Court: Delhi District Court
Bench: Sh. Daya Prakash
Surender Kumar vs The State (Nct Of Delhi) on 13 May, 2014
Law Point:
Acquittal in 498 A – Benefit of doubt due to afterthought and incredible version of prosecution
JUDGEMENT
1. By this judgment, I shall dispose off the present appeal under Section 374 (3) Cr.P.C. filed by appellant/accused Surender Kumar against the judgment of conviction dated 31.01.2011 and order on sentence dated 28.09.2013 passed by the Ld. MM in case FIR No. 967/92, PS Connaught Place.
CA No.75/2013 1/10
2. Brief facts which are relevant for the disposal of present appeal are:-
i) As per prosecution, on the evening of 31.12.1992 a fatal accident had taken place at the crossing of Janpath Road on Outer Circle, Connaught Place at about 3.55pm in which victim Bal Bahadur, s/o Sh. Nar Bahadur, a 30 year old man had sustained grievous injuries and was immediately rushed for treatment to RML hospital where he was declared brought dead by the doctors attending on him. It was alleged that accused Surender Kumar was driving a Blue Line Bus bearing No. DEP 5389 in a rash and negligent manner and when the said bus had reached near Wimpy Restaurant on the crossing of Janpath and Outer Circle in Connaught Place, it had struck against the bicycle of victim Bal Bahadur who had sustained fatal injuries. Hence, the present case FIR was registered.
ii) Charge for the offences punishable under Sections 279/304-A IPC was framed against accused to which accused pleaded not guilty and claimed trial.
iii) The prosecution in support of its case examined as many as 13 witnesses i.e. PW1 Subhash Bhatia, PW2 HC Devender, PW3 Dr. V.N. Acharya, PW4 Yum Bahadur, PW5 Suresh Kumar, PW6 Jai Chand, PW7 CA No.75/2013 2/10 SI Mohan Chander, PW8 Ct. Mohan Lal, PW9 ASI Ramesh Chander, PW10 Ct. Basant Kumar, PW11 Ct. Om Prakash, PW12 Ct. Daljeet and PW13 SI Babu Lal.
iv) After completion of prosecution evidence, accused/appellant in his statement under Section 313 Cr.P.C. denied all the incriminating evidence and choose not to led any defence evidence.
v) The Ld. Trial Court after hearing the final arguments, vide its impugned judgment dated 31.01.2011 convicted accused/appellant for the offences punishable u/s 279/304A IPC and order on sentence dated 28.09.2013, sentenced accused/appellant to undergo SI of 10 months and to pay fine of Rs.4,000/- for the commission of offence punishable u/s 304A IPC and also sentenced to undergo SI of 3 months and to pay fine of Rs.1000/- for the commission of offence punishable under Section 279 IPC. Both sentences have been directed to run concurrently. In default of payment of total fine of Rs.5000/-, convict/appellant has been directed to further undergo SI of 2 months.
3. Aggrieved by his conviction vide impugned judgment of conviction dated 31.01.2011 and order on sentence dated 28.09.2013, appellant/accused has preferred the present appeal on the grounds CA No.75/2013 3/10 mentioned below.
It is stated that Ld. Trial Court has erred in believing and relying the statements of prosecution witnesses which are full of contradiction and unreliable. The Ld. Trial Court has failed to appreciate the cross-examination of PWs done by the defence counsel.
It is stated that the Ld. Trial Court has failed to consider that appellant is not a habitual criminal and earning his livelihood from the lawful means and his freedom guaranteed under Constitution cannot be curtailed on the basis of presumption. In the present case the prosecution has failed to prove its case beyond reasonable doubt rather filled its gaps and lacunas with the presumption and suppositions.
It is further stated that the Ld. Trial Court has failed to appreciate that prosecution during investigation of the case, failed to join any public or independent witness, as per the deposition of the witness nor any efforts were made by the investigation officer in respect of the same.
It is further stated that Ld. Trial Court failed to consider that there is a delay of almost 5 hours in the registration of the case with respect to the alleged accident. There is no satisfactory explanation with respect to delay in registration of the FIR at the PS. Witnesses have given the vague explanation without any supporting evidence in respect of the same.
It is further stated that Ld. Trial Court failed to consider the fact rather overlooked that once, as per the prosecution story, the convict CA No.75/2013 4/10 taken to the police station, why he was brought back to the spot. In addition there is no documentary evidence brought on record as to the fact that the appellant was taken to the police station.
It is further stated that Ld. Trial Court has failed to take into consideration that as per IO, the injured was unfit for statement, but surprisingly there is no application for obtaining the statement of unknown injured has been exhibited.
It is further stated that the Ld. Trial Court failed to consider that the IO in connivance of the PW1 who has concocted a false story against convict. It is clearly exhibited by the sequence of deposition of PW1 and other witnesses that he cocked up a false story of going to PS and coming back at the spot.
It is further stated that the Ld. Trial Court failed to consider that the first information of the alleged accident was lodged vide DD no. 23A and what was the source of information in respect of same has not been mentioned nor there is any vehicle and name of driver and source of information, makes the version of PW1 even more doubtful and PW1 introduced as bogus witness can’t ruled out.
It is further stated that the Ld. Trial Court failed to consider the Bus No. DEP 5389 was a public transport vehicle and was carrying passengers, the prosecution side failed to join even a single passengers from said bus being travelers. The reason being that no accident was CA No.75/2013 5/10 caused by Bus No. DEP 5389 being driven by convict/appellant.
It is further stated that Ld. Trial Court erred in giving much consideration to deposition of all except PW11 and 13 which remained without cross examined. It is submitted that the PWs were rightly left without cross-examination, being the formal witnesses in nature and having less relevance.
It is further stated that Ld. Trial Court has failed to consider the arguments submitted by defence counsel that even if, for the sake of arguments, it is presumed that convict/appellant has caused the accident, PW1 examined before the Ld. Trial Court deposed only that a bus came from the side of Sindhiya House Janpath Road at a fast speed and hit a person, in his examination in chief. But the cross-examination of the witness nil opportunity. It is submitted that merely driving fast does not render the person guilty of rashness and negligence. Driving fast cannot be amounted to rashness and negligence in every circumstances.
Hence, it is submitted that prosecution has failed to prove the case against accused/appellant beyond reasonable doubt and prayed that impugned judgment dated 31.01.2011 and order on sentence dated 28.09.2013 be set aside and appellant/accused be acquitted.
4. Arguments on appeal already heard.
CA No.75/2013 6/10
5. I have seen the trial court of record, grounds of appeal, testimonies of all the witnesses, impugned judgment and order on sentence and considered the arguments advanced and my inference is that there is no infirmity in the impugned judgment dated 31.01.2011 and order on sentence dated 28.09.2013 passed by the Ld. MM and present appeal be dismissed on the following grounds apart from those stated by the Ld. Trial Court:-
firstly, the first and foremost ground to attack the impugned judgment is that there is no independent witness to the accident.
I have seen the examination of PW1 Subhash Bhati who was Employer of deceased Bahadur. He saw the accident on 31.12.1992 at about 3.55pm. He deposed that accused Surender Kumar present in the Court was driving the bus at the time of accident in rash and negligent manner. He also saw his servant sustained injuries and he was removed to the hospital in the police vehicle. He lodged the report to the police Ex.PW1/A bearing his signatures at point A. Police seized the bus No. DEP 5389 and cycle vide memos Ex.PW1/B, C bearing his signatures. The driving licence of accused was seized vide memo Ex.PW1/D bearing his signatures at point A. Accused was arrested and his personal search was conducted vide memo Ex.PW1/E. Lateron, his servant died in the CA No.75/2013 7/10 hospital due to injuries received in the accident.
It may be noted that no cross-examination of this witness was done on behalf of accused. Hence, to say that there is no independent witness to the accident, is false.
Secondly, PW11 was Ct Om Parkash who was posted as Ct at PS Connaught Place on 31.12.1992. He deposed that on 31.12.1992, he was the beat officer of the division no.2 (beat no.2) and was present near Wimpy Restaurant on patroling. At about 3.55 pm, he saw one bus no. DEP-5389 came from the side of Outer Circle Scindia House in a high speed and jumped the crossing of Janpath red light and struck against one cyclist who fell down there and driver went away with bus. He sent the message to the police station through wireless and injured was sent to the hospital on PCR Van. In the meanwhile, IO came to the spot and recorded the statement of eye witnesses.
PW11 was also an independent witness who was present at the spot. Surprisingly, a suggestion was given to him during cross- examination that “It is wrong that when the traffic light was becoming yellow from red the accused pass the red light”. This suggestion itself goes against accused as accused himself has admitted that he jumped the red light.
CA No.75/2013 8/10 Thirdly, PW2 was HC Davender Singh who took the photographs of the spot. PW3 was Dr. B.N. Acharya, CMO, Subzi Mandi who conducted the postmortem on the body of deceased. PW4 was M. Bahadur who identified the dead body of his deceased brother at RML Hospital. PW5 Suresh Kumar was the registered owner of the offending bus and took the bus on superdari. PW6 was Record Clerk, RML Hospital who proved the MLC of the injured. PW7 was SI Mohan Chander who registered the FIR in question. PW8 was Ct. Mohan Lal who has gone to the spot with IO and corroborated the version of IO. PW9 ASI Ramesh Chander who prepared the challan and submitted in the Court. PW12 was Ct. Daljeet Singh who took the dead body to Subzi Mandi for postmortem and then handed over the dead body to relative of deceased. PW13 was Retd. SI Babu Lal who took the injured to the hospital were he was declared brought dead. Surprisingly, the cross-examination of all these witnesses remained nil. Hence, there is no dent in the prosecution story and the evidence led by the prosecution.
6. In view of above, I find no infirmity in the impugned judgment dated 31.01.2011 and order on sentence dated 28.09.2013 passed by the Ld. MM. The present appeal is accordingly dismissed.
7. Let the warrants in appeal be issued against accused/appellant CA No.75/2013 9/10 and he be sent to judicial custody for completing his sentence as awarded by the Ld. MM vide order on sentence dated 28.09.2013 i.e. to undergo SI of 10 months and to pay fine of Rs.4,000/- for the commission of offence punishable u/s 304A IPC and to undergo SI of 3 months and to pay fine of Rs.1000/- for the commission of offence punishable under Section 279 IPC. In default of payment of total fine of Rs.5000/-, convict/appellant to further undergo SI of 2 months. Both sentences to run concurrently.
8. Personal bond of appellant/accused is cancelled and his surety stands discharged. Benefit ofSection 428 Cr.P.C. be given to appellant/accused. Fine of Rs.5000/- has already been deposited.
9. TCR be sent back alongwith copy of this judgment. Copy of this judgment be given dasti to accused/appellant free of cost.
10. Appeal file be consigned to record room.
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