MOHD NASIM Vs. STATE

JUDGEMENT

(1.) The present criminal revision petition is filed under Sec. 397/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") read with under Sec. 482 of the Code to set aside the order dtd. 27/3/2017 (hereinafter referred to as "the impugned order") passed by the court of the District and Sessions Judge, East, Karkardooma Courts (hereinafter referred to as "the appellate court") in Criminal Appeal bearing no. 250/2016 titled as Mohd. Nasim V The State (Govt. of NCT of Delhi) and the judgment dtd. 17/3/2016 (hereinafter referred to as "the impugned judgment") and order on sentence dtd. 15/7/2016 passed by the court of Metropolitan Magistrate-03, East, Karkardooma Courts (hereinafter referred to as "the trial court") in case arising out of the FIR bearing no.151/2009 registered under Sec. 279/337 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") at PS Mandawli Fazad Pur.

(2.) The relevant facts as reflected from the impugned judgment passed by the trial court are that SI Yad Ram (hereinafter referred to as "the Investigating Officer") after receipt of DD bearing no. 22A dtd. 10/4/2009 recorded at PS Mandawli Fazad Pur regarding an accident went to the spot where he found that one rickshaw used for carrying goods and a blue line bus bearing registration no. DL 1PB 9786 plying on route no. 534 (hereinafter referred to as "the offending vehicle") were lying in accidental condition. Thereafter, the Investigating Officer went to LBS Hospital where he found that the injured Mahesh (hereinafter referred to as "the deceased") s/o Bhuri Lal was under treatment. The Investigating Officer recorded the statement of Mohd. Sabir (hereinafter referred to as "the complainant") wherein he stated that on 10/4/2009 at around 03:45 PM at T-point, Narwana Road, near Paradise Apartment, he was coming on rickshaw which was being driven by the deceased and the complainant was also sitting on the said rickshaw. In meantime the offending vehicle which was being driven in a rash and negligent manner, came and hit the rickshaw from the back side. The complainant along with the deceased fell down on the right side of the road due to the collision and the rear tyre of the conductor side of the bus ran over the deceased as a result of which he sustained injuries but the complainant did not sustain any injury. PCR removed the deceased to the hospital. The driver of the bus was also apprehended by the complainant with the help of public and was handed over to the police. Thereafter, the present FIR was got registered under Sec. 279/337 IPC on the basis of the statement made by the complainant. The Investigating Officer conducted further investigation. The deceased died during the treatment and the post-mortem on dead body of the deceased was conducted. The Investigating Officer added Sec. 304A IPC due to the death of the deceased. The charge-sheet after conclusion of investigation was filed on 5/11/2009. The concerned court had taken the cognizance and after complying with Sec. 207 of the Code, notice under Sec. 251 of the Code was given to the petitioner/accused/driver Mohd. Nasim (hereinafter referred to as "the petitioner") for the offences punishable under Sec. 279/304A IPC vide order dtd. 6/5/2010 to which the petitioner pleaded not guilty and claimed trial. The prosecution to prove the guilt of the petitioner examined 11 witnesses including the complainant as PW-3 and the Investigating Officer as PW-11. The prosecution evidence was ordered to be closed vide order dtd. 7/7/2012. The statement of the petitioner was recorded under Sec. 313 of the Code read with Sec. 281 of the Code vide proceedings dtd. 21/7/2012 wherein the petitioner pleaded innocence and false implication. The petitioner also stated that no accident was caused by him. The accident had happened due to the collision between one Toyota Innova car and the rickshaw being driven by the deceased. The deceased as result of the collision, had fallen down near the tyre of his bus and as such he did not have any role in the accident. The petitioner preferred to lead defence evidence and examined Jawed Khan as DW1. The defence evidence was ordered to be closed vide order dtd. 29/9/2015.

(3.) The petitioner being aggrieved filed the present petition to set aside the impugned order passed by the appellate court on the grounds that the impugned order is contrary to law and facts of the case. The courts below failed to appreciate that the statement made by PW3/complainant regarding the manner in which the alleged accident took place is contrary to the medical evidence. The place of accident as shown in the site plan did not indicate any possibility of negligence on the part of the petitioner while driving the offending vehicle. The prosecution could not prove the case beyond reasonable doubt. The presence of the eyewitness i.e. PW3/complainant is doubtful on the basis of contradictory evidence led by the prosecution. The Investigating Officer did not include any other public witness who was stated to be present at the time and place of the accident. There were material contradictions in the respective statements of the witnesses examined by the prosecution. The counsel for the petitioner prayed that the impugned order passed by the appellate court and the impugned judgment and the order on sentence dtd. 15/7/2016 passed by the trial court be aside and the petitioner be acquitted.