Delhi District Court
State vs Raj on 11 March, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-08
(CENTRAL), TIS HAZARI COURTS : DELHI
PRESIDING OFFICER: MS. MEENA CHAUHAN, DJS
FIR No. 178/2018
PS : Kotwali
U/s 279/338 IPC
State vs. Raj
Date of Institution of case: 31.08.2019
Date when Judgment reserved: 13.02.2024
Date on which Judgment pronounced: 11.03.2024
JUDGMENT
A. Case No. : 11033/2019 B. Date of Institution of Case : 31.08.2019 C. Date of Commission of Offence : 02.07.2018 D. Name of the complainant : Sh. Najma E. Name of the Accused : Raj s/o Sh. Mitrsen & his parentage and residence R/o H. No. 444. Bhatgaon, Sonipat, Haryana.
F. Offences complained of : U/s 279/338 Indian Penal Code G. Plea of the Accused : Pleaded not guilty H. Final order : Acquittal I. Date of such order : 11.03.2024
Brief statement of reasons for decision of the case:
1. The case of prosecution in brief is that on 02.07.2018 at about 02.00 pm, in front of Zakir Hussain College, Bus Stand, Jawahar Lal Nehru Marg, Delhi, accused was found driving a DTC bus bearing no. DL-
State Vs. Raj FIR No. 178/2018 PS Kotwali 1/14 1PC-0206 on a public in a high speed and in rash or negligent manner so as to endanger human life and personal safety of others and while driving so he had hit the injured Adnan, who sustained grievous injuries on various parts of the body and thereby committing an offence punishable u/s 279/338 Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 31.08.2019 against the accused. Cognizance of offence punishable u/s 279/338 IPC was taken. Upon summoning, the accused appeared and copies of charge sheet were supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, on 13.12.2019, a notice for offence punishable u/s 279/338 IPC was framed against the accused to which he pleaded not guilty and opted for trial.
3. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused. The prosecution examined 05 (five) witnesses in support of its case:
Name of Documents Dates of Dates of
Sr.
No. Prosecution Exhibited in examination cross-
witnesses. Evidence. in chief. examination
State Vs. Raj
FIR No. 178/2018
PS Kotwali
2/14
(i) Complaint
Ex.PW1/A
(ii) Site plan
PW-1 Nazma Ex.PW1/B 06.02.2020 06.02.2020
(iii) Case
property i.e.,
DTC Bus Ex.P1
(i) Arrest memo
Ex.PW2/1
(ii) Personal
search memo
Ex.PW2/2
(iii) Seizure
PW-2 Ct. Anuj 24.09.2021 24.09.2021
memo of bus
Ex.PW2/3
(iv) Seizure
memo of cycle
Ex.PW2/4
(i) Inspection
Mahender
PW-3 report 23.12.2022 23.12.2022
Singh
Ex.PW3/A
PW-4 Adnan Nil. 08.05.2023 08.05.2023
(i) Rukka
ASI Ex.PW5/A
PW-5 Surender 13.12.2023 13.12.2023
Kumar (ii) Documents
Ex.PW5/B
State Vs. Raj
FIR No. 178/2018
PS Kotwali
3/14
4. Vide separate statements of the accused recorded u/s 294 CrPC, the accused admitted the factum of FIR (Ex.A-
1), endorsement (Ex.A-2), certificate u/s 65-B (Ex.A-3), supardarinama (Ex.A-2) and MLC bearing No. 112034675/18 of victim Adnan (Ex.A-3) without admitting the contents of the same.
5. The prosecution evidence was closed on 13.12.2023 and the statement of the accused was recorded under Section 313 read with section 281 of Cr.P.C on 08.01.2024, wherein he pleaded his innocence and stated to have been falsely implicated. The accused has not opted to lead defence evidence. Final arguments were heard. I have cogitated over the submissions made by ld. APP for the state and Ld. Counsel for the accused person.
6. Before proceeding further, as per mandate laid down under Section 354(1)(b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
(1). Whether the accused has committed the offence for rash driving or riding on a public way under section 279 IPC?
(2). Whether accused has committed the offence causing grevious hurt to the injured Adnan by act endangering life or personal safety under section 338 IPC?
7. Let us peruse the provision of Section 279 IPC, which is as under:-
Section 279. Rash driving or riding on a public way- Whoever drives any vehicle, or rides, on any public way in a manner so rash State Vs. Raj FIR No. 178/2018 PS Kotwali 4/14 or negligent as to endanger, human life or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
8. Essentials Ingredients of Section 279 IPC are:
(1). Driving or riding in a public way.
(2). Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to others.
9. The Hon'ble Supreme court in the case titled as Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 observed that:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
10. The Hon'ble Supreme court further observed that Ravi Kapur (supra);
"The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others."
11. Let us peruse the provision of Section 338 IPC, which is as under :-
State Vs. Raj FIR No. 178/2018 PS Kotwali 5/14 Section 338. Causing grievous hurt by act endangering life or personal safety of others.-Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
12. Essentials Ingredients of Section 338 IPC are:
(1). Accused did an act rashly or negligently. (2). Act endangered human life or the personal safety of others.
(3). Such acts cause grievous hurt.
13. To fasten criminal liability upon the accused in the present matter, it is imperative that the injuries should have been a direct result of a rash or negligent act of the accused and that act must be proximate cause without intervention of another's negligence. The act must be causa causans and it is not enough that the act may have been causa sine qua non. In a nutshell, the prosecution has to prove that Accused Raj was driving the offending bus on a public way in a rash or negligent manner and he hit an injured Adnan as a result caused grievous injury to him. My observations on the evidence adduced during trial are delineated hereinafter.
14. In a criminal trial, the onus remains on the prosecution to prove the guilt of the accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favor of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State Vs. Raj FIR No. 178/2018 PS Kotwali 6/14 State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
15. As far as the identity of the accused as driver of the offending vehicle is concerned, the testimony of PW-4 Adnan who is the sole eye-witness examined by the prosecution has to be analyzed. PW-4 deposed in his examination-in-chief that when he was going from his house on his bicycle, suddenly one DTC bus green in color went over his leg and his leg got struck underneath the tyre of the said bus. PW-4 has correctly identified the accused during his examination. However, PW-4 has failed to identify the offending vehicle during his examination-in- chief and cross-examination by Ld. APP for the state. On the contrary, PW-4 deposed that he had not noted the bus route number or registration number of the bus. Hence, the identity of the offending vehicle has not been established by the prosecution.
16. Coming to the question of the offending vehicle being driven in a rash and negligent manner at the relevant State Vs. Raj FIR No. 178/2018 PS Kotwali 7/14 point of time, I would like to make following observations:
17. Firstly, it is admitted that PW-4 is the only eye-
witness of the alleged incident who was examined by the prosecution. A careful perusal of his examination-in-chief apprised that he nowhere deposed that the offending bus was driven in rash manner. On the contrary, he deposed that he cannot even say about the speed of the vehicle. PW-4 has denied the suggestion put forth by Ld. APP for the state during the cross-examination of witness U/s 154 Indian Evidence Act, that the accused was driving the offending bus in rash and negligent manner at high speed. Here, it is pertinent to mention that during his cross- examination on behalf of the accused, PW-4 deposed that when one of the car drivers who was standing in the queue suddenly opened the door, he fell down from the bicycle.
18. At this stage, it is relevant to refer to the observations made by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows:
"No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW1 the alleged eye-witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
State Vs. Raj FIR No. 178/2018 PS Kotwali 8/14
19. In the case titled as Abdul Subhan vs. State (NCT of Delhi), 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi as below, "7. .....What is meant by high speed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this accident. Was the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura Road? Or was he on Mathura Road turning towards Sher Shah Road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve into the path of the petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out is quite unsatisfactory."
20. Furthermore, it has come on record in the testimony of PW-1 Nazma, PW-4 Adnan and PW-5/ASI Surender that one person namely Parvez took the injured to the hospital and informed Nazme, mother of the injured about the incident, however, neither any statements of the said person were recorded by the IO nor he was cited as witness by the prosecution. Benefits of these lacuna accrues in favor of the accused.
21. Secondly, the mechanical inspection report of the offending vehicle i.e. bus is Ex. PW-3/A exhibited in the testimony of PW-3. A careful perusal of the said report also reflected that it was reported that there was no fresh damage on the offending vehicle. It is a general law of physics that when any two objects collide/make contact with each other with some force, both objects experience force which is equal in magnitude. Though it is true that State Vs. Raj FIR No. 178/2018 PS Kotwali 9/14 the said law do not apply completely to the scenario when the two vehicles are collided in an accident, however, it is reasonable to expect some damage or mark/scratch on the body of offending vehicle when it was driven at the high speed on road and it comes in the contact with some other vehicle from behind. In the present case, the offending vehicle has not suffered any damage or scratch/marks as per the inspection report which probabilises the defence of the accused that the bicycle of the injured was hit by some other vehicle and he has fallen due to that. Further, no serological examination of tyres of offending vehicles has been conducted, further pointing towards serious gaps in the prosecution version of events. Hence, the story of prosecution here doesn't go well with the common course of natural events and it weakens the case of the prosecution.
22. Thirdly, there is no photography or videography of the spot of the alleged incident. After scanning the testimonies of all prosecution witnesses and the entire judicial record available, it has been observed that no photographs were ever taken of either the offending vehicle or the alleged spot where the incident happened. This is the classic case of the shoddy quality of investigation being done by the investigating officer specifically in accidental cases. Suffice it to say that if proper photographs have been placed on record, it would have helped this court in finding out the prevailing weather State Vs. Raj FIR No. 178/2018 PS Kotwali 10/14 at that time, the topography of the area, the tyre skid marks, the trajectory of the vehicle and blood stains etc. enabling this court to appreciate the case of the prosecution more effectively. The standard of investigation expected in a road accident case is lucidly described in the judgment of Abdul Subhan vs. State (NCT of Delhi)(supra) . Suffice to say, in the present case the quality of investigation fell well short of what was required to inculcate the accused.
23. In the case titled as Abdul Subhan vs State (NCT of Delhi) (supra), it was observed by the Hon'ble High Court of Delhi as below:
"13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts.
13.4 The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5 Furthermore the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case. 13.6 ...
13.7 Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity need to be eliminated."
24. Fourthly, there is serious lacuna in the preparation of site plan by the IO. In the case titled Abdul Subhan vs. State Vs. Raj FIR No. 178/2018 PS Kotwali 11/14 State (NCT of Delhi), 2006 (4) LRC 472 (Del), the High Court of Delhi made following observations regarding the importance of site plan:
"13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "high-speed."
25. In the present case, a site plan which is Ex. PW1/B. PW-1 deposed that the said site plan was prepared at her instance. Here, it is crucial to note that PW-1 is neither the victim of the offence nor she was present at the time of alleged offences. No explanation has come forward from IO/PW-5 to this effect and IO/PW-5 has not disclosed at whose instance the site plan was prepared. In the light of the above loopholes, the possibility of site plan being not prepared at the instance of injured or site plan being prepared at PS cannot be ruled out. Further, the site plan which is Ex.PW1/B mentioned only the place where the accident had taken place. The IO has not pointed out the place where the offending vehicle was found or where the driver had fallen down after the collision or where the injured were found in injured condition, which further creates doubts in the story of the prosecution.
State Vs. Raj FIR No. 178/2018 PS Kotwali 12/14
26. After making the above said observations, it can be said that in the present case, there are serious loopholes and lacunas in the story of prosecution, neither the factum of rashness or negligent by the accused in driving the offending vehicle is being proved by the prosecution, and the benefit of same goes to the accused. It can be concluded that the prosecution is not able to prove that the accused was driving the vehicle in rash and negligent manner beyond a reasonable doubt at the relevant point of time.
27. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer Guntur reported as VIII(2007) SLT 454(SC). Unless and until, the prosecution discharges this primary burden of proof, the burden never shifts upon the accused.
28. In the case at hand, the prosecution has not succeeded in establishing that the vehicle bearing State Vs. Raj FIR No. 178/2018 PS Kotwali 13/14 registration no. DL-1PC-0206 was the offending vehicle and that the accused was driving in a rash and negligent manner. The mechanical inspection report of the offending vehicle is not in consonance with the oral depositions of the prosecution witnesses. There are no photographs of the spot. The site plan is also faulty and appears to be a mere formality.
29. In view of the above discussion and in light of settled legal position as per above-mentioned case laws in my opinion, the prosecution has failed to prove its case u/s 279/338 IPC against the accused. The prosecution has failed to prove that the accused was driving in a rash and negligent manner or that the hurt was caused to the injured Adnan due to the rash and negligent manner act of the accused. Thus, he is entitled to be acquitted in the above said charges. Accordingly, the accused Raj S/o Sh. Mitrsen Singh is acquitted under Section 279/338 Indian Penal Code.
30. File be consigned to Record Room subject to compliance of section 437-A Cr.PC.
Announced in the open court Digitally signed
by MEENA
MEENA
today i.e. 11.03.2024 CHAUHAN
CHAUHAN Date: 2024.03.11
15:09:22 +0530
(MEENA CHAUHAN)
Metropolitan Magistrate-08
Central District, Tis Hazari
Courts/Delhi
[This judgment contains 14 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Raj FIR No. 178/2018 PS Kotwali 14/14