IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT State v. [ENTITY] FIR No.528/02 PS Paschim Vihar U/[SECTION] [ACT] JUDGMENT
[CASE NUMBER] Date of Institution : 22.03.2003 Date of Commission of Offence : 09.09.2002 Name of the complainant : SI [ENTITY] PS Paschim Vihar Name & address of the accused : [ENTITY] S/o [ENTITY] R/o F-5, Gali No.2, Rajender Park, Nangloi, Delhi Offence complained of : 279/304A [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date of reserve for judgment : 13.01.2016 Date of announcing of judgment : 14.01.2016 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section [SECTION] [ACT]
State v. [ENTITY] U/[SECTION] [ACT] 1/14 FIR No. 528/02 PS Paschim Vihar
2. The briefly stated story of the prosecution is that on 09.09.2002, information regarding an accident at B-2 Block, [ENTITY] was received at police station Paschim Vihar vide DD No.2A from wireless. As per the information, one lady was lying dead after having met with an accident from an unknown vehicle. SI [ENTITY] along with Ct. [ENTITY] proceeded to the spot. Upon reaching the spot, they found that on the road no.30, near bus stand, [ENTITY], one dead body of a lady was lying and tyre marks were present nearby. No eye witness was found at the spot. IO got the photographs of the spot clicked. On the basis of the rukka, FIR was recorded and investigation was carried out. During investigation, the son of the deceased [ENTITY] came to the spot and told the IO about the accident. On the basis of the same, the accused was arrested. Thus, the accused is alleged to have committed an offence under Section [SECTION] [ACT]
3. Charge sheet was filed against the accused in the court. Copy of chargesheet and other documents were supplied to him under [SECTION] [ACT] Notice under [SECTION] [ACT] was served upon the accused for offence under Section [SECTION] [ACT], vide order dated 09.03.2004, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined seven witnesses i.e (1) ASI [ENTITY] (2) [ENTITY] (3) [ENTITY] (4) SI [ENTITY] (5) [ENTITY] (6) ASI/Tech. [ENTITY] (7) State v. [ENTITY] U/s [SECTION] FIR No. 528/02 PS Paschim Vihar Retired SI [ENTITY].
5. PW-1 ASI [ENTITY] deposed that on 09.09.2002 she was posted as duty officer at PS Paschim Vihar. At about 10.25 am, Ct. [ENTITY] came to the police station with rukka sent by SI [ENTITY]. On the basis of the rukka, she registered the FIR No.528/2002 under [SECTION] [ACT]. Copy of FIR is Ex.PW1/A and endorsement of the witness on rukka is Ex.PW1/B.
6. PW-2 [ENTITY] deposed that he used to receive his mother at Green Apartment, Bus stop daily. He deposed that on 09.09.2002 at about 8.45 a.m he had gone to Green Apartment bus stop to receive his mother. After his mother came, he along with his mother started crossing the road. He had already crossed the road while his mother was still crossing the road. In the meanwhile, one bus on route no.567, from Lajpat Nagar to Nangloi came and while overtaking another bus which was already standing on the bus stop, hit his mother. Due to the accident, his mother [ENTITY] fell down on the ground and her body was crushed by the front and rear tyres of the bus from driver side. Witness deposed that he got nervous. He noted down the registration number of the bus which was DL-1PB-1614. He ran behind the bus but the driver managed to escape from the spot along with the bus. However, the driver had looked behind from the window and witness had seen his face. The witness correctly identified the accused in the court as the driver of the offending bus. He further deposed that he went back to his house to call his State v. [ENTITY] U/[SECTION] [ACT] 3/14 FIR No. 528/02 PS Paschim Vihar brother and father as he was shocked. In the meanwhile, someone called on 100 number. The police recorded his statement and prepared the site plan at his instance. He deposed that the accident was caused due to rash and negligent driving of the accused. Further examination in chief of this witness was deferred for want of case property i.e bus no. DL-1PB-1614. However, despite repeated efforts and despite service through DCP concerned, PW-2 [ENTITY] remained unserved and could not be examined further.
7. PW-3 [ENTITY] is the owner of the bus bearing no. DL-1PB-1614. He had got the bus released on superdari vide superdarinama Ex.PW3/A. Photograph of the bus is Ex.P1.
8. PW-4 SI [ENTITY] deposed that on 09.09.2002 he had received DD No. 2A. He along with Ct. [ENTITY] had gone to the spot of the accident. There they found the body parts of the dead body which was badly crushed by an unknown vehicle. On the hand of the deceased, the name [ENTITY] was written. IO took the photographs of the dead body and the spot. Enquiry was made but no one could tell about the incident. IO made endorsement on the DD entry which is Ex.PW4/A and prepared rukka and handed it over to Ct. [ENTITY] for registration of FIR. In the meanwhile, one person [ENTITY], son of the deceased came at the spot and narrated the entire incident to him. He recorded the statement of witness [ENTITY] and prepared the site plan Ex.PW4/B at his instance. The deceased was sent to the mortuary of SGM Hospital. Body after State v. [ENTITY] U/[SECTION] [ACT] 4/14 FIR No. 528/02 PS Paschim Vihar postmortem was handed over to the relatives vide handing over memo Ex.PW4/C. Information was received from the Computer Cell regarding the ownership of the bus. The witness served the notice under [SECTION] [ACT] upon the bus owner which is Ex.PW4/D. The owner replied that the accused [ENTITY] was driving the bus at the time of accident. The witness reached Barar Square, Delhi Cantt. along with the owner. On identification of the owner, the accused was arrested vide memo Ex.PW4/E. The badge number and driving license of the accused were seized vide memo Ex.PW4/F. He seized the photocopy of the permit, RC and insurance of the bus vide memo Ex.PW4/G. He seized the bus vide memo Ex.PW4/H. He moved an application for mechanical inspection of the bus which is Ex.PW4/I. Witness further deposed that on 12.09.2002 he had moved an application for Test Identification Parade of the accused which is Mark A. However, the accused refused to participate in Test Identification Parade. Witness recorded the statement of witnesses under [SECTION] [ACT] Thereafter, on being transferred from PS Paschim Vihar to PS Anand Parbat, he handed over the file to MHC(R). Photographs of the bus and six photographs of the dead body of the deceased was identified by the witness as Ex.P1 and P2 (colly). The witness was not cross examined by the accused.
9. PW-5 [ENTITY] had corroborated the testimony of IO. In the cross examination, witness stated that they had left the PS at about 9.15 a.m and had State v. [ENTITY] U/[SECTION] [ACT] 5/14 FIR No. 528/02 PS Paschim Vihar reached the spot in 15 minutes. They remained at the spot for about half an hour. Thereafter, he had gone to the PS for registration of FIR. He stated that witness [ENTITY] had came to the hospital where his statement was recorded by the IO.
10. PW-6 Retired ASI/Tech [ENTITY] had conducted the mechanical inspection of the bus bearing no. DL-1PB-1614. His detailed report is Ex.PW4/I. He deposed that no fresh damages were found on the vehicle.
11. PW-7 Retired SI [ENTITY] deposed that on 09.09.2002 he was posted as duty officer and his duty hours were from 8.00 a.m. to 8.00 p.m. He had recorded the DD No.2A which is Mark X. Original register containing DD No.2A could not be produced as record was destroyed by the order of DCP dated 28.07.2014. Copy of the order of DCP is Ex.PW7/A.
12. Vide separate statement dated 25.02.2015 under [SECTION] [ACT], the accused has admitted the genuineness of postmortem report no. 586/02 and TIP proceedings dated 12.09.2002.
13. After the prosecution evidence was closed, the statement of accused was recorded u/[SECTION] [ACT], wherein he denied all the allegations and pleaded innocence. The accused has denied that he was driving the bus no. DL-1PB-1614 on the alleged date, time and place. He has denied that any such accident had taken place with his bus. No defence evidence was led by the accused.
State v. [ENTITY] U/[SECTION] [ACT] 6/14 FIR No. 528/02 PS Paschim Vihar
14. I have heard the submissions made by the Learned Counsel for accused and Learned APP for state and carefully perused the evidence and the documents on record.
15. The Counsel for accused Ms. [ENTITY] has submitted that the prosecution has failed to prove its case beyond reasonable doubts. She has submitted that the testimony of sole eye witness PW-2 [ENTITY] cannot be read in evidence as his examination in chief could not be completed and the accused did not get any opportunity to cross examine the said witness. She has further submitted that PW-2 is a planted witness and his presence at the spot is highly suspicious. It is submitted that no son would leave the dead body of his mother at the spot and rush to the house instead of calling the police or the Ambulance. She has further submitted that IO has not obtained the MLC of the deceased which is highly suspicious as the MLC would have revealed that the witness [ENTITY] was not present with the deceased at the time of her admission in the hospital.
16. On the other hand, Ld. APP for State has submitted that even if the testimony of PW-2 cannot be read in evidence, testimony of PW-3 is sufficient to prove that the accused was driving the vehicle on the alleged date, time and place. He further submits that there is sufficient evidence on record to prove the charges against the accused and hence he be convicted for the alleged offence.
State v. [ENTITY] U/[SECTION] [ACT] 7/14 FIR No. 528/02 PS Paschim Vihar
17. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
18. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the [ACT]. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
19. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of "[PRECEDENT] as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has State v. [ENTITY] U/[SECTION] [ACT] 8/14 FIR No. 528/02 PS Paschim Vihar arisen it was the imperative duty of the accused person to have adopted Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
20. In the case at hand, the star witness of the prosecution is PW-2 [ENTITY] who had claimed that he was present at the spot along with his mother and had seen the accident with his eyes. However, examination of this witness was deferred for want of case property on 23.06.2012 and thereafter, despite repeated efforts, he could not be traced out. Accordingly, his examination in chief could not be completed nor the accused got a chance to cross examine the said witness.
21. Let us have a look at the relevant provisions of law for the purpose of this case.
Under [SECTION] [ACT], the three kinds of examination of a witness are laid down. Same is reproduced verbatim as below:-
"[SECTION]. Examination in chief- The examination of a witness by the party who calls him shall be called his examination-in-chief. Cross-examination - The examination of a witness by the adverse party shall be called his cross-examination. Re-examination- The examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination."
State v. [ENTITY] U/[SECTION] [ACT] 9/14 FIR No. 528/02 PS Paschim Vihar
22. [SECTION] [ACT], lays down the order of examination of a witness. It says that the witness shall first be examined in chief, then if the adverse party so desires cross examined, and then if the party calling him so desire re-examined.
23. Cross examination of a witnesses is a valuable right of the accused as it gives him a chance to (i) Establish one's own case (ii) to destroy adversary case (iii) to impeach the credit of concerned witness. In "[PRECEDENT], Hon'ble Supreme Court of India referred to the observation made by Lord [ENTITY], L. C. in Browne vs Dunn, "My lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to given an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses".
24. In [PRECEDENT], it was held by Hon'ble High Court of Madhya Pradesh the main object of cross examination is to find out the truth and detection of falsehoold in human testimony. It is designed either to destroy or weaken the force of evidence of a witness who has already given evidence in person or to elicit something in favour of the party, which he has not stated or to discredit him by showing form his past history and present demeanour that he is unworthy of credit."
State v. [ENTITY] U/[SECTION] [ACT] 10/14 FIR No. 528/02 PS Paschim Vihar
25. In "[PRECEDENT], it was observed by the Hon'ble High Court of Delhi;
"12. Any party is entitled to cross examination any other party who gives evidence, or his witnesses; and no evidence affecting a party is admissible against that party unless that latter has led an opportunity of testing its truthfulness by cross examination" (see Halsbury's Laws of England, 3rd Edition, Vol XV para 809).
19. Wigmore on Evidence Vol. V, third edition, Article 1367 (para 29) has highlighted the importance of the right of cross examination and has described it as beyond any doubt the greatest legal engine ever invented for the discovery of truth To allow any evidence to be treated admissible without giving a right of cross examination not only perpetuates injustice but is shocking to the judicial conscience apart from being manifestly illegal and perverse".
26. Hence, the right of cross examination is an opportunity to the adverse party to destroy the credibility of a witness or to shake the veracity of his statement, by showing that he is untruthful and unreliable or that he is hiding certain facts which he consequently admits as correct in his cross examination.
State v. [ENTITY] U/[SECTION] [ACT] 11/14 FIR No. 528/02 PS Paschim Vihar
27. In view of the above discussion and in light of the aforementioned case laws, court is of the view that the testimony of PW-2 cannot be read in evidence as the accused never got an opportunity to cross examine the said witness.
28. Even otherwise the presence of PW-2 at the spot as claimed by him appears to be highly suspicious. As per the prosecution, the accident had taken place in between 8.45 - 9.15 am. DD No. 2A regarding the accident was received in the police station at about 9.15 am. The PW-4 has deposed that he had prepared the rukka at about 10.10 am. As per the statement of PW-4, the eye witness [ENTITY] was not present at the spot till 10.10 am. The court finds it difficult to believe that PW-2 who was an adult male working as a driver, would have got panicked and ran away to his house without informing the police or calling the ambulance. Even if it is believed that he had rushed back home to call his brother or father, it is quite unlikely that he had not returned back to the spot even after one hour.
29. Another contention made by the Ld. APP is that testimony of PW-3 [ENTITY] who is the owner of the bus is sufficient to establish the guilt of the accused. However, in case titled as, "[ENTITY] vs State (Govt of NCT of Delhi)", 184 (2011) DLT 285, it was held by the Hon'ble High Court of Delhi that the accused is entitled to benefit of doubt when the sole eye witness has not identified him as the driver of the truck. It was observed that the registered State v. [ENTITY] U/s [SECTION] FIR No. 528/02 PS Paschim Vihar owner of the vehicle in question has failed to produce any record that the accused was driving the truck on the relevant day. It was held, "Otherwise also, a possibility cannot be ruled out that PW [ENTITY] was himself driving the truck at the time of accident and in order to save himself as the actual truck driver, he has falsely named the accused as the driver of the truck. Thus in my view the testimony of PW-5 is not sufficient to conclude beyond doubt that the revisionist [ENTITY] was driving the truck in question."
30. In view of the above case law, court is of the view that the testimony of PW-3 cannot be relied upon. No record regarding the employment of the accused with PW-3 as the driver has been produced. Chances cannot be ruled out that PW-3 is an interested witness and has deposed against the accused so as to save himself from the clutches of law.
31. Also, it is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
State v. [ENTITY] U/[SECTION] [ACT] 13/14 FIR No. 528/02 PS Paschim Vihar
32. In view of the above discussion and in light of above-mentioned case laws, the court is of the considered opinion that the charges against the accused have not been proved. The prosecution has failed to prove that the accused was driving the bus bearing no. DL-1PB-1614 in a rash and negligent manner. It has further not been proved that the death of the deceased [ENTITY] was a result of the rash and negligent act of the accused. Thus he is entitled to be acquitted. Accordingly, accused [ENTITY] s/o [ENTITY] is acquitted under Section [SECTION] [ACT].
33. As per [SECTION] [ACT], the accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED IN THE OPEN COURT ON 14th January 2016 ([ENTITY]) MM-07 (West), THC, Delhi State v. [ENTITY] U/[SECTION] [ACT] 14/14 FIR No. 528/02 PS Paschim Vihar