Delhi District Court
State vs . Atam Prakash Gambhir on 9 August, 2016
State Vs. Atam Prakash Gambhir
IN THE COURT OF SH ANUJ AGARWAL: MM-03(SD)
SAKET COURT: DELHI
State Vs. Atam Prakash Gambhir
FIR NO. : 259/2008
U/S : 279/304-A IPC
PS : Hauz Khas
JUDGMENT
a) Sl. No. of the case : 32/09
b) Date of institution of the case : 18.02.2009
c) Date of commission of offence : 07.07.2008
d) Name of the complainant : HC Hukum Chand, No- 359/SD.
e) Name & address of the : Atam Prakash Gambhir S/o P. D Gambir
accused. R/o House no. Double Story, 1st Floor,
New Rajender Nagar, New Delhi.
f) Offence charged with : 279/304-A IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 09.08.2016
i) Final order : ACQUITTED
j) Date of Judgment : 09.08.2016
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Briefly stated, accused Atam Parkash Gambhir, has been sent to face trial with the allegations that on 07.7.2008 at about 10:00am, at outer ring road, IIT flyover, within jurisdiction of PS Hauz Khas, accused was driving a Honda City Car bearing no. DL- 4 CAB- 7773, in rash and negligent manner so as to endanger human life and personal safety of others in a public way and while driving so, he hit against pedestrian Bhuddhiman and caused his death, and FIR No. 259/08 PS Hauz Khas 1 of 6 State Vs. Atam Prakash Gambhir thereby alleged to have committed offence U/sec. 279/304-A IPC.
2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. A formal notice U/sec. 251 Cr.PC for commission of offence U/s 279/304-A IPC was served upon accused to which he pleaded not guilty and claimed trial.
3. In order to prove its case, prosecution has examined two (2) witnesses.
4. PW-1 Sh. Laxmi Kant is the sole eye witness examined by prosecution to prove its case . He deposed that in the year 2008 on the 6th or 8th day of the month, he was present at C-5/34 SDA and was removing the debris of the house material and at about 10:00am, two persons were crossing the road from IIT side at Ring Road. He further deposed that one Honda City ZX bearing no. DL-4CB-7773 came from Munirka Village side going towards Chirag Delhi side and the car was in a speed. He further deposed that one person had crossed the road however the car hit the another person . He further deposed that he called the police at 100 number and injured was taken by the accused to the Orthonova Hospital. He further deposed that the offending car remained at the spot and he gave his name, address, phone number to the person accompanying the injured. He further deposed that later on police came to him and made inquires from him and he gave his statement to the police. He further deposed that during investigation, he was called in the court for the TIP but accused refused to participate in the TIP . He further deposed that the person , who was driving the offending car is present in the court. He further deposed that the slip which he gave to the person accompanying the injured Ex. PW 1/ A , which is in his handwriting. He further deposed that IO made inquires to him about the exact place of incident and the manner which FIR No. 259/08 PS Hauz Khas 2 of 6 State Vs. Atam Prakash Gambhir the incident took place. He correctly identified the accused Atam Parkash Gambhir.
5. PW-2 is HC Arvind Kumar, the Duty officer, who deposed that on 07.07.2009, he was posted at PS as Head Constable and at about 10:07am, one call regarding accident at IIT flyover was received and on the basis of which he recorded DD no. 11 A and same was assigned to HC Hukum Chand for investigation. He further deposed that at about 11:50am, he received rukka Ex. PW 2/ A through Ct. Rajender, which was sent by HC Hukum Chand, on the basis of which present FIR Ex,. PW 2/ B was got recorded through computer . He further deposed that he made endorsement on Rukka Ex. PW 2/ C.
6. Record transpires that during course of trial accused admitted the post mortem report, MLC as well as factum of registration of FIR, vide his separate statement. Therefore, said documents can be read into evidence without formal proof of same in terms of section 294 CrPC.
7. PE was closed by order of this court on 08.07.2016. Statement of accused U/s 313 CrPC recorded wherein all the incriminating evidence appearing against accused was put to him. Accused denied the same as incorrect and claimed to be falsely implicated. Accused chose not to lead any defence evidence in his favour
8. I have heard the arguments as advanced by the Ld. APP for the State and perused the record.
9. In a criminal trial, the onus remains on the prosecution to prove the guilt of FIR No. 259/08 PS Hauz Khas 3 of 6 State Vs. Atam Prakash Gambhir accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
10. It has been submitted by Ld. APP that the prosecution has been able to prove the guilt of accused beyond the reasonable doubt. It has been further stated that the testimonies of the prosecution witnesses are reliable and trustworthy which have been able to bring home the guilt of the accused beyond reasonable doubt.
11. Per contra, Ld. defence counsel has argued that no incriminating material has come on the record against the accused and the prosecution has miserably failed to prove the case beyond reasonable doubt. It has been argued that the sole eye witness in the present case has not deposed anything regarding alleged rashness / negligence on the part of accused and therefore accused deserves acquittal in the present case.
12. The element of rashness and negligence is sin qua non for offence u/sec. 279 IPC and same cannot be presumed. In the case of B. C. Ramachandra v. State of Karnataka 2007 Cri. L. J. 475, the Court relied upon a number of decisions of the Apex Court and concluded that in criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. It was also observed that "such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur."
FIR No. 259/08 PS Hauz Khas 4 of 6 State Vs. Atam Prakash Gambhir
13. In the instant case, for bringing home the verdict of guilt against accused, prosecution was required to prove rashness and negligence on the part of latter as same is sin qua non for an offence U/sec. 279/304-A IPC. For proving the said fact, prosecution has relied upon testimony of PW1 Sh.Laxmi Kant, who is the sole eye witness in the present case. Perusal of his testimony however reveals that he has simply deposed that the car was in speed and one person had crossed the road and the car hit the another person. It is evident that the witness has simply testified that the offending vehicle was being driven by the accused at a speed. Even if, presuming the testimony of Sh. Laxmi Kant (PW1), to be correct, no rashness or negligence can be imputed to accused Atam Prakash Gambhir. Driving a vehicle at speed in itself does not amounts to a rash and negligent act. Speed in itself is a very subjective term. Apart from the allegation of fast driving no indictable rashness or negligence has been imputed to the accused. Therefore in such a scenario to say that the accused was rash and negligent because of his speed only would not be justified. It is evident in the instant case that the witness has not deposed anything qua alleged rashness/ negligence on the part of accused.
14. I quote with profit the law laid down in "Abdul Subhan Vs. State 2007 Cri. L.J. 1089, wherein Hon'ble Mr. Justice B.D. Ahmed speaking for Hon'ble High Court of Delhi has held :-
"The present case is on a similar footing. Apart from the allegation of having driven the truck at a high-speed, which itself is an unclear expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and/ or negligently or did any act which would amount to a rash and /or negligent act. Clearly, therefore, the petitioner is not liable to be convicted under the provisions of Section 279 and 304-A IPC. The Courts below have committed a grave error in convicting the FIR No. 259/08 PS Hauz Khas 5 of 6 State Vs. Atam Prakash Gambhir petitioner and this error needs to be corrected in revision. The impugned order is, therefore, liable to be set aside and the petitioner is entitled to an order of acquittal."
15. Hence, in view of the above said discussions as well as the material available on the record I am of the considered view that the prosecution has failed to prove the case against the accused beyond reasonable doubt U/sec. 279/304-A IPC. Accordingly, the accused namely Atam Prakash Gambhir is hereby acquitted of offence U/sec. 279/304-A IPC.
Announced in the open court
on 09.08.2016 (Anuj Agarwal)
MM-03(SD)/Delhi/09.08.2016
FIR No. 259/08 PS Hauz Khas 6 of 6