Delhi District Court
State vs . : Jagdish Singh on 11 February, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Jagdish Singh
FIR NO : 27/97
U/s : 279/304A IPC
PS : Kanjhawla
JUDGMENT.
1. Sl. no. of the case 192/2
2. Offence complained of
or proved U/s 279/304A IPC
3. Date of Offence 14.03.97
4. Name of the complainant Naresh Kumar
5. Name of the accused Jagdish Singh
S/o : Shanker Ram
R/o : Village Gordhan Pura, ps
Neem Kana, Distt. Sikar
Rajasthan
6. Plea of the accused Pleaded not guilty.
7. Final order Acquitted
8. Date of Order 11.02.08
Brief reasons for decision:
1. The story of the prosecution in brief is as under :-
that accused Jagdish Singh S/o Shanker Ram was found 2 driving his truck bearing no. RJ-14G-4123 on 14.03.97 at about 9.15 a.m. in a rash and negligent manner and caused an accident by hitting a female child Suman Lata aged about 4 years and caused her death. Thus, FIR No. 27/97 under section 279/304 A IPC was registered against him.
2. IO conducted detailed investigation and filed his final report under section 173 Cr.P.C against him. After conducting the initial proceedings, documents were supplied to the accused. Thereafter, arguments on charge heard. It was found that prima facie material was available against the accused. Hence, charge under section 279/304A IPC was framed against the accused . Accused pleaded not guilty and claimed trial.
3. It is important to mention here that in order to establish the liability of the accused, prosecution has examined 9 witnesses in support of its case and there is one witness from the side of the accused.
4. PW 1 Naresh Kumar has stated that the incident had happened about one and a half years back (this witness was 3 examined on 6.11.98) at about 8/9 a.m. he was working at B.A.Bhatta. His daughter Suman Lata playing in the shop. She met with an accident caused by truck. Police came there. Her daughter was medically treated and her dead body was handed over to her on next day. Statement of PW 1 was recorded by police which is Ex. PW 1/A. PW 1 further stated that accused present in the Court i.e. Jagdish Singh was driven his truck at that time.
Ld. APP sought permission to cross-examine PW 1 on certain points. Permission was granted and during cross- examination by ld. APP PW 1 stated that his daughter was playing near the jhuggi which is adjoining to the shop as alleged in his statement u/sec. 161 Cr.P.C. so recorded by the IO on the basis of which this FIR was registered. During cross-examination PW 1 recollect the no. of truck as RJ-14G-4123 . PW 1 further stated that he could not saw whether the truck was at the fast speed or not but the truck was driven in a negligent manner. PW 1 was also unable to state how the accident took place and whether his daughter came under the front tire or rear tire . The site plan was prepared by the police.
During his cross-examination by the counsel for accused PW 1 has stated that when he reached there he was told 4 by some person that accident had taken place . He reached there when accident had already been taken place. PW 1 further stated that he never saw the driver of the said truck prior to the accident. When PW 1 reached there he found the truck was standing there. PW 1 subsequent to that stated contrary to his earlier version that when he reached at the spot, the truck was running towards the Kanjhawla and it was caught by the police.
Thus, two contrary versions has emerged from the statement of PW 1. At one instance he stated that when he had reached at the spot he found the truck was standing there at the spot and on the other instance he stated that when he reached at the spot he saw the truck was going towards Kanjhawla.
5. PW 2 Ct. Mahender Singh has stated that on 14.03.97 he was posted at PS Kanjhawla . Upon receiving the information regarding accident he alongwith IO Insp. O.P.Yadav reached at the spot i.e. near B.A.Bhatta Kanjhawla. One dead body of female child was lying there and it was stated that she was run over by one truck. The truck bearing no. RZ-14G-4123 was also at the spot and accused was present there. IO prepared the tehrir. FIR was registered . Accused was arrested. Dead body was 5 sent to Subji Mandi Mortuary for post mortem .
6. PW 3 Jogender , Photographer has stated that in the year 1997 on the instructions of police officer he went to the spot and took the photographs of the place of incident from different angles.
7. PW 4 Roshni Devi, mother of the deceased has stated that about 5/6 years ago (this witness was examined on 01.08.02) at about 9.00 a.m. in the morning, the accident of her daughter Suman Lata was caused by Jagdish . The accident was took place in front of PW 4. Suman Lata the deceased was playing in front of the jhuggies and accused Jagdish was driving his truck at a very fast speed. The truck was coming from B.A.Bhatta and was going towards Kanjhawla side. Suman Lata died at the spot.
8. PW 5 ASI Darshna is the duty officer who received one tehrir and recorded FIR No. 27/97 which is Ex. PW 5/A.
9. PW 6 HC Ramesh Chand has stated that in the 6 year 1997 he was posted at PS Kanjhawla . At the instructions of the Addl. SHO dead body of one child was removed to Hindu Rao Hospital Mortuary for post mortem under his supervision. After the post mortem the dead body was handed over to relatives of the deceased.
10. PW 7 SI Satinder Kumar has stated that on 14.03.97 he was posted at PS Kanjhawla . On that day he accompanied Insp. O.P.Yadav to Subzi Mandi Mortuary for post mortem of dead body of Suman Lata. After the post mortem the dead body of deceased Suman Lata was handed over to her relatives.
11. PW 8 Dr. Mrs. Kamla Gupta has stated that on 15.03.97 she was posted at Civil Hospital, Subzi Mandi Mortuary. Post mortem on the body of Suman Lata was conducted by PW 8. The report is Ex. PW 8/A. All the injuries were ante mortem in nature and were possibly caused by run over by heavy vehicle due to vehicular accident. Death was due to crushed and compressed.
12. PW 9 Insp. O.P.Yadav has stated that on 7 14.03.97 he was posted as Addl. SHO at PS Kanjhawla. On that day on receiving DD No. 14 B he alongwith Ct. Mahinder Singh went to the spot i.e. B.A.Bhatta where they found dead body of one child aged about 4 years . They also met father of the child Naresh Kumar. His statement Ex. PW 1/A was recorded. Tehrir Ex. PW 5/B was prepared which was handed over to Ct. Mahinder Singh for registration of FIR. After registration of FIR Ct. Mahinder Singh came back to the spot alongwith copy of FIR and tehrir. Photographer namely Joginder was called at the spot. He took the photographs of the place and the dead body. Negatives of the photographs are Ex. PW 3/A to Ex. PW 3/D. Site Plan Ex. PW 9/A was prepared. Inquest form Ex. PW 9/B was filled. Post mortem of the child was got conducted in Subji Mandi mortuary and the dead body was handed over to the parents of the deceased child. Thereafter accused Jagdish was arrested. His personal search was conducted. Truck was seized. Driving licence of accused was also seized. Vehicle was mechanically inspected through Parmanand Asstt. Engineer . During cross-examination nothing contrary has emerged . However, IO PW 9 has stated that he did not see the blood of deceased on any tire of the truck.
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13. After examination of all the witnesses prosecution evidence was closed. Statement of accused u/sec.313 Cr.P.C. was recorded wherein accused pleaded his innocence and stated that accident was not caused by him but by some other person and accused was apprehended on the confusion when public raised the noise that one truck with registration no. of Rajasthan had caused the accident and incidently his truck was also bearing the registration no. of Rajasthan.
14. One witness was examined by the accused in his defence is Chajju Ram. He stated that on 14.03.97 he was unloading the truck bearing no. RJ-14G-4123 at the bhatta and was coming thereafter and they stop at one tea stall for taking the tea and they were taking there tea. In the meantime a hue and cry was made by the public saying that someone has caused an accident and run away. Subsequent to that driver Jagdish , accused in this case was apprehended in confusion without any reason. His truck did not cause any accident. During his cross-examination by ld. APP for State this witness stated that he was labourer at that time and he saw the accused Jagdish on 14.03.97 for the first time. After unloading the truck at their Bhatta , they halted at one tea 9 shop for taking the tea and were taking the tea . DW 1 further stated that he saw one truck hitting one small child and run away. Subsequent to that public gathered there. DW 1 further stated that he run away from the spot leaving the accused there.
15. Final arguments heard at length. I have perused the entire material placed before me and also heard arguments so advance by ld. APP for State and ld. Defence counsel for accused.
16. It is important to mention here that in order to establish the liability of the accused u/sec. 279 Cr.P.C. that accused was driving his vehicle in rash and negligent manner and u/sec. 304-A IPC that driving of vehicle by the accused in a rash and negligent manner, the accident was caused and death of a person was also caused by the accused by such driving.
SECTION 279 IPC READS AS UNDER :-
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may 10 extend to six months, or with fine which may extend to one thousand rupees, or with both.
Thus, the essential ingredients of Section 279 IPC are
1. Driving of a vehicle or riding on a public way
2. Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person.
Apart from the ingredients of Section 279 IPC to bring home the offence u/sec. 279 IPC first of all identity of the accused with regard to rash and negligent act must be fixed for proper evidence. The prosecution must establish that
(a) accused was driving a vehicle or riding at a public way
(b) Such driving or riding was in a manner so rash and negligent or likely to cause her death.
For Section 279 IPC the rashness and negligence must be criminal. Both the ingredients as stated above must be satisfied. It was held in Ajit Singh Vs. State of H.P. , 1975 CrLJ 77 (HP) : ILR 1974 HP 470 : (1974) 1 Cr LT 210 that a certain aggravated degree of rash or negligent driving is contemplated here.
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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. It was observed in Pyarejan, 1972 Cr L J 404 (Mys.) In rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences . Thus, the criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so and that it may cause injury, but without intention to cause injury or knowledge that it will be probably caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence.
Negligence on the other hand means breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate conduct of human affairs would do or doing something which a prudent or reasonable man would not do. Culpable negligence is acting without consciousness that illegal or mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent on him, and that if he had, he would have had the consciousness.
17 The prosecution has examined, as stated above, two public witnesses one is Naresh Kumar , the father of the deceased child and another Roshni Devi , mother of the decease child. Naresh Kumar PW 1 has stated that he came to know through some person that 12 accident of his daughter had taken place by a truck and when he reached at the spot, he saw that his daughter was lying on the road. Thus, the outcome of the testimony of PW 1 is that he reached at the spot after the accident had taken place. Thus, he did not saw the accident taking place and he came to know subsequently from the by- standers, the name of which is not disclosed by PW 1 Naresh Kumar that accident was caused by the truck driven by the accused. Thus, , PW 1 is not the eye witness in this case and has not see the accused himself driving the truck and causing the accident. PW 1 has also not stated anything with regard to driving of the truck by the accused rashly and negligently . The only thing for which the evidence of PW 1 Naresh Kumar is relevant, is that he saw his child was hit by a truck and was lying on the road. Thus, PW 1 has supported the story of the prosecution that accident of his minor girl child took place due to which his child died.
It is important to mention here that this fact is not disputed that the accident took place . The accused himself has stated that the accident had taken place in actual but he had not caused the accident. Thus, the factum of accident is not disputed, but who caused the acident is to be seen from record and material available. The testimony of the concerned doctor who conducted the post moretm is also examined. She has stated that the injury on the part of the body is of deceased child was ante mortem and possibly caused due to vehicular accident 13 and the cause of the death was due to crushed and compressed. The testimony of PW 8 Dr. Kamla Gupta is relevant in this regard which corroborates this fact that death was due to the accident which had taken place. The testimony of PW 6 & 7 is relevant in this regard. PW 3 Joginder who is photographer and who was also called at the spot. PW 3 Joginder Photographer took the photographs of the spot and has therefore supported the story of the prosecution though the accident had took place due to which the minor child died.
18. PW 4 Roshni Devi , mother of the deceased is the only eye witness of the case and has stated that accident was caused before her eyes and it was the accused who was driving the truck. At the point of clarification with regard to driving of the vehicle in question by the accused in a rash and negligent manner. PW 4 stated that she did not know whether the truck was driving at a fast speed. Nothing else is stated by the PW 4 during his examination-in-chief. Thus, with regard to the essential requirement of Section 279 IPC for establishing the liability of the accused with regard to driving of the vehicle in a rash and negligent manner , no evidence is found against him that he was driving his vehicle in a rash and negligent manner.
19. During final arguments the accused and his counsel has stated that he was present at the spot at the time of accident, the accident was 14 not caused by him but by some other person. The evidence of another important witness i.e. PW 9 IO Inspector O.P.Yadav is also relevant who conducted the subsequent investigation after the accident took place till the filing of the charge sheet. During his evidence PW 9 Insp. O.P.Yadav has stated that he did not see the blood of the deceased on any tire of the truck. It is very clear that whenever any accident is caused by a vehicle and any person is crushed , as stated in the report of the concerned doctor who conducted the post mortem that death was likely due to crushed and compressed , there are great possibilities that there will be blood stains on the tire and the body of the truck. However, the IO has ruled out the possibility of any blood stains mark on the tire of the truck. If the report of PW 8 Dr. Kamla Gupta is considered as true, and it is also not disputed that the death was caused due to being crushed and compressed by coming under the tire , there should be some blood stains mark on the tire which has not been found by the IO Insp. O.P.Yadav when at the spot he personally examined the truck driven by the accused. This fact creates a doubt in the story of the prosecution. A doubt is further strengthened by the fact that accused had stated that the accident was not caused by him.
20. Thus, a vital contradiction has emerged from the story of the prosecution and the testimony of the IO Insp. O.P.Yadav . 15 Two possible versions are emerged from the testimony of IO Insp. O.P.Yadav. One of the version is that the accident was caused by the accused. If this fact is to be considered that there should be blood stains marks on the tire of the body of the truck. The second version is that no accident was caused by the accused. If this version is considered then the evidence of PW 9 Insp. O.P.Yadav is to be considered accordingly that as no accident was caused actually as no blood was found on any of the tire of the truck . Thus, above stated fact make the story of the prosecution weak and suspicious, whereby two anologies are emerging thus a doubt is created.
21. Another important thing which has emerged from the testimony of only eye witness i.e. PW 4 Roshni Devi , mother of the deceased is that it has nowhere shown by the prosecution in the evidence of PW 4 that accused was driving his truck in a very rash and negligent manner.
22. It is important to discuss here Section 304 A IPC at this stage before proceeding any further .
SECTION 304 -A IPC READS AS UNDER :-
Whoever cause the death of any person by doing any rash or negligent act not amounting to culpable homicide , shall be punished with imprisonment of 16 either description for a term which may extend to two years, or with fine, or with both.
Essential ingredients of Section 304 A IPC are as under :
1 that the accused caused the death of any person
2. that such death was caused by the accused (in rash and negligent act)
3. Such death did not amount to culpable homicide.
Thus, by reading section 279 and 304 A IPC both have laid down stress upon one thing that accused was driving his vehicle in a rash and negligent manner due to which death was caused and the death did not amount to culpable homicide as defined u/sec. 299 IPC.
In P.Rajappan Vs. State of Kerla (1985) 2 Crimes 507 (508) :
1986 Cr L J 511 : (1986) 2 ACC 5.
Ordinarily it is for the prosecution to establish the guilt of the accused. The prosecution is to prove not only the rashness or negligence of the driver but also must prove that the rashness or negligence is responsible for the accident and consequent injury on or death of the victim. There can be no presumption of negligence from the mere fact that a man is knocked down and killed by the accused.17
23. Thus, mere proof of the accident is not required to be proved in these Sections i.e. 279/304-A IPC. The prosecution should also show that this accident was caused by the accused and the accident was due to rash and negligent driving of the vehicle by the accused. Thus the death should be direct result of rash and negligent act. Thus, it must be causa causans. It is not enough that it may have been the causa sine qua non
24. It is important to mention here though the mere fact that accused was driving the vehicle at a very speed may not attract the provisions of Section 279 IPC and further Section 304-A IPC which also requires the driving of a vehicle in a rash and negligent manner. The fact that the vehicle is driven in a speed or the fact that the vehicle was driven in a speed, cannot be itself without judging the situation in which the driver has been placed, be a factor determine the rashness or negligence. High speed may not in each case be sufficient to held that the driver is rash and negligent.
25. In the present case the prosecution has not shown from the testimony of the only eye witness that the accused was driving the vehicle in a rash and negligent manner. PW 4 has also stated at one place that she did not know whether the accused was driving his vehicle 18 at a very high speed.
26. Reliance can also be laid upon for reference, on following judgments
1. State of Karnatka Vs. Satish 1998 (SCC) Crl. 1508
2. Abdul Subhan Vs. State of NCT of Delhi 133 (2006) DLT 562 In these two cases the Hon'ble Supreme Court of India and Delhi High Court has observed that "merely because the truck was being driven at a "high speed" does not bespeak of either negligence or rashness by itself. None of the witnesses examined by the prosecution could give any indication, even approximately as to what they meant by "high-speed". "High-sped" is a relative term. It was the prosecution to bring on record material to establish as to what is meant by "high-speed"
in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the 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 such statutory exceptions pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by involving the maxim "res ipsa loquitor".
In the present case the prosecution while examining the PW 4 19 laid down the circumstances, as cited above , speed of truck driven by the accused, which too was not answered properly by the witness. Thus, from the testimony of PW 4 the only eye witness available, it has emerged that there is no statement shown by prosecution that accused was driving his truck in a rash and negligent manner. However, PW 4 has stated that she saw the accused driving the truck on the day of accident.
27. In the light of above stated facts and circumstances and the evidence so led on behalf of the prosecution that the prosecution has shown with the help of eye witness that the accused was driving his truck on that day and caused the accident, the prosecution has not been able to establish the liability of the accused with regard to the driving of the vehicle in a rash and negligent manner. The above cited judgment of Hon'ble Supreme Court of India and Hon'ble High Court of Delhi is equally applicable here in this case where it has been observed that in order to attract Section 207/304-A IPC , the prosecution should show beyond reasonable doubt the liability of the accused that he was driving his vehicle in a rash and negligent manner. Mere factum of accident and causing death is not sufficient. This aspect is lacking here as the prosecution has not shown and establish from the testimonies of the PWs examined .
Thus, in the light of above stated reasonings and the facts and 20 circumstances so put before me I am of the considered opinion that all the essential ingredients of section 279/304-A IPC could not be established fully by the prosecution though prosecution has been able to show that accident took place and one of the eye witness saw the accused at the spot was driving his vehicle but the prosecution has not shown that the accused was driving his vehicle in a rash and negligent manner and by such rashness and negligence of the driver the accident was caused. Thus, under these circumstances I am of the considered opinion that the prosecution has not been able to establish the liability of the accused beyond reasonable doubt. In cases where there is a doubt created as per the circumstances and more than one anology is emerging apart from the story narrated by the prosecution , the benefit of doubt should be given to the accused . Thus the benefit of doubt is given in favour of the accused. Thus, as the prosecution miserable failed to prove the liability of the accused beyond reasonable doubt, the accused Jagdish Singh S/o Shanker Ram is acquitted of the offence u/sec. 279/304-A IPC. Bail bonds of accused stands discharged. Surety, if any for accused, stands discharged. Documents, if any, be returned, endorsement, if any be canceled. File be consigned to record room.
Announced in open Court (PRASHANT KUMAR)
Dated 11.02.08 Metropolitan Magistrate
Delhi
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FIR NO. 27/97
PS Kanjhawla
11.02.08 Present: Ld APP for the State.
Accused is present on bail alongwith counsel.
Final arguments heard. Final judgment is pronounced vide separate order sheet. Accused Jagdish Singh S/o
Shanker Ram is acquitted of the charge u/s 279/304A IPC. Bail bond of accused stands discharged. Surety for accused stands discharged. Documents, if any, be returned, endorsement, if any be canceled. File be consigned to record room.
(Prashant Kumar) MM/Delhi/11.02.08