Delhi District Court
State vs . Radhey Shyam on 7 February, 2014
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Radhey Shyam
FIR NO: 577/03
P. S. Sangam Vihar
U/s 279/304 A IPC
Unique ID no. 02403R0311762004
JUDGMENT
Sl. No. of the case : 1435/2 (7.1.2011) Date of its institution : 12.1.2004 Name of the complainant : Smt. Kripa Devi Date of Commission of offence : 16.10.2003 Name of the accused : Radhey Shyam Tiwari Offence complained of : Section 279/304 A IPC Plea of accused : Not guilty Case reserved for orders : 29.1.2014 Date of judgment : 7.2.2014 Final Order : ACQUITTED BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused Radhey Shyam Tiwari upon the police report filed by P.S. Sangam Vihar u/s 279/304 A of Indian Penal Code, 1860 (for short 'IPC') subsequent to the investigation carried out by them in FIR no. 577/03.
2. To trace the brief facts, on 16.10.2003 Smt. Kripa Devi, W/o Hari Shankar Verma came to the police station Pul Prahlad Pur with the dead body of her husband and gave her State Vs. Radhey Shyam 1/13 FIR no. 577/03 complaint that she was resident of village Aidmalpur, Distt Agra, Aligarh, U.P and at time she was residing at H.no. 321, Ward no. 4 near Water ank, Jatwara, Mehrauli with her parents. Her husband used to run a tea shop at MB road near tank of Delhi Jal Board and she was also sitting at his shop. On 16.10.2003 at around 11.45 am when her husband was filling water from the tap outside Delhi Jal Board office, one tanker belonging to Delhi Jal Board bearing no. DL 1GB 4157 was standing ahead of him. The driver of the said tanker namely Tiwari whom she recognized by his face reversed the said tanker in high speed and in rash and negligent manner due to which her husband got hit, fell down and became unconscious following which neighbourers and the said driver Tiwari accompanied her to the Reshma nursing home for the treatment of her husband where after four hours the concerned doctor advised the complainant to take her husband to Safdarjung Hospital. In the meantime, complainant called her family and relatives whereupon her son Rajender Verma, her son in law Vijay Verma came from NIT, Faridabad, Haryana alongwith her brother Virender Kumar, all of whom then took her husband to Safdarjung Hospital where doctor after examining him declared him dead. She brought the dead body of her husband to the police station wherein the case FIR no. 577/03 was registered at about 11.45 pm vide DD entry no.
24.
3. It was based on the above investigation, the prosecution proceeded against the accused. Accused was formally charged under section 279/304 A IPC to which he pleaded not guilty and claimed to be tried.
4. To substantiate the charges, the prosecution examined as many as eight witnesses. The prosecution exhibited number of documents which included, site plan Ex.PW8/B, mechanical inspection report Ex.PW5/A, notice u/s 133 M.V Act as Ex.PW8/C, seizure memo of tanker as Ex.PW8/E etc.
5. PW 1 Smt. Kripa Devi Verma/complainant deposed that on 16.10.2003, she was State Vs. Radhey Shyam 2/13 FIR no. 577/03 running tea stall at/near Jal Board Office, MB Road, Pul Prahlad Pur. At about 11.45 am, her husband was fetching water from the water tap. The accused namely Tiwari drove his vehicle very fastly while taking reverse her husband sustained injury due to reversing of the vehicle by the accused. He alongwith accused took her husband to Reshma Nursing home for treatment. He was admitted there for about 2/3 hours. Thereafter her husband was referred to Safdarjung hospital. The doctor on duty at Safdarjung hospital after examining her husband declared him brought dead. He was not given any treatment there. Thereafter, they took the dead body of her husband to the police chowki. Her statement was recorded as Ex.PW1/A. The accused was taking reverse as there was Jal Board Office at the spot. The accused did not accompany anybody else nor anyone was assisting him while taking reverse. He was cross examined by Ld. Counsel for the accused.
6. PW 2 Sh. Rajender Verma deposed that on 16.10.2003 after getting information about accident of his father, he reached Reshma Nurshing Home, there found his father admitted in unconscious condition. There doctor referred his father to Safdarjung hospital, they took him there. Doctor after examining his father at Safdarjung declared him dead. From there they returned to Pul Prahlad Pur, he had identified the corpse of his father vide memo Ex.PW2/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
7. PW 3 Sh. Birender Verma deposed that on 16.10.2003 after getting information about accident of his father, he reached Reshma Nurshing Home, there found his father in law admitted in unconscious condition. There doctor referred his father in law to Safdarjung hospital, they took him there. Doctor after examining his father in law at Safdarjung declared him dead. From there they returned to Pul Prahlad Pur, he had identified the corpse of his father vide memo Ex.PW2/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
State Vs. Radhey Shyam 3/13 FIR no. 577/03
8. PW 4 Sh. Vijay Verma deposed that on 16.10.2003 after getting information about accident of his father, he reached Reshma Nurshing Home, there found his father in law admitted in unconscious condition. There doctor referred his father in law to Safdarjung hospital, they took him there. Doctor after examining his father in law at Safdarjung declared him dead. From there they returned to Pul Prahlad Pur, he had identified the corpse of his father vide memo Ex.PW2/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
9. PW 5 Sh. Shadi Lal proved the mechanical inspection of vehicle bearing no. DL 1GB 4157 Tata Water tanker as Ex.PW5/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
10. PW 6 ASI Ram Avatar deposed that on 17.10.2003, he was posted at PP Pul Prahlad Pur, PS Sangam Vihar. On that day, he was deputed by ASI Satish Chand for conducting the postmortem. He went to AIIMS and postmortem of deceased Hari Shankar was got conducted. After postmortem dead body was handed over to the son and brother in law of the deceased. He was cross examined by Ld. Counsel for the accused.
11. PW 7 Ct. Vinod deposed that on 16.10.2003 he was posted as constable at PP Pul Prahlad Pur. On that day, he took the dead body of Hari Shankar Verma to AIIMS mortuary and got it deposited there. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
12. PW 8 SI Satish Chand deposed that on 16.10.2003, he was posted as ASI at PP Pul Prahlad Pur. On that day he was on night duty from 8 pm to 8 am. At around 9 pm, one Smt. Kusum Devi alongwith some other relatives approached the PP Pul Prahlad Pur carrying the dead body of her husband Hari Shankar Verma and informed that her husband used to run a tea stall near office of Delhi Jal Board, MB Raod where she also used to assist her husband. She narrated the entire incident. He recorded her State Vs. Radhey Shyam 4/13 FIR no. 577/03 statement Ex.PW1/A. He prepared rukka Ex.PW8/A and got the FIR registered. The dead body was sent to AIIMS mortuary through Ct. Vinod. On the same day, eh went to the spot alongwith complainant and prepared site plan Ex.PW8/B and recorded statement of witnesses. On 17.10.2003, he got conducted the postmortem after its identification by the relatives. And thereafter dead body was handed over to relatives of deceased. On 18.10.2003, he served notice u/s 133 M.V Act Ex.PW8/C to the DJB upon which they produced the accused alongwith the tanker and furnished their reply Ex.PW8/D. He seized the offending tanker vide memo Ex.PW8/E, arrested the accused and conducted his personal search vide memos Ex.PW8/F and Ex.PW8/G, got conducted the mechanical inspection of the offending tanker. He was cross examined by Ld. Counsel for the accused.
13. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 19.9.2013.
14. The accused was examined under the provision of section 313 Criminal Procedure Code, 1973 (for short 'the Code') and all the incriminating evidence were put to him which he denied and answered that he has been falsely implicated in this case. He further submitted that while reversing the tanker the deceased suddenly came in the backside, however, he took all the precautions before reversing the tanker. The accident took place due to fault of the deceased himself. He also chose to lead defence evidence.
15. DW 1 Sh. Arjun Singh deposed that on 16.10.2003, at about 11.45 am, he was on duty at Pul Prahlad Pur Store, Delhi Jal Board/J.E office, New Delhi. He was standing at gate side. Accused Radhey Shyam Tiwari came at filling point and he stopped his tanker at a distance of about 10 feet and got down from the tanker and checked the back side of the filling point to ascertain whether any person is present there. After that he brought the vehicle at filling point. In the meantime, all of a sudden a man State Vs. Radhey Shyam 5/13 FIR no. 577/03 came there to take the water and he fell down and sustained injuries. He fell down himself. The accused Radhey Shyam Tiwari was driving the vehicle in a very slow speed and this accident had happened due to fault of deceased. He was cross examined by Ld. APP for the State. DE stood closed vide order dated 26.11.2013.
16. I have heard the Ld. APP for State and counsel for accused and perused the records of the case.
17. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
18. It is the vehement submission of Ld. Counsel for the accused that accused has been falsely indicted in the present case as is clear from the testimony of the main witness PW 1 Kripa Devi Verma, who although has been projected as an eye witness but from her cross examination, it is quite clear that she did not witness the incident in question and came to the place of occurrence after her husband was already hit by the offending vehicle. Ld. Counsel has also vehemently stressed upon the defence of the accused that although he was driving the offending vehicle at the given time and place but he was not at all reckless or negligent and before reversing the vehicle made sure that there was no person behind the vehicle but as soon as he started to reverse the vehicle suddenly deceased appeared from nowhere in order to fetch the water and came to be hit by the offending vehicle. On these grounds, accused cannot be said to be rash or negligent and deserves to be extended the benefit of doubt.
19. Now I proceed to consider the rivalised contentions raised at the bar and independently scrutinize the relevant evidence brought on record.
20. In order to bring accused to justice, prosecution has to prove the necessary ingredients of the offence under sections 279/304 A IPC. Firstly, I would embark upon Section 279 of IPC which reads as under :
State Vs. Radhey Shyam 6/13 FIR no. 577/03 "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 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 both".
Section 304 A reads as under :
Causing death by negligence Whoever caused 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.
21. In order to bring home the guilt of the accused, prosecution has to prove three aspects, firstly that the accused Radhey Shyam was driving the offending vehicle at the given time and place, secondly that the accused was driving the offending vehicle in a rash and negligent manner and hit against victim Hari Shankar Verma and thirdly, in the said road accident, victim Hari Shankar Verma succumbed to his injuries and died.
22. It is significant to note that in so far as the third aspect is concerned, there is no challenge or dispute on behalf of the accused. The same stands also proved by the testimony of PW 4 Sh. Vijay Verma who has proved the dead body identification memo as Ex.PW 4/A. Accused also conceded the genuineness of postportem of the deceased as Ex.P2 which indicates the death of deceased Hari Shankar Verma due to shock due to the cumulative effect of haemorrhage and spinal injury, produced by blunt force trauma which is possible in road traffic accident.
23. As regards the first aspect that the accused was driving the offending vehicle at the given time and place, after perusing the entire gamut of evidence as well as the statement of the accused u/s 313 of the code, I do not find any serious challenge to the case of the prosecution that accused was driving the offending vehicle at the given State Vs. Radhey Shyam 7/13 FIR no. 577/03 time and place. Accused during his questioning u/s 313 of the Code has conceded this fact that on 16.10.2003, at about 11.45 am at MB Road near DJB office, Pul Prahlad Pur, New Delhi he was driving the tanker no. DL 1G 4157. He, however, denied that the accident took place due to his fault. Even as per the statement of PW 8 SI Satish Chand on 18.10.2003 he served a notice u/s 133 M.V Act Ex.PW8/C to the Delhi Jal Board whereupon accused was produced alongwith the tanker. It was replied by the concerned JE vide reply Ex.PW8/D that on 16.10.2003 driver Radhey Shyam Tiwari i.e the accused was on duty from 9 am to 5 pm and was driving the offending vehicle. He undertook to produce the said driver of the vehicle on 20.10.2003. Although the said reply has not been properly proved by the prosecution by calling its author but in view of the categorical statement of the accused that he was driving the offending vehicle at the relevant time, it stands established beyond reasonable doubt that prosecution has been able to prove the first aspect that accused was behind the wheels of the offending vehicle at the relevant time. Even in the defence evidence of DW 1 Sh. Arjun Singh there has been an admission of the presence of the accused alongwith tanker at the place of occurrence.
24. Now I set to give my finding on the abovestated second aspect. In order to better appreciate this issue, let us first examine as to what amounts to rashness or negligence. In the case titled Ram Avtar v. State of Rajasthan, 6th December, 2005 it was held in para 6 and 8 ;
"6. Thus the essential ingredient for offence under Section 279, IPC is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence 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, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the State Vs. Radhey Shyam 8/13 FIR no. 577/03 accused person to have adopted (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279, IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279, IPC. For, speed of a vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?
"8. In the case of Badri Prasad Tiwari v. The Stat e I (1994) ACC 476 : 1994 Cri. LJ 389 (Ori.), the Hon'ble Orissa High Court has held that "In order to constitute an offence under Section 279, IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person". The Hon'ble High Court further held, "In the case, I find that except a bare statement made by P.W. 2 that the vehicle was being driven in a high speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver". Therefore, the Hon'ble Orissa High Court was pleased to acquit the accused person. Similarly, in the cae of Bed a Kanta Phukan v. The State of Assam,1992 Cri. LJ 1197 (Gau.) the Hon'ble Gauhati High Court has held that merely because the accused was driving the vehicle at a high speed may not attract provisions of Section 279."
25. Also in Keshav v. State of Haryana, 21st January 2010, Punjab and Haryana High court, it was held:
".....In support of the first argument, counsel for the petitioner has relied upon State of Kar nataka v. Satish, (1998)8 SCC 493. Para 4 of the Crl. Revision No.922 of 1998 [4] judgment read as under: "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 material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing 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 State Vs. Radhey Shyam 9/13 FIR no. 577/03 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 loquitur"........"
26. The golden thread in the aforesaid Judgments is that the speed is not the only criterion for determining the rashness and negligence of driving of a vehicle. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed at which the vehicle was running, but the density of the traffic as well. Speed of a vehicle by itself would not lead to conclusion of negligence in driving. It would depend upon the place and circumstances where and under which the vehicle was moving. It is trite that prosecution has to stand on its own legs and has to prove the case beyond reasonable doubt. So, merely stating that the vehicle was being driven rashly and negligently would not advance the cause of the prosecution.
27. In so far as the second aspect of rashness or negligence on the part of the accused in driving the offending vehicle is concerned, the case of the prosecution hinges upon the testimony of PW 1 Smt. Kripa Devi who is stated to be wife of the deceased. She has been cited and examined as the sole eye witness to the incident in question and therefore it would be appropriate to reproduce the relevant fragment of her testimony before the Court is as follows;
"On 16.10.2003, I was running tea stall at/near Jal Board Office, MB Road, Pul Prahlad Pur. At about 11.45 am, my husband was fetching water from the water tap. The accused namely Tiwari drove his vehicle very fastly while taking reverse my husband sustained injury due to reversing of the vehicle by the accused."
28. From the aforesaid fragment of testimony of PW 1, rashness or negligence is not attributed upon the accused for the reason that he drove his vehicle from office while reversing it and duty to the reversing of the vehicle her husband sustained injuries. It is quite clear from the testimony of PW 1 that the same is bereft of circumstances in State Vs. Radhey Shyam 10/13 FIR no. 577/03 which the accident took place. For proving the element of rash or negligent driving on the part of the accused, the testimony of the eye witness should be such as to make the Court envision the circumstances in which the accident took place. Of course, the site plan of the place of occurrence is of utmost importance in order to make graphical picture of the spot. At this point, I would like to advert to the site plan relied upon by the prosecution. In my opinion, the testimony of PW 1 goes on to indicate that an accident did take place on 16.10.2003 while reversing the tanker wherein her husband sustained injuries but, unfortunately, her statement is not sufficient enough to etch out the circumstances in which the accident took place so as to attribute the element of rashness or negligence upon the accused. She did not depose anything about the position of the offending vehicle and her husband at the time when the impact was caused. It is quite flummoxing as under what circumstances the offending vehicle was reversed by the accused which caused injuries upon the person of the husband of PW
1.
29. Apart from above, when we have a look at the cross examination of PW 1, her claim of actually citing the accident in question is also belied. She admitted during her cross examination that she was preparing tea for the customers during the relevant time and at the time of the incident there were 12 customers on her tea shop. She also admitted that after hearing the cries of her husband, she reached the spot and at that time only she saw the accused picking up her husband. She denied the suggestion that her husband fell down on the road and came under the water trolley who had come to fetch the water. She also denied that she did not witness the accident in question and reached the spot after the accident had taken place. From the abovementioned admissions, it appears that witness PW 1 was at some distance from the place of occurrence when the accident took place and she reached the spot only after hearing the noise of her husband. When she had given the statement that she State Vs. Radhey Shyam 11/13 FIR no. 577/03 saw the accused picking up her husband as soon as she reached the spot, her examination in chief that she witnessed the accident in question seems to become incredulous and unreliable. Perhaps for this reason only, she could not succinctly describe the incident in question during her examination before the Court.
30. Even the site plan Ex.PW8/B also does not throw much light on the circumstances in which the accident took place. It is also significant to note that although investigating officer claimed to have prepared the site plan at the instance of PW 1 but the site plan is devoid of her signatures as a witness, therefore the said site plan cannot be attached much value. Although, from the above discussion, it has become amply clear that prosecution has not been able to discharge its burden of proving the rashness or negligence on the part of the accused by adducing any cogent and clear evidence but still I would like to advert to the defence raised by the accused which in the circumstances of the case seems to be plausible and believable. During his questioning u/s 313 of the Code, he asserted that accident was not caused due to his fault and while reversing the tanker he took all the precautions and the deceased suddenly came on the back side. During the arguments advanced by Ld. Counsel for the accused, it was consistently argued that it is a matter of common knowledge that whenever the tanker comes to a particular society to distribute water amongst the residents, it is the tendency of the residents to act in a boisterous manner to get priority in filling their buckets as early as possible so as to avoid the increasing rush and in that quest sometimes they tend to create rumpus making it inconvenient for the other residents to fill the water. In the instant case also probably to bring on record this point only, a question was put to PW 1 and she replied in affirmative that whenever the tanker used to come for delivery of water, people used to rush madly for the same. In the defence evidence of DW 1 Sh. Arjun Singh also it has come that although the water was being filled in the tanker from the filling tanker of Delhi Jal Board and no outsiders State Vs. Radhey Shyam 12/13 FIR no. 577/03 are allowed in the premises of Delhi Jal Board but public persons used to forcibly entered to the filling point to fetch the water and in that chaos decease fell down on some stones which were kept behind the tanker and sustained injuries. In the factual position that has emerged from the abovesaid narrative this defence of the accused seems to be presumptive and cannot be discarded outrightly.
31. Testimonies of rest of the witnesses are formal in nature which cannot warrant conviction of the accused. Testimony of witness PW 1 seems to be doubtful and fell short of proving that accused was in fact negligent in driving the offending vehicle when it hit the deceased. Rashness or negligence cannot be presumed merely because an accident has taken place. Prosecution has to prove the same by adducing cogent evidence which has not been done in this case. Therefore, benefit of doubt is extended to the accused. Consequently, accused stands acquitted for the offence u/s 279/304 A IPC. He is set at liberty.
Announced in the open Court (Navjeet Budhiraja)
on 07.02.2014 Metropolitan Magistrate04,
South, New Delhi
State Vs. Radhey Shyam 13/13 FIR no. 577/03