Delhi District Court
State vs . Anil Kumar on 6 February, 2015
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Anil Kumar
FIR NO: 124/07
P. S. Sangam Vihar
U/s 279/304 A IPC
JUDGMENT
Sl. No. of the case : 331/2 (30.10.2013)
Date of its institution : 26.11.2007
Name of the complainant : Sh. Brijpal Singh, S/o Late Sh.
Balram Singh, R/o B30,
Vishwakarma Colony, Lal Kuan, New
Delhi.
Date of Commission of offence : 7.2.2007
Name of the accused : Anil Kumar, S/o Sh. Mahender Singh,
R/o Village Ramgarh, PS Nanda,
Distt Rewari, Haryana.
Offence complained of : Section 279/304 A IPC
Plea of accused : Not Guilty
Case reserved for orders : 6.2.2015
Final Order : Acquitted
Date of Judgment : 6.2.2015
State Vs. Anil Kumar 1/7 FIR no. 124/07
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Anil Kumar pursuant to a charge sheet filed by the Police Station Sangam Vihar under section 279/304 A Indian Penal Code, 1860 (for short 'IPC') subsequent to the investigation carried out by them in FIR no. 124/07.
2. Shorn of unnecessary details; the case of the prosecution is that on 7.2.2007 on receipt of DD no. 31, PP Pul Prahlad Pur, ASI Satvir Singh alongwith Ct. Kamal and Ct. Pratham Singh reached at the spot i.e MB road near Shamshan Ghat, ICF cut where one person in the name of Bhim Raj Bisht was found in dead condition whose head was crushed and one motorcycle bearing no. DL 8S AK 3885 was also found standing in accidental condition and one dumper no. HR 55C 3556 (for short referred to as 'offending truck') was also found beside the road. IO/ASI Satvir got photographs of the spot and sent the dead body to AIIMS mortuary. In the meantime, one eye witness Brij Pal Singh also met who gave his statement that on 7.2.2007, he alongwith his cousin Gajender Singh Bhandari was coming to his house and his brother Bheem Raj Bisht was driving another motorcycle bearing no. DL 8SAK 3885. At around 11.30 pm, when they reached near ICD cut, Lal Kuan, MB road, one dumper bearing no. HR 55C 3556 came at a high speed and in a rash and negligent manner and hit the motorcycle of his brother. Due to this, his brother came under the offending truck. This statement formed the foundation of present FIR. Thereafter, IO/SI Satvir embarked upon the investigation into the present case wherein he recorded the statement of some material witnesses namely HC Ombir, Ct. Kamal, Gajpal Singh, Brij Pal, Ct. Pratham Singh etc and also collected certain documentary evidence.
3. It was based on the above investigation, the prosecution proceeded against the accused. Accused was formally served with notice for offence under section 279/304 State Vs. Anil Kumar 2/7 FIR no. 124/07 A IPC to which he pleaded not guilty and claimed to be tried.
4. The prosecution exhibited number of documents which included statement of complainant Ex.PW5/A, FIR Ex.PW1/A, dead body identification statement Ex.PW3/A.
5. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all, five witnesses were examined. PW 1 HC Ombir deposed about registration of FIR upon rukka and got exhibited the same as Ex.PW1/A and Ex.PW1/B. He was not cross examined by Ld. Counsel for the accused despite according opportunity. PW 2 Ct. Kamal deposed about his involvement in the investigation with ASI Satbir. He also proved photographs of motorcycle, dead body of deceased, truck/dumper as Ex.P1 to Ex.P10. He was cross examined by Ld. Counsel for the accused. PW 3 Sh. Gajpal Singh deposed about identification of dead body of his brother and got exhibited the same as Ex.PW3/A. He was cross examined by Ld. Counsel for the accused. PW 4 Sh. Gajender Singh deposed that he does not know anything about this case. He became hostile and with the permission of the Court he was cross examined by Ld. APP for the State wherein he denied the contents of his statement u/s 161 Cr.PC. He further denied that driver of the offending vehicle stopped his vehicle and came to the injured to know his condition where he had seen him. He further denied the suggestion that he has been won over by the accused or has seen the accident. He was not cross examined by Ld. Counsel for the accused despite according opportunity. PW 5 Sh. Brij Pal deposed about the manner and circumstances in which the accident took place and got exhibited his statement Ex.PW5/A. He was cross examined by Ld. Counsel for the accused.
6. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 6.2.2015.
State Vs. Anil Kumar 3/7 FIR no. 124/07
7. The statement of the accused under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded wherein incriminating circumstances were put to him. He disavowed all the allegations against him. He further submitted that he has been falsely implicated. The motorcyclist came all of a sudden from the conductor's side and hit against his dumper. Further, he chose not to lead defence evidence.
8. I have heard the learned Assistant Public Prosecutor and the learned Advocate for the accused at length and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt and the only conclusion which can be drawn is the conviction of accused.
9. I have bestowed my thoughtful considerations to the rival submissions made before me. Accused is indicted for offences u/s 279/304 A IPC. All the three sections speak of rash and negligent act. Section 279 IPC punishes the offence of driving a vehicle in a manner "so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person" ; and section 304 A IPC provides punishment for causing death of any person by doing any rash or negligent act not amounting to culpable homicide. Proof of rashness and negligence is required for section 279 IPC as also u/s 304 A IPC. To constitute either of the offences u/s 279 IPC or 304 A IPC, proof of criminal rashness or criminal negligence is essential. In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such a disregard for life and safety of others as to amount to a crime.
10. In order to bring home the guilt of the accused, prosecution has to prove three aspects, State Vs. Anil Kumar 4/7 FIR no. 124/07 firstly that the accused was driving the offending truck no. HR 55C 3556 on 7.2.2007 at MB road near ICF cut, Lal Kunan, secondly, that the said offending truck was being driven by the accused in rash or negligent manner causing the accident in question and thirdly, in the said road accident victim Bhim Raj Bisht succumbed to his injuries.
11. To prove the identification of the offending dumper bearing no. HR 55C 3556 and that of the accidental motorcycle bearing no. DL 8S AK 3885, prosecution has relied upon the testimony of PW 2 Ct. Kamal as per whose deposition on 7.2.2007 upon receipt of DD no. 31, he alongwith ASI Satvir reached at MB road near Shamshan Ghat where both the offending dumper and accidental motorcycle were found. The driver of the offending dumper namely Anil Kumar was also present and the rider of the motorcycle Bhim Raj Singh was found in dead condition. The photographs of the offending dumper as well as the accidental motorcycle are Ex.P1 to Ex.P10. These circumstances have not been refuted by Ld. Counsel for the accused during the cross examination of witness PW 2.
12. In so far as the manner of accident as well as the identity of the accused are concerned, prosecution has examined PW 4 Gajender Singh and PW 5 Brij Pal. Witness PW 4 Gajender Singh has not supported the case of the prosecution despite cross examination by Ld. APP for the State. He specifically deposed that he could not tell as to who caused the accident and by which vehicle the accident was caused. Witness Brij Pal has though spoken about one dumper bearing Haryana registration number being involved in the accident and hitting the motorcycle of his brother by the driver side but his testimony appears to be highly obscure and elliptical. It has been reported time and again in number of judgments of superior courts that merely deposing that the offending vehicle hit the accidental vehicle leading to the injuries or State Vs. Anil Kumar 5/7 FIR no. 124/07 the death of the victim is not sufficient to bring home the guilt of the accused. The eye witness has to bring on record the circumstances surrounding the place of the accident i.e the position of the offending vehicle and the accidental vehicle at the time of the impact, the traffic volume, the width of the road etc. Although, in certain cases it is not possible to gather the information on all these aspects but witness has to provide the minimum possible details surrounding the accident so as to infer rashness or negligence on the part of the driver/accused.
13. To bring teeth to my view, reliance is placed upon the judgment of Ram Avtar v. State of Rajasthan, 6th December, 2005 wherein it was held in para 6 and 8 "6. Thus the essential ingredient 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 an 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 a 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 v. The Stat e I (1994) ACC 476 : 1994 Cri. LJ 389 (Ori.), 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 State Vs. Anil Kumar 6/7 FIR no. 124/07 rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person". The Hon'ble High Court further held, "In the case, I find that except a bare statement made by P.W. 2 that the vehicle was being driven in a high speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver". Therefore, the Hon'ble Orissa High Court was pleased to acquit the accused person. Similarly, in the cae of Bed a Kanta Phukan v. The State of Assam,1992 Cri. LJ 1197 (Gau.) the Hon'ble Gauhati High Court has held that merely because the accused was driving the vehicle at a high speed may not attract provisions of Section 279."
14. Testimonies of rest of the witnesses are formal in nature and do not have any bearing on the guilt of the accused. Even if it is assumed that accused was in fact behind the wheels of the offending dumper but prosecution has miserably failed to prove that he was in fact reckless in driving the offending dumper causing the accident of the motorcycle leading to the death of the deceased. Due to inscrutable and occult testimony of witness PW 5 Brij Pal regarding the circumstances leading to the accident, benefit of doubt is accorded to the accused. Thus, accused Anil Kumar stands acquitted for the offence U/s 279/304 A IPC. He is set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 6.02.2015 Metropolitan Magistrate04,
South, New Delhi
State Vs. Anil Kumar 7/7 FIR no. 124/07