Delhi District Court
State vs . Bharat Pathak on 22 September, 2021
1 of 19
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 88/12
PS Timarpur
U/s. 279/304A IPC
State vs. Bharat Pathak
CNR No. DLCT02-001959-2012
Date of Institution of case: 20.07.2012
Date of Judgment reserved: 16.09.2021
Date on which Judgment pronounced: 22.09.2021
JUDGMENT
Unique ID no. of the case : 297608/16
Date of commission of offence : 23.04.2012
Name of complainant : Ct. Bhopal, No. 1101/N,
PIS No. 28061864
PS Timarpur, Delhi.
Name and address of accused : Bharat Pathak
S/o Babbar Pathak
R/o Village Badkapura,
P.O. Badheri, PS Madiyon,
Jaunpur, Uttar Pradesh.
Offence complained of : 279/304A IPC
Plea of accused : Pleaded not guilty
Date of order : 22.09.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION
1. The case of the prosecution in brief is that on 23.04.2012 at about 05:45 p.m at under construction road, near pillar no. 45-46, flyover Majnu Ka Tila, Delhi, Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:43:51 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 2 of 19 within the jurisdiction of PS Timarpur, accused Bharat Pathak was found driving Mixer Truck bearing registration no. HR-74-2509 on a public way in a rash or negligent manner as to endanger human life and personal safety of others and on that date, time and place while driving the aforesaid vehicle in the aforementioned manner, he hit against pedestrian Ahsaan causing his death, not amounting to culpable homicide. On these allegations, present FIR was registered at PS Timarpur for offence punishable u/s 279/304A IPC.
2. After investigation, charge sheet was filed against the accused Bharat Pathak. The cognizance of offence was taken and accused was summoned to face trial. Upon appearance, copy of charge sheet was supplied to accused in compliance of Section 207 Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, notice u/s 279/304A IPC was served upon accused on 07.11.2012 to which he pleaded not guilty and claimed trial.
3. To substantiate the allegations, the prosecution examined twelve witnesses:
PW-1 Rakesh Tiwari deposed that in the year 2012, he was working as Admn. Senior Assistant in M/s Gammon India Ltd., at Majnu Ka Tila, DDA park, Delhi. The vehicle i.e. concrete mixer truck bearing no. HR-74-2509, was registered in the name of the aforesaid company. On the basis of the authority given to him by the aforesaid company, he had got released the aforesaid vehicle on superdari vide superdari memo Ex.PW1/A, bearing his signature at point A. (At that stage, six photographs of the vehicle taken from different sides were shown to the witness who correctly identified the same as the photographs of the concrete mixer truck which he had got released on superdari on behalf of the company and the same were exhibited as Ex.P-1 collectively.) ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:44:22 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 3 of 19
4. PW-2 Ct. Bhopal Singh had deposed that on 23.04.2012, he was posted as Ct.
at PS Timar Pur. On that day, at about 5.45 pm, he along with Ct. Arvind were on patrolling duty in the area of Majnu Ka Tilla and were coming towards flyover from Majnu Ka Tilla, immediately one truck no. HR-74-2509 came from the side of flyover and near pillar no. 45 and 46 crushed a pedestrian from the back side. At that time, driver of the aforesaid truck was driving the truck at a very high speed and in rash manner. After the aforesaid incident, truck driver had gone towards Wazirabad red light, outer ring road. They tried to stop the accused driver but he did not stop the truck. Thereafter, he along with Ct. Arvind followed the aforesaid offending truck on his personal motorcycle and they reached near Mukundpur, red light after chasing the truck. They apprehended the truck driver near godown of Gammon Concrete plant near petrol pump, Mukund Pur. Accused driver revealed his name as Bharat Pathak s/o Babbar Pathak. Thereafter, Ct. Arvind sat in the truck. Accused driver had brought the truck to the spot. He also followed the truck to the spot on his motorcycle. IO/SI R. C. Rathi met them on the spot and they handed over accused driver to the IO and also narrated to him the facts of the case. IO recorded his statement which was Ex.PW2/A bearing his signature at point A. Thereafter, IO prepared the rukka and handed it over to Ct. Arvind for registration of FIR. Ct. Arvind went to PS and after some time, returned to the spot with copy of FIR and original rukka and handed over both the documents to the IO. Thereafter, IO prepared seizure memo of the truck which was Ex.PW2/B bearing his signature at point A. IO also seized documents qua the offending vehicle which were Ex.PW2/C bearing his signature at point A. IO also seized DL of the accused vide memo Ex.PW2/D bearing his signature at point A. IO also seized one card from the spot, one photostat copy of identity card and one mobile phone charger vide memo Ex.PW2/E bearing his signature at point A. Thereafter, IO prepared site plan of the spot in his ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:44:42 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 4 of 19 presence. Thereafter, IO prepared arrest memo and personal search memo of accused which were Ex.PW2/F and Ex.PW2/G bearing his signature at point A on each memo. IO recorded his supplementary statement in that regard. (Accused was correctly identified by Ct. Bhopal Singh.) He could identify the case properties if shown to him. (At that stage, MHC(M) had produced one sealed pullanda duly sealed with the seal of RC. Pullanda was opened and one mobile charger, one visiting card and one photocopy of identity card of Uday Prasad were taken out from the pullanda and shown to the witness who correctly identified the case properties. Those case properties were Ex.P1(Colly.).) He could identify the case property i.e. offending truck, spot, dead body, if shown to him. (At that stage 23 photographs from the judicial file were shown to the witness. After looking at the photographs, witness correctly identified the same. The six photographs of the vehicle/offending truck were already Ex.P-1(Colly.). Other 17 photographs were exhibited as Ex.P- 2(Colly.).) During cross-examination by the ld. defence counsel, he revealed that the godown from where the offending vehicle was apprehended was at the distance of around 3-4 Kms. from the spot. It took about 30-45 minutes. They were on patrolling by foot after parking the motorcycle. He admitted that the registration number of his motorcycle was not mentioned in his statement Ex.PW2/A. He parked the motorcycle about 15 Mtrs. away from the spot. They did not remain at the spot to save the injured and they chased the truck. He voluntarily stated that the security supervisor and security guard were present at the spot to take care of the injured. He did not make 100 number call. The injured and deceased were sent for medical examination in his presence after coming to the spot. Around 10-15 public persons were present at the spot. He did not know whether IO had filed the negative of photographs. Photographs were taken in his presence at the spot. He did not remember who had shifted ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:45:01 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 5 of 19 the injured to the hospital. The accused was arrested on the spot at about 07:30 PM. He had not stated in his statement to the police that Ct. Arvind sat in the truck and brought it to the spot. The photographs were taken at the spot and not at the godown. He did not remember the DD entry of patrolling on the day of incident. He denied the suggestion that he was not present at the spot at the time of incident or that he was a planted witness and he had not seen the incident. He denied that he was deposing falsely at the instance of the IO.
5. PW-3 HC Bedi Ram had testified that on 23.04.2012, he was posted at PS Timarpur as Head Constable and was working as Duty Officer from 4.00 PM to 12.00 Midnight. On that day, at about 8.05 PM, he received a rukka from Ct. Arvind sent by SI RC Rathi, on the basis of which, he registered FIR No. 88/12 u/s 279/304A IPC which ran into 2 pages. He had brought the original FIR and print out copy of the same was Ex.PW3/A (OSR). He also made an endorsement on the rukka from point A to A1 which was Ex.PW3/B bearing his signature at point B. The copy of FIR and original rukka were given to Ct. Arvind to further hand over to IO/SI R.C Rathi for further investigation.
6. PW-4 Ct. Arvind had deposed that on 23.04.2012, he was posted at PS Timar Pur as Ct. On that day, at about 5.45 pm, he alongwith Ct. Bhopal were on patrolling in the area of Majnu Ka Tila. Over there, a flyover was under
construction, where a mixer truck came down the flyover in very high speed. The truck ran over a person between pillar no. 45-46. Then, the truck in high speed went towards Wazirabad. He alongwith Ct. Bhopal tried to stop the truck but were not able to stop it. Then, they chased the truck on motorcycle. The truck reached concrete plant, Gammon India near petrol pump, Mukund Pur. There they caught hold of the truck driver (accused Bharat Pathak present in the court on that day was correctly identified by the witness). There they came ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:45:19 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 6 of 19 to know his name as Bharat Pathak and offending vehicle i.e. the truck bearing registration no. HR-74-2509. Then they came back to the accident spot alongwith truck driver and truck. When they reached back at the spot SI R. C. Rathi, IO of the case was already present there and they handed over the accused and offending vehicle i.e. truck to him and told him the whole incident. IO recorded his statement and statement of Ct. Bhopal. Thereafter, IO prepared the rukka and handed over to him for registration of FIR at about 7.50 pm. He left for PS. There, he handed over the rukka to HC Bedi Ram. He came back and handed over the copy of FIR and original rukka to IO at about 9.00 pm. After that IO arrested the accused and conducted his personal search vide memo already Ex.PW2/F and Ex.PW2/G bearing his signatures at point B. IO seized the offending vehicle vide seizure memo already Ex.PW2/B bearing his signature at point B. The seizure memo of the RC, national permit, certificate of fitness, insurance was prepared by the IO which was already exhibited as Ex.PW2/C bearing his signature at point B. IO seized DL of the accused vide memo already Ex.PW2/D bearing my signature at point B. IO also seized one card from the spot, one photostat copy of I-card and one mobile phone charger vide memo already Ex.PW2/E bearing his signature at point B. (At that stage, photographs of case property i.e. offending truck, spot, dead body already exhibited as Ex. P1 (colly) and Ex. P2 (colly) in the testimony of PW-2 were shown to the witness. After looking at the photographs, witness correctly identified the same.) During his cross-examination by the ld. defence counsel he stated that at the time of incident, he had seen both the vehicle and the accused driver. They were walking when they saw the incident and were present at around 60 meters from the spot. They chased the offending vehicle for about 4-5 km. They had not given any information to the PCR or to the police station regarding the incident. The traffic on the road was not heavy. They apprehended the truck at ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:45:39 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 7 of 19 the entry gate of Gammon concrete plant near Mukund Pur. They returned back to the spot alongwith the offending vehicle within 40 minutes. At the place of incident, the construction work was going on. At the time of incident around 15-20 labourers including security guard were present there. IO was present when they returned back to the spot. He did not remember the DD entry qua patrolling. He denied the suggestion that the offending vehicle was not brought by him from the company gate, rather it was brought to the PS at about 11.00 pm. He also denied that he was a planted witness or that he was not present at the spot.
7. PW-5 Dr. S. Lal, had deposed that on 26.04.2012, he was posted as Specialist, Forensic Medicine at Aruna Asaf Ali Government Hospital, Sabzi Mandi Mortuary. On that day, the body of deceased namely Ahsaan was sent to him by SI Ram Chhail Singh Rathi which was identified by Md. Islam (father) and Mustaq (uncle) for postmortem. He conducted the postmortem and gave his report PM No. 690/12 which was Ex.PW5/A, bearing his signature at point A.
8. PW-6 Inspector Devender had deposed that on 23.04.2012, he was posted as Incharge Crime team North Distt. On that day at about 06:15 p.m. he received one wireless message from Control Room, North Distt. He was informed about one accident & his assistance was sought at/near pillar No. 45-46, Wazirabad flyover (under construction) outer ring road, near Majnu Ka Tilla. He alongwith crime team consisting of a photographer, finger print expert and official driver went to the said spot where he saw one unidentified body aged about 25 to 30 years in crushed condition lying on the road. The photographs of the dead body were clicked by Ct. Irshad at the instance of IO. As the dead body was completely crushed, there was no possibility to lift the exhibits or any other sample. He prepared his detailed report regarding the articles ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:45:59 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 8 of 19 examined and lifted. He had also given advise to the IO regarding the case. His detailed report in that regard was Ex.PW6/A bearing his signature at point A. His statement with regard to above stated facts was recorded by the IO on the same day. He did not remember how many photographs were clicked by Ct. Irshad.
9. PW-7 Sh. Moti Lal had deposed that on 24 or 28.04.2012 he was posted as Security Officer in Gammon India Ltd. Near Majnu Ka Tilla and he used to reside in the premises of the said company. He was on round and during that he saw one person who was lying crushed on kaccha road, He made a call at number 100 and passed over the said information to police. Police came and recorded his statement. During cross-examination by the Ld. APP he admitted that the date on which he made aforesaid call was 23.04.2012 and he mistakenly stated it to be 24 or 28.04.2012 due to lapse of memory.
During cross-examination by ld counsel for the accused, he revealed that he made the above call from his mobile. He denied the suggestion that he was deposing falsely.
10.PW-8 Gautam Kumar had deposed that on 23.04.2012, he was working in Gammon India Ltd. and deceased Ahsaan was also working there. On that day Ahsaan was going to the house of his chacha, however, he could not reach there. On next day, his chacha Mustab came and told him that his nephew Ahsaan did not reach home and he had expired in an accident and his dead body was at PS Timar Pur. Then they went to PS Timar Pur and from there they went to mortuary Subji Mandi where they identified the dead body of deceased Ahsaan. IO recorded his statement and same was Ex.PW8/A bearing his signature at point A. After post mortem, the dead body of the deceased was handed over to his chacha vide dead body handing over memo Ex.PW8/B Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:46:18 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 9 of 19 bearing his signature at point A. IO recorded his statement.
11.PW-9 Arvinder Singh has deposed that he was running a automobile workshop and had diploma from ITI in automobile. He was working as Mechanical Inspector for about 13 to 14 years at his private workshop. He had mechanically inspected more than 6 to 7 thousand vehicles till that day. On 24.04.2012 on the request of IO SI R. C. Rathi, he mechanically inspected one vehicle i.e., mixer truck bearing registration No. HR-74-2509 at the PS Timar Pur. His detailed inspection report was Ex.PW9/A bearing his signature at point A. During cross-examination by the ld counsel for the accused he stated that he conducted mechanical inspection on body of vehicle. He did not take any photographs of the said vehicle. He denied the suggestion that he was deposing falsely.
12.PW-10 Retd. SI R.C Rathi deposed that on 23.04.2012 he was posted at PS Timar Pur as SI. On that day he received DD entry No. 67B and thereafter he alongwith Ct. Pushpender went to spot i.e., Majnu Ka Tilla, Pillar No. 45-46 where they saw one dead body crushed in an accident. He called crime team. Crime team came and inspected the scene of crime and photographs were got clicked. On cursory search of the person of deceased, he found blood stained identity card i.e., voter ID Card on which the name of deceased was mentioned as Uday Prasad. Near the body of the said person one blood stained visiting card and white paper on which a mobile phone number was mentioned and a broken charger of mobile was found and he seized the same vide seizure memo already Ex.PW2/E bearing his signature at point X. Ct. Bhopal and Ct. Arvind, who were at spot and had apprehended one person, told him about the incident. He recorded the statement of Ct. Bhopal, who was at spot which was already Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:46:38 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 10 of 19 Ex.PW2/A bearing his signature at point X. He prepared rukka Ex.PW1/A bearing his signature at point X and handed over the same to Ct. Arvind for registration of FIR at PS. Upon registration of FIR Ct. Arvind came back at spot along with copy of FIR and rukka and handed over the same to him. Then he prepared site plan at the instance of Ct. Bhopal Ex.PW10/B bearing signature at point X. He got preserved the dead body of deceased at Subji Mandi Mortuary and thereafter, he contacted the relatives of deceased. Then he interrogated the person apprehended by Ct. Arvind and Ct. Bhopal, who was the driver of the offending vehicle and he arrested him and personally searched him vide memos already Ex.PW2/F and Ex.PW2/G both bearing his signature at point X. He seized the mixer truck bearing No. HR-74-2509 vide seizure memo Ex.PW2/B bearing his signature at point X. He seized the documents relating to the aforesaid mixer truck vide seizure memo already Ex.PW2/C bearing his signature at point X. He seized the DL of accused vide memo already Ex.PW2/D bearing his signature at point X. Accused Bharat Pathak was released on bail on furnishing bail bonds. He got conducted the mechanical inspection of the offending vehicle. Thereafter, he got conducted the identification of the dead body by its relatives namely Mohd. Islam and Mushtaq and other two persons and same were Ex.PW10/C and Ex.PW10/D both bearing his signature at point X. He also recorded statement of one Gautam which was already Ex.PW8/A. He got conducted the post mortem of the dead body at Subji Mandi Mortuary. After post mortem, the dead body of deceased was handed over to his relatives vide memo already Ex.PW8/B bearing his signature at point X. He obtained the post mortem report of the deceased and placed the same on file, same was already Ex.PW5/A. Then he obtained the mechanical inspection report of the vehicle and placed the same on file, same was already Ex.PW9/A. He also obtained the report from Crime Team. He deposited the case property in malkhana. He recorded the statement Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:46:58 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 11 of 19 of witnesses. Thereafter, he got transferred and handed over the file to MHC(R). He could identify accused. (Accused Bharat Pathak present in court on that day was correctly identified by witness). He could identify the case property. (At that stage photographs of the case property i.e., offending truck, spot, dead body was shown to witness, who correctly identified the same which were already Ex. P1 (colly) and Ex. P2 (colly) in the testimony of PW2.) During cross-examination by the ld. defence counsel he admitted that he had mentioned in the charge sheet that the height of the deceased was about 5 feet 6 inches. There was no public person, who had witnessed the accident and therefore, he could not cite any public person as PW. He voluntarily stated that Ct. Bhopal was present at the spot. Ct. Bhopal and Ct. Arvind brought the accused in government vehicle. When he reached at spot the offending vehicle was at spot. He had not shown in site plan the place where the offending vehicle was present at the spot. He admitted that the offending vehicle was brought by Ct. Bhopal and Ct. Arvind from Mukundpur plant. He denied the suggestions that he did not conduct the investigation fairly and properly or that accused had been falsely implicated in the present case.
13.PW-11 SI Rajbir Singh had deposed that on 01.05.2012, He was posted as ASI in MACT Cell, North, Lucknow Road, Timarpur, Delhi. He was the second IO of the present case and file was marked to him for completion of remaining investigation. During investigation, he had prepared set of documents of the offending vehicle bearing registration no. HR-74-2509 i.e. RC, Fitness Certificate, Insurance and DL of accused driver Bharat Pathak and handed over to MACT cell for verification. (The accused was present in the Court on that day and was correctly identified by the witness.) On 08.05.2012, he had collected the postmortem report of deceased Ahsan from Subji Mandi Mortuary and placed on file. On 09.05.2012, he had collected the documents Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:47:19 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 12 of 19 from the father of deceased for filing DAR before the MACT. On 10.05.2012, he had obtained the verification report of the documents of offending vehicle as aforesaid and all the documents were found to be correct. On 11.05.2012, the offending vehicle was released on superdari from the court to the rightful owner. On 16.05.2012, he obtained the report regarding verification of DL of accused and same was also found to be genuine. On 17.05.2012 information sheet/parcha 12 regarding verification of address of accused was obtained and the particulars of accused were found to be correct. On 21.05.2012, photographs of the scene of crime were collected from Crime Team Office at ISBT. Photographs from the judicial file were shown to the witness. Witness correctly identified the same. The same were already Ex. P-1 (colly) and P-2 (colly). On 22.05.2012, DAR was filed before the MACT, Tis Hazari Courts. On 05.07.2012, after completion of investigation, he prepared the challan of the case and filed the same in the Court.
During cross-examination by ld. counsel for the accused he stated that he could not tell the number of photographs he had collected from the Crime Team. He denied the suggestion that accused had been falsely implicated in the present case and no accident took place due to fault of accused.
14.PW-12 HC Ravinder Kumar had deposed that he was on the duty as DD writer at PS Timarpur from 4 p.m to 12 midnight on 23.04.2012. The DD No. 67B dated 23.04.2012 Ex.PW12/A was duly recorded by him. He received the information telephonically from Sh. Moti Lal Sharma, Security Officer, Gammon India Pvt. Ltd. Co., DDA Park, Majnu Ka Tila that between the pole no. 45 & 46 near flyover, an accident had taken place. The same was informed to SI Ram Chhail Rathi telephonically who reached at the spot of incident.
During cross-examination by the ld. defence counsel he revealed that he received a call on the land-line of the police station Timarpur. He did not know ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:47:40 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 13 of 19 whether the call came from mobile or land-line number. The register no. 2 had overwriting qua the date, this was not in his knowledge as the date 23.04.2012 was not written by him. He did not remember the land-line number on which he received the call. He made a call to SI Ram Chhail telephonically which was duly recorded as per DD No. 67B. He did not know whether any certificate as to 65B or any copy of the DD entry had been filed in the case file or not. He did not remember whether the signatures on Ex.PW12/A were his or not.
15.Prosecution evidence was closed on 26.08.2021. Recording of additional statement of the accused u/s 313 Cr.P.C concluded on 09.09.2021. During his statement u's 313 Cr.P.C the accused claimed that he is innocent and has been falsely implicated in this case. He also stated that the accident was not caused from his vehicle. The accused elected not to lead defence evidence. Final arguments were heard on 16.09.2021.
16.Learned APP for state adumbrated that all cogent oral and documentary evidence has been tendered in evidence and all the witnesses have fully supported the case of the prosecution. He claimed that the case against the accused has been proved beyond a shadow of doubt, so the accused be convicted.
Per-contra, ld. defence counsel submitted that no public person was asked to join the investigation, even the police official who accompanied the IO to the spot was not even cited as a witness by prosecution. He pointed out that the departure entry from the PS of both the purported eye-witnesses has not been tendered in evidence. He argued that the site plan lacked even basic details and the same was useless. He alleged that both the eye-witnesses Ct. Bhopal and Ct. Arvind are planted witnesses in order to falsely implicate the accused. He Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:47:59 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 14 of 19 prayed that the accused be acquitted as the case against him has not been proved beyond all reasonable doubt.
17. I have cogitated over the submissions made by Ld. APP for the state and Ld. Counsel for the accused. Before adverting to appreciation of evidence for deciding the present case the applicable penal provisions are reproduced in verbatim as follows:-
Section 279. Rash driving or riding on a public way- 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 term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. Section 304A. Causing death by negligence- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
Explaining the meaning of rash act as distinguished from negligent act, the Apex Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh (2000) 7 SCC 72 observed as under:-
A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution. To fasten criminal liability upon the accused in the present matter, it is imperative that the death should have been direct result of a rash or negligent act of accused and that act must be proximate cause without intervention of another's negligence. The act must be causa causans and it is not enough that the act may have been causa sine qua non. My observations on the evidence Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:48:18 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 15 of 19 adduced during trial are delineated hereinafter.
18.As per the case of the prosecution, two police constables on patrolling duty near the place of accident, saw the mixer truck hit the pedestrian and crush him but surprisingly, the departure entry of these two constables leaving PS Timarpur for patrolling at beat number 4 has not been tendered in evidence. Both constables namely Ct. Bhopal Singh and Ct. Arvind were examined as prosecution witnesses but they failed to recall the DD entry number in which their departure from the PS was recorded. Rule 49 of Chapter 22 of the Punjab Police Rules, 1934 is reproduced as under:-
"Chapter 22 Rule 49: Matter to be entered in Register no.11. The following matters shall amongst others, be entered:
(c) The hour of arrival and departure on duty at or from a police station of all enrolled police officers of whatever rank, whether posted at a police station or elsewhere with a statement of the nature of their duty. This entry shall be made immediately on arrival or prior to the departure of the officer concerned and shall be attested by the latter personally by signature or seal.
Note: The term police station will include all places such as Police Lines and Police Posts where Register no.11 is maintained."
Even the roznamcha wherein the DD entry of departure of both constables ought to be recorded was not produced. It has been held in Rattan Lal Vs. State of Delhi (Criminal Appeal no. 111 of 1986 decided on 10.03.1987) by the Delhi High Court that:-
"if the investigating agency deliberately ignores to comply with the provisions of the Act the Courts will have to approach their action with reservations. The matter has to be viewed with suspicion if the provisions of law are not strictly complied with and the least that can be said is that it is so done with an oblique motive."
This failure to bring on record the aforesaid DD entry creates a reasonable doubt in the prosecution version and attributes oblique motive. This lapse on the part of the prosecution gives some credence to the claim of the defence counsel that both Ct. Bhopal Singh and Ct. Arvind are planted witnesses. No ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:48:42 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 16 of 19 map of area comprising beat no. 4 of PS Timarpur has been placed on record to show that the presence of eye-witnesses at the place of accident was natural and in ordinary course. An adverse inference is drawn against the prosecution in terms of section 114(g) of The Indian Evidence Act, 1872. It shall be presumed that the DD entry of departure and map of patrolling area withheld from this court by the prosecution, if produced would have been unfavourable to its case. The presence of both the eye-witnesses at place and time of accident itself is in doubt, so the case against the accused cannot be proved beyond reasonable doubt. This factor in itself is sufficient to exculpate the accused as the chance of false implication cannot be negated.
19.Both PW-2 Ct. Bhopal and PW-4 Ct. Arvind during their respective cross- examinations disclosed that about 15 persons were present at the spot of accident but IO testified that no public person had seen the accident. The statement of IO is not only contradictory to the testimonies of both eye- witnesses but the same also seems to be incongruous with the facts as the place of incident is busy ring road at the peak traffic hour of 5 to 6 PM and construction work was going on and as per PW-4 about 15 to 20 labourers were present at the spot. IO had not recorded the statement of any public person about the accident. He has not even mentioned the names, addresses etc. of the persons in case diary from whom he made inquiry about the accident. A mere prevaricating answer that no independent person saw the accident does not absolve the IO and he ought to have made strenuous efforts to associate independent persons in investigation. In Rattan Lal (supra) the Delhi High Court made following observation:-
In the present case there is a vague explanation that public witnesses were approached but they declined. Neither the name of such witness has been given nor has any order in writing to that effect been preserved, nor it is asserted that a mention about the same has been made in the case diary. Obviously, there is a deliberate attempt to defeat the ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:49:05 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 17 of 19 legislative safeguards.
The non-joining of independent public persons though available at the spot further erode the credibility of the case of prosecution.
20.In his testimony IO SI R.C.Rathi stated that Ct. Pushpender accompanied him to spot but surprisingly no work was done by this constable during investigation, even the rukka was taken to the PS by eye-witness Ct. Arvind. Ct. Pushpender was not even cited as a witness in the charge sheet. Another intriguing aspect of the case is the chronology of events. Both eye-witnesses testified that they came back at the spot after apprehending the accused and found SI R.C.Rathi present at the spot. The IO on the other hand submitted that when he reached the spot, eye-witnesses and accused Bharat Pathak were already present there. PW-10 also revealed that the accused was brought in government vehicle by eye-witnesses, even this statement does not fit into the case built by the prosecution as no government vehicle was there at the spot since both constables were patrolling on foot and they chased the mixer truck on personal motorcycle of Ct. Bhopal.
21.Site plan Ex.PW10/B is a sign of shoddy investigation. Only Mark A in the site plan indicates where the crushed dead body was found. The accident took place at an under construction road but the IO did not strive to show the marks of tyres of the offending vehicle on the site plan which would have lent some credibility to the case. Even the truck which was brought back to the spot and should have been parked there at the time of making of site plan is not shown. The site plan is hardly of any help to this court. The photographs placed on record are not having the corresponding negatives and the same are thus not proved and cannot be relied upon by the court. The DD writer PW-12 HC Ravinder Kumar did not identify his signatures on DD no. 67B dated ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.09.22 18:49:34 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 18 of 19 23.04.2012 qua receipt of information at PS about the accident.
22.In the case titled Abdul Subhan vs. State (NCT of Delhi), 2006 (4) LRC 472 (Del), guidelines for proper investigation have been laid down by the High Court of Delhi which are as follows:
13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "high-speed". 13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the tell-tale signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts.
13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.Digitally signed
ANURAG by ANURAG THAKUR THAKUR Date: 2021.09.22 18:49:56 +05'30' FIR No. 88/2012 State vs Bharat Pathak PS Timarpur 19 of 19 13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants.
13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no criminal court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a charge sheet is filed, the court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable."
The standard of investigation expected is clearly specified in these guidelines, however, in the case at hand there is a significant doubt on the presence of purported eye-witnesses at the time of incident. Non-joining of public persons in investigation and withholding of evidence also plague the case of the prosecution. The photographs have not been proved, the site plan at best is inadequate and there are inconsistencies in testimonies of IO and eye-witnesses which obfuscate the already enfeebled case of the prosecution. There are far too many doubts and lacunae in the evidence, to record a finding of guilt of the accused and consequently, the accused is acquitted of the offence punishable u/s 279/304A IPC Announced in the open court today i.e. 22nd day of September 2021 ANURAG Digitally signed by ANURAG THAKUR THAKUR 18:50:20 +05'30' Date: 2021.09.22 (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 19 pages and each and every page of this judgment is signed by me.
FIR No. 88/2012 State vs Bharat Pathak PS Timarpur