Delhi District Court
Fir No.06/07 State vs . Ashok Tooka Ram Ps Tuglak Road on 28 October, 2020
FIR No.06/07 State vs. Ashok Tooka Ram PS Tuglak Road
IN THE COURT OF MS. NABEELA WALI, MM03 PATIALA HOUSE
COURTS : NEW DELHI DISTRICT NEW DELHI
State Vs. Ashok Tooka Ram
FIR No. 06/07
P.S. Tuglak Road
Date of institution of case: 02.11.2007
Date of reserving the judgment: 26.10.2020
Date of pronouncement of judgment: 28.10.2020
JUDGMENT
1. CC No. of the Case : 40401/16
2. Date of the Commission of offence : 06.01.2007
3. Date of Institution of the case: 02.11.2007
4. Name of the complainant : ASI Hari Pal Singh
5. Name of the accused : Ashok Tooka Ram s/o Sh. Tooka
Ram, r/o village Paras PS Bala
pur, District Akola (Maharash
tra) at present 24 Akbar Road,
AICC, Staff Quarter, New Delhi
6. Offence complained or proved : U/s 279/304A IPC
7. Plea of accused : Not Guilty
8. Final order : Acquitted
9. Date of final order : 28.10.2020
BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. The case of the prosecution as unfolded by the police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') is that on 06.01.2007 before 10:20 PM near Kothi NO.22, Akbar Road, RJM, New Delhi, within the jurisdiction of PS Tuglak Road, New Delhi, accused Ashok Tooka Ram while driving car bearing no. DL9CK 0004 in a rash and negligent manner so as to endanger life and personal safety of the others hit against motorcycle no. DL3SAV3329 and caused the death of driver of the motorcycle Pramod Singh.
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2. After investigation, chargesheet under section 173 Cr.P.C was filed. On the basis of the chargesheet and material on record, prima facie case was made out, therefore, notice for the offence punishable under section 279/304A IPC was framed upon the accused by Ld. Predecessor to which he pleaded not guilty and claimed trial.
3. To prove it case, prosecution examined eighteen witnesses.
4. PW1 Ct. Rakesh Kumar, PW2 Ct. Sardar Singh and PW3. Ct. Parveen Kumar deposed on similar lines and stated that on 06.01.2007, they were coming from Sri Fort alongwith the Minister Ms. Ambika Soni. When they reached near 22, Akbar Road and were about to enter into the residence of the minister, a motorcycle came at a high speed and struck against the car. As per the witnesses they all along with driver Ashok took the injured to the hospital in a gypsy. All three witnesses denied that the said accident happened due to rash act or negligence of the accused Ashok. All three witnesses denied making any statement to the police, when they were crossexamined by Ld.APP for the state.
5. Sh. Shelender Kumar was examined as PW4. He deposed that on 07.01.2007, he was posted as dispatched rider with Ms. Ambika Soni, Min ister/Member of Parliament, Government of India and car No. DL 9CK 0004 was seized by the IO vide seizure memo which is Ex. PW4/A bearing his signature at point A. As per the said witness, the car had dent on the back door left side. PW4 was cross examined by counsel for the accused.
6. Sh. N.C. Vishwas, Record Clerk, RML, Hosptial was examined as PW5. PW5 deposed that he has brough record pertaining to MLC PW5/A pre pared and signed by Dr. Prem Chaudhary who had left the service of the hosptial. He identified the writing and signature of the doctor. PW5 also Page No.2/11 FIR No.06/07 State vs. Ashok Tooka Ram PS Tuglak Road produced the record pertaining to the CT Scan. PW5 also verified the death report Ex. PW5/B prepared and signed by Dr. Bunty Kaur.
7. Sh. Jayant Mukherjee, was examined as PW6, who deposed that he had received a notice Ex. PW6/A, under Section 133 M.V. Act, and the reply bears his signature at point A . As per the reply of the said witness, the ve hicle bearing no. DL9CK0004 Ambassador was driven by accused Ashok Tukaram on the day of incident.
8. HC Baldev was examined as PW7. He deposed that he had recorded FIR no. 06/07 on the basis of rukka brought by Ct. Rakesh sent by ASI Harpal Singh. Copy of FIR is Ex. PW7/A and entry on rukka is Ex. PW7/B bear ing his signature at point A.
9. Doctor Rajeev Sharma was examined as PW7. He deposed that on 13.01.2007 at 12.00 noon vide PM report bearing no. 11/07, Doctor Rajeev Sharma, the then Senior Resident, had conducted the postmortem of the deceased Mr. Pramod Singh. He identified the signature of Doctor Rajeev Sharma. The PM report is Ex. PW7/A bearing the signature of Dr. Rajeev Sharma at point A.
10.HC Ashish Kumar was examined as PW8. He produced the original DD register (rojnamcha) pertaining to DD no.2 and 4 dated 06.07.2007which are Ex. PW8/A and Ex. PW8/B.
11. Sh. T.U. Siddiqui was examined as PW9. He deposed that on 08.01.2007, he had inspected an Ambassador Car No. DL9CK 0004 on the request of IO of PS Tuglak Road, and the mechanical inspection report of the said car is Ex. PW9/A which bears his signature at point A. PW9 further deposed, that he had also inspected Hero Honda Motorcycle bearing No. DL 3SAB 3329 on the request of IO of PS Tuglak Road. He found the vehicle in Page No.3/11 FIR No.06/07 State vs. Ashok Tooka Ram PS Tuglak Road question not fit for road test. The report of the bike is Ex. PW9/B which bears his signature at point A.
12.Ct. Kalyan was examined as PW10. He deposed that on 07.01.2007, he was posted with crime team and was called at PS Tuglak Road where he took photographs of the Hero Honda Motorcycle bearing No. DL 3SAB 3329 and of the offending vehicle bearing no. DL9CK0004. The witness identified the said photographs, which are placed on record as Ex. P1 to P10.
13.Ct. Jagat Singh was examined as PW11. He deposed that he collected the traces of paint enameled from the Ambassador car bearing no. DL9CK0004 and also took measurements of the dent on the said car. As per the witness he also tried to lift finger prints from Hero Honda bike, but could not do so.
14. HC Jitender and HC Devender Singh were examined as PW12 and PW13 respectively. They deposed that on 06.01.2007, their younger brother Pramod Singh met with an accident and died on 12.01.2007 at RML Hos pital, ICU. As per both the witnesses, the dead body of their brother Pramod Singh was handed over to them. As per PW13, the handing over memo is Ex. PW13/A having his signature at point A. as per both wit nesses, the statement regarding identification of the body was recorded and same is Ex. PW12/A and Ex. PW13/B respectively having their signa tures at point A. Both witnesses were not cross examined despite opportu nity.
15.Thereafter Ct. Umakant was examined as PW14. He deposed that on 13.01.2017, he alongwith ASI Harpal reached at RML Hospital for post mortem of the deceased and also got the necessary documents prepared. In Page No.4/11 FIR No.06/07 State vs. Ashok Tooka Ram PS Tuglak Road his crossexamination he stated that he did not remember whether the body was taken in government or private vehicle.
16.Ct. Rakesh Kumar was examined as PW15. He deposed that on the day of incident he reached the spot and saw the motorcycle of the deceased parked on the pavement. As per the witness he was informed that the in jured had been taken to the hospital. He further deposed that he searched for eye witnesses but found none, at the spot. He also deposed that he thereafter took the rukka for registration of FIR. The said witness was cross examined by Ld. APP with respect to the vehicle number of the mo torcycle of the deceased. The witness was cross examined by the Ld. Counsel for the accused wherein he stated that he did not interact with the guard present at the gate of the Kothi No. 22.
17. ASI Haripal Singh, was examined as PW16. He deposed that on 06.01.2007, at about 7.30 PM he received DD No. 20A regarding an acci dent. As per the witness he reached at the spot i.e. 22 Akbar Road where he found motorcycle bearing no. DL3SA B3329 in an accidental condition. As per the witness he could not trace any eye witness. He thereafter went to the hospital where the injured was taken. As per the IO he then met the injured and obtained his MLC from the doctor who opined that the injured was not fit for statement. The said witness has identified his signature at point A over rukka which is Ex. PW16/A. As per the IO the motorcycle was seized vide seizure memo Ex. PW15/A bearing his signatures at point B, and the paint of the vehicle was seized vide Ex. PW16/B and Ex. PW16/C and the said exhibits were sent to the FSL. As per the IO the DL of the accused was seized vide Ex. PW16/E. IO identified the photographs of the offending vehicle which are Ex. P1 to Ex. P5. The IO was cross ex amined by ld. APP for the State wherein he admitted preparing the site Page No.5/11 FIR No.06/07 State vs. Ashok Tooka Ram PS Tuglak Road plan Ex. PW16/F having his signatures at point A. The said witness was cross examined by Ld. Counsel for the accused.
18.Inspector Mahender Singh was examined as PW17. He deposed that on 07.01.2007, he was working as incharge crime team New Delhi District and he alongwith Ct. Jagat Singh (finger print expert) and photographer Ct. Kalyan went to PS Tuglak Road where they inspected one accidental mo torcycle bearing no. DL3SAC 3329 and Ct. Kalyan clicked the photo graphs of the motorcycle and Ct. Jagat inspected the motorcycle for finger prints. Thereafter, they alongwith IO went to 22, Akbar Road where he in spected one car bearing no. DL9CK0004. As per PW17, he prepared a re port in this respect, which is Ex. PW17/A bearing his signature at point A.
19.Ms. Ambika Soni was examined as PW18. She deposed that on 06.01.2007 at about 7.00 pm, she was returning to her residence in her govt. vehicle being driven by her driver Ashok Tukaram. As per the wit ness, when her vehicle was about to enter her residence, one motorcycle hit against the car, she was traveling. The witness in her crossexamination, admitted that the driver was not rash or negligent.
20.Thereafter, prosecution evidence was closed and subsequently all the in criminating evidence was put to the accused and his statement under sec tion 313 r/w section 281 Cr.P.C. was recorded. Accused admitted driving the offending vehicle, however denied being rash and negligent, while do ing so. He also did not lead any evidence in his defence.
21. During final arguments, it was argued by Ld. APP for the State, that the case against the accused stands proved in view of the testimony of prosecu tion witnesses. Accordingly, he argued that the offence against accused is proved beyond reasonable doubt and the accused deserves to be convicted.
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22.On the other hand, the Ld. defence counsel argued that the prosecution has failed to prove its case against the accused. The Ld. Counsel has fur ther submitted that no eye witness has supported the case of the prosecu tion. The Ld. counsel had further argued that the factum of accused being rash or negligent in his act, could not be proved by the prosecution.
23.I have heard the learned APP for the State and learned counsel for the ac cused at length. I have also perused the entire judicial record and carefully appreciated the evidence lead by the prosecution.
24.In the instant case, the accused is alleged to have committed the offences punishable u/s 279/304A IPC. The relevant sections are read as under: Sec 279 IPC:
"Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other per son, shall be punished with imprisonment of either de scription for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
Sec 304A IPC: Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
25.Hence, the prosecution is required to prove that the accused acted rashly or negligently so as to endanger human life or cause hurt or injury to any person for offence U/s. 279 IPC. Furthermore in order to prove offence punishable u/s 304A IPC, the prosecution in addition to above facts, is also required to prove that by doing the aforesaid act in rash or negligent man ner, accused caused the death of the deceased.
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26.It is settled proposition of the law that burden lies upon the prosecution to prove its case beyond any reasonable doubt. It is the case of the prosecu tion that while driving the offending vehicle in rash or negligent manner, accused committed the above said offences. Prosecution in order to prove that accused was responsible for commission of the above said offence, has examined eighteen prosecution witnesses. It is pertinent to mention here that PW1, PW2, PW3 and PW18 are eyewitnesses to the incident and the remaining witnesses are merely formal in nature. Thus, it is apparent that the prosecution is relying on the testimony of PW1, PW2, PW3 and PW18, to prove the charges against the accused.
27. PW1,PW2 and PW3 in their examinationinchief have stated that it was the motorcycle driven by the deceased, that was coming at high speed and struck against the car driven by the accused. All three witness have denied that accused was rash or negligent in his act. Above witnesses have also denied making any statement to the police, regarding the car being driven at high speed by the accused. They have also denied the suggestion by Ld.APP that the accused took a sudden turn, hence causing the accident. Also all three witnesses have stated that other vehicles had halted, while the car driven by the accused, was entering the residence of the minister.
28.Similarly PW18, also deposed that it was the motorcycle which hit her car, being driven by the accused. During her crossexamination, she also deposed that the speed of the car was about 5km/hour, as they were about to enter her residence. She also admitted the suggestion that the accident had not been committed by the rash or negligent act of the driver.
29.Also the mechanical inspection report of the car Ex.PW9/A mentions damage to the vehicle on the left side, however the vehicle is stated to be in onroad condition. Whereas, the mechanical inspection report of the bike Page No.8/11 FIR No.06/07 State vs. Ashok Tooka Ram PS Tuglak Road PW9/B, mentions damages to the bike on the front side, and the vehicle is stated to be in offroad condition.
30.The Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 while dealing with a case u/s 304A IPC observed:
"7. ...Culpable negligence lies in the failure to exercise rea sonable and proper care and the extent of its reasonable ness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. 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 de pends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means haz arding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused".
31. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The crim inality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. 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 ei ther to the public generally or to an individual in particular, which, 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.
32.As far as rashness and negligence in driving the vehicle is concerned, the Hon'ble Apex Court in the judgment of "State of Karnataka vs. Satish"
Page No.9/11FIR No.06/07 State vs. Ashok Tooka Ram PS Tuglak Road SCC (CRI) 1508 and the Hon'ble Delhi High Court in case titled "Abdul Subhan vs. State" 2007 (1) CCC (HC) 414 observed that in the absence of material facts and circumstances indicating that the accused driver acted in a rash or negligent manner, he cannot be held guilty of the offence.
33.The Hon'ble Apex Court in the Judgment titled as Miyam vs. State of A.P. (2000)7 SCC 72, observed as follows:
"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 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 passen ger fell down from the bus while boarding the bus, no pre sumption of negligence can be drawn against the driver of the bus".
34.Further, the Hon'ble Delhi High Court in Kishor Chand Joshi Vs. State (Cr.R.P No. 627/16), delivered on 12.11.2018 has held as follows:
"A witness can depose as to the manner of driving or speed at which the vehicle was being driven, but not ren der an opinion on 'rash and negligent'. High speed by it self may not in each case be sufficient to hold that a driver is rash and negligent".
35.Similarly in the present case, prosecution has failed to show that the of fending vehicle was being driven, in a manner which was rash or negligent. Furthermore, no skid marks or tyre marks have been obtained from the spot by the IO, to show that the vehicle was being driven in a manner which was rash and negligent. Also none of the eyewitnesses have sup ported the case of the prosecution.
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36.Accordingly, based on the abovedone discussion, this court is of the opin ion that prosecution has failed to prove rashness or negligence on part of the accused while driving the offending vehicle, leading to alleged acci dent.
37. Thus, in view of the above said findings, this court is of the considered opinion that the prosecution has failed to prove its case u/s 279/304A IPC against accused beyond reasonable doubt. Accordingly, accused Ashok Tooka Ram S/o Sh. Tooka Ram is hereby acquitted from the offences pun ishable u/s 279/304A IPC.
Ordered Accordingly.
Announced in open court
on 28.10.2020 (Nabeela Wali)
MM03(ND)/PHC/28.10.2020
Certified that this judgment contains 11 pages and each page bears my signatures.
(Nabeela Wali) MM03(ND)/PHC/28.10.2020 Page No.11/11