SUDHIR KUMAR Vs. STATE

JUDGEMENT

(1.) In this appeal which is directed against the order of a learned Additional Sessions Judge, Delhi, dated 26th September, 1968. convicting the appellant for an offence under section 333. Indian Penal Code, and sentencing him to rigorous imprisonment for one year and a fine of Rs. 100.00 or in default to a 'further rigorous imprisonment for two months, after hearing the arguments and going through the record. I made short order on 7th November, 1968, acquitting the accused because I felt that no offence under section 333, I. P.O., was made out. I would now proceed to give my detailed reasons therefor.

(2.) The prosecution case. according to the order of the Court below, is that on 22nd September. 1967, Dharam Singh Constable was on duty at the main outer gate of Delhi Main Railway Station from 9.00 A.M. to 12 noon. At about 10.20 A.M., he is stated to have given a signal to the traffic coming from the Koria Bridge to stop and he permitted the traffic coming from the side of the Railway Station to pass. A threewheeler scooter No. DLR 4523 coming from the side of Koria Bridge was accordingly also given a signal to stop. This scooter was driven by Sudhir Kumar, appellant in this Court. In utter disregard of the signal, Sudhir Kumar reached the sentinal post where Dharam Singh was standing. Accarding to the prospcution the scooter was going on an excessive speed. Dharam Singh again whistled to the appellant and signalled him to "top, but the appellant did not care for this signal. Apprehending the possibility of some accident. Dharam Singh Constable is stated to have got down from the sentinal point and to have attempted to stop the appellent who, instead of stopping, struck against him. As a result thereof, a wheel of the scooter is alleged to have run over Dharam Singh's left foot. Thereupon Dharam Singh extended his hand to stop the appellant from going further, but his hand got entangled in the scooter and he was dragged for about 10/15 yards thereby receiving injuries on his left foot, left elbow, right knee and other parts of the body. The left foot, it is alleged, was a result, fractured, This incident is stated to have been witnessed by Abbey Ram, Constable Traffic. who was posted on the next point on the same road and by Chand Khan and Gulab Bhadur who are stated to have stopped the scooter and rescued Dharam Singh. The accused in his examination under section 342 Criminal Procedure Code, denied the prosecution version and stated that on the date of occurrence, he was proceeding from the Koria Bridge towards the outer gate of Delhi Main Railway Station at about 10.16 A. M. with a passenger whose name he later learnt to be Mulkh Raj When he reached near the outer gate of Delhi Railway Station, Dharam Singh tried to stop a scooter going ahead of the appellant. That scooter crossed the stop line, with the result that Dharam Singh got down from the traffic point and went towards the footpath to stop that scooter, but in vain. As there was no police constable on the traffic point, the appellant slowly proceeded forward and also blew his horn. When the appellant reached the traffic point, Dharam Singh come back and struck against the appellant's scooter and also used offensive language towards the appellant saying that the scooter drivers adopt harassing attitude. The learned Additional Sessions Judge in his judgment does not seem to have correctly noticed the contents of the written statement filed by the appellant. Relying on the statements of Dharam Singh, Abbey Ram, Chand Khan and Gulab Bahadur, the learned Additional Sessions Judge convicted the appellant as mentioned earlier.

(3.) On appeal in this Court, as observed earlier, I was taken through the entire evidence on the record by the learned counsel for the parties and I must at the outset state that Shri V, D. Misra. the learned counsel for the State, after the entire record had been perused, very fairly expressed his inability in supporting the conviction. This attitude is in accord with the high traditions of the bar, according to which the prosecuting counsel is not interested in securing conviction at all costs, but he has a duty to see that justice is done according to law. Turning now to the statement of Dharam Singh, the Traffic Constable concerned who appeared as P. W. 7, he has deposed that at about 10.20 A. M., while on duty at the main out-gate of Delhi Main Railway Station on 22nd September, 1967, he gave a signal to the traffic coming from the side of Kauria Bridge to stop and permitted the traffic from the station side to pass on. The scooter driven by the accused in violation of the direction, passed on at an excessive speed and reached the place where the witness was standing. The witness gave a whistle and also a signal with his hand for the accused to stop. Apprehending accident, the witness got down from the sentinal point and tried to stop the accused, but instead of stopping his scooter, the accused struck against the witness. He has admitted in cross-examination that at about 10 A. M. there is a heavy rush of traffic at the point in question due to arrival of a number of trains at Delhi Main Railway Station and indeed on the date of incident also, he had admitted that there was sufficient traffic. The signal was given by the witness when the accused was about 30 yards away from him and when the witness got down from the sentinal point, the scooter of the accused was about one foot from there. Now, if this be the state of affairs, it would require a very credulous mind to accept the version of this witness when he says that it was be- cause of apprehension of some accident that he got down from the sentinal point and extended his hand to stop the accused after his left foot was run over by the scooter of the accused, and that his hand was entangled in the scooter and he was dragged for about 10/12 yards unto the octroi post near the main gate of the town hall. When one tries to picture to oneself the scene described by this witness, one realises the unreality of it. The statement of this witness that the shirt of his uniform was also torn during this incident, merely serves to add to the unrealitgy making it look almost absurd. I do not mean to say that nothing happened at the time and place in question, but I am only concerned with seeing whether the the prosecution has established an offence under section 338, I P.C. against the accused in regard to the alleged occurrence which is the subject-matter of his trial. It is no less noteworthy that it was not Public Witness 7 Dharam Singh who challaned the accused but one Ramesh Chander Head Constable who did so and Dharm Singh has expressed his ignorance about the offence for which the accused was challened as a result of the alleged incident deposed to by him. The witness admitted that cases of violation of traffic rules had to be noted by constables on duty like him in their diaries, but unfortunately, I do not find that any case of violation of traffic rules on the basis of the alleged occurrence in question has been initiated by this witness against the accused-appellant. That Dharam Singh is not a man who has much regard for truth would be obvious from the fact that in cross-examination, he first expressed complete ignorance about Gulab Bahadur and Chand Khan Public Witness s. who appeared in this case in support of the prosecution version, Irdeed,hewentto the .length of; saying that he had enquired about the names of Chand Khan and Gulab Bahadur at that time because they had rescued the witness from the scooter of the accused, though he did not care to note down their names and addresses in his diary. When the matter was pursued further by the counsel for the accused by questioning him about the parentage and residence of Chand Khan and Gulab Bahadur he was constrained to admit that he was a tenant of Gulab Bahadur in house No. 2814 for the last 8/9 years at are rental of Rs. 15.67 nP.per month. Gulab Bahadur also lived in the same house and the witness knew him previously. About Chand Khan. the witness persisted that be came to know him only at the spot on the day of occurrence. He denied that Chand Khan was a neighbour of Gulab Bahadur which would,, in other words, mean a neighbour of the witness himself. It was specifically put by the counsel for the accused to this witness, though denied by him, that one scooter going ahead of the accused was being driven at a fast speed and that Dharam Singh tried to stop that scooter and got injured in this attempt. The witness denied that Chand Khan and Gulab Bahadur used to be associated by the police in raids and that they used to appear as prosecution witnesses.