IN THE COURT OF SHRI GAURAV RAO: METROPOLITAN MAGISTRATE: DELHI In Re: STATE VERSUS SUKHBIR SINGH F.I.R. No: 697/02 U/[SECTION] A [ACT] P.S. Nangloi Date of Institution of Case : 23.07.2003 Judgment Reserved for : 16.04.2010 Date of Judgment : 16.04.2010 JUDGEMENT:
(a) The serial no. of the case : 1153/2/08 (b) The date of commission of offence: 12.08.2002 (c) The name of complainant: Sh. [ENTITY] s/o Late Sh. Hoti Lal, r/o H. No. 259, Rajendra Park Extn., Nangloi, Delhi. (d) The name, parentage, of accused : [ENTITY] S/o Sh. [ENTITY], R/o H. No. 489, VPO Bajitpur, PS Bawana, Delhi. Present Address : As above (e) The offence complained of : U/[SECTION] A [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : ACQUITTED (h) The date of such order : 16.04.2010. Brief statement of the reasons for the decision:
In brief the case of the prosecution is that on 12.08.2002 at around 10.45 am at main Rohtak Road near bus stand of route no. 219, Nangloi, Delhi within the jurisdiction of police station Nangloi, accused [ENTITY] was found driving a bus bearing no. DL-1PB-3735 in a rash and negligent manner and while driving so he hit against the scooter bearing no. DL-4SZ-1021 and caused death of [ENTITY] and thereby the accused committed offence u/[SECTION] A [ACT].
2. Charge sheet was filed in the court and in compliance of [SECTION] [ACT] accused was supplied the documents. Thereafter vide order dated 25.08.2004 notice u/[SECTION] A [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
3. So far prosecution examined only two witnesses. Today vide my separate order, PE has been closed and S.A dispensed with.
4. PW1 [ENTITY] deposed that on 12.08.2002 while he was posted at PS Nangloi on receipt of ruqqa sent by SI [ENTITY] through Ct. [ENTITY], he recorded case FIR no. 697/02 i.e. Ex. PW1/A.
5. PW2 [ENTITY] deposed that he is illiterate. He further deposed that he does not remember anything about this case.
6. This witness was cross examined by the Ld. APP after getting him declared hostile and during his cross examination he stated that police did not record his statement i.e. Ex. PW2/A He further stated that he was called to PS Nangloi by some of his relative and they obtained his signatures on papers. He further stated that he does not remember on which papers police obtained his signatures. He denied the suggestion that on 12.08.2002 he was going on his scooter from [ENTITY] to Nangloi and his relative [ENTITY] was on his scooter and he was going ahead of him. He further denied the suggestion that when they reached ahead of bus stand of route no. 219 Nangloi, a blue line Bus no. DL1PB-3735 route no. 701 which was going from Najafgarh to Narela hit against deceased [ENTITY] scooter and as a result he fell down and received injuries. He further denied the suggestion that his maternal uncle [ENTITY] was dragged by the bus to some distance and a rickshaw pullar was also hit by the said bus and rickshaw pullar ran away from the spot due to fear. He further stated that his maternal uncle received serious injuries and police came there. He denied the suggestion and due to nervousness he went to his house and after that he informed about the incident at [ENTITY]. He further stated that he cannot identify the bus driver. He further stated that driver of the bus was not arrested. He further stated that personal search Ex.PW2/B was prepared in his presence and police obtained his signatures at point A. He further stated that bus was not taken into possession by the police in his presence but seizure memo Ex. PW2/C of the bus bears his signatures at point A. He further stated that rickshaw was also not taken in possession in his presence but Ex. PW2/D bears his signatures. He further stated that scooter of the deceased was not taken into possession in his presence but the seizure memo Ex. PW2/E bears his signatures. He denied the suggestion that he was deposing falsely as he has been won over by the accused.
7. Therefore, the sole eye witness of the prosecution story i.e [ENTITY] turned hostile and did not support the prosecution story on any count. The entire prosecution story was founded on the basis of his statement and his turning hostile proved fatal and the prosecution story came crashing down. His deposition was sine qua non for establishing the charges against the accused as he could have proved the manner in which the accident occurred i.e who caused the same and as to because of whose fault/negligence the accident occurred and the deceased expired. However, he failed to support the prosecution version. In his cross by the Ld. APP he denied having made any statement to the police or witnessing any accident and further denied the factum of arrest of the accused and seizure of offending vehicle etc. in his presence or at his instance. In fact, he stated that he was not present at the time, date and spot of accident and merely because of being asked by his relatives he went to the PS where his signatures were obtained on blank papers.
8. Prosecution proposed to examine 10 witnesses in all and remaining witnesses examined and proposed 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.
9. Ld. APP today after going through the police file as well as after inquiring from the IO has submitted that PW 2 was the sole eye witness of the alleged accident.
10. In order to prove its case and establish the guilt of the accused the prosecution had to prove that the accident was caused by the vehicle in question i.e. bus bearing registration no. DL-1PB-3735, accused [ENTITY] was driving the offending vehicle at the time of accident and the accident occurred as a result of rash and negligent driving by accused, who while driving so hit against scooter bearing no. DL-4SZ-1021 and caused death of Scooteriest [ENTITY].
11. However, after going through the material on record and giving my thoughtful consideration to the rival contentions raised at bar by the Ld. APP as well as the Ld. Defence counsel, I am of the considered opinion that prosecution has failed to bring home the guilt against the accused.
12. As discussed above the sole eye witness turned hostile, remaining witnesses are formal and none amongst them witnessed the alleged accident hence prosecution miserably failed to prove:
A) that it was accused [ENTITY] who was driving the alleged offending bus bearing no. DL-1PB-3735 at the time of accident or B) that while driving the said bus, the accused hit the scooter bearing no. DL-
4SZ-1021 which resulted in death of [ENTITY].
13. Therefore, neither the accident nor the ingredients of [SECTION] A [ACT] could be established as sole eye witness turned hostile and none else amongst the prosecution witnesses witnessed the accident. In the absence of any positive material/direct evidence there cannot be any presumption that it was the accused who was driving the bus at the time of accident. Similarly, there cannot be any presumption that the accident was caused by the accused while driving the offending bus in a rash and negligent manner. What is rash/negligence varies from case to case. Same has to be proved through direct evidence/positive material beyond shadow of doubt so as to bring the case within the ambit of [SECTION]/[SECTION] A [ACT]. There cannot be any fixed parameters for judging rashness/negligence. At the same time, there cannot be any assumption/presumption of the same ([ENTITY] Singh v. [ENTITY] (Delhi Administration), (Delhi) 1997(1) R.C.R. (Criminal) 320) and Prabhakaran v. [ENTITY] of Kerala, (SC) 2007(3) R.C.R.(Criminal) 605
14. Once the alleged sole eye witness of the accident turns hostile i.e. there is no other eye witness on record who might have witnessed the alleged accident i.e who was driving the offending vehicle and because of whose fault/negligence the accident occurred, a person cannot be convicted U/[SECTION] A [ACT] as in that scenario neither the accident nor the identity of the accused could be established leave apart rash and negligent driving ([ENTITY] of Haryana v. Sher Singh (SC) 2009 A.I.R. SC 823)
15. 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".
16. 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. (Daya Ram v. [ENTITY] of Haryana, (P&H)(DB) ,1997(1) R.C.R.(Criminal) 662).
17. 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 Partap v. [ENTITY] of U.P., (SC) 1976 A.I.R. (SC) 966 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 Vijayee Singh v. [ENTITY] of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts. In Nasir Sikander Shaikh v. [ENTITY] of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. [ENTITY] of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 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.
18. Prosecution has failed to discharge its onus. Accordingly, accused [ENTITY] is entitled to acquittal.
19. I order accordingly.
Announced today in the open Court ([ENTITY]) on 16.04.2010 MM(W)/Delhi PS Nangloi Pr: Ld. APP for state. Accused is present on bail. No PW is present apart from the IO.
I have perused the record and inquired from the IO as well as the Ld. APP. Record reveals that the sole eye witness of the prosecution story turned hostile. There was no other eye witness.
In these facts and circumstances and in view of deposition of PW2 no purpose shall be served in further continuation of the trial. Same shall be infact an exercise in futility. PE is closed and SA dispensed with as no worthy incriminating material has been brought forward against the accused.
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 (w)/Delhi.
16.04.2010