IN THE COURT OF GAURAV RAO: METROPOLITAN MAGISTRATE:SAKET COURTS : NEW DELHI In Re: STATE VERSUS GAMBHIR SINGH RAWAT F.I.R. No: 496/07 U/[SECTION] [ACT] P.S. Defence Colony Date of Institution of Case : 31.01.2008 Judgment Reserved for : 03.07.2012 Date of Judgment : 03.07.2012 JUDGMENT:
(a) The serial no. of the case : R0108622008 (b) The date of commission of offence : 22.08.2007 (c)The name of complainant :[ENTITY] (d) The name, parentage, of accused : [ENTITY] s/o Sh. [ENTITY], B70, Pandav Nagar, Ganesh Nagar, New Delhi. Present Address : A1/3, Sawal Nagar, New Delhi. FIR No. 496/07 State Vs. [ENTITY] (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 : 03.07.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 22.08.2007 at JB Tito Marg, Mool Chand Flyover in front of PS Defence Colony within the jurisdiction of police station Defence Colony, accused [ENTITY] was found driving Tata Indica bearing No. DL3C U 5517 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so he struck against another car bearing no. DL2FES 0005 which resulted in the death of Sh. [ENTITY] 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 30.11.2010 notice u/[SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
FIR No. 496/07 State Vs. [ENTITY]
3. Today the matter is listed for PE however no PW is present. I have perused the records.
4. As per records the present prosecution was launched at the instance/on the basis of complaint of complainant SI [ENTITY]. However, as per records SI [ENTITY] is not an eye witness and he reached the spot only after the accident on receipt of DD no. 50B and thereafter prepared the rukka and got the FIR registered. Hence he is a formal witness only.
5. Record reveals that as per the charge sheet and the prosecution story one [ENTITY] was the eye witness of the accident. However unfortunately for the prosecution Sh. [ENTITY] expired on 03.05.2008 i.e. before he could be brought to the witness box. Same is reflected in proceedings dated 05.01.2012 as well as the summons of even date duly forwarded by SHO, P.S. Defence Colony along with attested copy of the death certificate of Sh. [ENTITY] issued on 09.05.2008. Absence of Sh. [ENTITY] proved fatal for the prosecution case. He was the star/material witness of the prosecution story and his absence has sounded death knell for the prosecution story as admittedly there is no other eye witness of accident dated 22.08.2007.
FIR No. 496/07 State Vs. [ENTITY]
6. Deposition of alleged eye witness Sh. [ENTITY] was sine qua non for establishing the charges against the accused as he could have proved how and under what circumstances, accident dated 22.08.2007, 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. In his absence the circumstances in which the accident occurred cannot be brought forward to the court. 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. Reliance can be placed upon "[PRECEDENT] and [PRECEDENT], [PRECEDENT], [PRECEDENT] and Prabhakaran v. State of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605
7. The prosecution proposed to examine 13 witnesses in all and the remaining witnesses are formal/official witnesses who came into the picture only after the alleged incident had occurred and information in this FIR No. 496/07 State Vs. [ENTITY] regard was received by them. None amongst them is the eye witness of the alleged incident.
8. Though name of 4 more public persons appeared in the list of witness as proposed by the prosecution at Sl. No. 2, 3, 4 and 7 however none amongst them is an eye witness. Though witness [ENTITY] whose name appeared at Sl. No. 2 was present at the spot however his statement which is on record makes it amply clear that he had not witnessed any accident i.e. was not an eye witness. The relevant portion of his statement which proves the same read as "mein apni car sadak divider ke doosri taraf chala kar jaa raha tha aur sadak per kaafi traffic chal raha tha issliye dekh nahi saka ki yeh accident kis karran weh kaise hua" i.e. "I was driving my vehicle on the other side of the divider, there was huge traffic and I could not see as to how and because of what reason the accident occurred".
9. Sh. [ENTITY] whose name appears at Sl. No. 3 had merely conducted the mechanical inspection of the vehicles in question.
10. Sh. [ENTITY] whose name appears at Sl. No. 4 was the FIR No. 496/07 State Vs. [ENTITY] crane driver who had also reached at the spot after the accident to remove the vehicles.
11. Sh. [ENTITY] whose name appears at Sl. No. 7 also expired during the pendency of trial i.e. on 24.05.2011 as it is evident from death certificate dated 01.06.2011. Nonetheless he was not the eye witness but had merely produced the accused before the police submitting that he was the driver of offending vehicle bearing no. DL3C U 5517 on the day of accident.
12. Testimony of above witnesses in the absence of the testimony of an eye witness shall not be sufficient to nail the accused.
13. Hence continuation of trial shall be an exercise in futility with no prospect of a result in favour of the prosecution. In all likelihood prosecution case shall fall flat. SA is accordingly dispensed with as prosecution could not bring any worthy incriminating material on record against the accused.
14. Prosecution case may be true but criminal jurisprudence says that FIR No. 496/07 State Vs. [ENTITY] 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 FIR No. 496/07 State Vs. [ENTITY] 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 on 03.07.2012 MM (SD)/Delhi FIR No. 496/07 State Vs. [ENTITY] F.I.R. No: 496/07 U/[SECTION] [ACT] P.S. Defence Colony 03.07.2012 Pr: Ld. APP for state.
Accused is present on bail along with his counsel. 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.
03.07.2012 FIR No. 496/07 State Vs. [ENTITY]