Jitender Singh vs State
2011 Latest Caselaw 5799 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Crl. Rev.P. No. 418/2011 & Crl.M.B. 1637/2011

%                                              Reserved on: 20th October, 2011

                                               Decided on: 29th November, 2011

JITENDER SINGH                                                 ..... Petitioner
                                 Through:    Mr. Divyesh Pratap Singh, Adv.

                        versus

STATE                                                         ..... Respondents

Through: Mr. Manoj Ohri, APP for State with SI Hukam Singh, PS Seema Puri.

Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA

1. By this petition the Petitioner seeks setting aside of the impugned judgment passed by the Learned Additional Sessions Judge dismissing his appeal and the order of Learned Metropolitan Magistrate convicting and sentencing him for offences punishable under Section 279/337/304A IPC.

2. Learned counsel for the Petitioner contends that admittedly the vehicle was coming from behind and thus the eye-witness had no occasion to see the alleged accused. Moreover, after hitting it is alleged that the driver of the truck ran away and thus there was no occasion for the witness to have seen the accused. In his cross-examination PW5 has admitted that he saw the driver from the backside. Thus, PW5 could not have identified the Petitioner. Further the TIP conducted was meaningless as PW5 has admitted that he had identified the accused in the Police Station on the next evening. It is contended that it is for the prosecution to prove beyond reasonable

doubt the rash and negligent act of the accused and there is no presumption available. As per PW2, the mechanical inspector there is neither any scratch nor the light has been broken from the backside. The Petitioner has been convicted merely in view of his reply to the alleged notice given by the Police, which is treated as an admission on behalf of the Petitioner. It is stated that the reply is not admissible in evidence as that is a statement made before a Police Officer. Moreover, in this regard the explanation of the Petitioner under Section 313 Cr.P.C. has not been taken into consideration according to which the Petitioner was made to sign on blank papers. Thus, whatever admission has been written was written later on by the Investigating Officer. Reliance is placed on State of Karnataka Vs. Satish 1998 (8) SCC 493 to contend that mere deposition that the truck was being driven at a high speed does not prove "negligence" or "rashness" by itself. The Petitioner is aged 62 years and has to look after his wife and daughter. Thus, the impugned judgments be set aside.

3. Learned APP on the other hand contends that as per the inspection report there were scratch marks on the scooter. There were fresh sign of damages on the scooter and the truck. PW5 has categorically stated that he had seen the Petitioner and has identified him. Reliance is placed on State of Karnataka Vs. Murlidhar (2009) 4 SCC 463. Hence the petition be dismissed.

4. I have heard learned counsel for the parties. Briefly the case of the prosecution is that on 7th February, 1999 at about 7.45 PM truck bearing No. HR-26-GA-0622 came in a very rash and negligent manner. It hit against a scooter bearing No. DNU-2747, caused simple injuries to Aas Mohd. who was driving the scooter and resulted in the death of his wife Sultana and their

daughter Seema who were the pillion riders on the said scooter. On the statement of Aas Mohd. PW5 FIR No. 34/99 under Section 379/337/304A IPC was registered at P.S. Seema Puri. During the course of trial witnesses were examined.

5. As per PW5 the eye-witness it is alleged that on 7th February, 1999 he was going to Kaka Nagar on his two wheeler along with his wife and daughter. At about 7.45 PM when they reached near the border one truck came from the rear side at a very high speed being HR-26-GA-0622 and hit against the scooter of PW5, as a result of which the scooter turned. PW5 along with his wife and daughter fell down. The wife and daughter were taken to the hospital but they were declared dead. The scooter was taken in Police possession and inspection was carried out. This witness in his cross- examination has admitted that he had identified the accused in the Police Station on the next day in the evening. In view of this statement of PW5, subsequently getting the TIP of the Petitioner done was certainly meaningless. Further in his cross-examination this witness has admitted the fact that he could not tell at what speed the accused was driving but he was driving at a very high speed. According to him, both the wheels of the left side of the truck rammed over his wife and his daughter and the driver of the truck after jumping from it ran away. He could not tell in which direction he ran away. He admitted having seen the accused on spot from the backside. Thus PW5 admittedly had no occasion to see the accused driving the vehicle.

6. The mechanical inspection was carried out by PW2. As per the mechanical inspection report there was fresh damage, & slight scratches on the left bumper right side. Further, PW10 has stated that he issued a notice under Section 133 of the Motor Vehicles Act (in short M.V. Act) to the

owner of the offender truck Ex.PW10/D. He states that the registered owner of the vehicle Shri Jitender Singh came there and gave his reply under Section 133 M.V. Act that he himself was driving the offending vehicle. Learned Trial Court has laid lot of emphasis on this statement of the Petitioner before the Police Officer. The Learned Trial Court has erred in relying upon the reply to the notice under Section 133 M.V. Act. The same is an admission before the Police Officer which is not admissible in evidence.

7. Further, the TIP conducted by the Investigating agency was meaningless as PW5 has admitted that he saw the Petitioner in the Police Station on the next day in the evening. Moreover, admittedly the Petitioner was seen by the eye-witness only from the backside and that would not be sufficient identification of the Petitioner. In view thereof, I am inclined to allow the revision Petition.

8. The judgments dated 13th September, 2011 passed by Learned Additional Sessions Judge and dated 3rd January, 2011 passed by Learned Metropolitan Magistrate are set aside. The Petitioner is acquitted of the charges framed. The Petitioner is in custody. Superintendent, Tihar Jail is directed to release him forthwith, if not required in another case.

9. Petition and application are disposed of.

(MUKTA GUPTA) JUDGE November 29, 2011 'ga'