IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: SOUTH DISTRICT: SAKET COURTS: NEW DELHI In Re: STATE VERSUS KAVI PRAKASH F.I.R. No: 610/06 U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 15.01.2007 Judgment Reserved for : 06.11.2012 Date of Judgment : 06.11.2012 JUDGMENT:
(a) The serial no. of the case : 570/5/07 (b) The date of commission of offence : 04.08.2006 (c) The name of complainant : Sh. [ENTITY] s/o Sh. [ENTITY], R/o 25/8, [ENTITY], New Delhi. (d) The name, parentage, of accused : [ENTITY] s/o [ENTITY], R/o 113, Vill. Adchini, New Delhi. Permanent Address : As above (e) The offence complained of :U/[SECTION] [ACT] FIR No. 610/06 State Vs. [ENTITY] 1/9 (f) The plea of accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 06.11.2012 Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 04.08.2006 at about 12.15 a.m. at [ENTITY] Market, near Gurdwara, Green Park, New Delhi within the jurisdiction of police station Defence Colony accused [ENTITY] was driving Indica Car bearing no. DL3CU9046 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he hit against complainant Sh. [ENTITY] and caused simple injuries on his person 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 16.02.2009 notice u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
In order to prove charges against the accused prosecution so far examined only one witness.
A brief scrutiny of the evidence recorded in the matter is as under.
3. PW1 [ENTITY] deposed that he does not remember the exact FIR No. 610/06 State Vs. [ENTITY] 2/9 date of incident however in the year 2006 complainant/injured [ENTITY] was employed in his shop as a helper as he has a tea stall shop near Indian Oil Building, [ENTITY] and on the day of incident at about 12 in the night after clearing the utensils [ENTITY] went to Gurudwara to have water and when he was coming back from Gurudwara and crossing the road a white colour Indica car whose number he does not remember came from AIIMS side and hit [ENTITY] who was crossing the road. He deposed that as a result he fell down and received injuries and after the accident he along with the driver i.e. accused took the injured to hospital. He deposed that he got him treated there. He deposed that on next morning police came at his tea stall/shop and recorded his statement. He deposed that after 2/3 days of the incident the injured i.e. [ENTITY] left the job. He deposed that the accident occurred as the accused was driving the vehicle at a very fast speed and in a negligent manner.
4. During cross examination he stated that his tea stall is located at a distance of 2530 feets from the spot. He stated that the spot is visible from his tea stall. He stated that he was present at the tea stall when the accident occurred. He stated that he had seen the accident himself as he was standing on the road waiting for him. He stated that he cannot tell the speed of the car but it was driven at a very fast speed. He stated that there was no red light at the spot where the accident occurred. He stated that there was no zebra crossing at the spot. He stated that there was no sub way to cross the road. He stated that large FIR No. 610/06 State Vs. [ENTITY] 3/9 number of public persons had gathered at the spot. He stated that police had reached the hospital and apprehended the accused there. He stated that next day police came to him and recorded his statement. He stated that his statement was recorded at his tea stall. He stated that no statement of any other public person was recorded. He denied the suggestion that he had not witnessed any accident. He denied the suggestion that police had not recorded his statement. He admitted that his statement is not available on record i.e. not on the judicial file or on the police file. He denied the suggestion that he was deposing falsely being an interested witness. He denied the suggestion that the accident occurred due to fault of [ENTITY] as he was crossing the road from the spot where no red light or zebra crossing was there. Thereafter a court question was put to the witness regarding the speed of car to which he replied that he cannot tell at all what was the speed of car but it was driven at a fast speed. He cannot tell the speed.
5. This is as far as the prosecution evidence in the matter is concerned.
6. Today matter was listed for PE however, no PW was present. I have perused the records which reveal that complainant/injured [ENTITY] is not traceable for the last more than almost 3 years. I have gone through my detailed order dated 15.05.2012 as well as the report on numerous summons as have been issued against the complainant/injured since the framing of notice till FIR No. 610/06 State Vs. [ENTITY] 4/9 date. Despite ample opportunity prosecution failed to bring complainant/injured [ENTITY] in the witness box.
7. As per the prosecution story, it was complainant [ENTITY] who was allegedly injured on 04.08.2006 on account of rash and negligent driving by accused [ENTITY]. Hence, the deposition of the complainant/injured was sine qua non for establishing the charges against the accused as the complainant/injured could have proved how and under what circumstances, accident dated 04.08.2006 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. His testimony and the right of accused to cross examine/challenge his claim was essential to bring on record the exact sequences of events/surface the truth.
8. Complainant/injured [ENTITY] was the star/material witness of the prosecution case and his absence proved fatal and sounded death knell for the prosecution case as the testimony of alleged eye witness [ENTITY] i.e. PW1 did not inspire confidence/proved insufficient to bring home the guilt against the accused. To begin with the statement of PW1 was not part of charge sheet i.e. was neither available in judicial nor in the police file and hence serous doubts will always remained asto whether he had indeed joined the investigation FIR No. 610/06 State Vs. [ENTITY] 5/9 as claimed by the prosecution or not. More so when none of the material prosecution documents i.e. site plan, seizure memo of alleged offending car, DL of the accused, arrest memo of the accused etc bears his signature. Furthermore in view of deposition of PW1 it becomes real difficult to adjudge as to because of whose fault the accident in question occurred. Though no doubt PW1 claimed that the accident occurred as the accused was driving the vehicle in question at a fast speed however when quizzed about the exact speed during the cross examination as well as by way of court question he failed to give or tell about the approximate speed at which the vehicle probably was driven by the accused and which made him conclude that the vehicle was driven at a fast speed. It is a well settled law that speed alone is not the criteria to adjudge the rash and negligent driving. In the case at hand the records reveals that the accident allegedly occurred somewhere around 12.15 a.m. i.e. at dead night. I have perused the site plan, the spot of accident as shown in the site plan at point A near the divider. At point A there is no red light, no zebra crossing etc. i.e. the spot where the accident took place as shown in the site plan is not meant to be a pedestrian crossing. PW1 also during his cross examination admitted as "there was no red light at the spot where the accident occurred. There was no zebra crossing at the spot. There is no sub way to cross the road". If on such a busy road i.e. Aurbindo Marg a person crosses the road without there being a pedestrian crossing or a dedicated spot for the pedestrian to cross the road then he not only jeopardizes his own safety but also puts the others i.e. FIR No. 610/06 State Vs. [ENTITY] 6/9 traffic/vehicle moving on the road and their occupants at huge risk. In such like situations if an accident occurred it is real difficult to fix liability on the driver/vehicle which allegedly hit the pedestrian/caused the accident and it is equally to give a clean chit to the pedestrian who did not think twice before crossing the road from such a spot. Hence testimony of PW1 cannot be formed the basis of bringing home the guilt against the accused.
9. Prosecution proposed to examine 8 witnesses in all and those who remain 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 an eye witness of the accident. Accordingly continuation of trial shall be an exercise in futility with no prospect of a result in favour of prosecution. PE stands accordingly closed and SA is dispensed with as no worthy incriminating material has been brought forward against the accused by the prosecution.
10. 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".
11. 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 FIR No. 610/06 State Vs. [ENTITY] 7/9 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]).
12. 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. (AIR FIR No. 610/06 State Vs. [ENTITY] 8/9 1962 SC 605 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.
13. Prosecution has failed to discharge its onus. Accordingly, accused is entitled to acquittal.
14. I order accordingly.
Announced in the open ([ENTITY]) Court today MM (SD)/Delhi/06.11.2012 FIR No. 610/06 State Vs. [ENTITY] 9/9 F.I.R. No: 610/06 U/[SECTION] [ACT] P.S. Defence Colony 06.11.2012 Pr: Ld. APP for state. Accused is present on bail today. No PW is present.
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.
06.11.2012 FIR No. 610/06 State Vs. [ENTITY] 10/9 FIR No. 610/06 State Vs. [ENTITY] 11/9