Delhi District Court
State vs . on 18 January, 2019
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE
VS.
SHYAM KUMAR & ANR.
FIR No. : 380/2005
PS : Sarita Vihar
U/s 279/337/304A IPC & 174A IPC
A. Cr. No. : 87118/2016
B. Date of Institution : 15.03.2008
C. Date of Commission of Offence : 21.08.2005
D. Name of the complainant : Meera
E. Name of the Accused & his : (1) Laik Ahmad
Parentage & Address S/o Sh. Rahees Ahmad
R/o Kishore Ka Makan
Bhangar Mohalla
Madanpur Khadar, New Delhi
(Accused Shyam Kumar is already declared absconder vide Order
dated 06.07.2015).
F. Offences complained of : 279/337/338/304A IPC
& U/s 174 A IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not Reserved.
I. Final order : Acquitted.
J. Date of such order : 18.01.2019
FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 1 of 21
JUDGMENT
Brief Facts :-
1. It is alleged by the prosecution that on 21.08.2005 at about 04:45 PM, accused Laik Ahmad was driving RTV bearing no. DL-
1VA-0639 and accused Shyam Kumar was driving RTV bearing no. DL-1VA-3314. Both were driving their vehicles at a high speed and in a rash and negligent manner and were competing/ racing with each other without having regard to the safety of the passengers travelling in RTV driven by accused Shyam Kumar. Due to the rash and negligent act of both the accused persons, RTV bearing no. DL-1VA-3314 turned turtle. 11 to 12 passengers received injuries while two passengers lost their life. The said incident took place at Road no. 13, in front of Shaheen Bagh Colony, Sarita Vihar, New Delhi and within the jurisdiction of PS Sarita Vihar. Both the accused persons were charge-sheeted.
2. Cognizance was taken. Both the accused persons remained unserved despite issuance of coercive processes. Accused Laik Ahmad was declared Proclaimed Absconder vide Order dated 31.08.2012 whereas accused Shayam Kumar was FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 2 of 21 declared Proclaimed absconder vide Order dated 06.07.2015.
3. Prosecution Evidence of PW Meera, Geeta and Sheela was recorded U/s 299 CrPC. Subsequently, accused Laik Ahmad was arrested and produced before the Court. The accused was supplied with the copy of challan and documents. Thereafter, the matter was listed for arguments on charge. After scrutiny of documents, parties were heard on charge. Prima facie offences punishable U/s 279/337/338/304A IPC & U/s 174A IPC were found to made out against the accused Laik Ahmad. Charge was framed accordingly and explained to accused to which he pleaded not guilty and claimed trial.
4. To bring home the guilt of accused, prosecution had produced and examined 12 witnesses.
5. PW Kiran was dropped from list of witnesses vide Order dated 24.11.2016.
6. Though the testimony of PW-2 Geeta was recorded U/s 299 CrPC. She remained unserved and was consequently dropped from list of witnesses.
7. Vide separate statement recorded U/s 294 CrPC, r/w FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 3 of 21 Section 313 (1)(a) CrPC, accused Laik Ahmad had admitted genuineness of (1) MLC No. S37445 dated 21.08.05 of injured Sheela prepared by Dr. Samit Chaturvedi, Holy Family Hospital (2) MLC No. S.37446 dated 21.08.2005 of injured Jamuna prepared by Dr. Vikas Kumar, Holy Family hospital (3) MLC No. S37447 dated 21.08.05 of injured Kiran Prepared by Dr. Naushadhid Ali, Holy family hospital (4) MLC No. 37448 dated 21.08.2005 of injured Meera prepared by Dr. Naushahid Ali, Holy Family hospital (5) MLC No. S337449 dated 21.08.2005 of injured Neeru prepared by Dr. Naushahid Ali, Holy Family hospital (6) MLC No. S.37452 dated 21.08.2005 of injured Rajesh Mandal prepared by Dr. Mala Saini, Holy Family Hospital (7) MLC No. S.37453 dated 21.08.2005 of injured Pachu Ram prepared by Dr. Mala Saini, Holy Family hospital (8) MLC No. S37454 dated 21.08.2005 of injured Meera prepared by Dr. Naushahid Ali, Holy Family Hospital (9) MLC No. S37455 dated 21.08.2005 of injured Kishan Prepared by Dr. Sumit, Holy Family Hospital (10) MLC No. S37458 dated 21.08.2005 of injured Suresh prepared by Dr. Naushahid Ali, Holy Family hospital (11) MLC No. S37456 dated 21.08.2005 of injured Sampat prepared by Dr. Parvez, Holy FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 4 of 21 Family hospital (12) MLC No. 108552 dated 21.08.2005 of injured Geeta prepared by Dr. Hemanta, AIIMS (13) MLC No. 108563 dated 21.08.2005 of injured Lalan prepared by Dr. Avnish AIIMS (14) MLC No. 108583 dated 21.08.2005 of injured Ram Prasad Prepared by Dr. Avnish, AIIMS, (15) MLC No. 108551 dated 21.08.2005 of injured Dhiraj prepared by Dr. Aminul (16) Post mortem Report no. 985/05 dated 23.08.2005 of deceased Panchu Ram prepared by Dr. Raghuvendra Kumar, AIIMS (17) Post Mortem report No. 979/05 dated 22.08.2005 of deceased Rajesh Mandal prepared by Dr. Siva Prasad, AIIMS (18) Mechanical Inspection report of vehicle bearing no. DL1VA-0639 prepared by T. U. Siddiqui, Mechanical inspector aas Ex.A1 to Ex.A18 respectively.
8. Vide additional statement recorded U/s 294 CrPC R/w S. 313(1)(a) CrPC, accused Laik Ahmed had admitted the genuineness of (1) X-Report of injured Geeta bearing no. 8630/05 dated 21.08.2005 (2) X-ray report of injured Dheeraj bearing no. 10855 dated 21.08.2005 (3) X-ray Report of injured Dheeraj bearing no. 108551 dated 21.08.2005.
FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 5 of 21
9. With this Prosecution concluded its Evidence and the matter was listed for recording of Statement of accused Laik Ahmad U/s 313 Cr.PC. In his statement U/s 313 CrPC, accused denied the prosecution case and pleaded innocence. However, the accused Laik Ahmad did not produce any independent witness or document in his defence. Accordingly, matter was listed for final arguments.
10. I have heard Ld. APP for the State and Ld. Legal Aid Counsel for accused Laik Ahmad as well as gone through case file very carefully. The argument of Ld. APP is that there is credible evidence to substantiate the allegations of the prosecution against the accused. Ld. LAC, on the other hand, has argued that there are material inconsistencies in the case of the prosecution and the accused is entitled to benefit of doubt and thus, he be acquitted.
11. The defence of the accused is that he was driving his RTV slowly. He claimed that the RTV of accused Shayam Kumar had already turned turtle and when he was coming from behind. He pleaded innocence and claimed that he did FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 6 of 21 not cause the accident.
The settled propositions of Criminal Law are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
12. Sections 100 Clause 4 & 5 CrPC: Requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 7 of 21 articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Minor contradictions do not effect the credibility of the prosecution case.
13. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
14. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Law relating to Evidentary value of testimony of Police Officers:
15. The testimony of police personnel should be treated in the FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 8 of 21 same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.
Definition of rashness and negligence
16. What is rashness or negligence has been defined in relevant paragraphs of the judgment of Ravi Kapur Vs State of Rajasthan 2012(7) SCALE354 which are quoted below:
Para11- "Negligence means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 9 of 21 formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence."
B. Para 17- "A rash act is primarily an overhasty 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."
Ingredients to be proved.
17. I have perused the record very carefully and have FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 10 of 21 considered the arguments advanced by the Ld. APP as well as the defence counsel. Before giving the reasons and my decision on the case, it would be pertinent to lay down the basic ingredients of Sec. 279 of IPC. The accused is liable to be punished under Sec. 279 IPC when the prosecution proves the following ingredients :
(i) the accused should have been driving offending vehicle at the relevant time and place.
(ii) the manner of driving should be rash or negligent in a way to endanger human life or which is likely to cause hurt or injury to any other person.
Now I will discuss whether the ingredients as outlined above have been satisfied by the prosecution or not. Evidence on record :
18. PW IO/ASI Jugender was examined on 19.03.2018 wherein he deposed that on 21.08.2005, he was posted as HC at Police Post Shaheen Bagh, PS Sarita Vihar. On that day, on FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 11 of 21 receipt of DD No.12 PP Shaheen Bagh regarding accident at Road No. 13, he alongwith Ct. Mangal Ram went to the spot. He found two RTVs bearing Registration no. DL-1VA-0639 and DL- 1VA-3314 were present there. Upon local inquiry, he came to know that all the injured persons has been shifted to hospital. Thereafter, IO received information regarding admission of injured persons at Holy Family Hospital and AIIMS Hospital, Delhi. Thereafter, IO left Ct. Mangal Ram at the spot to take guard of the spot and went to AIIMS Hospital. IO collected MLC of four injured persons from AIIMS Hospital. Injured persons had already left AIIMS Hospital. Thereafter, IO went to Holy Family Hospital and collected MLCs of 11 injured persons. Two injured persons were declared brought dead at Holy Family Hospital. IO recorded statement of Injured Meera at Holy Family Hospital vide Ex.PW1/A. Thereafter, IO returned back to the spot and prepared rukka vide Ex.PW13/A. IO got lodged present FIR through Constable Mangal Ram. Thereafter, IO prepared site plan Ex.PW13/B and seized both offending RTVs from the spot and prepared seizure memos Ex.PW13/C and Ex.PW13/D respectively. After some time, both accused drivers also arrived at FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 12 of 21 the spot. Driver of offending RTV No. DL-1VA-0639 revealed his name as Laik Ahmad and Driver of offending RTV No. DL-1VA- 3314 revealed his name as Shyam Kumar. IO interrogated both accused persons and thereafter, arrested and personally searched both accused persons vide arrest memo Ex.PW13/E and Ex.PW13/F. Accused persons were released on Police bail and offending RTVs were deposited at Malkhana at PS Sarita Vihar. On 22.08.2005, IO got conducted Post Mortem of deceased Rajesh Mandal at AIIMS Mortuary vide application Ex. PW13/G. Further, On 23.08.2005, IO got conducted Post Mortem of deceased Panchu Ram at AIIMS Mortuary vide application Ex. PW13/H. On 25.08.2005, IO got conducted mechanical inspection of both offending RTVs. During investigation, IO obtained medical opinion on MLCs of all the injured persons and collected Post Mortem reports of above said deceased persons. IO also recorded dead body identification and handing over statement qua deceased persons. IO got verified all the seized documents of the offending RTVs from the concerned Authorities. During investigation, IO recorded statements of witnesses U/s 161 CrPC and after completion of investigation, IO prepared challan and FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 13 of 21 submitted before the Court concerned. IO identified the above said RTVs through 7 photographs which are already Ex.P1 (Colly).
19. PW-2 Meera (one of the injured) deposed that on 21.08.2005 at about 04:45 pm, she was coming from Kalkaji to her home i.e Madanpur Khadar. She took a RTV bus bearing no. DL1V A 3314 which was driven by accused Shyam Kumar (since absconder). Another speeding RTV bearing no. DL1VA 0639 which was driven by Laik Ahmad started overtaking their RTV. Both the drivers i.e Shyam Kumar and Laeek Ahmad started driving respective RTVs rashly while overtaking each other. In the meantime, all the passengers requested to slow down their RTV bearing no. DL1VA 3314 but their driver (Shyam) did not slow it down despite repeated requests. At the spot i.e Shaheen Bagh, Laeek Ahmad who was driving RTC bearing no. DL-1VA-0639 tried to overtake their RTV and caused accident. She became unconscious and suffered serious injuries on her head and both legs. She was hospitalized in Holy Family Hospital for about 2 to 3 days and then continued further treatment from home. Police FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 14 of 21 recorded her statement on the same day in hospital itself vide Ex. PW1/A. She identified the offending vehicles through Photographs are Ex. P1 to P7 (colly).
20. PW-3 Smt. Sheela (another injured) deposed that on 21.08.2005, she was going to her house from Greater Kailash by an RTV in the evening hours. Driver of the RTV in which she was travelling and other vehicle driver started driving their respective vehicles competitively and tried to overtake each other. She and other passengers objected but their driver continued to drive his vehicle in said manner and when they reached at Shaheen Bagh, their RTV fell down on the road. She and other passengers sustained injuries due to this. Public persons / passersby shifted her and her co-passengers to Holy Family Hospital where they all were medically treated. She could not tell the name and complete registration number of any of the vehicles, nor she could identify the offending vehicles and accused. As the witness was stated to be not revealing the complete facts as recorded in her statement under section 161 of Cr.P.C, permission was sought by the APP for the State to cross examine the witness which was allowed. Despite cross examination by Ld. APP, the witness could not give FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 15 of 21 complete registration number of either of the offending vehicles nor could she tell the names of the drivers of any of RTVs. She even failed to identify accused Laik Ahmed in the Court despite pointing out by Ld. APP. She volunteered that RTV was very crowded so she could not see the face of driver.
21. PW-4 Smt. Jamuna (another injured) deposed that on 21.08.2005 she was going to her house from Nehru Place in one RTV. Their driver and other vehicle's (RTV) driver were driving their respective vehicles competitively and tried to overtake each other. Passengers of their RTV objected but their driver continued to drive the vehicle in said manner. When they reached near Shaheen Park, their RTV fell down on the road due to impact of hitting of another RTV. As a result, she and other passengers sustained injuries. Public persons/ passersby shifted them to hospital where they were medically treated. They were first shifted to Holy Family hospital and later on shifted to Safdarjung Hospital. Police official came to hospital where her statement was recorded. She identified the offending vehicle and spot through six photographs which are Ex.P1 (collectively). FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 16 of 21 However, she failed to identify accused Laik Ahmad. She was cross examined by APP wherein she could not confirm whether the complete registration number of the vehicle in which she was travelling was DL-1VA-0639 and number of another RTV was DL- 1VA-3314. She could give name of any of the drivers. She could identify accused Laik Ahmad only when Ld. APP specifically pointed the accused in the Court.
22. PW-6 Asha Devi deposed that she was coming from Nehru Place to her home and boarded a RTV bus. Another speeding RTV started overtaking their RTV on the way to Madanpur Khadar. Both the drivers started driving their respective RTVs rashly while overtaking each other. All the passengers requested their driver to slow down RTV but he did not slow down despite their repeated requests. Near Shaheen Bagh, another RTV tried to overtake their RTV and caused accident hitting his RTV against the one in which she was traveling. Their RTV turned upside down. She became unconscious and suffered serious injuries on her head and both her legs. The witness failed to identify the spot and offending vehicles through 7 photographs. FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 17 of 21 She was duly cross examined by Ld. APP wherein she admitted that she did not remember whether the name of the driver of the RTV bus bearing no. DL-1VA-3314 in which she was sitting was driven by accused Shyam Sunder. Nor could she remember whether the RTV bus bearing no. DL-1VA-0639 which was trying to overtake RTV bus was driven by accused Laeek Ahmad. She failed to identify the accused Laik Ahmed despite Ld. Substitute APP specifically pointing towards him.
23. The testimony of injured Meera, Sheela, Jamuna is on the same lines wherein all of them have deposed about both the RTVs being driven by their respective drivers, in a rash and negligent manner and at high speeds. PW-6 Asha Devi, PW-7 Sampat, PW-11 Kishan Pal and PW-12 Suresh have also deposed that the vehicles were being driven competitively by respective drivers.
24. While PW-3 Sheela, PW-4 Jamuna, PW-6 Asha Devi, PW-
11 Kishan Pal and PW-12 Suresh have failed to identify the accused Laik Ahmed before the Court on various grounds.
25. PW Asha Devi, Sampat admitted during their cross- FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 18 of 21 examination that the RTV in which they were travelling was packed to its full capacity and failed to identify the accused.
26. PW Kishan Pal, Sampat and Jamuna deposed that their RTV had hit another RTV while the witness Suresh deposed contrary and stated that their RTV hit the Patri and turned turtle. This contradiction is material but has not been explained by the Prosecution. Further, site plan and Motor Vehicle Inspection Reports of both the vehicles have been carefully perused. If both the vehicles had indeed collided with each other as deposed by witnesses Kishan Pal, Sampat and Jamuna, then the vehicle bearing no. DL-1VA-0639 driven by accused Laik Ahmad should have suffered some consequential damage as an impact of collision. The Motor Vehicle Inspection report of vehicle bearing no. DL-1VA-0639 driven by accused Laik Ahmad shows no damage at all. Thus, it raises another serious doubt in the story of the Prosecution and also supports the defence of the accused that RTV had already turned turtle and was not hit by his RTV. On the other hand the other vehicle bearing no. DL-1VA-3314 in which all the injured were travelling shows substantial damage FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 19 of 21 which corroborates the testimony of PW Suresh that the vehicle may have hit the Patri and turned turtle.
27. The injured Meera, Geeta, Sheela, Jamuna, Asha, Sampat, Kishan Pal and Suresh, all were travelling in the RTV bearing no. DL-1VA-3314 alleged to be driven by accused Shyam Kumar (Since P.O). None of the person travelling in the RTV no. DL-1A- 0639 alleged driven by accused Laik Ahmad has been examined in the present case. Further, there is no damage on the vehicle driven by accused Laik Ahmad which also raises doubt on the story put forth by the prosecution & supports the defence taken by accused. It may be that accused Shyam Kumar (Since PO) was driving his vehicle bearing no. DL-1VA-3314 in a rash and negligent manner and at high speed but the same does not give rise to presumption that the vehicle driven by accused Laik Ahmad was also being driven rashly and negligently. Benefit of doubt had indeed arisen which is to be extended to the accuse Laik Ahmad. There are major lacunas in the prosecution's case which have not been explained. Further no evidence has been led by prosecution to substantiate offence u/s 174A IPC. The burden FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 20 of 21 of proving the case is on the Prosecution and it has to prove its case beyond the pales of reasonable doubt and has to stand on its own legs. It cannot rely on the absence or imperfection of the defence. Whereas the accused is only required to raise reasonable doubt on the prosecution's case. As discussed in preceding paragraphs, there are several glaring loopholes in the Prosecution's version and benefit of doubt has indeed accrued in favour of accused Laik Ahmad and the same must necessarily be extended to him. Accordingly, accused Laik Ahmed is hereby acquitted for offence U/s 279/337/338/304A IPC and U/s 174A IPC.
Now to come up for compliance of Section 437A CrPC. The case against accused Shyam Kumar be revived as and when he is apprehended. Copy of the same be sent to concerned prosecution Branch & concerned police station for intimation and Digitally signed also Jail Superintendent. by SHIVANI CHAUHAN SHIVANI Date:
CHAUHAN 2019.01.21 Announced in the open 09:52:00 +0530 Court on 18.01.2019 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI FIR No. 380/2005, PS-Sarita Vihar State Vs Shyam Kumar & Anr. Page no. 21 of 21