Delhi District Court
State vs . Rai Singh on 2 December, 2013
State V. Rai Singh
IN THE COURT OF SHRI SANDEEP GUPTA
METROPOLITIAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR no. 334/98
PS Narela
U/s. 279/338/304A IPC
State Vs. Rai Singh
Date of Institution of case:-20.04.99
Date on which Judgment reserved:- 25.10.13
Date on which Judgment pronounced:- 02.12.13
JUDGMENT
Unique ID no. : 02401R0117621999
Date of Commission of offence : 09.08.98
Name of the complainant : Sunil, s/o. Rajender Sngh, r/o. H.
no. 652, Village Bawana, Delhi
Name and address of the accused : Rai Singh, s/o Diwan Singh, r/o.
Village Balwada, PS Cheeka Distt
Kaithal, Haryana
Offence complained of : 279/338/304AIPC
Plea of accused : Not guilty
Date of order : 02.12.13
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:-
That on 09.08.98 at 08.30 p.m. on Bawana Kanjhawala Road near Canal, Narela, the accused was found driving a vehicle bearing no. PB-11K-3295 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the said truck in the said manner, it hit a Maruti Car bearing registration no. HR 29B 5932 and caused grievous injuries to one Sunil s/o. Sh. Rajender and caused death of one Mukesh Kumar (not amounting to culpable homicide) and thereby committed an offence punishable u/s. 279/338/304A IPC and on the basis of the said information, the present FIR no. 334/98 page 1 of pages12 State V. Rai Singh State V. Rai Singh FIR bearing no. 334/98 was registered at Police Station Narela and the accused Rai Singh was arrested in the present case and he has been sent to face trial for the offences under Section 279/338/304 A IPC.
2. After investigation, charge sheet was filed against the accused. The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C.) and notice was framed upon him vide order dated 24.07.99, to which he has pleaded not guilty and claimed trial.
3. The prosecution was thereafter given opportunity to prove the accusation against the accused and examined nine witnesses in evidence.
4. PW 1 is HC Rattan Singh, no. 200 NW, PS Narela, Delhi. He is the Duty Officer who on receipt of rukka sent by IO SI Bhagwan Singh recorded the present FIR and has proved the same vide Ex. PW 1/A.
5. PW 2 is Sunil, s/o. Sh. Rajender Singh, aged 16 years, r/o. H. no.
652, Pana Bagwan, Bawana, Delhi. He is one of the eye witnesses of the accident.
6. PW 3 is Mahesh Kumar, s/o. Sh. Rajinder Singh, r/o. H. no. 652, Bawana, Delhi. He is also the eye witness of the accident who has deposed about the incident and investigation conducted by the police.
7. PW 4 is Ct. Inderpal, no. 1869, PS Bawana. He deposed that on 09.08.98 he alongwith the IO and HC Vinod reached at Kanjhawala road near Canal on receiving a DD no. 30 regarding the accident and on reaching at the spot they found one Maruti Car bearing no. HR 29B 5923 and truck bearing no. PB 11K 9523 in accidental condition. Thereafter, IO after leaving him at the spot left for the hospital alongwith Ct. Vinod. At about 10.00 p.m. They took the vehicle to the police station through private crane. IO prepared the seizure memo of Maruti Car and truck vide Ex. PW 4/A and Ex. PW 4/B. On the next day he accompanied the IO to the hospital where the postmortem of FIR no. 334/98 page 2 of pages12 State V. Rai Singh State V. Rai Singh the deceased was conducted. After conducting the postmortem of the deceased, dead body was handed over to the relatives of the deceased vide handing over memo Ex. PW4/C.
8. He has not been cross examined despite given opportunity.
9. PW-5 Ct. Vinod Kumar, no. 1898, PS Bawana. He deposed that on 09.08.98 on receipt of a call/ DD no. 30 regarding the accident through wireless he alongwith IO SI Bhagwan Singh and Ct. Inderpal went to Kanjhawala road near Canal, where they found one Maruti Car bearing no. HR 29B 5923 and truck bearing no. PB 11K 3295 in accidental condition. Injured was taken to the hospital, leaving Ct. Inderpal at the spot and he alongwith IO went to Jaipur Golden Hospital. IO prepared the rukka and handed over the same to him for for registration of the FIR and he got the FIR registered at the police station and came back at the spot with the copy of the FIR and endorsed rukka and handed over the same to the IO. The truck and the car were taken to the police station vide memo Ex. PW 4/A and PW 4/B.
10. On 13.08.98 the accused came to the police station and the accused was arrested by the IO.
11. He has not been cross examined by the accused despite given opportunity.
12. PW-6, Dr.K Goel, SMO, Mortuary, Subzi Mandi. He conducted the postmortem on the dead body of the deceased Mukesh Kumar and he has proved his detailed report as Ex. PW 6/A and he has opined the death of the deceased Mukesh Kumar due to hemothoroax with Hemorrhagic shock consequent upon heart and liver injuries with blunt force impact and the time since death was opined to be 17 hours.
13. He has been cross examined by the accused whereby he deposed that all the injuries were fresh in duration of 12 hours and were possible if the vehicle directly hits and the person falls on the hard surface.
14. PW-7 is Mr. Shashi Bhushan, Sr. Executive Medical Record FIR no. 334/98 page 3 of pages12 State V. Rai Singh State V. Rai Singh Deptt, Jaipur Golden Hospital, Sector 3 Rohini. He is the record clerk who proved the MLC no. 3372 and 3373 dated 09.08.98 of injured and deposed that the said MLC were prepared by Dr. Ashish Chandra and opinion about the nature of the injuries was given by Dr. Raj Kumar. He further deposed that Dr. Raj Kumar has left the hospital. He has proved the said MLC vide Ex. PW 7/A and PW7/B bearing the signatures of Dr. Ashish and Dr. Raj Kumar. He has also identified the signatures and handwriting of Dr. Ashish and Dr. Raj Kumar as he had seen them writing and signing during the regular course of his official duties.
15. During his cross examination he admitted that the said MLCs were not prepared in his presence or that he had no personal knowledge of the case.
16. PW-8 Retd. SI Jai Singh, r/o. Village Hathlana, Distt Karnal, Haryana. He mechanically inspected the offending truck bearing no HR 29B 5923 and the truck bearing no. PB 11K 3295 and gave his reports vide Ex. PW 8/A and PW 8/B respectively and opined both the vehicles to be fit for road test.
17. PW-9 is Rajesh Garg, s/o. Sh. Lilu Ram Garg, r/o. Kothi no. 5, Patiala, Punjab. He is the registered owner of the truck bearing registration no. PB 11K 3295 who deposed that his driver Rai Singh was driving the abovesaid truck at the time of the accident and produced the accused Rai Singh at PS Narela and handed over the documents i.e. insurance, RC of the offending truck as Ex. PW 8/A and PW 8/B repectively. He further deposed that he got his truck released on superdari vide Ex. PW 9/B but he did not bring the truck before the court but he produced the photograph and CD and proved the same as Ex. P1 to P8 and P9.
18. He has been cross examined by the accused.
19. It is the matter of record that after examination of all the material witnesses, the prosecution evidence was closed vide order dated FIR no. 334/98 page 4 of pages12 State V. Rai Singh State V. Rai Singh 11.04.13.
20. Subsequent to the recording of statement of witnesses, statement of accused was recorded and all the incriminating evidence coming on record was put to the accused in which he has submitted that he has been falsely implicated in the present case. He has further submitted that he doe snot want to lead defence evidence and thereafter the matter was fixed for final arguments.
21. I have heard the arguments of Ld. APP for the state, Ld. Counsel for accused as well as perused the record.
22. In the present matter, the accused has been charged for the offences U/s. 279/338/304A IPC. To prove a case U/s. 279/338/304A IPC against the accused, the prosecution has to prove the following facts:-
a). that the accused was driving the Truck bearing registration no. PB 11K 3295 in a rash and negligent manner.
b). that while driving the said vehicle in the aforesaid manner, he struck against one Maruti Car bearing registration no. HR 29B 5932 and caused grievous injuries to one Sunil and death of one Mukesh Kumar (not amounting to culpable homicide).
23. In the present matter, the testimony of injured/complainant/eye witness is a material one.
24. Now, coming to the testimony of PW 2 Sunil, who has deposed that on 09.08.98 he alongwith his brother Mahesh, one Pawan and Mukesh were going in Maruti Esteem car bearing registration no. HR 29B 5923 and when they reached near Shikaria Pul, one truck bearing registration no. PB 11K 3295 which was coming on a very high speed and in a rash and negligent manner struck their Car from the right front side though the driver of the said car tried his best to save the accident and he, Pawan and Mukesh received injuries and they were taken to Jaipur Golden Hospital where Mukesh died at the spot. He further denied to identify the accused as the driver of the said offending truck FIR no. 334/98 page 5 of pages12 State V. Rai Singh State V. Rai Singh while stating that since it was about two years ago he could not recollect the driver of the offending truck.
25. During his cross examination by the Ld. APP he neither admitted nor denied the suggestion that accused who was the driver of the offending vehicle was present in the court and he denied the suggestion that he was willfully denying to identify the accused being won over by the accused.
26. During his cross examination on behalf of the accused, he stated that he alongwith three other persons were going to Kanjhawala from Bawana. He further deposed that they had started from Bawana at about 08.30 p.m. He further deposed that Mukesh was driving the said Esteem Car while Pawan was sitting on the front seat adjacent to the driver's seat and on the rear seat he and Mahesh Kumar was sitting. He further admitted that since they were returning from marriage party Mukesh might have been drunk. He denied the suggestion that the accident occurred due to the rash and negligent driving of Mukesh or that the driver of the offending truck was neither rash nor negligent. He denied to recall if the police obtained his signatures on some documents or not. He further stated that Mukesh was talking to Pawan while driving the said car. He admitted that the number of the offending truck was told to him by the police.
27. As far as PW-3 Mahesh Kumar is concerned he deposed that on 09.08.98 he alongwith his brother Sunil, one Pawan and Mukesh were going to Kanjhawala on Esteem Car bearing no. HR 29B 5923 of Mukesh. When they reached near Shikaria Pul, one truck bearing no. PB 11K 3295 was seen coming from the front side at a high speed and in a rash and negligent manner and hit their Esteem Car from right front side although Mukesh tried his best to save the accident. He further deposed that due the said accident, himself, Sunil, Pawan and Mukesh received injuries but he did not go to hospital. Mukesh died at the spot. All the injured were removed to Jaipur Golden Hospital. The accident FIR no. 334/98 page 6 of pages12 State V. Rai Singh State V. Rai Singh occurred due to rash and negligent driving of the accused. Though accused driver of the offending truck was arrested and his Jamatalashi vide memo Ex. PW 3/A was conducted, however, he could not identify the accused being lapse of the time.
28. During his cross examination by the Ld. APP he neither admitted nor denied that the accused was present in the court was driving the offending vehicle.
29. During his cross examination he deposed that on 09.08.98 he, Mukesh, Pawan and Sunil were going from Bawana to Kanjhawala. They had started from Bawana at 08.00 p.m. to 08.30 p.m. He further deposed that Mukesh was driving the vehicle while Pawan was sitting on the front seat adjacent to the driver's seat and on the rear seat, he and Sunil were sitting. He admitted that all of them were talking to each other. He admitted that Mukesh was drunk while driving the vehicle and that number of the truck was told to them by the police when they went to the police station. He could not recollect if police took his signatures on some blank papers or not. He also failed to recollect if the site plan was prepared by the police or not in his presence. He however admitted that seizrue memo Ex. PW 4/A ws prepared in his presence. He also admitted that jamatalashi Ex. PW 3/A was not prepared in his presence. He also denied that the accused was arrested in his presence or that arrest memo was prepared in his presence. During reply to a leading question he admitted that the accident took place due to negligence of Mukesh as well as the truck driver.
30. I have given my thoughtful consideration to the entire record as well as depositions of all the prosecution witnesses. In the present case, prosecution has examined two eye witnesses i.e. PW2 Sunil Kumar and PW3 Mahesh Kumar. It is note worthy that apart from saying that the offending truck hit the Maruti Esteem Car in which they were travelling from the right side and that the truck was being driven in FIR no. 334/98 page 7 of pages12 State V. Rai Singh State V. Rai Singh a rash and negligent manner, there is no mention as to exactly in what way the accident occurred on the alleged day and time and the details become all the more necessary and imperative to mention since as per the version of the injured, the truck hit the Car from the right side but there has been no explanation as to in what manner the offending vehicle was being driven by the accused such as whether it was being driven in a zig zag manner or was it coming on the wrong side etc. It is also upon the prosecution to establish as to what precautions were taken by the driver of the victim vehicle if it was visible that another vehicle was coming from the opposite side of the road from front side. There is also no mention as to whether the road was having a divider or what was the width of the road or exactly in what way, the vehicle was being driven rashly or negligently? Moreover, the site plan has also not been exhibited in the present case and is unclear about the place and the manner in which both the vehicles were found in accidental condition. There is no explanation of any particular direction in which the vehicles were going and in short, it is absolutely not clear as to how the accident occurred? Even PW-2 Sunil Kumar and PW3 Mahesh Kumar failed to identify the accused as the driver of the offending vehicle and even PW-3 has admitted that the accident occurred due to fault of the both the drivers i.e. Mukesh as well as the driver of the offending truck. It is also seen that both the eye witnesses have admitted that Mukesh Kumar i.e driver of the Esteem Car was under influence of liquor and driving the vehicle in drunken state and therefore, this fact cannot be ignored or bypassed lightly while deciding about the fault of the accused in driving the offending vehicle during the time of the accident. Merely saying that the vehicle was being driven at a high speed and in a rash and negligent manner without specifically describing the details and various other factors connected with the same is not sufficient to sustain the conviction of the accused. It is another thing that many other prosecution witnesses have not been FIR no. 334/98 page 8 of pages12 State V. Rai Singh State V. Rai Singh cross examined by the accused but it is settled law that the case of the prosecution has to stand on its own footing and it has to sustain on its own evidence.
31. Further, I would like to refer to judgment Devender Vs. State 185(2011)DLT655, passed by High Court of Delhi, wherein, it is held that:
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 vehicle may create a presumption and in such 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 consequence. 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.
32. Further, I would also like to emphasize on the judgment Ram FIR no. 334/98 page 9 of pages12 State V. Rai Singh State V. Rai Singh Avtar Vs. State of Rajasthan, II (2006) ACC 438, passed by Rajasthan High Court wherein it is held that:
Thus, the essential ingredients 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 the individual in particular, 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 (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 the 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 Vs. The State I (1994) ACC 476:
1994 Cri. LJ 389 (Qri.), 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.
9.Thus, in the present case the prosecution has failed to prove the rash and negligent manner as required by Section 279 IPC has not been proved beyond a shadow of doubt.
33. Therefore, in view of the law laid down in the above mentioned FIR no. 334/98 page 10 of pages12 State V. Rai Singh State V. Rai Singh judgements, the onus is upon the prosecution to establish the rashness or negligence in driving by the accused in a very specific and detailed manner, in which the prosecution has miserably failed in the present case. As already discussed above, even the site plan placed on record is quite vague and keeping in view the deposition of eye witnesses Sunil Kumar and Mahesh Kumar that the offending vehicle was coming from the front side, it becomes all the more significant and imperative to show as to how actually the accident occurred and if the vehicle was coming from the front side, then what precautions were taken by the driver of the victim vehicle so as to safeguard itself and prevent the accident. It should have specifically come on record as to what actually was the width of the road or whether the offending vehicle was coming from the wrong side but nothing like this has come on record in the deposition of eye witness. It is further noteworthy that PW 2 and 3 deposed that the accused was not arrested in their presence. As already discussed above, non identification of the accused by both the eye witnesses and non examination of the IO has also been fatal to the case of the prosecution. In nutshell the case of prosecution does not inspire enough confidence to sustain the conviction of the accused in the present case.
34. All other witnesses examined by the prosecution are formal in nature and admittedly, they are not the eye-witnesses of the accident in question and no amount of their evidence can lead to the conviction of the accused. The prosecution has failed to prove any rash and negligent act by the accused, which is sine qua non for convicting the accused U/s. 279/338/304A IPC, therefore, I am of the view that benefit of doubt has to be given to the accused.
35. Hence, after scanning the entire record, I have no hesitation to hold that the prosecution has failed to prove the case against the accused, beyond reasonable doubt and accordingly, benefit of doubt is given to the accused. The accused Rai Singh is acquitted for the FIR no. 334/98 page 11 of pages12 State V. Rai Singh State V. Rai Singh offence under Section 279/338/304A IPC.
36. At request, previous bail bond is extended in terms of section 437 A Cr.P.C.
37. File be consigned to Record Room after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini:Delhi 02.12.13.
ANNOUNCED IN THE OPEN COURT TODAY i.e on 2nd December, 2013 FIR no. 334/98 page 12 of pages12 State V. Rai Singh