Delhi District Court
State vs . Lakhmi Singh Jain on 18 August, 2018
1
IN THE COURT OF ANUBHAV JAIN, METROPOLITAN
MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI.
FIR No. 371/11
PS OIA
U/s 279/304A IPC ANUBHAV
State Vs. Lakhmi Singh JAIN
JUDGMENT
Digitally signed by A. SL. NO. OF THE CASE : 19/2/13 ANUBHAV JAIN B. DATE OF INSTITUTION : 10.01.2013 Date: 2018.08.18 22:14:52 +0530 C. DATE OF OFFENCE : 15.11.2011 D. NAME OF THE : Ct. Roop Singh COMPLAINANT No. 2861/SE E. NAME OF THE ACCUSED : Lakhmi Singh S/o Suraj Mal F. OFFENCE COMPLAINED OF : U/s 279/304A IPC G. PLEA OF ACCUSED : Pleaded not guilty H. FINAL ORDER : Acquittal I. DATE OF FINAL ORDER : 18.08.2018 Brief Statement of Reasons for Decision :
1. The accused person is produced before the court to stand trial for the offences u/s 279/304A of IPC.
2. In brief facts of the case are that on 15.11.2011 on receiving DD No. 8A and 9A regarding an accident at DDA Complex, OIA Phase2, New Delhi, IO / SI P. Kipgen alognwith Ct. Bijender reached at the spot i.e. at red light, in front of DDA Complex and they found a tanker 2 bearing no. DL1GB6999 and accused Lakhmi Singh. It is further stated that upon enquiry it was informed that the injured was shifted to ESI Hospital by Ct. Roop Singh. It is further stated that SI P. Kipgen and ct.
Bijender reached at ESI Hospital where they found the injured admitted in the hospital vide MLC No. 211/11 and the injured was declared dead by the doctor at 2.50 pm. It is further stated that injured was identified as Priyanka by his brotherinlaw namely Vijay and uncle Surjan Singh. It is further stated eyewitness Ct. Roop Singh was also found present at the ESI hospital and his statement was recorded wherein he has stated that he alongwith Ct. Jaspal was at the picket duty on DDA complex, OIA PhaseII when at around 12.50 pm one tanker bearing no. DL1GB6999 coming from the Kalkaji Mandir side and heading towards OIA PhaseI side in a rash or negligent manner hit the girl who was crossing the road at the red light. It is further stated that on seeing the accident they rushed to the spot with some public persons and that both the legs of the girl was crushed by right front wheel of the tanker. It is further stated that accused driver was apprehended by the public while he was trying to flee away from the spot and he revealed his name as Lakhmi Singh. It is further stated that with the help of public persons he shifted the injured to hospital in a TSR leaving behind the accused driver and offending vehicle in the custody of Ct. Jaspal. He further stated that he got the injured admitted to hospital who later succumbed to the injuries.
Upon the said complaint, FIR u/s 279/304A IPC was got registered against the accused and IO prepared the site plan at the instance of Ct. Roop Singh and recorded statement of witnesses. He further arrested the accused and seized the offending vehicle and got 3 the mechanical inspection of the same conducted. He also got the postmortem of deceased conducted and handed over dead body of deceased to her relatives. IO further got all the documents verified and after completion of investigation filed the charge sheet before the court.
3. Accused appeared before the court on 10.01.2013 and copy of charge sheet was supplied to him as per Section 207 of Cr.P.C. Separate charge u/s 279/304 A IPC was framed against the accused person by the Ld. Predecessor of this court on 04.03.2013 to which accused pleaded not guilty and claimed trial.
4. Prosecution in order to prove its case has examined following witnesses :
4.1 PW1 Ct. Roop Singh deposed that on 15.11.2011, he was on picket duty at DDA complex from 8 am to 8 pm and Ct.
Yashpal from the Delhi Home Guard was also present alongwith him. He further deposed that at around 12.50 pm, he saw that a tanker bearing registration no DL1GB6999 came at a very high speed from the side of Kalkaji mandir and it was going towards OIA phaseI, New Delhi. He further deposed that one girl was crossing the road at the red light in front of DDA complex OIA PhaseII, New Delhi and the speeding truck dashed against the girl and both the legs were crushed under the wheels of the tanker. He further deposed that the driver of the truck stopped his truck and tried to flee from the spot but he was apprehended by the public and on seeing this, they also rushed to the spot and apprehended the accused. He further deposed that the 4 accused revealed his name as Laxmi Chand s/o Suraj Mal and took the injured girl in a TSR to ESI hospital leaving the accused at the spot in the custody of Ct Yashpal. He further deposed that the girl succumbed to the injuries at ESI hospital during her treatment and in the meantime, Ct Jitender and SI P.Kipgen posted at OIA arrived at the hospital and met him. He further deposed that he gave a detailed account of the incident to them and Ex PW1/A was recorded by the IO/SI P.Kipgen. He further deposed that IO prepared the rukka and got the FIR registered through him and thereafter, he went to the spot alongwith the copy of FIR where IO met him. He further deposed that he handed over copy of the FIR to him and IO prepared the site plan at his instance Ex. PW1/B. He correctly identified the accused and case property in the court.
4.2 PW2 T.U. Siddiqui conducted the mechanical inspection of offending vehicle and submitted report Ex. PW2/A. 4.3 PW3 Surjan Singh deposed that on 15.11.2011, he alongwith Vijay Kumar and Pankaj went to AIIMS hospital where he identified the dead body of his niece namely Priyanka daughter of late Nawab Singh who had met with road accident on 15.11.2011 and later on she succumbed to the injuries. He further deposed that after postmortem in AIIMS hospital, the dead body was handed over to him vide handing over memo Ex. PW3/A and he identified the dead body of his niece vide identification memo Ex PW3/B. 4.4 PW4 Dr. Pradip Kumar Singh deposed that on 15.11.2011 he conducted the medical examination of injured Priyanka and prepared the MLC Ex. PW4/A. 4.5 PW5 Ct. Bijender deposed that on 15.11.2011 he was 5 posted as Ct. at PS OIA and on that day, on receiving of DD no. 8A he alongwith IO/SI P. Kipgen went to the spot i.e DDA complex, red light, Okhla Phase II and met Ct. DHG Yashpal at the spot, who produced the driver/accused. He further deposed that they found that the offending vehicle i.e tanker bearing registration no. DL1GB6999 was standing on the road in an accidental condition and on inquiry it was revealed that injured had already been shifted to ESI hospital in a PCR by Ct. Roop Singh. He further deposed that thereafter, they went to ESI hospital leaving behind accused at the spot in the custody of Ct. Yashpal and met Ct. Roop Singh in the hospital. He further deposed that IO obtained the MLC of the injured namely Priyanka and during treatment the injured expired in the hospital and thereafter, IO directed him to shift the dead body to AIIMS mortuary. He further deposed that he complied the said direction and preserved the dead body for postmortem and IO recorded the statement of Ct. Roop Singh in the hospital. He further deposed that IO seized the said tanker in his presence vide memo Ex. PW5/A and IO seized the documents i.e RC, insurance, fitness and permit of the said tanker vide seizure memos Ex. PW5/B to Ex.PW5/E. He further deposed that IO seized the DL of the accused vide memo Ex. PW5/G and arrested the accused vide memo which Ex. PW5/H. He correctly identified the accused and case property in the court.
4.6 PW6 ASI Jawahar Singh proved the FIR Ex. PW6/A. 4.7 PW7 HC Sandeep deposed that on 15.11.2011 he was deployment officer at PSOIA and on that day Ct. Roop Singh and Ct. Yashpal were on picket duty at DDA Market, Anandmayee Marg, OIA Phase2 MarkA. 6 4.8 PW8 Retd. Home Guard Yashpal Sharma deposed that on 15.11.2011, he was posted as constable at Delhi Home Guard and on picket duty at DDA Complex, Okhla, PhaseII, New Delhi alongwith Ct. Roop Singh, Ct. Ram Naresh. He further deposed that at around 12:3001:00 pm, they saw a truck whose number he does not remember coming from Kalkaji temple side and going towards Okhla police station. He further deposed that a girl was crossing the red light and the abovesaid truck ran over that girl and public persons gathered at the spot. He further deposed that they apprehended the driver of the truck and the injured girl was taken to hospital by Ct. Roop Singh and he remained at the spot. He further deposed that IO/SI P. Kipgen came at the stop and he handed over the offending vehicle and accused to him. He further deposed that the accident happened due to fault of the driver of the offending vehicle as he did not apply brakes at the red light.
4.9 PW9 ExSI Praveen Kharb deposed that the investigation of the present case was marked to him after SI P.Kipgen and during the course of investigation, he collected the postmortem report of deceased Priyanka on 14.12.2011. He further deposed that on 22.06.2012, he recorded the statement of Sh. R.K Tiwari authorized representative of M/s Uttam Special Gases Pvt. Ltd. who informed that on the day of incident i.e 15.11.2011, accused Lakhmi Singh was driving the offending vehicle bearing no. DL1GB6999. He further deposed that he also recorded statement of Ct. Sandeep who testified that Ct. Roop Singh was on duty at DDA complex, OIA, PhaseII, New Delhi, prepared the challan and submitted in the court.
4.10 PW10 Dr. Deepak Prakash deposed that on 16.11.2011 7 he conducted postmortem of deceased Priyanka and the report is Ex. PW10/A. It is pertinent to state in here that accused has admitted superdarinama of offending vehicle and his statement u/s 294 CrPC was recorded on 26.04.2018.
5. Statement of accused u/s 313 Cr.P.C. was recorded on 30.06.2018 wherein the accused admitted the fact that he was driving the offending vehicle at the alleged point of time and date, however, he stated that his vehicle did not hit deceased Priyanka. He further stated that he has been falsely implicated in the present case. Further accused chooses not to lead DE and matter was listed for final arguments.
6. I have heard Ld. APP for the state and Ld. counsel for the accused person and perused the case file carefully.
7. It is settled proposition of law that burden lies upon the prosecution to prove its case beyond all reasonable doubts. It is the case of prosecution that on 15.11.2018 accused while driving the offending vehicle bearing no. DL1GB6999 in rash or negligent manner hit the same to girl Priyanka due to which she expired. As such it was upon the prosecution to prove that :
(a) That vehicle bearing No. DL1GB6999 was being driven at the alleged point of time at the alleged place by the accused Lakhmi Singh.
(b) That offending vehicle being driven by accused in rash or 8 negligent manner as to endanger human life and safety.
(c) That accused while driving the abovesaid vehicle in abovesaid manner hit the same against Priyanka due to which deceased Priyanka expired.
8. In order to prove the fact that accused was driving the offending vehicle at the alleged point of time, the prosecution has examined eye witness Ct. Roop Singh as PW1, who during the course of his testimony has stated that the accused was driving the offending vehicle at the alleged point of time. He further identified the accused in court. Furthermore the place of arrest of accused as per the arrest memos is shown to be Maa Anandmayee Marg, Opp. DDA Complex i.e. at the spot only. It is further pertinent to state here that accused himself in his statement under Section 313 Cr.P.C has admitted the fact that he was driving the offending vehicle at the alleged date, time and place.
9. Once it is proved by the prosecution that the offending vehicle was being driven by the accused at the relevant time and place, it is upon the prosecution to prove that the offending vehicle was being driven by the accused in rash or negligent manner in a public place so as to endanger human life and public safety and while driving the same in abovesaid manner he hit girl Priyanka, has to be ascertained from the surrounding facts & circumstances of the case. It has been observed by Hon'ble Apex Court in Ravi Kapoor v. State of Rajasthan Crl. Appeal No.1838 of 2009, that factum as to rashness and negligence has to be gathered from the surrounding 9 circumstances. Relevant portion of the judgment is being reproduced as under:
10. In order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279 IPC. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and
(c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under Section 279 IPC is attracted.
11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically 10 exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
12. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the IPC that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished 11 as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite consciousness (luxuria). 'Culpable negligence' is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the neglect of civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010].
10. As discussed in the abovesaid judgment the factum as to the rash and negligent driving has to be ascertained from the surrounding facts and circumstances. In the present case in hand, it is not disputed that the accused was driving the offending vehicle at the alleged spot on alleged time and date. In order to prove the fact that offending vehicle was being driven by the accused in rash or negligent manner, prosecution has examined PW1 Ct. Roop Singh who during the course of his testimony has stated that while one girl was crossing the road in red light in front of DDA Complex, a speeding truck dashed 12 against the girl and both the legs of girl were crushed under the wheels of the tanker.
11. Apart from the testimony of Ct. Roop Singh, prosecution has also examined one Sh. Yashpal Sharma who was also one of the eye witness to the alleged incident. Yashpal Sharma during the course of his testimony although have stated that deceased Priyanka was ran over by a truck while she was crossing the road, however he failed to give any description of the alleged incident and further failed to identify the accused in the Court.
12. Further in order to prove the rashness or negligence on the part of accused, the prosecution has placed on record site plan Ex. PW1/B. It is pertinent to state in here that complainant/eyewitness of the alleged incident namely Ct. Roop Singh was examined by the prosecution in order to prove its case. During the course of cross examination of said witness dt. 24.10.2013 certain questions were put upon the witness by Ld. Predecessor Court which are being reproduced here under :
Court question no. 1 Can you tell the width of the road where the accident took place?
Ans: The width of the road must be around 40 feet. Court question no.2 Can you tell whether the road on which the accident took place was one way road or two way road?
Ans: It was a two way road.
Court question no.3 Can you tell whether there was any divider or separation between the road. Ans: There was no divider or separation.
We make departure entry in the register at the police station. As far as I recollect the departure entry made by on the date of accident was 8.13
It is pertinent to state in here that the witness have stated that the road on which the accident took place was a two way road, although as per the site plan said road was one way road. Furthermore it is stated by the witness that there was no divider or separation on the said road, however as per the site plan Ex. PW1/B there was a divider / separation on the said road.
13. It is further pertinent to state in here that despite repeated service to IO, same received back unserved and as such, the IO himself never entered into the witness box in order to prove the correctness / veracity of site plan Ex. PW1/B. Further it has been observed by Hon'ble High Court of Delhi in Abdul Subhan vs State (NCT of Delhi) 133 (2006) DLT 562 regarding investigation in accident cases :
13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "highspeed".14
13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the telltale signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts. 13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case. 13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants.
13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent.15
Because, no criminal court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a charge sheet is filed, the court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable.
Considering the contradiction in the testimony of sole eye witness and the site plan Ex. PW1/B, the site plan so filed by the prosecution, cannot be relied upon. Furthermore none of the guidelines as laid down by the Hon'ble High Court of Delhi followed by the IO during the course of investigation.
14. It is further pertinent to state in here that as per testimony of PW 1 Ct. Roop Singh there were about 810 public person who were present at the spot and had apprehended the accused persons, however IO for the reasons best known to him has neither recorded the statement of said persons nor they were made the prosecution witness.
15. Considering the abovesaid law and facts, the prosecution has miserably failed to prove that there was any rashness or negligence on the part of accused at the time of alleged incident and the accused is acquitted for the offence punishable u/s 279/304A IPC for which he was charged.
16. Before parting with the present judgment, it is pertinent to state 16 in here that Hon'ble High Court of Delhi in Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 has thoroughly laid down the guidelines which are to be followed during the course of investigation in the offence of road accident. The present case where a girl aged about 17 years is stated to have been expired in a road accident, instead of conducting a proper and appropriate investigation as per the guidelines of Hon'ble High Court of Delhi the same is being done in very shoddy manner. In view of the same, the copy of judgment be sent to DCP concerned with directions to ensure that the guidelines as laid down by Hon'ble High Court of Delhi in Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 be complied with in the case of road accidents.
ANNOUNCED IN OPEN COURT (ANUBHAV JAIN)
Today i.e. 18.08.2018 METROPOLITAN MAGISTRATE02
SOUTH EAST, SAKET COURTS,
NEW DELHI
Present judgment consisted of 16 pages and each page bears my signatures.
(ANUBHAV JAIN) METROPOLITAN MAGISTRATE, SOUTHEAST, SAKET COURTS, NEW DELHI