.07.2013 Pr: Ld. APP for the State.
Accused is present on bail today with his counsel.
No PW is present.
Process to complainant again received back with the report unserved. 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 (SE)/Delhi.
03.07.2013 FIR No. 425/03 St. Vs. [ENTITY] 8/7