Delhi District Court
Unknown vs State (Govt Of Nct Of Delhi)", 184 (2011) ... on 25 July, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, THC, DELHI,
State v. Prahlad Kumar
FIR No. 390/07
PS Paschim Vihar
U/s 279/304 A IPC
JUDGMENT
C C No. : 369/2/10
Date of Institution of the case : 26.11.2008
Date of Commission of Offence : 01.05.2007
Name of the complainant : ASI Ramphool PS Paschim Vihar
Name & address of the accused : Prahlad Kumar
S/o Dasai Ram
R/o C-1/9 Prem Nagar-III
Nangloi, Delhi
Offence complained of : 279/304A IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 01.07.2014
Date of announcing of judgment : 25.07.2014
JUDGMENT
By this judgment the court shall dispose off the case u/s IPC. In brief the case of prosecution is as under:-
1) That on 01.05.2007 at about 11.50 am in front of Multan Nagar, Rohtak Road, Paschim Vihar, Delhi, within the jurisdiction of PS Paschim Vihar, the State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07 accused Prahalad Kumar was driving a car bearing no. DL 3 FR 0019 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving he hit against a child namely Harish Kumar and caused his death not amounting to culpable homicide and thereby, the accused has committed an offence punishable u/s 279/304A IPC.
2) The charge sheet was filed against the accused in the court. Documents were supplied to him. Thereafter notice was served upon the accused u/s 279/304A IPC by the Ld. Predecessor to which accused pleaded not guilty and claimed trial.
3) In order to prove the charge against the accused, the prosecution examined 7 witnesses namely (1) Jenti Prasad (2) Sanjeev Sehgal (3) W/ASI Pushpa (4) HC Virender (5) Dr. Anil Jindal (6) Dr. Manoj Dhingra (7) Retired ASI Ramphool
4) PW-1 is Jayanti Prasad father of the deceased child, had identified his dead body in the mortuary of SGM hospital vide memo Ex. PW1/A.
5) PW-2 Sanjeev Sehgal is superdar and owner of car no. DL3FR 0019. He deposed that car was involved in the present case. He had received notice under Section 133 M V Act from the IO and his reply to the same is Ex.
PW2/A. He deposed that he was not aware as to who was driving the said car on 01.05.2001 at about 11.15 pm. He further deposed that the said car State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07 is usually being driven by the accused or witness himself. He had admitted that in his reply Ex. PW2/A, he had said that the accused was driving the car on 01.05.2007. He further deposed that car is no longer road worthy as its gear box and other motor parts had damaged. The photographs of the car are mark B.
6) During cross examination, he stated that he had no written record of accused's employee at that time. He denied the suggestion that he is blaming the accused to save some other person.
7) PW-3 ASI Pushpa proved the FIR as Ex. PW3/A and endorsement on rukka as Ex. PW3/B. In the cross examination, she stated that Ct. Virender who had brought the rukka had left the PS at 2.45 pm. She admitted that she had not entered the particulars in the computer for registration of FIR.
8) PW-4 HC Virender deposed that on 01.05.2007 he was on emergency duty. On receipt of a call from Maharaja Agrasen Hospital, he along with ASI Ram Phool went there. A child was found admitted in unconscious condition. IO prepared the tehrir and sent him to the police station for registration of FIR. After getting the FIR registered, he returned back to the spot and handed over the copy of FIR and original tehrir to IO. He further deposed that on 04.05.2007, the accused was arrested in his presence. The arrest memo and personal search memo of the accused are Ex. PW4/A and Ex.PW4/B respectively. IO seized the driving license of the accused vide memo Ex.
State v. Prahlad Kumar U/s 279/304A IPC
FIR No. 390/07
PW4/C.
9) During cross examination, he stated they had stayed in the hospital for 30-40 minutes before proceeding to PS with rukka. He could not recall the time at which he had proceeded from the hospital. He denied the suggestion that his signatures on Ex. PW4/A and Ex. PW4/B, Ex. PW4/C were obtained by the IO in the absence of the accused.
10)PW-5 Dr. Anil Jindal deposed that on 01.05.2007 he was posted at Maharaja Agrasen Hospital as CMO. At about 11.15 am, one unknown boy aged about 10 years was brought by a person called Prahalad with history of road traffic accident. He examined the boy and got him admitted to ICU. His report is Ex. PW5/A.
11)PW-6 Manoj Dhingra deposed that on 04.05.2007 he was incharge mortuary, SGM hospital and had conducted the postmortem of Harish. He exhibited the postmortem report as Ex. PW6/A. He deposed that he had seen seven injuries on the body and there was sub scalp Haemotoma over both frontal region. According to him cause of death was coma as a result of head injury consequent to road traffic accident. In the cross examination, this witness admitted that Sub-scalp Haemotoma could be caused by a fall.
12)PW-7 Retired ASI Ram Phal deposed that he had gone to Maharaja Agrasen Hospital along with Ct. Virender on receiving DD No. 16A on 01.05.2007. At the hospital he collected the MLC of the unknown child. Thereafter, he went State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07 to the spot of the accident. No vehicle or eye witness was found at that place. He prepared the rukka Ex. PW7/A and gave it to Ct. Virender for registration of FIR. On 03.05.2007, the injured expired in the hospital and on 04.05.2007 his postmortem was conducted. On 04.05.2007 one lady namely Omwati came to the police station stating that she was the eye witness to the accident. The statement of the said lady was recorded under Section 161 Cr.P.C. He prepared the site plan Ex. PW7/B at her instance. He served the notice under Section 133 MV Act to the owner of the offending vehicle which is Ex. PW7/C. On the basis of reply to the notice, the accused was arrested vide memo Ex. PW4/A. The driving license of the accused was seized vide memo Ex. PW4/C and the offending vehicle was seized vide memo Ex. PW7/D. Mechanical inspection of the offending vehicle was conducted on his application Ex. PW7/E. He filed the charge-sheet after completion of the investigation.
13)During cross examination, he stated that the deceased and eye witness were residing in the same camp which was at a distance of 100-125 yards from the spot. He admitted that in May 2007, Metro Rail Construction work was going on and iron barricades had been erected in the center of the road by Metro Rail Corporation. He voluntarily stated that there were gaps in the barricades which were used by the pedestrian for crossing the road. He denied that no gaps were left between the barricades. In the site plan Ex.
State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07 PW7/B, he pointed out B- B1 as the place where iron barricades were erected. He admitted that no barricades have been shown in the site plan. He admitted that there is no pedestrian crossing at the spot where the accident had taken place. He denied the suggestion that he had not conducted the investigation in a proper manner and the accused has been falsely implicated.
14) Thereafter PE was closed. Statement of accused was recorded wherein he denied all the allegations against him and pleaded innocence but did not lead any evidence in his defence. He admitted that he was driving the vehicle on the alleged date, time and place. However, he denied driving in a rash and negligent manner. He stated that the child had came in front of his vehicle all of a sudden.
15)I have heard the arguments addressed by the prosecution and the Ld. Counsel for accused. I have gone through the documents on record. Ld. Counsel for the accused has submitted that the prosecution has not been able to prove the guilt of the accused as the sole eye witness has not been examined.
16)To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
17)Before proceeding further, let us discuss the meaining of the expressions "rash" and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Blacks Law Dictionary, Eighth Edition, the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
18)In State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Hon'ble High Court of Himachal Pradesh, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference 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 of injury to the public or a person or a individual."
19)The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S.N. Hussain v. State of Andhra Pradesh", State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07 AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted".
20) It has been further observed in S.N. Hussain (Supra) as under: "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".
21)In the case at hand, it is admitted by the accused that he was driving the vehicle no. DL3FR 0019 on the alleged date, time and place. However, he has submitted that he was not driving the vehicle in a rash and negligent manner and the deceased child had come in front of his vehicle all of a sudden. From the record it appears that it was the accused who had taken the child to the hospital as reflected from the MLC of the injured child. The only eye witness Omwati could not be examined as she is already expired. Also, nothing substantial could be deduced from the Mechanical Inspection report of the vehicle no. DL3FR 0019. There are no photographs of the place of accident.
State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07
22)In absence of the testimony of the sole eye witness, the prosecution can never prove that the accident in the present case was a result of an act of accused and that the accident was caused by the vehicle bearing number DL3FR0019 which was being driven by the accused Prahlad Kumar in a rash and negligent manner.
23)It was held by the Hon'ble High Court of Delhi in case title "Jagdish Prasad vs State (Govt of NCT of Delhi)", 184 (2011) DLT 285 the accused is entitled to benefit of doubt when the sole eye witness has not identified him as the driver of the truck. It was observed that the registered owner of the vehicle in question has failed to produce any record that the accused was driving the truck on the relevant day. It was held, "Otherwise also, a possibility cannot be ruled out that PW Harvinder Singh was himself driving the truck at the time of accident and in order to save himself as the actual truck driver, he has falsely named the accused as the driver of the truck. Thus in my view the testimony of PW-5 is not sufficient to conclude beyond doubt that the revisionist Jagdish Prasad was driving the truck in question."
24)It is cardinal principle of law that the guilt of the accused is to be proved beyond reasonable doubt and even an iota of doubt would entitle the accused to be acquitted. The prosecution has failed to prove the guilt of the accused beyond reasonable doubt.
State v. Prahlad Kumar U/s 279/304A IPC FIR No. 390/07
25)Thus in view of the above discussion, the court is of the view that the prosecution has failed to prove that the accused was driving the same in rash and negligent manner. Thus, the accused is entitled to be acquitted. Accordingly, accused Prahalad is acquitted under Section 279/304AIPC.
26)As per section 437A Cr.P.C accused is admitted to bail on his furnishing personal bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED ON 25.07.2014
(SAUMYA CHAUHAN)
MM-07(West)/ Tis Hazari Court /25.07.2014
State v. Prahlad Kumar U/s 279/304A IPC
FIR No. 390/07