Delhi District Court
State vs Baizu Dass on 25 July, 2023
DLND020008692012
IN THE COURT OF METROPOLITAN MAGISTRATE-04,
NEW DELHI, PATIALA HOUSE COURTS, NEW DELHI
- PRESIDED BY:
PARAS DALAL, D.J.S.
FIR No. 39/2012
PS Palam Village
U/S : 279/304A Indian Penal Code, 1860
State V/s Baizu Dass
Cr.C No. 847/2/2013 44527/2016
CNR No. DLND02-000869-2012
Date of Institution 30.10.2012
Complainant Jitender Badotra
S/o Babulal
R/o F-372, JJ Colony,
Inder Puri, New Delhi
Name, parentage and address of the accused Baizu Dass
S/o Sh. Zadu Dass
R/o E-313, JJ Colony,
Inder Puri, New Delhi
Offence complained off 279/304A Indian Penal Code
3/181 Motor Vehicle Act
Plea of Accused Not Guilty
Final Order Acquitted
Date of Judgment 25.07.2023
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Argued by: Sh. Ankit, Ld. APP for the State.
Mr. Subodh Kumar, Ld. Counsel for the accused.
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FIR No. 39 of 2012; P.S. Inder Puri Pages 1 of 12 State v. Baizu Dass
JUDGMENT
1. The SHO, Police Station Inderpuri has presented this charge-sheet against above named accused for initiation of trial U/s 279/304A Indian Penal Code, 1860 (for short "IPC") and Section 3/181 Motor Vehicle Act, 1988 (for short "MV Act").
Prosecution Story
2. Briefly stated, the case of the prosecution is that on 11.04.2012 at about 11:30 PM, complainant was driving in his car bearing no. DL 3CZ 4060, when one person was crossing the road from Dasghara bus stand NASC Complex Pusa towards Dasghara village, when one auto bearing no. DL 1RL 2681 (TSR) being driven in rash and negligent manner hit and injured that person. Complainant stopped the driver of the offending TSR who wanted to flee and his name was revealed as Baizu Dass. Complainant further helped the victim get into the offending vehicle/TSR to be taken to the hospital and since he saw the accident himself, he called the police. The said information was registered vide DD No. 43A and one Ct. Ramesh and SI Manish reached the spot, who recorded the statement of the eye witness at the spot. Based on the said information as well as MLC No. 60460/2012, RML Hospital, present FIR was registered and investigation ensued. The victim was identified as Sudhir and he died during treatment, accordingly Section 304A IPC was added. During further investigation, post mortem report was obtained, witnesses examined, offending vehicle was seized and mechanically inspected. The vehicle was found to have been registered in the name of Raju Dass and accused driver Baiju Dass was found having no valid driving license, accordingly Section 3/181 MV Act was also added whereas a separate Kalandra was prepared against owner Raju Dass for offence punishable under Section 5/180 MV Act. On completion of FIR No. 39 of 2012; P.S. Inder Puri Pages 2 of 12 State v. Baizu Dass investigation, final report was presented for trial against accused Baizu Dass.
Cognizance, compliance of Section 207 CrPC and plea of the accused
3. After presentation of charge-sheet, accused was summoned. Copy of the charge-sheet were supplied to accused u/S. 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Thereafter, charge u/s. 279/304A Indian Penal Code (for short 'IPC') was framed against the accused on 24.01.2013 to which he pleaded not guilty and opted to contest.
Prosecution evidence
4. In order to prove its case, prosecution examined three witnesses, which will be discussed later, however the exhibits of this case are as per the following table -
Witness exhibiting Identification Description
PW1 Jitender Badotra Ex.PW1/A Statement of the complainant
PW2 Arvinder Singh Ex.PW2/A Mechanical Inspection Report of
offending vehicle DL 1RL 2681
PW3 Ct. Ramesh Mark-PW-3/A Copy of FIR no. 39/12
Ex.PW3/B Site plan
Ex.PW3/C Arrest memo of accused Baizu
Ex.PW3/D Personal search memo of accused
Baizu
Ex.PW3/E Seizure memo of offending vehicle
Ex.PW3/F Seizure memo of DL of accused
Ex.PW3/G Seizure memo of RC of offending
vehicle
Ex.PW3/H Seizure memo of fitness certificate
of offending vehicle
Ex.PW3/I Seizure memo of permit of
offending vehicle
Ex.PW3/J Seizure memo of insurance of
FIR No. 39 of 2012; P.S. Inder Puri Pages 3 of 12 State v. Baizu Dass
offending vehicle
Ex.PW3/K Statement u/S. 161 CrPC of PW3
PW4 SI Sanjay Ex.PW4/A Carbon copy of notice u/S.91 CrPC
to accused to submit original
driving license
PW2 HC Shekhar Mark A Copy of Road Certificate
Case property Ex.P1 Offending vehicle bearing no. DL
1RL 2681
5. In order to prove the guilt of the accused, prosecution examined four prosecution witness (hereinafter referred to as 'PW'): PW1 Jitender Badotra deposed that on 11.04.2012 at about 11:30 PM, he was going via Todapur to East Patel Nagar in his vehicle number DL 3C Z4060 and when he reached NASC Complex, he saw accused driving his autorikshaw/ TSR and hit the pedestrian who was crossing the road from the side of Dasghara bus stand. He deposed that accused was driving his auto in rough manner and when specifically questioned, he stated that by 'rough' he means in 'zig zag manner as he was inebriated'. PW1 stated that the number of the TSR was DL 1RL 2681 and when accused driver tried to flee, he stopped him apprehended him and sent the injured to the hospital in the same TSR. PW1 stated to have called the police and after they reached in 2-5 minutes, he made his statement Ex.PW1/A. PW1 also identified the offending vehicle as Ex.P1. PW1 was cross examined as nil since defence failed to avail the opportunity to cross examine him.
6. PW 2 Arvinder Singh inspected the offending vehicle and he exhibited his report as Ex.PW2/A. FIR No. 39 of 2012; P.S. Inder Puri Pages 4 of 12 State v. Baizu Dass
7. PW3 Ct. Ramesh joined the investigation after DD No. 43A was registered. He stated that he accompanied SI Manish to the spot at about 11:35 PM where they met Jitender Badotra who stated to be the eye witness of the incident and IO/SI Manish recorded his statement. PW3 further stated that SI Manish got telephonic information of victim being admitted in Dr. RML Hospital and then they reached the hospital from where IO collected MLC of unknown person and returned to the spot. Based on the complaint Ex.PW1/A, IO prepared tehrir/ rukka and sent the same through him for registration of FIR. Following the registration of FIR, PW3 returned to the spot where IO prepared site plan and served notice to the owner of the offending vehicle who appeared in the police station with accused who was stated to be driving the offending vehicle. After interrogation, IO arrested the accused Baizu and he was released on police bail. During investigation, TSR, driving license (learner's license) of the accused, TSR registration certificate, permit and insurance were seized vide separate memos. PW3 then stated that his statement was recorded by the IO. PW3 was cross examined wherein he deposed that he did not see the accused and the TSR at the spot. PW3 further answered that he signed a total of 5-6 documents in the present case and notice to the owner of the offending vehicle was given by the IO on 11.04.2012. PW3 could not tell the time when owner of the offending vehicle came to the police station with the accused, but stated that he was arrested at about mid night. PW3 could not tell if there was any zebra crossing at the spot.
8. PW4 SI Sanjay Panghal deposed that he was Inspector MACT and this case was assigned to him. PW4 stated that he gave notice under Section 133 MV Act to the owner and carbon copy of the same is on record. PW4 deposed that accused had no valid driving license at the time of accident FIR No. 39 of 2012; P.S. Inder Puri Pages 5 of 12 State v. Baizu Dass and verified the other documents, wherein later he filed DAR and draft chargesheet.
Admission/ denial u/S. 294 CrPC and statement of accused u/S. 313 r/w 281 CrPC
9. Accused Arjun was called under Section 294 CrPC wherein he admitted the genuineness of notice u/S. 133 MV Act dated 12.04.2012 and 16.06.2012, arrest memo, personal search memo, seizure memo of TSR, seizure memo of fitness certificate, seizure memo of TSR permit, seizure memo of insurance note, superdginama, MLC, post-mortem report, dead body identification statements and dead body.
10. The statement of accused under Section 313 r/w 281 of the Code of Criminal Procedure, 1973 was recorded on 11.07.2022, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He stated that he has falsely been implicated in the present case. Accused did not wish to lead DE.
Final Arguments
11. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining all the material witnesses who have supported the prosecution version in material aspects. Accordingly, conviction of accused was prayed.
12. On the other hand, learned counsel for the accused argued that the prosecution has failed to prove its case beyond all reasonable shadow of doubts. Defense argued that the eye witness never stood the test of cross examination. It is also argued that there was no Test Identification Parade proceedings of the accused conducted after registration of FIR and there is FIR No. 39 of 2012; P.S. Inder Puri Pages 6 of 12 State v. Baizu Dass no explanation as to how the so called eye witness PW1 Jitender could identify accused in Court after 16 months of the incident. It is further argued that PW1 cannot be believed in his statement that offending vehicle was being driven in rough manner, since medical examination did not support accused was inebriated during the time of incident and further, if accused was inebriated, then why PW1 did not take the injured in his own vehicle and rather sent the injured in the same offending vehicle driven by the so called inebriated accused. The defence thus argued that PW1 is planted witness and his conduct does not support his own story.
Points of determination
13. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, this court is of the opinion that there are two points for determination, - firstly, if the accused Baizu Dass was driving the offending vehicle bearing no. DL 1RL 2681 and secondly, accused drove the offending vehicle in a rash and negligent manner and thereby caused death of Sudhir during treatment.
Findings
14. The facts leading to the incident needs to be discussed. As per PW1 Jitender the accident occurred at 11:30 PM and DD No. 43A was registered at 11:45 PM that a victim has been hit by an unknown vehicle and the vehicle has since fled. The said first entry in the police station makes no mention of the vehicle number or details of the victim. Also there is gap of 15 minutes between the accident and the DD no., although as per PW1 he immediately called the police. The same does not even record the mobile number from which the information was received. The MLC no. 26235 dated 12.04.2012 at 12:15 AM however records that the patient unknown was brought by accused Baizu Dass and same even purportedly carries his FIR No. 39 of 2012; P.S. Inder Puri Pages 7 of 12 State v. Baizu Dass thumb impression. There is further a considerable gap between the time of incident and time when injured was brought to the hospital. In the same sequence, the accused was produced before the police station by owner of the offending vehicle Raju Dass. The arrest memo, seizures, etc all pertains to the date 12.04.2012.
15. Next fact to be considered before this Court is statement of accused recorded on 11.07.2022, wherein the accused never denied that accident occurred or that he was driving the offending vehicle/ TSR. Accused further stated that he was driving on the road, but he was not driving the same in rash and negligent manner, rather the victim was having some quarrel and suddenly he jumped infront of the vehicle. PW1 however on the other hand stated that victim was crossing the road when the accused while driving his vehicle roughly caused the accident. PW1 clarified that by 'rough' he meant the vehicle was being driven in zig zag manner since he was inebriated.
16. Even the mechanical inspection report Ex.PW2/A confirms fresh damage to the offending vehicle. Even the photographs Ex.P1 shows damage to the front of the offending vehicle/ TSR which visible seems to have been caused by impact. The post mortem report of the victim Sudhir also confirms that the injuries to the victim was a result of blunt force which could be caused from road accident.
17. The first ingredient therefore stands established that the offending vehicle was being driven by the accused Baizu Dass at the time of accident. The only point of consideration now is whether the offending vehicle was being driven in rash and negligent manner. PW1 Jitender is the only witness to this fact and he stated that he saw the offending vehicle being driven FIR No. 39 of 2012; P.S. Inder Puri Pages 8 of 12 State v. Baizu Dass 'rough'. PW1 explained by rough he meant in zig zag manner since driver was inebriated. The reason for rough driving given by PW1 is thus intoxication by the accused. At this juncture, the records however prove to be contrary. The MLC of victim records thumb impression of the accused, which means from the spot he did drive the victim to the hospital in the same auto. Further, the accused was arrested and released on police bail at the same night of 11-12.04.2012. Even the arrest memo, seizure memo, etc. makes no mention of medical examination of accused having been conducted. It is quite natural that if the police officers would have sensed the accused to be in inebriated condition, they would not have sent him for medical examination. Further, it is unnatural to believe the version of the eye witness PW1, that despite knowing that accused was in inebriated condition, he would send the victim in the same auto to be driven by the same drunk accused. It appears in order to fortify his stand, the eye witness exaggerated the allegations.
18. Be that as it may, this Court deems it necessary to highlight that in the site plan there is no mention of zebra crossing being present. The site plan, although is stated to have been prepared at the instance of the eye witness does not bear his signature. The MLC of the victim is already on record and apart from establishing accused's presence in the hospital, the same also establishes that the victim himself was inebriated, as he smelled positive for alcohol. Even the death report of the victim records that family members stated victim to be habitual of consuming alcohol.
19. From the discussion above, few facts emerge. It cannot be said for certainty that accused was inebriated at the time of accident; the victim was inebriated at the time of accident; the eye witness PW1 deposed that accused was driving offending vehicle in rough manner i.e. zig zag manner FIR No. 39 of 2012; P.S. Inder Puri Pages 9 of 12 State v. Baizu Dass due to inebriation; there was no zebra crossing at the place of incident; the time of accident is 11:30 PM. From the facts above, the present incident seems to be a clear case of accident rather than an act done rashly and negligently with possible disregard to all the consequences or an act done with recklessness. It it judicially noticeable fact that an autorikshaw/ TSR have a single head light and that too not very bright. Although the duty is on the vehicle owner/ driver to maintain the rikshaw in proper condition and also take note of less light towards the road. Yet, the vehicles due to their metallic body and even adequate reflectors, reflects light thrown at them, however in cases of animal driven carts, pedestrians and even bicycles at times, there is minimum or no reflection of light and where there are inadequate street lights, vehicles are unable to spot the above on roads in proper time. Furthermore, the zebra crossings are painted in stripes, especially white to reflect and to caution the drivers of possible presence of pedestrians.
20. In the present case, neither the site plan nor PW1 or PW3 deposed that place of incident had adequate street lights, zebra crossing or marking or possible pedestrian crossing for the incoming traffic to be cautious. Further, the victim was in inebriated condition, which would further impair his judgment while crossing the road, even reducing his time to react or evade from possible accident. At this stage, the incident ought to be looked from the perspective of the accused. He happened to be driving at night in his TSR when usually lower traffic allows one to pick up speed. Accused had no caution sign or reflection of victim crossing the road and therefore, he cannot conclusively be held to be driving rashly and negligently. As regards the specific averment of factum of rash and negligent driving, PW1 stated that accused was driving in zigzag manner because he was inebriated, however the same has not been proved from any medical examination.
FIR No. 39 of 2012; P.S. Inder Puri Pages 10 of 12 State v. Baizu Dass Further, it is improbable that a three wheeler autorikshaw can be driven in high speed in zig zag manner. It is judicially noticeable fact that a three wheeler is highly susceptible to roll over and high speed, zig zag manner driving can probably lead to over-turning and even roll over to the side. This Court cannot say with absolute certainty that the accused was driving the offending vehicle in rash and negligent manner as deposed by PW1/ sole eye witness.
21. From the discussion above, the prosecution is unable to prove its case beyond reasonable doubt on both points of determination. It has not been established beyond reasonable doubt that the accused Baizu Dass was driving in rash and negligent manner which caused injuries to victim which ultimately caused his death.
22. The second charge is under Section 3/181 MV Act, since the accused was not found to be carrying a valid commercial driving license at the time of accident. The accused was however having valid license bearing no. DL- 0420120230526 which was valid for driving two wheeler as well as light motor vehicle. The Hon'ble Supreme Court of India in Mukund Devagan v. Oriental Insurance Company and Others, Civil Appeal No. 5826 of 2011, vide Order dated 03.07.2017 allowed driver license holder to drive light commercial vehicle upto the weight of 7500 KGs. In the present case, the accused was driving a TSR which by no imagination can weigh more than 7500 KGs and accordingly, the license is valid and even the said charge is not made out.
23. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of FIR No. 39 of 2012; P.S. Inder Puri Pages 11 of 12 State v. Baizu Dass preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
ORDER: ACQUITTED
24. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused, who is entitled to be exonerated of the charge against him in the present case. Accordingly, accused Baizu Dass is hereby acquitted of the offence punishable under Section 279/304A IPC. Accused Baizu Dass is further acquitted of offence punishable under Section 3/181 Motor Vehicle Act.
Digitally signedPARAS by PARAS DALAL DALAL 2023.07.25 Date:
16:05:42 +0530 Announced in Open Court (Paras Dalal) on this July 25, 2023 MM -04, New Delhi District Patiala House Courts, New Delhi FIR No. 39 of 2012; P.S. Inder Puri Pages 12 of 12 State v. Baizu Dass