In the Court of Sh. [ENTITY] : Chief Metropolitan Magistrate, North District, Rohini Courts, Delhi [CASE NUMBER] (Old No. 555/2/2001) Unique ID No.: 02401R0174702001 FIR No. 192/2001 Police Station : Alipur In the matter of: [ENTITY] VERSUS [ENTITY] S/o Sh. Phool Singh, R/o Village Ankhir, Post Old Faridabad, P.S. N.I.T. Faridabad, Haryana. Accused Date of Institution : 16.10.2001 Date of Arguments: 19.8.2013 Date of Judgment : 29.8.2013 JUDGMENT:
[CASE NUMBER] Page no. 1 of 11 On 16.10.2001 a police report, giving rise to the present case, was put up by the state through the officer in charge of police station Alipur, Delhi before the learned predecessor with a view to take cognizance of offences punishable under [SECTION] and [SECTION] of the [ACT] ([ACT]) and to proceed against accused [ENTITY] for his having committed the said offences. It was reported in the said police report that on 31.5.2001 in pursuance of Daily Diary (DD) entry no. 22A, Sub Inspector (SI) [ENTITY] (PW11) alongwith Constable [ENTITY] (PW3) reached at Mukhmelpur Crossing, G.T.K. Road, Alipur, Delhi, where an accident was informed to have occurred; that on the spot a truck (dumper) bearing registration no. HR 38D 4146 and a cycle were found in accidental condition and no witness was found and the injured was already removed to the Trauma Center; that having reached at the Trauma Center the Medico Legal Case (MLC) report of the injured, who subsequently died without making any statement to the police, was obtained by SI [ENTITY] and subsequently by sending a written information (Ex. PW11/A), through Constable [ENTITY], to the Police Station first information report (FIR) no. 192/2001 (Copy: Ex. PW2/A) was got registered and the investigation was undertaken; that during the investigation eye witness [ENTITY] (PW8) met the investigating officer (IO), who was examined by the IO; that during the investigation the owner of offending vehicle no. HR 38D 4146 produced the accused, claimed to be the driver of the vehicle, who was identified by Sh.
[CASE NUMBER] Page no. 2 of 11 [ENTITY] as the driver of the offending vehicle. It was further stated in the report that the matter was investigated and during the investigation it was found that due to the injuries suffered by the victim, by the acts of the accused, he had died. It was also stated in the police report that after investigation it was concluded that accused [ENTITY] had committed offences punishable under [SECTION] and [SECTION] of [ACT]. It was also stated in the police report that the accused be put on trial and be punished for having committed the said offences.
2. On the police report my learned predecessor having taken cognizance of the offences, found sufficient grounds to proceed against the accused; and having admitted him to court bail complied with the provisions of [SECTION] of the [ACT] ([ACT]).
3. Subsequently on 31.5.2002 after hearing the accused a notice of accusation under [SECTION] of [ACT] was framed whereby he was charged with the commission of offences punishable under [SECTION] and [SECTION] of [ACT]. The notice of accusation was read over and explained to the accused to which he did not plead guilty and claimed trial.
4. In support of its case the prosecution got examined PW1 [ENTITY], PW2 Assistant Sub Inspector (ASI) [ENTITY], PW3 Constable [ENTITY], PW4 Constable [ENTITY], PW5 Dr. [ENTITY], Chief Medical Officer (CMO), Trauma Center, PW6 Smt. [ENTITY], [CASE NUMBER] Page no. 3 of 11 Medical Record Clerk, Shusrut Trauma Center, PW7 [ENTITY], PW8 [ENTITY], PW9 Constable [ENTITY], PW10 Retired ASI [ENTITY], PW11 SI [ENTITY], PW12 [ENTITY] and PW13 Dr. [ENTITY]. During the examination of the prosecution witnesses documents Ex. PW1/A1 to Ex. PW/A8, Ex. PW2/A, Ex. PW4/A to Ex. PW4/D, Ex. PW5/A, Ex. PW6/A, Ex. PW7/A, Ex. PW7/B, Ex. PW9/A, Ex. PW10/A, Ex. PW11/A to Ex. PW11/D, Ex. PW12/A, Ex. PW12/B and Ex. PW13/A were also tendered in evidence
5. On 25.8.2011, in the wake of the submissions made by the Assistant Public Prosecutor (APP) to the effect that all the prosecution witnesses were examined, prosecution evidence was closed by the order of the court followed by examination of the accused under [SECTION] of [ACT]
6. On 05.10.2012 during his examination under [SECTION] of [ACT] the accused denied having committed any offence and stated that he has been falsely implicated. The accused further stated that he is innocent and was not driving the truck in rash or negligent manner.
7. The accused did not lead any evidence in his defence.
8. I have heard Mr. [ENTITY], APP for the state and Mr. [ENTITY], Advocate for the accused and have gone through the material on record carefully.
9. Having drawn my attention on the testimonies of PW1 [ENTITY] [CASE NUMBER] Page no. 4 of 11 [ENTITY], PW2 ASI [ENTITY], PW3 Constable [ENTITY], PW4 Constable [ENTITY], PW5 Dr. [ENTITY], PW6 Smt. [ENTITY], PW7 [ENTITY], PW8 [ENTITY], PW9 Constable [ENTITY], PW10 Retired ASI [ENTITY], PW11 SI [ENTITY], PW12 [ENTITY] and PW13 Dr. [ENTITY] and documents Ex. PW1/A1 to Ex. PW/A8, Ex. PW2/A, Ex. PW4/A to Ex. PW4/D, Ex. PW5/A, Ex. PW6/A, Ex. PW7/A, Ex. PW7/B, Ex. PW9/A, Ex. PW10/A, Ex. PW11/A to Ex. PW11/D, Ex. PW12/A, Ex. PW12/B and Ex. PW13/A it is submitted by the learned APP that from the testimonies of prosecution witnesses and the documents tendered in evidence it has been proved that on 31.5.2001 in the night at Mukhmelpur Crossing, way from G.T. Karnal Road Bypass to Singhu Border, Delhi the accused was driving truck bearing registration no. HR 38D 4146 in rash and negligent manner; and by so driving the vehicle struck against deceased [ENTITY] resulting his death. It is also submitted by the learned APP that since the prosecution has succeeded in proving its case against the accused beyond doubt, therefore, the accused be convicted and severely punished for having committed offences punishable under [SECTION] and [SECTION] of [ACT].
10. Per contra, having drawn my attention on the testimony of PW8 [ENTITY] it is submitted by counsel for the accused that the prosecution has failed to prove that the accused was driving the truck in rash or negligent manner or the death of the deceased was caused due to the [CASE NUMBER] Page no. 5 of 11 act of the accused. It is further submitted by counsel for the accused that PW8 [ENTITY] is not trustworthy and the accused is entitled to be acquitted.
11. I have given my thoughtful consideration to the submissions made on behalf of the parties.
12. From the testimonies PW5 Dr. [ENTITY], PW6 Smt. [ENTITY] and PW13 Dr. [ENTITY] and documents Ex. PW5/A, Ex. PW6/A and Ex. PW13/A it has also been proved that injuries, resulting death of deceased [ENTITY], were ante mortem in nature and, in the opinion of the doctor who performed the post mortem, it was possible that the said injuries had been suffered by late [ENTITY] in Road Traffic Accident. Thus from the testimonies of PW5 Dr. [ENTITY], PW6 Smt. [ENTITY] and PW13 Dr. [ENTITY] and documents Ex. PW5/A, Ex. PW6/A and Ex. PW13/A it has been proved, beyond doubt, that the death of late [ENTITY] was caused as a consequence of the collision between him and the truck.
13. There is only one prosecution witness viz. PW8 [ENTITY] who is stated to be the eye witness. His testimony is vehemently assailed by counsel for the accused. According to the accused the testimony of PW8 [ENTITY] is not reliable.
14. As per the testimony of PW8 [ENTITY] the night the incident occurred at about 11.30/12.00 he was alongwith the deceased and [CASE NUMBER] Page no. 6 of 11 was at some distance on a motorcycle behind the deceased. PW8 [ENTITY] has also deposed that one dumper truck no. HR 38 4146came from the side of Bye Pass and going towards Singhu border which was at a high speed and stuck against the cycle of the deceased. PW8 [ENTITY] has deposed that after the accident he had seen the driver of the offending vehicle, who admittedly fled away from the spot, from behind. PW8 [ENTITY] has further deposed that after the incident he had gone to his home to bring help to take the victim to hospital. PW8 [ENTITY] has also deposed that on the same night at about 2.00am the accused was produced at police station by the owner of the offending vehicle and he had identified him as the driver of the offending vehicle. During his cross examination PW8 [ENTITY] deposed that generally he used to work from 8.00am to 5.00pm. During his cross examination PW8 [ENTITY] further deposed that he returned to the spot in between 12.30 to 1.00am; and that he reached at the Trauma Center between 3.00am and 4.00am and thereafter came back to his house and thereafter to the police station. During his cross examination PW8 [ENTITY] further deposed that he reached at the police station at about 9.00am to 10.00am.
15. As per the testimony of PW11 SI [ENTITY] when he reached at the spot no eye witness was found. Even after his return to the crime scene from the Trauma Centre and before sending rukka Ex. PW11/A, as per the testimony of PW11 SI [ENTITY], no eye witness was [CASE NUMBER] Page no. 7 of 11 found. As per the testimony of PW11 SI [ENTITY], PW8 [ENTITY] met him subsequently. As per the testimony of PW11 SI [ENTITY] he got verified about the ownership of the offending truck from the transport authority and issued a notice under [SECTION] of the [ACT] to its registered owner [ENTITY], who produced the accused before him on 31.5 2001 itself.
16. In the light of the testimony of PW11 SI [ENTITY] and other evidence this court is of the view that PW8 [ENTITY] is not a reliable witness and has not told the truth. PW8 [ENTITY] is the cousin brother of the deceased and claims that at the time of the incident he was at the spot, still he did not provide any medical aid to him. As per the testimony of PW8 [ENTITY] after the incident he left for his home, leaving the injured unattended, to bring help. This conduct of the witness is unusual and does not accord with natural human conduct. In the ordinary course it is highly improbable that a closed relative will leave a person who met with a serious accident unattended at the road and instead of making efforts to seek immediate help shall leave such person unattended on the road. Further as per the testimony of PW8 [ENTITY] he identified the accused at police station within two hours of the accident. This part of testimony of PW8 [ENTITY] is not supported by the testimony of PW11 SI [ENTITY]. As per the testimony of PW11 SI [ENTITY] after the accident he collected the details of the owner of the vehicle from the [CASE NUMBER] Page no. 8 of 11 transport authority and subsequently served a notice under [SECTION] of the [ACT] upon PW7 [ENTITY] who produced the accused before him . This all cannot happen within two hours of the incident. The court is satisfied that PW8 [ENTITY] did not witness the incident.
17. It is also proved from the testimony of PW8 [ENTITY] that after the incident the accused was not apprehended at the spot; and that immediately after the incident resulting in the death of [ENTITY], the driver of the offending vehicle had fled away from the spot. It has also been proved from the evidence led by the prosecution that no test identification parade (TIP) was conducted after arrest of the accused. In this regard it has been held by the Hon'ble Supreme Court in [PRECEDENT] v. [ENTITY] of Maharashtra, AIR 2000 SC 160 as follows:
In cases where a person is alleged to have committed the offence and is not previously known to the witnesses, it is obligatory on the part of the investigating agency to hold identification parade for the purposes of enabling the witnesses to identify the person alleged to have committed the offence. The absence of test identification may not be fatal if the accused is known or sufficiently described in the complaint leaving no doubt in the mind of the court regarding his involvement. Such a parade may not be necessary in a case where the accused person is arrested on the spot immediately after the occurrence. The evidence of identifying the accused person at the trial, for the first time, is from its very nature, inherently of a weak character.
18. In the present case, as I have already observed, no TIP was got organized by the police and the main prosecution witness PW8 [ENTITY] first time identified the accused during the trial.
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19. As per the testimony of PW11 SI [ENTITY] on 31.5.2001 the accused was produced by PW7 [ENTITY], the owner of the truck and was arrested by him.
20. As per the testimony of PW7 [ENTITY], the owner of the truck bearing registration no. HR 38D 4146, on 31.5.2001 in pursuance of a notice under [SECTION] of the [ACT] he had produced the accused, who on 31.5.2001 was driving truck no. HR 38D 4146, before the police. During his cross examination PW7 [ENTITY] deposed that at the time of the incident he was not sitting with the driver of the vehicle. Since PW7 [ENTITY] was not present at the spot at the time of the incident and did not witness the accused driving the truck at the time of incident and causing death of deceased [ENTITY], therefore, his testimony cannot be relied upon against the accused.
21. The defence of the accused is that he has been falsely implicated in this case and at the time of the incident he was not driving the vehicle.
22. The testimony of PW7 [ENTITY] is of hearsay in nature. And as per the law laid down by the Hon'ble Supreme Court in [PRECEDENT]'s case (supra), in the absence of TIP, the testimony of the main prosecution witness PW8 [ENTITY] is from its very nature, inherently of a weak character, therefore, the accused is entitled to benefit of his defence that he was not driving the vehicle. The accused cannot be [CASE NUMBER] Page no. 10 of 11 held guilty of the offences charged against him.
23. Further it has been held by the Hon'ble Delhi High Court in Mohan Shyam v. [ENTITY], 2012 (3) JCC 1523 that mere fact of vehicle being driven at high speed does not bespeak of either negligence or rashness by itself; and in absence of any material on record, no presumption of rashness or negligence be drawn by invoking maxim of res ipsa loquitur.
22. The prosecution in the present case, even if for the sake of argument it is taken as proved that at the time of the incident the accused was driving the offending truck, has failed to prove how the act of the accused was rash or negligent to bring the same under the purview of [SECTION] and [SECTION] of [ACT]. By invoking maxim of res ipsa loquitur only it cannot be concluded that the accused was rash or negligent in driving the bus.
23. In view of above discussion keeping in view the circumstances of the present case accused [ENTITY] is found not guilty of the offences charged against him and he is acquitted of offences punishable under [SECTION] and [SECTION] of [ACT]. File be sent to records.
Announced in the open court ([ENTITY]) on 29th of August, 2013 Chief Metropolitan Magistrate North District:Rohini:Delhi [CASE NUMBER] Page no. 11 of 11