Delhi District Court
State vs Rukhman Ram on 29 April, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Visvesh, DJS
Cr. Case No. -: 853/2018
Unique Case ID No. -: DLSW020007782018
FIR No. -: 69/2017
Police Station -: BHD NAGAR
Section(s) -: 279/337/304A IPC
In the matter of -
STATE
VS.
RUKHMAN RAM
S/o Sh. Hanuman Ram,
R/o VPO Hanuman Pura,
Tehsil & P.S. Chouhtan Distt.
Barmer Rajasthan.
.... Accused
1. Name of Complainant : Chander Mohan
2. Name of Accused : Rukhman Ram
Offence complained of or
3. : 279/337/304A IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 12.05.2017
offence
6. Date of Filing of case : 06.01.2018
7. Date of Reserving Order : 18.04.2024
8. Date of Pronouncement : 29.04.2024
Acquitted of all the charges
9. Final Order :
alleged
Argued by -: Sh. Vishvjeet Yadav, Ld. APP for the State.
Sh. SPS Tyagi, Ld. counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-Cr. No. 853/2018 State vs. Rukhman Ram Page 1 of 18
1. It is the case of prosecution that on 12.05.2017, at about 10.35 a.m., in front of the fields of Pandit Rajender, main road Jharoda Kalan to Bhadurgarh Road, ahead of Satyapuram colony, within the jurisdiction of Police Station BHD Nagar, the Accused Rukhman Ram was driving a truck i.e. oil tanker bearing No.GJ-12Z-1812 rashly and negligently in such a manner so as to endanger human life and personal safety of others and while driving so the aforesaid vehicle hit against motor cycle bearing no. DL-5S-AX-7209( Hero Passion) and caused simple injuries to complainant Chander Mohan and death of his wife Mrs. Cherry Sharma not amounting to culpable homicide, thereby committing offences punishable under Sections 279/337/304A of Indian Penal Code (hereinafter, the 'IPC').
2. After conclusion of investigation, instant chargesheet was filed under Section 279/337/304A IPC. Cognizance of the offences disclosed in the chargesheet was taken, and accused was summoned to face trial.
3. When the accused entered appearance before this Court, copy of chargesheet was supplied to him in compliance of Section 207 CrPC.
A formal notice explaining to him the substance of accusation against him was served upon the accused on 04.07.2018. Accused pleaded not guilty to the offences alleged against him, and claimed trial. Proceedings then progressed to the stage of PE and prosecution examined nine witness to prove its case.
PROSECUTION EVIDENCE
4. Prosecution first examined Sh. Vijay Kumar Sharma as PW-1. PW-1 states that on 13.05.2017, he identified dead body of his daughter namely Cherry vide identification memo Ex.PWI/A and after post mortem, dead body was handed over to him. In his cross examination he deposed that IO interrogated him and recorded his statement in hospital. He further deposed that die did not record the statement of any other person in his presence.
Cr. No. 853/2018 State vs. Rukhman Ram Page 2 of 185. Prosecution next examined Sh. Chander Mohan, complainant as well as injured in the present matter and the sole eye witness of the presence incident, as PW-2. PW-2 deposed that he works in a private company i.e. NTT Data as an Associate. On the day of incident i.e. 12.05.2017 at about 10.15a.m, he was going towards Gurgaon alongwith his wife namely Cherry(deceased) from the side of Bahadurgarh on a motorcycle bearing registration no. DL-5S AX- 7209(Passion). He was riding the bike and his wife was pillion rider. He deposed that when he reached Jharoda border at about 10.35a.m and was on left side of the road, there was a tree on the side of the road and he took slight right turn to avoid the tree, in the meanwhile one truck bearing registration no. GJ 12Z 1812 hit his bike from behind, due to the impact his wife fell down on the right side of the road and the said truck rammed over her. He further deposed about the speed of truck which was about 60Kmph or more. The driver of the truck was driving negligently. He further deposed that he also fell down on the left side of the road and sustained injuries on his left hand and left shoulder. He stated that the driver of the offending truck had fled away from the spot after leaving his truck at the spot and someone called at 100 number and PCR reached at the spot and they were shifted to the RTRM Hospital by the police. His wife was declared brought dead by the doctor in the hospital and he was medically examined. His statement was recorded by the Ex-PW-2/. Thereafter, he had shown the place of incident to the police and site plan was prepared Ex Pw-2/. Police seized his motorcycle and the offending truck. After postmortem body of his wife was handed over to the family. On 16.05.2017, he went to the P.S BHD Nagar and identified the accused, who is present in the court today, witness correctly identified the accused. Thereafter, he deposed about the formalities done by the IO i.e. seizure of documents of offending Cr. No. 853/2018 State vs. Rukhman Ram Page 3 of 18 vehicle vide seizure memos Ex Pw-2/F, seized the DL of the accused vide memo Ex PW-2/G, arrested the vide memo Ex PW-2/H and conducted his personal search vide memo Ex PW-2/I, recorded his disclosure statement of the vide memo Ex Pw-2/. He correctly identified the accused and the offending vehicle from photographs Ex. P1 to P9.
6. In his cross-examination PW-2 deposed as correct that no other persons were present there at the time when the accident took place. He stated that he did not know as to who made a call at 100 number or that at what time police officials reached on the spot. He stated that he was riding his motorcycle with the speed of 20kmph and the tree was lying on the side of the road. He admitted that to avoid the tree he took a turn to right side. He denied the suggestion that his bike was ahead of the offending truck and he could see only the front view of his motorcycle and that is why he could not see the speed of the truck, which was coming from behind. He further denied suggest that while taking right turn in order to escape the tree, his motorcycle got slipped and due to this, he and his wife fell down on the road. He further denied the suggestion he has not seen the face of the accused at the time of accident as he had fled away from the spot. He further denied the suggestion that he had seen the driver of the truck from the back side at the time when the accident took place. He further stated that he does not remember the time when he came back alongwith police persons to show them the place of incident. He deposed that the site plan was prepared in the police station after showing the place of incident to the police. He denied the suggestion IO has obtained his signature on blank papers. He further stated that he does not remember the exact number of the documents on which police has obtained his signature. He further deposed that the IO called him on 16.05.2017 in the police station. He denied the suggestion at the time of incident Cr. No. 853/2018 State vs. Rukhman Ram Page 4 of 18 accused was not driving the offending vehicle or that police have shown him the wrong person in the police station. He further stated that statement of the owner of the offending vehicle was not recorded in his presence. He further denied the suggestion he had registered a false case against the accused. He further denied the suggestion that the driver of the truck was not driving the truck rashly and he had mentioned the speed of truck wrongly
7. Prosecution next examined W/ASI Kaushalya as PW-3. PW-3 deposed that on 12.05.2017 Ct. Anil brought the rukka, which was send by ASI Rohtash. On the basis of rukka, she registered the FIR no. 69/2017 Ex. PW3/A (OSR). She also made endorsement on the rukka Ex. PW3/. After registration of FIR, original rukka and FIR was handed over to Ct. Anil for further investigation. She also prepared certificate u/s 65B of Indian Evidence Act Ex. PW3/C. She was duly cross examined by defence counsel and discharged.
8. Prosecution next examined HC Jagbir Singh as PW-4. PW-4 deposed that on 12.05.2017, at about 10.45a.m. he was on patrolling near Jharoda village and one passerby informed regarding accident near Satyam Puram Colony. Thereafter, he alongwith his staff reached at the spot and saw one lady in injured condition and truck parked there. On inquiry, they came to know that truck had crushed the head of the woman under its wheels. Thereafter they alongwith the husband of that woman namely Chander Mohan took her to RTRM Hospital, where the doctors declared her brought dead. They deposited the dead body in the mortuary of RTRM hospital for postmortem and left HC Parkash chand for its safety.
9. In his cross-examination PW-4 deposed that HC Parkash Chand and one driver were patrolling duty with him on that day, however he did not remember the name of the driver. He further deposed that he cannot tell the name of passerby, who informed him about the Cr. No. 853/2018 State vs. Rukhman Ram Page 5 of 18 accident. When he reached to the place of accident, no police official was present there. They remained at the spot for about two minutes and immediately took the injured to hospital and reached at the hospital within 20-25 minutes. He further deposed that no other police official except ERV staff and duty constable of RTRM hospital were present there at the hospital, when they reached alongwith the dead body. He admitted that he had not seen the driver of the truck at the place of accident or in the hospital. He further stated that he did not know as to who is the owner of the offending vehicle. He stated that IO recorded his statement at the spot and he do not remember whether the statement of any other police official was recorded in his presence. He denied the suggestions put by the defence counsel for being not present at the spot and not a part of the investigation.
10. Prosecution next examined Smt. Usha Sharma as PW-5. PW-5 deposed that she is mother of deceased and on 08.12.2016. On 12.05.2017, they received a phone call from the house of in-laws of her daughter regarding her road accident and in the hospital, they came to know about her death. The witness was duly cross examined by the defence witness and discharged.
11. Prosecution next examined Ct. Anil as PW-6. PW-6 deposed that he joined the investigation alongwith IO/ASI Rohtash Singh, after receiving DD no.24A. Thereafter, he alongwith ASI Rohtash went to the spot and found one motorcycle and one oil tanker in accidental condition. Registration number of motorcycle was DL-5S-AX-7209 and RC number of oil tanker was GJ-12Z-1812. About the injured, they came to know that ERV vehicle had already taken him to the RTRM hospital. IO had left him to the spot and left for hospital. He deposed that IO handed over him the tehrir and he got registered the FIR. He deposed about seizure of offending vehicles and formalities carried out by the IO at the spot.
Cr. No. 853/2018 State vs. Rukhman Ram Page 6 of 1812. In his cross examination he deposed that he reached at the place of accident at around 12.30p.m and did not meet with any other police official. He remained at the spot prior to registration of case for about 1/2 hour to two hours. After coming back from the P.S, he did not meet any other police official except the IO. He admitted that IO did not record the statement of any person including police official in his presence.
13. Prosecution next examined Dr. Neha Martolia, Medical Officer, as PW-7. PW-7 stated that on 12.05.2017, she was posted at RTRM Hospital Jaffarpur New Delhi as Medical Officer on the day of incident and she prepared two MLCs of two patients. The MLCs No. were 2259 and 2260. MLCs Ex.PW7/A and Ex. PW7/B. As per MLC No. 2259, the patient was brought dead and she did the local examination of the body and body was sent to mortuary for the purpose of postmortem. As per MLC No. 2260, the patient had abrasion over left elbow. He was given primary treatment and nature of injury was simple. She further deposed that she also issued provisional death certificate of deceased of MLC NO. 2259 Ex. PW7/C.
14. In her cross-examination PW-7 deposed that both the MLCs were prepared in her own handwriting. She further deposed that she did not remember if at the time of preparing MLCs any attendant was there or not. The patient of MLC No. 2259 was brought by HC Jagbir Singh but she did not remember if anyone else was there with HC Jagbir Singh or not.
15. Prosecution next examined ASI Rohtash Singh, Investigating officer of the present matter, as PW-8. PW-8/ IO deposed that on 12.05.2017, on receipt of DD No. 24A regarding accident at Jharoda-Bahadurgarh Road, opposite to Satyapuram Colony, near Jharoda Toll he alongwith Ct. Anil went to the spot and found that one motorcycle bearing no.
Cr. No. 853/2018 State vs. Rukhman Ram Page 7 of 18DL 5S AX 7209 and one oil truck RC No. GJ 12Z 1812 in accidental condition. He came to know that the injured have been shifted to hospital by ERV vehicle. I left the Ct. Anil at the spot and went to RTRM Hospital where he came to know that one lady Cherry who was declared brought dead in the hospital and her MLC NO. was 2259/17. He also met another injured namely Chander Mohan who was the husband of the deceased and whose MLC NO. 2260/17 was prepared in the hospital who received simple injuries. He recorded his statement. He further deposed that he alongwith injured came to the spot and prepared tehrir and conducted other codal formalities like preparation of site plan, seizure of offending vehicle and the victim's vehicle and recorded statement of witnesses. During investigation, he conducted postmortem of the deceased and thereafter, the dead body was handed over to the relatives of the deceased. On 16.05.2017, the owner of the offending vehicle Arvind Mayatra alongwith driver of the offending vehicle Rukhman Ram had come in the PS and he served notice u/s 133 MV Act. He seized the documents of the offending vehicle. He further stated that the about the identification of accused by the complainant and he arrested the accused. He further conducted mechanical inspection of both the vehicles. He stated that accused has refused to conduct his TIP proceedings and released the vehicles on superdari. He correctly identified the offending vehicle and the victim's vehicle.
16. During his cross-examination PW-8 deposed that he alongwith Ct. Anil Kumar reached to the place of incident on 12.05.2017 at about 11:10 p.m. on motorcycle but he does not remember the registration number of the said motorcycle. He further deposed that Earlier, they remained there for around 10 minutes and thereafter, he went to RTRM hospital. He recorded the statement of complainant in the hospital at about 12:30p.m and at that time, he did not record the Cr. No. 853/2018 State vs. Rukhman Ram Page 8 of 18 statement of any other person or meet with any police official in the hospital. He further deposed that he recorded the statement of ERV officials in the PS on 12.05.2017 however, he did not remember the time when he recorded their statement. He further deposed that HC Jagbir Singh and one Ct. Prakash Chand were also present in the ERV vehicle when they had gone to the place of incident. He admitted that he has not made Ct. Prkash Chand as a witness in the present case. He stated that he did not notice any falling or bending of tree near or at the spot. He stated that he does not remember whether any blood stains were seen on the tyres of the truck. He had seen the light skid marks on the road but the same cannot be seen in the photographs. He admitted that he did not record the statement of owner of the offending vehicle. As owner had given his reply in the notice u/s 133 MV Act itself. He admitted that he had not made owner of the vehicle as a witness in the present case. The owner of the vehicle produced the accused/driver at around 10:15 a.m. on 16.05.2017 and complainant had come in the PS after around 5 to 7 minutes of coming of accused and owner of the offending vehicle. He denied the suggestion that he had shown the driver/accused to the complainant in the PS. He admitted that he did not find the driver of the offending vehicle at the spot when he reached there on 12.05.2017 as he had fled away from the place of incident. He denied the suggestion that he with the connivance of owner of oil tanker falsely implicated the accused in the present case or that the accused was not driving the vehicle at the relevant point of time.
17. Prosecution next examined Sh. Arvind Mayatra, owner of the offending vehicle, as PW-9. PW-9 deposed that He is the owner of the offending vehicle make Tata Truck / Oil Tanker bearing registration no. GJ 12Z 1812 and the said truck was being driven by Driver Rukman Ram on the date of the accident. He further deposed that he Cr. No. 853/2018 State vs. Rukhman Ram Page 9 of 18 came to know about the accident from the police. He stated that he received the noticeunder Section 133 MV Ex. PW9/A and he replied the same. He got released the vehicle on superdari Ex. PW9/B. He further stated that he had handed over the RC, permit and insurance of the vehicle to the IO which was seized vide seizure memo PW2/F. He correctly identifiedthe offending vehicle.
18. In his cross examination he deposed that he did not remember the date on which notice under Section 133 MV act was served upon him or the date on which I had gone to the police station. However, it was after about 2-3 days of the accident in question. He denied the suggestion that the accused was not driving my vehicle / truck at the time of the accident or that the accused has been falsely implicated in the present matter.
19. In terms of Section 294 Cr.P.C., accused admitted the genuineness of TIP proceedings dated 17.05.2017 conducted by Sh. Puneet Nagpal, Ld. MM. Ex.C-1, PMR No. 95/17 dated 13.05.2017 prepared by Dr. Parvinder Singh Ex.C-2, Mechanical Inspection Report of Motorcycle bearing No. DL-5SAX-7209 as Ex.C-3, Mechanical Inspection Report of Truck bearing No. GJ- 12Z-1812 as Ex.C-4 and DD entry No. 24-A dated 12.05.2017 is Ex.C-5. Accordingly, remaining witnesses were dropped from the list of witnesses to be examined by the prosecution. PE was closed thereafter.
20. Accused was then given an opportunity to explain all the incriminating circumstances appearing against him at trial, and his statement was recorded under Section 313/281 CrPC. He submitted the he is innocent and he have been falsely implicated in the present matter. The said accident was not caused by him. Accused opted not to lead DE in the affirmative.
21. Proceedings then progressed to the stage of final arguments. Final arguments heard. Record perused. Considered.
Cr. No. 853/2018 State vs. Rukhman Ram Page 10 of 1822. Before proceeding further, it shall be apposite to note the provisions of law germane for the adjudication of present proceedings:
279 IPC- Rash driving or riding on a public way-
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt to injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
304A IPC- Causing death by negligence-
Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
337 IPC- Causing hurt by act endangering life or personal saferty of others-
Whoever causes hurt to any person by doing any act so rashly or negligently 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 with both.
23.Liability for the aforesaid offences can be affixed upon the Accused only if the prosecution is able to prove he was "rash or negligent"
when driving the offending vehicle, which resulted in the accident.
24. In Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh (2000) 7 SCC 72, the scope of the terms "rashness or negligence" was explained by the Hon'ble Supreme Court of India thus, "A rash act is primarily an over hasty act. It is opposed to a Cr. No. 853/2018 State vs. Rukhman Ram Page 11 of 18 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."
25. With the above in mind, the facts of the case shall be adverted to. In order to prove the guilt of the Accused, the prosecution had to establish-
i. That the accident took place on a public way.
ii. That the offending vehicle was involved in the accident.
iii. That the offending vehicle was being driven by the Accused Rukhman Ram at the relevant time.
iv. That the accident took place because of the 'rashness or negligence' of the driver of the offending vehicle.
v. That in the accident that took place, death of the deceased Cherry occurred and simple injuries to Chander Mohan was caused due to the aforesaid 'rashness or negligence' of the Accused.
26.Once when liability is affixed under Section 279 IPC, it will be examined if accused can be held guilty for the offence punishable under Section 337/304A IPC too - that is, whether the accident caused because of rash or negligent driving of the accused resulted in, simple Cr. No. 853/2018 State vs. Rukhman Ram Page 12 of 18 injuries or death of a third party. The question of injuries or cause of death has to be examined only once the rashness or negligence is established.
27. It is seen that evidence led in the case is largely ocular in nature. The same shall be scrutinized as per the following principles laid down by the Hon'ble Supreme Court of India in its judgment titled Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra dated 14.07.2022 in Criminal Appeal no. 739/2017-
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.Cr. No. 853/2018 State vs. Rukhman Ram Page 13 of 18
VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096 : AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]"
28.PW-1,3,5 and 7 are formal witnesses of identification of dead body, handing over of rukka and MLC respectively. Their testimony has largely gone undisputed and is not repeated here for the sake of brevity.
29.The testimony of PW - 1/complainant is crucial to the version of the Cr. No. 853/2018 State vs. Rukhman Ram Page 14 of 18 prosecution as he is the sole eyewitness/injured witness. He has deposed that he was riding his motorcycle with his wife as pillion rider on the ill-fated day of 12th of May 2017. He deposed that he saw a tree on the left side of the road and swerved to the right to avoid the tree and the meanwhile the offending vehicle/truck hit his bike from behind with the result that he fell down on the road and the truck ran over his wife, killing her. He has also deposed that the speed of the truck was about 60 km/h or more at the time of the incident.
30.He also deposed that the offending driver fled away from the spot after leaving the truck there and then. He has stated that thereafter, on 16th of May 2017, he had gone to the PS where he had identified the instant accused who has been sent up to face trial. In his cross- examination, the witness has admitted that there were no other persons present there at the spot when the accident took place and that he was riding his bike with a speed of 20 km/h and the tree was already lying on the side of the road.
31.The excerpt from the testimony extracted above is insufficient to attribute any rashness or negligence on the part of the Accused. It is the version of PW - 1 that he was driving his motorcycle at a reasonable speed of 20 km/h wherein a tree came in his path and to avoid the tree, he swerved to the right and therein he was hit by the offending vehicle from behind. Going by the site plan as well as well as the deposition of other investigation witnesses, it is never the case of either the complainant or the prosecution that the complainant suddenly encountered the tree after taking a blind turn or that a perfectly hale and hearty tree suddenly fell down in the path of PW-1 or that he did not have any opportunity to know (in advance) that the tree would be in his path nor did the tree suddenly grow arms and legs and suddenly walked into the left side of the road. The road itself is depicted as straight with divider in the site plan and is not having any Cr. No. 853/2018 State vs. Rukhman Ram Page 15 of 18 twist/turns or sharp curves.
32.The tree was already lying there on the road and did not move at all at any point of time. Moreover, if it was really the case of PW - 1 that he was riding his bike as a 20 km/h and the speed of the truck following him as 60 km/h, it would have been very much in his control and prudence to take precautionary steps and stop the vehicle before he encountered the stationary tree, instead of undertaking a risky manoeuvre and cutting into the right side of the road and into the path of the offending vehicle.
33.It must be kept in mind that that motorbikes are small, light and agile vehicles having handlebars for changing direction (and not a steering wheel). The handlebar requires only a slight input from the rider to drastically change the direction of the bike whereas a steering wheel of a truck would require quite many turns to accomplish the same effect. Further, a motorbike can quickly accelerate/decelerate and change direction whereas the offending vehicle such as the one implicated in the present incident is a multi-axle truck/oil tanker which is a heavy vehicle having a steering wheel and cannot be expected to change direction/decelerate in the same manner as a motorbike. The evidence of PW-1 leaves scope for a plausible case wherein PW-1 himself, when he encountered the tree, instead of slowing down/stopping his motorbike or taking sufficient care to take into account vehicles coming from behind, sharply swerved and cut into the lane of the offending vehicle and got hit by it.
34.It must also be kept in mind even if a heavy vehicle is being driven within the speed limit, collision with such vehicle would cause much more damage as opposed to any other light vehicle being driven at the same speed. This is because of the laws of momentum wherein the total momentum of an object in motion would be mass times velocity and with the velocity component remaining constant, the mass being Cr. No. 853/2018 State vs. Rukhman Ram Page 16 of 18 on the heavier side would contribute to the added momentum and resultantly cause more damage on collision. To put it into perspective, the transfer of momentum of a 1000kg car at 50kmph would be the same as that of a 5000kg truck at 10kmph. But the transfer of momentum of a 5000kg truck at 40kmph would be 5 times that of a 1000kg car at 40kmph. The ocular evidence of PW-1 in respect of speed is unreliable for this very reason. PW-1 also could not depose anything about the manner of driving of the offending vehicle (whether zig-zag or otherwise) and merely stating that it was driven 'negligently' would not suffice.
35.Much emphasis was laid by the Ld. Defence Counsel on the aspect that the Accused was not apprehended from the spot of incident and was identified later on at the PS after 4 days of the alleged accident and attempt was made to create a dispute on his identity. However, the same is overruled for the reason that PW-1 has deposed to have seen the driver of the offending truck and has denied the suggestion to the contrary. In addition, PW-1 has duly identified the Accused in Court. Even otherwise, it is the Accused who had refused TIP and adverse inference can be drawn on that score. Moreover, PW-9 has also deposed that the truck was allotted to the Accused on the day of the accident. The Accused has not been able to come up with any convincing explanation which suggests any alternative set of facts qua the person driving the vehicle.
36.All the other witnesses examined in support of the prosecution are police witnesses who have deposed in respect of the investigative formalities. They are not eyewitnesses but are witnesses only to the aftermath. Their testimony, even when considered in totality as circumstantial or otherwise, does not add much weight to the case of the prosecution so as to even remotely secure a conviction and their testimony is not repeated herein for sake of brevity.
Cr. No. 853/2018 State vs. Rukhman Ram Page 17 of 1837.Thus, the evidence led by the prosecution falls short of establishing the essential ingredient of rashness/negligence for which benefit of doubt is fit to be given to the Accused. Even if the ingredients (i), (ii),
(iii) and (v) are regarded as fulfilled, the ingredient (iv) remains unfulfilled. There is a lot of difference between might and beyond reasonable doubt. The burden of the prosecution is that of beyond reasonable doubt and would not be satisfied by a mere might have been. Similarly, merely because the driver of one of the vehicles involved in an accident has survived would not ipso facto mean that the survivor is the offender and the deceased, the victim. Reliance at this juncture has to be placed upon the decision in State (NCT of Delhi) Vs. Jagbir Singh 2019 SCC Online Del 8401 wherein it has been held, "20... It is necessary to avoid being influenced by the prejudice arising out of the loss of a life which is a dominant factor in cases of accident."
38.In the absence of any other evidence, the Accused is entitled to benefit of doubt and thus the Accused Rukhman Ram is acquitted of the offence under section 279/337/304A IPC.
VISVESH Digitally signed by VISVESH Date: 2024.04.29 15:46:46 +05'30' (VISVESH) Metropolitan Magistrate-07 South-West District, Dwarka Courts, New Delhi, 29.04.2024 Cr. No. 853/2018 State vs. Rukhman Ram Page 18 of 18