Delhi District Court
Unknown vs State (Govt Of Nct Of Delhi)" on 25 February, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, THC, DELHI,
State v. Sher Singh
FIR No. 514/98
PS Paschim Vihar
U/s 279/337304A IPC & 3/181 MV Act
JUDGMENT
C C No. : 1163/2/10
Date of Institution of the case : 26.02.1999
Date of Commission of Offence : 03.08.1998
Name of the complainant : Chand Ram
s/o Hardwari
r/o Jhuggi No. W116A/225
Camp No.4, HMB, Jawalapuri, Delhi
Name & address of the accused : Sher Singh
S/o Richhpal Singh
r/o Village & PS Kalanore District
Rohtak, Haryana
Offence complained of : U/s 279/337/304A IPC
3/181 MV Act
Plea of accused : Pleaded not guilty
State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act
FIR No.514/98
Final Order : Acquitted
Date of reserve for judgment : 19.02.2014
Date of announcing of judgment : 25.02.2014
JUDGMENT
By this judgment the court shall dispose off the case u/s 279/337/304A IPC & 3/181 M V Act.
In brief the case of prosecution is as under:
1) That on 03.08.1998 at about 11.30 pm at Rohtak Road near Nagloi Depot, Delhi, within the jurisdiction of PS Paschim Vihar, the accused Sher Singh was driving a truck bearing no. HR 16 6601 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving he hit against one twowheeler Vikki bearing no. DDX 8486 and caused simple injuries to one Chand Ram and caused death of pillion rider Raj Singh @ Rajey. The accused was also found driving the said truck without any driving license and thereby, the accused has committed an offence punishable u/s 279/337304A IPC & 3/181 M V Act.
2) The charge sheet was filed against the accused in the court. Documents were supplied to him. Thereafter notice was served upon the accused u/s State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 279/337/304A IPC & 3/181 M V Act to which accused pleaded not guilty and claimed trial.
3) In order to prove the charge against the accused, the prosecution examined 9 witnesses namely (1) Chand Ram (2) Dr. K. Goyal (3) Hari Chand (4) J. S. Pawar (5) ASI Om Prakash (6) Bir Singh (7) ASI Hari Prakash (8) Ct. Randhir Singh (9) Ct. Praveen Kumar.
4) PW1 Chand Ram was the star witness of the prosecution being the sole eye witness and the injured. However, this witness has denied the entire prosecution story in the testimony. He had deposed that on 03.08.1998 at about 9.00 pm, he along with his neighbour Raje were going on a Vikki. Witness was driving the vehicle while Raje was the pillion rider. Witness deposed that he had borrowed the vikky from his neighbour Kartar Singh but he could not recall the number of the same. He deposed that they were going from jhuggis to meet an acquaintance of Raje across the Rohtak Road. When they reached at the crossing across DTC depot Nangloi, one truck came at a very fast speed from Delhi side and hit their vikki from behind. At that time, he had stopped the Vikki on the road to give way to some vehicle coming from Nangloi side. Due to the impact Vikki and the witness fell on the road. Raje died on the spot. He deposed State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 that truck remained on the spot after hitting the Vikki. However he did not see the truck driver as after the accident he had become unconscious. He also deposed that he did not remember the number of the truck. He deposed that Tempo Tara 608 bearing no. HR 16 6601 was taken in possession by police vide memo Ex. PW1/B. The Vikki Luna was seized vide seizure memo Ex. PW1/C. Witness could not recall whether the Jamatalshi of the accused was conducted, however he admitted that Jamatalshi memo Ex. PW1/D bearing his signature at point X. He further deposed that photographs of the spot were taken by the photographer which are Mark A to D. He further deposed that he had received injuries on his head and legs.
5) In the cross examination by Ld. Defence Counsel, the witness stated that he did not have any driving license as he is from village. He further stated that Vikki in question belongs to his brother. He stated that at the time of accident, traffic was passing through the road and they were going straight. He denied the suggestion that the accident took place as he was driving the vicky at a very fast speed and due to fast speed it got skidded and the accident took place.
State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98
6) PW2 Dr. K. Goel deposed that on 04.08.1998 he had conducted the postmortem on the body of Rajey aged 40 years sent by SI D. P. Singh PS Paschim Vihar with the alleged history of road side accident. He exhibited his detailed report as Ex.PW2/A and he further deposed that in his opinion all the injuries were antemortem and were consistent with road traffic accident. Cause of death was craniocerebral injuries. This witness was not cross examined by the Defence Counsel.
7) PW3 Hari Chand deposed that he is the owner of the tempo bearing no.
HR 161601. He had not brought the documents of the tempo in the court. He submitted that he does not know whether vehicle was released to him on superdari but admitted that the said tempo was in his possession. Photographs of the tempo are Ex. P1 to P4 and negatives are collectively Ex. P5. He deposed that notice under Section 133 M V Act was given to him on 05.08.1998 and he gave his reply on the same which is Ex. PW3/A bearing his signature at point A. He admitted that he had told the police that at the time of accident the truck was being driven by accused Sher Singh. He identified the witness correctly.
8) In the cross examination, he stated that accused Sher Singh was his employee from 1993 to 1996, He denied receiving any notice from the IO State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 and giving reply to the same. He stated that he had seen the DL of the accused Sher Singh issued by transport authority Bhiwani. He denied that he had changed the vehicle after the accident. He denied the suggestion that the driver used to leave the vehicle unattended in between the journey. He further denied the suggestion that the accused was driver of his brother and not his. He denied the suggestion that he was deposing falsely. In the reexamination by Ld. APP for State, witness admitted that notice under Section 133 M V act exhibit PW3/A was received by him.
9) PW4 J. S. Pawar deposed that on 05.08.1998 he had mechanically inspected the TATA Tempo no. HR 16 6601 at the request of SI Brij Pal Singh . His detailed report is Ex. PW4/A bearing his signature at point A. He deposed that there was fresh damage on the bonnet as well as on the bumper of the vehicle. He further deposed that on the same day, he had done the mechanical inspection of moped no. DDX 8486 and his detailed report is Ex. PW4/B bearing his signature at point A. He deposed that moped was totally damaged and was converted into scrap and was not fit for road test.
10)In the cross examination, he stated that he had inspected the above said vehicle. He denied the suggestion that he had prepared a false report. State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98
11)PW5 ASI Om Prakash deposed that on 03.08.1998 he was posted at police post Mianwali PS Paschim Vihar. He had received the DD No.35 about the accident. He along with Ct. Praveen went to the spot and SI Brij Pal was already there. He prepared the naksha majroobi of the injured and sent him to DDU hospital for medical examination. After medical examination, he handed over th MLC to the IO.
12)PW6 Bir Singh deposed that he had identified the dead body of deceased Raje who was his brother in law. He deposed that IO had recorded his statement Ex. PW6/A. Dead body was handed over to him after postmortem report vide receipt Ex. PW6/B.
13)PW7 ASI Hari Prakash deposed that on 05.08.1999 he was posted at PS Paschim Vihar Police Post Mianwali Nagar. On that day, he was on emergency duty. He deposed that the accused Sher Singh was produced by his owner Hari Chand at Police Post in his presence. IO obtained the reply on the notice under Section 133 M V Act. He also seized the documents of the vehicle i.e RC and copies of insurance vide memo Ex. PW7/A bearing his signature at point A. The accused was arrested and his personal search was conducted vide memo Ex.PW7/B.
14)In the cross examination, the witness deposed that the owner Hari Chand State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 had come to the police post at about 6.00 pm. SI Brij Pal and one DD Writer was also present at that time. He denied the suggestion that no proceedings had taken place in his presence.
15)PW8 Ct. Randhir deposed that on 03.08.1998 he was posted at police post Mianwali Nagar PS Paschim Vihar and was on duty on that day from 8.00 pm to 8.00 am. At about 11.45 pm, he got information via wireless from West Control Room. Lady Ct. Preeti informed him that one motorcycle rider had come under the truck in front of Jawlapuri, DTC depot and has died. It was reduced to writing at DD No. 35. Copy of the same was given to Ct. Praveen for handing it over to HC Om Prakash and SI B. P. Singh who were busy in the investigation regarding DD No. 32. He exhibited the copy of DD No. 35 as Ex. PW8/A.
16)PW9 Ct. Praveen deposed that on 03.08.1998, he was posted at Police Post Mianwali Nagar PS Paschim Vihar. On that day at about 11.45 pm, He had received information regarding accident and on that he along with HC Om Prakash reached at the spot. After sometime SI Brij Pal also arrived at the spot. They saw that one tempo no. HR 16 6601 was standing in accidental condition. One Vikki no. DDX 8486 was lying beneath the said tempo. A wheel of the said Vikki was also lying nearby. State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 Name of the deceased was revealed as Raje @Raj Singh. One person Chand Ram was sitting nearby. SI Brij Pal recorded the statement of complainant Chand Ram. He prepared rukka and handed it over to the witness for registration of case. He went to PS to get the case registered and returned back at the spot and handed over the original rukka and copy of FIR to the IO. Thereafter, as per the instructions of the IO, he took the dead body to the mortuary of civil hospital where the dead body of the deceased was handed over to the relatives after postmortem vide memo Ex. PW6/B bearing his signature at point B.
17)PW10 Inspector Brij Pal deposed that on 03.08.1998 he was posted as SI at PS Paschim Vihar. DD No. 35 was marked to HC Om Prakash and Duty Officer also informed the witness about the same. He reached at Rohtak Road, opposite Nangloi depot where he met with HC Om Prakash and Ct. Praveen. He found that the vehicle i.e TATA Truck bearing no. HR 166601 was on the divider of Tpoint and one moped and dead body was lying under the right side of wheel. One person Chand Ram was also sitting on the pavement nearby. He was also injured. The witness made inquiry from him and recorded his statement. He prepared rukka Ex. PW10/A and handed it over to Ct. Praveen Kumar for registration of FIR. State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 He went to the PS and got the FIR registered. Thereafter, he came back at the spot and handed over copy of FIR and original rukka to the witness. Witness further deposed that he prepared the site plan Ex. PW10/B. He also called the photographer and got the photographs of the spot clicked. Four photographs are already Mark A to D. Thereafter, vehicles were taken into possession by the police . Dead body was sent to Mortuary for postmortem through Ct. Praveen. HC Om Prakash went to DDU Hospital along with injured Chand Ram for medical examination. He recorded the supplementary statement of injured Chand Ram. In the morning inquest proceedings were conducted. Dead body was identified by two relatives namely Veer Singh and Inder. After postmortem body was handed over to the said relatives. PW10 further deposed that on 05.08.1998 he again joined the investigation. The owner of the truck came at police post Mianwali Nagar along with driver Sher Singh who was driving the truck at the time of the accident. Notice under Section 133 M V act was served upon the owner which is Ex.PW10/C. RC and insurance of the truck was taken into possession. The accused was arrested and his personal search was conducted. The complainant Chand Ram had also had also came at the police post during that time and identified the accused in his State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 presence. Thereafter, the accused was arrested. Witness further deposed that he got both the vehicles mechanically inspected and recorded the statement of mechanical inspector. He recorded the statement of witnesses and after completion of investigation, he submitted the chargesheet in the court.
18)In the cross examination by the Defence Counsel, witness deposed that viscera of the deceased was not sent for examination as the same was not kept by the doctor. He admitted that the said road i.e spot in question was not Rohtak Road. He admitted that the proceedings were conducted while sitting on the footpath near the spot. He remained at the spot till 3.003.15 am. There was street light at that time. He admitted that he had not asked for driving license of the accused and volunteered that the accused was not having any driving license. He admitted that he had not taken any action against the owner Hari Chand under Section Motor Vehicle Act in this regard. He further stated that the complainant had identified the accused at the time of his arrest. He admitted that he had not taken any permission for TIP. He denied the suggestion that the accused is innocent.
19) Thereafter PE was closed. Statement of accused was recorded wherein State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 accused pleaded innocence but did not lead any evidence in his defence.
20)I have heard the arguments addressed by the prosecution and the Ld. Counsel for accused. I have gone through the documents on record.
21)Ld. Counsel for the accused has submitted that the prosecution has not been able to prove the guilt of the accused as the sole eye witness has denied the entire story of the prosecution and has failed to identify the accused. He further submits that the testimony of PW3 Hari Chand cannot be made the basis of conviction as he was not present at the spot. Also he has not placed on record any proof to show that the accused was working as a driver with him at the relevant time.
22)To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
23)Before proceeding further, let us discuss the meaining of the expressions "rash" and "negligent". These words i.e "rash" and "negligent", have not State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition, the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
24)In State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Hon'ble High Court of Himachal Pradesh, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
25)The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S.N. Hussain v. State of Andhra State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 Pradesh", AIR 1972 SC 685 as under :
"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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted".
It has been further observed in S.N. Hussain (Supra) as under:
"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".
26) In the case at hand, the star witness of the prosecution and the sole eye witness PW1 Chand Ram has failed to support the prosecution story. He had failed to identify the accused. In his testimony before the court he has categorically denied having seen the driver of the offending truck. He could not even recall the registration number of the offending vehicle. The State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 relevant portion of his testimony is reproduced verbatim here "One truck came at a very fast speed from Delhi side ... I do not remember the truck number now...I do not know who was driving the truck..I did not see the truck driver. After the accident, I became unconscious and so could not see the driver".
27)PW1 has taken complete departure from his statement as recorded on 04.08.1998 by the IO wherein he had not only provided the registration number of the truck but also stated that he could identify the truck driver if produced before him. Hence, testimony of this witness is not reliable. Also there is a lapse on the part of the investigating agency as it failed to get conducted the TIP of the accused, despite the statement of Chand Ram (Ex. PW1/A) that he could identify the accused if produced before him.
28)Ld. Counsel for accused has relied upon the case "Jagdish Prasad vs State (Govt of NCT of Delhi)", 184 (2011) DLT 285 The facts of the present case are similar to the case law referred to. It was held by the Hon'ble High Court that the accused is entitled to benefit of doubt when the sole eye witness has not identified him as the driver of the truck. It was observed that the registered owner of the vehicle in question has State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98 failed to produce any record that the accused was driving the truck on the relevant day. It was held, "otherwise also, a possibility cannot be ruled out that PWs Harvinder Singh was himself driving the truck at the time of accident and in order to save himself as the actual truck driver, he has falsely named the accused as the driver of the truck. Thus in my view the testimony of PW5 is not sufficient to conclude beyond doubt that the revisionist Jagdish Prasad was driving the truck in question."
29)It is cardinal principle of law that the guilt of the accused is to be proved beyond reasonable doubt and even an iota of doubt would entitle the accused to be acquitted. The star witness of the prosecution has denied the prosecution story and the testimony of PW3 is not sufficient to conclude beyond doubt that the accused was driving the truck in question at the relevant date and time. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Thus in view of the above discussion and in light of aforementioned case laws, the court is of the view that he is entitled to be acquitted. Accordingly, accused Sher Singh is acquitted under Section 279/337/304AIPC.
State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98
30)PW10 i.e IO Inspector Brij Pal has admitted that he had not asked for the driving license for the accused and also that he had not taken any action against the owner Hari Chand under the Motor Vehicles Act. Hence, due to this lapse on the part of the investigating agency, prosecution has failed to prove the offence under Section 3/181 MV Act. Accordingly, accused Sher Singh is acquitted under Section 3/181 MV Act.
31)As per section 437A Cr.P.C accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/ with one surety of like amount. Time sought to furnish bail bond. Granted.
ANNOUNCED ON 25.02.2014 (SAUMYA CHAUHAN) MM07(West)/ Tis Hazari Court /25.02.2014 Certified that this judgment contains 17 pages and each page bears my signatures.
(SAUMYA CHAUHAN) MM07(West)/ Tis Hazari Court /25.02.2014 State v. Sher Singh U/s 279/337/304A IPC & 3/181 M V Act FIR No.514/98