Delhi District Court
Sate vs . Sharwan Kumar on 13 January, 2015
FIR No.418/98
PS Narela
U/s. 279/304A IPC
Sate Vs. Sharwan Kumar
IN THE COURT OF SH. SANDEEP GUPTA
METROPOLITAN MAGISTRATE: ROHINI COURT: DELHI.
FIR No.418/98
PS Narela
U/s. 279/304A IPC
Sate Vs. Sharwan Kumar
Date of Institution of case:- 05.10.99
Date of Judgment reserved:- 19.12.14
Date on which Judgment pronounced:- 13.01.15
JUDGMENT
Unique ID no. :02401R0174342001
Date of commission of offence :01.10.98
Name of complainant :SI Munshi Ram, PS Narela.
Name and address of accused :Sharwan Kumar
S/o. Sh. Jangli Ram, R/o
Nai Basti, Pana Mamurpur, Narela,
Delhi.
Offence complained of :279/304A IPC
Plea of accused :Pleaded not guilty
Final order :Acquitted
Date of order :13.01.2015
BRIEF REASONS FOR DECISION:
The story of the prosecution in brief is as under:-
1. The accused Sharwan Kumar S/o Sh. Jangli Ram has been sent to face trial under Section 279/304A Indian Penal Code (hereinafter called as IPC) on the allegations that on 01.10.98 at about 9:50 am., at turn of village Holambi Kalan, Delhi he was found driving a vehicle bearing registration no. DL-1P-7342 at a public road in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the abovesaid vehicle in the abovesaid manner he struck against Page No.1 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar Pedestrian Laxmi Devi W/o Sh. Randhir Singh and caused her death (not amounting to culpable homicide) and on the basis of the said allegations, the present FIR bearing no.418/98 was registered at Police station Narela and the accused has been charged with the offence under Section 279/304A IPC.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C) and notice U/s. 251 Cr.P.C. for the offence U/s. 279/304A IPC was served upon the accused on 16.03.00, to which he has pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined seven witnesses.
4. PW1 is Mr. Randhir S/o Mahesh Chand, R/o H.No.240, Village Holambi Khurd, Delhi. He deposed that the deceased Laxmi Devi was his wife who met with an accident and died. He further deposed that he identified her dead body and obtained the same after postmortem. His statement Ex.PW1/A was recorded which bears his signature at point A. He has not been cross-examined by the accused despite given opportunity.
5. PW2 is Sh. Daulat Ram S/o Sh. Ram Sahai, R/o Village Holambi Khurd, P.O. Holambi Kalan, Delhi-82. He deposed that on 02.10.98, he had identified the dead body of Smt. Laxmi Devi at Hindu Rao Hospital mortuary who was expired due to accident vide identification memo Ex.Pw2/A. He further deposed Page No.2 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar that after identification the dead body was received by Randhir Singh vide memo Ex.PW2/B. He has not cross-examined by the accused despite given opportunity.
6. PW3 is Sh. Rajesh Kumar S/o Sh. Randhir Singh, R/o Village Holambi Khurd, P.O. Holambi Kalan, Delhi-82. He is the eye witness in the present case. He deposed that on 01.10.98 they had to bring some goods from Narela, his father Randhir Singh told him that he alongwith his mother would reach at Narela by bus and was asked to wait for his father at Holambi Kalan More, Alipur. He further deposed that he alongwith his mother were waiting for the bus at bus stand Holambi Kalan More. Thereafter, at about 9:00 a.m. a red line bus no. DL 1P 7342 came from the side of Alipur, his mother signaled the driver to stop the bus but the side of bus hit against his mother as a result of which his mother fell on road and sustained injuries. He further deposed that driver of the bus stopped the bus at some distance when he raised alarm. He further deposed that lot of public persons were gathered at the spot. Thereafter, he went to his house to inform his neighbourers by taking lift on a scooter. Thereafter, when he returned to the spot, his mother was already removed to the hospital. Thereafter, he went to PS Narela, where he came to know that his mother was taken to Hindu Rao Hospital. He further deposed his brother and his father also came to the PS and all of them, then went to Hindu Rao Hospital, where they came to know that his mother succumbed to the injuries. This witness correctly Page No.3 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar identify the accused Sharvan Kumar as the driver of the bus. He further deposed that police recorded his statement at Hindu Rao Hospital. He further deposed that this accident took place due to rash and negligent act of the accused.
During his cross-examination by Ld. Defence counsel he deposed that he did not remember whether his statement was recorded by IO or not. He admitted that he had not seen the accused driver at the time of accident. He deposed that IO had told him the name of the driver/accused and he had seen the accused first time in the court. He deposed that he had not seen the offending vehicle at the spot. He denied the suggestion that he did not remember the number of the offending vehicle as he was not present at the spot. He admitted that he was upset and he went to his house. He denied the suggestion that his mother was not met with accident.
Ld. APP for the state sought permission to re-examine the witness. During his cross-examination by Ld. APP for the state he admitted that he had come to the court on 03.05.06 to depose in this case. He deposed that he did not remember the number of the offending vehicle as on that day he had read his statement before giving his statement. He denied the suggestion that he had deposed falsely being won over by the accused.
7. PW4 is HC Pawan, No.706, Communication, OPL, Delhi.
He deposed that on 01.10.98 on receiving the DD no.8A he alongwith SI Munshi Ram reached at HRH hospital where IO obtained the MLC of Smt. Laxmi Devi on which the doctor opined Page No.4 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar as patient brought dead. Thereafter, he came back at spot. He further deposed that no eye witness was present at the spot. Thereafter, IO handed over him a rukka for the registration of the case. After getting the case registered he returned at the spot with original rukka and copy of FIR and handed over the same to the IO. Thereafter, on the instructions of IO, he took the dead body to mortuary. He further deposed that he remained at mortuary to look after the dead body. He further deposed that on the next day postmortem was got conducted and dead body was released to relatives after proper identification. He deposed that the dead body so long remained in his possession, it was not tampered with any manner. He further deposed that on 03.10.98 at about 3:30 p.m. they reached at Narela bus stand where DL 1P 7342 bus No. was parked and on the driver seat, accused Sarvan Kumar was found sitting. Thereafter, he was interrogated and arrested and the personal search was conducted vide memo Ex.PW4/A. Thereafter, the bus was taken into police possession. Thereafter, the driving licence of accused was also taken into police possession vide memo Ex.PW4/B. Thereafter, the bus was deposited in the Malkhana. This witness correctly identified the accused. He has not been cross- examined by the accused despite given opportunity.
8. PW5 is Retd. SI Umed Singh, S/o Sh. Mauji Ram, Village Daultabad, District Gurgaon, Haryana. He deposed that on 04.10.98, he had mechanically inspected one bus no. DL-1P-7342 on the request of IO/SI Munshi Ram of PS Narela at Page No.5 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar the PS. He further deposed after conducting the mechanical inspection of the said vehicle, he prepared his detailed report in this regard and submitted the same to SI Munshi Ram. Same was Ex.PW5/A. Bus was fit for road test. During his cross- examination by Ld. Defence counsel he did not remember the exact time when he conducted the mechanical examination of the aforesaid bus. He admitted that there was no fresh damage on the bus.
9. PW6: Retd. SI Munshi Ram, S/o Lt. Sh. Fateh Singh, R/o 1/3533, Jamna Paar, Delhi. He deposed that on 02.10.98, on receiving DD no.8 A, he alongwith Ct. Pawan Kumar reached at HRH Hospital, where he collected the MLC no. 14434/98 in respect of Laxmi Devi and the concerned Doctor endorsed that patient was declared as brought dead. He further deposed that no eye witness was met at the Hospital. Thereafter, he alongwith Ct. Pawan Kumar reached at the spot i.e Village Holambi Kalan Mor, Narela, Alipur Road. He further deposed that no eye witness was met at the spot. Thereafter, he prepared rukka Ex. PW6/A and handed over the same to Ct. Pawan Kumar, who went to PS for registration of the case and he returned at the spot and handed over original rukka and copy of FIR to him. He further deposed that on 02.10.98, during investigation of the case, he met one Rajesh Kumar, who stated himself to be the eye witness of the present case and he recorded his statement, same is mark A, in which he has stated that one bus bearing registration no. DL-1P-7342 hit his mother and the said bus was driven by Page No.6 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar accused Shravan. Thereafter, he alongwith Rajesh Kumar came at the spot and he prepared the site plan. Thereafter, he alongwith Rajesh and relatives of the deceased went to the Hospital and he moved an application to concerned CMO for conducting the postmortem of the deceased, same application is Ex. PW6/C. The relatives of the deceased identified the dead body and he recorded their statement Ex. PW1/A and PW2/A. After postmortem, dead body was handed over to the relative of the deceased vide handing over memo Ex. PW2/B. Thereafter, he recorded the statement of witnesses. He further deposed that on 03.10.98, he alongwith Ct. Pawan Kumar joined the investigation of the present case and reached at Narela Bus Terminal, where he found the above said bus and accused was sitting in the said bus. Thereafter, he interrogated the accused and he produced his driving licence. Same was seized by him vide seizure memo Ex. PW4/B and he arrested the accused and conducted his personal search vide personal search memo Ex. PW4/A. Thereafter, he seized the bus. Thereafter, they brought the accused and case property to PS and deposited the case property in malkhana. Thereafter, on producing surety, accused was released on bail. Thereafter, he recorded the statement of witnesses. He further deposed that on the next day, he moved the application regarding the inspection of the above said bus, same application is Ex. PW6/E. He further deposed that later on, the above said bus was released on superdari vide superdginama Ex. PW6/D. Page No.7 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar He had brought the register no. 19 bearing entry no. 1473/98 wherein it was mentioned that bus no. DL 1P 7342 was deposited in Malkhana by him on 03.10.98 and next day, on 04.10.98, after mechanical inspection, the aforesaid bus was released on superdari to its registered owner. Photocopy of register no. 19 bearing no. 1473/97 was Ex. PW 6/F (OSR). He further deposed that original postmortem report of deceased Laxmi Devi was lost and the said information was recorded in Roznamcha. He further deposed that the said DD register/ roznamcha was also lost. Photocopy of postmortem report which was already on record was mark A. He further deposed that after completion of investigation, chargesheet was prepared and filed in the court through SHO.
During his cross-examination by Ld. Defence counsel, he deposed that he went to Hindu Rao Hospital on 01/10/98. He did not remember at what time rukka was prepared by him. He admitted that no offending vehicle was found at the spot. He further deposed that he had not inquired from any person at the spot who was driving the vehicle in rash and negligent manner. He denied the suggestion that accused person has been falsely implicated in the present case. He further denied the suggestion that all the documents were prepared while sitting at the PS and that he had never visited the spot. He further denied the suggestion that he had deposed falsely.
10. PW 7 is Dr. Dhananjay Kumar, CMO, Hindu Rao Hospital, MCD, Delhi. He deposed that he had been deputed by MS to Page No.8 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar depose on behalf of Dr. Keshav Sharma, Senior Resident, HRH Hospital. He deposed that Dr. Sharma has left his services at the hospital and his whereabouts were not known. He further deposed that he could can identify his handwriting and signatures as he had seen him signing and writing during the course of his duty. He further deposed that the postmortem examination no HRH/306/98 of patient Smt. Laxmi Devi, w/o. Sh. Ranjeet Singh was conducted by Dr. Keshav Sharma Ex. PW7/A. and as per the postmortem report, the cause of death of the deceased was due to hemorrhage and shock consequent to multiple injuries described at point A in Ex.PW7/A and were caused by blunt force impact against hard surface/ object. All the injuries were ante mortem and recent and time since death was approximately 25-26 hours of recording of this postmortem. During his cross-examination by Ld. Defence counsel, he admitted that he was not a handwriting expert. He denied the suggestion that the handwriting can be of some other person also. He further deposed that he could not tell the exact time of the accident occurred or death of the deceased since, he did not conduct the postmortem.
11. It is a matter of record that after examination of all the material witnesses, the prosecution evidence was closed on 13.11.2013 and the statement of the accused u/s 313 Cr. P.C. was recorded on 17.12.2013 wherein accused stated that he is innocent and has been falsely implicated in the present case. He further stated that he was driving his bus at a very slow speed Page No.9 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar and infact the deceased was hit by a truck which was coming from the other direction at the same time and the alleged accident did not occur because of his rash and negligent driving. However, he opted not to lead any defence evidence and thus the matter was listed for final arguments.
12. I have heard the arguments advanced by Ld. APP for the state as well as the Ld. Defence counsel and given my thoughtful consideration to the entire record.
13. In the present matter, the accused has been charged for the offences punishable under Section 279/304A IPC. To prove a case U/s. 279/304A IPC against the accused, the prosecution has to prove the following facts:-
a) that the accused was driving the vehicle i.e bus bearing registration no. DL-1P-7342;
b) that the accused was driving the said vehicle in rash and negligent manner and;
C) that while driving the said vehicle in the aforesaid manner, he stuck against pedestrian Laxmi Devi W/o Randhir Singh and caused her death (not amounting to culpable homicide).
14. To convict the accused testimony of PW3 Rajesh Kumar who is the only eye witness examined by the prosecution is most crucial. PW3 stated that his mother was hit by the bus bearing aforementioned registration number when she signalled the accused to stop the said bus. However, his testimony is not at all descriptive and it does not mention anything specific such as to in what manner the offending vehicle can be called as being Page No.10 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar driven in rash and negligent manner? Neither it has come on record as to whether the bus was being driven at a high speed or was on a wrong side nor there is any evidence on record to suggest as to what was th width of the road or whether there was any violation of traffic signal by the driver of the said bus. In fact, perusal of the police statement made by this witness which is Mark 'A' mentions that the deceased had gone to drink water on the other side of the road and while coming back to Holambi Kalan bus stand, she was hit by the said bus during crossing of the road, whereas no such statement was made by PW3 during his evidence and he never mentioned that the deceased was hit when she was trying to cross the road. It may further be appreciated that the police statement was recorded of this witness on 02.10.98 i.e. the next day to the day of alleged accident, however it never came on record clearly as to why the statement of eye witness PW3 was not recorded on the same day of the alleged incident and PW6 who was the IO straightaway deposed that on 02.10.98 he met PW3 Rajesh Kumar who stated himself to be the eye witness of the present case and I wonder why didn't PW3 meet the police officials either in the hospital or in the PS or on the spot of occurrence on the date of alleged accident? Infact the MLC of the deceased also did not mention that she was brought by her son i.e. PW3 Rajesh Kumar and therefore, the presence of PW3 during the time of alleged accident on the spot of occurrence is highly doubtful. The version of PW3 Rajesh is that he alongwith his father and Page No.11 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar brother went to the police station and then to the Hindu Rao Hospital on 01.10.98, however PW4 HC Pawan and PW6 Retd. SI Munshi Ram stated that no eye witness met them either at the hospital or at the spot of occurrence on 01.10.98. It is further significant that PW3 during his cross examination by Ld. defence counsel and later on by Ld. APP for the state also stated that he did not see the driver of the offending vehicle on the date of alleged accident and therefore, he could not say as to whether the accused was driving the offending vehicle at the time of accident. Overall, in view of the abovementioned discrepancies, the presence of PW3 Rajesh Kumar son of the deceased at the spot of occurrence during the time of alleged accident become highly doubtful and moreover merely saying that the offending vehicle was being driven at a fast speed will not suffice to sustain the conviction of the accused. The abovesaid discussion shows that there have been glaring inconsistencies and loopholes in the case of prosecution.
15. In cases of road accident, wherein allegations of rash and negligent driving have been levelled against the accused, there is heavy burden upon the prosecution to establish clearly the factors showing the rash and negligent driving of the accused but as already discussed above, the testimony of PW3 Rajesh Kumar does not mention any detail such as width of the road, where the alleged accident occurred, presence of any traffic signal or any divider to show that it was a one way or a two way road or the actual speed of the offending vehicle at which it was Page No.12 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar being driven at the time of alleged accident and other relevant aspects. In this regard I would like to place reliance upon Abdul Subhan Vs State [133 (2006) DLT 562, Delhi High Court ] where in it was observed that merely coming to a conclusion that a vehicle was being driven at a high speed does not in itself mean the accused was driving a vehicle rashly or negligently. It laid emphasis upon many questions such as were the traffic light working or not? What is meant by high speed? Why there is no evidence with regard to tyre skid marks? What was the speed of the motorcyclist? It was held that in a criminal trial, 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 favor 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 exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "
"negligence" could be drawn by invoking the maxim "res ipsa loquitor".
16. Now, I would like to refer to judgment Devender Vs. State 185(2011)DLT655, passed by High Court of Delhi, wherein, it is held that: 7.It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of vehicle may create a presumption and in such a case the driver Page No.13 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.
8.The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer
9. 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 consequence. 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.
17. Further, I would also like to emphasize on the judgment Ram Avtar Vs. State of Rajasthan, II (2006) ACC 438, passed by Rajasthan High Court wherein it is held that:
Thus, the essential ingredients for offence under section 279 IPC Page No.14 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to the individual in particular, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279 IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279 IPC. For, speed of the vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?
8.In the case of Badri Prasad Tiwari Vs. The State I (1994) ACC 476: 1994 Cri. LJ 389 (Qri.), the Hon'ble Orissa High Court has held that "In order to constitute an offence under Section 279 IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other Page No.15 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar person.
9.Thus, in the present case the prosecution has failed to prove the rash and negligent manner as required by Section 279 IPC beyond a shadow of doubt.
18. Hence after perusing the entire record, in the absence of any incriminating evidence/testimony on record of any public/eye witness against the accused and considering that all other witnesses are formal in nature, whose no amount of evidence can tantamount to conviction of the accused, the prosecution has miserably failed to prove the present case beyond any reasonable doubt against the accused.
19. Hence, in view of the discussion made above and after scanning the entire evidence, I have no hesitation to hold that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Accordingly, accused Sharwan Kumar is hereby acquitted of the said offences U/s. 279/304A IPC.
20. File be consigned to Record Room after necessary compliance.
(SANDEEP GUPTA) Metropolitan Magistrate Rohini/Delhi Announced in open court today, Dated 13th January, 2015 Page No.16 of 16 FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar FIR No.418/98 PS Narela U/s. 279/304A IPC Sate Vs. Sharwan Kumar 13.01.2015 Present : Ld. APP for the State.
Accused Sharwan Kumar on bail alongwith Ld. Counsel. I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, accused Sharwan Kumar is acquitted of the said offence U/s 279/304A IPC.
Accused is directed to furnish fresh bail bond for a sum of Rs.20,000/- with one surety of like amount. The same stands furnished and accepted.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi Page No.17 of 16