Delhi District Court
State vs Shahzad Ali on 27 April, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05
SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
JUDGMENT
STATE VS SHAHZAD ALI FIR No. : 406/06 U/s. 279/337/304A IPC PS : Sarita Vihar A. CIS No. : 87885/16 B. Date of Institution : 06.03.2007 C. Date of Commission of Offence : 29.07.2006 D. Name of the complainant : Babita Pandey E. Name of the Accused : Shahzad Ali S/o Sh. Mohd. Inam R/o V&P Bhagra PS-Titavi, Distt. Muzaffur Nagar. UP.
F. Offences complained of : 279/337/304A IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not Reserved.
I. Final order : Acquitted.
J. Date of such order : 27.04.2018
FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 1 of 16
Brief Facts :-
1. It is alleged by the Prosecution that on 29.07.2006 at 11.30AM in front of Haldiram near bus stop, Ali Village, Mathura road, New Delhi within the jurisdiction of PS Sarita Vihar, accused was found diving bus bearing no. DL-1PB-0894 plying on route no. 473 in a rash and negligent manner so as to endanger the human life or likely to cause hurt or injury to any other person and while driving aforesaid bus in aforesaid manner hit against motorcycle no. HR-51L-8419 and caused simple injury to Ms. Babita Pandey and grievous injuries to Sh. Dilip Pandey which resulted in his death and thereby committed an offence punishable U/s 279/337 IPC and U/s 304 A IPC. Thereafter, FIR was registered and the matter was investigated by the Police which culminated into filing of the Chargesheet U/s 279/337/304A IPC naming Shahzad Ali as the accused.
2. The Predecessor Court took cognizance and the accused was summoned. A copy of Chargesheet and documents were supplied to the accused free of cost as per rules. Thereafter, the matter was listed for arguments on charge. On the basis of the chargesheet and documents and after hearing the accused, the Predecessor Court concluded that a Prima facie offences U/s 279/337/304A IPC were made out. Formal notice was accordingly framed which was explained to accused. He pleaded not guilty and claimed trial. Thus, the matter was fixed for Prosecution Evidence.
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3. To substantiate the allegations leveled upon the accused, the prosecution examined Eight witnesses. The accused also admitted the genuineness of following documents in his statement recorded U/s 294 CrPC :
i) Mechanical Inspection of vehicle bearing no.DL-1PB-
0894 and motorcycle bearing No. HR-51L-8419 prepared by T. U. Siddiqui.
ii) MLC No.347/06 dated 29.07.2006 prepared by Dr. Mahesh Kaith Apollo Hospital.
iii) Postmortem Report No. 1069/06 dated 01.08.2006 prepared by Dr. Jayant, AIIMS Hospital.
iv) Dead body identification by Ramesh Kumar Pandey and Ashish Kumar as Ex-A1 to Ex-A6 respectively.
v) TIP Proceedings conducted by Sh. Raj Kumar Tripathi, the then Ld. MM on 28.11.2006 as Ex-PW8/A.
vi) DD No.6A dated 29.07.2006.
vii) DD No.7A dated 29.07.2006.
viii) DD No.8A dated 29.07.2006
ix) DD No.6A dated 30.07.2006 as Ex-A1 to A2 respectively.
4. With this, Prosecution concluded its Evidence and the matter was listed for examination of accused U/s 313 Cr.PC which was recorded on two occasions. In his statement, accused denied the prosecution case and pleaded innocence. However, the accused produced one witness in his defence. Accordingly, matter was listed for final arguments.
5. I have heard Ld. APP for the State and Ld. Defence FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 3 of 16 Counsel as well as gone through case file.
6. The argument of Ld. APP is that there is enough material on evidence to prove the case against the accused.
7. Ld. Defence counsel on the other hand has argued that the accused has been wrongly associated with the offence in question and as such the accused is entitled to acquittal in the present case. The accused has not denied driving Bus bearing no. DL-1PB-0894, however, he submits that his bus did not hit the motorcycle of the victim. The defence claims that the motorcycle of the victim was hit by an Alto Car consequent to which, he fell and suffered injuries. The defence claimed that the accused is entitled to acquittal in the present case.
Relevant Law:-
8. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that 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. Further, it is a settled proposition of criminal law that 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. Also it is a settled proposition of criminal law that the accused is entitled to FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 4 of 16 the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal. Definition of rashness and negligence.
9. 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 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 FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 5 of 16 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."
Law relating to requirement of independent witness
10. Further Sec. 100 Clause 4 & 5 CrPC talk about requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujrat, 1988 Supp 241 : AIR 1988 SC 696 that "11......
FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 6 of 16 Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
Minor contradictions do not effect the credibility of the prosecution case.
11. 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".
FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 7 of 16 Overall context of the case is to be seen.
12. 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.
Ingredients to be proved.
13. I have perused the record very carefully and have 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 the vehicle on a public way?
(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.
14. Now I will discuss whether the ingredients as outlined above have been satisfied by the prosecution or not.
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(i)- The accused should have been driving the offending vehicle ?
15. The accused, since beginning has admitted driving bus bearing no. DL-1PB-0894. The IO had served a notice U/s 133 M. V. Act vide Ex.PW4/B upon the owner of the vehicle Mr. Rajesh. In reply to the said notice, the owner of the vehicle stated that the offending vehicle was being driven by his driver i.e., accused Shahzad Ali on 31.07.2006 at about 11:30 AM on Route no. 473. No contrary or suggestion was given to this witness. There is no reason to doubt the veracity of PW-4 Rajesh. Thus, the prosecution has been able to establish that the accused Shahzad Ali was driving the offending vehicle at the relevant date and time.
16. There is no dispute with the fact that the accident took place opposite Haldiram, Mathura Road, Sarita Vihar, New Delhi. Site plan Ex.PW6/A is duly proved. Accused has himself admitted driving the bus bearing no. DL-1PB-0894 on the said date, time and place. Thus, is it proved that the accused was driving bus bearing no. DL-1PB-0894 on public way. Hence, this ingredient stands proved.
(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.
17. IO/Retired SI Anwar Khan deposed that on 29.07.2006, he was on emergency duty from 08:00 AM to 08:00 PM. At around 11:30 AM, IO received a call regarding accident at Haldiram FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 9 of 16 Building bus stop, near Aali Village Mod. After receiving a DD no. 6A, IO alongwith Constable Gajender reached at the spot where he met with some of Police officials who were on PCR van. IO also saw one accidental motorcycle bearing registration no. HR- 51L-8419 and one bus bearing no. DL-1PB-0894 at the spot. Thereafter, one police constable also came at the spot with DD entry regarding admission of injured persons in Apollo Hospital. IO alone went to Apollo Hospital where he received two MLCs of injured persons and Doctor opined that one person was not fit for statement and the other injured person (lady) did not make any statement. IO gave a notice under section 133 MV Act to the bus owner Ex.PW4/B. Thereafter IO went back at the spot where Constable Gajender was present.
On 30.07.2006 at 08:00 AM, complainant came to the police station. She made a complaint regarding accident Ex.PW2/A. IO prepared a rukka Ex.PW6/B handed over original rukka to Duty Officer for registration of FIR. After receiving the copy of FIR and rukka, IO went to the spot alongwith Constable Gajender where IO prepared a seizure memo of bus ExPW3/A. IO prepared a seizure memo of motorcycle Ex.PW3/B and site plan at the instance of Constable Gajender Ex.PW6/A. IO also inquired regarding the accident from persons who were present at the spot but none joined investigation and left without telling anything.
18. Sh. Rajesh i.e., the owner of alleged offending bus produced the driver Shahzad Ali before the IO. IO arrested the accused FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 10 of 16 Shahzad with vide arrest memo Ex.PW3/F. IO also conducted personal search with vide personal search memo Ex.PW3/E. IO seized the driving licence of the accused, insurance of the vehicle and also prepared seizure memo of driving licence Ex.PW3/C, insurance Ex.PW3/D on both the documents. As the offence was bailable, IO released him after taking bail. IO deposited the case property in Malkhana. IO also received DD entry 8A regarding the death of one injured person who had met with an accident. IO shifted dead body from Apollo Hospital to AIIMS mortuary. IO got conducted postmortem of deceased and thereafter prepared identification memo Ex.A5 and Ex.A6 on both of them and the body was handed over the dead body to relatives of the deceased.
19. PW-2 complainant is the complainant in the present case and deposed that on 29.07.2011 she alongwith her husband was going to Noida from Badarpur on their motorcycle. At about 11:30 AM, when they reached near Haldiram at Mohan co-operative Mathura Road, one bus No. DL-1PB-0894 hit at the back side of their motorcycle and their motorcycle hit against one Alto Car. She fell down on the right side whereas her husband Dilip Kumar Pandey fell towards the left side and the tyre of the bus ran over her husband. With the help of public persons the driver of the bus was asked to reverse the bus. The name of the accused/driver of the bus was revealed as Shahjad Ali. The accused was correctly FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 11 of 16 identified by the witness in the Court. She also sustained injuries. Her husband was taken to Apollo Hospital for medical examination and treatment. On 30.07.2006 police met her in the hospital and recorded her statement Ex-PW2/A. She sustained injuries on her palm/hands. She explained the incident to the police. Her husband expired in the Apollo Hospital on 31.07.2006.
20. PW-1 Sunil Kumar Gupta deposed that on the date of the incident, he felt an impact on his Alto car bearing no. HR-29N- 4225 from behind. When he stopped his car, he saw that one bike was lying behind his car and one person was entangled with bus bearing no. DL-1PB-0894. PW1 deposed that there was heavy traffic on the road at the time of the accident and the speed of his was around 15-20 Kmph at the time of the accident. He further deposed that the injured Dilip Pandey was lying at the rear wheel of the bus.
21. There is no dispute with respect to the factum of death of Dilip Pandey and injuries sustained by Smt. Babita Pandey. Postmortem Report, MLC of the victim and Mechanical Inspection Report have also not been disputed. They have otherwise been duly proved by the Prosecution and have been admitted by accused u/s 294CrPC.
22. The documents have been carefully perused. The victim FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 12 of 16 Dilip Pandey was admitted in Apollo Hospital on 29.07.2006 i.e., the date of the accident at 11:50 AM. In MLC Ex.A3 prepared by Dr. Mahesh Keith which is a duly proved document, the Doctor had written "... Patient was on two wheeler being hit by fast unknown vehicle from behind and patient rolled over below the wheels of bus (? DL-1PB-0894)". This document contradicts the oral testimony of injured Smt Babita Pandey. The contradiction is material and hits to the roots of the prosecutions case. Further, this contradiction is reinforced by the admission of PW Rajesh during his cross examination wherein he stated that the injured I.e Smt Babita Pandey had told the IO in his presence that their bike was hit by an unknown vehicle from behind. The alleged bus was seized from spot and witnesses knew about its registration number at the time of occurrence. The same also finds mention on the MLC of the deceased Victim. If the bike of deceased had indeed been hit by the alleged bus, then the statement of doctor on MLC would not have stated otherwise. The fact that the accident was stated to have been caused by an unknown vehicle and not by bus gives rise to presumption which corroborates the version of defence that the bike of victim had been hit by an unknown vehicle consequent to which victim rolled below the bus of accused and there was no negligence or rashness part of accused.
23. Even if for sake of arguments, it is presumed that the FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 13 of 16 vehicle of the accused was being driven by him at a high speed and rash and negligent manner and had consequently hit the bike of the victim, then there should have been considerable damage on the body of the motorcycle as well as consequential damage on the bus. The Mechanical Inspection Report of the alleged offending bus as well as the victim's vehicle was carefully perused. The Mechanical Inspection Report and the photographs of the victim's vehicle shows minor scratches on the rear seat support, right side silencer. The mud guard and number plate of victim's vehicle are intact. The Mechanical Inspection Report of the alleged offending bus shows only minor scratches on the right side of the bumper. Both the vehicles were road worthy condition apart from the minor scratches as observed above. The mechanical inspection report does not show any material damage on either vehicle which may suggest rashness on the part of accused driver.
24. PW-1 Sunil Kumar Gupta, during his cross examination had admitted that there was heavy traffic on the road at the time of the accident and the speed of his was around 15-20 Kmph at the time of the accident. In these circumstances, any vehicle which was being driven behind his vehicle could not have been driven beyond this speed. Thus, it is improbable that the bus was being driven by the accused at a high speed as alleged. In these circumstances, no negligence or rashness can FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 14 of 16 be inferred on the basis of these documents.
25. If the victim's bike was hit by the bus of the accused as alleged, then victim would have fallen in front of the alleged offending bus and would have come under its wheels. As observed above, the alleged offending bus could not have been driven beyond the speed limit due to heavy traffic and owning to the fact that the vehicles ahead of the alleged offending bus were being driven at the speed of 15-20 Kmph. The fact that the victim was found lying at the rear wheel of the bus corroborates the version of the defence that the victim was hit by another vehicle and had rolled over below the bus. There is nothing on record to show that the victim was run over by the wheels of the alleged bus. Had it been so, the victim may have been crushed by the impact and not survived for 2-3 days. Rather, the evidence gives rise to the presumption that the accused immediately applied brakes when the victim rolled under his bus, because had he not done so, in all probability the victim would have been crushed by the bus. Thus, it can be inferred that the accused was driving the offending vehicle within permissible speed limit was careful and there was no rashness or negligence on his part. In these circumstances, prosecution has been unable to prove that the accident took place due to the fault of accused driver or that. Accused was driving his vehicle in a rash and negligent manner. Hence, accused cannot be guilty of negligent driving.
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26. Thus, Prosecution could not discharge the necessary burden as mandated by law. In view of the aforesaid discussion, Court is of the opinion that there are reasonable doubts in the case put forth by the prosecution and it cannot in any manner be said to have been proved beyond reasonable doubt. Accordingly, the benefit of doubt which has accrued must necessarily be extended in favour of accused. Thus, accused Shahzad Ali is hereby acquitted for offence U/s 279 IPC, U/s 337 IPC and U/s 304A IPC.
Copy of the Judgment be given dasti to Ld. APP for the State.
Announced in the open Court on 27.04.2018.
(SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS, NEW DELHI FIR No. 406/06, PS-Sarita Vihar State Vs Shahzad Ali Page no. 16 of 16