Delhi District Court
State vs Raj Bahadur on 28 August, 2024
IN THE COURT OF MS. TANVI KHURANA,
CHIEF JUDICIAL MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST020024062014
IN THE MATTER OF:
STATE Vs. RAJ BAHADUR
FIR No.385 /2012
PS AMBEDKAR NAGAR
U/s 279/304A IPC
JUDGMENT
A) Sl. No. of the case : CR Cases 2035901/2016 B) The date of commission of : 14.11.2012 offence C) The name of the complainant : Sh. Azaz Ahmed, R/o House No.237, Hauz rani, near Badi Masjid, Malviya Nagar, New Delhi.
D) The name and address of : Raj Bahadur, S/o Sh. Ram Dulare,
accused R/o House NO.A-256, Devli
Extension, New Delhi. Also at
VPO-Pali, PS Pawai, Dist. Bhind,
Madhya Pradesh.
E) Offence complained of : 279/304A IPC
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 28.08.2024
FIR No. 385/2012 State Vs. Raj Bahadur Page No.1 of 14
PS Ambedkar Nagar
Digitally signed by
TANVI TANVI KHURANA
KHURANA Date: 2024.08.28
17:17:19 +0530
DATE OF INSTITUTION : 10.10.2014
DATE OF FINAL ARGUMENTS : 07.08.2024
DATE OF JUDGMENT : 28.08.2024
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The accused Raj Bahadur S/o Sh. Ram Dulare has been sent to face trial for the commission of offences under Section 279 and 304A, Indian Penal Code (IPC) upon the allegations that on 14.11.2012 at about 07:15 AM, at T-Point near Virat Cinema, the accused was found driving a tractor bearing registration no.UP12L-0634 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the said vehicle, the accused hit his vehicle against the motorcycle bearing no. DL3SAS-7152, driven by the deceased, namely, Sh. Surender, due to which Sh. Surender fell down and sustained grievous injuries and later succumbed to the injuries sustained.
2. After investigation, charge-sheet was filed in the Court, cognizance of the offences was taken vide and the accused was summoned by the Ld. Predecessor. After the accused entered appearance, copy of the charge-sheet along with the documents were supplied to her in compliance of the provisions of Section 207 of the Code of Criminal Procedure. Vide a separate order, notice was served upon the accused for commission of offences under Section 279 and 304A IPC by the Ld. Predecessor to which he pleaded not guilty and claimed trial.
3. To prove its case, the prosecution examined the following FIR No. 385/2012 State Vs. Raj Bahadur Page No.2 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:17:34 +0530 witnesses:
3.1 During examination in chief, PW-1 Sh. Ajaj Ahmad deposed that he used to drive a chartered bus and on 14.11.2012, at about 7.15 AM, he was waiting for his bus at 512 route number, at Virat Chowk, Dakshinpuri, New Delhi when a tractor bearing registration no.UP12L0634, driven at a high speed came from Pushpa Bhawan and hit against a motorcycle that came from block no.3, causing the motorcyclist along with motorcycle to fell down on the road and the front tyre of the tractor ran over the motorcyclist. He mentioned that the public persons assembled and he called the police and police came and took the motorcyclist to the hospital and later his statement was recorded which was Ex.PW-1/A and the site plan prepared at his instance was Ex.PW-1/B. According to him, the police then seized the offending vehicle in his presence and prepared the seizure memo, Ex.PW-1/C and the police then seized the motorcycle of the deceased and prepared seizure memo of the same which was Ex.PW-1/D. He also mentioned that the accused was arrested at this instance on 22.11.2012 vide arrest memo Ex.PW-1/E and police conducted personal search of the accused vide memo Ex.PW-1/F. He correctly identified the accused and the photographs of the offending vehicle Ex. P1 (Colly) before the Court.
In his cross-examination, he responded that the distance from the place of incident and where he was standing would be around 400 metres and he came to know about the incident when a crowd collected at the spot. He mentioned that he had witnessed the incident but he was on the other side FIR No. 385/2012 State Vs. Raj Bahadur Page No.3 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:17:40 +0530 of the road and he had not seen the accused driving the offending vehicle. According to him, he had seen him for the first time in the police station. He admitted that the IO had pointed towards the accused and had told him that he was the same person who was the driver of the offending vehicle. He stated that he could not say that by whose negligence the accident had occurred. He mentioned that he was called to the police station after 5-6 days of the accident and the police showed him the accused and told him that he was the culprit. He denied that the police had prepared any document in his presence.
Ld. APP for State re-examined the witness, but the witness maintained that his responses in his cross examination were correct and not the testimony in examination-in-chief. However, he admitted that the tractor was driven at a high speed.
3.2 PW-2 Sh. Anil Kumar, the brother of the deceased had identified the body of his younger brother. He identified his signatures on request for post mortem (Ex. PW2/A) and the handing over memo (Ex. PW2/B).
3.3 PW-3 Ct. Arjun Singh deposed that on 14.11.2012, the IO had received DD entry No. 19 A regarding an accident and he had accompanied the IO to the spot i.e. Maharishi Balmiki Marg, Virat Chowk, Dakshin Puri, Dr. Ambedkar Nagar where they found a motorcycle bearing registration No. DL 3S AS 7152 which appeared to be hit by the front portion of a tractor bearing registration No. UP 12 L0634. He mentioned that the IO came to FIR No. 385/2012 State Vs. Raj Bahadur Page No.4 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:17:47 +0530 know that the injured had already been shifted to hospital by PCR official and the IO received DD entry No. 31B regarding admission of injured in AIIMS, Trauma Centre. The witness was asked to stay at the spot and after some time, the IO returned from the hospital along with the MLC of injured Surender and called PW1 at the spot, recorded his statement, endorsed it vide rukka and handed it over to the witness for registration of FIR. The witness got the FIR registered and brought the copy back. He mentioned further that the IO had seized the tractor and motorcycle vide respective seizure memos which are already Ex. PW-1/ C & EX. PW-1/ D and recorded the statement of the witness.
In his cross-examination, he mentioned that he had reached the spot at 7:15 am and by that time PW1 was not present. He mentioned that they could not recover any helmet or driving licence from the spot. He denied to the suggestions put to him by Ld. Defence Counsel.
3.4 PW-4 Inspector Dara Singh (third investigating officer) deposed that in the last week of March 2013, investigation was assigned to him and the offending vehicle was released on superdari on 07.04.2013. He prepared the charge sheet and filed it before the Court.
In his cross-examination, he responded that the vehicle was released to Sh. So Singh but he was not cited as a witness.
3.5 PW-5 ASI Ram Chandar (first investigating officer) has deposed that on 14.11.2012, he received DD No. 19 A with respect to an accident and he along with Ct. Arjun went to Maharishi Valmiki Marg in front of Virat FIR No. 385/2012 State Vs. Raj Bahadur Page No.5 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:17:53 +0530 Cinema and saw one red colour Mahindra Tractor bearing registration no. UP 12 L 0634 in accidental condition and one motorcycle bearing no. DL3SAS 7152 which was under the tractor. On inquiry, he came to know that an accident had taken place and injured was taken to hospital by PCR. He tried to search for complainant at the spot but he could not be found. In the meanwhile, he received DD no. 31B with respect to MLC from the Trauma Centre. He left Ct. Arjun at the spot and went to Trauma Centre, AIIMS where he received one MLC of injured Surender. The doctor has opined that the patient was not fit for giving statement at that time. He collected the MLC and came back to the spot. Thereafter, he called the caller who had made the PCR call. After some time, one Ajaj Ahmad came there. He inquired from him and recorded his statement which is already Ex.PW1/A. He prepared the rukka on the basis of said statement which was Ex.PW5/A. He handed over the original tehrir and rukka to Ct. Arjun for registration of FIR. In the meanwhile, he prepared the site plan, Ex.PW1/B. Ct. Arjun came back and handed over original tehrir and rukka and copy of FIR to him. Thereafter, he seized the offending vehicle i.e. Tractor vide Ex.PW1/C. He also seized the motorcycle vide Ex.PW1/D. The case property was deposited at the Malkhana. He further deposed that on 17.11.2012, he had gone to AIIMS Trauma Centre for recording the statement of the injured but he was not fit for giving his statement. On the same day, in the evening, he came to know that the injured had expired. He recorded the statements of relevant witnesses.
In his cross-examination, he mentioned that he had reached the FIR No. 385/2012 State Vs. Raj Bahadur Page No.6 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:17:57 +0530 spot at 7:20 am. According to him, there was not much crowd at the spot. he had also not seen any helmet at the spot. He responded that the complainant had reached the spot at 12 noon. He mentioned that he had not issued any notice to the owner of the offending vehicle and he was not aware of the name of the owner of the tractor. He denied to all the suggestions put to him by Ld. Defence Counsel.
3.6 The mechanical inspector, PW-6 Sh. T.U. Siddiqui deposed that on 18.11.2012, he had inspected a water tractor tanker bearing no. UP 12L 0634 and TVS Star city motorcycle bearing no. DL-3SAS-7152 and had prepared the reports- Ex.PW-6/1 and Ex.PW-6/2.
3.7 PW-7 Retd. SI Sandeep Pooniya (second investigating officer) deposed that on 17.11.2012, the investigation was marked to him and on 18.11.2012, he had gone to the hospital where the dead body was shown to the relatives of the deceased and he had prepared the identifications memos which were Ex. PW7/A and Ex. PW2/B. He mentioned that he got the postmortem conducted and the dead body was handed over to the relatives of the deceased vide memo Ex. PW7/B. He then got the mechanical inspection of the tractor and motorcycle conducted and collected the report regarding the same. On 22.11.2012, he arrested the accused in the presence of the complainant Azaz Ahmed. The personal search memos were Ex. PW1/E and Ex. PW1/F. He had also recorded the supplementary statement of complainant and seized the DL and RC of the driver and tractor vide memo Ex. PW7/C and Ex. PW7/D. He had also collected the postmortem FIR No. 385/2012 State Vs. Raj Bahadur Page No.7 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:03 +0530 report from the hospital. He had examined owner of the tractor namely Tej Pal and Jagbir and during inquiry from them, he had come to know that they had sold the alleged tractor to the accused two years prior to the incident. He asked for the insurance of the tractor but it was not produced.
In his cross-examination, he admitted that the accused was not the owner of the tractor according to the records. He could not recall issuing notice under Section 133 MV Act. He had not recorded the statements of the owners of the tractor and he could not recall whether Tejpal and Jagbir had produced any documents. He admitted that there was no document on record pertaining to the sale of the vehicle. He mentioned that the accused had come to the police station on 22.11.2012 to enquire about the tractor and he had called the complainant at the police station prior to that. He denied to all the suggestions put to him by Ld. Defence Counsel.
3.8 During trial, accused admitted the FIR, DD no.19A, DD no.31B DD no.44B, MLC no. 3399995/2012 and the Post mortem Report which were Ex.D1 to Ex.D4 and Ex. A1 and A2 respectively.
4. Upon conclusion of prosecution evidence, statement of accused under Section 313 Cr.P.C. read with Section 281 Cr.P.C. was recorded in which all incriminating material was put to him, to which he pleaded innocence and claimed to have been falsely implicated. Accused chose not to lead any defence evidence. Final arguments of both the parties were heard at length.
5. I have heard and considered the arguments and submissions FIR No. 385/2012 State Vs. Raj Bahadur Page No.8 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:08 +0530 advanced by Ld. APP for the State and Ld. Counsel for the accused. I have perused the entire case record and appreciated the evidence adduced. DECISION AND REASONING
6. The accused has been charged with offence u/sec 279 IPC and under section 304-A IPC for rash and negligent driving as well as for causing death by rash or negligent act. In order to bring home the charge under section 279 IPC, prosecution is required to prove that that accused was driving the vehicle on the public way in a rash and negligent manner and for the offence made punishable under section 304-A IPC, the prosecution is first required to prove rash and negligent driving in order to prove the accused guilty.
7. Despite availability, the police only joined the called as a witness and complainant. It has been established by the complainant and the investigating officers that there was a crowd collected at the spot but no one was joined. The natural witnesses such as street hawkers and so on were also not examined. Hence, the testimony of the complainant (PW1) becomes important in this matter. It was deposed by the complainant that the tractor was driven at high speed. However, it was not mentioned that it was driven negligently. In the case of State of Karnataka v. Satish, 1998 SCC (CRI) 1508, it was held that driving at a high-speed by itself does not imply negligence or rashness. Negligence or rashness would have to be established as a fact.
Moreover, the PW1 resiled from his testimony in the cross FIR No. 385/2012 State Vs. Raj Bahadur Page No.9 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:14 +0530 examination and the witness could not withstand the test of cross examination. He mentioned that he was on the opposite side of the road and he had not seen the driver and the accused was pointed out by the police to the him and was told that he was the driver. Hence, the identity of the driver also was not conclusively established. Moreover, the accused was not the registered owner and the investigating agency had not issued any notice to the owner nor recorded their statements to show that the tractor belonged to the accused.
8. It has been held in the judgment titled as Hira Lal v. The State of NCT of Delhi reported as 2012 (2) JCC 1311 that:
"No doubt that it is the duty of the driver of the commercial vehicles to be cautious on the road. Equally the responsibility of people driving any type of vehicles. In order to avoid collusion with the other vehicles. It is not that in every case of road accident, the driver of a commercial or heavy vehicles shall be presumed to be guilty of rash and negligent driving. The Courts instead of acting like a mouth piece of prosecution, should weigh the evidence meticulously. The Courts have to be detached from any kind of undue sympathy and public emotion while dealing with every case."
9. It has been further held in judgment titled as Sumair Khan v. State, Crl. Rev. P. 580/2008 that:
"The essential ingredients to constitute an offence punishable under section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act FIR No. 385/2012 State Vs. Raj Bahadur Page No.10 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:22 +0530 must be so as to endanger human life or be likely to cause hurt or injury to any person. For an offence under section 304A IPC, the act of accused must be rash and negligent, which should be responsible for the death which does not amount to culpable homicide."
10. In Abdul Subhan v. State (NCT of Delhi), 133(2006) DLT 562, it has been held that:
"...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".
13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the tell-tale signs of the collision FIR No. 385/2012 State Vs. Raj Bahadur Page No.11 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:28 +0530 such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles 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. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants.
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 to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation FIR No. 385/2012 State Vs. Raj Bahadur Page No.12 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:34 +0530 should be such that, when a charge sheet is filed, the court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable. ..."
11. In the instant case, it has not been established that the tractor was driven by the accused and further, the fact that it was being driven negligently has also not been established. Out of the bystanders, only PW1 was joined in the investigation. It never came to light that how was the motorcycle driven. The prosecution has thus not been able to prove that the accused was driving the vehicle in a rash and negligent manner.
12. It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent unless the contrary is proved. The burden lies on the prosecution to prove the guilt of accused "beyond reasonable doubt". The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram v. State of Haryana, 1997(1) R.C.R.(Criminal) 662).
13. In view of the above discussion, the prosecution has miserably failed to prove the guilt of accused, the benefit of which accrues in his favour. Accused Raj Bahadur, S/o Sh. Ram Dulare is accordingly acquitted for the offence under Section 279/304A IPC. His Bail Bond stands cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification. Accused is directed to furnish necessary bail bonds under FIR No. 385/2012 State Vs. Raj Bahadur Page No.13 of 14 PS Ambedkar Nagar Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:40 +0530 Section 437A CrPC.
14. Case property, if any, be confiscated to the State after the expiry of the period of the appeal.
15. File be consigned to Record Room, after due compliances.
Digitally signed byTANVI TANVI KHURANA KHURANA Date: 2024.08.28 17:18:45 +0530 (TANVI KHURANA) CHIEF JUDICIAL MAGISTRATE DISTRICT SOUTH, SAKET COURTS COMPLEX Announced in the open Court On 28th August, 2024 FIR No. 385/2012 State Vs. Raj Bahadur Page No.14 of 14 PS Ambedkar Nagar