Delhi District Court
State vs . on 19 May, 2023
FIR No. 291/2013
State v. Jaipal
PS Sarita Vihar
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 87337/16
CNR No.-: DLSE020010452014
FIR No. -: 291/13
Police Station -: Sarita Vihar
Section(s) -: 279/304A IPC
In the matter of -
STATE
VS.
JAIPAL
...Accused
1. Name of Complainant :- ASI Tara Chand, No.
5892/PCR
2. Name of Accused Person :- Jaipal, S/o Sh. Mohar Singh
3. Offence complained of or :- 279/304A IPC
proved
4. Plea of Accused Person :- Not guilty.
5. Date of Commission of :- 13.08.2013
offence
6. Date of Filing of case :- 20.02.2014
7. Date of Pronouncement :- 19.05.2023
8. Final Order :- CONVICTION
BRIEF REASONS FOR DECISION:
1. The case of the prosecution in brief is that on 13.08.2013 at about 7:15 am, at
between Metro Pillar no. 223 & 224, HP Petrol Pump, Mathura Road, Sarita
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State v. Jaipal
PS Sarita Vihar
Vihar within jurisdiction of PS Sarita Vihar, Accused Jaipal, was found driving
a truck (hereinafter referred to as offending vehicle) bearing registration no. HR
47 G 5565, in a rash and negligent manner which endangered human life and
personal safety of others. While driving the offending vehicle in aforesaid
manner, he hit against motorcycle bearing no. DL 6S AL 2527 and caused the
death of Sunil, not amounting to culpable homicide. Hence, the present FIR was
lodged against the Accused for the offences under Section 279/304A IPC.
2. After the investigation, the charge-sheet was filed in the Court on 20.02.2014
against the Accused for the offences under Section 279/304A IPC. Notice under
Section 251 CrPC for these offences was framed against him vide order dated
27.06.2014 by the Court, to which the Accused pleaded not guilty and claimed
trial.
3. To prove its case prosecution has examined twelve witnesses in all; and led the
following oral and documentary evidence:
ORAL EVIDENCE
PW1 :- Rakesh Kumar (Witness)
PW2 :- Lt. Col. Airndam Handique (Hirer of the
offending truck)
PW3 :- ASI Renu Rani (Duty Officer)
PW4 :- SI Nagender Nagar (2nd IO)
PW5 :- Sh. Dheeraj Mittal (Ld. MM who
conducted TIP)
PW6 :- Ct. Bhajan Singh (IO Accompanying
witness)
PW7 :- ASI Tara Chand (Complainant/1st IO)
PW8 :- Ct. Mukesh (Witness)
PW9 :- Ct. Yogender Kumar (Witness)
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State v. Jaipal
PS Sarita Vihar
PW10 :- Ct. Kishan Kumar (TO Accompanying
witness)
PW11 :- Sh. Veer Bhan (Superdar of the
offending vehicle)
PW12 :- SI Babu Lal (witness)
DOCUMENTARY EVIDENCE
Ex. P-1 to :- Photographs of offending vehicle,
P-8 accidental vehicle, blood stains and
helmet.
Ex. PW2/A :- Written statement of PW2
Ex. PW2/B :- Photocopy of receipt of transport.
(OSR)
Ex. PW3/A :- FIR No. 291/2013.
Ex. PW3/B :- Endorsement on Rukka.
Mark :- Photocopy of verification report of DL.
PW4/A
Ex. PW5/A :- TIP report and application of IO for
and Ex. copy of TIP.
PW5/B
Ex. PW6/A :- Seizure memo of offending truck and
and Ex. accidental bike.
PW6/B
Ex. :- Seizure memo of documents of
PW6/C, offending truck, accidental bike, DL of
Ex. deceased.
PW6/C1
and Ex.
PW6/C2
Ex. PW6/D :- Seizure memo of DL of Accused and
and Ex. documents of offending truck.
PW6/E
Ex. PW6/F :- Arrest memo and personal search
and Ex. memo of Accused.
PW6/G
Ex. PW7/A :- Rukka.
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Ex. PW7/B :- Site Plan.
Ex. PW7/C :- Statement of Hari Singh, Father of the
deceased.
Ex. PW7/D :- Statement recorded qua hand over of
body.
Ex. PW7/E :- Notice u/s 133 MV Act.
Ex. :- Reply to notice u/s 133 MV Act by
PW11/A PW11.
Ex. :- Superdarinama of the offending truck.
PW11/B
DOCUMENTS ADMITTED BY THE ACCUSED
PURSUANT TO SECTION 294 CRPC
Ex. A1 :- MLC bearing no. 382837/2013
Ex. A2 :- Post mortem report no. TC513/2013
dated 13.08.2013
Ex. A3 :- Mechanical inspection report of vehicle
bearing no. DL 3S AL 2527
Ex. A4 :- Mechanical inspection report of vehicle
bearing no. HR 47 G 5565
4. Accordingly, witnesses namely, Dr. Parmita Basu (AIIMS Trauma Centre), Dr.
Munish Sharma, Sh. T.U. Siddiqui, were dropped from the list of witnesses,
pursuant to the statement of the Accused recorded under Section 294 CrPC.
5. PW-1/Rakesh Kumar: He has deposed that on 13.08.2013, when at about 07:15
AM, he was going to MCD office from his house for some personal work on his
motorcycle; near Apollo Hospital, Sarita Vihar, one truck bearing no. HR-5565
which was coming from Badarpur side at a high speed, overtook him and hit
against a motorcycle from backside. All the three vehicles were moving in the
same direction. Accused driver did not blow any horn when he overtook PW-1
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and kept driving the truck at high speed. As an impact of hitting, the motorcycle
fell on one side of the road and front driver side wheel of truck ran over the
motorcyclist. The truck driver had applied brakes only after collision of both
vehicles. The driver of offending truck got down and fled away from the spot.
One army man also came out of the truck and told PW-1 that the truck was being
driven by some other person who had run away. He also told that the truck was
carrying the belongings of an army colonel. Somebody called at 100 number.
PCR reached at the spot and shifted injured/deceased to hospital. Police recorded
the statement of PW-1 on the next day of incident when PW-1 visited the police
station. PW-1 narrated the whole incident to police. PW-1 also correctly
identified the Accused, the offending truck, victim's vehicle in court that day.
PW-1 was duly cross-examined by Ld. Counsel for the Accused. In the said
cross-examination, PW-1 admitted that he had not seen the face of the driver, as
he had run away from the backside. He also stated that no statements (except his
own) were recorded in his presence. He stated that the photographs were taken
by the police officials in his presence. However, he stated that his statement was
recorded at the police station; and he was not taken to the spot of incident by the
police officials.
6. PW-2/Lt. Col. Arindam Handique has deposed that on 09.08.2013, he had hired
a truck from Vindhya Transport Company, Rewa, MP for shifting of his personal
belongings from Rewa, Madhya Pradesh to Dwarka, New Delhi. After loading
his luggage, the truck was accompanied by Hawaldar Yogender of 3 MP
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Battalion, NCC, Rewa as an escort. However, PW-2 was not present during
loading of the said truck as he had moved on posting to New Delhi on 26.07.2013
from Rewa.
He gave his hand written statement to police, i.e., Ex. PW2/A; along with
photocopy of receipt of transport.
Same is Ex. PW2/B (OSR). In his cross-examination, PW-2 admitted that he
had neither personally seen the truck nor the driver, which was hired by him; and
that this information was given by Hawaldar Yogender to him.
7. PW-3/ASI Renu Rani proved the registration of FIR, Ex. PW3/A and
endorsement on rukka, Ex. PW3/B. She was not cross-examined by Ld. Counsel
for the Accused despite opportunity.
8. PW4/SI Nagender Nagar: He deposed that he had verified the driving license
of the Accused and had filed the chargesheet in court. He was not cross-
examined by Ld. Counsel for the Accused, despite opportunity.
9. PW5/Sh. Dheeraj Mittal, Ld. MM/PHC proved the conduct of TIP proceedings
and the report, Ex. PW5/A, in which the Accused had refused to participate in
TIP proceedings. He was not cross-examined by Ld. Counsel for the Accused,
despite opportunity.
10.PW-6/ Ct. Bhajan Singh: He has deposed that on 13.08.2013, he was posted as
constable at PS Sarita Vihar; and he alongwith ASI/IO Tara Chand was on
emergency duty. On that day, at about 07:40 a.m., HC Sanjay appeared and
handed over DD No. 13A dated 13.08.2013, PS Sarita Vihar regarding accident
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near HP Petrol Pump, near Metro pillar, Mathura Road to him. Thereafter, PW-
6 alongwith IO reached at the spot where truck bearing No. 5565 and one
motorcycle make Hero, Black colour were present in an accidental condition.
Blood and helmet were also present there at the spot. IO made enquiries from
Head constable (Indian Army) and other public persons present at the spot.
Thereafter, IO left PW-6 at the spot and went to AIIMS Trauma Centre, where
injured was shifted. Thereafter, IO returned back to the spot. IO prepared rukka
which was taken to PS by PW-6 for registration of FIR. After registration of FIR,
PW-6 returned back to spot and handed over original rukka and copy of FIR to
IO. Thereafter, IO seized offending truck and accidental bike vide seizure memo
Ex. PW6/A and, both bearing the signature of PW-6 at point B. Further, IO also
seized documents of offending truck and accidental bike which were found in
respective vehicles Ex. PW6/B vide seizure memo Ex. PW6/C and Ex.PW6/C-
1 both bearing the signature of PW-6 at point A. IO also seized photocopy of DL
of injured Sunil Kumar vide seizure memo Ex. PW6/C-2 bearing the signature
of PW-6 at point A. Thereafter, seized case property was taken to PS. IO recorded
the statement of PW-6 at PS. On 24.08.2013, PW-6 joined investigation of the
present case. On that day, the Accused driver who revealed his name as Jaipal
Singh alongwith owner of offending truck came to PS. Owner of the offending
truck produced documents of offending truck alongwith Accused driver and
driving license of Accused driver before the IO. IO seized DL of Accused and
documents of offending truck vide seizure memo Ex. PW6/D and Ex. PW6/E,
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both bearing the signature of PW-6 at point A. Accused driver admitted his guilt
in the presence of PW-6. IO arrested and personally searched the Accused vide
memos Ex. PW6/F and Ex.PW6/G. IO recorded the statement of PW-6 under
Section 161 CrPC. PW-6 correctly identified the Accused, offending truck,
accidental bike, blood stains and helmet (i.e., Ex. P-1 to Ex. P-8), in court that
day. In the leading questions put by Ld. APP for the State, with permission of
the Court, PW-6 admitted that the accident took place near HP Petrol Pump near
Pillar no. 223 and 224 Metro, Mathura Road; and that the registration number of
offending truck was HR-47-G-5565; and victim's bike was DL-6SA-L-2527. He
also admitted that the blood was lying on road near right side front tyre of
offending truck; helmet of injured was lying near the front tyre. He also stated
that the IO took photographs of the spot from his mobile phone. Further, PW-6
accompanied IO to AIIMS Mortuary; and that after post mortem of deceased
Sunil Kumar, his dead body was handed over to his father namely Hari Singh.
He also admitted that on 24.08.2013, the owner of offending truck namely Veer
Bhan alongwith Accused driver appeared before IO. He was duly cross-
examined by Ld. Counsel for the Accused. However, no material contradiction
surfaced.
11.PW-7/ASI Tara Chand: He has deposed that on 13.08.2013, he was posted as
ASI at PS Sarita Vihar; and on the intervening night of 12-13/08/2013, he was
on emergency duty from 08:00 p.m. to 08:00 a.m. On that day, PW-7 received
DD no. 13A regarding the present accident; on the basis of which PW-7
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alongwith Ct. Bhajan Singh, went to the spot i.e., HP Petrol Pump between
Metro Pillar No. 223-224, Mathura Road from Badarpur towards Ashram. When
they reached the spot, they saw one truck bearing No. HR-47G-5565 and a
Motorcycle make Hero Delux bearing registration No. DL-65-AL-2527 black
colour were present there in an accidental condition. One person from Indian
Army namely Yogender Kumar also met them and told that today he was coming
from Riva, Madhya Pradesh in truck bearing No. HR-47G-5565 carrying house
hold articles of his Lt. Col. (PW-2) and was going to Delhi Cantt. At about 07:00
/ 07:15 a.m. when he was sleeping in the cabin of the truck, truck was being
driven by driver namely Jaipal, i.e., the Accused. Further, that he was awakened
when the driver applied power brakes suddenly and at the same time he heard a
loud noise of something hitting against the abovesaid truck. When he checked
the driver seat, driver was not present there. Thereafter, Hawaldar Yogender got
down from the truck. He saw one person who was badly injured and was lying
between the front and rear tyres of the abovesaid truck and one motorcycle
bearing No. DL- 6S-AL-2527 was also affixed in the right-side front tyre of the
abovesaid truck. Helmet of injured was also lying on the road a little ahead of
the abovesaid bike. He also told that injured was shifted to the hospital.
Thereafter, PW-7 photographed the spot with his mobile phone. Thereafter, SI
Babu Lal also appeared at the spot who told that the accident had
taken place when he along with Ct. Krishan was patrolling near the spot and the
abovesaid truck was moving on the road ahead of them. The said truck hit against
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the abovesaid motorcycle which was being driven by the rider ahead of the said
truck. Thereafter, injured was taken to the AIIMS Trauma Centre via ERV 65 by
Ct. Krishan which was from Sangam Vihar PS and was present near the spot.
Thereafter, PW-7 left Ct. Bhajan Singh at the spot and went to AIIMS Trauma
Centre and collected MLC on which doctor declared the injured "brought dead".
PW-7 searched for witness of the present case in the hospital but none was found.
Thereafter, PW-7 came back to the spot and prepared rukka Ex. PW7/A on the
basis of DD no. 13A. Thereafter, said rukka was sent to PS for registration of
FIR through Ct. Bhajan Singh. Thereafter, PW-7 prepared site plan Ex.PW7/B
bearing his signature at point A at the instance of abovesaid Yogender. After
sometime, Ct. Bhajan Singh returned back to the spot and handed over him copy
of FIR and original rukka.
Thereafter, PW-7 seized the abovesaid truck and motorcycle and helmet of the
injured vide seizure memos Ex. PW6/A, Ex.PW6/B. Thereafter, PW-7
alongwith Ct. Bhajan Singh and HC Yogender (Army) returned back to the PS
alongwith the abovesaid case property. Thereafter, the desk board of abovesaid
truck and found documents relating to said truck. PW-7 also checked the diggi
of abovesaid motorcycle and found documents of motorcycle. All the documents
which were photocopies were seized by IO vide memo Ex. PW6/C and PW6/C1
both bearing his signature at point B. Thereafter, case property was deposited in
the Malkhana, PS Sarita Vihar. Thereafter, PW-7 recorded
statement of Yogender Kumar u/s 161 Cr.P.C. in the PS. In the meanwhile, the
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Lt. Col., whose luggage was carried in the offending truck also came to PS. After
sometime relatives of injured including father namely Hari Singh also came to
PS and PW-7, Ct. Bhajan Singh alongwith the relatives of the deceased went to
mortuary of AIIMS Trauma Centre. Dead body was identified by the father of
deceased at the mortuary. Statement of Hari Singh i.e., father of deceased who
identified the dead body which is Ex. PW7/C. Thereafter, post mortem of dead
body was conducted. After post mortem dead body was handed over to the father
of the deceased and his statement was recorded in this regard which is Ex.
PW7/D. Thereafter, PW-7 alongwith Ct. Bhajan Singh returned back to the PS.
PW-7 recorded statement of Ct. Bhajan Singh in the PS. PW-7 also recorded
statement of SI Babu Lal and Ct. Krishan who were also present at the spot.
Further, on 14.08.2013, PW-1, i.e., Rakesh appeared before PW-7 in the PS and
told that the present accident was witnessed by him. PW-7 recorded his statement
us 161 Cr.P.C. Thereafter, on the same day mechanical inspection of the
abovesaid truck and motorcycle was conducted by MVI at the request of PW-7
in the PS. After mechanical inspection PW-7 recorded statement of MVI. On
15.08.2013, PW-7 went to PS Sangam Vihar for recording statement of driver of
ERV 65 on 13.08.2013. At PS Sangam Vihar that the said driver was on leave
(duty off). Thereafter, PW-7 returned back to PS. On 19.08.2013, owner of
offending vehicle came to PS, alongwith the Accused. Owner of offending truck
also replied notice u/s 133 MV Act. Thereafter, PW-7 duly enquired the Accused
driver who admitted his involvement in the present case. Accused driver also
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PS Sarita Vihar
produced his DL vide memo already Ex. PW6/D bearing the signatures of PW-
7 at point B. Thereafter, PW-7 carried personal search and arrested Accused in
the present case vide memo already Ex. PW6/F and Ex. PW6/G. Owner of
offending truck produced documents of offending truck which was seized by
PW-7 vide memo already Ex. PW6/E. Thereafter, Accused was released on
police bail as the offences were bailable. During investigation, PW-7 applied for
Judicial TIP of Accused and the same was refused by him. During investigation,
PW-7 got verified all the documents seized by him including DL of Accused.
During investigation PW-7 recorded statements of witnesses u/s 161 Cr. P.C.
PW-7 correctly identified the offending truck, victim's vehicle and the Accused
in court that day. He was cross-examined by Ld. Counsel for the Accused. In his
cross-examination, he stated that there was no conductor in the truck and that he
had not given any notice to public persons at the spot.
12.PW-8/Ct Mukesh deposed that on the intervening night of 12.-13.08.2013, he
was on emergency reserved Vehicle Duty as a driver from 8.00 PM to 8.00 AM.
He received the instructions from the police control room Sarita Vihar for taking
police officials from PS Sarita Vihar to PS Sangam Vihar. Thereafter, he reached
at Sarita Vihar Control Room where he found that the police officials already
left the said place for PS Sangam Vihar. At around 7.00-7.15AM he left the PS
Sarita Vihar for PS Sangam Vihar. When he was going to the PS Sangam Vihar,
one Truck bearing no. HR 47 G 5565 was plying ahead of him in a high speed
in a rash and negligent manner and when the said Truck reached at Metro Pillar
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number between 223 and 224 near HP Petrol Pump, it hit against the motorcycle
bearing No. DL 6S AL 2527. Thereafter, he stopped his Gypsy behind the said
truck and he got down from the vehicle. Then, PW-8 saw the driver of the said
offending vehicle from his behind and was not able to see his face while he was
fleeing away from the spot. The motorcyclist came under the offending vehicle
and blood was oozing from his body. In the meantime, SI Babu Lal and Ct.
Kishan Kumar came there and they informed PW-8 that they were from PS Sarita
Vihar. Thereafter, PW-8 alongwith SI Babu Lal and Ct. Kishan Kumar kept the
injured in the gypsy. Thereafter, PW-8 alongwith Ct. Kishan Kumar took the
injured to AIIMS Trauma Centre and he alone came back to PS Sangam Vihar
for his duty. His statement was recorded by IO on 24.09.2013. One person who
appeared to be from Armed Forces, also got down from the offending vehicle
and remained there at the spot. In his cross-examination, he admitted that he
cannot identify the driver who was driving the vehicle as he had seen him from
the back side only.
13.PW-9/ Ct. Yogender Kumar: He deposed that he was posted as a constable in
Army; and that on 11.08.2013, at around 4.00PM, he left from Riwa District M.
P. in Truck bearing No. HR-47G-5565 alongwith conductor and driver for Delhi
as they were carrying the goods of Colonel. The driver of the abovesaid truck
was Jai Pal Singh who was present in the court and was correctly identified by
the witness. He did not remember the name of the helper of the said truck. On
12.08.2013, they got stuck in the traffic jam at Gwalior and they proceeded for
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PS Sarita Vihar
Delhi at around 12.00 am and reached near the H. P. Petrol Pump, near Apollo
hospital and PS Sarita Vihar. At that time, PW-9 was sleeping in the cabin of the
said truck and he suddenly heard the noise and woke up. He saw that neither the
Accused Jai Pal Singh nor the helper of the vehicle were present inside the
vehicle. He got down from the said truck and saw one black colour bike was
lying under the left side tyre of the offending vehicle and one person was lying
between first tyre and the second tyre infront right side of the offending vehicle.
Thereafter, PW-9 informed his senior officer Colonel regarding the incident.
Thereafter, police officers came there and took the said person to the Hospital.
He did not remember the number of the bike. In his cross-examination, he
admitted that he had not seen the accident happening.
14.PW-10/ Ct Kishan Kumar: He deposed that on 13.08.2013, he was on patrolling
duty and rehearsal duty on the occasion of Independence day. At around
7.15AM, he was going from PS-Sarita Vihar to Okhla tank and reached at the
Metro Pillar number between 223 & 224 near Petrol Pump, Sarita Vihar where
he found one truck bearing no.46 or 47-5565 and one bike bearing no. DL-
6SAL-2527. PW-10 did not remember the exact registration number of the said
truck. One person was found lying in injured condition under the said truck and
SI Babu was present near the spot as SI Babu was also on patrolling duty. PW-
10 informed SI Babu regarding the said incident. The ERV staff was called by
the SI Babu Lal as they were behind the truck. PW-10 alongwith driver of the
ERV Staff took the injured to the hospital on the instructions of the SI Babu Lal
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in the ERV Vehicle. The said injured got admitted in the hospital and the ERV
driver left the hospital. Doctor had declared the injured brought dead. Thereafter,
SI Tara Chand reached at the hospital and PW-10 came back to the PS for duty.
PW10's statement was recorded in PS. In his cross-examination by Ld. Counsel
for the Accused, he stated that he could not tell the exact place under the truck
where the injured was lying.
15.PW-11/Sh. Veer Bhan/superdar: he deposed that he is the registered owner of
the offending vehicle and that the vehicle on 13.08.2013 was in exclusive
possession of Jaipal, i.e., the Accused. Further deposed that he produced the
driver in the PS on 17.08.2013 in response to notice u/s 133 MV Act. He was
not cross-examined by Ld. Counsel for the Accused despite opportunity.
16.PW-12/SI Babu Lal: He deposed that on 13.08.2013, he was posted as SI at PS
Sarita Vihar. On that day, he was on picket duty at Okhla Tank picket. At about
07:20 AM, Ct. Krishan Kumar reached there and informed PW-12 that one
motorcycle was hit by Truck bearing no. HR-47G-5565 near HP Petrol Pump,
Metro Pillar no. 223/224, Mathura Road. Ct. Krishan Kumar also informed that
the motorcycle was lying under the truck in "lahu luhan haalat mein pada tha".
Thereafter, PW-12 alongwith Ct. Krishan Kumar reached the spot and saw that
one motorcycle was lying near front rear tyre of aforesaid truck and one person
aged about 23-24 years was lying under the said truck in grievously injured
condition. The said person was unconscious. One Indian Army personnel was
also standing there. PW-12 took photographs of the spot with his private mobile
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phone. In the meanwhile, one ERV Van arrived there. Thereafter, PW-12 with
the help of Ct. Krishan Kumar removed the said injured from under the said
Truck and put the injured in the said ERV. The said injured was taken to AIIMS
Trauma Centre. Ct. Krishan Kumar accompanied the injured. Thereafter, PW-12
inquired said Army man, who revealed his name as Yogender Kumar. Mr.
Yogender Kumar informed PW-12 that the said Truck was containing luggage
of their officer and they were coming from Riva, Madhya Pradesh and was going
to Delhi Cantonment. The said truck was being driven by Driver Jaipal. In the
meanwhile, IO alongwith his staff reached there. Thereafter, PW-12 was
discharged from the spot. PW-12 correctly identified the offending truck,
victim's vehicle in Court that day. He was cross-examined by the Ld. Counsel
for the Accused, in which he admitted that the original photographs clicked by
him, were not on record, and only copies of the same were there.
17.Pursuant to order dated 04.08.2022 passed by Ld. Predecessor of this Court, PW-
2 and PW-11 were recalled for clarifications. PW-2 clarified that he was
informed of the occupants of the truck by Hawaldar yogender. PW-11 clarified
that he did not remember whether any other person was accompanying the driver
or not. He stated that the Accused was deputed to drive the offending vehicle.
However, he also clarified that his manager, Sh. Roop Chand may be in better
knowledge of whether anyone else accompanied the Accused or not.
STATEMENT OF ACCUSED U/S 313 CRPC
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18.Thereafter, Prosecution Evidence was closed. After conclusion of prosecution
evidence, statement of Accused was recorded u/s 313 CrPC on 01.05.2019
wherein he pleaded his innocence and stated that he is innocent and has been
falsely implicated in the present case. He stated that the accident took place due
to the fault of the two-wheeler driver himself. Accused refused to lead defence
evidence and final arguments were heard in the matter.
FINAL ARGUMENTS
19.I have heard the arguments of Ld. APP for State and Ld. Defence Counsel. I
have also perused the case file carefully.
20.It is to be seen that Accused Jaipal has been charged with for the offences u/s
279/304A IPC.
21.Section 279 IPC reads as: Rash driving or riding on a public way: "Whoever
drives any vehicle, or rides, on any public way in a manner so rash or negligent
as to endanger human life, or to be likely to cause hurt or injury to any other
person, shall be punished with imprisonment of either description for a term
which may extend to six months, or with fine which may extend to one
thousand rupees, or with both."
22.Section 304A IPC provides "Whoever causes the death of any person by doing
any rash or negligent act not amounting to culpable homicide, shall be
punished with imprisonment of either description for a term which may extend
to two years, or with fine, or with both."
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23.For offence under section 279/304A IPC, the prosecution has to prove beyond
reasonable doubt, the following mandatory ingredients, viz.,
(i) That accident actually took place;
(ii) that a vehicle was driven or ridden by the Accused at the time of accident;
(iii) that the Accused was driving it on a public way;
(iv) the said vehicle was driven in a rash or negligent manner; and
(v) as a result of such driving death of any person has been caused, which
does not amount to culpable homicide.
24.While the first, second and third ingredients need to be established beyond
reasonable doubt with the aid of eyewitnesses and circumstantial evidence,
the fifth ingredient needs to be proved with the help of medical documents
and expert witnesses. As far as the fourth ingredient is concerned the same
is required to be proved with judicial measurements and with the judicial
interpretation as already established.
25.From the deposition of PW1, PW6, PW7, PW8, PW9, PW10 and PW12 it
is proved that the motorcycle bearing registration no. DL 6S AL 2527 and
the offending vehicle were found at the spot in an accidental condition. The
presence of the truck on the spot in an accidental condition at a time which
is contemporaneous with the time when the accident occurred is clearly
indicative of the fact that the offending vehicle caused the accident. The
mechanical inspection report, i.e., Ex. A3 and Ex. A4 of the offending
vehicle and the victim's motorcycle also corroborate the existence of an
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accident. PW-1 and PW-8 have both deposed that they were plying on the
same road as the victim's motorcycle and the offending vehicle, when the
offending vehicle, which was coming at a high speed, hit against the
motorcycle from behind. Further, PW-8 has stated in the cross-examination
that the truck was coming in a zig zag manner, though speed was not very
high. They have withstood the cross-examination and hence, the fact that an
accident took place between the victim's vehicle and the offending vehicle
and that the same was caused by the offending vehicle, stands proved. It is
also evident from the site plan, Ex. PW7/B, and the testimonies of PW1,
PW6, PW7, PW8, PW9, PW10 and PW12 that the road on which the
accident took place was Mathura Road, i.e., a public way.
26.Further, qua the question of whether the Accused was driving the offending
vehicle at the time of the accident or not, the deposition of PW-11 Sh. Veer
Bhan who is stated to be the registered owner of the offending vehicle would
show that, at the time of the alleged incident, the vehicle was in the
exclusive custody of the Accused. Further it was PW11 who produced the
Accused before the police station on 17.08.2013, pursuant to notice u/s 133
MV Act. Further the Accused has nowhere disputed that he was not driving
the offending vehicle at the time of alleged incident but has in fact stated in
the statement recorded under section 313 CRPC that the incident had
happened due to the fault of the victim himself and not the Accused. Further,
the deposition of PW9 would also support the case of prosecution that it
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was the Accused who was driving the offending vehicle at the time of the
alleged incident, as he had stated that it was the Accused who was driving
the truck from Riva to Delhi. While PW-9 has stated that he was sleeping at
the exact moment when the accident took place, his deposition is otherwise
clear that the person driving the truck was the driver. Additionally, the Ld.
Counsel for the Accused, in no cross-examination has set up the defence
that the truck was being driven by the helper and not the Accused. Further,
if the deposition of PW1 is considered wherein PW1 had deposed that he
had seen the Accused running away from the spot and in addition he has
identified the Accused during the trial, it becomes clear that at the time of
alleged incident it was the Accused who was driving the offending vehicle.
Further, careful of the record would show that the Accused had also refused
to participate in the TIP proceedings; thus, further giving rise to an adverse
inference. Hence, it has been proved that it was the Accused who was
driving the offending vehicle, when the same caused an accident with the
victim's vehicle on a public way.
27.It is a matter of record that the Accused has already admitted all the medical
documents pertaining to the present case, in his statement u/s 294 CrPC,
i.e., the MLC bearing no. 382837/13 and post mortem report no. TC513/13,
i.e., Ex. A1 and Ex. A2. A perusal of Ex. A1 and Ex. A2 show that there
were tyre marks of vehicle present on the anterior wall of his abdomen.
Further, Ex. A2 records that the cause of death in this case is hemorrhage
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shock due to combined effect of abovementioned injuries caused by blunt
external forces which could be possible in road traffic accident. Further,
as per the testimony of PW-7 and PW-10, the victim was declared brought
dead at AIIMS Trauma. Both PW-1 and PW-8 have deposed that the front
tyre of the offending vehicle had run over the victim. Further, PW-9 has
deposed that as soon as he got down from the offending vehicle he saw that
the victim, was lying in critical condition between the first tyre and the
second tyre in the front right side of the offending vehicle. The combined
effect of the ocular evidence and expert medical opinion would show that
the victim had suffered injury due to the alleged incident and succumbed to
the same; and was declared brought dead to the hospital.
28.Hence, it is proved that death of deceased Sunil has occurred due to accident
with the truck bearing registration no. HR 47 G 5565, which was being
driven on a public way by Accused Jaipal.
29.The only ingredient of Section 279 IPC and 304-A IPC left to be proved is
whether the Accused was driving the said vehicle in a rash or negligent
manner or not?
30.The Hon'ble Supreme Court in Kuldeep Singh v. State of Himachal
Pradesh, 2008 CRI. L. J. 3932 (SC) has held that:
"......Two elements either of which or both of which may be proved to
establish the guilt of an Accused are rashness/negligence, a person may
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cause death by a rash or negligent act which may have nothing to do with
driving at all. Negligence and rashness to be punishable in terms of Section
304-A must be attributable to a state of mind wherein the criminality arises
because of no error in judgment but of a deliberation in the mind risking
the crime as well as the life of the person who may lose his life as a result
of the crime. Section 304-A discloses that criminality may be that apart from
any mens rea, there may be no motive or intention still a person may venture
or practicesuch rashness or negligence which may cause the death of other.
The death so caused is not the determining factor....."
31.Negligence and rashness are mandatory elements of an offence under section
279 or 304-A. Culpable negligence lies in the failure to exercise reasonable and
proper care and caution incumbent upon a person in a given set of circumstances
whereas rashness means doing an act with the consciousness of a risk that evil
consequences will follow but with the hope that it will not. A rash and negligent
Act is a reckless act, which means 'regardless' or heedless of the possible
harmful consequences of one's acts. The 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 all the
circumstances of the case.
32.In the judgment titled as Rathnashalvan v. State of Karnataka, 2007(3) S.C.C.
474 : A.I.R. 2007 SC 1064, the Hon'ble Supreme Court held:
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"........"Rashness" consists in hazarding a dangerous or wanton act with the
knowledge that it is so, and that it may cause injury. The criminality lies in such
a case in running the risk of doing such an act with recklessness or indifference
as to the consequences. Criminal negligence on the other hand, is the gross and
culpable neglect or failure to exercise that reasonable and proper care and
precaution to guard against injury either to the public generally or to an
individual in particular, which, having regard to all the circumstances out of
which the charge has arisen it was the imperative duty of the Accused person to
have adopted...."
33.Judicial precedents have also described a 'rash and negligent' act as a 'reckless'
act. In the Kuldeep Singh Case, the Hon'ble Supreme Court quoted R. V.
Caldwell (1981) 1 All ER 961, wherein it was observed that :-
"Nevertheless, to decide whether someone has been reckless', whether harmful
consequences of a particular kind will result from his act, as distinguished from
his actually intending such harmful consequences to follow, does call for some
consideration of how the mind of the ordinary prudent individual would have
reacted to a similar situation. If there were nothing in the circumstances that
ought to have drawn the attention of an ordinary prudent individual to the
possibility of that kind of harmful consequence, the Accused would not be
described as 'reckless' in the natural meaning of that word for failing to address
his mind to the possibility; nor, if the risk of the harmful consequences was so
slight that the ordinary prudent individual on due consideration of the risk would
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not he deterred from treating it as negligible, could the Accused be described as
reckless in its ordinary sense, if, having considered the risk, he decided to ignore
it. (In this connection the gravity of the possible harmful consequences would be
an important factor. To endanger life must be one of the most grave). So, to this
extent, even if one ascribes to 'reckless' only the restricted meaning adopted by
the Court of Appeal in Stephenson and riggs, of foreseeing that a particular kind
of harm might happen and yet going on to take the risk of it, it involves a test
that would be described in part as 'objective' in current legal jargon. Questions
of criminal liability are seldom solved by simply asking whether the test is
subjective or objective....".
34.Adverting to the facts of the case, the deposition of PW1 would show that PW1
had seen the offending vehicle coming at a high speed from the Badarpur side
and thereafter hitting against the motorcycle of the victim from the back side.
Further, PW1 had also deposed that the driver of the offending vehicle did not
blow any horn when he was overtaking his own motorcycle and was driving at
a high speed. The deposition would further show that the truck driver had only
applied the brakes to the offending vehicle after its collision with the victim's
motorcycle and after the motorcycle had fallen on the road with the victim; and
thereafter he fled away after leaving the offending vehicle on the spot.
35.The fact of driving the offending vehicle in an improper manner (high speed/zig
zag motion) has also been supported by the deposition of PW8 who had himself
seen the offending vehicle being driven at a high speed and thereafter hitting the
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victim's motorcycle. PW8 has also stated that the offending vehicle was being
driven very rashly.
36.Further, perusal of the site plan reflects that the alleged incident had taken place
between two metro pillars. In other words, it can be said that the spot of the
incident is a place where there is a metro line going over and above which means
that the road upon which the alleged incident had taken place would not be very
a broad road as compared to any other highway where driving the vehicle at a
high speed would have been justified. Further, in the case in hand, the time of
the alleged incident has been stated to be at 7.15 am in the morning which is the
time when people are out for their morning walk or the children are going to
their respective schools or people for their respective office. In other words, there
is an irresponsible conduct on the part of the Accused while driving the offending
vehicle which is fully loaded with the material, in a negligent manner at such a
crucial time which adds on the rash conduct on the part of the Accused. It is true
that speed is not the only criteria for determining as to whether the Accused was
rash or negligent and the mere fact that the Accused was driving the offending
vehicle at a high speed is not sufficient to bring home the charge of rash and
negligent driving. However, it is equally true that speed may be an important
criterion for determining the degree of rashness and negligence in a given set of
facts and circumstances. Driving a vehicle at a very high speed on the highway
may not amount to rashness or culpable negligence. But if a person drives the
same vehicle in a crowded market place at a very high speed the answer might
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be the opposite.
37.At any rate, there is no calibrated instrument of definite precision, which could
give clear an arithmetical result so as to establish rashness or negligence. Every
prudent driver understands that in case the vehicle is not slowed down while
overtaking and the same is done at a high speed/ or done in a zig zag manner the
act is fraught with predictable dangers and the consequences may be disastrous.
It is incumbent upon a professional driver of a heavy vehicle to adopt extra care
and caution so that the safety of other persons on the road is not jeopardized.
Further, the Accused did not apply the brakes in time. There was no mechanical
failure in the brakes, as per the mechanical inspection report, Ex. A3 and Ex.
A4. The Accused did not bother to slow down the speed and failed to apply the
brakes in time resulting in the collision and thereafter, running over the victim.
This act of the Accused was manifestly and indubitably fraught with rashness
and negligence. Apart from the mishap which took place, the Accused was
clearly driving the truck on a public way in a manner so rash and negligent so as
to endanger human life and personal safety of others. PW 1 has categorically
deposed that the Accused had taken first overtaken his motorcycle without
blowing horn in a high speed and then had hit the victim's motorcycle from the
back. Hence, it appears that the Accused was continuing to drive the offending
vehicle, which is huge truck, carrying household items, at a high speed and in a
zig zag manner, despite traffic on the said road and was even overtaking two-
wheeler vehicles without blowing the horn. Moreover, the facts of the case reveal
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that the impact of the collision was so immense that PW-9 woke up due to a loud
noise; and was of such magnitude that it caused the victim, i.e., the driver of the
victim motorcycle to come under the front tyre of the truck, his helmet broke
and he attained a skull fracture and had tyre marks on his anterior wall of his
abdomen. Secondly, it was not a case of a head on collision of two vehicles
coming from opposite directions on an undivided road. Rashness and negligence
is writ large and can unmistakably be inferred from the very fact that the Accused
rammed the offending vehicle into a much smaller vehicle, i.e., a motorcycle and
also applied brakes only after the collision. His loss of control over the vehicle
is evident which is clearly attributable to his rash and negligent driving.
38.Accordingly, I am of the view that the Accused was driving the offending vehicle
in a rash and negligent manner at the time of the alleged incident.
39.In the view of the above discussion, court is of the opinion that the prosecution
has clearly established beyond reasonable doubt that the Accused was driving
the offending truck, in a rash and negligent manner on public way so as to
endanger human life and personal safety of others and consequently he is liable
for the offence U/s 279 IPC. The prosecution has further proved beyond
reasonable doubt that the accident took place and deceased Sunil expired on
account of the rash and negligent act/driving of the Accused Jaipal and
consequently he is liable for an offence U/s 304A IPC.
40.In these facts and circumstances, the prosecution has been able to prove its case
beyond reasonable doubt. I therefore hold the Accused Jaipal S/o Sh. Mohar
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Singh guilty of offences punishable under section 279/304A IPC and he is
accordingly convicted for the same.
ORDER:CONVICTION Announced in open court on 19.05.2023 in the presence of the Accused.
The judgment contains 28 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South-East District, Saket Courts, New Delhi Page 28 of 28