Delhi District Court
State vs . Sukhvir Singh on 2 February, 2016
FIR No. 448/01 PS Narela
U/s. 279/337/338 IPC
State Vs. Sukhvir Singh
IN THE COURT OF SHRI SANDEEP GUPTA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 448/01
U/s 279/337/338 IPC
PS: Narela
State vs. Sukhvir Singh
Date of Institution of case:-28.04.03
Date of Judgment reserved:-02.02.16
Date on which Judgment pronounced:-02.02.16
JUDGMENT
Unique ID no. : 02401R0650812003
Date of Commission of offence : 30.11.01
Name of the complainant : Sh. Niwas
s/o Sh. Hoshiyar Singh
R/o Kallupur PS Rai Distt.
Sonepat, Haryana
Name and address of the : Sukhvir Singh
accused persons s/o Sh. Prithvi Singh
R/o Village Tihar, Haryana.
Offence complained of : 279/337/338 IPC
Plea of accused : Not guilty
Date of order : 02/02/16
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
The accused Sukhvir Singh has been sent to face trial under Section 279/337/338 of Indian Penal Code (hereinafter called as IPC) on the allegations that on 30.11.01 at about 7.15pm accused was driving a half body truck no. HR-46A-3089 at very high speed on wrong side and hit against TSR bearing no. HR-10PA-0301 near Mata Mansa Devi Marg, Road, no.24, Near Narela, Paposian in a rash and negligent manner so as to endanger the human life and personal safety of others and thus Page 1 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh while driving in the said manner caused simple injuries on the person of Prem Lata, Bimla, Rajwanti, Amit and Jony and grievous hurt on the person of Smt. Kela and Baby Jyoti and thereby committed offences punishable U/s 279/337/338 IPC and on the basis of said allegations, present FIR bearing No.448/01was registered at PS Narela and the accused has been charged with the offences U/s 279/337/338 IPC.
2. After investigation, charge sheet was filed against the accused person. 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 charge U/s. 279/337/338 IPC was framed against the accused vide order dt. 11.11.03, to which he pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined thirteen witnesses.
4. PW1 is ASI / Tech. Devender Kumar. He is mechanical Inspector. He deposed that on 30.11.2001, he mechanically inspected three wheeler no. HR-10PA-0301 and truck no. HR-46A-3089 vide reports Ex.PW1/A & Ex.PW1/B. This witness was not cross-examined by accused despite opportunity given to the accused.
5. PW2 is Shri Niwas s/o Hoshiar Singh R/o Village Katlupur, PS Rai, Sonepat, Haryana. He was driver of three wheeler and complainant in the present case. He deposed that on 30.11.01 at about 7.15 am, when he alongwith his relative passengers were going to Yamuna Ghat and reached near the crossing after passing through Narela Paposian, a half body truck coming from the side of Ramdev Marg at a very high speed from the wrong side and hit the TSR. He further deposed that the Page 2 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh number of that truck was HR-46A-3089 and when that truck hit his TSR, it turned towards right side and the passengers received injuries. Police came at the spot and injured were shift to hospital by PCR van. He deposed that the accident was caused due to the negligence of the truck driver and proved his statement made before the police as Ex.PW2/A. He further stated that his photographs were also got done by the police which were Mark A1 to Mark A4. He also correctly identified the driver of said truck and proved the seizure memo of truck as Ex.PW2/B, arrest and personal search memos of accused as Ex.PW2/C and Ex.PW2/D and seizure memo of his TSR as Ex.PW2/E. During his cross examination by Ld. defence counsel, he deposed that he was auto driver by profession and 15-16 passengers were sitting in his TSR on the day of the incident. His bhabi Smt. Bimla alongwith two kids were sitting adjacent to him in the TSR. It was not dense fog on that day. The width of the road where the accident had occurred is about 10-12 feet. At the time of accident, he was slowing down his TSR as there was a turning point. Vehicles were coming in speed due to which he tried to slow down his vehicle. He further deposed that the truck was coming at a very high speed. It might be around 40-50 km/hr. His TSR was firstly hit by the bumper of the truck then the batta/body of the truck hit his TSR, due to which his TSR turned turtle. His TSR was dragged due to the impact for about 10 feet. 10-12 persons can sit in a TSR. He admitted that as per rule, 8 persons can sit in a TSR but denied the suggestion that the accident had occurred due to being overloaded. He further denied the suggestion that he was unable to see the side of the road, due to which accident had occurred or that ladies and children were singing in the TSR or Page 3 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh that he was also enjoying the same due to which accident had occurred.
6. PW3 is Smt. Rajwanti w/o Sukhbir R/o Village Katlupur, PS Rai, Sonepat, Haryana. She is one of the injured and eye witness of the accident. She deposed that on 30.11.01 she alongwith some ladies and children of their village were going to take Holy bath in Yamuna River Ghat in a TSR which was being driven by Shri Niwas and at about 7:15a.m., when their TSR reached Mata Mansa Devi Marg, a half body truck bearing no. HR-46A-3089 came from the side of Ram Dev Marg being driven in a rash and negligent manner and at a fast speed and hit their TSR because of which it turned turtle. She further deposed that the passengers including her received injuries but she could not see the driver of the offending truck. During her cross examination by Ld. Defence counsel, she deposed that around 12-15 passengers were sitting in the TSR. She denied that the TSR turned turtle as it was over loaded and that the driver of TSR was driving the same in rash manner. She denied that she has deposed falsely.
7. PW4 is Smt. Prem Lata w/o Sh. Rajender R/o Village Katlupur, PS Rai, Sonepat, Haryana. She is also the injured and one of the passengers in the TSR. She deposed that on 30.11.01 she alongwith some ladies and children of their village were going to take Holy bath in Yamuna River Ghat in a TSR which was being driven by Shri Niwas and at about 7:15a.m., when their TSR reached Mata Mansa Devi Marg, a half body truck bearing no. HR-46A-3089 came from the side of Ram Dev Marg being driven in a rash and negligent manner and at a fast speed and hit their TSR because of which it turned turtle. She further Page 4 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh deposed that the passengers including her received injuries but she could not see the driver of the offending truck. During her cross examination by Ld. Defence counsel, she stated that she was sitting in the middle on the rear seat of the auto and on both her sides, ladies and other children were seating. She further deposed that since she was singing Bhajans with other ladies she had not seen the vehicle coming on the road. She did not know as to how the accident had happened.
8. PW 5 is Sh. Mahender Singh, S/o. Sh. Rishal Singh.
Aged about 54 years. R/o. Ghuhana Road, Shyam Nagar, Sonipat, Haryana. He was the registered owner of truck no. HR-46A-3089 and deposed that his driver accused Sukhbir Singh was driving the said truck at the time of accident in the present case and he got released his said truck on superdari vide superdginama Ex. PW5/A, bearing his signature at pt A. Three photographs of the said truck were exhibited as mark A, mark B and mark C. This witness was not cross-examined by accused despite opportunity given to the accused.
9. PW 6 is Lady HC Sarla, no. 1781 PCR, North Zone, Delhi. She deposed that on 30.11.01, she was posted at PS Narela as duty officer from 8.00 a.m. to 4.00 p.m. On that day, at about 9.00 a.m. Ct. Ved Prakash had brought a rukka sent by SI Sanjay, on the basis of which he recorded FIR no. 448/01 Ex.PW6/A and also made endorsement Ex.PW6/B on the rukka. This witness was not cross-examined by accused despite opportunity given to the accused.
10. PW7 is Sh. Anil S/o. Sh. Sultan Singh, R/o. Village Khatrupur, District Sonepat, Haryana. He is also one of the injured passenger in the TSR. He did not remember the exact Page 5 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh date and month but deposed that in the year 2001, he alongwith some ladies and children of their village were going to village Pala to take holy bath at Yamuna river ghat on the eve of Puranmasi in a TSR driven by his uncle Sri Niwas. He further deposed that when they reached near Narela Industrial Area, one half bodied truck was coming from Ramdev Marg in rash and negligent manner and struck against the TSR, due to which they sustained injuries and were shifted to hospital by the PCR officials. He also identified the photographs of the truck placed on record. During his cross examination by Ld. defence counsel, he deposed that at the time of the incident, he was 11 or 12 years old. He further stated that the TSR was carrying 10-12 passengers and he was sitting with the driver in the TSR. The speed of the TSR was about 20-30. He admitted that the accident had occurred at a chowk and that the width of the road was broad enough so that two vehicles can easily ply on the same. He denied the suggestion that the accident had occurred due to the negligent act of TSR driver as the same was overloaded or that the driver of TSR was unable to see the side of the road, due to which accident had occurred.
11. PW8 is Smt. Kela, W/o. Sh. Ram Chander, R/o. Village Khatrupur, District Sonepat, Haryana. She is also one of the injured passenger of TSR and deposed that she did not remember the exact date and month but in the year 2001, she alongwith some ladies and children of their village were going to village Pala to take holy bath at Yamuna river ghat on the eve of Puranmasi in a TSR driven by Sri Niwas and when they reached near Narela Industrial Area, one half bodied truck was coming from Ramdev Marg in rash and negligent manner and struck Page 6 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh against the TSR and the same turned turtle, due to which they sustained injuries and she became unconscious and hence, could not see the driver of the truck. She further deposed that they were shifted to hospital by the PCR officials. IO recorded his statement. Ld. APP for the State cross examined this witness after seeking permission from the Court. When leading questions were put to this witness, she answered that she is illiterate and became unconscious after the accident. During her cross examination by Ld. defence counsel, she deposed that the TSR was carrying 15-16 passengers. She was sitting in the middle of the back side seat of TSR. She denied the suggestion that Anil and Prem Lata were sitting with the driver of the TSR or that the accident had occurred due to the negligent act of TSR driver as the same was overloaded. She further denied the suggestion that the driver of TSR was unable to see the side of the road, due to which accident had occurred or she was deposing falsely.
12. PW9 is of Smt. Bimla, W/o. Sh. Phool Kumar, R/o. Village Khatrupur, District Sonepat, Haryana. She also deposed on the similar lines of PW8 Kela, hence, her testimony is not repeated for the sake of brevity and repetition.
13. PW10 is Sh. Johny, S/o Sh. Mahender, Age 18 years, R/o Village & Post Office Raipur, District Sonepat, Haryana. He was also one of the injured passenger but deposed that he was a student and did not remember the exact date, month and year. He further deposed that on that day, they were going in a TSR when an accident took place and he received injuries. Nothing incriminating against accused come out from the mouth of this witness during his cross examination by Ld. APP for the State. This witness was not cross-examined by accused Page 7 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh despite opportunity given to the accused.
14. PW11 is HC Ved Prakash, No. 3054/security, E block, Delhi. He deposed that on 30/11/01 on receipt of DD No. 2 B, he along with IO/ SI Sanjay Kumar reached at the spot i.e. Mansha Devi marg, Sector A-6, Pocket 13 chowk, Narela. There they found one TSR Sitara NO. HR-10PA-0301 and one half body truck NO. HR-46A-3089 in accidental condition. Driver of the TSR namely Sri Niwas was also found at the spot. IO recorded the statement of Sri Niwas and thereafter prepared rukka and handed over to him for registration of FIR, accordingly, he went to PS and got the FIR registered and came back at the spot and handed over the copy of FIR and original rukka to IO. Photographer was called at the spot by IO and photographs of the spot were taken. Both the vehicles were taken into possession vide seizure memos Ex. as PW2/B and PW2/E, both bearing his signatures at point B respectively. He further deposed that they came back at the PS and both the vehicles were deposited in Malkhana. Thereafter, they went to BJRM hospital, where IO obtained MLC's of injured persons and recorded their statements. Thereafter, they came back at the PS. Registered owner of the offending vehicle i.e. half body truck NO. HR-46A-3089 came at the PS along with driver of the truck. He further deposed that the accused produced his driving license which was taken into possession vide memo Ex.PW11/A and photocopy of documents of the offending vehicle were also taken into possession by IO vide memo Ex. PW11/B. He further deposed that thereafter, accused Sukhbir Singh was arrested and his personal search was conducted vide memos Ex.PW2/C and Ex.PW2/D, both bearing his signatures at point B respectively. Eyewitness Sri Niwas was also Page 8 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh present at the PS who identified the accused Sukhbir Singh. Thereafter, accused was released on bail. IO recorded his statement. During his cross examination by Ld. defence counsel, he deposed that DD No. 2 B was received by IO at about 7.15 am. The distance between the spot and PS is about 1.5 km. They went to the spot on the motorcycle of IO but did not remember the number of motorcycle or whether there was dense fog on the day of incident or not. Some other public persons were also present at the spot. IO asked public persons about the accident and asked them to join the investigation, but none gave any reply and none agreed to join the investigation. He admitted that spot is surrounded by a Jhuggi cluster area. IO inquired from the eyewitness Sri Niwas and he replied that he along with passengers was going to Jamuna Ji to take bath of Puranmasi. He also did not know whether IO inquired from Sri Niwas about the number of passengers in the TSR . He reached at the PS at about 8.50 am and came back at the spot at about 9.50 am when photographer also reached the spot but did not remember how many photographs were taken by the photographer. Public persons were not asked to join in the investigation during the seizure of both the vehicles. He also did not know how and by whom both the vehicles were taken to the PS. He further deposed that when they reached at PS from BJRM hospital at about 12.00 noon and accused Sukhbir was present along with owner in the PS and at the same time, eyewitness Sri Niwas also reached in the PS. He denied the suggestion that he never visited the spot or that he did not accompany the IO or his signatures were taken on the seizure memo in the PS or was deposing falsely at the instance of IO.
Page 9 of 20FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh
15. PW12 is Sh. Sunil Kumar, statistical Assistant (on behalf of record clerk), from BJRM hospital, Jahangir Puri, Delhi. He brought summoned record in respect of MLC No. 12028, 12029 and 12030 in respect of injured persons namely Rajwati W/o Sh. Sukhbir, Jyoti D/o Sh. Ram chander and Johny S/o Jogender and deposed that MLC's No. 12028 Ex.PW12/A and 12029 Ex.PW12/B was prepared by Dr. S.S. Raza (Jr.) and Dr. S. A. Francis who had left the services of the hospital and identified their writing and signatures on the MLC. He further deposed that MLC No. 12030 Ex.PW12/C was prepared by Dr. Ram Kuwar (Jr.) who had also left the services of the hospital, bearing his signature at point A. He also proved summoned record in respect of MLC No. 2303 Ex.PW12/D, 2304 Ex.PW12/E, 2305 Ex.PW12/F and 2306 Ex.PW12/G in respect of injured persons namely Kela W/o Ram Chander, Prem Lata w/o Rajender, Bimla W/o Phool Kumar and Anil S/o Sultan and deposed that MLCs No. 2303 and 2304 were prepared by Dr. S.S. Raza and MLC No. 2305 and 2306 were prepared by Dr. Ram Kuwar, bearing their signatures at point A respectively. During his cross examination by Ld. defence counsel, he deposed that he had not personally worked with the doctors and have no personal knowledge about the present case.
16. PW13 is SI Sanjay Dahiya, No. D-184, Crime Branch, Prashant Vihar, Delhi. He deposed that on 30/11/01, on receipt of DD No. 2 B, he along with Ct. Ved Prakash reached at Mansha Devi road, near Sector A-6, Pocket 13 chowk, Narela, Delhi where they found one TSR No. HR-10PA-0301 and one half body truck bearing No. HR-46A-3089 in accidental condition and also met the TSR driver/ complainant Sri Niwas. He recorded Page 10 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh statement Ex.PW2/A of TSR driver, prepared rukka Ex.PW13/A, bearing his signature at point A and handed over the same to Ct. Ved Prakash who went to PS for registration of FIR. Thereafter, he called the photographer Pramod at the spot who took photographs of the spot from different angles. Ct. Ved Prakash came back at the spot after registration of FIR and handed over the copy of FIR and original rukka to him. He further deposed that he prepared the site plan Ex.PW13/B at the instance of complainant Sri Niwas and seized the vehicles vide memos Ex.PW2/B and Ex.PW2/E and brought both the vehicles at the PS and deposited the same to the Malkhana. He further deposed that on information received by duty officer that injured had been admitted in BJRM hospital Jahangir Puri, he alongwith Ct. Ved Parkash reached at BJRM Hospital where he obtained MLCs of injured Kela Devi, Jyoti, Rajwanti, Bimla, Jony, Anil and Premlata. Nature of injury on the MLC of Rajwanti, Jony or Anil were opined as simple and opinion on the nature of injuries of other injured persons was not given by doctors. Thereafter, he recorded statement of all the injured persons and came back at the PS, registered owner Mahender Singh of the offending vehicle i.e. half body truck no. HR 46A 3089 came at the PS alongwith driver Sukhbir. Accused produced his driving licence which was taken into possession vide seizure memo Ex.PW11/A bearing his signature at point B. Thereafter, he interrogated accused Sukhbir and in the meantime, eye witness/complainant Sri Niwas also came at the PS for getting released his TSR. Eye witness Sri Niwas identified the accused Sukhbir in the PS. Accused was arrested and personally search vide memos Ex.PW2/C and Ex.PW2/D bearing his signatures at point C. Thereafter, accused Page 11 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh was released on bail. He also got the mechanical inspection of both the vehicles conducted vide reports Ex.PW1/A and Ex.PW1/B bearing his signature at point B. He deposed that he deposited the MLCs in the hospital for obtaining opinion on the nature of injuries. Doctors opined nature of injuries as grievous on the MLC of injured Jyoti and Kela Devi. After completion of investigation charge sheet was prepared and filed in the court. During his cross examination by Ld. defence counsel, he deposed that he received DD NO. 2B at around 7:30 a.m. and reached the spot at around 7:40 a.m. The distance between PS and the spot is around 1 & 1/2 km. He went to the spot on motorcycle of Ct. Ved Prakash but did not remember its number. There was not much fog on the day of incident and it was not dense fog with visibility of around 50 meters. Public persons were also present at the spot. He further deposed that he recorded statement of Shri Niwas only at the spot. He asked some other persons but they refused to join the investigation. Ct. Ved Prakash took rukka at around 8:30 or 8:35 a.m. and came back at the spot at about 9:30 or 9:45 a.m. and till then he remained at the spot. He did not remember whether signature of Shri Niwas was obtained on the site plan or not. He reached at the hospital at around 10:30 a.m. Complainant Shri Niwas did not come with him to the hospital however, Ct.Ved Prakash was with him. There were 7-8 injured persons in the hospital. Shri Niwas did not tell him as to how many persons did not receive injuries and how many persons received injuries. He recorded statement of all the injured persons in the hospital. One or two injured persons were recalled in the hospital for obtaining opinion on their MLCs. He recalled those injured persons at the request of Doctors. He also stated Page 12 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh that he never served in the traffic police. He was not aware as per Motor Vehicle Act how many persons are allowed in a TSR. He denied the suggestion that more than six persons are allowed in TSR. He had not seized or seen the DL of the TSR driver. He denied the suggestion that TSR driver did not know how to drive the TSR or that accident occurred as the TSR was over crowded with passengers and therefore, TSR driver could not control the TSR and TSR got disbalanced and therefore, the accident occurred due to negligence of TSR driver. He further denied the suggestion that he had not conducted the investigation in a fair manner or that he had falsely implicated the accused in a present case or that this is a false case.
17. It is a matter of record that after examination of above mentioned witnesses, prosecution evidence was closed vide order dated 26.03.15. Subsequently, statement of accused person was recorded u/s 313 CrPC separately, in which he submitted that he is innocent and has been falsely implicated in the present case. He further stated that accident occurred due to the negligence of TSR driver himself and he was not driving rashly or negligently. The accused did not met lead any defence evidence. Thereafter, matter was listed for final arguments.
18. I have heard the arguments advanced by Ld. APP for the state as well as Ld. defence counsel for the accused and perused the entire record.
19. In the present matter, the accused has been charged for the offences punishable under Section 279/337/338 IPC. To prove a case U/s. 279/337/338 IPC against the accused, the prosecution has to prove the following facts:-
a) that the accused was found driving a vehicle bearing Page 13 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh registration no HR-46A-3089;
b) that the accused was driving the said vehicle in rash and negligent manner;
c) that while driving the said vehicle in the aforesaid manner, he struck against the other TSR bearing registration no.
HR-10-PA-0301 as a result of which Bimla, Rajwanti, Anil and Johny sustained simple injuries and Kela and Baby Jyoti sustained grievous injuries.
20. In the present case, to sustain the conviction of the accused, statement of eyewitnesses is most crucial. Overall, seven public witnesses / eyewitnesses were examined by prosecution. It is a settled law that testimony of all the eyewitnesses have to be scrutinized more carefully. Firstly coming to the deposition of PW3 who deposed that the offending vehicle was being driven in rash and negligent manner in a fast speed but apart from saying this, this witness did not elaborate any other relevant aspect such as about the width of road or the side of road on which both the vehicle were plying and merely deposing that a vehicle was being driven at a high speed without even mentioning the speed would not be sufficient to draw any inference about rashness or negligence on the part of accused. The same analogy can be deduced from the evidence of PW4 Prem Lata who also did not dwell upon the details of the manner in which the driver of the offending vehicle was rash or negligent. Moreover, this witness deposed during her cross examination by Ld. defence counsel that she had not seen the vehicle coming on the road and she does not know as to how the accident happened. Moving further, PW7 who did not even mention about any high speed of the offending truck, also looses its credence as Page 14 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh this witness only deposed that the truck was coming in a rash and negligent manner without even making a whisper of anything else as to in what manner, the driver of truck was faulty and rash in his act? Deposition of PW8 is almost similar to that of PW7 and therefore, perusal of the testimony of PW8 and PW9 also does not facilitate in deducing any inference that the driver of the truck was driving the same rashly and negligently. Moving further, PW10 Johny turned hostile and denied specifically about the truck being driven by the accused in rash or negligent manner.
21. Now, we are left with the deposition of PW2 Sri Niwas who is the complainant in the present case and being a star witness, it becomes imperative to scrutinize his deposition in depth. According to this witness, when TSR being driven by him reached near the crossing after passing through Narela Paposian, a half body truck coming from the side of Ramdev Marg was at a very high speed and on the wrong side because of which it hit the TSR. Now, deposition of this witness has to be studied in correlation with the site plan Ex. as PW13/B. The entire site plan is silent upon the direction in which the vehicle coming from the side of Pana Paposian are to be driven ie. it does not mention as to upon which side of the road the vehicle coming from pana Paposian are supposed to be driven. This thing becomes more confusing if one tries to observe the arrows shown in the site plan because if the arrows shown depict the side of the road upon which the vehicle are supposed to be driven then it appears that the TSR coming from the side of Pana Paposian should have been driven on the right side of the road whereas it was being driven on the left side of the road which is going towards Yamuna Ghaat. The site plan does not even show as to whether there was any divider Page 15 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh on the road or was there any traffic light on the crossing or any circle where the alleged accident occurred. At the same time, it is to be remembered that admittedly by the prosecution witnesses, the TSR was carrying 15-16 passengers which clearly indicates that it was overloaded and some passengers were also sitting with the driver of TSR on the front seat itself. It becomes further hard to conceive that the driver of TSR i.e. PW2 did not suffer any injury when the TSR was dragged for about 10 feet after turning turtled. It is further significant to observe that according to PW2, he tried to turn his TSR towards his right side i.e. on the wrong side of the road just to avoid the collision but wonder as to why did not the driver of TSR tried to apply brakes on his TSR if he had seen that a truck is coming at a high speed? There is no mention that the driver of TSR ever tried to apply brakes on his TSR to stop the same. There is also no photographs on record showing the actual position of the vehicles at the time of accident and whatever photographs are on record, it appears that they were taken after the scene of occurrence was disturbed because they do not show the TSR in turtled condition. It is a settled law that it is incumbent upon prosecution to establish categorically the rash and negligent driving of the accused beyond any shadow of doubt, however, keeping in view the aforesaid discussion, about the inconsistencies and gaping loop holes in the deposition of the eyewitnesses examined, the rash or negligent aspect in driving of the accused remained unproved. Moreover, site plan also does not depict as to on what side of the road the vehicle coming from Ramdev Marg is supposed to be driven and this should have been clearly depicted in the site plan so as to get a clearer picture and infer that the Page 16 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh offending vehicle was being driven on wrong side of road.
22. Now, 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".
23. Further, 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 has to explain how the accident happened without negligence on his part. Merely because a passenger fell down Page 17 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh 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.
24. 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 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, Page 18 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh 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 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.
25. Therefore, after scanning the entire record and keeping in view the above discussion, in the absence of compelling and persuasive testimony of the eye witnesses on record, in my considered opinion, the prosecution has miserably failed to prove Page 19 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh the present case against the accused and hence, the accused Sukhvir Singh is hereby acquitted from offences u/s 279/337/338 IPC.
26. File be consigned to Record room after necessary compliance.
Announced in open court today on 02.02.16 (Sandeep Gupta) Metropolitan Magistrate North District/Rohini/Delhi Page 20 of 20 FIR No. 448/01 PS Narela U/s. 279/337/338 IPC State Vs. Sukhvir Singh 02.02.2016 Present : Ld. APP for the State.
Accused 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 is acquitted of the offence U/s 279/337/338 IPC.
Accused is directed to furnish fresh bail bond for a sum of Rs.10,000/- with one surety of like amount in terms of section 437 A of Cr.P.C. The same stands furnished and accepted.
File be consigned to record room after necessary compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi 02.02.16 Page 21 of 20