Delhi District Court
Court In Kaliram vs State Of Himanchal Pradesh, Air 1973 Sc on 24 December, 2018
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-
WEST), DWARKA COURTS, NEW DELHI
Presided by: Sh. Santosh Kumar Singh
State v. Vikas Kumar
FIR No.144/15
Police Station: Chhawla
Under Section: 279/304A IPC.
C.C. Number : 349/01/15
Date of institution : 17.09.2015
Date of reserving : 22.12.2018
Date of pronouncement : 24.12.2018
JUDGMENT
a) Serial number of the case 425633/16
b) Date of commission of offence 16.03.2015
c) Name of the complainant Sh. Mehar Singh, s/o Sh.
Sube Singh, r/o H. No. 97,
Village Deenpur, Najafgarh,
Delhi.
d) Name, parentage and address Vikash Kumar s/o Sh. Rajbir
of the accused Singh r/o Village Niwada, PS.
Shalawash,District. Jhajjar,
Haryana.
e) Offence complained of Section 279/304A IPC.
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted.
h) Date of final order 24.12.2018
State v. Vikas Kumar FIR No.144/153 PS: Chhawla 1
BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix are that on 16.03.2015 at about 08:00 am at main Gurgaon, Chhawla Road near PNB ATM Dinpur, Najafgarh, Delhi within the jurisdiction of PS Chhawala you Vikash Kumar were found driving Swift Dezire Car bearing No. DL1TAQ 9640 in rash or negligent manner so as to endanger life of others and thereby you hit a motorcycle No. DL4SBS-0191 and caused death of Sh. Sunil Ma- lik. Therefore it is alleged that you have committed offences u/S 279/304A IPC.
2. Notice under Section 251 Cr. P.C was served upon the ac- cused for the offence under Section 279/304A IPC vide order dated 29.03.2016 to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined nine wit- nesses. PW-1 Sh. Ravinder Malik (Body identification witness), PW-1 ASI Saroj (Duty officer), PW-2 Satpal Malik (Dead body iden- tification witness and handing over), PW-3 HC Dharminder (witness to the IO in the investigation), PW-4 ASI Omkar Singh (Duty officer), PW-5 Sh. Mehar Singh (eye witness), PW-6 Puran Chand (Me- chanical Inspector), PW-7 Rajiv Kumar (registered owner of the of- fending vehicle), PW-8 SI Lakh Ram (witness to the IO), PW-9 ASI Bharat Lal (IO).
State v. Vikas Kumar FIR No.144/153 PS: Chhawla 2 Accused admitted the MLC of deceased and his PM report U/s 294 r/w 313 r/w 281 Cr.P.C and the same are exhibited as Ex. A-1 & A-2 respectively.
4. After the completion of prosecution evidence, PE was closed and statement of accused u/S 313 Cr. PC was recorded wherein he stated false implication and innocence. Accused opted not to lead defence evidence.
5. Thereafter, matter was listed for final arguments.
6. During the course of arguments, Ld. APP submitted that the prosecution has proved its case against accused beyond reasonable doubts. He submitted that the identity of accused had not been dis- puted to the effect that he was driving the vehicle at the relevant point of time and had stuck against the motorcycle and caused death of the deceased Sh. Sunil Malik. He submitted that the prosecution has proved that the accused was driving the vehicle in rash or negli- gent manner and this fact is also corroborated from testimony of PW5 Sh Mehar Singh. He further submitted that the testimony of PW 5 is categorically and reliable. He submitted that prosecution has proved the rashness or negligence on the part of the accused that he was driving the vehicle in such a manner. The statement of PW 5 is State v. Vikas Kumar FIR No.144/153 PS: Chhawla 3 further corroborated from his statement Ex. PW 5/A and Site plan Ex. PW5/C. The testimony of PW 5 is also corroborated from the testi- mony of PW 7. He further submitted that it is clear from the testi- monies of all the witnesses that the accused was driving the vehicle in a rash and negligent manner and the prosecution has proved its case by examining the reliable and cogent prosecution witnesses. Therefore, accused be convicted as per law.
7. Sh. Avnish Rana and Sh. Kapil Choudhary and Ms. Poonam Rana, Ld. Defence counsels for accused submitted that prosecution has not proved its case against accused beyond reasonable doubt. He argued that eye witness has not mentioned the manner in which the accused was driving the vehicle. PW5 Mehar Singh (eye witness) had not mentioned anything to the effect that it was the accused who was driving the vehicle. He argued that none of the witnesses were present at the spot who had witnessed the accident. He argued that accused had been falsely implicated in this matter. He further sub- mits that site plan Ex. PW5/C prepared by IO at the instance of PW 5 but the direction as show in the site plan is contrary to the statement of PW 5. He submitted that as per testimony of PW 5 victim vehicle was hit from the backside but as per the statement Ex. PW 5/A no such fact has been mentioned. Therefore, it is clear that PW 5 was not present at the spot. He further submitted that prosecution has failed to prove the negligence on the part of the accused. Even, the rashness has not been proved as to how the accused was driving State v. Vikas Kumar FIR No.144/153 PS: Chhawla 4 the vehicle. Therefore, there was no negligence or rashness on the part of accused. He further argued that as per the mechanical in- spection reports which are Ex. PW6/A and PW6/B, which show that no damage was caused to the offending vehicle. He further argued that as per the site plan Ex.PW5/C. He further submitted that PW 5 had also failed to identify the offending vehicle as per his statement that there was no registration number plate on the offending vehicle and he submitted that the vehicle which he had seen in the parking is similar to the offending vehicle. He submitted that there is doubt regarding the identification of the offending vehicle. He submitted that PW 5 is a relative of deceased. He submitted that there was contradictions in the testimony of PW 5 regarding handing over of the accused to the police because as per the testimony accused was handed over to the police at Chain Hospital and another statement is that accused was handed over to the police at the spot. He submits that there is doubt that accused was actual person who committed the offence. He further submitted that prosecution has not proved the negligence or rashness on the part of the accused and that the accused has been falsely implicated in the present matter as no in- criminating material has come on record against him. He submitted that as per statement of PW 5, motorcycle was hit by offending vehi- cle and he has not mentioned regarding the rashness or negligence and manner in which the vehicle was being driven. Therefore, in the light of the evidence on record, the accused is entitled to be acquit- ted.
State v. Vikas Kumar FIR No.144/153 PS: Chhawla 5
8. I have heard submissions of ld. APP for the State and Sh. Anvish Rana, Sh. Kapil Choudhary and Ms. Poonam, Ld. De- fence counsel for the accused and perused the record carefully.
9. Evidence of PW5 Sh. Mehar Singh (Eye Witness), PW 7 Rajiv Kumar, PW8 SI Lakh Ram and PW 9 IO are relevant.
10. Evidence of the PW 5 is relevant wherein he deposed that on 16.03.2015 he was waiting near before the Chan Hospital situated at Main Gurgaon Chhawla road and he saw the offending vehicle at a very high speed and hit motorcycle near PNB ATM bank. Consequently, motorcycle along with the motorcyclist fell down and he rush towards the road. The driver of the said car ran away along with his car. Witness took lift from the another car and block the way of the offending vehicle. He deposed that accused has hit the motor- cycle from the back side as direction of both the vehicles were same. Witness brought the accused along with his car at the spot. They shifted the injured to Chan hospital by the car of the accused from where injured was referred to Ayushman hospital where police arrived and he handed over the custody of the accused to police. Police had recorded his statement Ex. PW 5/A. Witness shown the place of incident to the IO. Police arrested the accused and taken him to the PS. Witness signed arrest vide memo Ex. PW 5/B. He State v. Vikas Kumar FIR No.144/153 PS: Chhawla 6 had further deposed that the offending vehicle was not having regis- tration number. The colour of car was of white colour but he cannot identify otherwise it was not having any number plate. Witness failed to identify the photographs of offending vehicle and deposed that it was having number plate without any number. He deposed that the number on number plate might have been written later on. Witness identify the victims motorcycle correctly At this stage, ld. APP requested the court to ask some leading question which was allowed.
Witness has deposed that he had signed the site plan Ex. PW 5/C and he also signed the seizure memo of motorcycle Ex. PW 5/D. He also signed the seizure memo of offending vehicle PW 5/E. Seizure memo of the DL of the accused was also signed by him vide Ex. PW 5/F At this stage witness along with Niab court Pawan went to the parking of the court. Witness came back in the court and deposed that at the time of accident the car shown in the parking was not having the number plate HR 55V-3057 but the model and colour of the car similar to the offending vehicle.
In his cross examination witness has deposed that there may be thousand of vehicles which are similar model and colour shown to him. He deposed that the car was having temporary number i.e. DL 1TQ 9640 and the said number is not on car. He admitted that vehicle can be identified either by Chasis number or State v. Vikas Kumar FIR No.144/153 PS: Chhawla 7 engine number. He deposed that offending vehicle he recognized only from the car only from the colour of the car. He further deposed that accused was handed over to police at the spot. Again said he was handed over to the police in the Chain Hospital. He deposed that he had signed some documents but he had not gone through contents thereon. He deposed that he came at the spot second time with police from the PS. The offending vehicle and accused were in the PS. He deposed that he cannot tell the particulars of those documents on which he put his signatures.
11. Evidence of the PW 7 Rajiv Kumar is relevant wherein he deposed that he was the owner of the Fast track cab company and offending vehicle was registered in the name of company. He deposed that on the day of incident car was having a temporary number and was being driven by the accused. He deposed that he received notice u/s 133 MV Act and its reply Ex. PW 7/A.
12. Evidence of PW 9 ASI Bharat Lal is relevant wherein he had deposed that on 16.03.2015 he was on day emergency duty along with Ct. Mahavir and a DD no. 9A regarding accident at PNB ATM, Deenpur Chhawla Najafgarh Road was received to him at about 8:18 am. Thereafter he along with Ct Mahavir reached at the spot where eye witness Sh. Mehar Singh met him and give his statement vide Ex. PW 5/A. He has further deposed that he also found one motorcycle bearing no. DL4SBS0191 and swift car DL-
State v. Vikas Kumar FIR No.144/153 PS: Chhawla 8 1TAQ-9640 in accidental condition at the spot and driver of the swift car namely Vikas handed over by the Mehar Singh to him at the spot. He also told that he had apprehended accused Vikas in front of Hero Honda Show Room and took him back at the spot. Witness correctly identified the accused in the court. He had further deposed in the meanwhile he received DD no. 19A regarding admission of injured in Ayushman hospital. He left with the Ct. Mahavir at the spot after handing over the custody of accused and for safety of the spot. Witness reached at the Ayushman hospital where MLC of injured Sunil Malik was received who was declared unfit for the statement. He returned at the spot and prepared rukka Ex. PW9/A and handed over rukka to Ct. Mahavir who came back at the spot and handed over copy of FIR and original rukka to him. He prepared site plan Ex. PW5/C and seized both vehicles found at the spot vide seizure memo already Ex. PW 5/D and 5/E. He also seized DL of the accused vide memo already Ex. PW 5/F. He arrested the accused vide arrest memo already Ex. PW 5/B. Witness served notice u/s 133 MV Act to owner of the vehicle bearing temporary no. DL-1TAQ9640 which is Ex. PW9/B. Owner of offending vehicle namely Rajiv Kumar had replied the same Ex. PW 7/A. Witness got conducted mechanical inspection of offending car and motorcycle Ex. PW 6/A and Ex. PW 6/B. Witness also served notice u/s 91 Cr PC to the owner for producing the relevant documents of the offending vehicle, notice is Ex. PW 9/C. He further deposed that on 21.03.2015, deceased died in the hospital. Witness handed over dead body vide Ex. PW 1/A, Ex. P2/B and Ex. PW 1/B. State v. Vikas Kumar FIR No.144/153 PS: Chhawla 9 In his cross examination, he has stated that he recorded the statement of PW 5 after returning from the hospital at 11:30 am. He deposed that he had not made any alternation in the site plan. He deposed that he had not taken any signature in the site plan of any witness.
At this stage witness was confronted to the site plan where site plan bears the signature Ex. PW 5/C. Also it bears the details of FIR Section and PS with date which he filled up after coming of Ct. Mahavir from PS. He recorded the statement of PW 5 at the spot.
13. I have carefully perused the material on record and heard the submissions of the Ld. Counsels.
14. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled State v. Vikas Kumar FIR No.144/153 PS: Chhawla 10 to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
15. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
16. In another case titled as Mousam Singh Roy & ors. vs. State of West Benga (2003) 12 SCC 377 wherein it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence. It was further observed that it is a well settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused.
17. In the present matter, accused has been charged for the offences punishable u/s 279/304A IPC and prosecution has to prove the following points to bring home the guilt of rashness or negligent driving by the accused Vikash Kumar.
1. That the accused was driving the vehicle i.e. Swift Dezire bearing no. DL1TAQ9640 at the time of accident i.e. identification of accused and identification of offending vehicle.
2. That he was driving the said vehicle in rash or negligent manner thereby causing death of deceased Sh. Sunil Malik.
State v. Vikas Kumar FIR No.144/153 PS: Chhawla 11
18. Before proceedings further, it is necessary to discuss the meaning of expression "rash and negligent".
Although the expression rash and negligent has not been defined in the Indian Penal Code, but the said terminology has been discussed by the Hon'ble Supreme Court in case titled as "S.N. Hussain vs State of Andhra Pradesh, AIR 1972 SC 685, State of H.P vs Piar Chand, Crl. Appeal no. 109/2003 decided on 02.06.2003 and in Ram Avtar vs State of Rajasthan II (2006) ACC 438", passed by Hon'ble Rajasthan High Court.
19. In S. N. Hussain case, criminal negligence has been defined as:
"The gross and culpable neglect or failure to exercise reasonable and proper care to guard against injury either to public generally or individual in particular. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
Criminal rashness as defined in State of H.P vs Piar Chand's case and Ram Avtar's case is that:
"The criminal rashness is doing a dangerous or wanton act within knowledge that it is so and may cause injury without intention to cause injury and without knowledge that injury would probably be State v. Vikas Kumar FIR No.144/153 PS: Chhawla 12 caused. Therefore, to incur criminal liability, the act must be done with rashness or in difference as to the consequences.
Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing injury to the public or a person or an individual."
Hon'ble High Court of Delhi in case titled as "Vinod Kumar vs State 2012 (1) RCR (Crl.) 567" has observed as followed:
" No evidence or any other material was placed on record by the prosecution to show the manner in which the petitioner was driving the said vehicle to prove rashness and negligence of the petitioner. No photographs of the spot has been taken.
None of the eye witness i.e. PW-1 and PW-2 had deposed anything in regard to the accident or the manner in which the vehicle was being driven by the petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the petitioner. Moreover, there is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and State v. Vikas Kumar FIR No.144/153 PS: Chhawla 13 negligence on the part of the petitioner, specially when the area was a crowded one."
The Hon'ble High Court of Delhi in case titled as Abdul Subham v. State (NCT of Delhi) 2006(3) JCC 1797 held that driving a vehicle at a very high speed cannot be termed as rash or negligent driving when there is no evidence on record describing the manner in which accused was negligent.
20. With regard to the first point pertaining to the fact that it was the accused who was driving the vehicle at the time of accident is concerned. In this regard, testimonies of PW 5 and PW 7 are relevant. As per testimony of PW 5 accused deriver was apprehended at the spot by blocking his vehicle and he handed over his custody to police either in the hospital or at the spot. His testimony is also corroborated from the testimony of PW 7 who had deposed that accused was driving the offending vehicle having temporary no. DL 1TAQ9640 and it got permanent number later on as HR 55V-3057. Therefore, there is no doubt that accused was driving the vehicle at the time of incident and also there is no doubt regarding identity of offending vehicle. Hence, identity of accused and of offending vehicle stands established.
21. With regard to the second point, pertaining to the fact that accused was driving the vehicle in rash or negligent manner, thereby causing death of deceased Sh. Sunil Malik is concerned. It State v. Vikas Kumar FIR No.144/153 PS: Chhawla 14 has now come on record by way of deposition of PW5 Mehar Singh that accused was coming from the side of Chawala Side at a very high speed and hit the motorcycle forcibly. He deposed that accused hit the motorcycle from back side as the directions of both vehicles were same. But perusal of his statement PW 5/A reveals that this fact that the accused hit the motorcycle from back side is not mentioned therefore, it can be said that the testimonies of PW 5 is somehow full of doubts. Moreover, PW 5 had not deposed anything regarding the manner in which the accused was driving the vehicle. However, he had simply deposed that accused was driving the vehicle at a very high speed and struck against the motorcycle. As per the testimonies of PW 5 and PW 9 wherein they had deposed that site plan Ex. PW 5/A was prepared at the instance of PW 5. Neither had PW 5 deposed the direction of the motorcycle of the deceased nor had he deposed the lane on which the deceased was driving his motorcycle. PW 5 had only deposed that accused hit the motorcycle at a very high speed.
Driving a vehicle at a very high speed cannot be regarded as rash or negligent driving as per the ratio of case titled as Abdul Subhan v State NCT of Delhi. In the present case also PW 5 had only deposed that offending vehicle hit the motorcycle at a very high speed and he had not deposed the manner in which the said vehicle was being driven. Although the direction of both the vehicle were same. But there are contradictions in the testimony of PW 5 with regard to the fact that the motorcycle was hit from the back side or State v. Vikas Kumar FIR No.144/153 PS: Chhawla 15 was simply hit as stated by him in his evidence as well as in his statement Ex. PW 5/A. Therefore, there is doubt regarding veracity of testimony of PW 5. Moreover, testimony of PW 5 comes under the shadow of dark because PW 5 is relative of deceased. However, perusal of the site plan reveals that motorcycle was driven in the same direction as that of the offending vehicle. Therefore, it cannot be said that accused was negligent in driving his vehicle. With these observations, it can be said that prosecution has failed to prove its case beyond reasonable doubt the fact that accused was driving the vehicle in a rash or negligent manner.
22. Intention in such cases is not material. Contradictions in the testimonies of the witnesses are bound to happen because human memory is so fragile that it cannot remember the whole event in a same sequence in which it might have happened. The court has to see that material facts have been mentioned by the witnesses clearly and have not suppressed or concealed essential elements required to prove the incident/accident. Moreover, the court has to be very vigilant to satisfy itself that all essential witnesses have corroborated with each other on material particulars. Undoubtedly, in the present case some contradictions has come on record which are very crucial and vital which go to the root of the case and thereby demolishing the case of the prosecution. Contradictions with regard to the preparation of site plan is not so vital which can be taken into consideration while assessing the evidence which has come on record. The court has to see whether other witnesses in this regard State v. Vikas Kumar FIR No.144/153 PS: Chhawla 16 are also reliable, trustworthy, convincing and cogent.
In criminal jurisprudence when the evidence are led by both the parties i.e. prosecution side and accused side, then the court has to weigh both the evidence carefully and shall give equal importance. The court shall remain vigilant, while assessing the creditability and trustworthiness of witnesses in order to cull out the truth hidden in the facts to arrive at the rightful conclusion. In the present matter also evidence has been led by both the parties.
23. In view of the above observations, the prosecution has miserably failed to prove its case against accused Vikash Kumar beyond reasonable doubt. Therefore, accused Vikash Kumar is acquitted from all the charges i.e. 279/304 A IPC.
24. Documents, if any be returned to the rightful person. Bail bond and surety bond stands discharged. Endorsement, if any, be cancelled. Superdari, if any, stands cancelled. Case property, if any, be released to its rightful owner.
25. Bail bond u/s 437 A Cr PC is on record.
26. File be consigned to record room.
Announced in open Court on 24.12.2018.
(SANTOSH KUMAR SINGH)
Metropolitan Magistrate-05 (South-West)
24.12.2018
SANTOSH Digitally signed by SANTOSH
KUMAR SINGH
KUMAR SINGH Date: 2018.12.24 16:08:24 +0530
State v. Vikas Kumar FIR No.144/153 PS: Chhawla 17