Delhi District Court
State vs . Avtar Singh on 20 November, 2012
1 IN THE COURT OF SH. PURSHOTAM PATHAK : MM-07: DELHI State Vs. Avtar Singh F.I.R. No: 780/01 U/s 279/337/338 IPC P.S. Patel Nagar JUDGMENT:
(a) The serial no. of the case : 848/II
(b) The date of commission of offence : 28.10.2001
(c) The name of complainant : Sh.Harish Kumar
(d) The name, parentage, of accused : Avtar Singh,
S/o Sh. Banta Singh,
R/o B-36, Matrala Ext. Uttam
Nagar, Delhi.
(e) The offence complained of : U/s 279/337/338 IPC
(f) The plea of accused : Pleaded not guilty
(g) The final order : Acquitted
(h) The date of such order : 20.11.2012
Date of Institution of Case : 18.07.2002
Judgment Reserved for : 20.11.2012
Date of Judgment : 20.11.2012
Brief statement of the reasons for the decision:
1. In brief the case of the prosecution is that on 28.10.2001 at about 9:15 PM near Red Light, Shadipur, Naraina Road, Delhi, the accused was driving a Bus bearing No.DL-1PB-1764 in rash and negligent manner and while driving so he caused simple injuries to Ram Dhan, B.D.Jha and Umesh and caused grievous injuries to Harish and thus thereby the accused committed an offence U/s 279/337/338 IPC.
State Vs Avtar Singh Page No. 1 of 10 22. Charge sheet was filed in the court and in compliance of Section 207 Criminal Procedure Code accused was supplied with the documents. Thereafter vide order dated 19.03.2004, notice U/s 279/337/338 IPC was given to accused to which he pleaded not guilty and claimed trial.
3. In order to prove the charges against the accused, prosecution has examined following witnesses.
4. PW1 Sh.Ram Dhan deposed that on 28.10.2001 he was going to Shadipur Depot from Naraina in a bus route No.838 bearing No.DL-1PB-1764. He stated when he reached near the red light, Shadipur Depot his bus strucked against the another bus from behind and due to the struck he alongwith three/four persons received injuries. He stated that said bus was driven by the accused Avtar Singh.
In his cross examination he stated that it was night time. He stated that the speed of the bus was not high at that time. He stated he cannot produce any medical certificate regarding injuries received in the said accident. He stated he cannot tell on whose fault the accident was taken place.
5. PW2 Sh.Umesh Gandhi deposed that on 28.01.2001 he was going towards Shadipur Depot in a DTC bus and when the bus reached at bus stop of Pandav Nagar, it strucked against another bus near bus stop of Pandav Nagar. He stated in the accident his head hit against the front seat of the bus and he received injuries on his left ear. He stated he cannot say by whose fault the accident occurred .
As witness resiled from his previous statement, he was cross examined by Ld.APP in which he stated it to be correct that accused State Vs Avtar Singh Page No. 2 of 10 3 had struck against the other bus at red light and accident was caused by the accused. He stated it to be correct that he had deposed to the police that due to fast speed accident had occurred. He voluntarily stated that he can not say that driver was rash or negligent or not. In his cross examination he stated it to be correct that two buses were standing in front of the alleged offending vehicle. He stated it to be correct that out of two buses one bus was reversing back side and due to negligency of the driver of the said bus who was reversing the said bus negligently this accident took place. He stated he cannot tell on whose fault accident took place.
6. PW3 Ct.M.Shyambhai deposed that on 28.10.2010 SI Gokul Ram received a call of accident and he alongwith him went to the spot at Shadipur red light, Naraina Road. He stated there Bus No.DL-1PB-1746, Bus No. DL-1PA-7409 and Bus No.DL-1P-7899 were standing. Injured were taken to RML hospital. IO left him at the spot and went to RML hospital. He stated IO came back from the hospital and prepared rukka Ex.PW3/A and handed over to him for registration of case. Accused was arrested and personally searched vide Ex.PW3/B & 3/C. All the three buses were seized.
7. PW4 Sh.Ramdev Jha was examined on 23.03.2006 and he deposed that on 28.10.2001 he boarded the DTC bus route No.838 from Naraina for Shadipur Depot. He stated at around 9:20 PM the bus hit two standing buses in rash and negligent manner before Shadipur depot red light. He stated he do not remember the bus numbers. He stated he received injuries on his nose and three more passengers also got injuries . His examination-in-chief was deferred and later on he became untraceable.
8. PW5 HC Jagdish Raj deposed that on 28/29.10.2001 he was State Vs Avtar Singh Page No. 3 of 10 4 posted as Duty Officer and received one Rukka brought by Ct.Shyambhai sent by SI Gokul Ram and on basis of said rukka FIR Ex.PW5/A was registered. He stated he recorded DD No.30A at about 9:32 PM on 28.10.2001 in respect of accident of buses at Naraina Road.
9. PW6 Sh.V.K.Mishra, Assistant foreman deposed that on 29.10.2001 he was working as Assistant foreman in DTC Department, Naraina , New Delhi and on receiving information from Deputy Manager he went to PS Patel Nagar and inspected the accidental bus No.DL-1PB-1746. He stated he found the right hand side portion of the bus was damaged and there was no other mechanical fault.
In his cross examination he stated he cannot tell that the vehicle was hit from the left side from any other vehicle.
10. PW7 ASI Devender Kumar stated that on 29.10.2001 at request of SI Gokul he mechanically inspected the bus bearing No.DL-1PA-7409 and DL-1PA-7899. He stated both vehicles were found fit for road test and there was no mechanical fault in them.
In his cross examination he stated in the Bus bearing no.DL-1PA-7409 there was a damage in the right hand side of the bus and in bus no.DL-1PA-7899 the back portion of right hand side of bus was damaged.
11. PW8 Dr.Shailesh Kumar deposed that on 28.10.2001 MLC No. 134358 ( Ex.PW8/A) was produced before him and he found that injuries of Harish mentioned on said MLC as grievous. He stated on the said date MLC No. 134359, 134356 and 134357 ( Ex.PW8/B, 8/C & 8/D) of Umesh Gandhi, Ram Dhan and B.D.Jha were also produced before him and he opined that the injuries were simple.
In his cross examination he stated that at present no record of State Vs Avtar Singh Page No. 4 of 10 5 aforesaid MLCs are available at RML hospital as the same had been destroyed. He stated it to be correct that he had not prepared the said MLCs.
12. PW9 SI Gokul Ram deposed that on 28.10.2001 at about 9.30 PM, on receipt of DD No. 30 A regarding accident , he alongwith Ct. Shyam Bhai reached at the spot i.e. Red Light, Shadipur, Naraina Road. He stated there three buses were found standing in accidental condition and they came to know that injured was taken to RML Hospital by PCR Van and CATS Ambulance. He stated driver of aforesaid DTC Bus, Route No. 838 namely Avtar Singh had also gone with the said PCR Van and CATS Ambulance. He stated he came to know the name of said Avtar Singh when he reached at the RML Hospital. He stated he collected MLCs of four injured persons. He prepared a rukka Ex.PW9/A and handed over the same to Ct. Shyam Bhai for registration of FIR. He stated he prepared site plan, Ex. PW9/B and seized the buses. He stated he got conducted the mechanical inspection of aforesaid two buses except DTC Bus as it was conducted by DTC Mechanical Inspector vide his request Ex. PW9/D and Ex. PW9/E. In his cross examination he stated that he do not remember which of the aforesaid Private Bus was ahead of each but the said DTC Bus was behind the aforesaid two buses. He stated it to be correct that the spot in question was a conjusted area and various vehicles were standing there. He stated on receipt of DD No. 30 A he left the PS at about 9.30 PM and reached at the spot. He stated on inquiry he came to know that accident was caused due to the negligence of accused Avtar Singh. He stated the said fact was told to him by injured and public persons present at the spot. He stated he did not State Vs Avtar Singh Page No. 5 of 10 6 make said public persons as witness as they refused to join the investigation by telling their genuine reasons. In his further cross examination he stated it to be correct that in the site plan he had shown that the accident took place near red light. He stated the bus in question was brought to PS on 29.10.2001.
13. PW10 Deen Dayal, Record Clerk, RML hospital deposed that on 28.10.2001 Dr.Mohd.Farooque was posted at RML hospital. He stated that he can identify the signatures of Dr.Mohd. Umar Farooque as he has seen him writing and signing in official proceedings. He stated that MLC No.134359 and 134356 are in his hand writing and bear the signature of Dr.Mohd. Umar Farooque.
In his cross examination he stated that aforesaid two MLC's were not prepared in his presence.
14. PW 11 Sh.Vinod Kumar deposed that he is the registered owner of Bus No. DL-1BA-7409 and it was seized by police officials in an accident case. He stated he do not remember the name of driver who was driving the bus on the date of accident and the said driver is not present in the court.
In his cross examination he stated that he has no personal knowledge of the present case.
15. PW12 Retd. ASI , Sh.Kanwal Singh deposed that in the year 2001 he was ATI at DTC Naraina Depot and he took bus no.DL-1PB-1746 on superdari as the said bus was seized by police officials in an accident case. He stated he handed over to police officials a duty certificate as per which Avtar Singh, accused present in court was driver of DTC Bus No.DL-1PB-1746 from 14:30 hours to 22:00 hours. In his cross examination he stated that at that time duty officer issued the duty slip .
State Vs Avtar Singh Page No. 6 of 10 716. Thereafter, prosecution evidence was closed and statement of accused was recorded. In his statement under Section 313 Criminal Procedure Code the accused denied all incriminating evidence submitting that he is innocent and opted not to lead Defence Evidence.
17. Final arguments heard.
18. I have heard Ld APP for the state as well as Ld. Counsel for accused and have also gone through the file.
19. It is argued by the Ld.APP for State that the case has been proved against the accused and there are no contradictions and dents in the testimony of witnesses and in view of the same there is no impediment in convicting the accused.
20. On the other hand it has been argued by the defence counsel that prosecution has failed to establish a case against the accused .
21. In order to prove its case and establish the guilt of the accused the prosecution has to prove that the accident was caused by the vehicle in question i.e. Bus No. DL-1PB-1764, accused Avtar Singh was driving the offending vehicle at the time of accident, the accident occurred as a result of rash and negligent driving by accused and as a result of which Ramdhan, B.D.Jha and Umesh sustained simple injuries and Harish sustained grievous injuries.
22. The case of prosecution is that while driving the bus No.DL-1PB-1764 in rash and negligent manner the accused Avtar Singh caused injuries to Ram Dhan, B.D.Jha , Umesh and Harish.
23. Firstly, in this case there is sufficient evidence to prove that offending vehicle was being driven by accused . Hence identity of accused is not disputed . PW1 Sh.Ram Dhan stated that the bus was driven by the accused Avtar Singh. PW12 Retd. ASI , Sh.Kanwal State Vs Avtar Singh Page No. 7 of 10 8 Singh stated that he handed over to police officials a duty certificate as per which Avtar Singh was driver of DTC Bus No.DL-1PB-1746 from 14:30 hours to 22:00 hours. Thus identity of accused is well proved and it is not disputed that at the time of accident it was accused who was driving the vehicle .
24. Secondly, it has to be proved that accused was driving the vehicle in rash and negligent manner . The prosecution has not been able to prove that accident was caused by the accused while driving the vehicle in question i.e. bus bearing no. DL-1PA-3072 in rash and negligent manner. What is rash/negligence varies from case to case and there cannot be any fixed parameters for judging rashness/negligence. At the same time, there cannot be any assumption/presumption of the same. Although it can be believe that it was accused who was driving the vehicle at the time of accident. It can not be said that accused was driving the bus in rash and negligent manner .
25. PW1 Sh.Ram Dhan stated that on 28.10.2001 he was going to Shadipur Depot from Naraina in a bus route No.838 bearing No.DL-1PB-1764 and when he reached near the red light, Shadipur Depot his bus strucked against the another bus from behind and due to the struck he alongwith three/four persons received injuries. He in his cross examination stated that he cannot tell on whose fault the accident had taken place.
26. PW2 Sh.Umesh Gandhi stated that on 28.01.2001 he was going towards Shadipur Depot in a DTC bus and when the bus reached at bus stop of Pandav Nagar, it strucked against another bus near bus stop of Pandav Nagar. He stated he cannot say by whose fault the accident occurred . He voluntarily stated in his cross examination that State Vs Avtar Singh Page No. 8 of 10 9 he can not say driver was rash or negligent or not. He stated it to be correct that out of two buses one bus was reversing back side and due to negligency of the driver of the that bus who was reversing the said bus negligently the accident took place.
27. PW9 SI Gokul Ram stated in his cross examination that the spot in question was a conjusted area and various vehicles were standing there. He stated on inquiry he came to know that accident was caused due to the negligence of accused Avtar Singh but the said fact was told to him by injured and public persons and he himself has not seen the accident. He stated he did not make said public persons as witness as they refused to join the investigation by telling their genuine reasons.
28. The complainant PW Harish Kumar expired during the trial and could not be examined . The other PW Bamdev Jha was examined on 23.03.2006 and his examination-in-chief was deferred but later on he became untraceable. Therefore the deposition of complainant Harish Kumar and PW Bam Dev Jha was sine qua non for establishing the charges against the accused as they could have proved the manner in which the accident occurred i.e. whether the same occurred due to rash and negligent driving of the offending bus by the accused driver i.e Avtar Singh or otherwise.
29. Beside the victims, public witnesses were not joined in investigation. PW9 SI Gokul Ram stated in his cross examination that he did not make said public persons as witness as they refused to join the investigation by telling their genuine reasons.
30. The testimony of official witnesses does not find any corroboration from any independent source. In my view the non joining of public witnesses is fatal to prosecution case particularly when no reasonable State Vs Avtar Singh Page No. 9 of 10 10 explanation has been given by prosecution for not joining of public witnesses.
31. Even if the accident is proved unless rash and negligent driving stands proved a person cannot be convicted U/s 279/337/338 IPC.
32. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved .
33. In view of above discussion, it is considered that prosecution has failed to prove its case against the accused beyond reasonable doubt. Considering the aforesaid fact that there is a complete dearth of evidence against the accused, the accused Avtar Singh is acquitted from the charges levelled against him.
Announced in open Court ( Purshotam Patthak)
On 20th November, 2012 MM-Central-07:DELHI
State Vs Avtar Singh Page No. 10 of 10