State Of Nct Of Delhi vs Raj Kumar
2011 Latest Caselaw 3344 Del

*              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.

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

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.

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

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

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