Delhi District Court
State vs Ram Tirath on 6 December, 2023
THE COURT OF SHRI RUPINDER SINGH DHIMAN
METROPOLITAN MAGISTRATE-01, NORTH EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
1.FIR No. 115/2001, PS Bhajanpura
2.Unique Case no. 461107/2015
3.Title State Vs. Ram Tirath
3(A).Name of complainant Mukesh Kumar
S/o Sh. Banwari Lal
R/o H. No. 436-C, Gali no. 10 Brajpuri,
Delhi
3(B).Name of accused Ram Tirath
S/o Sh. Binda
R/o Village Maindeni Lal ka Purva PS
Harchandpur District Rai Bareilly, UP
At present: Kapoor Timber Supply
Malvia Nagar, New Delhi
4.Date of institution of chargesheet 28.05.2002
5.Date of Reserving judgment 23.11.2023
6.Date of pronouncement 06.12.2023
7.Date of commission of offence 07.04.2001
8.Offence complained of U/s 279/337/304A IPC
9.Offence charged with U/s 279/337/304A IPC
10.Plea of the accused Pleaded not guilty.
11.Final order Convicted U/s 279/337/304A IPC
12. Date of receiving of judicial file 28.05.2002
in this court
Argued by :-1. Sh. Amit, Ld. APP for the State.
2. Sh. R. P. Singh counsel for accused.
JUDGMENT
1. The present prosecution case was put into action with the complaint of the complainant, namely, Mukesh Kumar. He alleged that on 07.04.2001, he was going from Seelampur to Bhajanpura in his TSR bearing no. DL 1RD 5498 alongwith three passengers. He has further averred that some MCD work was State Vs. Ram Tirath Page 1 of 32 FIR No. : 115/2001 going on before the C-4 Yamuna Vihar Bus Stop and hence vehicles of both sides of the road were going from one road only. At around 10.20 p.m., when he reached near C 4 Yamuna Vihar bus stop, one TATA 407 bearing no. DL 1LB 2630 came at a very high speed in a rash and negligent manner and hit the TSR from the front. Subsequently, the said TATA tempo climbed the divider in between the road. Thereafter, the driver of the TATA tempo came out of said tempo and on seeing the injured ran away from the spot. He alongwith one of the passengers suffered injury. Thereafter, during investigation, notice under Section 133 MV Act was issued to registered owner and accused Ram Tirath was identified as the driver of the said TATA Tempo bearing no. DL 1LB 2630. Further one of the passengers, a lady was declared brought dead by the hospital. On the completion of investigation, chargesheet was filed qua him under Section 279/337/304A IPC.
2. On 28.05.2002, cognizance was taken and accused was summoned for offences punishable under Section 279/337/304A IPC. On 27.08.2002, he was supplied the copy of the chargesheet. On 14.10.2004, charge was framed against the accused for the offences punishable u/s 279/337/304A IPC to which he pleaded not guilty and claimed trial. Hence, the matter was notified for prosecution evidence.
3. Prosecution had named 22 witnesses in the chargesheet. However, State failed to secure the presence of Nisar Ahmed (passenger/victim) and Irshad. Hence, they were dropped vide order dt. 20.12.2012. Further, PW Suresh Kumar (passenger/victim) also remained untraceable and he was dropped vide order dt. 14.08.2013. Mechanical Inspector, retired SI Chatter Sain expired pending the trial and hence, he was dropped vide order dated 09.05.2017. Further, on 11.08.2009, accused gave statement before the Court that he shall not dispute the identity of offending vehicle i.e. DL 1LB 2630, TATA 407 during the trial and therefore, the superdarinama was cancelled. Accused also gave statement under Section 294 Cr.PC on State Vs. Ram Tirath Page 2 of 32 FIR No. : 115/2001 21.11.2014 that he is not disputing the result regarding nature of injuries on the MLC of injured Mukesh bearing No. C- 1144/01, MLC No. C-1143/01 of injured Nisar Ahmed, MLC No.1456/01 of unknown, MLC bearing No.B- 1243/01 of injured Suresh Chand and postmortem report No.300/01 of deceased unknown as well as nature of injuries with regard to the all the injured persons given on the MLCs. He also did not dispute the judicial TIP dated 09.04.2001. Accordingly, Dr. Manoj Kumar Hirani, Dr. J.V. Kiran, Dr. Nanu Singh, Dr. Mukesh, Dr. Hari Singh, Dr. Manoj Kumar and Ld. M.M. Shri Vinod Kumar Nagpal were dropped from the list of witnesses. Further, PW Naresh, Sub Registrar Electric Crematorium also remained untraceable and hence he was dropped vide order dt. 05.09.2023. State also failed to secure the presence of DHG Ct. Amar Singh who had taken the rukka for registration of FIR. Ample opportunities were given. However, wrong witness was summoned. Hence, vide order dated 20.04.2023, he was also dropped. Hence, only 8 witnesses were examined by the prosecution.
4. Mukesh Kumar was examined PW 1. He deposed that on 7.4.2001 at about 10/10:30 pm, he was going to Bhajan Pura from Seelampur in his TSR No. DL-1RD-5498 along with three passengers. He further stated that when he reached at C-4 Yamuna Vihar, Main Road. 66 foota Road, there was single road since MCD work was carrying on the road and he was going slowly. He stated that from the front one tempo Tata 407 No. DL 1LB 2630 came at a very high speed. He stated that since he was on his side and it was not possible for him to take the TSR in the left side more, the TATA tempo hit the TSR. He further deposed that after accident, Tata 407 climbed on the patri and all the passengers who were traveling in his TSR sustained injuries. He correctly identified the accused present in the Court as the driver of Tata 407 who caused accident. He stated that the accident occurred due to the fault of accused. He stated that thereafter he took all the three passengers to GTB hospital in another TSR. He further deposed that one lady who sustained injuries was declared by the doctor as brought dead. He stated that police then State Vs. Ram Tirath Page 3 of 32 FIR No. : 115/2001 met him at GTB hospital and his statement was recorded by the police which is Ex. PW 1/A. He stated that later on he got released his TSR on superdari vide superdarinama Ex. PW 1/B. In his cross examination, he admitted that he had not shown the place of accident to Police. He admitted that he had seen the accused in PS after the accident after about two days. He stated that the work was being done on the road from which he was plying. He also stated that he had covered 50/60 yards distance on the road on which both side traffic was plying. He stated that the traffic of his side was going slowly. He stated that cycles and cycle rickshaws were plying ahead of him. He stated that he had seen the Tata 407 at distance. He admitted that no rickshaw puller / cyclist sustained injuries. He also conceded that if one side of road is closed, the traffic on the other side also runs at a slow speed. He admitted that he cannot tell the speed of Tata 407. He stated that vehicles might have been following TATA 407. He stated that he cannot tell whether public persons were gathered at the spot or not. He stated that he took the injured to GTB Hospital about 10 to 15 minutes after the accident. He admitted that he had not seen the driver on the day of accident. He also conceded that he had not stated to the police that accused came after the accident near the TSR and he ran away after seeing the passengers who sustained injuries. He admitted that he had not stated to the IO regarding the spot. He denied that the accident had occurred due to his negligence as his auto rickshaw suddenly came in front of said tempo. He further denied that he had parked his auto at the place from where it was not possible for accused to save the accident. He further denied that this accident had occurred due to his negligence. He further denied that he is deposing falsely. He was re-examined by the Ld. APP for the State wherein he stated that he had seen the driver at PS is correct. He denied the suggestion that he is deposing falsely in this regard.
5. ASI Ram Singh is the Duty Officer and was examined as PW 2. He has deposed that on 07.04.2001, he was working as DO from 12.00 p.m. midnight to 08.00 a.m. the next day. He stated that he received rukka sent by HC State Vs. Ram Tirath Page 4 of 32 FIR No. : 115/2001 Surender through DHG Ct. Amar Singh and he made endorsement Ex.PW2/A on the same and registered the case FIR No. 115/01, the Carbon copy of which is Ex.PW2/B. He also brought the original of the FIR (OSR). He stated that after registration of FIR, he handed over the copy of FIR as well as original rukka to DHG Ct. Amar Singh for handing over the same to HC Surender for investigation. He was not cross examined despite opportunity being given.
6. Sh. Dilbag Singh was examined as PW 3. He is the registered owner of offending vehicle i.e. (TATA-407) bearing no. DL- 1LB-2630. He deposed that one day, he had received a call from PS Bhajanpura that his vehicle had met with an accident. He stated that on the said day, accused Ram Tirath present in the Court was driving the aforementioned vehicle. He stated that on the same day i.e date of accident, he went to the spot of accident where he found his aforementioned vehicle lying stationed there. He stated that on the next day, he went to P.S Bhajanpura and police officials asked him to produce the driver. He then called his driver i.e accused Ram Tirath to the P.S Bhajanpura who was arrested vide arrest memo Ex. PW3/A and personally searched vide memo Ex. PW3/B respectively. He stated that thereafter, he got released his aforementioned vehicle on superdari vide superdaginama Ex. PW3/C. He further deposed that he was served with notice under Section 133 M.V. Act which was received and replied by him. The receiving of aforementioned notice is Ex.PW3/D and his reply with regard to the said notice is Ex. PW3/E. He stated that the accused was released on bail. He further stated that he had sold the aforementioned vehicle after getting the permission from the Court. He correctly identified the six photographs of the said vehicle which were already placed on record and were then marked as Ex. P1 to P6. He was cross examined by the Ld. APP for the State wherein he admitted that the incident took place on 07.04.2001 in between 10.00 pm to 11.00 pm. He however, denied the suggestion that on 07.04.2001, accused came to him and disclosed that he had met with an accident. He further State Vs. Ram Tirath Page 5 of 32 FIR No. : 115/2001 denied the suggestion that in the Police Station, HC Ram Bahadur identified the driver namely Ram Tirath as the person who was driving the aforementioned vehicle at the time of accident. He was confronted with his previous statement which is mark X. He denied that he is deposing falsely as he has been won over by the accused. In his cross examination by the accused, he stated that he cannot read and write English Language. He stated that he had reached the spot at about 10.30 p.m. and he remained there for 30 minutes. But no police official was present. He further stated that on the next day, he went to the PS at about 11.00 a.m. and remained there till 02/02.30 p.m. and no public person came during the said time. He stated that he had signed on blank paper. He stated that no statement of him was recorded by the police nor the contents of the documents were explained to him.
7. ASI Dev Pal was examined as PW 4. He is the Duty Officer of 07.04.2001 and deposed that on 07.04.2001, at about 10.32 pm, he received a call regarding accident. He registered the DD entry no. 19A upon that call and the attested copy of the same (nakal rapat ) which was already on judicial file is Ex. PW4/A. He also produced the copy of office order bearing no. 948-49 dated 26.02.2013 through which record pertaining to DD No. 19A dated 07.04.2001 had been destroyed by the order of Addl. Commissioner of Police, North-East. The copy of the said order is Mark X. In his cross examination, he admitted that there is overwriting on the attested copy of aforesaid Nakal Rapat. He denied the suggestion that the overwriting on Ex PW4/A was done in his presence.
8. SI Ram Bahadur Singh was examined PW 5. He deposed that in the intervening night of 07th & 8th April 2001, he was on picket duty at B-4, Yamuna Vihar, 66 foota road, Delhi. He stated that at about 10.20 pm, the road which was going towards Seelampur was closed by the MCD and the road which was coming from the side Seelampur was opened due to the same. He stated that therefore the vehicles were coming and going on the State Vs. Ram Tirath Page 6 of 32 FIR No. : 115/2001 same road. He deposed that a TSR bearing no. DL-1RD-5498 came from the side of Seelampur. One LGV (tempo) bearing no. DL-1LB-2630 came from the side of Gokalpuri at the same time. He deposed that the tempo came in a high speed and hit the aforesaid TSR head on and as a result of said impact, the TSR turned toppled and the tempo climbed over the divider. He stated that altogether four persons were present in the TSR including one driver and one lady. He stated that the driver of the offending tempo came outside the tempo after incident and after seeing the injured persons in serious condition, fled away from the spot. He correctly identified the accused present in the Court as driver of offending tempo. He stated that he informed about the incident through wireless at the P.S Bhajnapura. He further stated that one person Irshad came there and took the injured lady to the hospital by another TSR. He stated that in the meantime, HC Surender and Ct. Amar Singh reached there and he apprised them regarding the accident. He further deposed that on 08.04.2001, while he was present in the PS Bhajanpura, accused Ram Tirath, (correctly identified by the witness) along with owner came to the P.S. He identified him and told that he was the person who was driving the offending vehicle in rash and negligent manner at the time of accident. He stated that accused Ram Tirath was arrested and personally searched vide memos Ex. PW3/A & PW3/B respectively. He correctly identified the offending vehicle from photographs already Ex.P1 to P6. In his cross examination, he deposed that his duty hours were from 8 p.m. to 8 a.m. He stated that the spot of incident is about distance of 15 to 20 steps from his picket. He stated that at the time of accident, he was present at his picket and saw the accident. He admitted that picket is on the side of Yamuna Vihar. He stated that the height of divider between both the roads was one foot at that time. He further admitted that at that time the head lights of all the vehicles who were passing through the area were ON. He stated that he saw the vehicle after hitting the TSR, he stated that there was no other vehicle between offending vehicle and TSR and there was no public person on the road. He however stated that one State Vs. Ram Tirath Page 7 of 32 FIR No. : 115/2001 Irshad came there after 15 minutes, who took the injured to hospital. He stated that there was no one else with him on his picket. He stated that after hitting the TSR, the said offending TATA 407 hit the divider. He stated that TSR was at some distance in upside down condition on the side. He stated that it took around five minutes in taking the injured from inside the TSR with Irshad. He stated that he did see the accused when he came outside from the driver seat. He however, conceded that he did not see the accused while driving the said TATA 407. He stated that he left the spot within one minute and therefore, he could not apprehend the accused as he was busy in taking care of injured. He stated that he informed on wireless within two minutes and thereafter, HC Surender along with Ct. Amar Singh reached there after around 20-25 minutes. He stated that he remained at the spot of accident as there was no difference as such between picket and spot. He stated that traffic remain normal as offending vehicle was on divider and TSR was on one side. He stated that accused never talked to him on the spot. He stated that he saw accused when he came outside the TATA 407. He further stated that HC Surender went to hospital after instructing him to remain on the spot. He further stated that SI Manoj Bhatia recorded his statement on that night itself however, due to recording of same after mid night, the date was of next day. He stated that the said TSR or photographs of the same were not shown to him after that day anywhere or even in the court. He further stated that the said TSR was taken by SI Manoj Bhatia from the spot at around 5 to 6 a.m. through one crane whose number he could not recall. He further denied that he was not present at the spot or that he had not seen the accused / driver on the spot.
9. ASI Surender Kumar was examined as PW 6. He deposed that on 07.04.2001 he was posted at PS Bhajanpura as Head Constable and on that day, he was on emergency duty from 8pm to 8am next morning. He further deposed that at about 10.30pm, he received information vide DD No.19A from duty officer regarding an accident at Road No.66, near C-4 Bus Stand, State Vs. Ram Tirath Page 8 of 32 FIR No. : 115/2001 Yamuna Vihar. He therefore, along with Constable Amar Singh reached the spot, where road on one side was blocked due to MCD construction and the road leading from Gokalpuri to Seelampur was opened. He stated that at the spot, one Tata 407 bearing No. DL 1LB 2630 and one TSR bearing No. DL 1RD 5498 were found in accidental state. He stated that the Tata-407 was on the divider of the road. He further stated that the injured in the said accident were not found at the spot as they had already been taken to GTB hospital. He stated that he along with Constable Amar Singh left the spot for GTB Hospital and HC Ram Bahadur was instructed to remain at the spot. He further stated that when they reached the hospital, he obtained MLC of injured persons, where one of the injured (lady) was mentioned as brought dead and MLCs of other injured, namely, Suresh Kumar, Nishar Ahmed and driver of the TSR Mukesh Kumar were declared as under observations and fit for statements. He stated that he then recorded rukka already Ex.PW1/A on the statement of driver of TSR, namely, Mukesh Kumar. Thereafter, he sent the rukka to PS through Constable Amar Singh. He further stated that on the basis of said rukka, FIR was lodged which is already Ex.PW2/A. He further stated that Duty Constable Mukesh at GTB Hospital handed over the wearing apparels of the deceased injured to me and he then seized wearing apparels of the deceased vide seizure memo Ex.PW6/A. He further stated that SI Manoj Bhatia came at the spot and he handed over investigation to him along with case property. He stated that IO Manoj Bhatia recorded his statement and seized the TSR and Tata 407 vide seizure memos Ex.PW6/B and Ex.PW6/C respectively (production of case property i.e. offending vehicle TATA 407 and TSR was dispensed as counsel for accused did not dispute the identity of both the vehicles). In his cross examination, he stated that he reached the spot at about 10.45pm. and the distance between the PS and place of incident is about one kilometer. He further stated that the distance between the police picket and place of incident is about 200 steps. He however, did not remember if HC Ram Bahadur was at the place of incident or at the police State Vs. Ram Tirath Page 9 of 32 FIR No. : 115/2001 picket when he reached the spot. He admitted the police picket is situated at Yamuna Vihar side on road. He admitted that Yamuna Vihar side road goes from Seelampur to Gokalpuri. He further admitted that road which is situated on the nala side comes from Gokalpuri to Seelampur. He stated that the construction of the MCD was on the side of Yamuna Vihar from Seelampur to Gokalpuri. He further admitted that the road was running towards Gokalpuri to Seelampur and both sides traffic was running on the same road. He however stated that he cannot tell the distance between the place of incident and GTB Hospital though it took about twenty minutes to reached GTB Hospital from place of incident. He further stated that he received the MLC of injured persons within ten minutes after reaching the hospital and it took further ten or fifteen minutes to record statement of TSR driver Mukesh Kumar. He stated that he then sent the Constable Amar Singh from GTB Hospital to get the FIR registered. He stated that he then again went back to the spot at about 12.45 am. and left the spot at about 01.00 a.m.. He conceded that TSR driver had not told him that he had taken the injured persons to the hospital in another TSR. He stated that TSR driver had told him that Nishar Ahmed had taken injured to the hospital. He denied the suggestion that TSR driver did not inform him that the driver of the offending vehicle had visited the spot or that after seeing the accident, driver of offending vehicle ran away from the spot. He stated that vehicles were not removed in his presence. He further stated that he does not know when statement of Nishar Ahmed and Irshad were recorded by the IO. He denied that he is deposing falsely at the instance of IO or that he had not visited the spot at any point of time.
10. SI Manoj Bhatia was examined as PW 7. He deposed that on 08.04.2001, he was posted at PS Bhajanpura as SI and investigation of the present case was marked to him. He stated that he thereafter, reached at GTB hospital alongwith Ct. Amar Singh (DHG) where one of the witnesses Nisar met them. He further stated that he alongwith Nisar and Ct. Amar Singh then reached at the spot i.e. 66 foota Raod, Yamuna Vihar, Delhi where two State Vs. Ram Tirath Page 10 of 32 FIR No. : 115/2001 vehicle were standing in accidental condition. He stated that one of them was TATA 407 bearing no. DL 1LB 2630 and second was TSR bearing no. DL 1RD 5498. He further stated that HC Surender and HC Ram Bahardur were already present at the spot. Thereafter, he prepared the site plan vide site plan Ex.PW7/A and HC Surender handed over to him documents i.e. MLC, seizure memo and some case property. Thereafter, he took possession of said documents vide seizure memo Ex. PW7/C and seized the abovesaid vehicles vide seizure memos Ex. PW6/B and Ex. PW6/C. Thereafter, case property was deposited in Mal khana. He further stated that one unknown lady was declared by doctor brought dead at the hospital and he got the dead body preserved in mortuary at GTB hospital. He deposed that despite efforts, identity of the dead body could not be established. Thereafter. he recorded the statement of witnesses. He further stated that the owner of TATA-407 namely Dilbagh came at PS. Thereafter, he served notice u/s 133 MV Act to him at PS vide notice already Ex.PW3/D and owner of vehicle also replied that at the time of incident, the offending vehicle TATA-407 was driven by his driver namely Ram Tirath. He stated that the owner also produced his driver Ram Tirath before him. He deposted that he interrogated the acused and arrested him, vide arrest memo already Ex. PW3/A and formally searched vide personal search memo already Ex.PW3/B. He further stated that as accused did not produce sound surety, he was kept at PS in muffled face since TIP of the accused was pending. He further deposed that on 09.04.2001, accused was produced before the court and TIP proceedings were to be done. However, accused refused to join TIP proceedings. Further, accused was released on bail by the concerned Court and in the evening, when accused came to PS, he was identified by the complainant Mukesh. (witness also correctly identified the accused present in the Court as the driver of the offending vehile). He correctly identified the offending vehicle TATA-407 through photographs already Ex.P1 to Ex.P6. He further stated that on 12.04.2001, the post mortem of deceased unknown lady was conducted at State Vs. Ram Tirath Page 11 of 32 FIR No. : 115/2001 GTB hospital and he took possession of clothes of that unknown lady vide seizure memo Ex.PW7/D. He further stated that mechanical inspection of both the vehicles were conducted. He also stated that on 13.04.2001, the relative of deceased lady came at PS and they identified the lady after seeing the clothes and photographs of the said deceased lady and thereafter, he recorded the statement of family members of deceased lady. He deposed that after completion of investigation, chargesheet was submitted before the court. In his cross examination, he stated that he left the PS at about 1:30 AM and within 15-20 minutes, he reached at GTB Hospital. He stated that he remained there for about 20 minutes and then went to the spot at about 2:30 AM. He stated that he left the spot at about 4:00 AM. He stated that when he left the spot, HC Surender Kumar was present at the spot. He stated that initially when he visited GTB hospital only injured Nisar Ahmed met him and HC Surender Kumar met him at the spot only. He further stated that when he visited the spot alongwith Nisar Ahmed, another injured Mukesh Kumar had met him there however, no public person was present. He stated that no MCD worker/labour was working when he visited the spot at the said time on the other side of the road. He stated that he recorded the statement of HC Surender Kumar, Mukesh Kumar, Nisar Ahmed and his brother Israr Ahmed as well as HC Ram Bahadur at the spot. He stated that he then visited GTB Hospital at about 7-8:00 AM for the inspection of the deceased after deposition of the case property at malkhana PS Bhajanpura. He stated that the case property i.e. the offending vehicle and the TSR were removed from the spot after taking the same into police custody at about 4:30 AM through crane. He further stated that the owner of the said offending vehicle came to PS at his own at about 3:00 PM on 08.04.2001 and left at about 5:00 PM. He also stated that the owner of the said vehicle had produced the driver accused Ram Tirath of the offending vehicle at PS. He denied the suggestion that owner of the offending vehicle had called the accused Ram Tirath at PS at his instance. He further denied that he had obtained the signature of the owner of State Vs. Ram Tirath Page 12 of 32 FIR No. : 115/2001 the said offending vehicle on blank paper twice or that he himself prepared the reply of the notice under Section 133 MV Act. He also denied the suggestion that he had not kept the accused Ram Tirath in muffled face in PS or that he had shown the face of accused Ram Tirath to HC Ram Bahadur and Mukesh Kumar before producing him before the court. He further denied the suggestion that accused Ram Tirath had refused to participate in his TIP as his face was already shown to the persons who were supposed to identify him. He further denied that on 09.04.2001, accused Ram Tirath neither himself nor alongwith the owner of offending vehicle visited the PS. He stated that he had prepared the site plan at the instance of Nisar Ahmed and admitted that while he was preparing the site plan, Mukesh Kumar did not meet him. He however stated that Mukesh met him after sometime of the preparartion of site plan. He stated that he recorded the statement of Mukesh Kumar prior to leaving for the spot and his supplementary statement was recorded at PS on 09.04.2001. He denied the suggestion that investigation was done in mechanical manner or that accused has been falsely implicated in present matter.
11. HC Mukesh Panwar was examined as PW 8. He deposed that on 07/08.04.2001, he was posted at PS Dilshad Garden as Constable. He stated that on the said day, he was working as Duty Constable at GTB Hospital and one injured lady (unknown) had been hospitalized by Irshad. He stated that the said injured lady was declared brought dead by the doctor at the hospital. He further stated that beside her 2-3 injured persons namely, Mukesh, Suresh, Nisar Ahmed were also brought to hospital and their MLC was prepared by the doctor. He further stated that the Doctor had taken out the worn articles of the said injured (deceased) lady which included one pair of earrings, one pair of anklets, one silver chain with locket, one nose pin and one key. He also stated that beside this, Rs. 48/- were also taken by the doctors and handed over to HC Surender in his presence which were taken into police custody vide seizure memo already Ex. PW6/A. He correctly identified the State Vs. Ram Tirath Page 13 of 32 FIR No. : 115/2001 photographs of the deceased which are mark X. In his cross examination, he deposed that his duty hours were from 8:00 AM to 8:00 PM (07.04.2001 to 08.04.2001). He conceded that he had not admitted the said lady in the hospital. He however stated that he had seen the injured persons in the hospital. He conceded that statement of other witnesses was not recorded in his presence. He stated that SI Mukesh Kumar had recorded his statement. He further stated that he does not remember the arrival and departure time of SI Mukesh in the hospital as he got busy in attending other injured persons.
12. Thereafter, Sh. Amar Singh S/o Devi Prasad was partly examined in chief as PW 9. He however, stated that he had retired from Delhi Police in 1994 and never worked with Delhi Home Guard and therefore had never joined investigation of the present case. Ample opportunities had been given to the State to secure the presence of the correct Amar Singh. He had appeared previously before the Court on 29.01.2018, 14.05.2018, 05.01.2019. 09.07.2019, 23.08.2019, 24.09.2019, 20.08.2022 and 28.02.2023 and made similar submissions. Hence, vide order dated 20.04.2023, PW Amar was dropped and his part testimony discarded since the state failed to secure the presence of correct Amar Singh.
13. Thereafter statement of accused was recorded under Section 313 Cr. PC r/w Section 281 Cr. PC on 11.10.2023 as all the prosecution witnesses had been examined. Accused stated that he has been falsely implicated in the present matter. He further stated that the driver of the TSR Mukesh Kumar had suddenly took U turn and due to said negligence on the part of TSR Driver, present accident occurred. However, no defence evidence was led on part of accused.
14. Hence, matter was fixed for final arguments. I have heard submissions of both the parties and perused the material on record. While Ld. APP for the State has argued that the State has discharged its burden and proved that accused is responsible for the death of lady and causing of simple injury to State Vs. Ram Tirath Page 14 of 32 FIR No. : 115/2001 Mukesh Kumar and Nisar Ahmad by rash and negligent act, per contra, counsel for accused has submitted that there are various discrepancies in the case of the prosecution and State has failed to show that accused is the direct cause of the injury on the victims. It is further argued that the accident occurred due to the negligence of the TSR driver.
15. Before proceedings further and considering the contentions of both the parties, I wish to refer to the relevant provisions of law:
Section 279 IPC: 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 a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 337: Causing hurt by act endangering life or personal safety of others:
Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
Section 338: Causing grievous hurt by act endangering life or personal safety of others:
Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
16. From the abovesaid provisions, it is clear that one must first understand meaning of the rashness and negligence. Distinction between Rashness and negligence was explained by a three-judge bench in the celebrated case of Bhalachandra Waman Pathe v. State of Maharashtra, 1968 Mah LJ 423 wherein it was observed:
"There is a distinction between a rash act and a negligent act. In the case State Vs. Ram Tirath Page 15 of 32 FIR No. : 115/2001 of a rash act the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequence. 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 an individual in particular, which 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. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. A culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. In the instant case the appellant was driving his car at a speed of 35 miles an hour, the speed permissible under the rules. No other circumstance was pointed out to show that he was driving in a reckless manner. Therefore, he cannot be said to have been running the risk of doing an act with recklessness or indifference as to the consequences. But he was undoubtedly guilty of negligence. He had a duty to look ahead and see whether there was any pedestrian in the pedestrian crossing. It is likely that while driving the car he was engrossed in talking with the person who was sitting by his side. By doing so, he failed to exercise the caution incumbent upon him. His culpable negligence and failure to exercise that reasonable and proper care and caution required of him resulted in the occurrence. He was therefore guilty of offence under S. 304A."
17. Kuldeep Singh v. State of Himachal Pradesh 2008 Cri.L.J. 3932 is another important case, where the Hon'ble Apex Court dealt with Section 304A IPC. It was observed by the Supreme Court:
"...
State Vs. Ram Tirath Page 16 of 32 FIR No. : 115/2001
7. Section 304-A IPC applies to cases where there is no intention to cause death and no knowledge that the act done, in all probabilities, will cause death. This provision is directed at offences outside the range of Sections 299 and 300 IPC. Section 304-A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Negligence and rashness are essential elements under Section 304-A.
8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person willfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence, a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edition) Volume 34 paragraph 1 (para 3) as follows :
"Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence, where there is a duty to exercise care, reasonable care State Vs. Ram Tirath Page 17 of 32 FIR No. : 115/2001 must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger, the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two".
10. In this context the following passage from Kenny's Outlines of Criminal Law, 19th Edition (1966) at page 38 may be usefully noted :
"Yet a man may bring about an event without having adverted to it at all, he may not have foreseen that his actions would have this consequence and it will come to him as a surprise. The event may be harmless or harmful, if harmful, the question rises whether there is legal liability for it. In tort, (at common law) this is decided by considering whether or not a reasonable man in the same circumstances would have realised the prospect of harm and would have stopped or changed his course so as to avoid it. If a reasonable man would not, then there is no liability and the harm must lie where it falls. But if the reasonable man would have avoided the harm then there is liability and the perpetrator of the harm is said to be guilty of negligence. The word `negligence' denotes, and should be used only to denote, such blameworthy inadvertence, and the man who through his negligence has brought harm upon another is under a legal obligation to make reparation for it to the victim of the injury who may sue him in tort for damages. But it should now be recognized that at common law there is no criminal liability for harm thus caused by inadvertence. This has been laid down authoritatively for manslaughter again and again. There are only two states of mind which constitute mens rea and they are intention and recklessness. The difference between recklessness and negligence is the difference between advertence and inadvertence they are opposed and it is a logical fallacy to suggest that recklessness is a degree of negligence The State Vs. Ram Tirath Page 18 of 32 FIR No. : 115/2001 common habit of lawyers to qualify the word "negligence" with some moral epithet such as wicked' `gross' or `culpable' has been most unfortunate since it has inevitably led to great confusion of thought and of principle. It is equally misleading to speak of criminal negligence since this is merely to use an expression in order to explain itself."
11. "Negligence", says the Restatement of the law of Torts published by the American Law Institute (1934) Vol. I. Section 28 "is conduct which falls below the standard established for the protection of others against unreasonable risk of harm". It is stated in Law of Torts by Fleming at page 124 (Australian Publication 1957) that this standard of conduct is ordinarily measured by what the reasonable man of ordinary prudence would do under the circumstances. In Director of Public Prosecutions v. Camplin, (1978)2 All ER 168 it was observed by Lord Diplock that "the reasonable man" was comparatively late arrival in the laws of provocation. As the law of negligence emerged in the first half of the 19th century it became the anthropomorphic embodiment of the standard of care required by law. In order to objectify the law's abstractions like "care"
"reasonableness" or "foreseeability" the man of ordinary prudence was invented as a model of the standard of conduct to which all men are required to conform.
12. In Syed Akbar v. State of Karnataka, (1980)1 SCC 30, it was held that "where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. As pointed out by Lord Atkin in Andrews v. Director of Public Prosecutions, (1937)(2) All ER
552) simple lack of care such as will constitute civil liability, is not enough;
for liability under the criminal law a very high degree of negligence is required to be proved.
Probably, of all the epithets that can be applied 'reckless' most nearly covers the case. "
13. According to the dictionary meaning `reckless' means `careless', `regardless' or heedless of the possible harmful consequences of one's acts'. It presupposes that if thought was given to the matter by the doer before the act was done, it would have been apparent to him that there was a real risk of its having the relevant harmful consequences; but, granted this, recklessness covers a whole range of states of mind from failing to give any thought at all to whether or not there is any risk of those harmful consequences, to recognizing the existence of the risk and nevertheless State Vs. Ram Tirath Page 19 of 32 FIR No. : 115/2001 deciding to ignore it. In R. v. Briggs, (1977)1 All ER 475 it was observed that a man is reckless in the sense required when he carries out a deliberate act knowing that there is some risk of damage resulting from the act but nevertheless continues in the performance of that act.
14. In R. v. Caldwell, (1981)1 All ER 961, it was observed that :-
"Nevertheless, to decide whether someone has been `reckless', whether harmful consequences of a particular kind will result from his act, as distinguished from his actually intending such harmful consequences to follow, does call for some consideration of how the mind of the ordinary prudent individual would have reacted to a similar situation. If there were nothing in the circumstances that ought to have drawn the attention of an ordinary prudent individual to the possibility of that kind of harmful consequence, the accused would not be described as `reckless' in the natural meaning of that word for failing to address his mind to the possibility; nor, if the risk of the harmful consequences was so slight that the ordinary prudent individual on due consideration of the risk would not he deterred from treating it as negligible, could the accused be described as reckless in its ordinary sense, if, having considered the risk, he decided to ignore it. (In this connection the gravity of the possible harmful consequences would be an important factor. To endanger life must be one of the most grave). So, to this extent, even if one ascribes to `reckless' only the restricted meaning adopted by the Court of Appeal in Stephenson and Briggs, of foreseeing that a particular kind of harm might happen and yet going on to take the risk of it, it involves a test that would be described in part as `objective' in current legal jargon. Questions of criminal liability are seldom solved by simply asking whether the test is subjective or objective."
15. The decision of R. v. Caldwell (Supra) has been cited with approval in R v. Lawrence, (1981)1 All ER 974 and it was observed that :
"--- Recklessness on the part of the doer of an act does presuppose that there is something in the circumstances that would have drawn the attention of an ordinary prudent individual to the possibility that his act was capable of causing the kind of serious harmful consequences that the section which creates the offence was intended to prevent, and that the risk of those harmful consequences occurring was not so slight that an ordinary prudent individual would feel justified in treating them as negligible. It is only when this is so that the doer of the act is acting `recklessly' if, before doing the act, he either fails to give any thought to the possibility of there State Vs. Ram Tirath Page 20 of 32 FIR No. : 115/2001 being any such risk or, having recognized that there was such risk, he nevertheless goes on to do it".
16. The above position was highlighted in Naresh Giri v. State of M.P., 2007(4) RCR(Criminal) 1038 : 2007(6) RAJ 237 : [2008(1) SCC 791].
17. The evidence of PWs 1, 3 & 4 clearly show that the vehicle was being driven at a very high speed. Evidence on record show that more than 50 persons were there in the truck and the appellant was driving the same at a very high speed. One of the witnesses has stated that the truck was being driven as if it was an aeroplane. Therefore, the conviction as recorded cannot be faulted ...."
18. Similarly, in Prabhakaran v. State of Kerala 2007(3) R.C.R.(Criminal) 605 it was observed by the Hon'ble Supreme Court:
5. Section 304A speaks of causing death by negligence. This section applies to rash and negligence acts and does not apply to cases where death has been voluntarily caused. This section obviously does not apply to cases where there is an intention to cause death or knowledge that the act will in all probability cause death. It only applies to cases in which without any such intention or knowledge death is caused by what is described as a rash and negligent act. A negligent act is an act done without doing something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or act which a prudent or reasonable man would not do in the circumstances attending it.
A rash act is a negligent act done precipitately. Negligence is the genus, of which rashness is the species. It has sometimes been observed that in rashness the action is done precipitately that the mischievous or illegal consequences may fall, but with a hope that they will not. Lord Atkin in Andrews v. Director of Public Prosecutions, 1937 AC 576 observed as under:
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence; and a very high degree of negligence is required to be proved before the felony is established. Probably of all the epithets that can be applied `recklessness' most nearly covers the case. It is difficult to visualize a case of death caused by reckless driving in the connotation of that term in ordinary speech which would not justify a conviction for manslaughter; but it is probably not all embracing, State Vs. Ram Tirath Page 21 of 32 FIR No. : 115/2001 for `recklessness' suggests an indifference to risk whereas the accused may have appreciated the risk and intended to avoid it, and yet shown in the means adopted to avoid the risk such a high degree of negligence as would justify a conviction."
6. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
7. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, 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 an individual in particular, which, 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.
8. The distinction has been very aptly pointed out by Holloway, J. in these words:
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability State Vs. Ram Tirath Page 22 of 32 FIR No. : 115/2001 arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mschievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The immutability arises from the negligence of the civic duty of circumspection." (See in re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)
19. Considering the abovesaid provisions and the law as explained by the Superior Courts, I find that the following facts were in issue:
a) Whether accused Ram Tirath present in the Court was the driver of offending vehicle TATA 407 bearing number DL 1LB 2630 at the time of accident on 07.04.2001? OPP
b) Whether the accident occurred due to rash or negligent act on part of accused driver Ram Tirath? OPP
c) Whether the injuries suffered by Mukesh Kumar, Nisar Ahmad and the death of the lady in the TSR bearing no. DL 1RD 5498 was the direct result of the accident caused by rash or negligent act of ac-
cused driver Ram Tirath? OPP
20. It is pertinent to note that the accused has not disputed the identity of offending vehicle TATA 407 bearing no. DL 1LB 2630 and he gave statement before the court in this regard on 11.08.2009. Further, it is not in dispute that on 07.04.2001 at about 10/10.30 p.m. collision took place between TSR bearing no. DL 1RD 5498 and TATA 407 bearing no. DL 1LB 2630. PW 1/Mukesh has categorically deposed that while he was going on his TSR with three passengers, his TSR bearing no. DL 1RD 5498 was hit by a TATA 407 bearing no. DL 1LB 2630 coming at a high speed from the front. Further, PW 5 Ram Bahadur has also corroborated the said version. PW 6 has also stated that when he reached the spot after the receipt of DD no. 19A at about 10.30 p.m., both the aforementioned vehicles were found in accidental state at road no. 66 near C 4 Bus Stand Yamuna Vihar. None of the said witnesses was given any suggestion in the cross examination that no such accident took State Vs. Ram Tirath Page 23 of 32 FIR No. : 115/2001 place. Further no such argument was also advanced at the time of final arguments. Rather the defence taken is that the driver of the TSR/PW 1 suddenly took a U Turn and came in front of TATA 407 and due to the said negligence of TSR driver, the accident occurred. Thus, it is clear that the accused is not disputing that accident took place between TSR bearing no. DL 1RD 5498 and TATA 407 bearing no. DL 1LB 2630 on 07.04.2001 at about 10.30 p.m., at 66 foota road, near C-4 Yamuna Vihar Bus Stand. Hence, I proceed to consider the facts in issue.
Issue no. 1 Whether accused Ram Tirath present in the Court was the driver of offending vehicle TATA 407 bearing number DL 1LB 2630 at the time of accident on 07.04.2001? OPP
21. Perusal of testimony of PW 1/Mukesh Kumar shows that during his exami-
nation in chief, he identified the accused Ram Tirath present in the Court as the driver of the TATA 407 who caused the accident on 07.04.2001. He fur- ther categorically stated that the accident occurred due to the fault of Ram Tirath present in the Court. Though it is argued that he did not see the accused on the day of incident but on the next day in the police station. However, tes- timony of PW1 in this regard is also supported by testimony of PW 3 Dilbag Singh/registered owner of the TATA 407. He categorically deposed before the Court that on the date of accident, he received a call from PS Bhajanpura in- forming him that his vehicle had met with an accident. He further stated that on the date of accident, the accused Ram Tirath present in the Court was driv- ing the aforementioned TATA 407. He further stated that on the next day, when he went to the PS, he was asked to produce the driver and thereafter he produced the accused Ram Tirath, present in the Court, before the PS as the driver of the offending vehicle. He stated that he was served with notice un- der Section 133 M. V. Act which is Ex. PW3/D and in reply to the same, he State Vs. Ram Tirath Page 24 of 32 FIR No. : 115/2001 stated that the accused Ram Tirath was driving the offending vehicle TATA 407 bearing no. DL 1LB 2630 at the time of accident on 07.04.2001 between 10.00 p.m. to 11.00 p.m. Nothing inimical has been brought out in his cross examination as to why he would falsely implicate the accused Ram Tirath present in the Court. Further, not a single suggestion has been given to him that it was not accused Ram Tirath who was driving the offending vehicle at the time of accident but someone else. Section 105 of Indian evidence act provides that when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exception in the Indian Penal Code (XLV of 1860), or within any special ex- ception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the ab- sence of such circumstances. Thus, in view of the testimony of PW1 which is corroborated by testimony of PW3 burden was upon the accused to show that he was not the one driving the vehicle. Further he refused to join the TIP pro - ceedings as well. Hence adverse inference is drawn against him. Honble Apex court in Mukesh Singh Vs. State (NCT of Delhi) [Criminal Appeal No. 1554 of 2015] held that, "....An accused cannot resist subjecting himself to the TIP on the ground that he cannot be forced or coerced for the same. If the coercion is sought to be imposed in getting from accused evidence which cannot be procured save through positive volitional act on his part, the constitutional guaran- tee as enshrined under Article 20(3) of the Constitution will step in to pro- tect him. However, if that evidence can be procured without any positive volitional evidentiary act on the part of the accused, Article 20(3) of the Constitution will have no application. The accused while subjecting himself to the TIP does not produce any evidence or perform any evidentiary act. As explained very succinctly by the learned Judges of the Calcutta High Court as above, it may be a positive act and even a volitional act, but only to a limited extent, when the accused is brought to the place where the TIP is to be held. It is certainly not his evidentiary act. The accused concerned may have a legitimate ground to resist facing the TIP saying that the wit- nesses had a chance to see him either at the police station or in the Court, State Vs. Ram Tirath Page 25 of 32 FIR No. : 115/2001 as the case may be, however, on such ground alone he cannot refuse to face the TIP. It is always open for the accused to raise any legal ground avail- able to him relating to the legitimacy of the TIP or the evidentiary value of the same in the course of the trial. However, the accused cannot decline or refuse to join the TIP....."
22. Moreover, testimony of PW 1 is also corroborated by the testimony of PW5 Ram Bahadur who is a chance witness since he was on picket duty near the spot at the time of accident. Any person who happens to be present at the scene of the crime by coincidence or chance or was passing by the crime scene will be termed as a chance witness. If such a person provides testimony in the court related to such a crime scene he will be said as a competent chance witness. He has categorically deposed that the accused Ram Tirath af- ter the accident came outside from the offending vehicle and after seeing the injured fled from the spot. He further stated that on 08.04.2001 he had identi- fied him at the PS as the driver of offending vehicle and thereafter, accused Ram Tirath was arrested in present matter. Though, it has been argued that his testimony should be discarded since he is a police witness. Further it has been argued that his version that accused came outside of the offending vehicle is not supported by PW 1, but, the said argument is of no assistance to accused. In Karamjit Singh Vs State of Punjab (2009) 7 SCC 178, it has been held that testimony of police witnesses cannot be discarded merely because they are police witnesses. PW5 has corroborated the version of PW1 is material particulars. Minor contradictions are bound to happen especially when evi- dence is recorded long after the date of incidence. It is a platitude to say that witnesses have to be weighed and not counted since quality matters more than quantity in human affairs. Perusal of testimony of prosecution witnesses shows that though there are minor contradictions, but they have supported each other in material aspects. They are all consistent in their stand that ac- cused Ram Tirath was driving the offending vehicle TATA 407 bearing no. DL 1LB 2630 at the time of accident. On the other hand, nothing has been State Vs. Ram Tirath Page 26 of 32 FIR No. : 115/2001 brought on record by the accused to raise doubt regarding the same. Hence, I find that prosecution has discharged its onus to prove the said issue. Per con- tra, accused has failed to prove that someone else and not him was driving the offending vehicle. Moreover, his defence argued before the court was that the accident occurred due to the sudden U Turn of TSR driver. Accordingly, is- sue no. 1 is decided in favour of prosecution.
Issue no. 2 Whether the accident occurred due to rash or negligent act on part of accused driver Ram Tirath?OPP
23. Perusal of testimony of PW 1 Mukesh shows that he was driving his TSR bearing no. DL 1RD 5498 on one side of the road and as the other road was closed due to MCD construction, there was no way for him to take his TSR further left as the divider was next to it. He further stated that suddenly TATA 407 bearing no. DL 1LB 2630 came at a very high speed and hit the TSR from the front resulting in collision. It has been argued on behalf of accused that PW 1 has been unable to tell at what speed the TATA 407 was coming and hence, his testimony in this regard is incomplete and fails to show as to why accused was rash and negligent. However, this argument is devoid of merits. Hon'ble High Court of Delhi in its order dated 29.03.2023 in MAC.APP. 411/2015 SUSHILA DEVI & ORS vs SANDEEP KUMAR ( United India Insurance Co.) has observed:
"22. This Court is also of the opinion that rash and negligent driving does not in every case necessarily mean the excessive speed. Not taking due care while driving the vehicle and in particular overtaking, either stationary or moving vehicle also would amount to rash and negligent driving...."
24. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he State Vs. Ram Tirath Page 27 of 32 FIR No. : 115/2001 would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection. Judicial notice can be taken of the fact that a person though may not be able to tell the speed of the vehicle but based upon the context can do tell if it is a high speed or not. It is not in dispute that one side of the road was closed and therefore, traffic for both road was going from the same road. Hence, the vehicles should be driven at a slower speed than on a normal day. In the present case, PW 1 categorically deposed that the offending vehicle TATA 407 came at such high speed that after hitting the TSR, it climbed the divider. This fact in itself shows the speed at which the TATA 407 was being driven was a rash speed given the circumstances. It is pertinent to note that not a single suggestion was put to the witness PW 1 or any other prosecution witness that the offending vehicle after the accident did not climb the divider/patri. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by Apex Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. It is no longer res integra that "Convincing evidence is required to discredit an injured witness". Hence testimony of PW 1 cannot be brushed aside lightly. He has given full details of the incident and the manner in which accident occurred. PW1 has been subjected to lengthy cross-examination and nothing material has been elicited to discard his testimony. The said version of PW 1 is also corroborated by PW 5 Ram Bahadur who categorically stated that the offending vehicle came at a high speed and hit the TSR head on and a result of said collision, the TSR toppled and the offending vehicle climbed over the divider. Even PW 6 Surender has corroborated the version of PW 1 and PW 5 and deposed that when he reached the spot after receiving of DD no. 19A, both the vehicles were found State Vs. Ram Tirath Page 28 of 32 FIR No. : 115/2001 in accidental condition and TATA 407 was on the divider of the road. It was held by Punjab and Haryana High Court in 2006(1) R.C.R.(Criminal) 980 "Union Territory Chandigarh v. Geja Singh" that absence of words "rash and negligent" by eyewitness will not lead to conclusion that vehicle was not being driven in a rash and negligent manner. Rash and negligent act has to be inferred from appraisal of entire evidence adduced by prosecution. Similarly, Supreme Court in case titled as "Duli Chand v. Delhi Administration"
AIR 1975 Supreme Court 1960 observed that failure of the bus driver to look on right while approaching cross road, us though driven at moderate speed of 20 miles, was negligent and held guilty. No material has been brought on record by the accused to show that he took due care either in the cross examination of PW1 or by leading any defence evidence. Hon'ble Karnatake High Court in "State of Karnataka v. Akram Pasha" 2007(4) AICLR 712, a case involving collision between two vehicles observed that once the prosecution materials indicate highly rash and negligent act of driving by the driver of one vehicle, burden shifts to that driver to show that he was not at fault. If the accused fails to avail of such opportunities, Court will have to accept the version of the prosecution. Hence, I find that the prosecution has successfully discharged its burden and proved that TATA 407 was being driven in a rash and negligent manner at the time of accident. Per contra, his version that the driver Mukesh/PW1 took a sudden U turn remained unproved. He did not enter the witness box nor examined any other witness in support of the said version. None of the prosecution witnesses supported the version of accused in their cross examination nor was any material elicited in their cross-examination which would render the version of the accused plausible. All the circumstances conclusively point towards the fact that he was driving TATA 407 in a rash and negligent manner. All the facts are consistent with the guilt of accused and exclude every hypothesis to the contrary. Hence, issue no. 2 is decided in favour of prosecution.
State Vs. Ram Tirath Page 29 of 32 FIR No. : 115/2001
Issue no. 3
Whether the injuries suffered by Mukesh Kumar, Nissar Ahmad and the death of the lady in the TSR bearing no. DL 1RD 5498 was the direct result of the accident caused by rash or negligent act of accused driver Ram Tirath? OPP
25. Now the next question to be determined is whether the death of the lady passenger and injury suffered by Mukesh and Nissar Ahmad was direct result of a rash and negligent act of the accused Ram Tirath. In "Kishan Chand v. State of Haryana", 1971 P.L.R. 191 it was held by the Supreme Court that act must be the proximate and efficient cause without the intervention of another's negligence i.e. it must be the cause causans. It is not enough that it may have been the cause sine qua non. Accused did not dispute the genuineness of MLC of injured Mukesh Kumar, Nissar Ahmad, Suresh Chand and post mortem report of the deceased lady. He gave statement before the Court in this regard on 21.11.2014. Thus, the injuries suffered by the victims are not in dispute. PW 1 Mukesh has categorically deposed that due to the impact of collision by TATA 407 with his TSR, all the passengers and he sustained injuries. Further, he has categorically stated that lady passenger was declared brought dead at the hospital. PW 5 has also corroborated his version and deposed that he alongwith another TSR driver took the passengers and the driver Mukesh to GTB Hospital as they had suffered injury due to the accident. It is not the case of accused that these persons have self inflicted injury or that the death of the lady was not due to the injury suffered in the accident. No suggestion was given to any of the witnesses in the cross examination that the injury suffered by the passengers and the driver of the TSR bearing no. DL 1RD 5498 was not due to the said collision between the TSR and the TATA 407. Perusal of MLC no. A 1456/01 of the lady shows that she was declared brought dead at 11.10 p.m. on 07.04.2001. Further as the per the postmortem report, the cause of death is shock due to hemorrhage produced by blunt force impact. Nothing has been brought on State Vs. Ram Tirath Page 30 of 32 FIR No. : 115/2001 record by the accused that the said blunt force impact was not due to the collision between the TATA 407 and TSR. The accident occurred around 10.30 p.m. and she was declared brought dead at 11.10 p.m. Hence, possibility of her suffering injury on any other account is also ruled out. Similarly, MLCs of Nisar was prepared at 11.40 p.m. on 07.04.2001 and of Mukesh at 11.50 p.m. on 07.04.2001. Thus, the injury suffered by them could not have been any other account except in the collision between the TATA 407 and TSR. The testimony of PW 1 is corroborated in this regard by testimony of PW 5 who is a chance witness. His testimony cannot be discarded merely because he is a police official. PW 6 has also corroborated the version of PW 5 and stated that when he reached the spot on receiving of DD no. 19A Ex. PW4/A, he went to the GTB Hospital on getting to know that the injured have been taken to GTB hospital. He further stated that on reaching there, he obtained the MLCs of the injured persons. Nothing has been brought out in the cross examination of the said witnesses which would raise doubt on their credibility. It is well settled that statement of accused under Section 281/313 Cr.PC is not the evidence of the accused and therefore, cannot be read as part of evidence. It can only be looked into as an explanation of incriminating circumstances. Hence, his version that accident occurred due to sudden U turn of Mukesh remained a bald assertion. The concomitant of the aforesaid discussion is that prosecution has successfully proved that the death of the lady passenger and simple injury suffered by Mukesh and Nisar Ahmad was due to rash and negligent act of accused driver Ram Tirath and he is the causa causans of the said injuries suffered by them. Hence, issue no. 3 is decided in favour of prosecution.
26. In view of the abovesaid observations and findings, this Court is of the view that the prosecution has successfully proved the case. Accordingly, accused is convicted for the offence under section 304A IPC for causing death of the lady passenger by rash and negligent act. Further, accused is State Vs. Ram Tirath Page 31 of 32 FIR No. : 115/2001 convicted for the offence under section 337 IPC for causing simple injury to Mukesh and Nisar Ahmad by rash and negligent act. Also, Accused is convicted for the offence under section 279 IPC for driving TATA 407 bearing no DL 1LB 2630 in a rash and negligent manner on a public way. Copy of judgment be given free of cost to the accused person and matter be Digitally signed by listed for arguments on sentence. RUPINDER RUPINDER SINGH SINGH DHIMAN Date: 2023.12.06 DHIMAN 15:47:37 +0530 Announced in the (RUPINDER SINGH DHIMAN) Open Court on 06.12.2023 Metropolitan Magistrate-01 KKD Courts, Delhi It is certified that this judgment contains thirty two (32) pages and each page bears my signature. RUPINDER Digitally signed by RUPINDER SINGH SINGH DHIMAN Date: 2023.12.06 DHIMAN 15:47:44 +0530 (RUPINDER SINGH DHIMAN) Metropolitan Magistrate-01 NE/KKD Courts, Delhi State Vs. Ram Tirath Page 32 of 32 FIR No. : 115/2001