Delhi District Court
State vs . Raj Kishore on 15 February, 2010
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State Vs. Raj Kishore
FIR No.95/98
IN THE COURT OF SH. SUDHANSHU KAUSHIK: MM :
ROHINI COURTS: DELHI.
State Vs. : Raj Kishore
FIR NO : 95/98
U/s : 279/338 IPC
PS : SP Badli
JUDGEMENT
A. Sl. no. of the case 25/02
B. Offence complained of
or proved U/s 279/338 IPC
C. Date of Offence 17.02.1998
D. Name of the complainant Sh. Mukesh Sahni
S/o Sh. Joginder Sahni
R/o village Gopal Pur, PS
Paru,District Mujjafar Pur,
Bihar
Also at: House of Balraj,
village Mukund Pur, Delhi
E. Name of the accused 1. Raj Kishore
S/o Sh. Rais Chand
R/o Village Nangla Dhanu
PS Jathera, Distt. Atta, U.P.
F. Plea of the accused Pleaded not guilty.
G. Final order Acquitted
H. Date of Order 15.02.2010
Brief reasons for decision:
1. The story of the prosecution in brief is as under :
Mukesh Sahni used to do odd job of painting at Kalyan Vihar, Partap Nagar, Delhi. On 17.02.1998, he could not find any work. At around 1/7 2 State Vs. Raj Kishore FIR No.95/98 10.25 am, he was returning to his residence on his bicycle. While he reached the room where he used to reside, suddenly accused came driving the truck bearing no. DHG-1310 at high speed and struck against him in front of the tyre factory at Mukund Pur, Delhi. He fell down. The rear wheel of the driver side brushed against his left arm and waist. He sustained injuries. Balraj who was the land lord of the complainant Mukesh raised alarm. The driver stopped the truck and took the injured/complainant to the hospital. The information was received at PS SP Badli vide DD no. 27 B. After gaining the said information, ASI Mam Chand alongwith Constable Kishan reached the spot. They found the bicycle lying in an accidental condition and learnt that the injured had already been taken to Hindu Rao Hospital in a PCR van. Subsequently, the statement of the complainant was recorded. His MLC was obtained. On the abovesaid allegations, the present FIR bearing no. 95/98 under section 279/338 IPC was registered with PS SP Badli.
2. After investigation, chargesheet was filed against the accused. The copies of chargesheet were supplied to the accused in compliance of section 207 Cr. PC. The accused has been charged for the offence u/s 279 / 338 IPC.
3. In support of its version, the prosecution has examined five witnesses.
4. PW-1 is Mukesh S/o is the complainant. He has narrated the incident in his deposition. PW-2 Dr. Suresh Bansal, CMO, Hindu Rao Hospital is the doctor who has examined the injured Mukesh vide MLC Ex 2/7 3 State Vs. Raj Kishore FIR No.95/98 PW-2/A. He has proved the said MLC. PW-3 Retired SI Jai Singh is the mechanical inspector. He has inspecting the offending vehicle. He has proved his report Ex. PW-3/A. PW-4 Sat Pal Singh is the duty officer who has proved the registration of FIR no. 95/98. The said FIR is Ex PW-4/A. PW-5 Om Prakash S/o Hukum is the registered owner of the offending vehicle. He has deposed regarding having received the notice under Section 133 Motor Vehicle Act. He states that in his reply Ex. PW-5/A, he had mentioned that on the date of the incident, the vehicle was being driven by the accused Raj Kishore.
5. No other witness has been examined by the prosecution and prosecution evidence was closed
6. Subsequently, the statement of the accused was recorded under Section 313 Cr. P.C. The accused has admitted in his statement that he was driving the offending vehicle on the said date of the incident. However, he has submitted that he was not negligent in driving the same. He has put forward a defence that the complainant who was riding on his bicycle suddenly lost his balance and as a result of the same, he fell down and the accident took place. He has submitted that it was an accident and that he was not at fault. He chose not to examine any witness in his defence. Accordingly the matter was posted for final arguments.
7. I have heard the final arguments advanced at bar by Ld. APP for State and Ld. Defence Counsel and have perused the record.
8. On appreciation of the deposition of the witnesses and perusal of the record. I have reached the conclusion that the prosecution has failed to 3/7 4 State Vs. Raj Kishore FIR No.95/98 establish the charges under Section 279/338 IPC against the accused.
9. In order to establish the charges under Section 279/338 IPC, the prosecution is called upon to establish in the first place that the accused was driving the offending vehicle in rash and negligent manner. Secondly, it was called upon to establish that the said act or the said negligence on the part of the accused has resulted in an accident as a result of which the victim has sustained grievous injuries. The same is to be established by leading cogent evidence in this regard.
10. PW-1 has stated in his deposition that on the date of incident, he was going on his bicycle and was present in the area on Mukund Pur. He has stated that the accused came driving the offending truck bearing no. DLG-1310 from the front side and struck against his bicycle as a result of which he fell down. He has also deposed regarding the manner in which he has sustained injuries. He states that after falling down from his bicycle, the right side of the truck brushed his hand and waist. He states that initially he was taken by the accused Raj Kishore to a private hospital and subsequently, he was shifted to Hindu Rao Hospital. The witness has no where mentioned about the speed of the vehicle in his examination in chief. However, he had denied a suggestion put to him by Ld. Defence counsel that the offending vehicle was being driven at a slow speed. He has stated that the truck was being driven at high speed, although he does not recollect the exact speed. He has also denied the suggestion that he himself has fallen down from bicycle and the accident took place because of the said reason.
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State Vs. Raj Kishore FIR No.95/98
11. Apart from the said testimony, there is nothing on record to prove negligence. The site plan prepared by the IO has been forwarded alongwith chargesheet. However, IO has not been examined. The site plan wherein the position and the place of the incident has been reflected has not been proved. PW-1 has not deposed anything with regard to the negligence apart from the fact that the truck was being driven at high speed. There is nothing on record to demonstrate as to what was the width of the road on which the truck was being driven. In such circumstances, it would not be safe to conclude that the accused was driving the truck in rash and negligent manner. Speed cannot be the only factor to arrive at a finding in regard to negligence. High Speed is not a synonym for negligence. It has been held by the Hon'ble Supreme Court in judgement titled as Mohd. Ayuddin @ Miyam Vs. State of Andhra Pradesh reported in 2000(2) C.C. Cases (SC) 208 as under :
"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 the 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 from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.
A rash act is primarily an over hasty act. It is opposed at a 5/7 6 State Vs. Raj Kishore FIR No.95/98 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 any act with recklessness and with indifference as to consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is imperative duty of the driver of the vehicle to adopt such reasonable and proper care and precaution."
12. PW-3 Retired SI Jai Singh has proved the mechanical inspection report and PW-4 ASI Sat Pal has proved the registration of FIR. The injuries sustained by the accused has been proved on record by PW-2 who has examined the injured vide MLC Ex. PW-2/A. However, the testimony of these witnesses does not establish the negligence part which perhaps is the gist of the offence under Section 279/338 IPC. PW-1 has not attributed any negligence on part of the accused apart from that he was driving the offending vehicle at a high speed. There is nothing on record to suggest as to whether road on which the offending truck was being driven was one way or two way road. There is no evidence to establish negligence. The accused has put forwarded the defence in his statement recorded under Section 313 Cr.PC that the complainant was riding on bicycle and suddenly, he lost balance while he was crossing him. He has also made a suggestion to the said effect during the cross examination of PW-1. The defence put forward by accused is not totally 6/7 7 State Vs. Raj Kishore FIR No.95/98 unbelievable and improbable. The benefit of doubt ought to be given to the accused. The accused is, accordingly acquitted on the ground of benefit of doubt.
13. Surety for the accused stands discharged. Any endorsement placed on the documents of the surety may accordingly, be cancelled and returned to the surety, if retained on record.
14. File be consigned to record room after necessary compliance.
Announced in open Court (Sudhanshu Kaushik)
Dated 15.02.2010 Metropolitan Magistrate
Rohini Courts, Delhi
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