Delhi District Court
State vs . Jitender Kumar on 30 January, 2015
IN THE COURT OF SH. DEVENDER NAIN
METROPOLITAN MAGISTRATE: WEST05, DELHI
FIR No. 229/2009
Case ID: R0457462010
State Vs. Jitender Kumar
PS Vikas Puri
U/s 279/304A IPC
Date of Institution of case : 04.08.2010
Date of Judgment : 30.01.2015
JUDGMENT:
a) Date of offence : 11.08.2009 b) Offence complained of : U/s 279/304A IPC c) Name of Accused, his : Jitender Kumar, parentage & residence S/o Harpal Singh, R/o Baproda, Post Bahadurgarh Sadar, FIR No. 229/09 1 of 20 PS Vikas Puri Distt. Jhajjar, Haryana. d) Plea of Accused : Plead not guilty e) Final order : Acquitted BRIEF FACTS AND REASONS FOR DECISION:
Case of the prosecution in brief is as follows:
1. That on 11.08.2009 at around 6.50 am at H3 Block, NPL Apartment, Vikas Puri within the jurisdiction of PS Vikas Puri accused was found driving one Metro RTV bearing registration No. DL1VA6620 in high speed and in rash or negligent manner and thereby committed an offence punishable u/s 279 IPC.
Secondly, on the aforesaid date, time and place accused while driving the aforesaid vehicle in aforesaid manner from the front side hit against one bicycle being driven by one Aasif and due to the injuries sustained by said Aasif, he died on 11.08.2009, which act was rash or negligent act not amounting to culpable homicide and thereby committed an offence punishable u/s 304A IPC.
FIR No. 229/09 2 of 20 PS Vikas Puri
2. Court took cognizance of the abovesaid offences and the Notice against accused was framed on 22.11.2010 and a prima facie case was made out against the accused person and Notice was accordingly framed against the accused person for offence punishable u/s 279/304A IPC to which accused pleaded not guilty and claimed trial.
3. To prove its case, prosecution has examined 09 witnesses.
4. PW1 is Nand Kishore who deposed that on 11.08.2009 he was posted at Rohini East as ATI and his duty was to handle the court and accident cases and on that day he received one phone call regarding the accident of one vehicle bearing registration No. DLBA6620 and he reached at the place of accident where he met with police officials and at the spot crowd were present there. PW1 further deposed that police had taken the vehicle to the PS and he also came with the police officials at PS and police seized the vehicle and other documents and he handed over the duty slip and copy of duty register of the driver Jitender and copy of lease agreement. He further deposed that the duty slip was FIR No. 229/09 3 of 20 PS Vikas Puri prepared by him and accused Jitender produced himself before the police officials and PW1 recognized him stating that he was driving the offending vehicle at the time of accident. PW1 further deposed that he got released the said vehicle on 11.09.2009 as he was authorized by DMRC on superdari.
At the time of cross examination, PW1 deposed that after receiving a call he went to police station at about 2.00 pm and he had not seen the accused in the police station at that time. He further deposed that he know this fact that accused was employee of RBTC because he was maintaining a register of all the RTV Feeder bus drivers and conductors alongwith the particulars of their Driving Licenses. He further deposed that he do not know where that register had gone missing and he is unable to produce the same and he had not shown that register or any other documents to the police.
5. PW2 is Madan Juneja who deposed that on 11.08.2009 he reached at DDU Hospital and the time might be about 8/8.30 am and one boy Ashif was working with him as Delivery Boy in his newspaper FIR No. 229/09 4 of 20 PS Vikas Puri agency and on the receipt of the information of his accident, he reached at DDU Hospital. He further deposed that when the driver came before the IO and him, he looked like the one of the fellows who escape from the hospital but PW2 was not sure if he was the same guy as PW2 saw him from a distance. Witness has correctly identified the accused Jitender present in the court stating that presumably that he might be the same person who was produced by Nand Kishore as driver of the offending bus.
6. PW3 is W/HC Raj Bala who deposed that on 11.08.2009 she was posted at PS Vikas Puri as Duty Officer who received the rukka sent through Const. Rajesh and on the basis of the same registered present FIR.
7. PW4 is Rajender Sondhi who deposed that he do not remember the date and month of the accident but it was in 2009 and on that day he was at home and in the morning he was in balcony of his house when he saw one school bus was standing in front of his house on FIR No. 229/09 5 of 20 PS Vikas Puri the road and the students were boarded the bus. Suddenly, he saw an accident happened near the school bus. The metro RTV hit the one cyclist. The cyclist was fell down on the road and he reached at the spot where he saw the driver with the help of helper of RTV was taking the injured into their RTV and PW4 asked the driver where are you going alongwith the injured and driver told him that he was taking the injured into the hospital. He further deposed that he made a call to the police on 100 number and police reached at the spot and he made a complaint to the police and on the same day he was called by the police to come to the PS Vikas Puri and he reached there, where he found the driver namely Jitender. He further deposed that he cannot identify with certainty the driver if he is present in the court as 02 and a half years have elapsed from the date of accident and he also cannot identify the offending vehicle with certainty as the offending vehicle belongs to DMRC and all the like vehicles look similar. The accused was shown to the witness and asked if the accused was the driver of the offending vehicle at the time of accident to which witness stated that since long time has passed and he cannot say with certainty if the accused was the driver of the FIR No. 229/09 6 of 20 PS Vikas Puri offending vehicle. He further deposed that at the time of accident he was reading newspaper in his balcony and he heard the noise of an accident and saw on the road that an accident has taken place and he cannot say by whose fault the accident had taken place.
8. PW5 is Dr. Kumar Narender Mohan who deposed that on 11.08.2009 at about 8.30 am one patient namely Ashif aged about 18 years S/o Shahnawaz was brought in the casualty with alleged history of RTA and the patient was examined and his MLC was prepared by Dr. Harvinder Singh, the then Sr. Resident, Casualty. He further deposed that the patient was in unconscious state at that time and after examination he was declared 'brought dead'. The dead body was transferred to mortuary, DDU Hospital and he identified the handwriting and signatures of Dr. Harvinder Singh at point A on the MLC Ex.PW5/A and he identified the handwriting and signatures of Dr. Harvinder Singh as he had worked with him during his tenure in the hospital and he had seen him writing and signing during the official course of duties and present whereabouts of Dr. Harvinder Singh are not known as he had left FIR No. 229/09 7 of 20 PS Vikas Puri the services of the hospital.
9. PW6 is Dr. B.N. Mishra who identified the signatures and handwriting of Dr. Archana Jain, JR who had conducted the postmortem on the dead body of deceased namely Ashif.
10. PW7 is Shahnawaz Khan who deposed that he is the father of deceased Asif who had died in an accident on 11.08.2009 and he had identified the dead body of his son Asif at mortuary, DDU Hospital on the same day.
11. PW8 is Const. Suresh Kumar who deposed that on 11.08.2009 he was posted as Const. at PS Vikas Puri and on that day at about 9.00 am Duty Officer W/HC Raj Bala handed over to him copy of DD No. 14A to hand over the same to ASI Rajbir and thereafter he went to H3 Block, Vikas Puri near NPL Apartments and handed over same to ASI Rajbir and ASI Rajbir left him at the spot and he alongwith Const. Rajesh went to DDU Hospital and after one hour and 15 minutes he FIR No. 229/09 8 of 20 PS Vikas Puri came back at the spot and recorded his statement and thereafter PW8 left the spot.
At the time of cross examination, PW8 deposed that as far as he remember one bicycle was lying at the spot in accidental condition and he do not remember whether any other vehicle in accidental condition was present there at the spot or not.
12. PW9 is SI Rajbir Singh who deposed that on 11.08.2009 he received a call regarding accident and he went to the spot where he found one bicycle in accidental condition, one cap, sleepers and blood stain at the spot and public persons told him that RTV bus of Metro had taken the injured to the hospital.
At the time of cross examination, PW9 deposed that he did not obtain signatures of complainant on arrest memo and personal search memo of accused. He further deposed that he did not obtain signatures of eye witness or any other public witness on seizure memo of bicycle.
13. On 30.01.2015, statement of accused was recorded and all FIR No. 229/09 9 of 20 PS Vikas Puri the incriminating evidence was put to the accused person u/s 281 CrPC in which he denied all the allegations made against him to which accused person choose not to lead defence evidence.
14. At the time of final arguments, it is submitted by Ld. APP for the State that his case is proved beyond reasonable doubts and all the contents of the section are completed and proved beyond reasonable doubt under which the present charge is framed. In reply to this it is argued on behalf of accused that rash and negligent driving not proved on the part of the accused person and prosecution miserably fails to prove its case.
15. I have given thoughtful consideration to the rival contentions made on behalf of both the sides and perused the judicial file very carefully. PW1 is Sh. Nand Kishore who reached at the place of incident after the incident had occurred where he met with police officials. He further deposed that at the spot crowd were present. At the time of cross examination he deposed that he had not seen the accused in FIR No. 229/09 10 of 20 PS Vikas Puri the police station. It is also deposed by PW1 at the time of cross examination that relevant register had gone missing and he is unable to produce the same. PW2 is Sh. Madan Juneja who was the employer of the deceased person and who reached at DDU Hospital after he had received information about the accident. PW2 failed to identify the accused Jitender in clear terms. PW4 is Sh. Rajender Sondhi who deposed that he had seen the accident but he also failed to identify the accused as well as the offending vehicle in clear terms. At the time of cross examination PW4 deposed that he could not say by whose fault the accident had taken place. PW5 is Dr. Kumar Narender Mohan who had examined the deceased and declared him "brought dead". PW8 is Const. Suresh Kumar who deposed at the time of cross examination that one bicycle was lying at the spot in accidental condition but he did not remember whether he had seen any other vehicle in accidental condition at the spot or not. PW9 is SI Rajbir Singh who deposed that he had found one bicycle in accidental condition at the spot but RTV was not present there and public persons told him that RTV bus of Metro had taken the injured to the hospital. But at the time of cross examination he FIR No. 229/09 11 of 20 PS Vikas Puri deposed that he had not obtained signatures of eye witness or any other public witness on the seizure memo of bicycle. After perusal of judicial file as well as considering the evidence lead on behalf of prosecution it is very clear that no public witness supported the case of the prosecution in clear terms and even some of them failed to identify the accused person as well as the photographs of the alleged RTV. One witness even deposed that he is not clear regarding the fact that as by whose fault the accident had taken place. Rash and negligent driving is not proved at all on the part of the accused Jitender. I am of the considered opinion that prosecution fails to prove its case beyond reasonable doubt.
10. I now take up examination of the question of convicting a person merely on the allegation that he was driving a vehicle at a high speed. In State of Karnataka Vs. Satish : 1998 SCC (CRI) 1508, the Supreme Court was faced with a similar situation. The Court observed as under: "3. Both the trial court and the appellate court held the respondent guilty for offence under section 337, 338 and 304A IPC after FIR No. 229/09 12 of 20 PS Vikas Puri recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitor to hold the respondent guilty.
4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the prosecution to bring on record FIR No. 229/09 13 of 20 PS Vikas Puri material to establish as to what is meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary 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 absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was FIR No. 229/09 14 of 20 PS Vikas Puri because of the uneven road or mechanical failure. The motor vehicle inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal.
FIR No. 229/09 15 of 20
PS Vikas Puri
The appeal fails and is dismissed. The
respondent is on bail. His bail bonds shall stand discharged."
The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event there is no description or approximation of what was the speed at which the truck was being driven.
The expression "high speed" could range from 30 km per hour to over 100 km per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner FIR No. 229/09 16 of 20 PS Vikas Puri was exceeding that speed limit. Therefore, in the absence of material facts it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high speed, that the petitioner is guilty of a rash or negligent act. Clearly the petitioner cannot be convicted on the sole testimony of PW3 which itself suffers from various ambiguities.
11. As observed in Badri Prasad (supra) the essential ingredients of section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under section 279 or section 304A, the commission of a rash and FIR No. 229/09 17 of 20 PS Vikas Puri negligent act has to be proved. The only distinction being that in section 279, rash and negligent act relates to the manner of driving or riding on a public way while the offence under section 304A extends to any rash and negligent act falling short of culpable homicide. As correctly observed by the learned judge, the rashness or negligence which needs to be established is something more than a mere error of judgment. There is also a distinction between rashness and negligence in that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care. The case in Badri Prasad (supra) was one, where, akin to the facts of the present case, apart from a bare statement made by a witness that the vehicle was being driven at a high speed, there was no attempt made to establish that there was any rash and / or negligent act on the part of the driver of the vehicle. In these circumstances the court observed: "6. In the case at hand, I find that except a bare statement made by PW2 that the vehicle was being driven in a high speed, no attempt has been made to establish that there was any FIR No. 229/09 18 of 20 PS Vikas Puri rash and / or negligent act on the part of the driver - accused. Therefore in my considered opinion prosecution has failed to establish that death was occasioned by either rash and / or negligent driving of the vehicle or any negligent act of accused so as to attract the provisions of section 279 and / or 304A IPC.
Accordingly, conviction and consequential sentences are set aside and the accused is acquitted of the charges. Bail bonds be discharged. The criminal revision is allowed."
12. The present case is on a similar footing. Apart from the allegation of having driven the truck at a high speed, which itself is an unclear expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and / or negligently or did any act which would amount to a rash and / or negligent act. Clearly, therefore, the petitioner is not liable to be convicted under the provisions of section 279 and 304A IPC. The courts below have committed a grave error in FIR No. 229/09 19 of 20 PS Vikas Puri convicting the petitioner and this error needs to be corrected in revision. The impugned order is, therefore, liable to be set aside and the petitioner is entitled to an order of acquittal.
16. In view of the aforesaid discussion, there is the absence of rash and negligent act of the accused as well as reasonable doubt regarding the identity of the accused person. As there being no evidence on the record to establish "negligence" or "rashness" in driving the offending vehicle on the part of the accused, I am of the considered opinion that prosecution fails to prove its case beyond reasonable doubt. Accordingly, accused person is hereby acquitted for offence punishable u/s 279/304A IPC. At request of accused, earlier Bail Bond is extended for six months in terms of Section 437A CrPC.
File be consigned to the Record Room after due compliance.
Announced in the Open Court (DEVENDER NAIN) on 30th day of January, 2015 MM(WEST05):DELHI FIR No. 229/09 20 of 20 PS Vikas Puri