* HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. NO.232/2009
Date of Decision : 14.7.2011
STATE OF NCT OF DELHI ...... Petitioner
Through: Mr.Asim, Adv.
Versus
RAJ KUMAR ...... Respondent
Through: Ms.Nandita Rao, Adv.
CORAM :
HON'BLE MR. JUSTICE V.K. SHALI
1. Whether Reporters of local papers may be
allowed to see the judgment ? NO
2. To be referred to the Reporter or not? NO
3. Whether the judgment should be reported
in the Digest? NO
V.K. SHALI, J. (Oral)
1. This is a leave to appeal petition filed by the State against the judgment dated 23.5.2009 passed by the learned MM, Saket Court, East, Dwarka, New Delhi acquitting the respondent of the charges under Section 279/304A IPC.
Crl.L.P.No.232/2009 Page 1 of 6
2. Briefly stated the facts of the case are that an FIR No.171/2000, u/S 279 and 304A IPC was registered by one Sh. Jagat Ram at P.S. Kapashera on 13.10.2000, who had alleged that on the said date, his two sons named Santosh and Praveen were riding a bicycle and they were travelling from Baba Farm to DP Farm, Samalkha. Santosh was driving the cycle and his brother Praveen was sitting on the carrier. It is alleged by Jagat Ram that he witnessed a Tata Tempo 407 bearing No.DL ILB 7823 that was being driven rashly and negligently and it hit the bicycle, as a consequence of which Santosh fell on the side of the road while Praveen came under the rear wheel of the tempo. Praveen's head was crushed which resulted in his instant death.
3. Notice under Section 279/304A IPC was issued to the accused/respondent. He pleaded not guilty and the prosecution in support of his case examined Sh.Jagat Ram PW-1 and Santosh PW-3, apart from PW-5 Dr.Lalit Crl.L.P.No.232/2009 Page 2 of 6 Kumar, who provided the post mortem report Ex.PW5/A, and the other formal witnesses.
4. Documents like photographs of the site, seizure memo of the tempo and cycle, etc. were also proved before the Trial Magistrate as Ex.PW4/A to PW 4/C, PW6/C, PW2/A and PW6/E1 to PW6/E8.
5. After conclusion of the prosecution evidence, the statement of the accused u/S 313 was recorded and he admitted the factum of accident but took the plea that the accident occurred on account of the negligence of the riders of the bicycle because they were not able to control the same which resulted in collusion with tempo.
6. The learned counsel for the parties were heard and the learned Magistrate acquitted the respondent/ accused by giving him the benefit of doubt as he found the material in contradiction with the version that was presented before him by PW-1, the father and PW-3, the brother of the deceased.
Crl.L.P.No.232/2009 Page 3 of 6
7. It was observed by the learned Magistrate that so far as PW-1 is concerned, he stated that he was following the cycle at a distance of 200 mtrs. from behind while as PW-3 his son Santosh testified that their father was ahead of them.
8. The learned Magistrate observed that if the testimony of PW-3 Santosh is to be believed, then the father being ahead of the cycle could hardly have an opportunity to see the accident taking place.
9. The learned Magistrate also observed that even if the testimony of PW-1, which is at variance with that of PW- 3 is to be believed, he was at a distance of 200 mtrs. from the riders, at such a distance, he could not have seen that the vehicle was being driven in a rash and negligent manner and consequently he doubted testimony of PW-1 having seen the accident that was allegedly caused by the rash and negligent driving of the accused. The learned Magistrate had observed that there are two possibilities in which accident could have taken Crl.L.P.No.232/2009 Page 4 of 6 place (i) one on account of negligence of the tempo driver and the second on account of the loss of control by the cyclist himself, the benefit of which has been rightly given by the Magistrate to the accused.
10. The appeal was listed today before this Court. A request for adjournment was made which has been turned down on account of the fact that the previous order shows repeated adjournments have been sought despite the fact that the leave to appeal was filed in the year 2009.
11. There is absolutely no justification for keeping the respondent/accused hanging under the suspense of the present case and accordingly, I have heard the learned counsel for the respondent and gone through the judgment and do not find anything which will merit the grant of leave to the State to appeal against the acquittal.
12. In my opinion, there is a contradiction in the testimony of the son and the father i.e. PW-3 and PW-1 that is so inherent in their version and it goes to the root of the Crl.L.P.No.232/2009 Page 5 of 6 matter. Obviously, I feel that the testimony of PW-3 being a child is more truthful in comparison to the testimony of his father. If that be so, then the father who according to PW-3 was in front of the cycle could not have seen the accident taking place and consequently, it becomes doubtful whether the accident was caused by the negligence of the driver of the offending vehicle or not.
13. For the above mentioned reasons, I feel that the learned Magistrate has rightly acquitted the respondent by giving him the benefit of doubt and there is absolutely no ground for grant of leave to appeal to the State. Accordingly, the present leave to appeal is dismissed.
14. File be consigned to the Record Room.
V.K. SHALI, J.
JULY 14, 2011 RN Crl.L.P.No.232/2009 Page 6 of 6