Delhi District Court
State vs . Rajni on 17 December, 2012
State vs. Rajni
IN THE COURT OF SH AJAY GARG
Metropolitan Magistrate, South, New Delhi
State Vs. Rajni
FIR N0. : 341/05
U/S : 279/304-A IPC
PS : Vasant Kunj
JUDGM ENT ;
a) Sl. No. of the case : 252/2
b) Date of commission of offence : 06.06.2005
c) Date of institution of the case : 01.05.2006
d) Name of the complainant : Sh. Sunny Thakur
e) Name & address of the : Rajni
accused W/o Sh. Sandeep Kumar
R/o House no. D6/6049/4
Vasant Kunj
New Delhi
f) Offence complained off : 279/304-A IPC
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 14.12.2012
i) Final order : Acquitted
j) Date of Judgment : 17.12.2012
FIR No. 341/05 Page 1 of 9
State vs. Rajni
BRIEF STATEMENT OF REASONS FOR DECISION:
1.Briefly stated, the case of the prosecution is that on 06.06.2005 at about 09:15 a.m., at Nelson Mandela Marg, near Paschimabad Gate JNU, New Delhi within the jurisdiction of PS Vasant Kunj accused Rajni was driving a Maruti 800 car bearing registration no. DL-6CH-3389 in a rash or negligent manner and while driving so struck a pedestrian namely Ms. Aruna Thakur and caused her death not amounting to culpable homicide. With these allegations, accused has been sent to face trial for offences U/s 279/304-A IPC.
2. Upon completion of investigation charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. A formal notice for the offence U/s 279/304-A IPC was served upon the accused on 10.11.2009 to which she pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, four witnesses have been examined on behalf of the prosecution.
4. PW1; Sh. Sunny Thakur is the eye-witness / complainant who deposed that on 06.06.2005 his sister Aruna Thakur was crossing the road and he was standing near the gate of JNU when accused came in her car driving the same in rash and negligent manner and hit against his sister. He deposed that accused took his sister to SJ hospital where his sister Aruna Thakur expired.
5. PW2; HC Kailash Chand is a police official who accompanied IO SI Kulbir to the spot where he got to know that injured had already been shifted to hospital. He deposed that IO carried out all the proceedings in his presence. He identified seizure memo of vehicle Ex. PW2/A, seizure memo of DL of accused Ex. PW2/B and arrest memo Ex. PW1/A. He also identified site plan Ex. PW2/C. FIR No. 341/05 Page 2 of 9 State vs. Rajni
6. PW3; Dr. Prem Kumar had conducted postmortem of deceased Aruna who deposed that cause of death was shock and hemorrhage caused by multiple injuries over the body. He identified his report Ex. PW3/A.
7. PW4; HC Sunita is the Duty officer who had registered FIR on the basis of rukka sent by SI Kulbeer Singh.
8. Upon completion of P.E., Statement of accused U/s 313 Cr.P.C was recorded on 20.11.2012 wherein accused has refuted the allegations levelled against her in toto.
9. I have heard the rival submissions and carefully perused the record.
10. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
11. It has been observed in the case of B. C. Ramachandra v. State of Karnataka 2007 Cri. L. J. 475, that " In criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. It was also observed that such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur."
FIR No. 341/05 Page 3 of 912. In the instant case the star witness examined by the prosecution is PW1 / complainant Sunny Thakur, who happens to be the eye-witness of the accident but his sole testimony is not sufficient to prove the prosecution case. His testimony do not inspire confidence and is full of infirmities . As per PW1, immediately after the accident he rushed to his house to inform his parents and then went to Safdarjung Hospital and met the police officials. Per contra PW2 admitted that he along with IO went to the house of PW1 and met PW1 and his father who accompanied them to the spot. Further the conduct of PW1 also raises suspicion about his presence at the spot. He categorically deposed that after the accident he rushed to his house to inform the parents about the accident though being a prudent man of 19 years he ought to have accompanied his sister to the hospital and did his best to save her. He further deposed that while rushing back to his house he did not inform anybody about the accident though met several known persons on his way. This conduct on the part of a young literate person of 19 years seems to be improbable and unreasonable.
Even if for the sake of arguments it is presumed that accident is caused by the accused herein it does not ipso facto proves the rashness or negligence of the accused. The culpability lies in the rash or negligent act and not by mere causing an accident for the reasons beyond control. Though the eye-witness Sunny Thakur deposed that accused was driving her car in a high speed but same is not sufficient to prove rashness or negligence of accused. It has to be gathered from the surrounding circumstances. It is observed in the case titled as State of Karnataka vs. Satish 1999 [1] JCC [SC] 97 that:-
" 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, FIR No. 341/05 Page 4 of 9 State vs. Rajni 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 proved. Criminality is not to be presumed, subject of course to some 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 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."
Relevance in this regard can also be placed upon Tukaram Sitaram Gore vs. State AIR 1971 Bombay 164 (V 58 C 28) wherein stated : " In running down cases the death of the pedestrian may very well be purely accidental, or may be due to his own negligence. To presume that because a pedestrian has been knocked down and has died, the driver of the motor vehicle that knocked him down must be guilty of rashness or negligence overlooks these two possibilities."
It is further observed in the matter of Nageshwar vs. State of Maharashtra AIR 1973 Supereme Court 165 that :-
FIR No. 341/05 Page 5 of 9State vs. Rajni "6. In cases of road accidents by fast moving vehicles it is ordinarily difficult to find witnesses who would be in a position to affirm positively the sequence of vital events during the few moments immediately preceding the actual accident from which its true cause can be ascertained. When accidents take place on the road, people using the road or who may happen to be in close vicinity would normally be busy in their own pre occupations and in the normal course their attention would be attracted only by the noise or the disturbance caused by the actual impact resulting from the accident itself. It is only then that they would look towards the direction of the noise and see what had happened. It is seldom - and it is only a matter of co incidence - that a person may already be looking in the direction of the accident and may for that reason be in a position to see and later describe the sequence of events in which the accident occurred. At times it may also happen that after casually witnessing the occurrence those persons may feel disinclined to take any further interest in the matter. Whatever be the reason for this disinclination, if however, they do feel interested in going to the spot in their curiosity to know something more, then what they may happen to see there would lead them to form some opinion or impression as to what in all likelihood must have led to the accident. Evidence of such FIR No. 341/05 Page 6 of 9 State vs. Rajni persons, therefore, requires close scrutiny for finding out what they actually saw and what may be the result of their imaginative inference."
13. In the instant case the deceased was knocked down while she was trying to cross the busy Nelson Mandela Road without any zebra crossing or traffic signal despite heavy traffic. In such a circumstance, it cannot be expected from a ordinary driver to foresee the unexpected crossing of road by an individual despite heavy vehicular movement and without any earmarked place or traffic signal for the purpose of crossing. In such a situation law is crystal clear as held in Rajesh Kumar vs. State II (2012) DLT (CRL.) 843 that:-
" The relevant aspect to be noted is that the road on which the accident took place is a busy road. Site plan Ex. PW6/B does not indicate that the ladies were crossing the road from a place earmarked for the pedestrians to cross the road or that there was any zebra crossing. . For attracting the provisions of Section 304A, IPC the negligent act of the accused must be culpable and gross and not merely based on an error of judgment, or the one which arises because of lack of intelligence. For holding an accused criminally liable one has to take into consideration all the attending circumstances which must also include any situation created by the negligent act of the injured person. In the present case, there is no evidence on record to show that the Petitioner was driving the offending vehicle at a very high speed or in a rash and negligent manner. There are no skid marks on the road to show that the FIR No. 341/05 Page 7 of 9 State vs. Rajni vehicle was being driven at a high speed. Thus, in view of circumstances of the present case it cannot be held that the accused was grossly negligent or reckless that he must be held criminally liable. The prosecution in the present case has not been able to prove its case beyond reasonable doubt against the Petitioner."
Reliance can also be placed on the recent judgment (17th July 2012) of Rajender Singh vs. State Govt. NCT of Delhi Crl. Rev. P. 624/2009 wherein Hon'ble Justice Ms. Mukta Gupta while dealing with the similar facts held that:-
" 11. The place of accident is a busy road where the traffic movement is very high and the deceased was crossing the road when there was green light for the vehicles and not using the foot over bridge is an essential aspect which needs to be looked into. No doubt the driver of a heavy or any vehicle has to be very careful and diligent while driving the vehicles on roads. But in case a person crosses the road when the traffic signal is green for vehicles to move the negligence on the part of pedestrian cannot make the driver/ accused person wholly liable for the accident. The deceased or the injured is also liable for the negligence."
14. In these circumstances when there is no clinching testimony to prove the rashness or negligence of the accused corroboration is required from the independent witness which is not available in this case. As per PW1 the spot was a busy place and number of persons gathered there but no one was joined in the investigation. Even the security guard of the JNU Hostel gate who must have witnessed the accident was not examined by the prosecution. There is no clear evidence placed on record by the prosecution FIR No. 341/05 Page 8 of 9 State vs. Rajni to prove the manner of driving the offending vehicle. The only statement in this regard is the testimony of PW1 who has stated that the car was being driven at a fast speed. This is a bald statement and finds no corroboration from any other document or testimony of any witness. Further, the remaining evidence including circumstantial evidence failed to establish rashness or negligence of accused beyond reasonable doubts. In these circumstances, the guilt of accused cannot be safely presumed as both the views are possible. It is observed in State of Punjab vs. Karnail Singh (2003 AIR SCW 4065) that:-
" The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted."
15. Non-examination of Investigating Officer as well as Motor Vehicle Inspector gave fatal blow to the prosecution case as their testimony could have explained the circumstantial evidence to support the prosecution story. In these circumstances it is held that prosecution has failed to prove its case beyond all reasonable doubts and the accused deserves to be acquitted of the charges U/s 279/304-A IPC levelled against her. Ordered accordingly.
Announced in the open court
on 17.12.2012 (Ajay Garg)
MM/Delhi /17.12.2012
FIR No. 341/05 Page 9 of 9