Delhi District Court
State vs Balbir Singh on 18 December, 2024
IN THE COURT OF SH. MANUJ KAUSHAL JUDICIAL
MAGISTRATE FIRST CLASS-04/CENTRAL: DELHI
STATE VS. BALBIR
FIR No. 212/2017
Case No. 9195/2018
P.S. : SARAI ROHILLA
U/s 279/304A IPC
Date of institution of case : 30.06.2018
Date on which case reserved for judgment : 18.12.2024
Date of judgment : 18.12.2024
JUDGMENT :
a) Date of offence : 09.06.2017 b) Offence complained of : U/s 279/304A IPC c) Name of complainant : Ct. Sandeep d) Name of accused, : Balbir Singh his parentage : S/o Sh. Pratap Singh local & permanent residence R/o:- H.No. 38, Gali no.2, Pratap Vihar Part 2nd Kirari Nangloi Delhi. e) Plea of accused : Pleaded not guilty f) Final order : Acquitted BRIEF FACTS OF CASE:
1. Briefly stated, it is the prosecution's case that on 09.06.2017 at about 01:20 pm at red light chowki no.2, Sindhora Kalan, Sarai Rohilla Delhi, accused were found driving the vehicle i.e truck bearing no. DL-1GB-7030 in a manner so FIR no. 212/2017 State Vs. Balbir Singh Page no. 1 of 11 rashly or negligently as to endanger human life and personal safety of others and on the above stated time and place, while driving the said vehicle in rash and negligent manner hit an old lady which resulted in her death. and accused thereby committed an offence punishable under section 279/304A IPC.
2. On the basis of material filed along with the charge-sheet, charge u/s 279/304A IPC was framed against the accused vide order dated 28.03.2019 to which he pleaded not guilty and claimed trial.
3. In order to prove the above said allegation against the accused, prosecution has examined 6 witnesses in total. Vide a separate statement u/s 294 Cr.P.C, the accused admitted FIR Ex.A1, certificate u/s 65B Indian Evidence Act Ex.A2, DD no. 19A Ex.A3, MLC no. 761/17 dt. 09.06.2017 Ex.A4, PMR report no. 888/17 dt. 11.06.2017 Ex.A5 and mechanical inspection report dt. 09.06.2017 Ex.A6.
Evidence on Record
4. PW-1 HC Amit Chikra deposed that on 09.06.2017 after receiving a PCR call regarding an accident near red light Sindhora Kala he alongwith SI Rama Kant reached at the spot where they met Ct. Sandeep and Ct. Sandeep handed over the accused Balbir Singh to the IO. He further deposed that one truck bearing registration number DL1GB-7030 was also found at the spot in accidental condition and the accused disclosed that the said truck was driven by him. He further deposed that they found out that the injured was taken to NKS hospital whereupon IO left the accused and the vehicle in his custody and went to NKS hospital. He further deposed that after some time, IO came back to the spot and injured had succumbed to her injury. He further stated that FIR no. 212/2017 State Vs. Balbir Singh Page no. 2 of 11 thereafter the IO prepared the tehrir and handed over the same to the then DO PS Sarai Rohilla and got the FIR registered. He further deposed that IO seized the truck bearing registration number DL1GB-7030 vide seizure memo Ex.PW1/A and seized the document of the vehicle vide seizure memo Ex.PW1/B. He further stated that the IO prepared the site plan Ex.PW1/C, arrested and personally searched the accused vide memo Ex.PW1/D and Ex.PW1/E respectively. As the offence was bailable in nature, the accused was released on bail. He further deposed that the case property was taken to maalkhana. He correctly identified the accused and offending vehicle in photographs Ex.P1 (Colly). He was duly cross examined by ld. Counsel for accused.
5. PW-2 HC Sandeep Bhardwaj deposed that on 09.06.2017, he was posted as Ct. at Sadar Bazar zone traffic circle and he was coming from Inderlok after doing Namaz duty to his point at Gulabi Bagh. He further deposed that at around 01:20 pm, when he reached chowki no.2 red light, he saw one truck bearing registration number DL-1GB-7030 came at a very high speed from the side of Shakti Nagar and it hit one old lady. He further deposed that the aforesaid truck driver did not stop the truck when it was going to be red light and moved in a fast manner to cross the red-light. He further deposed that thereafter, he made a call to the 100 number and apprehended the truck driver with the help of the public persons and the driver revealed his name as Balbir Singh. He further deposed that he took the injured lady in the car of the public persons to NKS hospital. He further deposed that IO recorded his statement Ex.PW2/A. He further proved the arrest and personal search memo Ex.PW1/D and Ex.PW1/E. He further correctly identified the victim in the photograph Ex.P2. He correctly identified the accused and the offending vehicle Ex. P1(Colly.).
FIR no. 212/2017 State Vs. Balbir Singh Page no. 3 of 11
6. PW-3 Rohtas identified the dead body of his mother namely Ram Kaur. He proved his statement Ex.PW3/A, dead body handing over memo Ex.PW3/B, dead body identification statement Ex.PW3/C. He was not cross examined by ld. Counsel for accused despite the opportunity being given for the same.
7. PW4 Vicky identified the dead body of his grand-mother namely Ram Kaur. He proved his statement Ex.PW4/A, dead body handing over memo Ex.PW3/B, dead body identification statement Ex.PW3/C. He was not cross examined by ld. Counsel for accused despite the opportunity being given for the same.
8. PW-5 retired SI Krishan Chander deposed that on 11.06.2017 he went to Subzi Mandi Mortuary and conducted the postmortem proceedings. He further deposed that after the postmortem, the dead body was handed over to Rohtas S/o Ram Kaur vide body handing over memo Ex.PW3/B. He was not cross-examined by Ld. Counsel for the accused despite the opportunity being given for the same.
9. PW-6 SI Rama Kant deposed about the investigation conducted by him and deposed on the same lines as PW-1. He further proved the tehrir Ex.PW6/A. He further deposed that he seized the blood sample and sample seal vide seizure memo Ex.PW6/B. He correctly identified the offending truck bearing no. DL1GB-7030 in the photographs Ex.P1 (Colly) and the accused. He was cross-examined by Ld. Counsel for the accused.
10. Thereafter PE was closed and matter was fixed for the statement of the accused U/s 313 Cr.P.C. The statement of the accused U/s 313 Cr.P.C FIR no. 212/2017 State Vs. Balbir Singh Page no. 4 of 11 was recorded on 09.07.2024 wherein the accused denied the allegations against him and stated that he has been falsely implicated in the present matter. He further stated that the accident took place due to the negligence of Rahul Batra. He further opted to lead DE.
11. Accused examined only 1 witness in his defence. DW1 Sanjay Kumar proved his authority letter is Ex.DW1/A. He further deposed that all the vehicles plying under our company are mandatorily fitted with the GPS systems and speed governor. He further deposed that the maximum speed of a vehicle fitted with speed governor is approximately 50 KM per hour. He further proved the GPS record of the offending vehicle Ex.DW1/B and Ex.DW1/C. He was cross-examined by Ld. APP for the stated
12. Thereafter the matter was fixed for final arguments. Ld. APP for the State submits that the testimony of the witnesses proves the guilt of the accused beyond reasonable doubt. Hence it is submitted that the prosecution has been able to prove its case beyond reasonable doubt. Per Contra, Ld. Counsel for the accused has argued that the accused has been falsely implicated in the present matter. Ld. Counsel for the accused has further argued that there are material contradictions in the testimony of the witnesses. It is further argued that PW-2 who is the only eye-witness is a planted witness. Hence, it is submitted that the prosecution has not been able to prove its case beyond reasonable doubt.
Reasons for Decision
13. It is well settled that in a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the FIR no. 212/2017 State Vs. Balbir Singh Page no. 5 of 11 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'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh , 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
"i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any less.
ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt."
14. In the present case the accused has been charged with the offences punishable U/s 279/304A of IPC. Let us proceed to examine whether the prosecution has been able to prove that the accused has committed an offence U/s 279/304A IPC. Since the accused has been charged with the offence under Section 279 of the Indian Penal Code, 1860, it was for the State to prove that:
a) that the accused was driving a vehicle;
b) he was driving the said vehicle on a public way;
c) he was driving the vehicle in a rash and negligent manner so as to endanger human life, or to be likely to cause hurt or injury to any other person.
Further, in order to prove the offence under Section 304A of Indian Penal Code, 1860, it was for the State to prove that the death of the FIR no. 212/2017 State Vs. Balbir Singh Page no. 6 of 11 victim resulted due to rash or negligent act of accused.
15. This being the factual, evidentiary and the legal position, let us proceed to examine whether the prosecution has been able to successfully prove the guilt of the accused beyond reasonable doubt. In order to adjudicate upon the culpability of the accused, it has to be seen from the evidence brought on record whether the act of the accused would fall within the ambit of "rash or negligent act". Hon'ble Apex Court in the case of Rathnashlvan vs. State of Karnataka (2007) 3 SCC 474 while dealing with the expression "rash and negligent" has observed, inter alia, as under-:
"7. .... Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A 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.Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, "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 FIR no. 212/2017 State Vs. Balbir Singh Page no. 7 of 11 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."
Further, the Hon'ble Apex court, in the case of Mrs. Shakila Khader v. Nausher Gama (see: AIR 1975 SC 1324), while discussing the factors to be taken into account while adjudicating upon the "rashness or negligence" has observed the following:
"6. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye-witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road."
16. Now, in the present factual matrix prosecution has examined only PW-2 HC Sandeep Bhardwaj who has deposed that on the date of the incident he had seen the accident while he was coming from Namaz Duty at Inderlok to his point at Gulabi Bagh. He has further deposed that the accused was driving the truck at a high speed and he failed to slow down the truck when the light was going to turn red. Admittedly no DD entry has been placed on record to show that PW-2 was actually present at the spot. Further, PW-2 in his examination in chief has stated that he had taken the injured/victim to the FIR no. 212/2017 State Vs. Balbir Singh Page no. 8 of 11 hospital however, in his cross-examination PW-2 has stated that the injured was taken to the hospital by a private person. In view of the aforesaid contradiction and the fact that nothing has been placed on record by the prosecution to show that the PW-2 had actually come to Gulabi Bagh, this Court is of the opinion that the conviction cannot be based on the sole testimony of PW-2 whose very presence at the spot is disputed.
17. Further, a perusal of the MLC shows that the victim was taken to the hospital by a person namely Rahul Batra whose address and contact details have been mentioned on the MLC. However, the said person has not been joined in the investigation by the IO. No explanation has been given by the IO for non-joining the material witness who was not only present at the time of incident but had also taken the victim to the hospital. This further, casts a doubt on the prosecution's case. Further, the site plan Ex. PW1/C and the mechanical inspection report Ex. A6 shows that nothing is available on record to suggest that the accident had taken place due to rash and negligent act of the accused. In the given circumstances, this Court is of the opinion that the prosecution has failed to prove beyond reasonable doubt that the accident had taken place due to rash and negligent act of the accused.
18. At this juncture, it is pertinent to deal with the applicability of principle of res ipsa loquitor which is applicable to the cases of negligence. The aforesaid question has been dealt by Hon'ble apex court in the case of Mohammed Aynuddin v. State of Andhra Pradesh, (2000) 7 SCC 72 wherein it has been observed as under:
"7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such FIR no. 212/2017 State Vs. Balbir Singh Page no. 9 of 11 a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.
8. The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.
9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
19. The aforesaid observations make it abundantly clear that for invocation of rule of res ipsa loquitor the prosecution has to show that the nature of accident and the surrounding circumstances was such that the accident could not have taken place but for the negligence on the part of the driver. In the present facts, the prosecution has failed to establish the prerequisites for invocation of the principle of res ipsa loquitor. In order to establish the negligence, the prosecution was required to bring on record the surrounding circumstances such as the speed of the offending vehicle/victim's vehicle, traffic on the road, width of the road etc. These circumstances would FIR no. 212/2017 State Vs. Balbir Singh Page no. 10 of 11 have cumulatively indicated towards the act of the accused and would have assisted in effective adjudication upon the factum of rashness or negligence.
20. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reason doubt in the prosecution case entitles the accused to acquittal.
21. Since in the present case the prosecution has failed to prove that the accused was driving the said vehicle in a rash and negligent manner therefore, the prosecution has failed to establish to primary ingredient to constitute the offence U/s 279/304A IPC.
22. In view of the above observations, the accused Balbir Singh is entitled to the benefit of the doubt and is hereby not found guilty and is hereby acquitted of the offences punishable U/s 279/304A IPC.
23. File be consigned to record room.
Digitally signedPRONOUNCED IN THE OPEN COURT MANUJ by MANUJ
KAUSHAL
TODAY ON 18th DECEMBER 2024 KAUSHAL Date: 2024.12.18
17:06:31 +0530
(MANUJ KAUSHAL)
JUDICIAL MAGISTRATE FIRST CLASS-04
CENTRAL DISTRICT : TIS HAZARI COURTS
DELHI
FIR no. 212/2017 State Vs. Balbir Singh Page no. 11 of 11