State vs Llyas @ Chhakan Khan
2011 Latest Caselaw 3258 Del

$~1.

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

    %                             Judgment delivered on:11th July, 2011
        Crl.L.P.262/2011

        STATE                                          ..... Petitioner
                                      Through: Mr. Arvind Kumar
                                      Gupta, APP for State
                         Versus

        LLYAS @ CHHAKAN KHAN                           ..... Respondent
                                      Through: None

        CORAM:
         HON'BLE MR. JUSTICE SURESH KAIT
     1. Whether the Reporters of local papers may be allowed to
        see the judgment?                                YES
     2. To be referred to Reporter or not?               YES
     3. Whether the judgment should be reported          YES
         in the Digest?

SURESH KAIT, J. (ORAL)

+ Crl.L.P.262/2011

1. This petition is being filed by State against the judgment

dated 23.12.2011 whereby the accused has been acquitted by

the learned Metropolitan Magistrate , Dwarka, Delhi.

2. The facts in brief of the case are that on 18.11.1998, on

information received at PS Jafarpur Kalan vide DD No.23-A, Head

Constable Sh.Satya Prakash along with Constable Naresh Kumar

went to spot i.e. Bakkar Garh Mor Bahadur Garh and saw scooter

bearing registration No.DL4S-H-5577 lying on the side of the

road, he also noticed stains of blood at the spot. On enquiry he

came to know that both the injured had been removed to some

unknown hospital. No eye witness met him on the spot.

Thereafter, he returned to police station.

3. The complainant along with two dead bodies and some

persons met him in the Police Station. The statement of

complaint Sh.Umed Singh was recorded on 18.11.2010. In his

complaint he stated, that on 18.11.1998, after finishing his job he

came by bus and got down at Bahadurgarh Mor Bus stand. About

5-6 other persons who were going towards his village on foot,

were also along with him. He saw two young boys on a scooter

crossed them. At about 06:30 PM a truck being driven in a rash

and negligent manner came from Bahadurgarh side and hit the

scooter from right side due to which both the boys fell far from

the scooter. The people raised shouts of "PAKRO PAKRO" but

due to darkness, the number of truck could not be noted down.

He along with some other persons rushed towards both the boys

and saw that the boys had received injuries on their head and

feet and blood was also oozing out from various parts of their

body. He saw that one of those boys was of his own son namely,

Sh.Jai Singh @ Sonu and other boy namely Devender,

S/o Shri Shanti Swaroop belongs to his village.

4. With the help of the other public persons he stopped one

tempo and took both the injured to the hospital at Jafarpur. The

doctor at the hospital gave injection to both injured and referred

them to another hospital. Thereafter, in the same tempo, he took

both the injured to Kailash Nursing Home, Najafgarh where after

giving some treatment to both the injured, were declared dead.

5. After informing his relatives in the hospital and in village he

took both the dead bodies to PS Jafarpur Kalan in the same

tempo. He further stated that the said accident took place due to

rash and negligent driving of the truck driver. This accident was

also witnessed by other public persons.

6. The FIR for the offence under Sections 279/304-A Indian

Penal Code got registered on the statement of the complainant.

The IO proceeded to investigate the matter. During investigation,

the IO prepared a site plan and got the spot photographed.

Thereafter the investigation was marked to SI Braham Jeet Singh.

During further investigation, SI Braham Jeet Singh, seized the

motorcycle and truck involved in accident and got both of them

mechanically inspected and deposited the same in „Mal Khana‟.

7. Thereafter, the post-mortem of both the dead bodies was

conducted. IO collected the reports No.3639 and 3638/1998 from

the hospital and handed over the dead bodies to their legal heirs.

He issued noticed under Section 133 Motor Vehicles Act, to

Sh. Virender Singh, the owner of the truck bearing No.HR-38-

2558 and arrested the accused. Thereafter he filed the challan

under Sections 279/304A Indian Penal Code against the said

accused.

8. Vide order dated 01.09.2000, order was famed against the

accused under Sections 279/302A IPC, the accused pleaded not

guilty and claimed trial.

9. The prosecution examined 14 witnesses and the accused

produced one defence witness.

10. PW-1 Head Constable, Sh. Ramesh deposes that on

18.11.1998, he was posted as Duty Officer at PS JP Kalan from

04:00 PM to 12:00 PM. At about 07:00 PM on receipt of

information from PCR regarding accident at Bakargarh morh, he

recorded DD No.23 in book No.12364 dt. 18.11.1998 and proved

the same as „Mark A‟.

11. PW2 Head Constable, Sh.Kishan deposed that he was

posted as Duty Officer on 19.11.1998 at PS J.P. Kalan from

12:00 PM to 08:00 AM. At about 12:17 AM on receipt of rukka

from HC Sat Prakash, he recorded FIR bearing No.143/1998, book

No.1525 vide DD No. 5 and the carbon copy of the same as Ex.

PW2/A.

12. PW3 Sh.Umed Singh who is the complainant in the present

case, has deposed that on 18.11.1998, he was coming back from

his duty from SDM office, Patel Nagar along with 5-6 persons by

bus. He alighted from the bus at Bakargarh morh with those 5-6

persons. At about 06:00 PM two persons came on a scooter and

went ahead of them, as they had travelled at a distance of about

200 meters, a truck came from the front side of the scooter,

i.e., Bakargarh side at a high speed in a rash and negligent

manner and struck against the scooter. He further stated that

after the accident, the driver of the said truck ran away from the

spot and due to darkness, he could not note down the number of

vehicle.

13. PW4 retired SI Lekhi Ram deposed that on 22.11.1198 he

had mechanically inspected one scooter bearing No.DL4SH-5577

and truck bearing No. HR-38-2558 on the request of the IO. He

proved his report as Ex.PW4/A and Ex.PW3/B respectively.

14. PW8 Sh. Ram Mehar deposed that on 18.11.1998, after

finishing his duty hours, he was going to his village Gobbana and

in the way at Bakargarh road, he was waiting for some

conveyance. Thereafter, he along with some other persons

started walking. Then he saw the truck bearing No. HR-38-2558

coming from the front side, and hit a scooter after crossing them.

He along with other persons went to the spot for helping the

injured but the driver of the truck ran away. He further stated

that he did not see the driver of the truck on the spot so he could

not identify him in the Court.

15. PW9 Sh. Chand Singh stated that on 18.11.1998, he was

going to his house and on the way, he got down at Bakargarh

morh, where he heard that some accident had taken place on the

approach road which leads to his village. Further he stated that

he did not see the accident nor the offending vehicle. He reached

the sport later on.

16. PW11 Constable Sh. Naresh Kumar stated that on

18.11.1998, he was posted at PS JP Kalan and on receipt of

DD No. 23A, he along with HC Sat Prakash reached at Bakargarh

road near Bakargarh Morh at about 11:30 PM where a scooter

bearing No.DL4S-H-5577 was found in an accidental condition. He

further stated that the injured had already been shifted to private

hospital. He left the spot and went to the hospital. He further

stated that SI Braham Jeet Singh and HC Satya Prakash came to

the spot, scooter was seized by SI Braham Jeet Singh vide

Ex.PW10/A and also prepared the site plan Ex.PW12/B.

17. PW12 SI Satya Prakash, is the first IO of the case and he

supported the deposition made by PW11.

18. PW13 SI Braham Jeet Singh deposed that on 19.11.1998, he

was posted at PS Jafar Kalan and on assignment of further

investigation of registration of the FIR of this case, he along with

the HC Satya Prakash and complainant Umed went to the sport at

about 12:40 AM. He seized the scooter vide memo Ex.PW10/A

and prepared the site plan Ex.PW12/B. He further deposed that

the dead bodies kept in a tempo were handed over to him by

Sh. Umed Singh and he got them preserved at Sabzi Mandi

mortuary, and prepared inquest papers Ex.PW13/1 to PW13/11

and after post-mortem the dead bodies were handed over to the

relatives of the deceased, he further stated that he got the spot

photographed and proved positive of photographs at mark A-1 to

mark A18. Then he served a notice to the owner of the vehicle

who produced the accused, being driver of the offending vehicle.

He seized the dumper vide memo Ex.PW13/C and Driving

Licence. He conducted personal search of accused and proved

the same as Ex.PW13/D and Ex. PW13/E and got both the

vehicles mechanically inspected. He collected post-mortem

report and got recorded judicial TIP of accused in the Court to

which the accused refused. He also recorded statements of the

witnesses.

19. PW14 Dr. Sarvesh Tandon, who conducted post-mortem on

2 bodies and the deceased, namely, Sh. Jai Singh, S/o Sh. Umed

Singh and Sh.Devinder S/o Sh. Shanti Swaroop and proved the

report at Ex. PW14/A and PW14/B respectively. He opined that all

the injuries were ante mortem in nature and cause of death was

cranio cerebral damage due to blunt force impact over the head

and time of death was about 18-20 hours earlier.

20. Statement of the accused was recorded under Section 313

of the Cr.PC wherein the incriminating evidence was put up to

him. Further the accused deposed that he was falsely implicated

in the said case.

21. DW1 Sh.Virender Singh Teja deposed that he was owner of

the vehicle bearing No.HR-38-2558. He was doing the work of

stone crushing and he had 4-5 trucks. On 21/22.11.2008, he

received a phone from Bakargarh plant that he should sent one of

his vehicle for verification as some accident had been taken

place. He dispatched the truck immediately and thereafter the

truck was taken by the SHO managing aforesaid Bhakargarh

plant. Thereafter, he was calling PS where SHO told him that

truck bearing No.HR-38-2558 was not involved in the accident.

He further stated that he was told that the vehicle was required

for the further investigation and thereafter the said truck will be

returned on the next day. On the next day, he was informed by

the SHO that due to public pressure he could release the vehicle.

He enquired from his driver Ilyas regarding accident who

categorically denied that he caused the accident.

22. On the next date, he went to PS where the many villagers

gathered. He even tried to enquire from them if anyone had seen

his truck causing an accident but they did not budge and said

that since the truck has been taken into the possession by the

police, therefore, this is the only truck which caused accident.

23. After considering the arguments of both the counsels, the

Trial Judge has came to the conclusion the most of the witnesses

are eye witnesses in the present case. The prosecution had

examined PW3 Sh. Umed Singh PW8 Ram Mehar and PW9

Sh. Chand Singh as the eye -witnesses. PW3 Sh. Umed Singh in

his examination-in-chief deposed that the accused while driving

HR-38-2558 crossed them at a distance, he was driving in a rash

and negligence manner which resulted in an accident with a

scooter and caused death of his son Jai Singh and one

Sh. Devidner Singh. The said witness in his cross-examination

stated that he could not note down the number of truck due to

darkness, but he indentified the accused as the driver who was

driving the offending vehicle.

24. As per the prosecution version, the time is about 06:30 PM

in the month of November and during that hour it becomes dark,

therefore, the deposition of the witness that he could not note

down the number of the truck due to darkness is believable.

There is no evidence that the light inside the truck was on or it

was a highly lighted area. It was, therefore, unbelievable that

witness who could not note down the number of truck due to

darkness, was able to identify the accused as the person who was

driving in such darkness.

25. PW3 Sh.Umed Singh in his examination-in-chief stated that

name of the accused as Ilyas Khan was known to him from

Bakargarh, Haryana, thereafter, this fact supporting the plea of

the accused that he has been shown to the witness. Hence, no

adverse influence was taken against the accused that he had

refused to join the TIP.

26. Moreover, the witness who had seen the accused for the

first time, admits darkens and then identified him in the Court for

the first time after about four years from the incident. This throws

doubt as to veracity of his testimony. The Trial Judge has relied

upon on the case of Munshi Singh Gautan Vs. State of MP

2004 (3) JCC 1816 it has been held by the Hon‟ble Apex Court

that "when identifying witness is a total stronger who had just a

fleeting glimpse of person identified or who had no particular

reason to remember the person, accused no much evidentiary

value can be attached to such identification in Court, if

identification is made for the first time in Court".

27. The other eye witness Sh. Chand Singh had categorically

denied in examination-in-chief that he saw the accident rather he

stated that he reached on the spot later on. In his cross-

examination, he also denied having made such statement to the

police or having identified the accused before the police.

28. PW8 Sh.Ram Mehar who claimed to be an eye-witness has

stated that he did not see the truck on the spot so he could not

identify the driver of the truck. The testimony of these eye

witnesses does not inspire any confidence. Further, PW8 has

categorically failed to identify the accused.

29. The testimony of PW3 regarding identification of accused to

the effect that he identified the accused in darkness in the

absence of any evidence of light being on inside the truck and

especially when he could not note down the number of the truck

due to darkness appears to be doubtful.

30. Keeping in view of the facts and circumstances of the case,

not even eye-witness present at the spot of the accident said

anything against the accused.

31. Therefore, I find no infirmity in the order passed by the ld.

Trial Judge on 23.12.2010. Accordingly, Crl. L.P. No.262/2011 is

dismissed.

Crl. M.A. No. 7365/2011

Since Criminal LP has been disposed of, this application

becomes infructuous.

SURESH KAIT,J

JULY 11, 2011 Neelam/RS