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Delhi District Court

State vs . Sunil Kumar on 6 July, 2012

     IN THE COURT OF MS. SUGANDHA AGGARWAL: 
     METROPOLITAN MAGISTRATE (WEST­3) : DELHI.

      State         Vs.                      Sunil Kumar 
                                             FIR No. 136/2004
                                             PS Nangloi


Unique Case ID No.  02401R6309462004


      J U D G M E N T

 (a) Sr. No. of the case     112/1

 (b) Date of offence         20.02.2004

 (c)  Complainant            Jagpal, S/o Late Sh. Fakira, R/o 
                             H.No.   A­250,   Camp   No.   2, 
                             Nangloi, Delhi.
 (d) Accused                 Sunil   Kumar,   S/o   Sh.   Jai   Pal, 
                             R/o   SB­420,   Prem   Nagar,   PS 
                             Sultan Puri, Kiradi, Delhi. 
 (e) Offence                 Under   Section   279   and      of 
                             Indian Penal Code

 (f) Plea of accused         Pleaded not guilty

 (g) Final Order             Acquitted

 (h) Date of institution     02.09.2004

 (i) Date   when   judgment  Not Reserved.
     was reserved

 (j) Date of judgment        06.07.2012

1. In the present case, accused has been charge sheeted for committing offences under Section 279 and 338 of Indian Penal FIR No. 136/2004 Page No. 1 of 15 Code. The allegations against the accused, as detailed in the charge­sheet are that on 20.02.2004 at about 11:50 am at Kiradi Road, in front of Tai Bala Park, Camp No. 2, Nangloi, Delhi, accused was driving a RTV bearing registration No. DL1VA­1529 in a rash and negligent manner so as to endanger human life and personal safety of others. It is also alleged that while driving the said vehicle in the above said manner, accused hit the aforesaid vehicle against a child namely Kale and caused grievous injuries to him. According to the prosecution accused has committed offences under Section 279 and 338 of Indian Penal Code.

2. After completion of investigation, charge­sheet was filed. Accused was supplied with copies in compliance of Section 207 Code of Criminal Procedure, 1973. Notice was framed under Section 279 and 338 of Indian Penal Code against the accused vide order dated 28.11.2005 to which accused pleaded not guilty and claimed trial.

3. Prosecution adduced evidence in support of its case. PW­1 WSI Savita has identified the carbon copy of FIR Ex. PW1/1 FIR No. 136/2004 Page No. 2 of 15 bearing her signatures at point A. PW­4 Sh. J.S. Pawar has identified his mechanical inspection report of the offending vehicle as Ex. PW4/A. PW­6 Sh. P.K. Madan has identified the photographs of the spot clicked by him as Ex. PW6/A1 to Ex. PW6/A3. PW­7 Dr. Baljit Singh has identified the MLC of injured Kale as Ex.PW7/A. All these witnesses were not cross­examined despite opportunity and discharged.

4. PW2 Master Kale has deposed that on the date of incident at about 11.30 am, he was going towards his house and one mini bus came on high speed and hit him and its front wheel ran over his leg. His leg was crushed under the wheel of the said bus. He further deposed that the accused was driving the said mini bus in a drunken condition and in a rash and negligent manner. PW2 identified the accused as the driver of the said mini bus. After the accident, PW2 was taken to hospital where he was medically treated. PW2 was cross­examined and discharged.

5. PW3 Jagpal has deposed that on the date of incident, he was going with his son Kale (PW2) and at about 11.50 am when FIR No. 136/2004 Page No. 3 of 15 they were crossing Kirari road, a mini bus after being driven in a negligent manner came from Rohtak side and the driver of said mini bus No. 1529 hit against them. He further deposed that the accused was driving the said mini bus in a rash and negligent manner. PW3 also identified the accused as the driver of the said mini bus. PW3 deposed that the leg of his son was crushed under the wheel of the said bus and the accused was apprehended by public persons. After the accident, PW2 was taken to hospital where he was medically treated. PW3 was not cross­examined despite opportunity and discharged.

6. PW­4 Charan Singh has deposed that he is the owner of RTV vehicle No.DL­1VA­1529 which he got released vide superdginama Ex.PW4/A. PW4 further deposed that on the date of incident, the said RTV was being driven by the accused. PW4 was not cross­examined despite opportunity and discharged.

7. PW5 Ct. Suresh and PW8 SI Radhey Shyam have deposed that on 20.02.2004 after receiving DD No. 8A Ex. PW8/A regarding accident they went to the spot i.e. Tai Wala Park, Rohtak FIR No. 136/2004 Page No. 4 of 15 Road, Nangloi where they found one RTV bearing registration No. DL1VA­1529 in accidental condition and blood stains on the road. The accused was also present there. On inquiry, PWs came to know that injured had been shifted to SGM Hospital by his father namely Jagpal. Thereafter, they went to SGM Hospital alongwith accused Sunil where they found injured Kale under treatment vide MLC No. 424. PW8 recorded statement of father of the injured namely Jagpal Ex. PW3/A and collected MLC and came at the spot alongwith accused and complainant Jagpal. PW8 prepared rukka Ex. PW8/B and handed over same to PW5 for registration of FIR. PW8 prepared site plan Ex. PW8/C at the instance of father of the injured. PW5 came alongwith copy of FIR and original rukka and handed over same to PW8. PW8 inquired from the accused and seized the above mentioned vehicle vide seizure memo Ex. PW5/A. RC of the above vehicle was also seized vide seizure memo Ex. PW5/B and insurance certificate was seized vide seizure memo Ex. PW5/C and driving license of the accused was seized vide seizure memo Ex. PW5/D. Photographs of the spot was FIR No. 136/2004 Page No. 5 of 15 clicked by Sh. P.K. Madan. The accused was arrested vide arrest memo Ex. PW5/E and his personal search was conducted vide memo Ex PW5/F. Offending vehicle was mechanically inspected by J.S. Pawar. PW5 was not cross­examined despite opportunity and PW8 was cross­examined by accused. They were then discharged.

8. After closure of prosecution evidence, statement of the accused was recorded under Section 313 of Code of Criminal Procedure, 1973. Incriminating evidence was put to the accused. Accused denied all the allegations and stated that he is innocent and has been falsely implicated in this case. Accused opted not to lead any evidence in his defence.

9. Final arguments heard.

10. Accused has been charged for offences under Sections 279 and 338 of Indian Penal Code. Both the offences are distinct in nature and as such both of them shall be dealt with separately.

11. In order to prove the offence under Section 279 of Indian Penal Code, 1860, following requisites have to be proved by the FIR No. 136/2004 Page No. 6 of 15 prosecution.

(a) Accused was driving the vehicle on a public place at the time of accident;

(b) The vehicle was being driven in such a rash and negligent manner such as to endanger human life or likely to cause hurt or injury to any person.

12. In order to prove its case, prosecution has to prove firstly that the accused was driving the offending vehicle on the date of the accident. To ascertain the said fact, prosecution has examined PW2 who is the injured in the present case, PW3 Jagpal who is father of injured and the eye­witness to the incident and PW4 Charan Singh Rana who is registered owner of the offending vehicle. Both PW2 and PW3 have identified the accused in the Court as the driver of offending vehicle. They have deposed that at the time of accident, the offending vehicle was being driven by the accused. PW4 who is the registered owner of the offending vehicle has also deposed that on the date and time of accident, vehicle was being driven by the accused. He has also identified the accused FIR No. 136/2004 Page No. 7 of 15 correctly. None of the witnesses have been cross­examined on the said point. Hence prosecution has successfully proved that the accused was driving the offending vehicle on the date of the accident.

13. Now the prosecution has to prove that the offending vehicle was being driven by the accused in such a rash and negligent manner so as to endanger human life and personal safety of others. In order to prove the said fact, prosecution has examined two eye­witnesses i.e. PW2 Injured Master Kale and PW3 his father. PW2 at the time of recording of his testimony was seven years old. In his testimony, he has deposed that the accused was driving the offending vehicle in a rash and negligent manner and he was also drunk at that time. PW2 has further deposed that police took him to hospital and he was treated by the Doctor. PW3 Jagpal who is father of injured has deposed that on the date of accident, the offending vehicle was being driven by the accused in a negligent manner. Therefore while crossing the road, the offending vehicle hit his son. PW3 has further deposed that the FIR No. 136/2004 Page No. 8 of 15 accused was apprehended at the spot by public persons and then he and his son were shifted to hospital. Firstly, it is settled law that merely stating that accused was rash and negligent in his driving does not prove the rash and negligence of accused. It has to be clearly stated by the witness the manner in which the accused was rash and negligent in driving.

In the case of B. C. Ramachandra v. State of Karnataka ­ 2007 Cri. L. J. 475, the Court relied upon a number of decisions of the Apex Court and concluded that in criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. It was also observed that "such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur."

In the case of State of Rajasthan v. Nauratan Mal 2002 Cri. L. J. 348 it was held as follows:

"No doubt P.W. 1 Dagla Ram, P.W. 2 Bodu Ram, P.W. 3 Mangi Lal and P.W. 4 Govind Ram have stated that the vehicle was at high speed, but speed is not the sole contention for determining the negligent driving of the FIR No. 136/2004 Page No. 9 of 15 vehicle, unless and until it is proved by cogent evidence that the vehicle was being driven rashly or negligently.

In this case by simply stating that the vehicle was being driven negligently is not sufficient to prove this fact."

In the case of Badri Prasad Tiwari v. State 1994 Cri. L. J. 389 it was held by Hon'ble Mr. Justice Arijit Pasayat as follows:

"5. Section 279, IPC deals with rash and negligent driving of any vehicle or riding on a public way in a rash and negligent manner so as to endanger human life or likely to cause hurt or injury to any person. 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 rash and negligent manner to endanger human life or likely to cause hurt or injury to any other person. For the purpose of Section 279 rash and negligence may be described as criminal rashness or criminal negligence. It must be more than mere carelessness of error of judgment. The essential ingredients of Section 279 are :

(i) Rash and negligent driving or riding on a public way.

(ii) The act must be such as to endanger human life or likely to cause hurt or injury to any person.

For an offence punishable under Sec. 304­A, IPC, the point to be established is that the act of accused was responsible for resulting in the death and such act of the accused was rash and negligent although it did not amount to culpable homicide. To establish either FIR No. 136/2004 Page No. 10 of 15 of Sections 279 or 304­A rash and negligent has to be established, but only distinction is that in Section 279 rash and negligent act relates to the manner of driving or riding on a public way, while offence under Section 304­A extends to any rash and negligent act falling short of culpable homicide. As indicated above, rashness or negligence to be established must be more than an error of judgment. Distinction between rashness and negligence is that negligence connotes want of proper care, while rashness conveyes the idea of reckless doing of an act without consideration of any consequences.

6. In the case at hand, 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 driver­accused. Therefore, in my considered opinion prosecution has failed to establish that death was occasioned by either rash and / or negligent driving of the vehicle or any negligent act of accused so as to attract provisions of Sections 279 and/or 304­A, IPC."

14. In the present case, both PW2 and PW3 have merely stated that the accused was rash and negligent in his driving. How he was rash and negligent has not been elaborated. It is not even deposed by the witnesses that the vehicle was being driven at high speed.

15. Furthermore, testimony of both the witnesses have contradictions. PW2 has stated that the accused was drunk at the FIR No. 136/2004 Page No. 11 of 15 time of incident. It is not stated that how PW2 has gathered this fact as PW2 was there on the road and accused was driving one mini­bus. PW2 was on the road and could only see the accused. Therefore it is unbelievable that accused was drunk at the time of accident. No investigation has been conducted by the Investigating Officer on this point and neither medical certificate of accused shows that no observations have been given by the Doctors in this regard. Further, as per the testimony of PW3, PW2 became unconscious at the spot as soon as offending vehicle hit him but as per the testimony of PW2, he was aware as to who has taken him to the hospital. Therefore, the testimony of both the witnesses does not states the correct fact as if PW2 had become unconscious immediately at the spot, then he cannot have first hand knowledge as to who had taken him to hospital. As per the testimony of PW2, he was taken to hospital by the police but as per the testimony of PW5 Ct. Suresh, when he arrived at the spot alongwith IO, injured was already shifted to hospital. Even as per the testimony of PW3, public persons have taken him and his son to hospital. FIR No. 136/2004 Page No. 12 of 15

16. In view of above­stated contradictions, testimony of PW2 and PW3 who are the key witnesses to the prosecution case does not inspire confidence. As stated above, prosecution has miserably failed to prove that the offending vehicle was being driven by the accused in such a rash and negligent manner so as to endanger human life and personal safety of others. Hence guilt of accused under Section 279 of IPC is not proved beyond reasonable doubt. OFFENCE UNDER SECTION 338 OF INDIAN PENAL CODE, 1860 Section 338 of Indian Penal Code :­ "Whoever causes grievous hurt to any person by doing any rash or negligent act 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 six months, or with fine which may extend to five hundred rupees, or both."

17. The essential ingredients to prove the offence under Section 338 of Indian Penal Code are as under :­

(i) That the act of accused is rash or negligent; and

(ii) By such rash or negligent act, grievous hurt has been caused.

18. The fact that grievous injuries were caused to injured Master Kale has been proved by PW7 Dr. Baljit Singh who has FIR No. 136/2004 Page No. 13 of 15 identified the same as Ex.PW7/A which shows that injuries to PW2 were caused due to the accident. However, in view of the aforesaid discussion, the first ingredient has not been proved by the prosecution. Hence it cannot be said that the injuries to injured Master Kale were caused due to the rash and negligent driving of the accused.

19. In view of the aforementioned facts and circumstances, I am of the opinion that prosecution has failed to prove its case against the accused beyond reasonable doubt. I give benefit of doubt to the accused. Accused is accordingly acquitted of the offences under Sections 279 and 338 of Indian Penal Code, 1860. File be consigned to Record Room, after due compliance.

(Sugandha Aggarwal) Metropolitan Magistrate Tis Hazari Courts : Delhi Announced in the open Court on July 06, 2012 FIR No. 136/2004 Page No. 14 of 15 FIR No. 136/2004 PS Nangloi 6.7.2012 Present: Ld. APP for State Accused on bail with counsel.

Shri Rajeev Mittal, Amicus­Curiae.

Vide separate judgment, the accused is acquitted of the offence under Section 279 and 338 of IPC.

At this stage, accused submit that his bail bonds already on record shall be extended for the purposes of Section 437A Cr.PC. Heard. Request is allowed. Bail bonds already on record are extended for the period of appeal for the purposes of Section 437A Cr.PC. File be consigned to record room.

(Sugandha Aggarwal) MM, Delhi/6.7.2012 FIR No. 136/2004 Page No. 15 of 15