Delhi District Court
State vs Bharat Bhushan on 28 February, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE04, PATIALA
HOUSE COURTS, NEW DELHI
Presided by: Ms. Vijeta Singh
State Vs Bharat Bhushan
FIR No. 223/09
U/S 279/337/338/304A IPC
JUDGMENT
1. Case ID No. of the case. :024003R0004631999
2. The date of commission :09.05.1999 of the offence.
3. Name of the complainant : Smt. Mithlesh W/o Late Sh. A and address Amrit Lal R/o Village Sabha Pur, PS Khajuri Khas, Delhi.
4. Name, parentage & address : Bharat Bhusan S/o Bhim of accused Singh, R/o H. No. 61Badli Village, Delhi.
5. Offence complained :U/s 279/337/338/304A IPC
6. The plea of the accused and : Not guilty.
his examination.
7. The final order. :Acquitted
8. The date of such order. :28.02.2013
9. Date of institution. :30.09.1999
10. Date on which the judgment :16.02.2013 has been reserved.
State Vs. Bharat Bhushan Page 1/12 FIR No. 223/09 BRIEF FACTS/ STATEMENTS OF THE REASONS FOR THE DECISION.
1. It is the case of the prosecution that on 09.05.1999 at about 04:45 AM at round about, Shankar Road, Ridge Road falling within the jurisdiction of PS Mandir Marg, the accused was driving vehicle (TATA 407) bearing No. DL 1LB 7473 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving caused hurt to Jai Bhagwan, Gajraj, Sant Ram, Parmeshwar, Chanderwati, Savitri, Jaibir, Suman, Sanjo Devi, Ram Kumar, Kiran, Bhagwan, Kailashi, grievous injuries to Maya and Shanti Devi and death of Amrit Lal (not amounting to culpable homicide). Thus, the accused was alleged to have committed offences punishable u/s 279, 337, 338 and Section 304(A) Indian Penal Code, 1860 (hereinafter, referred to as "the Code").
2. On completion of investigation, charge sheet was filed on 30.09.1999 against the accused for offences punishable u/s 279/337/338/304A of the Code. Documents in compliance of Section 207 Cr.P.C were furnished on 09.03.2000 to the accused.
3. Since Ld. Predecessor of this Court was of the prima facie opinion that offences punishable u/s 279/337/338/304A of the Code were made out, notice u/s 250 Cr.P.C was framed under the aforesaid sections on 01.05.2000. The notice was read over and explained to State Vs. Bharat Bhushan Page 2/12 FIR No. 223/09 the accused. The accused did not plead guilty to the notice framed and claimed trial.
4. Thereafter, prosecution examined 14 witnesses in support of its case. Out of the aforesaid 14 witnesses, PW2 (Smt. Sarju Devi), PW3 (Smt. Chanderwati), PW4/Complainant (Smt. Mithilesh), PW5 (Smt. Shanti), PW6 (Sh. Gajraj), PW7 (Sh. Bhagwan Dass), PW8 (Smt. Parmeshwari), PW10 (Smt. Santra Devi) and PW11 (Sh. Ram Kumar) turned hostile and did not support the case of prosecution by either denying about the manner in which accident occurred attributable to rashness and negligence on the part of accused or refused to identify the accused before the court. However, the following witnesses supported the case of prosecution. I. PW1 Smt. Kiran who inter alia deposed that on 04.05.1999, she along with her husband was going to Baba Kali Khori Dham, Rajasthan via Karawal Nagar in Temp No. DL 1LB 7473; that on 09.05.1999 when they were returning and had reached near Shanker Road at about 05:35 PM, the Tempo turned turtle due to fast, rash and negligent driving of the driver as a result of which passengers sustained injuries; that PCR came to the spot and injured were shifted to Dr. RML Hospital; that she learnt that the name of the driver was Bharat Bhushan and she correctly identified the accused. She was duly crossexamined and discharged. State Vs. Bharat Bhushan Page 3/12 FIR No. 223/09 II. PW9 SI (Retired) Kedar Nath / Mechanical Inspector who proved his report Ex. PW9/A vide which he had examined the alleged offending Tempo bearing No. DL 1LB 7473. He was not crossexamined despite opportunity.
III. PW12 Ct. Sudhakaran who inter alia deposed that on 09.05.1999 he was posted in PCR and was on duty in PCR Van Oscar 30 along with ASI Lakhi Ram and HC Sultan Singh in Mandir Marg; that at about 06:30 AM, pursuant to information of an accident, they went to Shankar Road where Tempo No. DL 1LB 7475 was found overturned; that injured were taken to Dr. RML Hospital and he proceeded for his duty. Despite opportunity, he was not cross examined.
IV. PW13 ASI Lakhi Ram whose deposition was identical to that of PW12.
V. PW14 Dr. Shrawan Kumar Naik who proved the postmortem report of deceased Amrit Lal and tendered his report Ex. PW14/A in evidence. He also deposed that cause of death was comma as a result of Cranio Cerebral injuries due to blunt force impact on the head, that all the injuries were ante mortem in nature and could have been caused due to road traffic accident.
5. Prosecution evidence was closed vide order of the Ld. Predecessor of this Court on 03.06.2008. Thereafter, an application u/s 311 CrPC was moved by the accused to crossexamine PW1which was State Vs. Bharat Bhushan Page 4/12 FIR No. 223/09 dismissed vide order dated 20.09.2011 of the Ld. Predecessor. The matter was received by way of transfer by this Court on 28.03.2012 pursuant to order no. 06/DHC/Gaz/G3/Vi.E2(a)/2012 dated 21.02.2012).
6. Statement of accused u/s 313 Cr.P.C was recorded by this Court on 28.04.2012 wherein accused denied incriminating evidence appearing against him.
7. Accused led defence evidence and examined the following witnesses:
1. DW1 Sh. Dungar Singh/Patwari who inter alia deposed that on 09.05.1999 while returning from a temple in Rajasthan, when the reached Shankar Road, a Neel Gaye came infront of the vehicle and in order to save the Neel Gaye Tata 407 toppled over; that he took 03 injured to the hospital; that PCR came thereafter, and at the time of accident, the vehicle also collided with the divider. He was duly cross examined by the Ld. APP for the State during which he admitted that visibility was clear; that Neel Gaye appeared from the left hand side of the offending vehicle from the bushes which were wired and the wires were intact; that the wires were about 03.5 feet high and could be scaled by the Neel Gaye which could jump upto 0506 feet. He denied the suggestion that passengers were not seated in Tata 407 because it is not provide for those many seats. State Vs. Bharat Bhushan Page 5/12 FIR No. 223/09
He admitted to the sitting in the front next to the driver. According to him, head light was not on as it was already sunlite. II. DW2 Sh. Ram Kumar who could not recall the date, month and year of accident; but inter alia deposed that they were returning from a Mela of Baba Mohan Ram from Milakhpur Khori when the accident occurred. He could not recall the exact place and submitted it was dark but he also stated that it was a turn while coming from the side of Dhaula Kuan. According to him a Neel Gaye came infront of the vehicle, the driver pressed the brake and the vehicle toppled over. He also stated that the family members of accused were also travelling in the vehicle. He admitted that he was sitting in the front and did not see the Speedometer. He volunteered that the speed would be around 30/35 Km/h. During cross examination by the Ld. APP for the State, he stated that he was sitting alongwith Dungar Singh and that he was sitting on the side of Conductor's seat; that Dungar Singh was on his right side; that Neel Gaye appeared from the wrong side; that Neel Gaye appeared from a jungle nearby which was having barbed fencing; that things were visible as there was enough sunlite; that headlight was on; that offending vehicle hit the divider and that he was awake at the time the accident occurred.
8. Thereafter, defence Evidence was closed on 15.01.2013 at request of accused.
State Vs. Bharat Bhushan Page 6/12 FIR No. 223/09
9. Final arguments concluded on 16.02.2013.
10. Ld. APP for the State, Sh. Neeraj Madhup argued that prosecution proved its case beyond reasonable doubts as the factum of accident having occurred was not disputed; that accused was duly identified by the witnesses; that testimony of PW1 showed that accused was rash and negligent and it was corroborated by testimony of DW2 who deposed that accident occurred at a turn and that speed would have been between 3035 km/h which on a turn is a suggestion of rash driving. Attention of the Court was drawn to the photographs to show that accident occurred at a turn. Attention of the Court was also drawn to testimony of PW14 who duly proved Postmortem Report Ex PW14/A of deceased Amrit Lal. Contradiction in the testimony of PW5, PW6, PW8, answer of accused u/s 313 Cr.P.C and testimonies of DW1 and DW2 was highlighted to show falsity in the claims of defence that accident occurred to save Neel Gaye because PW5, PW6 and PW8referred to a car, accused referred to "herd of Neel Gaye" and DW1 and DW2 stated that only one Neel Gaye had appeared. Contradictions in the statements of DW1 and DW2 regarding headlight being on or off was also shown.
11. Per contra, Ld. Counsel for accused Sh. O. P. Sekhawat argued that accused should be acquitted of offences charged with as State Vs. Bharat Bhushan Page 7/12 FIR No. 223/09 prosecution has not been able to establish guilt of accused beyond reasonable doubt for following reasons:
a. That Shankar Road is a wide road where a vehicle even if driven at 40 km/h would not topple over as alleged; that if the vehicle was being driven at fast speed, no proof of the same even by way of any skid marks has been adduced.
b. That PW1 does not state that she was not sitting in the front of the bus and hence, it was argued that the witness may have been sitting in the carrier of the tempo and therefore, not able to witness the accident and was therefore, not reliable. c. That PW4 was the material witness on whose complaint the present FIR was registered and whose husband had expired in the accident but she did not support the case of the prosecution. d. That seizure memo of the offending vehicle has not been proved and PW9 has not explained the damages to the offending vehicle sufficiently.
e. That site plan has not been proved as PW4 has not supported the case of the prosecution and IO was not examined. f. That as per Ex. PW14/A, the time at which injured was brought to the hospital is 05.50 am and reported to have expired at 06.45 pm during course of treatment. Hence, it was urged that doubts were raised whether the accident was the proximate cause of death.
g. That credibility of PW12 and PW13 was also questionable as State Vs. Bharat Bhushan Page 8/12 FIR No. 223/09 they reached the spot at 06.30 am whereas MLCs of the injured show that injured were brought to the hospital much before. h. That the accident may have occurred as injured were sitting in the carrier of the tempo and at their own risk. It was also argued that DW2 has stated that family members of accused were also travelling in the vehicle, hence, the accused could not be rash and negligent. Further, that none of the PWs have stated that they issued any warning to the accused for not driving rashly and negligently at any point of time despite, distance from Milakhpur Khori till Shankar Road (Delhi) having been covered.
Reliance was also placed upon State of Karnataka Vs. Satish (1998) SCC 493, Niranjan Singh Vs. State (Delhi Administration) Crl, Rev. No. 99/1993 decided on 04.09.1996 and Jitender Singh Vs. State Crl. Rev. P.No.418/2011 and Crl. M.B.1637/2011 decided on 29.11.2011 by Delhi High Court.
12. This Court has considered the submissions and material on record.
13. To prove the offence u/s 279 of the Court, the essential ingredients are as under:
a. Driving of vehicle on a public way.
b. Such driving must be so rash or negligent so as to endanger
human life or to be likely to cause hurt or injury to any other person. Similarly, to establish offence u/s 304A what is required to be State Vs. Bharat Bhushan Page 9/12 FIR No. 223/09 proved are as under.
a. That the accident was caused with the particular vehicle. b. That the accused was driving that vehicle which caused the accident.
c. That the accident took place due to rash and negligent driving of the accused.
d. Injury suffered by an injured or death of the deceased was the direct result and consequent to the accident.
14. Further, to secure conviction u/s 304A of the Code, the prosecution is also required to prove that death of victim was the direct result of rash and negligent act of accused without intervention another's negligence. It has to be shown that the accident which resulted due to rash and negligent of the accused was causa causans and not sine qua non for the death of the victim. Reliance is placed upon Kurban Hussein Mohamedalli Bangawalla Vs. State of Maharashtra AIR 1965 SC 1616. It has also to be borne in mind that since the present trial is for the criminal offence, the prosecution must prove its case beyond the reasonable doubt.
15. In State of Karnataka Vs. Satish (Supra), The Apex Court has held as under:
"...In a criminal trial, the burden of proving State Vs. Bharat Bhushan Page 10/12 FIR No. 223/09 everything essential to the establishment of the charge against an accused always rests on the prosecution and there is presumption of innocence in favour of the accused until the contray is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the presumption of 'rashness' or 'negligence' could be drawn by invoking the maxim'res ipsa loquitor..."
16. In the present case, which has been on trial since about 13 years, the prosecution was only able to examine 14 out of the 29 witnesses enlisted. Out of them, except PW1, PW12 to PW14, rest all absolved the accused either on the ground that he was driving properly or that he was not the driver of the offending vehicle. PW4 who is the first informant as FIR was registered on her complaint, turned hostile and with stood the cross examination of Ld. APP for the State. PW12 to PW14 are only formal witnesses. Therefore, PW1 is the only witness whose testimony could incriminate the accused in the present case. She has stated that "...tempo was turtled due to fast, rash and negligent driving of the driver...". No elucidations were extracted from her as to why the driving was rash and negligent except that it was fast. It has been held by superior Courts that high speed is not by itself sufficient to prove rashness and negligence and is a relative term. Ld. APP for the State, sought to explain rashness and negligence due to a certain speed at which State Vs. Bharat Bhushan Page 11/12 FIR No. 223/09 vehicle was being driven on a turn. However, as stated above in State of Karnataka Vs. Satish (Supra), it was for the prosecution to prove everything essential to explain how the high speed tantamounted to rash and negligent act in the present case. However, neither the site plan was proved nor the photographs. As rightly pointed out by Ld. Counsel for defence, there is no evidence adduced of even high speed by way of skid marks, if any. Prosecution sought to rely upon testimony of defence witnesses which in criminal jurisprudence would not be of any help to the prosecution as it has to stand on its own feet. The prosecution also cannot seek to rely upon lacunae in the defence to prove its own case. Hence, even the contradiction pointed out regarding defence of accident occurring due to Neel Gaye would be of no worth for the prosecution. Also, the doctrine of res ipsa loquitor would not apply herein. Thus, in view of the above discussion, since the prosecution has not been able to prove guilt of the accused beyond reasonable doubt, accused is granted benefit of doubt. He is acquitted of offence punishable u/s 279/304A IPC.
17. File be consigned to records after compliance with Section 437A Cr.P.C.
Announced in the open Court (Ms. VIJETA SINGH) on 28.02.2013. MM04/Patiala House Courts New Delhi.
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