Delhi District Court
Criminal Case/971/1997 on 28 June, 2014
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Dharambir
FIR No. 971/97
PS Paschim Vihar
U/s 279/337/304A IPC
JUDGMENT
C C No. : 2003/2/99
Date of Institution : 26.02.1999
Date of Commission of Offence : 26.11.1997
Name of the complainant : Sanjeev Malik
S/o Raj Kumar Malik
R/o Flat No.463, Vikas Kunj
Vikas Puri, Delhi
Name & address of the accused : Dharambir
S/o Hari Singh
R/o WZ-6, Todapur, Village
Ner Inderpuri, New Delhi
Offence complained of : U/s 279/337/304A IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 24.06.2014
Date of announcing of judgment : 28.06.2014
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall dispose of the present case u/s 279/337/304A IPC.
2. Briefly stated story of the prosecution is that on 26.11.1997 at about 7.00 pm at flyover bridge near Peera Garhi chowk, outer Ring Road within the jurisdiction of PS Paschim Vihar, the accused Dharambir was found driving State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar the vehicle bearing no. HRO 7276 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving he hit against maruti car bearing no. DL4CF 5201 and also hit against a scooter no. DL4SR 2310 and two cycles and caused simple injuries to the cyclist Achey Lal and caused the death of scooter driver Yashpal and thereby committed an offence punishable u/s 279/337/304A IPC.
3. 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 279/337/304A IPC to which accused pleaded not guilty and claimed trial vide order dated 05.02.2000.
4. In order to prove the charge against the accused, the prosecution examined 10 witnesses namely (1) Sanjeev Malik (2) Dr. Vivek Sharma, (3) Ct. Surender Singh (4) HC Malkeet Singh (5) Ct. Hari Prasad (6) Dr. Komal Singh (7) Dinesh Kumar (8) Dharampal Singh (9) Brij Pal Singh (10) J. S. Pawar.
5. PW-1 Sanjeev Malik has deposed that on 26.11.97 he was going to his house in Vikas Puri in Maruti car bearing no. DL4CF 5201 via ring road. At about 7.00 pm, he was standing at red light Peera Garhi traffic signal. All of a sudden a truck bearing registration no. HRO 7276 came from behind and hit in the right back side of the maruti car. The car of the witness struck against one TATA 407 tempo due to the impact of the same. Witness deposed that he got down from his car and saw that the truck had also hit one two-wheeler scooter no. 2310 and had ran over one cycle. Another cycle was also lying at some distance which had also been hit by the truck. The scooterist and the cyclist were badly injured. The another cyclist had run away from the spot. He further deposed that the truck driver also ran away from the spot. Thereafter, he went to the DDU hospital where he came State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar to know that the name of the driver was Dharambir and he was residing at Naraina. Witness further deposed that the person present in the court today might be the accused person. He deposed that his statement was recorded by the police which is Ex. PW1/A bearing his signature at point X. He further deposed that police had seized the truck, two-wheeler and both the cycles along with his car vide memo Ex. PW1/B, Ex.PW1/C, Ex.PW1/D, Ex. PW1/E and Ex.PW1/F respectively, bearing his signature at point X. Witness got his car released on superdari vide superdarinama Ex. PW1/G. He further deposed that the site plan was prepared at his instance.
6. In the cross examination, witness admitted that his car was standing on a slant due to red light. Witness could not tell the number of the tempo 407 which was standing in front of his car. He admitted that the same is a busy road. He further admitted that he had not seen the accused driving the truck nor had he seen him running away from the spot. He could not tell who had told him the name of the accused but stated that somebody was discussing that the accused was arrested at the spot and his name is Dharambir. He further stated that the accused present in the court was also present at the spot and at that time the police was taking the injured persons to hospital and had also apprehended the accused. Witness further stated that he remained at the spot for half an hour and thereafter went to the hospital. He denied the suggestion that name and address of the accused was given to him by police in the police station. Witness expressed ignorance regarding the fact that whether the accused had surrendered later on. Witness denied the suggestion that the accused had not done the accident and was not driving the truck at the relevant time.
7. PW-2 Dr. Vivek Sharma has deposed that on 26.11.1997 he was posted as CMO, DDU hospital. He had given his opinion as to the nature of injury on State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar the person of Achey Lal who was examined vide MLC No. 10208. He deposed that he gave the opinion after seeing the X-ray plates and reports and nature of injuries was opined to be simple and blunt. The copy of his opinion Mark A bears his signatures at point A.
8. PW-3 Ct. Surender Singh deposed that on 26.11.1997 he was posted at PP Mianwali as munshi. He received information from Power Victor 19 Wireless about the accident from HC Om Singh. He made entry in the daily diary as DD No.29 and the same was handed over to ASI Kartar Singh. Same is Ex. PW3/A. On the same day, at about 7.55 pm, information was received through Ct. Verghese from DDU hospital that injured Jaspal and Achey Lal were admitted in the hospital by SI Jai Narayan. Jaspal was declared brought dead and he made entry in the Roznamcha vide DD No.31 and same was handed over to ASI Kartar Singh. DD No.31 is Ex.PW3/B. The order of DCP vide which the original DD entries were destroyed is Mark A.
9. PW-4 HC Malkiyat Singh proved the FIR as Ex.PW4/A and endorsement on rukka as Ex. PW4/B.During cross examination, he stated that Ct. Hari Prasad arrived at the PS along with rukka at about 8.00 pm and he returned along with rukka and copy of FIR at 8.30 pm.
10.PW-5 Ct. Hari Prasad deposed that on 26.11.97 he was posted at PS Paschim Vihar. On that day on receiving DD No. 33, he along with ASI Kartar Singh had gone to Peera Garhi chowk red light, one maruti car was found standing on the red light and one scooter was standing behind it. Both these vehicles were hit by a truck. The number of the truck was 7276, the number of the maruti car was DL4CF 5201 and the number of the scooter was DL4SR 5301. Two cycles were also lying there. One cycle was near the front wheel of the truck and the other was near the real wheel of the truck. IO inspected the site. One witness Sanjeev informed the IO that injured had State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar been taken to the hospital by PCR van. Thereafter, the witness was sent to PS for registration of FIR. He came back to the spot after registration of FIR. He came back to the spot after registration of FIR and handed over the copy of FIR as well as original tehrir to the IO. Thereafter, IO had gone to the DDU hospital. After returning from the hospital, IO seized the vehicles in his possession vide seizure memo and obtained his signature on the seizure memo. The witness was shown the Ex. PW1/B to Ex.PW1/F and after seeing the same he stated that the same did not bear his signatures. During cross examination, he stated that DD entry was received at about 7.00 pm and they had reached at the spot at about 7.15 pm. The witness could not remember whether the accused was present at the spot when they had reached the spot. He also could not recall whether any public person was present there except the complainant. He stayed at the spot for 3-4 hours. He stated that IO had made enquiries from other persons apart from the complainant but he could not tell their names and descriptions. He admitted that there is a police picket at Peera Garhi chowk red light. IO had made enquiries from the officials present in the picket. However, he could not remember whether their statement were recorded by the IO or not. He stated that complainant's statement was recorded by the IO in his presence. He denied the suggestion that he had not gone to the PS for registration of FIR.
11. PW-6 Dr. Komal Singh, CMO, Safdarjung Hospital deposed that on 27.11.97, she was posted as CMO, DDU hospital. On that day, at 1.00 pm, she had conducted the postmortem on the body of the deceased Yashpal Singh aged 25 years which was brought by ASI Kartar Singh. The postmortem report is Ex.PW6/A. In the opinion of the witness, death was resulted of haemorrhagic shock subsequent to laceration of the liver due to road traffic State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar accident and the time since death was approximately 18 hours.
12.PW-7 Dinesh Kumar deposed that on 27.11.97 he had received the information about the death of his brother in law upon which he had gone to the DDU hospital and identified the dead body of his brother in law Yashpal. His statement is Ex.PW7/A.
13.PW-8 Dharam Pal Singh is the superdar of scooter bearing no. DL4SR 2310 who got released the said scooter vide superdarinama Ex. PW8/A.
14.PW-9 Inspector Brij Pal Singh deposed that on 17.11.98 the investigation of the present case was marked to him. On 20.11.98 he obtained the opinion regarding nature of injury on the MLC of injured Achey Lal. The investigation was almost complete, so he prepared the charge-sheet and submitted in the court. During cross examination, he admitted that he had not recorded statement of any witness nor he had arrested the accused. No other investigation except except as deposed by him was conducted by the witness.
15.PW-10 J. S. Pawar deposed that on 27.11.1997 he had mechanically insepcted the truck bearing no. HRO-7276, maruti car bearing no.DL4CF 5201, one scooter no. DL4SR 2310 at the request of ASI Kartar Singh of PS Paschim Vihar and after conducting the mechanical inspection, he prepared the detailed report and submitted to ASI Kartar Singh. Same are Ex. PW10/A, Ex.PW10/B and Ex. PW10/C. He further deposed that while the truck and maruti car were found fit for road test but the scooter was not fit for the same.
16.He admitted that the car was found damaged from front as well as rear side.
He denied the suggestion that he had prepared false report at the instance of the IO.
State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar
17.Thereafter PE was closed. Statement of accused was recorded wherein accused pleaded innocence but did not lead any evidence in his defence.
18.I have heard the arguments addressed by the prosecution and the accused and have perused the record carefully.
19.To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that to beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
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.
20.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.
21.In State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, 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 State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
.....next para....The court would also like to refer to a very recent judgment of the Honorable Supreme Court of India elaborating further the requirements of section 304-A of IPC. Quoting from Rathnashalvan v. State of Karnataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. 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. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
22.The star witness of the prosecution is PW-1 Sanjeev Malik who is also the sole eye witness of the accident. However, the testimony of this witness is full of self contradictions. In the examination in chief, this witness has deposed that the driver of the truck had ran away from the spot and that when he reached the DDU hospital, he came to know that driver of the truck was Dharmvir. However, in the cross examination, he stated that he had seen the accused at the spot as he had been apprehended by the police. He also admitted the suggestion that he had not seen the accused driving the truck nor had he seen him running away from the spot. Infact the witness had not identified the accused with full conviction and he had deposed that the accused present in the court could be the truck driver. The relevant portion of the testimony PW-1 are reproduced verbatim here:-
"Truck ka driver vaha se us vakt bagh gaya tha. Phir me DDU hospital gaya tha. Waha mujhe driver ka naam Dharmvir maloom hua jo ki Nariana ka rehne wala tha. Truck driver aaj adalat me khara mujrim ho sakta hai".
23.Again in cross examination, he stated that "Ye baat sahi hai ki main mujrim hazir adalat ko truck chalate nahi dekha tha, na hi bhagte hue dekha tha...Waha par yeh charcha ho rahi thi ki mujrim moke pe pakra gaya or uska nam dharamvir tha. Mujrim hazir adalat ko maine mauke par dekha tha. Us samay police ghaylo ko hospital le ja rahi or muzrim ko bhi pakde hue thi." Hence the witness had not only given self contradictory statement during his testimony before this court, but also made various improvements State v. Dharamvir U/s 279/337/304A IPC FIR No. 971/ 97 PS Paschim Vihar in his testimony as compared to his statement under Section 161 Cr.P.C.
24.It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, 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 to the benefit of every reasonable doubt in the prosecution story and any such reasonable doubt in the prosecution case entitles the accused to acquittal.
25.Hence, the prosecution has failed to prove that the accused was driving the said vehicle at the time of accident. Thus in view of the above discussion, the court is of the view that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Dharamvir is acquitted under Section 279/337/304A IPC.
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. Time sought to furnish bail bond. Granted.
ANNOUNCED ON 28.06.2014 (SAUMYA CHAUHAN) MM-07(West)/ Tis Hazari Court /28.06.2014 Certified that this judgment contains 10 pages and each page bears my signatures.
(SAUMYA CHAUHAN)
MM-07(West)/ Tis Hazari Court /28.06.2014
State v. Dharamvir U/s 279/337/304A IPC
FIR No. 971/ 97 PS Paschim Vihar