Delhi District Court
State vs Robin Singh on 17 October, 2023
IN THE COURT OF SH. SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, DELHI.
DLSW020196812020
FIR No. 459/19
PS. Dwarka North
U/s.279/304A IPC
State Vs. Robin Singh
JUDGEMENT
A. Sl. no. of the case : 3274/2020
B. Date of institution : 20.08.2020
C. Date of offence : 29.10.2019
D. Name of the complainant : Md. Halim s/o Mohd. Usman
R/o H. No. 148, Gali no.7, Sainik
Vihar, Mohan Garden, New Delhi.
E. Name of the accused : Robin Singh S/o Sh. Mohan Lal
R/o RZA-86, Gali no.4, Madhu
Vihar, Sector-12, Dwarka, New
Delhi.
F. Offence complained of : u/s 279/304A IPC
G. Plea of accused : Pleaded not guilty.
H. Final order : Acquitted
I. Date of such order : 17.10.2023
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FIR No. 459/2019 State Vs. Robin Singh Page No. 1 of 12 BRIEF STATEMENT OF REASONS FOR DECISION:
1. Vide this judgment, this court will decide the case against the accused Robin Singh who has been served a notice u/s 279/304A Indian Penal Code, 1860 (hereinafter for brevity 'IPC').
2. Briefly stated the facts of the case, as alleged by the prosecution and as culled out from charge-sheet are that on 29.10.2019 at about 02:30 PM, at old palam road, near metro pillar number 810, Kakrola, Dwarka within the jurisdiction of PS Dwarka North the accused herein was allegedly driving his offending vehicle i.e. motorcycle bearing registration number DL-9SBM-7199 in a rash and negligent manner so as to endanger the human life and personal safety of others. It has further been alleged that while driving the offending vehicle in aforesaid manner, he hit a pedestrian namely Safruddin Khan under and caused his death not amounting to culpable homicide. On the basis of the account of the complainant and the inspection of the spot, the instant FIR under section 279/337 IPC was registered at PS Dwarka North, New Delhi. During the course of investigation the injured expired, whereafter his family members were informed. During the course of investigation the accused was apprehended, statement of witnesses were recorded, offending vehicle and its documents were seized, site plan was prepared, offending vehicle was got mechanically inspected by the IO and other important steps were taken towards the culmination of investigation and thereafter charge-sheet under sections 279/304A IPC was filed in the court.
3. Accused was summoned by the court for facing trial for the aforesaid offences. In compliance of section 207 Criminal Procedure Code, 1973 (hereinafter for brevity 'CrPC'), the copy of the charge-sheet and the FIR No. 459/2019 State Vs. Robin Singh Page No. 2 of 12 documents annexed with it were supplied to the accused. Prima facie charge for the offences punishable under section 279/304A IPC was made out against the accused. Accordingly, on 11.01.2023 this court framed notice against the accused, to which he pleaded not guilty and claimed trial.
Vide separate statement of same day the accused also admitted the execution of the following documents under Section 294 CrPC (i) DD no. 30A and 66A dated 29.10.2019, (ii) FIR no. 459/2019 dated 29.10.2019 PS Dwarka North, (iii) Certificate under Section 65B of The Indian Evidence Act (hereinafter for brevity 'IEA'), (iv) DD no. 76A and 61A dated 31.10.2019 (v) Mechanical Inspection Report of offending vehicle bearing registration number DL-9SBM-7199 (vi) Post mortem Report of deceased Safruddin of DDU Hospital (vii) MLC number 598/19 of Tarak Hospital of deceased Safruddin whereupon witnesses at serial number 5, 7, 8 and 9 were dropped from the list of witnesses. Thereafter, the case proceeded for prosecution evidence.
4. In order to substantiate its case, the prosecution has examined five witnesses.
i. PW-1 Mohd. Halim the eye-witness of the case testified before the court that on the date of incident when he reached his shop he saw that some public persons were gathered and he came to know that an accident had happened. He further stated that on the date of incident, he saw that two injured persons were lying on the road and one motorcycle was lying at the spot and thereafter he along-with the public persons shifted the injured to Tara hospital. He further deposed that the police official recorded his statement and also prepared the site plan at his instance. He further deposed that the police official also took his signature on blank papers but he did not remember whether the police official recorded his statement or not. He FIR No. 459/2019 State Vs. Robin Singh Page No. 3 of 12 failed to identify the motorcycle of the accused and added that he can only say that the motorcycle was black in colour but stated that he cannot say with certainty if it was the same motorcycle which was there at the spot. He further deposed that he is illiterate and cannot note down the registration number of the offending motorcycle.
Thereafter, as the witness was not supporting the prosecution case he was declared hostile by Ld. APP for the State after permission from the court. PW-1 in his cross-examination by Ld. APP for the State deposed that he cannot identify the statement as the police official had himself written his statement and read over to him as he is illiterate. PW-1 denied the suggestion that he told the IO that he stated about the incident to the IO whereupon he denied giving any such statement to the IO. PW-1 was confronted with from point A to Al of his statement recorded under section 161 CrPC (exhibited as Ex. PW-1/A, where it was so recorded). PW-1 also denied the suggestion that he had identified the accused during the investigation and stated that he reached the spot after the incident.
PW-1 further denied the suggestion that he was creating a concocted story to save the accused Robin Singh from the legal implication of the case. PW-1 lastly denied the suggestion that he was deposing falsely.
PW-1 was cross-examined by Ld. defence counsel and in his cross-examination by the defence he deposed that he is not the eye-witness to the incident and that he reached the spot after the incident. He accepted as correct the suggestion that when he reached the spot many public persons were present at the spot and the police did not record the statement of any public person in his presence.
ii. Remaining prosecution witnesses are the police witnesses who were part of the investigation but did not depose regarding the incident. They merely deposed regarding the aspect of investigation and they all are FIR No. 459/2019 State Vs. Robin Singh Page No. 4 of 12 the witnesses of after the fact. Hence, their testimonies are not being reproduced herein for the sake of brevity.
5. After examination of all the PWs, PE was closed and statement of the accused under section 313 CrPC was recorded and all the incriminating evidence against the accused were put to him for his explanation. He stated that he was falsely implicated in the case. He further deposed that on the date of the incident his motorcycle had got punctured and he was dragging his motorcycle to the repair shop and in the meanwhile some vehicle hit his vehicle from behind and he got unconscious and later regained his senses at the hospital. He further stated that he does not want to lead defence evidence.
6. I have heard Ld. APP for the state and Ld. counsel for the accused. I have also carefully perused the case file.
7. The cardinal principle of criminal law is that the accused is presumed to be innocent till he is proved guilty, beyond any reasonable doubt. The burden of proving guilt of the accused exclusively lies on the prosecution and the prosecution is required to stand on its own legs. The benefit of doubt, if any, must go in favour of the accused.
8. In the present case, prosecution is required to prove the following ingredients to establish the guilt of the accused for the offences punishable under section 279/304 A IPC that:-
(i) accused was driving his vehicle on a public way
(ii) death of any person must have been caused;
(iii) it must have been caused by rash or negligent act/driving of the accused; and FIR No. 459/2019 State Vs. Robin Singh Page No. 5 of 12
(iv) such death must not amount to culpable homicide.
9. To impose criminal liability under this section it is necessary that the death should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate cause without the intervention of another's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non. Culpable rashness is acting with consciousness that the mischievous and the illegal consequence may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution required of him, and that if he had he would have had the consciousness. Rash or negligent act is an act done not intentionally or designedly. A rash act is primarily an over-hasty act, and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate is yet done without due deliberation and caution. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or the doing of something which a prudent and reasonable man would not do. Negligence is the genus of which rashness is a species. In order that rashness or negligence may be criminal it must be of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be caused thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences.
10. In the case in hand, the accused has been duly identified by FIR No. 459/2019 State Vs. Robin Singh Page No. 6 of 12 PW-1 who was present at the spot. However, it needs to be appreciated that PW-1 is not a witness from the general public and himself stated that he reached the spot after the incident, whereupon he saw two injured persons who were lying on the road. It further needs to be appreciated that PW-1 did not support the prosecution case qua the factum that the accused was driving the motorcycle on the date of the incident. Moreover, he also turned hostile qua other aspects of the prosecution case. Even though PW-1 had turned hostile qua the manner and mode in which the accused was driving the vehicle.
Now, coming on to the aspect of manner in which the accused was driving the vehicle which resulted in death of the injured. In order to prove rashness and negligence on the part of the accused, the prosecution has examined, PW-1 who being the sole eye-witness is a material witness to the case. PW-1 stated in his cross-examination conducted by Ld. APP for the State that he reached the spot after the incident and that he cannot say with certainty if the motorcycle at the time of the incident was being driven by the accused.
The cross-examination of the PW-1 by Ld. APP for the State did not bear any fruit qua the said allegation and thus, the prosecution has not been able to prove the factum that the accused was driving the vehicle at the time of the incident in a rash and negligent manner. Thus, the sole eye-witness to the incident had not supported the prosecution version in his cross-examination. PW-1 was thoroughly cross-examined after due permission by Ld. APP for the State as he had turned hostile however nothing incriminatory qua the mode and manner in which the vehicle was being driven by the accused could be extracted from PW-1.
11. It is a settled proportion of law that evidence of a prosecution FIR No. 459/2019 State Vs. Robin Singh Page No. 7 of 12 witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated effaced or washed of the record altogether. The same can be accepted to the extent that their version is found to be dependable upon a careful scrutiny. Therefore, it has to be seen, if the evidence of such hostile witness can be relied in part. The perusal of the testimony of this witness shows inconsistencies and contradiction in his version. PW-1 in his testimony, although has identified the accused but has clearly stated at one point that he had not seen the accused driving the motorcycle, he also failed to identify the motorcycle of the accused. The PW-1 had in his examination in chief did not support the prosecution case at all and denied the occurrence of accident from the offending vehicle in its entirety.
It further needs to be appreciated that for the offence u/s 279/304A IPC, it is incumbent upon the prosecution to prove the act of rashness and negligence on the part of the accused so as to endanger the human life. Reliance can be placed on the observations made by Hon'ble Supreme Court of India in case titled "State of Karnataka vs. Satish ((1998) 8 SCC 493)" wherein the Apex Court observed:
"merely because the truck was being driven at a high speed does not bespeak of either "negligence or rashness"
by itself. None of the witness examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". High speed is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by high speed in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the FIR No. 459/2019 State Vs. Robin Singh Page No. 8 of 12 establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed subject of course to some statutory exceptions. There is no statutory exception pleaded in the present case. In the absence of any material on record, no presumption of rashness or negligence could be drawn by invoking the maxim "res ipsa loquitur".
Moreover, the above observation has also been made by Hon'ble Delhi High Court in the case of "Kishore Chand Joshi vs. State CRL.REV.P. 627/2016", the Court observed:
"A witness can depose as to the manner of driving or speed at which the vehicle was being driver but not render an opinion on rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness of negligence on the part of the driver."
It is thus, clear that an inference of act of rashness or negligence cannot be drawn from a simple testimony of the PW-1 that the vehicle was being driven in a rash and negligent manner. Specific evidence has to be led by the prosecution in order to prove the same. The testimonies of the remaining prosecution witnesses also cannot prove the fact that accused was driving the offending vehicle in a rash or negligent manner. As such, their testimonies has no bearing qua the fact as to the rashness or FIR No. 459/2019 State Vs. Robin Singh Page No. 9 of 12 negligence on the part of the accused as they clearly stated to have reached the spot after the alleged accident had taken place and to have not seen the accused driving the offending vehicle at the time of alleged incident.
12. Further, the prosecution relied upon the testimony of PW-4 SI Bijender Singh and PW-2 HC Pradeep who stepped into the witness box and supported the case of the prosecution and deposed about the investigation conducted by them. They deposed regarding the aspect of investigation. PW-1 narrated the incident to the PW-3 and thereafter they went to the spot. During this time, he was informed about the death of the injured. Thereafter, the present FIR was registered and offending vehicle along-with supporting documents were seized by IO. Case property was deposited in malkhana.
The photographs of the spot were clicked during investigation by the IO. However, no blood samples were collected from the injured or from the spot. This court cannot lose sight of the fact that when a vehicle in high speed is stopped at a sudden, certain skid marks are made on the ground and as such no skid marks have been shown by the IO to exist in the instant case.
It needs to be appreciated that a perusal of the testimony of PW-3 reveals that he was also not an eye-witness to the accident. The witness had reached the spot after the accident had taken place and had registered the FIR and conducted the investigation. The witness could not explain in detail the act of rashness and negligent on the part of the accused. He did not even state the accused to be driving his vehicle in a rash and negligent manner. Therefore, even the testimony of PW-3 is also not sufficient to prove the guilt of the accused in the present case beyond FIR No. 459/2019 State Vs. Robin Singh Page No. 10 of 12 reasonable doubt.
Moreover, no photographs showing skid marks made by the motorcycle which had stopped all of sudden due to the accident have been taken and made part of the record. Although the post mortem report, states that abrasions are placed over the outer surface of the body of the deceased but nothing has been brought on record to show that the abrasion marks were of the tyres of the offending tractor or to link the injuries on the person of deceased with the rash and negligent act of the accused.
13. Although the mechanical inspection of the motorcycle was conducted which indicates that the vehicle was involved in the accident but the same is not sufficient to prove the act of rash or negligent driving of the accused. Moreover, site plan prepared by the IO is not sufficient to prove the act of rashness or negligence on the part of the accused. While it shows the location of the accident which is undisputed, it could not be inferred that the offending vehicle was either being driven in a high speed or that accident occurred due to rash and negligent act of the accused.
14. There is no other witness to establish the guilt of the accused. As such, the prosecution has failed to establish the act of rashness or negligence on the part of the accused in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused Robin Singh was driving the offending vehicle bearing no. DL-9SBM-7199 in a rash or negligent manner at the time of accident and had ran over the deceased. Testimony of eyewitness does not completely support the prosecution story and testimonies of the rest of the witnesses are not sufficient enough to prove the guilt of the accused. Hence, benefit of doubt must be given to the accused. Thus, this point is answered in the negative and is decided against FIR No. 459/2019 State Vs. Robin Singh Page No. 11 of 12 the prosecution.
FINAL ORDER:
15. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused for commission of offences punishable under sections 279 and 304-A of IPC, beyond reasonable doubt, accused Robin Singh is acquitted of the offences punishable under Sections 279 and 304-A of IPC.
16. Personal bonds/surety bonds stands cancelled. Endorsement, if any is also cancelled. Sureties stand discharged. Superdarinama, if any stands cancelled. Original documents, if any be returned to the rightful claimant against proper receipt as per rules.
17. The accused has already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein he has undertaken that he shall put in his appearance before the appellate court within the prescribed period in case an appeal is filed and admitted for hearing. File after due completion be consigned to the Record Room.
Digitally signedAnnounced In Open Court Today SANKALP by SANKALP
KAPOOR
KAPOOR Date: 2023.10.17
i.e. 17.10.2023. 16:21:48 +0530
(Sankalp Kapoor)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
FIR No. 459/2019 State Vs. Robin Singh Page No. 12 of 12