Delhi District Court
State vs . Bikramjeet Singh on 10 August, 2020
IN THE COURT OF SH. ARUN KUMAR GARG
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
(SOUTH-WEST), DWARKA COURTS, DELHI
IN THE MATTER OF :
State Vs. Bikramjeet Singh
FIR No. 470/2010
PS : Najafgarh
U/s 279/337/304 A IPC
Date of Institution : 16.12.2010
Date of Judgment : 10.08.2020
JUDGMENT
1. Serial No. of the case : 429032/2016
2. Name of the Complainant : Shiv Kumar S/o Samai Singh
3. Date of commission of offence : 25.10.2010
4. Name of accused person : Bikramjeet Singh
S/o Sh. Wasawa Singh
R/o Village Saffipur, Khabe
Dogram, Amritsar, Punjab
5. Offence charged : U/s 279/337/304A IPC
6. Plea of accused : Not guilty
7. Final Order : Acquitted
BRIEF REASONS FOR ORDER:
1. The accused has been chargesheeted for committing offences punishable under Section 279/337/304A, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. The present FIR was registered on the complaint of Sh. Shiv State Vs. Bikramjeet Singh ARUN Digitally signed by ARUN KUMAR FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 KUMAR GARG Page No. 1 of 21 Date: 2020.08.10 GARG 13:25:25 +05'30' Kumar, S/o Sh. Samay Singh dated 25.10.2010. In his complaint, complainant has stated that on 25.10.2020, at about 08:40 am, he had been travelling on his motorcycle bearing registration no. DL4SBT1029 from Jafarpur Village to Jharoda Kalan alongwith a mechanic namely Lalit Prasad as the pillion rider. When he reached near Baba Haridas Enclave main Jharoda road, the driver of a truck bearing registration no. UP14F5463, while driving his truck at a very high speed and in a rash and negligent manner, was repeatedly honking despite signal by the pillion rider of the aforesaid motorcycle to slow down the truck.
3. At about 09:00 am, according to complainant, a woman was crossing the road ahead of his motorcycle due to which complainant had slowed down his motorcycle, however, the driver of truck continued driving the truck at a very high speed and in a rash and negligent manner. He started overtaking the motorcycle of the complainant from the right side. The complainant tried to avoid the truck, however, the truck had struck against right shoulder of the pillion rider as well as the motorcycle of the complainant. Due to the aforesaid impact, complainant as well as pillion rider of the motorcycle Lalit Prasad had fallen towards their right. During the said incident complainant got simple hurt whereas pillion rider Lalit Prasad received grievous injuries. The driver of the truck has stopped his truck at some distance and thereafter, with the help of public, removed the complainant as well as pillion rider towards the side of road. He has also removed the motorcycle from middle of the road and parked the same on the side. The driver of the vehicle was apprehended by the public ahead of the place of incident and in the State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN KUMAR Judgment dated 10.08.2020 KUMAR GARG Page No. 2 of 21 Date: 2020.08.10 GARG 13:25:41 +05'30' meantime, the PCR had taken the pillion rider to the hospital whereas the complainant was taken to Rao Tula Ram hospital in a private vehicle. The complainant has further alleged in his complaint that offending truck was being driven by the driver of CISF in a rash and negligent manner at a very high speed.
4. It is further the case of prosecution that after the incident, the IO had received an intimation from Rao Tula Ram hospital that injured Lalit Prasad was brought dead to the hospital. After getting the FIR registered U/s 279/337/304 A IPC on the basis of complaint of complainant, IO had got a site plan prepared and had seized the offending truck as well as motorcycle of complainant. Mechanical inspection of both the vehicles was thereafter conducted besides postmortem of dead body of deceased Lalit Prasad. During investigation, IO has also collected the details of the driver who was driving the offending vehicle at the time of accident from the Deputy Commandant CRPF, in terms of which, accused Bikramjeet Singh was found on duty of driving the vehicle at the time of accident.
5. After conclusion of the investigation, present chargesheet was filed. Cognizance of the offence was taken by Ld. Predecessor of this court vide order dated 16.12.2010 and after compliance with the provisions of Section 207 Cr.P.C, a notice for the offence U/s 279/337/304A IPC was served upon the accused in terms of Section 251 Cr.P.C on 08.09.2011, to which the accused pleaded not guilty and claimed trial.
6. Prosecution has examined nine witnesses in support of its case.
7. Complainant namely Sh. Shiv Kumar S/o Sh. Samay Singh has been examined by the prosecution as PW-1. During his examination State Vs. Bikramjeet Singh ARUN Digitally signed by ARUN KUMAR FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 KUMAR GARG Page No. 3 of 21 Date: 2020.08.10 GARG 13:25:51 +05'30' in chief, he has deposed on the similar lines on which he had given a complaint to the police for registration of the FIR. He has tendered the following documents in his evidence:
Ex.PW1/A - Statement given by him to the police on 25.10.2010;
Ex.PW1/B- Photographs alongwith negatives of motorcycle bearing registration no. DL4SBT1029; Ex.PW1/C- Photographs of the offending truck alongwith negatives;
Ex.PW1/D- Arrest memo of accused;
Ex.PW1/E- Personal search memo of accused;
Ex.PW1/F - Seizure memo of offending truck;
Ex.PW1/G- Seizure memo of motorcycle of complainant; Ex.PW1/H- seizure memo in respect of the driving licence of the accused.
8. Sh. Fucho Singh, father of deceased Lalit Prasad, was examined by prosecution as PW-2 and he has proved dead body identification statement in respect of his son Lalit Prasad as Ex.PW2/A and dead body handing over memo in respect of his son Lalit Prasad as Ex.PW2/B.
9. Sh. Rameshwar Singh, brother of deceased Lalit Prasad, has been examined as PW-3 and he has proved the dead body identification memo of his brother as Ex.PW3/A and dead body handing over memo already Ex.PW2/B.
10. Ct. Netrapal, who had joined investigation with IO SI Harish Chandra on 25.10.2010 after receipt of DD No.10A, has been examined by the prosecution as PW-4. PW-4 has proved DD No.10A as Mark-4/A and has relied upon the documents already Ex. PW-1/D, Ex. PW-1/E, Ex. PW-1/F and Ex. PW-1/G.
11. Ct. Amit Kumar, who has joined investigation with the IO on State Vs. Bikramjeet Singh ARUN Digitally signed by ARUN KUMAR FIR No. 470/2010 P.S. Najafgarh KUMAR GARG Judgment dated 10.08.2020 Date: 2020.08.10 Page No. 4 of 21 GARG 13:26:02 +05'30' 29.10.2010 at RTRM hospital, where postmortem of the dead body of deceased Lalit Prasad was conducted, and handed over the dead body to relatives of deceased Lalit Prasad, has been examined by the prosecution as PW-5.
12. Sh. Naseeb Singh, photographer, who had allegedly taken the photographs of the place of incident, has been examined by the prosecution as PW-6 and he has tendered the photographs as Ex.PW6/ A(Colly.) besides the negatives Ex.P-1 in his evidence. He has also proved photographs Ex.PW1/B and negatives Ex.PW1/C.
13. SI Lekh Ram Singh, second IO of the case after 01.11.2010, has been examined by prosecution as PW-7 and he has proved seizure memo of the documents of the offending truck as Ex. PW-7/A besides the duty slip as Mark-A and other documents as Ex. PX.
14. SI Balwinder Singh from CISF, who had got the offending vehicle released on superdari as per the authorization of Assistant Commandant CISF Delhi, has been examined by prosecution as PW-8 and he has tendered supardaginama as Ex.PW-8/A in his evidence, besides his identity card Ex.PW-8/B. He has identified the vehicle from the photographs and negatives already Ex.P-1(Colly.) and has proved authorization letter Ex.PW-8/C in his favour. He has produced original duty register for the date 25.10.2010 in terms of which on the date and time of incident, accused Bikramjeet Singh was on driving duty in respect of the offending vehicle. The relevant page of the duty register is Ex.PW-8/D. He has also proved the seizure memo in respect of the RC of offending vehicle as Ex. PW-9/E, Seizure memo in respect of permit, insurance and duty slip as Ex.PW7/A and letters written by Deputy Commandant as Ex.PW8/E, Ex. PW-8/F and State Vs. Bikramjeet Singh ARUN Digitally signed by ARUN KUMAR FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 KUMAR GARG Page No. 5 of 21 Date: 2020.08.10 GARG 13:26:13 +05'30' Ex.PW8/G.
15. Inspector Harish Chandra, first IO of the case, has been examined as PW-9. He has proved the rukka Ex.PW-9/A, site plan Ex.PW-9/B, photographs of the crime scene already Ex.PW-6/A (Colly), seizure memo of the motorcycle Ex.PW-1/G, arrest and personal search memo of accused already Ex.PW-1/D and Ex.PW-1/E, seizure memo in respect of driving licence of accused already ExPW- 1/H, seizure memo in respect of offending truck already Ex.PW-1/F and mechanical inspection report in respect of both the vehicles involved in the accident as Ex. PW-9/C and Ex.PW-9/D. He has also proved the seizure memo of original RC of the offending truck as Ex.PW-9/E besides photographs of the truck Ex.P-1 and motorcycle as Ex.P-2.
16. All the aforesaid witnesses, except PW-2, PW-3 and PW-5, were duly cross-examined by Ld. Counsel for accused. In fact, after discharge of PW-1 Shiv Kumar, an application was moved on behalf of accused U/s 311 Cr.P.C seeking recall of PW-1 for his further cross-examination which was allowed by Ld. Predecessor of this court vide order dated 08.08.2018. PW-1 was thereafter further cross- examined by counsel for accused and since he had turned hostile during his further cross-examination by counsel for accused, Ld. APP for the State cross-examined him with the permission of the court after declaring him hostile.
17. A perusal of file further shows that accused has admitted the following documents without any formal proof of the same, in terms of Section 294 Cr.P.C:-
Ex.A1- MLC of deceased Lalit Prasad dated 25.10.2010; State Vs. Bikramjeet Singh ARUN Digitally signed by ARUN KUMAR FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 KUMAR GARG Page No. 6 of 21 Date: 2020.08.10 GARG 13:26:24 +05'30' Ex.A2- Postmortem report of deceased Lalit Prasad; Ex.A3- MLC of injured Shiv Kumar; Ex.A4 - Present FIR;
Ex.Z1 - DD No. 10A, 20A and 22A.
18. In view of the same, no further witness was examined by prosecution and hence, PE was closed vide order dated 10.04.2019.
19. Statement of accused U/s 313 Cr.P.C was subsequently recorded after putting the entire incriminating evidence against him to the accused. Accused has alleged in his statement U/s 313 Cr.P.C that he has been falsely implicated in the present case and at the time of accident he was not driving the offending vehicle nor has he caused any accident at any point of time. Accused chose to lead evidence in his defence. However, he has failed to lead any defence evidence despite opportunity and hence, matter was adjourned for final arguments.
20. Final arguments were heard on behalf of State as well as accused prior to the lockdown and fresh arguments were heard on 04.08.2020 through VC.
21. It is submitted by Ld. APP for the State that prosecution has been able to prove its case U/s 279/337/304A IPC against the accused beyond reasonable doubts. No doubt, according to him, PW-1 after his recall in terms of Section 311 Cr.PC has turned hostile, however, the aforesaid fact by itself is not sufficient to exclude his entire testimony dated 08.06.2012 from consideration in view of the fact that the same had not only been corroborated by testimonies of other witnesses as well as documents available on record but even otherwise can be acted upon by the Court being the testimony of an injured witness. It is further submitted by him that the accused cannot State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN Judgment dated 10.08.2020 KUMAR KUMAR GARG Page No. 7 of 21 Date: 2020.08.10 GARG 13:26:35 +05'30' be allowed to rely upon the minor contradictions in the testimony of PW-1 vis-a-vis his statement Ex. PW-1/A, since the attention of PW-1 was not derived by the accused towards the said contradictions during his cross-examination depriving him of an opportunity to explain the same. He has thus prayed for conviction of the accused for the offences with which he has been charged, while relying upon the following judgments:-
i) Gura Singh vs. The State of Rajasthan (06.12.2000 - SC) : MANU/SC/0770/2000
ii) State of Madhya Pradesh vs Badri Yadav & Ors. (2006)9SC C 549
iii) Manish Phartiyal vs State of Uttarakhand MANU/UC/0614/2013
iv) Chhanga vs. State of Madhya Pradesh (29.01.2003
- MPHC) : MANU/MP/0537/2003
v) Krishna Maniyani vs. The State of Kerala (21.07.2007 - KERHC) : MANU/KE/0648/2007
vi) Mano Dutt & Anr. vs. State of UP (2012) 4 SCC 79
vii) Abdul Sayeed Vs. State of Madhya Pradesh (2010) 10 SCC 259
viii) State of U.P. v. Nahar Singh (1998 (3) SCC 561)
22. On the other hand, it is submitted by Ld. Counsel for accused that case of the prosecution is fraught with material contradictions and there are certain lacunae in the case of prosecution, which have not been adequately explained by any of the witnesses of the prosecution. He submits that arrest of the accused in the present case has been effected in highly suspicions circumstances, in as much as, it has been mentioned by the IO in the rukka that he could not find either any eye witness or the accused or the injured at the spot, when he first visited the place of incident. He submits that though, as per the case of State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN Judgment dated 10.08.2020 KUMAR KUMAR GARG Page No. 8 of 21 Date: 2020.08.10 GARG 13:26:47 +05'30' prosecution, injured Shiv Kumar and deceased Lalit had already been taken to the hospital when the IO reached at the place of accident and as per the testimony of PW-1, he had never visited the spot after the accident, IO has tried to make out a case that he had apprehended the accused at about 04.30 PM at the instance of complainant and in fact the arrest and personal search memo of accused bear the signatures of PW-1.
23. He further submits that though as per the tehrir, complainant had slowed down his motorcycle because some lady had come in front of his motorcycle, however, no such lady has been examined by the prosecution in its evidence. He submits that the person who had taken the injured Shiv Kumar to hospital as per DD No.22A has not been examined by the prosecution as a witness, nor according to him, the prosecution has examined the person who had made the PCR call about the accident.
24. He submits that prosecution could not explain as to how the offending vehicle reached the police station which was seized vide seizure memo Ex.PW1/F. He submits that damages to the motorcycle of the complainant besides the injuries to deceased and complainant are due to the falling down and the same cannot be considered to be a result of accident with the vehicle of accused. He submits that the site plan Ex.PW9/A which has allegedly been prepared by first IO of the case does not corroborate the testimony of PW-1 or for that matter the testimony of PW-9.
25. It is submitted by Counsel for accused, that out of the nine witnesses examined by the prosecution, only three were relevant viz. PW-1, PW-4 and PW-9. PW-1, according to him, has contradicted the State Vs. Bikramjeet Singh ARUN Digitally signed by ARUN FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 KUMAR KUMAR GARG Date: 2020.08.10 Page No. 9 of 21 GARG 13:26:59 +05'30' stand taken by him in his complaint in as much as there is no whisper by him in his testimony about the lady who was allegedly crossing the road when the complainant had allegedly slowed down his motorcycle. He submits that as per the testimony of PW-1, when the IO reached on the spot, the complainant was already admitted to hospital and hence, it could not be explained by the prosecution as to how the arrest of the accused and the seizure of the offending vehicle has taken place in his presence. Though, Ld. Counsel for accused has fairly conceded that merely because PW-1 had turned hostile during his further cross-examination on 12.12.2018, the same by itself is not sufficient to discard his testimony dated 08.06.2012, however, while relying on the judgment of Hon'ble Supreme Court in Raja & Ors. V. State of Karnataka Cr. App. No. 1767/2011 decided on 04.10.2016, he submits that before the Court acts upon his testimony, the same needs to be corroborated in material particulars.
26. Further, according to him, even the testimony of PW-1 dated 08.06.2012 is fraught with contradictions and the same can thus not be considered to be credit worthy, so that the conviction of accused can solely be on the basis of the same. Even if, according to him, the said testimony of PW-1 dated 08.06.2012 is assumed to be gospel truth, the same is not sufficient to prove the manner of driving of offending vehicle by the accused being either rash or negligent. He submits that though the speed of an offending vehicle by itself is not sufficient to render the driving of the same by the driver either rash or negligent, however, in the case in hand, prosecution has even failed to prove that the offending vehicle was being driven by the accused at a very fast speed in view of admission by PW-1 during his cross-
State Vs. Bikramjeet Singh
FIR No. 470/2010 P.S. Najafgarh
ARUN Digitally signed
by ARUN KUMAR
Judgment dated 10.08.2020 KUMAR GARG
Date: 2020.08.10
Page No. 10 of 21
GARG 13:27:14 +05'30'
examination that the offending vehicle as well as the motorcycle of the complainant were running ahead of each other for about two minutes and speed of motorcycle of complainant was very slow.
27. He submits that though PW-4 says that 3-4 public persons were examined by the IO, however, prosecution has failed to examine any independent witness in the court. In fact, according to him, PW-9 says that he has not found any public witness on the spot. Thus, according to him, there are reasonable doubts about the veracity of the prosecution story more particularly in apprehension of accused in view of the fact that though the IO had reached at the spot at 10:00 am, however, accused was arrested at 04:30 pm and it is beyond imagination that during the aforesaid period of more than 6 hours, the public was holding the accused near the police station without making any PCR Call. Under the aforesaid circumstances, according to him, prosecution has failed to prove its case against the accused beyond reasonable doubts. Hence, he has prayed for acquittal of the accused from all the charges while relying upon the following judgments:-
i) Vinod Kumar Vs. State, 2011 (4) JCC Delhi 2786
ii) Mohammed Aynuddin vs. State of Andhra Pradesh, (2000) 7 SCC 72.
iii) Abdul Subhan Versus State (NCT Of Delhi), 133 (2006) DLT 562
iv) State of Karnataka v. Satish (1998) 8 SCC 493
v) Devender Vs. State, 2011 (4) JCC Delhi 2800
vi) Kishore Chand Joshi Vs. State, Crl. R.P. 627/2016, Decided by Hon'ble Delhi High Court on 12/11/2018
vii) Rai Singh Vs. State (NCT of Delhi), Cr. Rev. P. 365/2007 decided by Hon'ble Delhi High Court on 31/03/2008
viii) Kali Ram Vs. State of Himachal Pradesh, AIR 1973 SC 2773 State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 ARUN Digitally signed by ARUN Page No. 11 of 21 KUMAR KUMAR GARG Date: 2020.08.10 GARG 13:27:27 +05'30'
28. I have heard the submission made on behalf of the parties and have also carefully perused the material available on record, besides the judgments relied upon by Ld. APP for State as well as by Ld. Counsel for Accused.
29. It is well settled legal proposition that in a criminal case, the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the story of the prosecution appears to be improbable or lacks credibility, the benefit of doubt necessarily has to go to the accused.
30. It is also well settled that mere fast driving by itself is not sufficient to prove rash or negligent driving and finding as to rash or negligent driving can only be recorded after consideration of all the attending circumstances present at the time of accident.
31. In the case in hand, accused has been charged with offence under Section 279/337/304A IPC. In order to secure conviction of the accused for the offence under Section 279 IPC, it was incumbent upon the prosecution to prove that i) the vehicle in question was being driven by the accused; ii) the vehicle was being driven on any public way; iii) the vehicle was being driven in a rash or negligent manner so as to (a) endanger human life, or (b) be likely to cause hurt or injury to any person. In order to secure conviction of accused for the offence u/s 337 IPC, in addition to the aforesaid facts the prosecution was required to prove that the said driving has resulted in actual hurt to any human being. For conviction u/s 304 A IPC, it was incumbent upon the prosecution to prove that the injuries sustained by a human State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN Judgment dated 10.08.2020 KUMAR KUMAR GARG Page No. 12 of 21 Date: 2020.08.10 GARG 13:27:40 +05'30' being as a result of such accident had resulted in his death.
32. So far as identity of the offending vehicle as well as the driver thereof is concerned, prosecution has relied upon the testimony of PW-1, mechanical inspection reports Ex. PW-9/C and Ex. PW-9/D of the two vehicles involved in the accident and testimony of PW-8 coupled with the relevant entry in the duty register Ex. PW-8/D.
33. It is significant to note in this regard that the complainant, who has been examined as PW-1, has identified the vehicle bearing registration no. UP14F 5463 from the photographs Ex. PW-1/C as the offending vehicle and the accused as the driver of the said vehicle during his examination in chief dated 08.06.2012. The aforesaid part of testimony of PW-1 as to the identity of accused as the driver of the offending vehicle has remained uncontroverted during his cross- examination dated 08.06.2012. The said testimony of the complainant, even otherwise, has been corroborated by the testimony of PW-8, who has tendered the duty register of 25.10.2010 maintained by CISF, in terms of which on 25.10.2010, the accused was on duty as driver of the offending vehicle. In view of the same, it is proved through the testimony of PW-8 that the offending vehicle was in possession of the accused at the time of accident and if the accused were to dispute his identity as the driver of the said vehicle, it was for him to lead evidence to the contrary i.e. as to the name of person who was actually driving the truck at the time of the accident, the aforesaid fact being within his special knowledge in terms of Section 106 of the Evidence Act. However, as has already been observed hereinabove, accused has failed to lead any evidence in his defence despite opportunities.
ARUN Digitally signed
by ARUN
State Vs. Bikramjeet Singh
FIR No. 470/2010 P.S. Najafgarh KUMAR KUMAR GARG
Date:
Judgment dated 10.08.2020 Page No. 13 of 21
GARG 2020.08.10
13:27:51 +05'30'
34. Even otherwise, the testimony of PW-1, in this regard has further been corroborated by the mechanical inspection reports of the offending vehicle as well as the motorcycle of the complainant. The aforesaid reports have been proved by the prosecution as Ex. PW-9/C and Ex. PW-9/D through the IO. The mechanical inspection reports of the two vehicles indicate towards collision between the two vehicles in view of fresh damages noticed by the mechanical inspector on the right side of the motorcycle and rear left side of the offending truck. Moreover, as per reports of the mechanical inspector, both the vehicles at the time of accident were roadworthy and hence accident could not have taken place due to any mechanical failure. However, the aforesaid fact by itself is not sufficient to hold that the accident was caused due to rash or negligent driving of one or the another vehicle.
35. It is significant to note, at this stage, that the PW-1 was recalled for his further cross-examination by Ld. Predecessor of this Court, on an application of the accused u/s 311 Cr.P.C., after almost 6 years of his first examination and cross-examination dated 08.06.2012. During his further cross-examination, PW-1 turned completely hostile on the point of the identity of offending vehicle as well as the identity of the accused and had tried to take a stand that on 08.06.2012 he had identified the accused due to the force exerted upon him by the police. He was duly cross-examined by Ld. APP for State, with the permission of the Court, and during cross-examination he denied having been threatened by anyone in respect of the present case at any point of time. Under the aforesaid circumstances, considering the time gap of more than six years between the two dates of State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN Judgment dated 10.08.2020 KUMAR KUMAR GARG Page No. 14 of 21 Date: 2020.08.10 GARG 13:28:04 +05'30' examination/cross-examination of complainant, it can safely be assumed that the PW-1 did not identify the accused as well as the offending vehicle either because of any intimidation or threat by the accused or due to the fact that he had been won over by the accused. While taking the aforesaid view, I draw support from the authoritative pronouncements of Hon'ble Supreme Court in State of Madhya Pradesh vs Badri Yadav & Ors. (2006)9SC C 549 and Nisar Khan @Guddu & Ors. v. State of Uttranchal (2006) 9 SCC 38.
36. Even otherwise, it has been fairly conceded by Ld. Counsel for accused that the mere fact of PW-1 turning hostile on 12.12.2018 is not sufficient to efface his testimony dated 08.06.2012 altogether from the record and the same can still be acted upon by the Court if found dependable and corroborated by other evidence on record as held by Hon'ble Supreme Court in Raja & Ors. V. State of Karnataka Cr. App. No. 1767/2011 decided on 04.10.2016. In the case in hand, as has already been observed hereinabove, testimony of complainant dated 08.06.2012, as to the identity of offending vehicle as well as the driver thereof at the time of accident, has been corroborated by the other evidence available on record in the form of mechanical inspection reports of two vehicles Ex. PW-9/C and Ex. PW-9/D and the duty register Ex. PW-8/D of CISF besides the original tehrir Ex. PW-1/A and hence found dependable.
37. No doubt, as alleged by Counsel for accused, the damages on the motorcycle were possible due to its falling down and the same could not have been necessarily due to collision of the offending vehicle with the motorcycle, however, in my considered opinion, in the absence of any explanation on the part of accused of the damages State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN Judgment dated 10.08.2020 KUMAR KUMAR GARG Page No. 15 of 21 Date: 2020.08.10 GARG 13:28:20 +05'30' noticed by the mechanical inspector on the left side of truck, the testimony of PW-1 regarding the collision between the offending truck and motorcycle cannot be brushed aside.
38. From the uncontroverted testimony of PW-1 dated 08.06.2012, prosecution has also been able to prove the second ingredient of the offence u/s 279 IPC that the vehicle in question was being driven by the accused on a public way, in as much as the accident has taken place at main Jharoda Road.
39. Now coming to the next ingredient of the offence u/s 279 IPC i.e. whether the offending vehicle was being driven by the accused in a rash or negligent manner so as to (a) endanger human life, or (b) be likely to cause hurt or injury to any person.
40. The aforesaid claim of the prosecution has been seriously contested by Ld. Counsel for accused, who submits that the prosecution has failed to prove beyond reasonable doubts that the offending truck was being driven by the accused in either a rash or negligent manner. On the other hand, according to Ld. APP for State, prosecution has been able to prove the aforesaid fact beyond reasonable doubts through the un-controverted testimony of PW-1 that the accused has caused the accident while overtaking the motorcycle at a fast speed. Ld. APP for State has relied upon two judgments of different High Courts as referred to hereinabove to allege that the Court can take judicial notice of the fact that the vehicle driven by the accused was a heavy vehicle and hence court should presume negligence on the part of accused being the driver of a heavy vehicle considering the circumstances under which the accident had taken place.
State Vs. Bikramjeet Singh ARUN Digitally signed
by ARUN KUMAR
FIR No. 470/2010 P.S. Najafgarh
Judgment dated 10.08.2020 KUMAR GARG
Page No. 16 of 21
Date: 2020.08.10
GARG 13:28:34 +05'30'
41. I have carefully perused the material available on record and have given my thoughtful consideration to the same. It is significant to note that the circumstances, as given by the complainant in his tehrir Ex. PW-1/A, leading to accident in question are that when the complainant was driving his motorcycle on main Jharoda Road with the pillion rider Lalit Prasad, the accused came driving the offending truck at a fast speed and was continuously blowing the horn. At about 09.00 am, complainant slowed the speed of his motorcycle as a lady was crossing the road from in front of his motorcycle, however, accused continued driving the truck at a fast speed and struck against the motorcycle of complainant as well as shoulder of deceased Lalit Prasad while overtaking the vehicle from the right side.
42. Contrary to the aforesaid stand taken by complainant in his complaint Ex. PW-1/A, in his testimony dated 08.06.2012, complainant deposed before the court that the motorcycle was slowed down by him due to continuous blowing of the horn by the accused and he also took his motorcycle on the side of the road. He categorically denied having slowed down the motorcycle due to crossing of road by any lady from in front of his motorcycle. He was even confronted with his statement Ex. PW-1/A by the Counsel for accused during his cross-examination dated 08.06.2012, however, he insisted that the statement given by him in the Court as to the manner in which the accident had taken place was correct and the speed of his motorcycle was slowed down by him due to continuous blowing of horn by the accused from behind and not due to crossing of road by any lady from in front of his motorcycle.
43. PW-1 admitted during his cross-examination that for about two State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN Judgment dated 10.08.2020 KUMAR KUMAR GARG Page No. 17 of 21 Date: 2020.08.10 GARG 13:28:50 +05'30' minutes his motorcycle and the offending truck were running ahead of each other and that he was driving his motorcycle at a normal speed. Under the aforesaid circumstances, a reasonable doubt arises about the veracity of his statement that the accused was driving the truck at a very fast speed at the time of accident, in as much, if the motorcycle was being driven at a normal speed and both vehicles were running ahead of each other for about 2 minutes, it needed to be explained by PW-1 as to how the truck was being driven at a fast speed.
44. Be that as it may, as has already been observed hereinabove, driving at a fast speed by itself is not sufficient to prove that the offending vehicle was being driven by the accused in a rash or negligent manner, more so, when the approximate speed of the offending vehicle has also not been given by the complainant.
45. Complainant has further admitted during his cross-examination that he was driving the vehicle while looking ahead and he was not looking backward and hence, he can't be considered to be a natural witness as to the manner of driving of offending vehicle by the accused. Even the circumstances do not conclusively indicate that the offending vehicle was being driven by the accused in a rash or negligent manner leading to the accident in question. I don't agree with the submission of Ld. APP for State that in every case of accident involving a heavy vehicle, the Court should presume negligence on the part of driver of offending vehicle. From the circumstances narrated by the complainant in his statement Ex. PW-1/ A, in terms of which he had slowed down the motorcycle as some lady was crossing the road from in front of his motorcycle, the possibility of complainant loosing balance, while applying breaks due State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally by ARUN signed Judgment dated 10.08.2020 KUMAR KUMAR Date:
GARG Page No. 18 of 212020.08.10 GARG 13:29:02 +05'30' to sudden coming of a lady in front of motorcycle, and colliding against the offending truck cannot be ruled out.
46. The prosecution has also failed to explain as to how the blood was found lying 11.4 ft. away, towards the divider on the right side, from the place of accident as shown in the site plan Ex. PW-9/B and how the motorcycle had fallen on the right side after about 11.4 ft away from the place of accident. If the offending truck had hit the motorcycle on the right side, in the ordinary course of events the motorcycle should have fallen on the left side. No doubt there cannot be any hard and fast rule that if a vehicle is hit on its right side the same cannot fall on the right side but the manner in which the motorcycle after the accident had fallen at some distance on the right side was to be explained by the prosecution either through PW-1 or through any other independent witness, which the prosecution has failed to explain.
47. It is significant to note that prosecution has failed to examine the person who had made the PCR call in support of his case, nor has the prosecution examined the uncle of complainant namely Sadaram despite the fact that he had taken the complainant to the hospital. Though, as per PW-4, IO has examined 3-4 public persons at the place of accident, however, none of them has been examined by the prosecution in its evidence. In fact, IO of the case i.e. PW-9 has taken a plea that he has not examined any public witness. As per the stand taken by the IO, accused was apprehended by the public at some distance from the place of accident and he has arrested the accused at the instance of complainant at about 04.30 PM from there, however, none of the aforesaid public persons have been joined as witnesses. State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh ARUN Digitally signed by ARUN Judgment dated 10.08.2020 KUMAR KUMAR GARG Page No. 19 of 21 Date: 2020.08.10 GARG 13:29:16 +05'30' The aforesaid version of the IO is even contrary to the testimony of complainant, who has deposed that accused was apprehended from the spot in his presence however, he has never visited the spot after the accident.
48. AS per IO, complainant had already been taken to hospital when he reached on the spot and subsequently after recording of his statement Ex. PW-1/A, accused has been arrested from near the place of incident at his instance, whereas, according to PW-1, he has never visited the place of accident again after he wa shifted to the hospital. Under the aforesaid circumstances, arrest of the accused is shrouded with suspicion. It is unimaginable that from 10.00 am to 04.30 pm, public had been holding the accused without even informing the police and IO could not found him when he first visited the place of accident at about 10.00 am.
49. It is also significant to note that the complainant has reached the hospital after about one and half hour of the deceased reaching the hospital and the PM report records no injury to the right shoulder of the deceased so as to corroborate the testimony of complainant that the accused had struck his vehicle against the right shoulder of the deceased.
50. No doubt, as submitted by Ld. APP for State, the testimony of injured needs to be placed on a higher pedestal in view of the fact that he is not likely to implicate an innocent while saving the actual offender, however, in the case in hand, admittedly the deceased was not related to the complainant and since chances of accident having been caused due to his negligence can't be ruled out, he had the sufficient motive to implicate the accused in order to save himself ARUN State Vs. Bikramjeet Singh Digitally signed FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 by ARUN Page No. 20 of 21 KUMAR KUMAR GARG Date: 2020.08.10 GARG 13:29:31 +05'30' from the liability.
51. From the aforesaid discussion, it is apparent that the prosecution has failed to prove beyond reasonable doubts that the accused was driving the offending vehicle in a rash or negligent manner so as to endanger human life, or likely to cause hurt or injury to any person. As noted hereinabove, there are reasonable doubts about the veracity of the prosecution story regarding the accident having been caused by the accused while driving the offending vehicle in a rash or negligent manner, benefit of which must go the accused.
52. In the absence of proof of aforesaid fact as to driving of offending vehicle by the accused in either rash or negligent manner, the prosecution has failed to prove the charge against the accused not only under Section 279 IPC but also under Sections 337 and 304A IPC.
53. The accused is thus entitled to be acquitted of all charges against him and is hereby acquitted of charge u/ss 279/337/304A IPC.
54. Bail Bonds in terms of Section 437-A Cr.P.C. have already been furnished by the accused and the same have been accepted on 31.07.2020. The said bail bonds shall remain in force for a period of six months from today.
55. Ordered accordingly.
ARUN Digitally by ARUN signed Pronounced in the open court on this 10 th Day of August, 2020. This judgment consists of 21 signed pages.
KUMAR KUMAR Date:
GARG 2020.08.10 GARG 13:29:48 +05'30' (ARUN KUMAR GARG) Additional Chief Metropolitan Magistrate Dwarka Courts: New Delhi State Vs. Bikramjeet Singh FIR No. 470/2010 P.S. Najafgarh Judgment dated 10.08.2020 Page No. 21 of 21