[ENTITY] vs. [ENTITY] FIR No. 185/2018 IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN MAGISTRATE-06, WEST DISTRICT, TIS HAZARI COURT, DELHI [ENTITY] vs. [ENTITY] FIR No. 185/2018 U/[SECTION]-A [ACT] PS: Mundka Date of institution of the case: 01.09.2018 Date on which judgment is reserved: Not reserved Date on which judgment is delivered:21.11.2019 Unique I. D. No. 7121/18 JUDGMENT
a) Date of commission of the offence : 27.04.2018
b) Name of the complainant : SI [ENTITY]
c) Name of the accused and his parentage : [ENTITY], S/o. Sh. [ENTITY], R/o. Vill. Bhora Rasoolpur, Teh.
Gannaur, Distt. Sonepat, Haryana.
d) Offence complained of or proved : [SECTION] e) Plea of the accused : Pleaded not guilty f) Final order : Acquitted g) Date of such order : 21.11.2019
h) Brief reasons for the just decision of the case:
1 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018 Briefly stated, PW1 was injured on 27 April 2018 in a motor vehicle collision. He was pulling a rickshaw rehri while his father was sitting on the rehri which collided with Truck/mixer, on the road near Metro Pillar No. 714, Rohtak Road.
The driver of the Mixture Truck was, reportedly, the sole cause of the collision. PW1 sustained serious bodily injuries, as a result of the collision, while his father was declared "dead" by the doctors. With regard to the aforesaid incident, a DD Entry No. 29-A was recorded at police station Mundka and on basis thereof, present FIR was registered against the driver of HR-69B-1913 and investigation was undertaken.
On 1 May 2018, a notice under [SECTION] of the [ACT] was served upon the owner of the offending Truck-mixture asking him to inform the police as to who was driving the vehicle at the time of accident. The owner responded in writing that accused [ENTITY] was driving the vehicle on 27 April 2018. Consequently, accused was arrested in the present case.
After completion of the investigation, charge-sheet under sections [SECTION] [ACT] was filed against accused/driver [ENTITY]. Consequently, he was sum- moned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Thereafter, charge under sections [SECTION] [ACT] was framed against accused to which he pleaded not guilty and claimed trial.
With a view to connect the accused with the crime, prosecution has examined two witnesses including the injured/victim [ENTITY].
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PW1/[ENTITY] was the injured. He testified that on 27.04.2018, he was going to the weekly market at PVC road for selling vegetables alongwith his father Sh. [ENTITY] on a rickshaw rehri. He was pulling the rickshaw while his father was sitting on it with vegetables. When they reached at PVC road, one truck came from behind and hit their rickshaw rehri. Due to which, rickshaw got turned and they fell down on the road. They both sustained injuries.
He stated that he could not see the truck as the same ran away from the spot. Public persons took them to Jeewan Jyoti hospital. He became unconscious and regained consciousness in the hospital. He was informed that his father had expired.
He further stated that police officials came to the hospital and recorded his statement. He stated that he does not know who was driving the offending truck. He cannot identify the offending truck as he could not see it.
Since the witness had resiled from his previous statement purportedly given to the Investigating Officer during investigation, he was cross-examined by the learned APP for the [ENTITY] with the leave of the court.
He during his cross-examination by the learned APP for the [ENTITY] denied having told the police that on that day when they reached near metro pillar no. 714, one truck with mixture came from the back side in rash and negligent manner and hit their rickshaw rehri due to which they sustained injury. He also denied the suggestion that the driver of the truck came to him and after seeing the public persons ran away from the spot leaving behind the truck. He was confronted with portion A to A1 of statement Mark X wherein it was so recorded. He also denied the suggestion that he could not give statement on the day of incident but thereafter 3 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018 on 02.05.2018, he went to the police station to know about the status of his case where he saw the driver of offending truck sitting and on seeing him, he identified him as the driver of the said truck. He was confronted with portion B to B1 of statement Mark X wherein it was so recorded. He denied the suggestion that the driver of the truck was arrested in his presence. When his attention was drawn towards the arrest memo Ex. PW1/A, he admitted his signature at point A, but stated that the arrest memo was not prepared in his presence and his signature was obtained by the police later on. He denied the suggestion that accused present in the court was driving the truck and he was arrested at his instance. HE denied the suggestion that he was deposing falsely as he had been won over by the accused.
PW2/[ENTITY] was the son of deceased [ENTITY]. He identified his dead body vide Ex.PW2/A. He further stated that after postmortem, dead body was handed over to him.
Since the sole eye witness resiled from his previous statement regarding the manner of driving and the identity of accused, PE was closed by the order of the court as no useful purpose would be served by examining the rest of the witnesses, who are formal in nature and the request of the learned APP for the [ENTITY] to examine remaining witnesses was declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The [ENTITY] (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that:
" In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is
4 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018 advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date "
Since there was no incriminating circumstance against the accused, recording of his statement under [SECTION] of the Code was also dispensed with.
I have heard the learned counsel for the accused and the learned APP for the [ENTITY] and have perused the records very carefully.
Arguments Learned counsel for the accused has taken this court through the entire evidence and submitted that the prosecution version regarding the incident is highly doubtful since the correctness of the statement made by the alleged eye witness to the police is itself doubtful because he himself has disowned it and has not stated anything incriminating against the accused and has failed to identify the accused as the driver of the offending vehicle.
Thus, according to learned defence counsel accused's identity as the driver of the offending vehicle was not established by the prosecution. He submitted that for the sake of arguments, even if it is presumed that accused was indeed the driver of the offending vehicle, still the factum of rash and negligent driving has not been proved by the prosecution which is sine qua non for conviction of a person under section [SECTION] [ACT].
He, therefore, prayed that the accused may be acquitted of the charge leveled against him.
Decision and brief reasons for the same 5 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018
All persons are presumed to be innocent and no person can be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, sent behind the bars pending investigation or trial or charged for an offence gives rise to no inference of his guilt at trial. The law does not require an accused to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the accused, unless the court is satisfied beyond a reasonable doubt of accused's guilt on appreciation of prosecution evidence.
Now let us see if the prosecution has been able to bring home the guilt of the accused [ENTITY].
Section [SECTION] [ACT] Undisputedly, it is a case of a motor vehicular accident. The only issue is whether it was the accused who caused the accident while driving the vehicle either negligently or rashly?
Identity of the accused As the accused was not apprehended from the spot, his identity is in issue.
A successful prosecution of a criminal action largely depends on proof of two things: the identification of the author of the crime and his actual commission of the same. An ample proof that a crime has been committed has no use if the prosecution is unable to convincingly prove the offender's identity.
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In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the offence.
Now let us see if the prosecution has been able to establish the identity of the accused beyond reasonable doubt.
To prove the identity of the accused as the driver of the offending vehicle, prosecution has examined PW1/[ENTITY]. However, he was declared hostile and cross-examined by the APP for the [ENTITY] but nothing could be elicited from him which could indicate complicity of the accused in the crime.
Rash and negligent driving Now let us examine if the prosecution has been able to prove that the accused was driving the vehicle in a rash and negligent manner.
In order to bring home the guilt of the accused, the prosecution has cited as many as ten (10) witnesses in the list of witnesses annexed with the charge-sheet. Out of these ten witnesses, PW1 was the son of deceased and injured as well while rest witnesses are formal in nature and the guilt of the accused cannot be established 7 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018 from their testimonies, inasmuch as, the alleged incident was neither took place in their presence nor it is the case of the prosecution.
Thus, the entire edifice of the prosecution is the statement of PW1/[ENTITY] recorded during the course of investigation by the IO. In the said statement, he claimed to have sustained bodily injury on account of the offending vehicle being driven in a rash and negligent manner. He also claimed to have seen the driver of the offending vehicle at the spot.
Consequently, he was called to testify about the incident. He entered the witness box as PW1. He testified that while he along with his father was going to weekly market to sell vegetables, one truck came from behind and hit their rickshaw rehri as a result of which they sustained injury.
He feigned ignorance about the driver of the offending vehicle. He stated that he cannot identify the offending vehicle as the same ran away from the spot.
Since the witness took a somersault while deposing in the court, he was cross- examined by the learned APP for the [ENTITY]. He during his cross-examination denied having told the police that when they reached near Metro Pillar No. 714, one Truck with mixture came from behind in rash and negligent and struck against the rickshaw rehri as a result of which he and his father sustained injury. He was confronted with his previous statement Mark X wherein this fact was recorded; however, the witness did not offer any explanation.
He denied having seen the accused at the spot. He also denied the suggestion that accused was arrested by the police at his instance. When his attention was drawn towards the arrest memo, he stated that it was not prepared in his presence.
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Thus, it is seen that not only the oral evidence of the sole eye witness does not support the prosecution theory regarding the manner of occurrence, but also, he does not disclose requite ingredients to constitute the offence under section [SECTION] [ACT].
Result The Hon'ble High Court of Delhi in the case of Mohan Shyam vs The [ENTITY] (NCT of Delhi) decided on 25th May, 2012 held as under:-
" Every person is bound to anticipate the dangers normally expected on the road and not challenge his own safety by driving in the dangerous fashion as evidenced in the present case. It is not that in every case of road accident, the driver of a commercial or heavy vehicle shall be presumed to be guilty of rash and negligent driving and without any iota of evidence against him; he will be deemed guilty from the start of the trial. . In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur" ".
The Hon'ble Supreme Court of India in the case of [ENTITY] of Karnataka v. Satish, reported at (1998) 8 SCC 493 observed as under:-
"5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To, us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged."
9 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018 In the present matter the [ENTITY]'s case rested on the evidence of a single witness/PW1/[ENTITY]. However, before the court, he has not spoken anything incriminating against the accused. The version disclosed by him as witness in the court is quite different from what he had stated in his statement Mark X recorded in the course of investigation by the police. He was cross-examined by the learned APP for the [ENTITY] with the permission of the court but nothing could be elicited from him which could indicate the manner in which the vehicle was being driven at the time of accident.
Further, there is no direct evidence to show that the accused was driving the vehicle involved in the accident at the time of accident.
Even if it is presumed that the accused was the person driving the offending vehicle at the relevant time, still there is no evidence to prove that he drove the vehicle rashly and negligently. In absence of any evidence on these two counts, accused [ENTITY] is entitled to acquittal.
Consequently, accused [ENTITY] is ACQUITTED of the crime charged. Announced in open Court on 21st day of November, 2019 ([ENTITY]) MM-06, West District, Tis Hazari Courts/ Delhi/21.11.2019 This judgment contains 10 pages and each page bears my signature.
([ENTITY]) MM-06, West District, Tis Hazari Courts/ Delhi/21.11.2019 10 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018 [ENTITY] vs. [ENTITY] U/[SECTION]-A [ACT] PS: Mundka 21.11.2019 Present: Learned APP for the [ENTITY]. Accused in person with counsel. PW1 and PW2 are examined and discharged. No other PW is present today. Heard. File perused.
Perusal of the file reveals that the sole eye witness has not supported the prosecution regarding the identity of accused and manner of accident. Rest witnesses are formal in nature and the guilt of accused cannot be established from their testimonies, inasmuch as, the accident was neither caused in their presence nor it is the case of the prosecution.
Thus, no useful purpose would be served by examining the rest of the witnesses, who are formal in nature. No prejudice would be caused to the prosecution if the evidence is closed as there are no chances of successful prosecution in view of paucity of evidence to prove the charges. Therefore, PE stands closed and request of the learned APP for the [ENTITY] to examine the remaining witnesses is declined. In this regard reference may be made to a Division Bench judgment of the Hon'ble Delhi High Court passed in the case of Govind & Ors vs. The [ENTITY] (Govt. of NCT of Delhi) 104(2003) DLT 510 wherein it was held that :
11 of 12 [ENTITY] vs. [ENTITY] FIR No. 185/2018
" In cases where ultimate chance of conviction is very bleak or there is no prospect of the case ending in conviction in such cases no useful purpose is likely to be served by allowing a criminal prosecution and trial to continue. It is advisable to truncate or snip the proceedings and save valuable time of the courts. The trial should not be continued only for the purpose of formally completing the proceedings to pronounce the conclusion on a future date "
Since there is no incriminating circumstance against the accused, recording of his statement under [SECTION] of the Code is also dispensed with.
I have heard the learned counsel for the accused and the learned APP for the [ENTITY] and have perused the records very carefully.
Vide separate judgment of even date, accused [ENTITY] is ACQUITTED of the crime charged.
At request, earlier bail bond is treated as one under [SECTION] of the Code.
File be consigned to record room after due compliance. Digitally signed by [ENTITY] Date:
2019.11.22 14:50:52 +0530 ([ENTITY]) MM-06, West District, Tis Hazari Courts/ Delhi/21.11.2019
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