Delhi District Court
State vs . Mahender Singh on 3 January, 2019
IN THE COURT OF SH. ASHU GARG
CHIEF METROPOLITAN MAGISTRATE (CENTRAL)
TIS HAZARI COURTS, DELHI
CNR No. DLCT02-002416-2013
New Case No. 295089/2016
FIR No.: 146/2012
PS: DBG Road
U/s 279/338 IPC
State Vs. Mahender Singh
(a) S. No. of the case : 184/2
(b) Name of complainant : Sh. Harish
S/o Sh. Desh Raj
R/o H. No. RZ-253,
Nanda Enclave, Gopal
Nagar, Najafgarh, Delhi.
(c) Date of commission of offence : 03.07.2012
(d) Name of the accused : Mahender Singh
S/o Sh. Satbir Singh
R/o. H. No. 57, Gali No.
1, Saraswati Vihar, Loni,
Ghaziabad, UP.
(e) Offence complained of : U/s 279/338 IPC
(f) Plea of accused : Pleaded not guilty
(g) Final arguments heard on : 03.01.2019
(h) Final Order : Acquitted.
(i) Date of such order : 03.01.2019
FIR No. 146/2012 P.S. DBG Road Page No. 1 of 11
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Accused Mahender Singh has been facing trial for the offences punishable under section 279/338 IPC, with the allegations that on 03.07.2012, at about 7.00 pm at 212 Bus Stand, Anand Parbat, Delhi within the jurisdiction of Police Station DBG Road, he was driving a DTC bus bearing registration No. DL-1PC-8901, on a public way in a rash or negligent manner so as to endanger human life and personal safety of others, and while driving the said vehicle in aforesaid manner, ran over a foot of one pedestrian Sh. Harish S/o Sh. Desh Raj, as a result of which, he caused grievous injuries on his person.
2. As per the prosecution case, DD No. 62B was received at PS DBG Road on 03.07.2012 with respect to a vehicular accident, upon which SI Arun Kumar (investigating officer of this case) along with Ct. Mahender reached at RML Hospital, where they received MLC of injured Harish. The injured was declared fit for statement. The injured narrated the incident to the police, wherein he informed that while he was standing at the bus stand Anand Parbat, the bus in question came at very high speed and in a rash or negligent manner and ran over his right leg, as a result of which he sustained injury. IO prepared a tehrir on the basis of complaint and got the case registered. The IO prepared the site plan. The accused was present at the hospital who was arrested and booked in the present case. The IO seized the vehicle. The doctor opined the injuries to be grievous in nature. The vehicle was got mechanically inspected and result obtained. After completion of FIR No. 146/2012 P.S. DBG Road Page No. 2 of 11 investigation, the present chargesheet was filed in the court on 11.11.2013.
3. Cognizance of the offence under section 279/338, IPC was taken by the Court on 11.11.2013. Notice of accusation under section 251 Cr.P.C for commission of these offences was framed against the accused vide order dated 13.12.2013, to which he pleaded not guilty and claimed trial.
4. At the trial, prosecution examined five witnesses in support of its case.
5. PW-1 Sh. Harish was the victim/injured and the sole eye witness of the incident, who deposed that on 03.07.2012 he was present at Anand Parbat Bus Stand while waiting for his bus at about 7.00 pm, when the bus in question came from the Anand Parbat side at a very fast speed and in a rash and negligent manner being driven by the accused and while driving the same, the bus run over his right foot from its left side wheel. Due to injuries, he fell on the road. He was shifted to RML Hospital where he was medically treated. He proved his complaint Ex. PW1/A. During cross examination he denied that he had been hit by a car, as also told by him to the doctor at the hospital. He stated that the speed of the bus was around 15-20 KMPH and that the bus had taken a U turn at a distance of 30-40 metres from the place of incident.
FIR No. 146/2012 P.S. DBG Road Page No. 3 of 116. PW-2 SI Karan Singh was the duty officer who had registered the FIR Ex. PW2/A. His endorsement on the rukka is Ex. PW2/B. The certificate u/s 65B of Indian Evidence Act is Ex. PW2/C.
7. PW-3 Ct. Mahender accompanied the IO PW4 SI Arun Kumar and reached at RML Hospital from where IO collected the MLC of the injured. PW3 went to PS and got the case registered. After getting the FIR registered, PW3 came back to the spot. The IO PW4 seized the bus vide memo Ex. PW3/A and prepared the site plan Ex. PW4/B. The documents from the accused were seized vide memo Ex. PW3/B. He was arrested and personally searched vide memos Ex. PW3/C and Ex. PW4/C respectively. On 04.07.2012, the bus was got mechanically inspected. The documents of the bus were seized from ATI Nand Nagri Depot vide memo Ex. PW4/D.
8. PW-5 retired TI Sh. Sansar Pal had got the bus released on superdari by executing superdarinama Ex. PW5/B.
9. Vide separate statements u/s 294 Cr.PC on 27.02.2017 and 25.04.2017, the accused admitted the genuineness of certain documents including the mechanical inspection report Ex. D1, MLC Ex. D2, X-ray report Ex. D3 and the duty memo Mark D4.
10. Statement of the accused under section 313 Cr.PC was recorded on 03.01.2019, wherein he denied the allegations and pleaded innocence. He submitted that he had been falsely implicated in the FIR No. 146/2012 P.S. DBG Road Page No. 4 of 11 present case and there was no rashness or negligence on his part. He claimed that the incident took place by some car and not by his bus. He however chose not to lead any evidence in his defence.
11. It is in these circumstances that the Ld. APP for the State has argued that the prosecution has been able to establish its case against the accused beyond reasonable doubt, as all the witnesses have supported its case and there is no material contradiction in their testimony. It is submitted that PW1, eye witness of the case has categorically deposed that accused was driving the vehicle in a rash and negligent manner.
12. On the other hand, Ld. Defence counsel for the accused has contended that no case is made out against him and he is entitled to be acquitted. It has been argued that there is no material on record to show any rashness or negligence on his part. He reiterates that the incident took place with a car as also mentioned in the noting of the doctor who had prepared the MLC Ex. D2.
13. I have heard the arguments advanced by the Ld. APP for the State and Ld. Defence counsel for the accused, and have carefully perused the material available on record.
14. To begin with, it is seen that in the present case, there is no dispute about the medical report/MLC of the victim, or about his identity. There is also no dispute about the fact that the accused was FIR No. 146/2012 P.S. DBG Road Page No. 5 of 11 the driver of the vehicle in question. It is not in dispute that the said vehicle was passing through the spot at the time of incident. It is nowhere the case of the accused that he was not driving the said vehicle or that the said vehicle was being driven by some other person or that he was not present at the spot or was present at some place other than the spot. No defence of alibi has been taken by the accused. The accused has also not disputed that he was present at the hospital from where he was arrested and the documents seized from him.
15. The stand of the accused that the incident was caused by some car and not by his bus, has no takers. No such stand has been proved on record by leading suitable evidence. The complainant PW1 has categorically identified the accused and the bus in question with which he sustained injuries. There was no reason for the complainant to falsely implicate an innocent person without any motive or reason. The argument of Ld. Defence counsel that the complainant did so in order to get claim from the MACT, is also without any force. Till the time the complainant was shifted to hospital in injured condition, he could not have cooked up a false story against a person with whom he had no enmity. It does not appeal to senses that a victim would implicate a person who had rather helped him by taking him to the hospital. Even the accused could not give any explanation in his statement u/s 313 Cr.PC as to why would the complainant depose against him. In any case, in view of the clear testimony of PW1, it has been established that the incident was caused by the bus in question only. The noting of the doctor who prepared the MLC, which FIR No. 146/2012 P.S. DBG Road Page No. 6 of 11 mentions that the incident was caused by a car, cannot be read against the complainant who denies making any such statement and in the absence of the doctor who had made such endorsement.
16. Once these facts are established, the court has to see if the material on record is sufficient to establish rashness or negligence on the part of the accused which resulted in causing grievous hurt to the victim. It may be understood that all vehicular collisions are not offences under the eyes of law. An accident, without any element of criminal rashness or negligence, is rather excusable under the law. It is well settled that this is an important element which has to be established by the prosecution like any other fact. There has to be positive evidence led to show as to in what manner and on what basis the acts of an accused could be called as rash or negligent. This burden has to be discharged by the prosecution only and it is not upon the accused to lead negative evidence and to show that there was no rashness or negligence on his part. It is also well established that mere use of words "rash or negligent" by a witness would not be sufficient to establish rashness or negligence, unless it is properly explained as to in what manner and on what basis such rashness or negligence has been attributed to an accused. Such rashness or negligence can be established from surrounding circumstances, even if the words "rash or negligent" are not used by a witness. And similarly, rashness or negligence would not be established by mere use of words "rash or negligent" in the statement of the witnesses, without any further explanation.
FIR No. 146/2012 P.S. DBG Road Page No. 7 of 1117. The prosecution case on this point is based only on the testimony of PW-1, who has been forwarded as the eye witness of the incident. The other witnesses examined on record are not eye witnesses and they merely participated in investigation at different points of time in a formal manner. The prosecution case rests only on the evidence of PW-1. However, a perusal of his testimony would reveal that he only claimed that the vehicle was being driven in a 'very fast speed' and in 'rash and negligent manner'. Apparently, PW1 did not say anything further with respect to the manner in which the offending vehicle was being driven by the accused.
18. Other than this factor of fast speed, there is no fact on the basis of which any rashness or negligence has been attributed to the accused, even by the star witnesses. In my considered view, such testimony would not be sufficient to establish criminal rashness or negligence on the part of the bus driver. Fast speed, by itself, would not establish rashness or negligence. 'Speed' is the relative factor which would vary from person to person. Speed of a vehicle may appear high to one person but the same speed may appear normal to another person. Speed may appear to be normal at a highway but the same speed on city roads may appear to be high. Therefore, to attribute criminality to a person, it is necessary that speed of a vehicle is made known to the court, even if by approximation.
19. During cross examination, PW1 stated that the speed of the bus FIR No. 146/2012 P.S. DBG Road Page No. 8 of 11 was around 15-20 KMPH. Evidently, such a speed cannot be called as 'very fast speed' as stated by the complainant before the police and even before the Court. The said speed is fairly within the permissible speed limits and there is nothing to show that the vehicle was being driven exceeding the speed limits at the spot.
20. Therefore, there is no sufficient material on record to show that the bus was at a 'very fast speed', particularly when PW1 himself stated that the speed of the bus was only around 15-20 KMPH.
21. Even if it is assumed that the speed of the bus was fast, as per the perspective and opinion of PW-1, that would not by itself make out an offence of criminal rashness or negligence. In the present case, there is nothing to show that the bus was being driven in any dangerous manner or in a zigzag manner. There is no evidence to show that the driver was in drunk condition or was not taking due care and caution. There is no evidence to show that the driver had jumped any traffic signal, or was driving in excess of the speed limits, or was talking on phone, or was not having a valid driving license, or was violating any traffic rule, or was otherwise at fault.
22. Reliance can be placed on the judgement titled as Abdul Subhan v. State [2006 (3) JCC 1797] as rightly relied upon by Ld. Defence Counsel, wherein it has been held that "...A mere allegation of high-speed would not tantamount to rashness or negligence..... Apart from the allegation that the truck was being driven at a very FIR No. 146/2012 P.S. DBG Road Page No. 9 of 11 high speed, there is nothing to indicate that the petitioner acted in a manner which could be regarded as a rash or negligent. In any event, there is no description or approximation of what was the speed at which the truck was being driven. The expression "high-speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding the speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at high speed, that the petitioner is guilty of a rash or negligent act ".
23. The said judgement squarely applies the present case, where there is no evidence to establish rashness or negligence, except the statement of PW-1 given to the police to the effect that the bus was at fast speed which hit him. This position, in the absence of any other fact, would not be sufficient to establish rashness or negligence on the part of the accused.
24. In a criminal trial, the burden is always upon the prosecution to establish its case against the accused by leading positive evidence. This burden never shifts upon the accused and has to be necessarily discharged by the prosecution itself. Mere suspicion, howsoever strong it might be, cannot replace the standard of proof required to establish guilt of an accused in a criminal trial.
25. In the entirety of these given facts and circumstances and for FIR No. 146/2012 P.S. DBG Road Page No. 10 of 11 want of suitable evidence on record, it can be said that the prosecution has not been able to establish the guilt of the accused. The accused is entitled to be given benefit of doubt.
26. Accused Mahender Singh is thus held not guilty and is accordingly acquitted of the charges. His bail bond shall remain in force for the next six months in terms of section 437-A, Cr.PC.
Digitally signed27. File be consigned to Record Room.
ASHU by ASHU GARG
Date:
2019.01.03
GARG 15:20:34
+0530
Announced in the open Court
this 03rd Day of January 2019 (Ashu Garg)
Chief Metropolitan Magistrate (Central)
Tis Hazari Courts, Delhi
FIR No. 146/2012 P.S. DBG Road Page No. 11 of 11