IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS SANJEEV KUMAR F.I.R. No: 253/06 U/[SECTION] [ACT] P.S. Nangloi Date of Institution of Case : 16.09.2006 Judgment Reserved for : 29.10.2010 Date of Judgment : 29.10.2010 JUDGMENT:
(a) The serial no. of the case : 1690/1
(b) The date of commission of offence : 17.03.2006
(c) The name of complainant : Sh [ENTITY].s /o Sh. Prem Ballab Bhatt, r/o 693, Kotla Vihar, Phase-II, Nangloi, Delhi
(d) The name, parentage, of accused : [ENTITY] s/o Sh.
Prahlad Singh, r/o Village Tughana, Post: Haprolli, Distt. Baghpat, U.P. 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 : 29.10.2010
Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 17.03.06 at about 01:30 pm at Nangloi Najafgarh Road, Kotla Vihar Phase-II, Delhi within the jurisdiction of PS Nangloi, accused [ENTITY] was found driving motorcycle bearing no. UP-17-A-7133 in a rash and negligent manner so as to endanger human life and safety of others and while driving so he hit a child [ENTITY] s/o Sh. [ENTITY] and caused greivious injuries upon him and thus thereby the accused committed offence u/[SECTION] [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] accused was supplied the documents. Thereafter vide order dated 22.05.2008 notice u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
3. Matter is pending at the stage of PE however, till date prosecution has not examined any witness.
4. Record perused.
5. In order to prove its case and establish the guilt of the accused the prosecution has to prove that the injured [ENTITY] son of the Complainant Sh. [ENTITY] received grievous injuries on account of rash and negligent driving by accused [ENTITY].
6. After hearing the rival contentions raised at bar as well as on careful scrutiny of the material on record, I am of the considered opinion that the prosecution has failed to bring home the guilt against the accused.
7. Record reveals that prosecution proposed to examine 08 witnesses in all which included the complainant Sh. [ENTITY] at whose instance the present prosecution was lodged however, despite numerous opportunities the prosecution failed to bring the said complainant in the witness box.
8. Deposition of the complainant Sh. [ENTITY] was sine qua non for establishing the charges against the accused as, as per the prosecution story it was his son [ENTITY] who was injured in the accident dated 17.03.06 and thus he could have proved, as to because of whose negligence the accident occurred i.e. whether the same occurred due to rash and negligent driving by the accused or otherwise. He was the star/ material witness and his absence has proved fatal for the prosecution story.
9. Apart from complainant [ENTITY] his son [ENTITY] who was injured in the accident could have also thrown some light upon the alleged accident dated 17.03.06 however even he is not traceable. His absence sounded death knell for the prosecution story which otherwise suffered from the absence of complainant himself.
10. Remaining witnesses are formal in nature and they came in the picture only after the accident occurred and information regarding the same was received by them. Their deposition in the absence of the complainant or the injured shall not be sufficient to bring home the guilt against the accused.
11 Therefore in the absence of any positive material/direct evidence there cannot be any presumption that the accident was caused by the accused while driving the offending motorcycle in a rash and negligent manner. 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]. Reliance can be placed upon "[PRECEDENT] and [PRECEDENT], [PRECEDENT] and [PRECEDENT].
12. 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".
13. 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]).
14. 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 Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 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.
15. Prosecution has failed to discharge its onus. Neither the incident nor the identity of the accused leave apart his negligent omission as alleged by the prosecution could be proved. Accused is entitled to acquittal.
16. I order accordingly.
Announced in the open Court on 29.10.2010 ([ENTITY]) MM (W)/Delhi.
PS Nangloi Pr: Ld. APP for state (substitute).
Accused is present on bail.
No PW present apart from IO ASI [ENTITY] perused.
I have also gone through my orders dated 11.08.09 as well as 16.09.10. Summons to witness/complainant [ENTITY] again received back with the report that they are not traceable. These summons have been duly forwarded by the SHO/IO concerned. Today separate statement of ASI [ENTITY] has also been recorded in this regard.
The present complaint was lodged at the instance of complainant [ENTITY] however as discussed he is not traceable.
Prosecution proposed to examine 08 witnesses in all. Remaining witnesses as 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.
Matter is 04 years old and prosecution was granted ample opportunity to examine all its witnesses, however, it failed to do so. Accused has already suffered the agony of protracted trial for 04 long years. Right to speedy trial is a fundamental right. Speedy justice is the mandate of the [ACT]. Every citizen has a right of speedy trial of the case pending against him. The speedy trial was considered also in public interest as it serves the social interest also. No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of [SECTION]. (1993 AIR SCW 248). Reliance may also be placed upon the law laid down in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT].
In these facts and circumstances, PE stands closed.
SA is dispensed with as the same shall be an empty formality as no worth incriminating material has been brought forward against the accused.
Vide my separate judgment announced today in the open court, accused [ENTITY] 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.
29.10.2010