Delhi District Court
State vs . Bhag Singh Fir No. 784/14 on 18 November, 2021
State vs. Bhag Singh FIR No. 784/14
IN THE COURT OF MS. BABITA PUNIYA: METROPOLITAN
MAGISTRATE -05, EAST DISTRICT,
KARKARDOOMA COURTS, DELHI
State vs. Bhag Singh
FIR No. 784/2014
U/sec. 279/338 IPC
PS: Krishna Nagar
Date of institution of the case: 22.08.2015
Date on which judgment is reserved: Not reserved
Date on which judgment is delivered: 18.11.2021
Unique I. D. No. 13130/16
JUDGMENT
* Date of commission of the offence : 29.10.2014
* Name of the complainant : Mr. Mumtaz
* Name of the accused and his parentage : Bhag Singh,
S/o Sh. Khem Singh,
R/o. H. No. 2/1, Geeta
Colony, Delhi.
Permanent address: Village
Kunkhet, Police Station
Geded, District Chamoli,
Uttrakhand.
* Offence complained of or proved : Sec. 279/338 IPC
* Plea of the accused : Pleaded not guilty
* Final order : Acquitted
* Date of such order : 18.11.2021
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State vs. Bhag Singh FIR No. 784/14
* Brief reasons for the just decision of the case:
Succinctly stated, the facts of the prosecution case are that on 29 October 2014, Mr. Mumtaz was seriously injured in a motor vehicle accident. As a result of the accident, he suffered grievous injuries and was removed to Dr. Hedgewar hospital for treatment. A DD Entry No. 8-A was also recorded at police station Krishna Nagar regarding the accident and the same was marked to ASI Pawan Singh, who immediately went to the spot but nothing was found there. Thereafter, he went to Dr. Hedgewar hospital and collected the MLC of the injured Mr. Mumtaz. Injured told the IO/ASI Pawan Singh that he was going to Mandi on his scooter DL- 4SAW-2973 and that at about 07:30 a.m., when he reached at red light, Kanti Nagar, driver of DL-1LM-7027 came at high speed and hit his scooter. As a result of which, he fell down on the road and sustained injuries. He further told that his uncle Mr. Attaullah also reached at the spot. Driver of DL-1LM-7027 also stopped his vehicle. Mr. Attaullah with the driver of offending vehicle removed him to Dr. Hedgewar hospital in a TSR/Auto. Consequently, on the basis of his statement Ex.PW1/A, present FIR was registered at police station Krishna Nagar and investigation was undertaken.
After completion of the investigation, charge-sheet under sections 279/338 IPC was filed against accused/driver Bhag Singh. Consequently, he was summoned to face the trial. On his appearance, in the Court, the copies of documents, relied upon by the prosecution, were supplied to him as per norms.
Thereafter, charge under sections 279/338 IPC was framed against accused to which he pleaded not guilty and claimed trial.
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State vs. Bhag Singh FIR No. 784/14
With a view to connect the accused with the crime, the prosecution has examined as many as 10 witnesses.
PW1 was the injured as well as the complainant. He testified that on 29.10.2014, he was going to Ghazipur Mandi on his scooter. At about 07:30 a.m., when he reached near Kanti Nagar Red Light, one vehicle TATA 407 bearing registration number DL-1LM-7027 came from behind and hit his scooter. He stated that driver was driving the vehicle in rash and negligent manner and in high speed. He stated that accused suddenly took right turn and hit his scooter from left side. He stated that his uncle Mr. Attaullah shifted him to Dr. Hedgwar hospital.
He identified the accused in the court as the driver of the offending vehicle.
He during his cross-examination by the learned defence counsel stated that on the date of incident, he was going alone to Murga Mandi. He stated that his brothers and uncle used to reside near his house. He stated that his brothers and uncle also used to go to murga mandi, sometimes with him. He stated that incident happened on 29.11.2014 at about 08:00 a.m. He stated that his uncle reached at the spot after 10 minutes of the incident. He stated that he did not make 100 number call. He voluntarily stated that his brother Imtiaz informed the police but not in his presence. He stated that PCR officials did not come in his presence at the spot. He stated that they came at the hospital. He stated that local police also came at the hospital but his uncle refused for registration of FIR as he wanted to settle the matter. He stated that after 3 days, he was discharged from the hospital. He stated that his statement was recorded by the PCR officials. He stated that thereafter, police did not visit the hospital nor called him at the police station. He stated that Page 3 out of 26 State vs. Bhag Singh FIR No. 784/14 after the day of incident, police did not visit his house nor recorded his statement. He denied having visited the spot after discharge from hospital. He stated that site plan was not prepared in his presence. He claimed to have received Rs. 1,05,000/- from MACT. He stated that he cannot tell if arrest memo was prepared in his presence. He stated that some documents were prepared at the hospital. He stated that Ex.PW1/A was not in his handwriting. He denied the suggestions put forth by the learned defence counsel.
PW2/HC Sandeep was the MHC (M). He proved the entry in Register NO. 19/Ex.PW2/A. PW3/Tannimudin was the Mechanical Expert. He proved his report Ex.PW3/A and Ex.PW3/B. PW4/HC Anil Kumar had accompanied the IO during investigation.
PW5/Furkan was the brother of injured. He stated that in the year 2014, one day he along with his brother Mumtaz was going to Gazipur mandi. He stated that his brother was riding a scooter while he was in his Santro car. He stated that at about 08:00 a.m., when they reached near Kanti Nagar Police Chowki, his brother, who was ahead of him, met with an accident. He stated that driver of the truck TATA 407 negligently turned his vehicle towards right side as a result of which leg of his brother got fractured. He stated that driver ran away with the vehicle from the spot. He stated that accused had assured them that he will park his vehicle on the side of the road but fled away. He stated that accused went to the house of the owner of the owner of the truck at Kanti Nagar. He stated that he made a call at Page 4 out of 26 State vs. Bhag Singh FIR No. 784/14 number 100. He stated that police came at the spot and removed his brother to hospital while he went to mandi for his job.
He during cross-examination by the defence counsel stated that he was alone in his Santro car at the time of incident. He stated that distance between his car and the scooter was around 50-60 meters. He stated that he could not read the registration number of the offending vehicle at that time. He stated that he had seen the driver of the offending vehicle when the incident occurred. He stated that at the time of accident, Mumtaz was alone on his vehicle. He stated that there was a divider on the said road right side of the scooter. He voluntarily stated that accused was driving the truck on left side of the scooter at that time. He stated that other vehicles were also plying on the road. He stated that the offending vehicle ran away from the spot after accident. He stated that the call at 100 number was made by public person, however, he could not tell the mobile number. He stated that police officials took his brother to the hospital in his presence and later on, he also went to the hospital. He stated that no other public person accompanied with the police officials who took his brother Mumtaz to the hospital. He stated that police recorded his statement on the same day at the hospital. He stated that his brother Mumtaz did not give the RC and other papers of the scooter to the police officials in his presence. He stated that Ex.P2 (colly) was not taken in his presence by the police. He stated that the site plan was not prepared in his presence by the police. He stated that police obtained his signature on the arrest and personal search memos on the spot. He stated that accused/driver, who had gone to the house of owner of the offending vehicle, was brought from the house of said owner where he was standing on the gate. He stated that the accused driver had stopped the Page 5 out of 26 State vs. Bhag Singh FIR No. 784/14 offending vehicle and got down. He stated that he does not know whether there was any CCTV camera at the spot of accident. He stated that one public person took him in his Esteem car to apprehend the accused driver and that public person dropped him at the house of the said owner and then he went away. He denied the suggestion that he did not go to the house of owner of the offending vehicle or that he was not an eye witness of the accident or that he was a planted witness. He stated that no police officials from the police station came at the hospital in his presence. He stated that his brother Mumtaz and he were working in the Ghazipur mandi since last 20 years. He stated that public persons had gathered when the accident at the spot. He stated that he did not tell the police in his statement that he was going in his Santro Car or the number of his car as the police never asked him about the same. He stated that he stayed in the hospital for about 5-10 minutes and family members of Mumtaz did not arrive at the hospital in his presence. He denied the suggestion that he was deposing falsely being the relative of Mumtaz or that he had signed the papers at the instance of the IO or that he identified the accused as the driver of the offending vehicle at the instance of the IO when the police brought him to the police station or that he never went to the house of the owner of the offending vehicle and that is why he did not mention this fact in his statement to the IO or that he was deposing falsely.
PW6/Dr. Ritesh Rajan, CMO, Dr. Hedgewar hospital has proved the MLC Ex.PW6/A. PW7/Ashok Kumar Khurana was the owner of the offending vehicle.
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PW8/Dr. Hemant Sharma, Specialist Orthopedics, Dr. Hedgewar Hospital, Delhi has proved the signature of Dr. Vaibhav Awasthi on MLC.
PW9/Dr. Robin Goel, Associate Consultant, MAX Hospital, Patparganj, Delhi has proved his report/Ex.PW9/A. PW10/Retd. SI Pawan Singh was the IO of the case. He testified that on 29.10.14, he received a DD No. 8A. Thereafter, he along with Constable Anil Kumar went to the place of incident which was mentioned in the said DD number, however, nothing was found there. Thereafter, he along with Constable Anil Kumar went to Dr. Hedgewar Hospital and collected the MLC of injured Mumtaz and recorded his statement Ex.PW1/A and prepared the rukka/Ex.PW10/A. He stated that he sent Constable Anil Kumar with the rukka to the police station Krishna Nagar to register the FIR. He stated that in the hospital, he met Mr. Furkan. Thereafter, he along with Mr. Furkan went to the spot and at his instance prepared the site plan/Mark A. He stated that Constable Anil Kumar came at the spot and handed over to him the copy of the FIR and original rukka. Thereafter, he seized the vehicle of injured vide Ex.PW4/A. He stated that accused Bhag Singh also reached to the spot and identified by Furkan. Thereafter, he seized the vehicle of accused, interrogated him and arrested him vide arrest memo/Ex.PW4/C. He further stated that he recorded the statement of witness Furkan Ex.PW10/X. He stated that he along with accused Bhag Singh and Constable Anil Kumar went to the police station Krishna Nagar and deposited the offending vehicle and scooter in the malkhana. He stated that he released the accused on bail. He stated that vehicles were mechanically inspected and on the basis of the result of MLC, he added section 338 IPC. He stated that the Page 7 out of 26 State vs. Bhag Singh FIR No. 784/14 vehicles were released by the order of Hon'ble Court. He stated that he recorded the statement of witnesses and after investigation, filed the challan.
He under cross-examination by the defence counsel stated that the address mentioned in the DD entry no.8A was Amar palace Banquet, Jheel Khuranja while the place of incident was different. He stated that at the address mentioned in the DD Entry, neither injured nor offending vehicle was found. He stated that he went to Dr. Hedgewar Hospital to meet the injured as this fact was mentioned in the DD no. 8A. He stated that in the hospital, he recorded the statement of injured. He stated that he also met witness Furkan but he did not record his statement in the hospital. He stated that he did not meet any other eye witness in the hospital. He stated that at the place of accident, public persons had gathered but they refused to give statement. He admitted the suggestion that he did not obtain signature of injured Mumtaz and Furkan on the site plan. He stated that Constable Anil came back to the spot from the police station at about 12:00 p.m. He stated that the vehicle of the injured and the offending vehicle were both present at the spot where the accident had taken place. He stated that photographs of the spot in particular the point/place at which the offending vehicle and the vehicle of the victim were present were not got clicked. He stated that the tahrir was in his handwriting. He stated that in the charge-sheet, the date of the incident is mentioned as 24.09.2014 vide DD no. 8A. He clarified that it was a typing error. He stated that he did visit the spot where the accident in question took place after the date of incident. He stated that he did not search for the person who had made the call on 100 number. He stated that vacant land of railway is around the spot where accident took place and that there are no house or shop at or near the spot where accident took place but Page 8 out of 26 State vs. Bhag Singh FIR No. 784/14 there were shops and houses ahead of the spot. He stated that he did not give notice to the public persons who had gathered at the spot where the accident took place for joining investigation. He admitted the suggestion that engine number and chassis number of the offending vehicle and the vehicle of the injured was not mentioned in the mechanical inspection report of the said vehicles. He denied the suggestion that the accident in question did not take place from the vehicle of the accused as the address mentioned in the DD no. 8A and the spot where the accident took place are different addresses or that he had not conducted fair investigation or that the alleged offending vehicle and the accused were planted by him at the spot where the accident in question took place. He stated that no date is mentioned in the statement of witness Tasnimuddin Siddique. He denied the suggestion that he prepared the rukka, personal search memo, arrest memo, site plan, all seizure memos on his own or that he falsely implicated the accused in the present case or that he prepared all the documents at the police station. He stated that he did not search for the TSR in which injured was taken to the hospital. He stated that he does not know as to how long injured remained in the hospital. He stated that he did not meet the injured after he recorded his statement in the hospital. He stated that he does not remember the date when he recorded the statement of Constable Anil. He denied the suggestion that Constable Anil did not go to the spot with him on the day of incident in question. He stated that Mumtaz was not discharged from the hospital in his presence. He denied the suggestion that Furkan has identified the accused and offending vehicle at his instance or that the photographs of the alleged offending vehicle were planted by him.
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Thereafter, PE was closed and the statement of accused was recorded under section 313 of the Code to afford him an opportunity to explain the incriminating circumstances appearing against him in evidence. He denied the allegations and pleaded false implication. However, he did not examine any defence witness.
I have heard the arguments and have also perused the file very carefully.
Arguments It was contended on behalf of the accused that the prosecution has failed to prove that accused was driving the offending vehicle at the alleged date, time and place or that the accident was caused due to rash or negligent driving of the offending vehicle. He submitted that the identification evidence is not truthful.
He submitted that why in every case of road accident, driver of a heavy motor vehicle is presumed to be guilty of rash and negligent driving. According to learned defence counsel just like drivers of heavy motor vehicles, the riders of motorbikes also owe a duty of care to other people using public roadways.
He also placed reliance on a judgment passed by the Hon'ble High Court of Delhi in the case of Mohan Shyam vs The State (NCT of Delhi) decided on 25th May, 2012 wherein it was held as under:-
".....Every person is bound to anticipate the dangers normally expected on the road and not challenge his own safety by driving in the dangerous fashion as evidenced in the present case. It is not that in every case of road accident, the driver of a commercial or heavy vehicle shall be presumed to be guilty of rash and negligent driving and without any iota of evidence against him;
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Per contra, it was submitted by the learned APP for the State that PW1/injured has clearly stated that the accused was driving the vehicle at a very high-speed and while driving so hit against his scooter and as result of which, he sustained injuries. He stated that complainant/PW5 has also afforded sufficient corroboration.
In rebuttal, it was contended by the learned defence counsel that the injured has made a bald statement that driver was driving the vehicle at a high speed. He referred to the decision of the Hon'ble Supreme Court in the case of State of Karnataka v. Satish 1998 SCC (CRI) 1508 wherein it was held that driving at a high-speed by itself does not imply negligence or rashness.
He submitted that it was the duty of the prosecution to prove beyond reasonable doubt that the accident was entirely or at least mainly due to the rashness or negligence on the part of the person who was driving the vehicle. According to learned defence counsel the State did not discharge the onus of proving beyond reasonable doubt that the accident was caused due to rash or negligent driving of the offending vehicle by its driver.
He also submitted that injured had attached bird cages with his scooter in violation of RC conditions, still no action was taken against the injured and the accused was falsely implicated by the IO in connivance with the brother of injured. He therefore, prayed that accused may be acquitted of the offence alleged against him.
Issues
1. Whether the accident was caused due to rash and/or negligent driving of the vehicle TATA 407 by its driver?
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2. Whether the accused Bhag Singh was driving the offending vehicle at the time of accident?
3. Whether adverse inference should be drawn against the State on account of the non-examination of Mr. Attaullah, uncle of the injured?
4. Whether PW5/brother of injured was a planted or wholly un-reliable witness?
Decision and brief reasons for the same Since accused pleaded not guilty, like in all criminal cases, the prosecution has the burden of proving his guilt beyond reasonable doubt. The burden does not shift. There exists no burden on the accused to prove his version or his innocence. It is trite that accused can only be convicted on the strength of the prosecution and not because of weaknesses in his defence.
Adverse inference against the State for not examining Mr Attaullah It was argued on behalf of the accused that as per the prosecution version, Mr. Attaullah, uncle of the injured, came at the spot and removed him to hospital in a TSR. However, he was not examined as a prosecution witness and was deliberately withheld from the court. He submitted that had this witness been called, he would have contradicted the State's case regarding the story presented by the State. He stated that for the reasons best known to the prosecution and which remained unexplained, this witness was not examined by the prosecution.
Per contra, it was argued on behalf of the State that uncle of the injured did not feature on the list of witnesses and therefore, the defence could have called him if he wanted to.
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He stated that complainant was the victim in this case and he was examined to unfold the case. Therefore, it was not necessary to call other persons to repeat the evidence relating to the incident. He submitted that the State is entitled to decide which witnesses are necessary to be called to prove its case. He submitted that all the relevant and necessary witnesses have been examined by the prosecution; therefore, no adverse inference can be drawn against the State for not examining the uncle of injured.
Prosecution has cited as many as eleven (11) witnesses in the list of witnesses. However, this list did not include Mr. Attaullah, uncle of the injured/complainant.
At this stage, it would be advantageous to refer Section 114 of the Indian Evidence Act. It reads as under:-
114 Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustrations The Court may presume--
(g) That evidence which could be and is not produced would, if produced, be unfavorable to the person who withholds it;
Injured/complainant testified that on 29 October 2014, he was going to Gazipur Mandi on his Scooter. At about 07:30 a.m., when he reached near Kanti Nagar Red Page 13 out of 26 State vs. Bhag Singh FIR No. 784/14 light, one TATA 407 came from behind and hit his scooter. As a result of which, he fell down on the road. He stated that driver of TATA 407 was driving it in a rash negligently and in high speed. He stated that his uncle Mr. Attaullah, who was also coming behind him, removed him to Dr. Hedgwar hospital in a TSR.
Name of Mr. Attaullah finds mention in the MLC as the person who brought the injured to the hospital.
I am of the view that Mr. Attaullah could and should have been called to testify about the incident. However, he was not examined by the prosecution and instead, a new witness was introduced and examined as PW5, who was none other than the brother of the injured. The injured neither in his first statement Ex.PW1/A nor in his examination-in-chief had stated anything about his brother's presence at the spot or in the hospital.
Thus, in view of the above discussion, not only does an adverse inference arise against the prosecution from his non-production as a witness in view of illustration
(g) to section 114 of the Indian Evidence Act, but the circumstance of his being withheld from the court casts a serious reflection on the truthfulness of the prosecution version.
Planted witness It was argued on behalf of the accused that PW5 was a planted witness, and thus no reliance can be placed on his testimony. Learned counsel also placed reliance on a judgment passed by the Hon'ble Supreme court of India in the case of Jarnail Singh vs. State of Punjab wherein the Hon'ble court opined that the evidence of Page 14 out of 26 State vs. Bhag Singh FIR No. 784/14 a chance witness requires a very cautious and close scrutiny and as such a witness must adequately explain his presence at the place of occurrence and if his presence at the place of incident remains doubtful, then his version should be discarded.
PW5/Furkar testified that he along with his brother (injured) was going to Gazipur Mandi. He stated that his brother (injured) was riding a scooter while he was traveling in his Santro car. He further stated that at about 08:00 a.m., near Kanti Nagar Police Chowki his brother met with an accident. He stated that accused/driver fled away from the spot with his vehicle. He stated that police came at the spot and took his brother to Dr. Hedgewar hospital while he went to Murga mandi.
Under cross-examination by the defence counsel, he stated that he chased the accused in Esteem car of a public person, who dropped him at the house of the owner of the offending vehicle. He stated that accused was brought from the house of the owner of the offending vehicle. According to this witness, accused was standing at the gate of the house.
In the present matter, I consider that the evidence of this witness was adduced in a most haphazard and unsatisfactory manner. The witness has not only contradicted himself but also his brother/injured on material points and no effort whatsoever was made by the public prosecutor to clarify the issues as they arose. The contradictions were material and affected the overall credibility of this witness.
This witness testified that he along with his brother was going to mandi. However, nowhere does PW1/injured mention that his brother was also going to mandi.
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Instead, he stated that he was going alone to mandi and his uncle Mr. Allaullah reached at the spot after the incident and took him to hospital in a TSR. Had PW5 been actually present at the spot, he would have taken his injured brother in his Santro car and his name must have appeared in the first statement Ex.PW1/A of the injured.
Further, this witness claimed to have chased the accused in an Esteem car. If he was driving the santro car at the time of accident, why he followed the accused in another car? What prevented him from following the accused in his own santro car? These questions keep on gaping at the Court and were not clarified during trial.
He testified that after the accident, accused went to his owner's house and from where he was apprehended. Whereas, as per the admitted statement Ex.PW1/A, injured was removed to the hospital in a TSR by the accused and his uncle Mr. Attaullah.
Further, he not only contradicted his brother/injured but also the IO. IO/PW10 testified having met him in the hospital. IO stated that he along with Mr. Furkan went to the place of accident where accused also came and he arrested him at the instance of Mr. Furkan.
Thus, doubt is created in the mind of the court with regard to the role of PW5 and, consequently, his presence at the time of the accident. In my view, the contradictions in the evidence are glaring and no attempt was made by the learned prosecutor to clarify the evidence.
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I find this witness a wholly unreliable witness and accordingly, his testimony is discarded in toto.
Identity of accused Bhag Singh as the driver of the offending vehicle A successful prosecution of a criminal action largely depends on proof of two things: the identification of the author of the crime and his actual commission of the same. An ample proof that a crime has been committed has no use if the prosecution is unable to convincingly prove the offender's identity.
In the absence of proof beyond reasonable doubt as to the identity of the culprit, the accused's constitutional right to be presumed innocent until the contrary is proved is not overcome, and he is entitled to an acquittal, though his innocence may be doubted. The constitutional presumption of innocence guaranteed to every individual is of primary importance, and the conviction of the accused must rest not on the weakness of the defence he put up but on the strength of the evidence for the Prosecution.
Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the offence.It was argued on behalf of the State that evaluating complainant's evidence as a whole, he was a credible and reliable witness who told the truth. In support of his arguments, learned APP for the State relied on the evidence of his brother as sufficient corroboration of the complainant's evidence.
It is the case of the prosecution that after the accident, driver came to the injured and disclosed his name as Bhag Singh.
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The complainant in his previous admitted statement/Ex.PW1/A stated "..चचलक ससट सस उतर कर आयच... मस रस चचचच व चचलक TSR सस मम झस हस डगस वचर हहसससटल लस आयस और.................. चचलक नस असनच नचम भचग ससस ह बतचयच".
However, when he entered the witness box to testify about the incident, he omitted the same. Though he identified the accused Bhag Singh in the court as the driver of the offending vehicle, however, he has not stated anything as to how he identified the accused in the court.
A bald statement that the accused is the person who committed the crime is not enough. He should have stated by what features, marks or indications he identify the accused whom he claim to recognise. It was the duty of the prosecution to elicit relevant factors from the complainant to establish reliable identification. However, the prosecution has failed to discharge its duty.
It was stated by the learned APP for the State that complainant had disclosed the name and address of the accused in his statement Ex.PW1/A, which is sufficinet to establish the identity of the accused.
It is true that in his first statement/ Ex.PW1/A, the complainant had mentioned the name, parentage and address of the driver, however, while testifying in the court, he has not stated anything that accused himself disclosed his name, parentage and address to him. One wonders how a person who has met with an accident could have remembered the details such as parentage and address of the driver. This Court therefore is not certain from his evidence that accused Bhag Singh was the same person who was driving the vehicle at the time of accident.
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IO has also not impressed this court. He claimed to have arrested the accused at the instance of Mr. Furkhan, brother of the injured. He testified that from the hospital, he went to the place of accident where accused also came and Mr. Furkan identified him as the driver of the offending vehicle and he arrested him. His testimony was belied by his own document i.e. the arrest memo Ex.PW4/C, wherein in column 5, the place of arrest is mentioned as "Hedgewar hospital". It shows that IO was out to speak patent lies in the Court.
In view of the different versions of events given by the complainant/injured and IO, this Court cannot conclude that his identification as the driver of the offending vehicle is proved beyond a reasonable doubt.
Rash or negligent driving Even if it is presumed that accused Bhag Singh was indeed the driver of the offending vehicle, still the factum of rash and negligent driving has to be proved by the prosecution which is sine qua non for convicting a person under section 279/338 IPC.
Section 279 IPC deals with rash and negligent driving. It reads as under:
279. Rash driving or riding on a public way - 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 of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both"
Page 19 out of 26 State vs. Bhag Singh FIR No. 784/14 To constitute an offence under section 279 IPC, it must be proved that the person was driving or riding the vehicle in a rash or negligent manner.
Sec. 338 IPC reads as under:-
338. Causing grievous hurt by act endangering life or personal safety of others.--Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Before a person is held guilty of the offence, following ingredients need to be established:
a) Causing grievous hurt to a person.
b) Grievous hurt should be the result of an act.
c) Such act ought to have been rash and/or negligent.
d) The intensity of commission of such an act ought to endanger human life or the personal safety of others.
To prove rash or/and negligent driving, prosecution has examined two witnesses.
The entire edifice of the prosecution is the statement of the injured Mr. Mumtaz and his brother Mr. Furkan.
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Therefore, to prove rash and negligent driving, both these witnesses were summoned to testify about the accident. However, testimony of PW1 Furkan has already been discarded.
Let us examine the testimony of PW1/injured.
Injured Mumtaz entered the witness box as PW1 and stated that accident was caused by the TATA 407 According to this witness, driver of the offending vehicle was driving it at a very fast speed and in rash and negligent manner.
The testimony of injured/PW1 shows that accused was driving the vehicle:
A. at a high speed; and B. in a rash and negligent manner.
Now let us discuss these two facets in detail.
Fast/high speed It was argued on behalf of State that the very fact that PW1 has categorically stated that the offending vehicle was being driven at a fast speed is sufficient to infer that the accident was caused on account of rash and negligent driving on the part of the accused.
The Hon'ble High Court of Delhi in the case of Abdul Subhan vs State (NCT of Delhi) 133 (2006) DLT 562 observed as under:-
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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 v. Satish (supra) 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 offences under Section 337, 338 and 304A IPC after 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 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 favor 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". .....
Though PW1 has stated that accused was driving the vehicle at high speed, but he has not stated as to what he meant by "high speed". Whether a vehicle is being driven fast or not depends upon the notion of a person. PW1 has not been asked to Page 22 out of 26 State vs. Bhag Singh FIR No. 784/14 clarify as to what according to him could be the speed at which the vehicle was being driven at the time of accident.
Thus, except the oral testimony of PW1, there is no other evidence on record, either direct or circumstantial, to show that the offending vehicle was being driven at a high speed. Nor there is anything to show as to what was the speed limit of the road that parties had been travelling in or at what speed the scooter or TATA 407 were moving at the time of accident.
At this stage, it would be advantageous to refer a judgment passed by the Hon'ble High Court of Delhi in the case of Bal Kishan vs State decided on 6 June 2008. In this case also the eye witness was not cross-examined on behalf of the accused. Relevant part of the judgment reads as under:-
"18. It is also relevant to take into consideration the observations made by the learned Single Judge of this Court in Abdul Subhan Vs. State (NCT of Delhi) 2007 (4) JCC 3148, based on the decision of the Apex Court in State of Kernataka Vs. Satish that "Merely because the truck was being driven at a „high-speed‟ does not be speak of either „negligence‟ or „rashness‟ by itself." Except the evidence of PW-5, who was admittedly not cross-examined, there is no evidence on record to show that the vehicle was being driven at a high speed...
19. For the reasons stated above, the judgment and order of conviction 10.10.2007, 27.10.2007 and the judgment dated 17.12.2007 are set aside. Petitioner is acquitted..."
Rash and/or negligent manner It is stated by the learned defence counsel that while PW1 had claimed that the TATA 407 was being driven in rash and negligent manner, he had not explained as Page 23 out of 26 State vs. Bhag Singh FIR No. 784/14 to on what basis he had arrived at such a conclusion. He also place reliance on a judgment passed by the Hon'ble High Court of Delhi in the case of Vinod Kumar vs. State decided on 13 th October, 2011 while dealing with the similar type of evidence, has held as under:-
"7. No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one. .."
I am of the view that there is no cogent evidence that the offending vehicle was being driven rashly and negligently except the bald statement of PW1 that vehicle was being driven in rash and negligent manner. Though, while deposing in court, PW1 improved his version and stated that accused suddenly took right turn in high speed. However, he was not corroborated by direct or circumstantial evidence. No skid marks or tyre marks have been obtained of the spot to indicate that the vehicle was being driven at a high speed and it suddently took right turn at high speed.
The IO has not even taken the photographs of the vehicles involved in the collision or the site and surrounding areas so that the exact topography could have been easily discerned by the court.
Page 24 out of 26
State vs. Bhag Singh FIR No. 784/14
Place of accident not proved beyond reasonable doubt Criminal law was set into motion by the DD Entry No. 8-A wherein the place of accident was mentioned as "Amar Palace, Jheel Khuranja, behind Geeta Colony police station". However, when the IO went to the alleged place nothing was found there. Thereafter, he went to hospital and recorded the statement of injured wherein he disclosed the place of accident as under: "Road No. 57, Kanti Nagar Red Light". No attempt was made to clear the confusion regarding the place of occurrence. IO merely stated that wrong address was mentioned in the DD, which was not sufficient to clear the doubt.
IO testified that he seized both the vehicles from the place of accident. This is also belied by the seizure memo Ex. PW 4/B, wherein it is mentioned that the vehicle bearing number DL-1LM-7027 was seized from Kanti Nagar Extension.
Further, the IO has claimed to have prepared the site plan at the instance of the brother of the injured. However, he (brother of the injured) has denied the same.
Even the site plan Mark Y that is produced is of a very unsatisfactory nature. Neither the tyre skid marks nor the point at which the vehicles come to rest after the collision was demarcated in the site plan.
Thus, it is not proved beyond reasonable doubt that accident had occurred near Kanti Nagar red Light.
Page 25 out of 26
State vs. Bhag Singh FIR No. 784/14
Result
The prosecution has failed to establish beyond reasonable doubt that accused Bhag Singh was driving the offending vehicle on DL-1LM 7027 at the time of accident. Even if it is presumed that the accused Bhag Singh was the person driving the offending vehicle at the relevant time, still there is no evidence to prove that he drove the truck rashly and negligently. In absence of any evidence on these two counts, accused BHAG SINGH is entitled to acquittal.
Consequently, accused BHAG SINGH is ACQUITTED of the crime charged.
File be consigned to record room after due compliance.
Announced in open BABITA Digitally signed by BABITA
PUNIYA
Court on 18th November 2021
Location: Court No.3,
PUNIYA Karkardooma Courts, Delhi
Date: 2021.11.18 16:33:43 +0530
(Babita Puniya)
MM-05, East District,
Karkardooma Courts/ Delhi/18.11.2021
This judgment contains 26 pages and each page bears my signature.
(Babita Puniya) MM-05, East District, Karkardooma Courts/ Delhi/18.11.2021 Page 26 out of 26