IN THE COURT OF SHRI [ENTITY], METROPOLITAN MAGISTRATE : WEST-05, TIS HAZARI COURTS, DELHI FIR No: 276/2007 P.S: [ENTITY] [CASE NUMBER] [ENTITY] v. [ENTITY] S/o Sakal Sahni R/o B-4, 4D, Second floor, Rohtak Road Industrial Area, [ENTITY], Delhi JUDGMENT
1. [CASE NUMBER] 2. Date of Commission of Offence: 05.07.2010 3. Date of institution of the case: 29.06.2009 4. Name of the complainant: ASI [ENTITY] 5. Name of the accused: [ENTITY] 6. Offence complained or proved: 279/304A [ACT] 7. Plea of Accused: NOT GUILTY 8. Final Order: Acquitted 9. Date of Final Order: 30/10/2018 BRIEF FACTS AND REASONS FOR DECISION
1. In brief, the case of prosecution is that on 05.07.2010 at unknown time at New Rohtak Road, Gali no. 6, [ENTITY], the accused was driving a [ENTITY] scooter bearing registration number HR-26X-3858 rashly and hit against an unknown pedestrian which resulted into his death. The present FIR was registered against the accused and after the completion of the investigation, the chargesheet was filed before the court under [SECTION] [ACT]. The cognizance of the offence was taken and summons were issued to the accused. After the appearance of the accused, the documents were supplied under [SECTION] [ACT].
2. The charge was framed for offences punishable under [SECTION] [ACT] against the accused to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the prosecution evidence.
3. In prosecution evidence, the prosecution has examined seven witnesses. The deposition of the witnesses in a nutshell is as below:
PW-1 Sh. [ENTITY] has deposed that he was a watchman in Gali no. 6 and at about 11:00 PM, he saw one scooter coming in a high speed from the side of Punjabi Bagh and hit a pedestrian who was crossing the road. Thereafter, PCR reached the spot and took both of them to the hospital.
PW2 Constable [ENTITY] has deposed that he he went with IO to the spot and found one scooter no. HR26X3858 in accidental condition and found the injured to be admitted in DDU hospital and IO came back to spot and prepared Rukka on the basis of which he got the FIR registered.
[ENTITY] PW-3 [ENTITY] has deposed that on 06.10.2007, he received a rukka from Ct. [ENTITY] which was sent by ASI [ENTITY] at about 02:40 AM and registered the present FIR which Ex. PW3/A. PW4 Dr [ENTITY] identified the handwriting of Dr. [ENTITY] who left the services of the hospital on the MLC Ex. PW4/A. PW5 [CASE NUMBER] proved the receipt of information with regard to DD no. 36A which is Ex. PW5/A and DD no. 39A which is Ex. PW5/B. PW6 Retd. ASI/Tech [ENTITY] mechanically inspected the offending vehicle and proved his report which Ex. PW6/A. PW-7 Dr. [ENTITY] proved the post-Mortem report of the deceased which is Ex. PW7/A.
4. After the prosecution evidence was closed, the matter was kept for the statement of the accused. The same was recorded on 04.07.2018. The accused did not lead the defence evidence. Thereafter, the final arguments were heard and matter was kept for orders. I have given anxious and thoughtful consideration to the submissions of the accused persons and the state.
5. At the onset it would be appropriate to have glance at the ingredients of the offences charged :
[SECTION] [ACT]. Rash driving or riding on a public way [ENTITY] Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. [SECTION] [ACT]. Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
6. Before proceeding further, it is necessary to discuss the relevant legal propositions applicable to the facts of the present case. It is settled proposition of criminal law that the prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. It is also settled that primary burden of proof for proving offence in a criminal trial rests on the shoulders of the prosecution, which burden never shifts on the accused. It has to be seen whether the prosecution had been able to establish the guilt of the accused persons beyond reasonable doubt.
7. To prove the case against the accused the prosecution was obliged to prove that accused :-
- The accused was driving the offending vehicle bearing registration No. HR-26X-3858 rashly and negligently.
[ENTITY]
- The accused while driving the abovestated vehicle had hit and unknwon pedesterian which resulted into his death.
8. It was argued by the counsel for accused that the accused has succeeded in creating doubts in the case of the prosecution. The counsel stated that the star witness of the prosecution which was produced as a eye witness to the case did not support the case of the prosecution as he did not identify the offending vehicle or the accused as the person who caused the accident. It was also stated that there is no evidence on record to prove that the accident resulted due to the negligence of the accused and he had hit the unknown pedestrian. It was also argued that initial wireless information received and reduced into writing vide DD No. 36A shows that a scooter had slipped which shows that there was no accident.
9. In the present case, from the evidence that has come on record coupled with the cross examination of the witnesses and the explanation given by the accused during the recording of his statement under [SECTION] [ACT], it is not disputed by the accused that he was not driving the offending vehicle on the date of accident or he was not present at the place of accident. The accused is denying the fact that the deceased was hit by his vehicle. The accused is not disputing the death of the deceased but is disputing the fact that he had died as he was hit by his vehicle.
10. The prosecution in order to establish the fact that accident had taken place from the scooter of the accused and unknown pedestrian dried after being hit by the vehicle of the accused as he was driving the scooter rashly and negligently had examined public/eye witness namely [ENTITY] as [ENTITY] PW1. The said witness did not support the case of the prosecution. The witness did not identify the accused as the driver of the offending vehicle. The witness denied that he identified the accused as the driver of the offending vehicle when went to the police station on 05.10.2007. The Ld. APP for the state argued that even if the witness turned hostile, his statement which corroborates the testimony of other witness can be relied upon by the court and in this case the post postmortem report of the deceased and the post accident proceedings carried by the police officials where the scooter of the accused was found in accidental condition points out to the guilt of the accused who had hit an innocent unknown pedestrian by driving his vehicle in a high speed and negligently.
11. There is no iota of doubt in the submissions of the Ld. APP for the state that the testimony of the witness PW1 who has turned hostile can be relied upto the extent where it corroborates the testimony of the other witnesses but in the present case even if it is believed that the accused had hit the deceased while driving the offending vehicle, there is nothing to indicate that the accused was rash or negligent while driving the vehicle. Merely saying that the vehicle was coming in a high speed is not enough to prove negligence. I will rely upon the Judgment of Hon'ble High Court in case titled as Abdul Subhan v. [ENTITY] (NCT of Delhi) 133 (2006) DLT 562 wherein the Court relied upon the Judgment of Hon'ble Supreme Court in case titled as [ENTITY] of Karnataka v. Satish (1998) SCC CRI 1508 and held as follows:
" the aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high speed would not tantamount to rashness or [ENTITY] negligence. In the present case also, I find that apart from the allegations that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event, there is no description or approximation of what was the speed at which the truck was being driven. The expression "high-speed" could range from 30 kilometer per hour to 100 kilometer per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speeding limit. Therefore, in the absence of material fact, it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high speed, that the petitioner is guilty of rash or negligent act. "
12. In case titled Partap v. [ENTITY], AIR 1976 SC 966 it has been observed by Hon'ble Supreme Court that "The right of accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded."
13. In case tited Sharad Birdhichand Sarda v. [ENTITY], AIR 1984 SC 1622 it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the favour of [ENTITY] the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
14. In view of the above discussion, the prosecution has failed to establish the identity of the accused as the person who has hit the unknown pedestrian and the negligence, if any is also not proved by the [ENTITY]. The prosecution has not been able to prove its case beyond reasonable doubt. Benefit of doubt goes in favour of accused. Accordingly accused [ENTITY] is acquitted for the offences punishable u/[SECTION] [ACT].
15. Bail Bonds u/[SECTION] of [ACT] in the sum of Rs.10,000/- with the surety of like amount is to be furnished which would remain valid for a period of six months.
[ENTITY] KUMAR Date: 2018.10.31 16:34:59 +0530 Announced in open Court ([ENTITY]) on 30th October, 2018 Metropolitan Magistrate West-05, Delhi [ENTITY]