Delhi District Court
State vs Mohammad Chaman on 29 July, 2025
IN THE COURT OF RISHABH KAPOOR, JUDICIAL MAGISTRATE FIRST
CLASS -05 SOUTH-WEST DISTRICT, DWARKA COURTS: DELHI
State Vs. : Mohd Chaman RISHABH
KAPOOR
FIR No : 394/2011 Digitally signed by
RISHABH KAPOOR
U/s : 279/337/338 IPC
Date: 2025.07.29
15:05:27 +0530
P.S. : Vikas Puri
JUDGMENT
1. Criminal Case No. : 6273/19
2. Date of commission of offence : 13.11.2011
3. Date of institution of the case : 31.08.2012
4. Name of the complainant : State
5. Name and parentage of accused : Mohd. Chaman s/o
Mohd. Akhtar
6. Offense complained or n proved : U/s 279, 304A, 337 and 338 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved: 17.07.2025
9. Final order : Acquitted for offences u/s 337 & 338 IPC and
Convicted for offences u/s 279 & 304A IPC
10. Date of final order : 29.07.2025
1. The accused Mohd. Chaman is facing trial for offences u/s 279,304A,337,338 IPC. The genesis of the prosecution story is that on 13.11.2011 pursuant to receipt of information vide DD no. 15 B, when the team of police went to the spot of occurrence at Gali no. 17 near Delhi Jal Board, Outer Ring Road Vikas Puri, Delhi, one TSR bearing no. DL-1RL-7332 along with one truck no. HR-38J-7268 were lying in the accidental condition. The police were informed that the injured persons were already taken to DDU Hospital and at DDU Hospital, police transpired that State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 1 injured Shivji Shah was brought dead at the hospital. The wife of deceased Shivji Shah namely, Shobha Devi narrated to police that the alleged incident took place due to rash or negligent driving of the TSR no. DL-1RL-7332 in which she along with her husband Shivji Shah, her mother-in-law Bhatni Devi and her four children namely, Phool Kumari, Roshan, Rahul and Sangeeta were traveling. The complainant disclosed that said TSR rammed into a stationary truck no. HR-38J- 7268 which was loaded with iron rods. The criminal law was set into motion on the basis of statement made by complainant Shobha Devi and the investigation into the case began. During the course of investigation, notice u/s 133 MV Act was served upon the owner of TSR namely, Mahesh Kumar who produced the documents of the TSR as well as the accused Mohd. Chaman stating that the vehicle was being driven by the accused at the time of incident. The post-mortem of dead body of deceased was also conducted and the driver as well as the owner of truck no. HR- 38J -268 were also made to join the investigation. The mechanical inspection of both the vehicles was also conducted and the final opinion with respect to the injuries suffered by the injured persons namely, Roshan and Bhammo Devi was also obtained. The injuries sustained by victim Roshan were opined to be grievous in nature and the injuries suffered by victim Bhammo Devi were opined as simple in nature. After completion of investigation, the charge-sheet for offences u/s 279,304A,337,338 IPC was submitted for trial of accused.
2. Thereafter, the cognizance of the offences was taken by the Ld. Predecessor Court and on the basis of material available on record, notice of accusation for offences u/s 279,304A,337,338 IPC was framed and served upon accused Mohd. Chaman. Accused pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, prosecution has examined nine witnesses in all.
4. Thereafter, the statement of accused u/s 313 Cr.P.C. was recorded wherein State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 2 all the incriminating circumstances were put to accused. The accused did not lead evidence in his defense.
5. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses and therefore, the accused deserves to be convicted for the alleged offences.
6. Per contra, Ld. Defense Counsel has contended that the accused has been falsely implicated in the present case at the instance of the police. It has also been argued that the testimonies of the prosecution witnesses have not established either the identity of the accused as the driver of the alleged offending vehicle nor same has proved the commission of any rash or negligent driving by the accused. It has been contended that there exist serious doubts in the prosecution story and accused is liable to be acquitted for the alleged offences.
7. I have heard the rival contentions advanced by the prosecution and defense and have also gone through the case record carefully.
8. Prior to delving into the merits of the contentions advanced on behalf of par- ties, let us briefly discuss the testimonies of the material prosecution witnesses.
9. PW-1 Shobha Devi was the complainant in the present case. She deposed that she does not remember about the exact date of incident but it was in the month of November, when she along with her husband Shivji Shah, mother-in-law Smt. Bhatni Devi and four children namely, Phool Kumari, Rahul, Roshan and Sangeeta had gone to Sant Samagam at Burari and after the satsang, when she was coming along with her afore-named relatives in the TSR driven by the accused, the accused started driving the vehicle at a high speed and rash and negligent manner. She further deposed that her husband requested the accused for driving the vehicle in a proper manner but he did not pay any attention to him and while driving the State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 3 TSR, the accused rammed the same in a truck loaded with iron rods (sariya), which was parked at the corner of the road. She further deposed that the accused ran away from the spot leaving the TSR and she along with her family members sustained injuries due to the incident. She deposed that her husband got seriously injured and she took her husband, her mother-in-law and her children to DDU Hospital in another TSR and at hospital, her husband was declared as brought dead. She was also encountered with questions in the nature of cross examination by Ld. APP for the State and during such examination, she admitted that the number of TSR of accused was D-1RL-7332. She identified the accused as the driver of the TSR. She also identified the TSR and truck in photographs Ex. P1 to Ex. P12.
10. PW-2 Shankar Shah and PW-3 Vakil Shah were the witnesses to the dead body of deceased and have identified their signatures on dead body identification vide Ex. PW 2/A and PW 3/A respectively.
11. PW- 4 Mahesh Arora was the registered owner of the offending vehicle bearing no. DL-1RL-7332 stating that has reply to the notice u/s 133 MV Act Ex. PW 4/A was given by him. He deposed that notice u/s 133 MV Act is Ex. PW 4/A. He further deposed that he got released the vehicle on superdari vide superdarinama vide Ex. PW 4/B. He also identified the alleged offending TSR no. DL1RL 7332 in photographs Ex. P5 to Ex. P8. During his cross-examination, he stated that he had informed the police in his statement that accused Mohd. Chaman was driving the alleged offending TSR at the time of incident. He stated that he was having two or three TSRs in year 2011 and all the TSRs were driven by accused, as he was working with him on commission basis. He denied that the accused was not driving the offending vehicle at the time of incident or that he had withheld the salary of accused for two months and due to the demand made by accused for same, he was falsely implicated in the present case.
12. PW- 5 Sardar Mahinder Singh deposed that on 12.11.2011, he took his truck State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 4 loaded with iron rods from Gobindgarh and came to Delhi through Outer Ring Road. He further deposed that when he crossed the DJB Office, Keshopuram and started going towards Vikas Puri, he stopped his truck on the extreme left side of the road to inquire about the way and suddenly, he heard a noise and when he went behind the truck he found that one TSR had struck behind his truck. He further deposed that public persons gathered at the spot and due to fear of public persons, he ran away from the spot.
13. PW-6 ASI Inderjeet Singh was the Duty officer and has proved the FIR and endorsement on rukka vide Ex. PW 6/A and Ex. PW 6/B, respectively.
14. PW-7 HC Kuldeep has proved the DD no. 15 and 16 in Roznamcha register vide Ex. PW 7/A and Ex. PW 7/B respectively.
15. PW-8 SI Prahlad Swaroop deposed that on 12.11.2011 during his emergency duty, he received DD No. 15B and thereafter, he alongwith Ct. Sarvesh reached at Outer Ring Road, Delhi Jal board, District Centre where in front of Gali no. 17, he saw one truck bearing registration No. HR-38J-7268 having iron rods and another vehicle TSR no. DL-1RF-7332 in an accidental condition. He further deposed that in the meantime, he received DD No. 16B regarding the admission of injured in hospital in DDU hospital. He further deposed that he instructed to Ct. Sarvesh to remain present at the spot and went to DDU hospital where MLC of Shivaji was prepared in which he was declared brought dead. He further deposed that the other injured persons were in very serious condition and they were unable to give their statements. He further deposed that he prepared the rukka Ex. PW6/B, which was handed over to Ct. Sarvesh for registration of FIR and after registration of FIR, Ct. Sarvesh came to the spot with copy of FIR and original rukka. He further deposed that he prepared site plan Ex. PW8/A and seized both the said vehicles vide seizure memo Ex. PW 8/B and Ex. PW8/C, respectively. He further deposed that during the course of investigation, he got conducted the mechanical inspection of both the State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 5 vehicles from ASI Devender after which reports Ex. PW8/D and Ex.PW8/E were issued. He further deposed that he prepared documents related to post-mortem and filled request for PM form Ex. PW8/F along with brief facts of deceased Shivji Shah and conducted the post-mortem of deceased Shivaji Shah after which his dead body was handed over to his relatives. He further deposed that he filled Form no. 25.35(1) (b) of deceased which is Ex. PW 8/G and prepared the dead body identification memo on the basis of statements made by witnesses Shanker Shah and Vakil Shah which are Ex. PW 2/A and Ex. PW 3/A, respectively. He further deposed that he gave notice u/s 133 MV Act to registered owner of TSR namely, Mahesh Arora which is Ex. PW 4/A and as per reply given by him, on the day of incident accused Mohd. Chaman was driving the alleged offending TSR. He further deposed that thereafter, he arrested the accused vide arrest memo Ex. PW 8/H and personal search of accused was also conducted vide memo Ex. PW 8/I. He further deposed that he seized the original driving license of accused vide memo Ex. PW 8/J. He further deposed that he seized the documents of offending vehicle i.e. original insurance, fitness certificate, permit, RC receipt vide memo Ex. PW 8/K and filed application for RC verification vide Ex. PW 8/L. He further deposed that he also filed application for permit verification vide Ex. PW 8/M and application for fitness certificate verification vide Ex. PW8/N. He further deposed that he collected the PM report of deceased and MLC of other injured persons from the hospital and after compiling all the documents, filed the charge sheet before the court. He correctly identified photographs of both the vehicles which are Ex. P-1 to P-10. During his cross examination, he stated of having reached the the spot first time at about 7:00 am on 13.11.2011. He further deposed that he did not find any witnesses at the spot and that he was accompanied by Ct. Sarvesh Kumar at that time. He further stated that he reached the hospital at about 8:00 am on the same day. He could not state when did he recorded the statement of Shobha Devi. He further stated that he has been IO in the present case since beginning. He further stated that no eye witnesses were found at the spot and that the statement of eye witness Shobha Devi was recorded by him on 14.11.2011 at hospital. He denied State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 6 that no statement of Shobha Devi was recorded on 14.11.2011 at the hospital. He admitted that he prepared site plan on 13.11.2011 of his own, without the instructions of complainant. He admitted that the offending TSR was also badly damaged. He admitted that front glass of TSR was badly broken due to the impact of Iron rods. He admitted that accused Chaman was produced in the PS by the registered owner of the offending TSR namely Mahesh Arora on 17.11.2011. He admitted that he interrogated the accused in the PS and had not prepared any interrogation report. He denied that he had not interrogated the accused in the police station and arrested him without interrogation at the instance of registered owner of the offending TSR namely, Mahesh Arora. He denied that accused told him that Mahesh Arora has produced him in the PS on false assurances. He denied that accused informed him that the alleged offending vehicle was not driven by him at the time of incident or that the accused narrated to him that his salary for the month of September and October for having worked as driver of Mahesh Arora at the monthly salary of Rs. 8,000/- per month was due. He denied that the accused also informed him about an altercation between him and Mahesh Arora around 3-4 days before the Id-Ul-Haza (6/7.11.2011) on account of the demand for his outstanding salary being made by him or that he left the job of Mahesh Arora due to the same 3-4 days prior to the date of alleged incident. He denied that he did not listen to the request of accused and falsely implicated him in the present case at the instance of Mahesh Arora. He denied that he had not carried out the investigation in a fair manner to find out the truth and that accused has been falsely implicated in the present case.
16. PW-9 Amarjeet Singh deposed that he was the registered owner of truck bearing no. HR-38J-7268 and at the time of accident, it was being driven by driver Mahinder Singh. He deposed that the police informed him about the accident and he went to PS. He identified the truck in photographs Ex. P-9 to P-12 and he deposed that he got released the same vide superdarinama Ex.PW 9/A. During his cross examination, he admitted that he had moved the application for releasing of truck on superdari through his employee Ranjan Kumar Thakur.
State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 7
17. The accused has admitted has admitted the factum of mechanical inspection of the vehicles and issuance of reports are Ex. PW 8/D and Ex. PW 8/E. Further, the accused has also not disputed the MLCs of the injured persons, PMR of the deceased along with the other medical records of injured persons which are Ex. AD-1 to Ex. A-10 respectively, vide his statement u/s 294 Cr. PC and pursuant thereto, the formal witnesses with respect to the above-mentioned documents were dropped from the list of witnesses.
This the entire evidence led by the prosecution.
18. Before, discussing the testimonies of PWs, it would be prudent to discuss the legal position involved in the present case.
LAW INVOLVED IN THE PRESENT CASE
19. Section 279 of the IPC provides for the offence of rash driving or riding on a public way. It 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 extend to six months, or with fine which may extend to one thousand rupees, or with both."
20. On bare reading of the above provision, it becomes clear that there are primarily three essential ingredients which constitute offence of rash driving on a public way which are as under:-
a. Person must be driving or riding on a public way;
b. He must be driving in a rash or negligent manner;
c. Likely to endanger human life or cause hurt or injury to any person
21. Section 304A IPC provides for the offence of causing death by negligence. Death must have been caused by rash or negligent act which must not amount to State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 8 culpable homicide. It reads as under:
"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 dine, or with both."
22. The doing of a rash or negligent act, which causes, death is the essence of section 304A. There is a slight distinction between a rash act and a negligent act. 'Rashness' conveys the idea of recklessness or doing an act without due consideration and 'negligence connotes want of proper care. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.
23. A perusal of the above discussed provisions makes it very clear that an act of rashness or negligence endangering the human life or personal safety is a common ingredient in all these offences. Now a question arises as to what would constitute a rash or negligent act. At this stage, reference may be taken from the decision of the Hon'ble Supreme Court in the case of Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh, wherein the Hon'ble Apex Court has discussed in detail as to what constitute a rash or negligent act and inter-alia held the following:
"A rash act is primarily an over hasty act. It is opposed to 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."
State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 9
24. Further, in the case of Braham Dass vs. State of Himachal Pradesh (2009) 3 SCC (Cri) 406, while discussing the legal position with respect to an offence us 279/304A IPC, the Hon'ble Supreme Court has inter-alia held the following:
"Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness.
Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial. What is important is that he has not taken due care or has done the said act with indifference to the consequences.
25. Further, it should be noted that there should be direct link between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim. The Hon'ble Delhi High Court in the case of Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 has discussed the ingredients which need to be established by the prosecution for convicting an accused u/s 279/304 A IPC. The Hon'ble Court has inter-alia held the following:
"As observed in Badri Prasad (supra) the essential ingredients of section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under section 279 or section 304A, the commission of a rash or negligent act has to be proved."
26. The above-mentioned judgments sufficiently enlighten us that for establishing State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 10 accusations u/s 304A IPC, prosecution is not only required to establish that the accused was rash or negligent while driving the vehicle, but it is additionally incumbent on prosecution to establish that the causa-causans of death of deceased /or the proximate cause of death of deceased was the act of accused.
POINTS OF DETERMINATION
27. As discussed in the preceding part of this judgment, the accused has been charged for the offences punishable u/s 279, 304A, 337 and 338 IPC. After considering the materials available on record, following issues are involved in the present case which need to be examined in the backdrop of legal provisions.
i. Whether presumption of rash and negligent driving could be raised against the accused Mohd Chaman in the present case by invoking the doctrine of res-ipsa loquitur?
ii. If yes, whether the accused has been successfully rebutted the said presumption?
iii. Even otherwise, whether the prosecution has successfully proved the guilt of accused Mohd Chaman beyond reasonable doubt for the offences punishable u/s 279, 304A, 337 and 338 IPC.
FINDINGS
28. I shall be deciding the above-mentioned points of determination by considering the materials available on record in the backdrop of settled legal position. For the sake of convenience, I shall be giving my findings to each point of determination separately.
i. Whether presumption of rash and negligent driving can be raised?
29. The doctrine of res-ipsa loquitur which literally means "things speak for themselves" is mostly applicable in the civil cases of negligence wherein a presumption is drawn against the wrongdoer that he has not taken due and proper care or he has done certain acts rashly. While discussing about the applicability of State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 11 this doctrine in the realm of criminal offences, the Hon'ble Supreme Court in the case of Ravi Kapur vs.State of Rajasthan (2012) 9 SCC 285 has inter-alia held the following:
In light of the above, now we have to examine it negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established. The Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases. the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:
The event would not have occurred but for someone's The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event. Accused was negligent and owed a duty of care towards the victim"
30. Further, in the case of State of Himachal Pradesh vs. Manpreet Singh HLJ 2008 (HP) 538, while discussing the applicability of this doctrine in a case of criminal negligence, the Hon'ble Court has inter-alia held the following:
"Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that the said Shri Daya Ram has died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words. It must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 12 negligent act of the accused."
31. However, in the case of Syad Akbar vs. State of Karnataka 1979 Cri LJ 1374 the Hon'ble Supreme Court has held that the doctrine of res ipsa loquitur will not stricto senso apply to a criminal case. It will be imperative on the prosecution to first prove certain circumstances before applying the said doctrine. Relevant extract of the judgment is reproduced below:
"29. Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact is subject to all the principles. the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. These are: Firstly, all the circumstances. including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the quilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence and inferentially exclude all reasonable doubt about his quilt."
32. In the case of S.L. Goswami vs. State of M.P 1972 CRI.L.J.511 (SC), the Apex Court held that the onus to prove the ingredients of the offence always lies on the prosecution. Relevant extract of the judgment is reproduced below:
"5.... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests on the prosecution.
33. This ratio was reiterated by Hon'ble Supreme Court in the case of Nanjundappa vs. State of Karnataka Cr. A 900 of 2017 dated 17 May 2022 recently in the case of wherein it was held that for bringing home the guilt of the State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 13 accused, prosecution has to firstly prove negligence and then establish direct nexus between negligence of the accused and the death of the victim.
34. Therefore, analysis of the aforementioned judgments makes it very clear that the doctrine of res-ipsa loquitur is automatically not applicable in a criminal case in its strict sense. However, it is applicable when the prosecution successfully proves the essential ingredients of the offence, the accident must not have occurred but for someone's negligence or rashness and evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the accident.
35. In the instant case, in order to prove the essential ingredients of alleged offences, the prosecution has primarily relied upon the testimony of PW-1 who is the only eye-witness of the present case. She was the star witness as she was stated to be traveling in the same TSR in which the deceased victim Shivji Shah was traveling at the time of incident. She was also the wife of the deceased. In her testimony, PW-1 had given a detailed account and the manner in which the incident had taken place. She had categorically stated that at the time of incident, the TSR was being driven by accused at a high speed and in rash or negligent manner. More specifically, she has coherently narrated that at the time when the accused was driving the TSR at a high speed and rash or negligent manner, her husband requested the accused several times for driving the TSR in a proper manner but the accused failed to pay any heed to the same and due to his high speed driving in rash or negligent manner, the TSR was rammed by him in a stationary truck which was loaded with iron rods (sariya). The factum of accident has also been proved by the testimonies of police officials.
36. In order to prove the other ingredients of the offences u/s 304A,337, 338 IPC i.e. nexus between the negligence of accused and death of the deceased as well as the injuries suffered by the victims, the prosecution has again relied upon the testimony of PW-1, in addition to the testimonies of PW-4, PW-5 and PW-8.
State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 14
37. PW- 8 is the police official who reached the spot after receiving the news of accident. The said witness in his testimony had categorically stated that when he reached the spot, TSR no. DL-1RF-7332 was lying in an accidental state behind the truck no. HR-38J-7268 which was loaded with iron rods (sariyas) and when PW-8 reached the hospital, he transpired that the victim Shivji Shah was brought dead at the hospital and PW-1 narrated him the entire incident. The testimony of PW-4, who is the registered owner of the offending TSR also establishes the necessary nexus between the accident in question and the resultant death of victim Shivji Shah as this witness also stated that at the time of the incident, the vehicle in question was in the possession of the accused. The death of victim Shivji Shah due to incident could also be corroborated from the MLC Ex. PW-AD3 and post-mortem report Ex. AD-1 which reported multiple abrasions all over the body of victim along with various injuries on vital parts of the body of victim. Also, perusal of the material available on record would completely rule out the role of any third party or even contributory negligence of the victim. The fact that the crowd of public persons may have been present at the spot is not sufficient to attribute any sort of contributory negligence to the victim.
38. The perusal of testimony of PW-1 would clearly show that the death of the victim was caused when the TSR driven by the accused rammed in to a stationary truck loaded with iron rods. The death of the victim due to accident could also be corroborated from the testimonies of police.
39. Hence, in view of the above, I am of the considered opinion that the prosecution has successfully proved the essential ingredients of the accident. It has also successfully proved that accident must not have occurred but for someone's negligence or rashness. Also, evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the accident. Therefore, a presumption of rash and negligent driving on the part of accused could State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 15 be raised in the present case. Importantly, while drawing such presumption, this Court is well conscious of the fact that such presumption is being drawn only qua the act of the accused leading to the death of victim Shivji Shah as the necessary nexus between the two has been established from the testimonies of the above- mentioned witnesses. The presumption cannot be drawn with respect to the offence u/s 337 or 338 IPC as the case may be as the prosecution has not established the necessary nexus between the act of the accused and the injuries allegedly suffered by the victims namely, Roshan and Bhammo Devi. More specifically, both the above-named -persons were never examined during the course of investigation nor their names are detailed in the list of witnesses. Even the testimony of PW-1 qua the injuries suffered by the above-named Roshan and Bhammo Devi due to the alleged incident is vague and general in nature. There is no other evidence led by the prosecution for establishing the necessary nexus between the alleged act of rash or negligent driving of TSR by the accused and the injuries being sustained by the above-named two persons, hence, the presumption qua the offences u/s 337 and 338 IPC cannot be drawn against accused and the further discussion would be limited to the extent of discussing the liability of accused only for offences u/s 279 and 304A IPC.
40. When the presumption regarding negligence is raised against the accused and onus to rebut the same shifts to the accused, the standard of proof which is required from the accused is not the same which is required from the prosecution to prove its case. It is imperative for the prosecution to prove its case beyond reasonable doubts, however, it is not required from the accused to prove its defence beyond reasonable doubts. The defense can rebut the presumption on the basis of preponderance of probabilities.
41. In the instant case, accused has taken the defence that he has been falsely implicated in the present case as he was having a dispute with the registered owner of the vehicle (TSR) namely, Mahesh Arora with respect to the payment of State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 16 outstanding salary of accused and due to such reasons, the latter has falsely implicated the accused in the present case.
ii. Whether the accused has successfully rebutted the said presumption?
42. It should be noted that the accused had not taken any steps to prove his defence. No evidence was led by him in support of his claim. In fact, when his statement was recorded us 313 Cr.P.C, he had simply denied the allegations and stated that he was falsely implicated in the present case. The version of accused that he was falsely implicated by the police at the instance of the registered owner of TSR has not been established by the accused through any evidences whatsoever. No suggestion was put to the eye-witness to rebut the factum of rashness and negligence on the part of accused.
43. Hence, in the absence of any materials on record, I am of the considered view that the accused has failed to rebut the presumption of rashness and negligence raised against him in the instant case.
iii. Whether the prosecution has proved its case beyond reasonable doubt (without relying on the presumption of rashness or negligence)?
44. Although, presumption of rashness and negligence has been raised against the accused in the present case and he has failed to rebut the said presumption, however, in this part of the judgment, I shall be examining as to whether the prosecution has successfully proved the guilt of accused even otherwise (without relying on the presumption) beyond reasonable doubt.
45. In the instant case, as discussed in the preceding part of this judgment, in order to prove the factum of accident and rash and negligent driving by the State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 17 accused, the prosecution has primarily relied upon the testimony of PW-1, who is the eye-witness of the present case. She was the star witness as she was traveling in the same TSR along with the victim Shivji Shah at the time when the incident had taken place. In her testimony, PW-1 had given a detailed account and the manner in which the accident had taken place. She had categorically stated that the accident had taken place when the accused was driving the TSR at a high speed and in rash or negligent manner. More specifically, PW-1 has also narrated that despite requests made by her husband Shivji Shah (since deceased) to the accused for driving the TSR in a proper manner, no heed was paid by the accused and rather he continued driving the TSR at a high speed and in rash or negligent manner leading to the same being rammed against the truck loaded with iron rods which was stationed at the left side of the road. She has identified the accused in the Court and also identified the offending vehicle. This witness was not cross examined by the defense and even no suggestions were put to the witness by Ld. Defense Counsel for repelling the case of prosecution. Hence, no material contradictions could be seen in her testimony.
46. Perusal of the testimony of eye-witness would clearly show that the accident had taken place by the offending TSR which was being driven by the accused. The said TSR was being driven at a high speed and in negligent manner. While high speed simplictor would not always necessarily amount to rash and negligent driving, however, in the instant case, it should be noted that all the material PWs including PW-1 have coherently maintained their stands by stating that the offending TSR was driven at a fast speed and negligent manner by the accused. It is not the case of defense that the truck in which the TSR was rammed by accused was not standing at the extreme left side of the road or that same was not in a stationery condition. The facts that at the time of accident, the accused while driving his TSR loaded with the passengers at a high speed, rammed the same into a stationary truck loaded with iron rods which was parked at extreme left side of the road is also sufficient to attribute the rash and negligent act on the part of accused.
State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 18 The accused being a professional driver had the duty to take additional care while driving the vehicle loaded with the passengers when he was crossing the areas where the traffic was heavy or where the heavy vehicles were parked at the left side of the road. Driving a vehicle at high speed in such places without paying attention to the stationary vehicles will amount to rash and negligent driving.
47. The testimony of PW-1 could also be corroborated from the testimony PW-8. PW-8 was the police official who had reached at the spot after receiving the information about the accident. PW-8 in his testimony had stated that he went to the hospital where he met with eye witness/PW-1, who gave detailed account of the incident. It should be noted that PW-8 was extensively cross examined by the Ld. Defense Counsel but nothing discrediting his version could be elicited from his testimony. It is pertinent to mention that PW-8 had not seen the accused driving the offending TSR at the spot. Hence, his testimony would be relevant only to the extent of proving the factum of accident and death of the victim due to accident.
48. Importantly, PW-8 was also IO of the present case and as stated earlier, he was cross-examined by the Ld. Defense Counsel where no material contradictions could be observed. He had specifically denied the suggestions that the accused was falsely implicated at the instance of registered owner Mahesh Arora.
49. The testimonies of PW-4 would also be relevant to the extent proving the factum of accident, death of victim, presence and subsequent seizure of offending vehicle at the spot. The testimony of PW-4 would also be relevant to prove that the accused was the driver of the offending vehicle.
50. Perusal of the testimonies of the police officials would show that while their testimonies would be relevant to establish the basic ingredients of the offences involved and presence of the offending vehicle at the spot, however, the same would not be relevant to extent of proving the presence of the accused at the spot.
State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 19 None of them had seen the accused at the spot when they reached there.
51. The identity of the accused Mohd. Chaman as the person who was driving the offending vehicle at the time of incident was established by the testimony of eye-witness PW-1.
52. Further, in order to prove the nexus between the negligence of accused and death of the victim, the prosecution has again relied upon the testimony of PW-1 in addition to the testimonies of PW-4 and PW-8.
53. The perusal of the testimony of PW-1 would clearly show that the death of the victim was caused when the accused rammed the offending TSR in which the victim was traveling as same was driven by the accused in rash and negligent manner. The death of the victim due to accident could also be corroborated from the testimony of PW-8 who had reached at the spot after receiving the news of accident. The said witness in his testimony had categorically deposed that the detailed account of the incident was made by PW-1 at the hospital and subsequently, PW-4 being the registered owner of the vehicle produced the accused to him as the person who was driving the offending TSR at the time of the incident pursuant to notice u/s 133 MV Act served upon him.
54. Further, the accused has not disputed the authenticity of the MLC of the victim Shivji Shah or observations made therein. Similarly, the accused has also admitted the PMR of the victim and the conclusions stated therein qua the cause of death of the victim. The said MLC is Ex. AD-3 and the PMR is Ex. AD-1. Perusal of the said MLC would clearly show that multiple abrasions were present all over the body of victim. Also, there were many injuries on the vital organs of the body of victim.
55. Further, the post-mortem report which is Ex. AD-1 would also show that State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 20 injuries on the vital body parts of the deceased were found at the time of post- mortem of the body. More specifically, as per the PMR, the victim had sustained the injuries on the temporal and frontal region of his scalp and the multiple abrasions were found on the face, neck thighs, shoulder, eye brow area, lower lip of the deceased and the fracture of the wrist was also reported in the said PMR of the deceased. The aforesaid findings in the PMR of deceased clearly suggests that this could clearly suggest that the death of the victim had taken place due to severe injuries sustained on his vital body organs. He had already succumbed to his injuries before being brought to the hospital.
56. During the final arguments, Ld. Defense Counsel had contended that the testimony of eye-witnesses suffered from material contradictions, and, therefore, same could not be relied upon. He contended that the accused was not driving the alleged offending TSR at the time of incident and that he was falsely implicated by the police at the instance of the owner of TSR due to his enmity with the accused.
57. It should be noted that this argument made by Ld. Defense Counsel is not supported with any cogent and convincing material and evidences on record.
58. Also, it was contended that no public witnesses or the other family members of PW-1 who were traveling in the TSR at the time of alleged incident were examined by the police during the course of investigation. I would agree that the public persons/other family members of PW-1 who might be present at the spot should have been examined by the police during the course of investigation and should have been made witnesses. Further, non-examination of the public witnesses would not discard the entire case of prosecution which was otherwise proved on record on the basis of testimonies of eye-witness and duly corroborated from the testimonies of police officials and medical reports.
59. When the incriminating materials were put up before the accused at the stage State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 21 of recording of his statement u/s 313 Cr.P.C, the accused had merely made a bald denial and stated that he was falsely implicated in the present case. No other defence was taken by the accused. In fact, he did not even lead defence evidence in support of his defence.
60. Therefore, in view of the above discussion and findings, this Court is the of the considered view that for want of sufficient evidences for bringing home the guilt of accused for offences u/s 337 and 338 IPC, the accused has to be inevitably acquitted for offences u/s 337 and 338 IPC and he is hereby acquitted for said offences. However, in view of foregoing discussion, this Court is also of the considered view that prosecution has successfully proved all ingredients of offences punishable u/s 279 and 304A IPC in the present case. It has also successfully proved the guilt of accused beyond reasonable doubts for having committed the offences u/s 279 and 304A IPC without relying upon the presumption of rashness on the part of accused. Hence, accused Mohd Chaman is convicted for the offences punishable u/s 279 and 304A IPC.
61. Let convict be heard on quantum of sentence separately.
62. Let copy of this judgment be also given to convict free of cost.
(Rishabh Kapoor) Judicial Magistrate First Class-05 (South-West)/Dwarka 29.07.2025 State Vs. : Mohd Chaman FIR No : 394/2011 U/s : 279/337/338 IPC P.S : Vikas Puri 22