Delhi District Court
State vs . Mool Chand Saini on 25 April, 2015
FIR no.684/06
PS Narela
U/s. 279/338 IPC
State Vs. Mool Chand Saini
IN THE COURT OF SHRI SANDEEP GUPTA
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 684/06
U/s. 279/338 IPC
PS: Narela
State vs. Mool Chand Saini
Date of Institution of case:-11.09.07
Date of Judgment reserved:- 25.04.15
Date on which Judgment pronounced:- 25.04.15
JUDGMENT
Unique ID no. : 02404R0499702007
Date of Commission of offence : 05.11.06
Name of the complainant : Bimla, W/o Dev Kumar, R/o Nai
Basti, Mamurpur, near Suman
Chaudhary Nursing Home, House of
Raj Karan, Narela, Delhi.
Name and address of the accused : Mool Chand Saini, s/o. Late Sh.
Shyam Lal Saini, r/o. T-11, Malviya
Nagar, Delhi
Offence complained of : 279/338 IPC
Plea of accused : Not guilty
Date of order : 25.04.2015
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
The story of the prosecution in brief is as under:-
1. The accused Mool Chand Saini S/o Late Sh. Shyam Lal has been sent to face trial under Section 279/338 Indian Penal Code (hereinafter called as IPC) on the allegations that on 05.11.06 at around 12:30 p.m. (morning) opp. Suman Chaudhary Nursing Home, he was found driving the Escort Ford bearing no. DL-3CJ-1602 on a public way in a rash and negligent manner so as to endanger human life and personal safety of others and while driving so in the said manner he struck against Shiv Page no.1 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini Chand @ Deepu S/o Dev Kumar aged 6 years who was walking on the road alongwith his mother Bimla, as a result thereof, the injured Shiv Chand @ Deepu suffered grievous injuries and on the basis of the said allegations, the present FIR bearing no. 684/06 was registered at Police station Narela and the accused has been charged with the offences under Section 279/338 IPC.
2. After investigation, charge sheet was filed against the accused.
The copies of charge sheet was supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and notice u/s 251 Cr.P.C for the offence U/s. 279/338 IPC was served upon the accused on 23.03.09, to which he had pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined eight witnesses.
4. PW1 is HC Ram Phal, No. 2415 West, PS Moti Nagar, Delhi. He was the duty officer. He deposed that on 06.11.2006, on receipt of rukda from Ct. Dinesh sent by ASI Satbir Singh, he recorded FIR No. 684/06. Carbon copy of which was Ex.PW1/A (OSR). He further deposed that he also made endorsement on the rukka, and the same was Ex. PW1/B. He has not been cross-examined by the accused despite given opportunity.
5. PW2 is Ct. Dinesh Kumar, No. 1173/OD, PS Alipur, Delhi. He deposed that on 05.11.06 on receiving DD No. 40B, he alongwith IO/ASI Satbir Singh reached at JPL Hospital, where IO collected the MLC of the injured. Thereafter, they returned to police station. Thereafter, IO received DD No. 55 A upon which they reached at ESI Page no.2 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini Hospital, Rohini, where IO collected the MLC of injured Shiv Chand @ Deepu aged about 6 years. Thereafter, IO recorded statement of mother of the injured and prepared rukka and handed over the same to him for registration of FIR. After getting the case registered he returned to the spot i.e. Arya Samaj Road, Narela, Delhi and handed over the copy of FIR and original rukka to the IO. Thereafter, IO recorded his statement. He has not been cross-examined by the accused despite given opportunity.
6. PW3 is Sh. Rajesh, s/o. Sh. Hoshiyar Singh, r/o. H. no. T 156, Indra Colony, Narela, Delhi. He is the eye witness in the present case. He deposed that on 05.11.06, when he was present at Arya Samaj Road, near Chaudhary Nursing Home, in the meantime, one car bearing no. DL 3CJ 1602 was coming from Ramdev Chowk in a rash and negligent manner without blowing the horn and it struck against one boy who was coming from the opposite side. He further deposed that he picked up the injured child. Thereafter, the accused Mool Chand Saini stopped his vehicle and got down from his car. Thereafter, the injured boy was shifted to the hospital by his mother and the accused. During his cross-examination by Ld. defence counsel, he admitted that he reached at the place of accident after the accident has already taken place. He admitted that construction was going on the road but there was less rush on the road and at that time, there were 2-4 vehicle were passing thereby. He further deposed that he could not tell the speed of the offending vehicle but it was being driven at a normal speed. He also admitted that the fact regarding not blowing the horn by the accused was mentioned by him in his statement Ex.DA, confronted with his statement where it was not so recorded. He further deposed that he had also mentioned the fact that the injured was coming from the opposite side. The witness was confronted with his Page no.3 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini statement Ex.DA where it was not so recorded. He also admitted that the accused had taken the injured to the hospital. He further denied the suggestion that injury was not caused to the injured by the hitting of the offending vehicle and that he had deposed falsely.
7. PW4 is W/HC Santro, No. 555/OD, PS Narela, Delhi. She was the DD writer in the present case. She deposed that on 05/11/06, she recorded DD no. 40 B. She had brought the original DD register containing the aforesaid entry (OSR). The same was in her handwriting and the attested copy of the same was Ex.PW4/A. She was also cross examined by Ld. defence counsel.
8. PW5 is Retd. ASI / Tech. Devender Kumar, S/o Sh. Umrao Singh, R/o H NO. 1623, Jain Nagar, Karala, Delhi-81. He deposed that on 08/11/06, at the request of IO/ ASI Satvir Singh, he mechanically inspected one ford car No. DL-3CJ-1602, at PS Narela. According to him, there was no fresh damage on the vehicle and the vehicle was fit for road test and his detailed report was Ex PW5/A. He has not been cross-examined by Ld. defence counsel despite given opportunity.
9. PW6 is Sh. B.S. Bhati, record clerk, LNJP hospital, Delhi. He had brought the summoned record in respect of MLC No. 130715, in respect of Deepu S/o Sh. Dev Kumar, 6 years, male and as per record the MLC of above said injured was prepared in their hospital by Dr. Nishant, then Senior resident casualty (Jr). He identified the writing and signature of Dr. Nishant on the above said MLC Ex. PW6/A, at pt. A, as he had seen him while writing and signing during course of his duty.
During his cross-examination by Ld. defence counsel, he admitted that the aforesaid MLC was not prepared in his presence. He also Page no.4 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini admitted that doctor has not signed the MLC in his presence.
10. PW7 is Dr. Manjri Sachdav CMO, ESI Hospital Rohini, Delhi.
She deposed that on 05.11.2006, one patient Shiv Chand S/o Sh. Dev Kumar, aged about 6 years was brought to the Hospital by his father Dev Kumar. She further deposed that she conducted the medical examination of the patient Shiv Chand and upon examination, she found that patient was conscious and oriented, vitals were stable and injuries were present over forehead, below right eye and over both legs and feet and crush injuries were present over the left foot. Thereafter, she started the treatment and referred the patient to doctor on duty, department of Orthopedics. The nature of injury was given by Sr. Resident Orthopedics. The MLC was Ex. PW7/A. During her cross-examination by Ld. defence counsel, she admitted that contents from point A to A1 of the said MLC were written by her in her handwriting. She also admitted that she had mentioned in the MLC that patient was taken by car driver as told by the father of the patient. She also admitted that she could identify the handwriting of doctor Rajesh Raman, Sr. Resident Orthopedics. She also admitted that the nature of injury as mentioned grievous was not written in her presence.
11. PW8 is SI Satbir, No. 1986/D, AIU, Outer District, Narela, Delhi. He is the investigating officer in the present case. He deposed that on 05.11.2006, on receipt of DD No. 40-B regarding an accident, he alongwith Ct. Dinesh reached at the JPN hospital. There he collected MLC of injured Deepu on which opinion on the nature of injury was reserved. He further deposed that he did not meet any witness there. Thereafter, vide DD No. 55 B, an information was received from ESI hospital, New Delhi, that one child has been admitted in the Page no.5 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini hospital. Thereafter, he alongwith Ct. Dinesh reached at ESI hospital, New Delhi and collected the MLC of injured child and nature of injury was opined by doctor as grievous. He also met the mother of the child namely Bimla. Thereafter, he recorded statement of complainant Bimla Ex. PW8/A. He further deposed that complainant Bimla handed over to him one piece of paper which mentioned the registration number of the offending vehicle i.e. Ford Icon Car No. DL-3CL-16.02. Thereafter, he prepared rukka Ex.PW8/B and handed over the same to Ct. Dinesh who went to PS for registration of FIR and got the FIR registered. Thereafter, Ct. Dinesh came back at the spot i.e. near Suman Chaudhary Nursing Home, Arya Samaj Road, Narela, Delhi and handed over to him the copy of FIR and original rukka. Thereafter, he prepared the site plan at his instance which was Ex.PW8/C. He further deposed that the he recorded the statement of another eye witness Rajesh Kumar who had handed over the paper bearing the registration number of the Car to complainant Bimla. Thereafter, he took the said paper piece into possession vide seizure memo Ex. PW8/D. Thereafter, he came back at the PS. He further deposed that from the registration number of the car, he inquired from the concerned authority about the registered owner of the car and he came to know that accused Mool Chand Saini was the registered owner of the said car. He further deposed he served a notice u/s 133 M.V. Act to the registered owner Mool Chand Saini and same was Ex. PW8/E, on which the accused Mool Chand Saini replied that he himself was driving the vehicle at the time of accident and his reply on the notice u/s 133 M.V. Act is Ex PW8/F. He further deposed that on the same day, accused Mool chand came to the PS alongwith the offending vehicle i.e. Ford Icon car and at the same time, he requested complainant Bimla to come to PS. Complainant Bimla came to PS and identified the accused and also the offending vehicle. He further deposed that after Page no.6 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini sometime, eyewitness Rajesh also came at the PS and identified the accused and also the offending vehicle. He took the offending vehicle into possession vide seizure memo Ex.PW8/G. He further deposed that accused also produced the documents of the vehicle i.e. RC and insurance and also produced his driving license which were taken into possession vide memos Ex. PW8/H and PW8/I. Thereafter, he arrested the accused Mool Chand and also conducted his personal search Ex. as PW8/J and PW8/K. Thereafter, accused was released on bail. Thereafter, he got mechanical inspection of the offending vehicle conducted which was Ex. PW5/A. After completion of investigation, chargesheet was prepared and filed in the court.
During his cross examination by Ld. defence counsel, he admitted that he had placed on record the piece of paper on which the number of offending vehicle was written. He admitted that the said paper piece which was seized vide seizure memo Ex. PW8/D was not on record. He further deposed that statement of eyewitness Rajesh was recorded at the spot. He also admitted that Bimla was not traceable and she is not residing on the given address. He further submitted that at the time of accident, the offending vehicle was coming from Ram Dev Chowk and was going towards Safiabad More Chowk. He admitted that the injured was walking on the side of the road from Ramdev Chowk and was also going to Safiabad More. He also admitted that the car had hit the injured from his back. He also admitted that Rajesh was not present at the spot at the time of preparing the site plan. He denied the suggestion that repair work was going on the road at the time of accident. He also admitted that there might have been heavy traffic at the time of accident on the road.
12. It is a matter of record that after examination of all the material witnesses, the prosecution evidence was closed on 29.08.14 and the Page no.7 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini statement of the accused u/s 313 Cr. P.C. was recorded on 11.11.2014 wherein accused stated that he is innocent and has been falsely implicated in the present case. However, he opted not to lead any defence evidence and thus the matter was listed for final arguments.
13. I have heard the arguments advanced by Ld. APP for the state as well as the Ld. Defence counsel and given my thoughtful consideration to the entire record.
14. In the present matter, the accused has been charged for the offences punishable under Section 279/338 IPC. To prove a case U/s. 279/338 IPC against the accused, the prosecution has to prove the following facts:-
a) that the accused was driving the vehicle i.e Escort Ford bearing registration no. DL-3CJ-1602;
b) that the accused was driving the said vehicle in rash and negligent manner and;
C) that while driving the said vehicle in the aforesaid manner, he struck against Shiv Chand @ Deepu S/o Dev Kumar aged 6 years who was walking on the road alongwith his mother Bimla as as result thereof, the injured Shiv Chand @ Deepu suffered grievous injuries.
15. In the present case there is only one eye witness examined by the prosecution i.e. PW3 Rajesh. To sustain the conviction of the accused, testimony of this witness is the most crucial. PW3 Rajesh stated that the accused was driving the abovementioned car in rash and negligent manner and without blowing the horn. However at the same time, this witness also stated in his cross-examination that the car was being driven at a normal speed. It is also not a case when the witness deposed that the spot of accident was either a crossing or a turn or an Page no.8 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini over crowded area where it was imperative upon the driver of any vehicle to blow horn. This averment of without blowing any horn was not mentioned by PW3 Rajesh in his statement made before the police and therefore it tantamounts to a material improvement for which there was no justification given from the side of witness as to why he did not mention the same before the police? It may further be appreciated that a bare perusal of the police statement of this witness shows that he stated that the car was being driven at a high speed whereas this witness in his deposition before the court stated that the car was being driven at a normal speed. It is further significant to observe that PW3 Rajesh did not mention in his police statement as to from which direction the victim was coming and it was only during his deposition in court, he stated that the boy was coming from the opposite side. The site plan was also not prepared at the instance of this witness and neither this witness was present at the spot when IO reached there for the first time. Infact the presence of this witness on the spot also become highly doubtful keeping in view the fact that neither the MLC mentions that the victim was brought by PW3 Rajesh to the hospital nor this witness was present at the spot when the police officials reached there. Another material and significant observation which is necessary to highlight is that PW3 Rajesh mentioned in his police statement that he handed over a piece of paper mentioning the number of the offending vehicle to Smt. Bimla but Rajesh never mentioned anything like this in his evidence before the court. Neither there is any such slip or piece of paper on record. It is also matter of record that the other eye witness Bimla remained unserved and untraceable despite repeated efforts.
16. It may further be appreciated that PW3 Rajesh mentioned that the victim was coming from the opposite side whereas PW8 ASI Satbir Page no.9 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini stated that the injured was also going from Ramdev Chowk to Safiabad more meaning thereby in the same direction in which the offending vehicle was moving. Overall there is no cogent evidence to show or prove specifically as to exactly in what manner the accused was negligent or rash in his driving. Neither it is a case where any allegation of driving in zig-zag manner or at high speed has been made nor it is a case where the vehicle was going on a wrong side.
17. In cases of road accident, wherein allegations of rash and negligent driving have been levelled against the accused, there is heavy burden upon the prosecution to establish clearly the factors showing the rash and negligent driving of the accused but as already discussed above, the testimony of PW3 Rajesh Kumar does not mention any detail such as width of the road, where the alleged accident occurred, presence of any traffic signal or any divider to show that it was a one way or a two way road or the actual speed of the offending vehicle at which it was being driven at the time of alleged accident and other relevant aspects. In this regard I would like to place reliance upon Abdul Subhan Vs State [133 (2006) DLT 562, Delhi High Court ] where in it was observed that merely coming to a conclusion that a vehicle was being driven at a high speed does not in itself mean the accused was driving a vehicle rashly or negligently. It laid emphasis upon many questions such as were the traffic light working or not? What is meant by high speed? Why there is no evidence with regard to tyre skid marks? What was the speed of the motorcyclist? It was held that in a criminal trial, burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved.
Page no.10 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini 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".
18. Now, I would like to refer to judgment Devender Vs. State 185(2011)DLT655, passed by High Court of Delhi, wherein, it is held that:
7.It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus. 8.The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer 9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequence. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to Page no.11 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
19. 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, 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 Page no.12 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini 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.
20. Therefore, the second aspect i.e. the accused was driving the aforementioned vehicle in rash and negligent manner could not be proved to the hilt by the prosecution.
21. Hence, in view of the discussion made above and after scanning the entire evidence, I have no hesitation to hold that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Accordingly, accused Mool Chand Saini is hereby acquitted of the said offences U/s. 279/338 IPC.
22. File be consigned to Record Room after necessary compliance.
(Sandeep Gupta) Announced in open court today Metropolitan Magistrate/Rohini/Delhi on 25th April, 2015.
Page no.13 of 13 FIR no.684/06 PS Narela U/s. 279/338 IPC State Vs. Mool Chand Saini FIR No. 684/06 U/s. 279/338 IPC PS: Narela State vs. Mool Chand Saini 25.04.2015 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 Mool Chand Saini is hereby acquitted of the offences U/s 279/338 IPC.
Accused is directed to furnish fresh bail bond for a sum of Rs. 20,000/- 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 Page no.14 of 13