Delhi District Court
State vs . Ram Kumar on 14 December, 2018
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-01(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.98/09
PS Prasad Nagar
State Vs. Ram Kumar
U/s 285/304-A IPC
CNR No. DLCT-02-000313/10
Unique Case ID No. 292462/16
JUDGMENT
(a) Sr. No. of the Case 292462/16 (b) Date of offence 14.05.2009 (c) Complainant Sh. Chander Prakash S/o Sh. Ram Sagar, R/o.
Village Khajua, PS Itwa, District Siddarth Nagar, U.P.
(d) Accused Ram Kumar S/o. Sh. Shiv Prasad R/o. R-2563, Baljeet Nagar, Patel Nagar, Delhi.
(e) Offence 285/304-A IPC (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 18.01.2010 (i) Date when judgment was 14.12.2018 reserved (j) Date of judgment 14.12.2018 FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 1 of 16 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Prasad Nagar against accused Ram Kumar for the offence U/s 285-304-A IPC.
2. It is the case of the prosecution that on 14.05.2009, at about 3:00 pm, at Dharam Gurudan Swaroopo Park, Ganga Mandir Marg, Delhi, accused being the driver of Gas Cylinder Van bearing registration no. DL-1LC- 3851 loaded with refilled gas cylinders got sitting a person namely Manoj Kumar Tiwari with the above said cylinders and accused negligently omitted to take such order with the above said gas cylinders which was sufficient to guard against any probable danger to human life due to which the said cylinders got fire as a result of which Manoj Kumar Tiwari received burn injuries and died and thereby committed an offence under Section 285/304-A IPC.
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused Ram Kumar in compliance of Section 207 Cr.P.C. Thereafter, charge under Section 285/304-A was framed against the accused Ram Kumar by the Ld. Predecessor of this court vide order dated 10.07.2012 to which he pleaded not guilty and claimed trial.
4. Thereafter, matter was fixed for PE.
PROSECUTION EVIDENCE
5. In order to prove the guilt of the accused, prosecution examined as many as 10 witnesses.
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6. PW-1 is Sh. Hukam Chand, (registered owner of vehicle i.e loaded Vikram bearing registration no. DL-1LC-3851), who deposed that on 15.05.2009, he received a notice u/s 133 Motor Vehicle Act given to him by IO/ASI Suresh Kumar which is Ex.PW1/A, that his abovesaid vehicle was being driven by accused Ram Kumar for last 2-3 years of the date of incident, that his abovesaid vehicle was with Pyarelal Gas Depot, near Narayana Depot on contract basis to supply the gas cylinder, however, his driver i.e accused Ram Kumar was driving the said vehicle, that IO of the present case informed him that on 14.05.2009, his abovesaid vehicle was set on fire due to leakage of cooking gas from the cylinders which was loaded in the said vehicle and due to said fire, his helper namely Harish Chander and his abovesaid vehicle was burnt badly and later on he died in the hospital due to the abovesaid burning. Thereafter, on 15.05.2009, he produced his abovesaid vehicle and accused before the IO, that IO seized the said vehicle vide seizure memo Ex.PW1/B, that IO arrested the accused Ram Kumar, that he got his abovesaid vehicle released on superdari vide superdarinama Ex.PW1/C, that the abovesaid vehicle is Ex. PW-1 and the RC of the above said vehicle is Ex. P-2.
7. In the cross examination, PW-1 deposed that accused Ram Kumar was driver only on his abovesaid vehicle on his behalf, that he used to pay the monthly salary to the accused, that the duties of Harish was to load and unload the cylinders on the abovesaid vehicles and to deliver the cylinders to the customers, that he had given Rs.1.5 lacs to the widow of Harish because Harish was his driver.
8. PW-2 is Chander Prakash, who deposed that he do not remember the exact date and month, however, in the year of 2009, it was summer season at noon time, he was present at his juice rehdi near Dhobi Ghat FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 3 of 16 at the corner of Dharam Guru Gyan Swaroop Park, Satya Nagar, Karol Bagh, that in the meantime, he saw that a Vikram three wheeler with registration number which he do not remember was loaded with cooking gas cylinders and out of the said cylinder one cylinder was burning and a boy who was sitting with the cylinders in the said vikram was trying to put off the fire and the said boy also burnt badly with the abovesaid fire of cylinder, that many public persons gathered there and they tried to put off the fire by pouring the water and sand upon the said burning cylinders of the said vehicle, that somebody informed the police, that police reached at the spot and took the abovesaid burnt boy to the hospital and the driver of the said vehicle took away his abovesaid vehicle from the spot, that IO inquired him and recorded his statement Ex.PW2/A, that he could not see the face of the driver who was driving the abovesaid Vikram Tempo.
9. PW-2 was cross examined by Ld. APP for the State. During cross examination by Ld. APP for the State, he admitted that the said incident took place on 14.05.2009 at about 3:00 pm, that the registration of the abovesaid Vikram Tempo was DL-1LC-3851, that the driver of the abovesaid Vikram was negligent because he got the abovesaid boy seated with cylinders at the back portion of Tempo due to which the said incident took place and he had stated the same in his statement Ex.PW2/A. He deposed that the accused was driving the said vehicle at the time of incident. He voluntarily deposed that he could not see the face of accused properly at the spot. He denied that he is not identifying the accused intentionally, deliberately being won over by the accused.
10. PW-2 was also cross examined by Ld. Defence Counsel for the accused.
During cross examination he deposed that the distance between his rehdi and the abovesaid spot was about 50-60 steps, he againsaid, the said Vikram Tempo was stopped near a dhaba, that he reached at the spot FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 4 of 16 after crossing the road, that when he reached at the spot he saw the said boy in burnt condition as he had received burnt injury, however, he was conscious, that he reached at the spot ,the said boy was standing near the said tempo on the road, that many public persons had gathered at the spot before his reaching, had told that the said boy was sitting with cylinders at the back portion of the tempo when the said cylinders got fire. He voluntarily deposed that he could not see the boy sitting with cylinders, that he had not read his statement before signing it. He admitted that no other public person present there were willing to give their statement to the police.
11. PW-3 is Sh. Ravinder Kumar, who deposed that his brother in law namely Hari Chand expired due to burn injuries, that he has identified his dead body and his statement in this regard is Ex. PW-3/A.
12. PW-4 is Dr. Sanjay Solanki, who deposed that on 14.05.2009, he was posted as a CMO at Ganga Ram Hospital, that he medically examined one person namely Harish Chand vide MLC Ex. PW-4/A, that the said person had received burn injuries which is mentioned in the MLC at point C.
13. PW-5 is Retired Ct. Kapoor Singh, who deposed that on 14.05.2009, he was posted as a Ct. at PS Prasad Nagar, that on receiving DD No. 24, he along with ASI Suresh Kumar reached on Ganga Mandir Marg, that it came to their knowledge that one person sustained burn injuries in gas cylinder supply van bearing no. DL-1LC-3851, that the said person was taken to Ganga Ram Hospital, that they reached at Ganga Ram Hospital and IO obtained the MLC of Harish Chand Tiwar who was declared unfit for statement, that they came back at the spot, that IO recorded statement of Chander Prakash, that IO prepared rukka and handed over the same to him for registration of case, that he came back at the spot FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 5 of 16 and handedover the original rukka and FIR to the IO. Thereafter, on 15.05.2009, he along with IO went to the house of Hukum Singh situated in Patel Nagar, that IO served one notice on him under Section 133 M.V. Act., that he gave the reply of the same, that they along with him went to the gas agency namely Pyare Lal Depot from where IO arrested the accused Ram Kumar and seized the above said vehicle and gas cylinder, that seizure memo of TSR/Vikram bearing registration number DL-1LC- 3851 Ex. PW-1/B, that seizure memo of RC is Ex. PW-5/A, that arrest memo and personal search memo of accused is Ex. PW-5/B and Ex. PW-5/C.
14. PW-6 is Ct. Vijay Kumar, who deposed that on 18.05.2009, he was posted as Ct. PS Prasad Nagar, that on receiving DD No. 15-A, he along with ASI Suresh Kumar reached at Safadarjung Mortuary, that PM of the dead body of Harish Chander was conducted and after recording statement of relatives of deceased, body of deceased was handed over to his relatives, that IO recorded his statement.
15. PW-7 is Ct. Naresh Kumar, who deposed that on 26.05.2009, he was posted as constable at PS Prasad Nagar, that IO seized the driving license of accused Ram Kumar and one kalandra under Section 146/196 M.V. Act was prepared against Hukum Chand, that seizure memo of DL is Ex. PW-7/A and DL is Ex. P-1.
16. PW-8 is SI Tarsem Kumar, who proved the FIR Ex. PW-8/A and rukka Ex.
PW-8/B.
17. PW-9 is Retired ASI Ali Asgar, who deposed that on 14.05.2009, he was posted as ASI at PCR van Oscar 60 from 8:00 am to 8:00 pm,that he along with his staff was coming after attending another call and reached near Guru Swaroop Park, Karol Bagh, Ganga Mandir Marg, that large FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 6 of 16 crowd was gathered there, that one boy was in badly burnt condition, that it came to his knowledge that he sustained burn injuries due to the fire which happened due to leakage of cylinders which were placed on Viram bearing no. DL-1LC-3851, that they took the injured to Ganga Ram Hospital, that the name of the boy/injured was Harish, that his statement was recorded.
18. PW-10 is T.U. Siddiqui, who deposed that he is qualified automobile engineer and he has mechanically inspected more than 10,000 vehicles, that he has experience about 20 years in this field, that on 17.05.2009, he mechanically inspected Vikram Delivery Van bearing registration number DL-1LC-3851 on the request of ASI Suresh Kumar of PS Prasad Nagar, that after conducting the mechanical inspection, he prepared his detailed report in this regard, the same is Ex. PW-10/A, that during mechanical inspection, he found rear body slightly in Smokey condition, one red Indian Oil Gas Cylinder in empty condition, that the vehicle was fit for road test, that offending vehicle is Ex. P-1.
19. It is pertinent to mention here that PW Dr. Vishal Singh was dropped from the list of witnesses vide order dated 16.10.2017 as prosecution failed to produce the said witness despite several opportunities being granted.
20. Thereafter, PE was closed and matter was fixed for SA. Statement of the accused Ram Kumar under Section 313 Cr.PC was recorded vide order dated 02.11.2017 by putting entire incriminating evidence to the accused. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused chose to lead DE in his Defence Evidence. However, vide separate statement dated 11.12.2017, accused close his defence evidence, accordingly, DE was closed and the matter was fixed for final arguments.
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21. Final argument heard on behalf of defence counsel as well as State and record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
22. Perusal of the record reveals that accused Ram Kumar was charged with the offence under Section 285/304-A IPC.
23. Section 285 IPC stipulates that:-
"Negligent conduct with respect to fire or combustible matter- whoever does, with fire or any combustible matter, any act so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person, or knowingly or negligently omits to take such order with any fire or any combustible matter in his possession as is sufficient to guard against any probable danger to human life from such fire or combustible matter, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both".
24. Section 304-A IPC stipulates that:-
"Causing death by negligence- whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 8 of 16 imprisonment of either description for a term which may extend to two years, or with fine, or with both".
25. 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.
26. These words i.e. "Rash" and "Negligent" have not been defined in the Indian Penal Code. However, as per Blacks Law Dictionary, 8th Edition the word 'Negligent' is characterized by the persons failure to exercise the degree of care that someone of ordinary prudence would have exercise in the same circumstances.
27. The Oxford Advanced Learner's Dictionary, 6th addition defined 'Rash' as doing something that may not be sensible without first thinking about the possible result.
28. 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.
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29. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the questions as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be a sufficient considering all the circumstances of the case.
30. It is the case of the prosecution that on 14.05.2009, at about 3:00 pm, at Dharam Gurudan Swaroopo Park, Ganga Mandir Marg, Delhi, accused being the driver of Gas Cylinder Van bearing registration no. DL-1LC- 3851 loaded with refilled gas cylinders got sitting a person namely Manoj Kumar Tiwari with the above said cylinders and accused negligently omitted to take such order with the above said gas cylinders which was sufficient to guard against any probable danger to human life due to which the said cylinders got fire as a result of which Manoj Kumar Tiwari received burn injuries and died and thereby committed an offence under Section 285/304-A IPC.
31. Perusal of the record reveals that there is only one eye witness namely Chander Prakash who was examined as PW-2. PW-2 Chander Prakash categorically deposed that he do not remember exact date and month of incident in question. He further deposed that he do not remember the registration number of the offending vehicle and many public persons were gathered at the place of incident, thereby giving inference that there were lot of public persons persons at the time of incident.
32. No plausible explanation have been given for not making other independent public witnesses except PW-2 to join the investigation.
33. The non-joining of public witnesses, except the PW-2 is fatal to the FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 10 of 16 prosecution case, particularly when no reasonable explanation has been given by prosecution for not joining of public witnesses and no efforts seem to have been made for joining other independent witnesses.
34. The Law in this regard has also been enunciated clearly in case titled as "Roop Chand Vs. State of Haryana" reported as CC Cases 3 (HC), wherein it was held that where the police has failed to join independent witnesses in the investigation despite their availability and further failed to take action against those who refused to take part in investigation nor their names were noted down by the police, the explanation of the police for not joining independent witnesses is an afterthought and liable to be rejected.
In the case of "Hem Raj v. State of Haryana" AIR 2005 SC 2110, it has been observed that :-
"The fact that no independent witness though available, was not examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. Amongst the independent witnesses one who was very much in the know of things from the beginning was not examined by the prosecution. Non-examination of independent witness by itself may not give rise to adverse inference against the prosecution. However, when the evidence of the alleged eye-witnesses raise serious doubts on the point of their presence at the time of actual occurrence, the unexplained omission to examine the independent witness would assume significance."
In the case of "Sahib Singh v. Sate of Punjab" AIR 1997 SC 2417, it has been held as under :-
FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 11 of 16 "Having gone through the record we find much substance in each of the above contentions. Before conducting a search the concerned police officer is required to call upon some independent and respectable people of the locality to witness the search. In a given case it may so happen that no such person is available or, even if available, is not willing to be a party to such search. It may also be that after joining the search, such persons later on turn hostile. In any of these eventualities the evidence of the police officers who conducted the search cannot be disbelieved solely on the ground that no independent and respectable witness was examined to prove the search but if it is found - as in the present case - that no attempt was even made by the concerned police officer to join with him some persons of the locality who were admittedly available to witness the recovery, it would affect the weight of evidence of the Police Officer, though not its admissibility."
In the case of "D. V. Shanmugham v. State of A.P.", AIR 1997 SC 2583 it has been observed as under : -
"It also appeared from the evidence of PW-2 and PW-8 that there were several other people who witnessed the occurrence and they are not the residents of that locality. If such independent witnesses were available and yet were not examined by the prosecution and only those persons who are related to the deceased were examined then in such a situation the prosecution case has to be scrutinised with more care and caution."
In the case of "Pawan Kumar Vs. The Delhi Administration", 1989 Cr.LJ 127 Delhi, in which it was FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 12 of 16 observed as follows :-
"Kalam Singh has to admit that at the time of the arrest and recovery of the knife, there was a lot of rush of public at the bus stop near Subhash Bazar. According to Jagbir Singh, he did not join any public witness in the case while according to Kalam Singh, no public person was present there. It hardly stands to reason that at a place like a bus stop near Subhash Bazar, there would be no person present at a crucial time like 7.30 pm when there is a lot of rush of commuters for boarding the buses to their respective destinations. Admittedly, there is no impediment in believing the version of the police officials but for that the prosecution has to lay a good foundation. At least one of them should have deposed that they tried to contact the public witnesses or that they refused to join the investigation. Here is a case where no effort was made to join any public witness even though number of them were present. No plausible from the side of the prosecution is forthcoming for not joining the Independent witnesses in case of a serious nature like the present one. It may be that there is an apathy on the part of the general public to associate themselves with the police raids or the recoveries but that apart, at least the IO should have made an earnest effort to join the independent witnesses. No attempt in this direction appears to have been made and this, by itself, is a circumstance throwing doubt on the arrest or the recovery of the knife from the person of the accused.'' In the case of "Sadhu Singh Vs. State of Haryana" 2000 (2) CC Cases HC 73, the Court took note of the fact that public witnesses were not joined in investigation to acquit the accused.
FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 13 of 16 In the case of "Massa Singh Vs. State of Punjab" 2000 (2) C.C. Cases HC 11, conviction was set aside on the ground that it was obligatory on the part of investigating officer to take assistance of independent witnesses to lend authenticity to the investigation conducted by him. It was observed as under :-
"The recovery has been effected from a public place. The Investigating Officer could have taken the trouble to associate an independent witness to get the attestation of such independent witness regarding the authenticity of the investigation conducted by him. This aspect of the case has not been properly appreciated by the Court below."
In the case of "Chanan Singh Vs. State" 1986 Crl. Rev. No.720 (P&H) 94, it was held that it was obligatory on the part of the police to join independent witnesses and the statement of official witness that witnesses refused to join investigation was rejected as an afterthought.
In the cases of "Gurbel Singh Vs. State of Punjab" 1991 Crl. Rev. No.504 (P&H) and "Dhanpat Vs. State of Punjab" 2000 (1) CC Cases HC 52, it has been held that non-joining of independent witnesses is fatal to the prosecution case and accused is entitled to benefit of doubt.
35. Further, PW-2 further categorically deposed that he could not see the face of the driver who was driving the offending vehicle. In the cross examination by Ld. APP for State, when his attention was drawn towards the accused, he deposed that he might be the driver of the offending FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 14 of 16 vehicle and thereafter, voluntarily deposed that he could not see the accused properly at the spot, thereby, he failed to identify the accused as driver of the offending vehicle.
36. In the cross examination by Ld. Defence Counsel, he deposed that he has not read his statement before signing it and he could not see the boy sitting with the cylinders.
37. By way of aforesaid testimony the only eye witness failed to prove the case of the prosecution and establish the guilt of the accused beyond reasonable doubt.
38. In view of the aforesaid facts and circumstances, appreciation of evidence, non-joining of other public witnesses, key/public witnesses failure to identify the accused as the driver of the offending vehicle, prosecution has failed to establish its case against the accused Ram Kumar beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and therefore, accused Ram Kumar stands acquitted of the offences under Section 285/304-A accordingly.
39. Necessary Personal Bond with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
40. File be consigned to the record room after due compliance.
41. Issue notice to legal heir of deceased to appear before DLSA, Central on 22.12.2018 for the purpose of compensation as per mandate of judgment passed by Hon'ble High Court in Satya Prakash's Vs. State : 203 (2013) DLT 652.
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42. Ahlmad is directed to send the ordersheet/proceedings to DLSA (Central) complete in all respect for necessary compliance for 22.12.2018.
Pronounced and Signed
SHILPI Digitally signed
by SHILPI JAIN
Date: 2018.12.14
in the Open Court on 14.12.2018 JAIN 17:02:36 +0530
(Shilpi Jain)
MM-01(Central)/THC/Delhi
14.12.2018
FIR No. 98/09 PS Prasad Nagar State Vs. Ram Kumar Page No. 16 of 16