Delhi District Court
Mohammed Aynuddin @ Miyan vs State Of Andhra Pradesh, 2000 Air (Sc) on 20 December, 2013
IN THE COURT OF SHRI SUSHIL ANUJ TYAGI,
METROPOLITAN MAGISTRATE: ROHINI COURTS, DELHI
FIR No. : 237/01
P.S. : Kanjhawala
Unique ID No. : 02404RO374222010
State
Vs.
Shiv Shankar @ Shanker S/o Chintupati Yadav
R/o Village Bampur, Thana Manda Road,
Dist Allahabad UP
Present address : House no. 171 A, Raghuvir Vihar,
Mubarak Pur Road, Prem Nagar-III, Delhi.
Date of institution of case : 21.08.2002
Date of reserving the judgment : 19.12.2013
Date of pronouncement of judgment : 20.12.2013
JUDGMENT
1. S. No. of the Case: 490A/2/02 2. Date of Commission of Offence: 27.09.2001 3. Date of institution of the case: 21.08.2002 4. Name of the complainant: SI Ramesh Chand 5. Name of the accused: Shiv Shankar @ Shanker 6. Offence complained or proved: 279/338/304 A IPC 7. Plea of Accused : "Not Guilty" 8. Final Order: Acquitted 9. Date of Final Order: 20.12.2013 FIR NO. 237/01 PS Kanjhawla Page 1 of 14 BRIEF FACTS AND REASONS FOR DECISION OF THE CASE
1. Succinctly, the facts of the case as per prosecution are that on 27.09.2001 at about 7 p.m. at Manjarai Karala Road Delhi accused Shiv Shankar was driving the tanker no. HR-38-4788 in a manner so rashly and negligent as to endanger human life and personal safety of the others and struck his vehicle against scooter bearing no. HR-14A-7564 and caused death of Satbir Singh s/o Bhim Singh not amounting to culpable homicide. The accused was arrested, case property was deposited in malkhana and upon completion of investigation challan was prepared u/s 279/304-A IPC and filed in court for trial.
2. The copies of charge sheet and annexed documents were supplied to accused in due compliance of Section 207 Cr.P.C.
3. Prima facie case having been made out, charge for offence U/s 279/304 A IPC was framed against the accused on 08.10.2003 to which he pleaded not guilty and claimed trial and the case was adjourned for recording of prosecution evidence.
4. In order to prove its case, prosecution has examined the following witnesses:-
PW-1 HC Harnam Singh deposed that on 28.09.2001 he was posted as duty officer and has proved the FIR Ex. PW 1/A. PW-2 Sh. J.S.Pawar, Engineer Automobiles deposed that on 28.09.2001 he mechanically inspected one tanker no. HR-38-4788 and scooter two wheeler no. HR-14 A-7564 on the request of SI Ramesh Chander and proved his report Ex.FIR NO. 237/01 PS Kanjhawla Page 2 of 14
PW 2/A and Ex. PW 2/B and gave his opinion that both the vehicles got fresh damages.
PW-3 Niranjan Singh deposed that on 03.10.2001 he went to SGM Hospital Mortuary and identified the dead body of his nephew Satbir Singh. IO recorded his statement Ex. PW 3/A to this effect.
PW-4 Ram Karan deposed that on 27.09.2001 he alongwith his nephew Satbir S/o Bhim Singh were going to Jhajjar on a two wheeler scooter. When they reached at Majri Karala Road, one water tanker bearing no. HR 38 4788 came in a rash and negligent manner and hit their scooter and due to which they both fell down and received injuries on head and shoulders. He further deposed that thereafter police came at the spot and took them to the SGM Hospital. He further deposed that accused Shiv Shanker was the driver of the aforesaid water tanker at the time of accident and due to his negligence, they received injuries. IO recorded his statement Ex. PW 4/A .
PW-5 Rajbir Singh deposed that on 27.09.2011 he identified the dead body of his brother Satbir Singh at Maharaja Agarsen Hospital and IO recorded his statement Ex. PW 5/A. PW-6 Ct. Ramdhari deposed that on 27.09.2001 he alongwith SI Raj Kumar reached for investigation at the spot and found one vehicle i.e. scooter bearing no. HR-14A-7564 and one water tanker bearing no. HR-38-4788. He further deposed that SI Raj Kumar left for SGM Hospital and he remained at the spot. Thereafter after some time SI Raj Kumar came back at the spot and prepared the tehrir on DD no. 50B and handed over the same to him for getting the case FIR NO. 237/01 PS Kanjhawla Page 3 of 14 registered. He got the FIR registered and came back at the spot and handed over the same to Second IO SI Ramesh. He further deposed that ASI Ramesh Chand seized the scooter and water tanker vide memo Ex. PW 6/A and Ex. PW 6/B. Thereafter they took the case property to PS and deposited the same in malkhana.
PW-7 SI Raj Kumar deposed that on 27.09.2001 he alongwith Ct. Ramdhari went to Mubarak Pur Karala Road in front of Royal Public School and found one scooter no. HR-14A-7564 and one water tanker bearing no. HR-38-4788 in accidental condition. He came to know that both the injured were taken to SGM Hospital in CAT Ambulance. He further deposed that in the hospital he received the MLC of one Satbir and one another MLC of unknown person. On both the MLC it was opined that the patient is unfit for statement. He further came to know that both the injured were taken to Trauma center. He deposed that after sometime SI Ramesh Chander came to the hospital and handed over both the MLCs to SI Ramesh Chander.
PW-8 HC Ranbir Singh deposed that on 28.09.2001 he joined the investigation with IO SI Ramesh Chand. Complainant Ram Karan was present at the police station. Meanwhile, Ashok Kumar produced his driver Shiv Shanker @ Shanker. Initially IO inquired complainant Ram Karan and recorded his statement Ex. PW 4/A and then proceeded towards the spot i.e. Majri Karala Road, Delhi. He remained in the police station alongwith accused. After returning back IO inquired the accused and seized the documents of the offending tanker vide memo Ex. PW 8/A. Driving licence of accused was also seized by the IO vide memo Ex. PW 8/B. He further deposed that thereafter accused was arrested vide arrest memo Ex. PW 8/C and his personal search was conducted vide memo Ex. PW 8/D and FIR NO. 237/01 PS Kanjhawla Page 4 of 14 thereafter accused was released on bail .
PW-9 SI Ramesh Chand deposed that on 27.09.2001 one DD No. 50 B was marked to SI Raj Kumar. He alongwith Ct. Ramdhari reached at place of accident at Karala Majri Mubarak Road. Meanwhile, concerned SHO directed him to attend this call. He immediately reached at the spot. Where he found that one water tanker bearing no. HR-38-4788 and one scooter no. HR-14A-7564 in accidental condition. Ct. Ramdhari was also present at the spot. Ct. Ramdhari disclosed that SI Raj Kumar already left to the SGM Hospital. He also reached at SGM Hospital where he met SI Raj Kumar who handed over DD No. 50 B, Ex. PW 9/A and MLC no. 2805 and 2806 of both the injured persons. However, in the further investigation the original copy of MLC NO. 2805 was misplaced when it was submitted for the result in the hospital. Copy of MLC NO. 2805 is marked X and MLC no. 2806 of Satyabir is Ex. PW 9/B. Both the injured were not fit for the statement at that time as per the opinion of the doctor on their respective MLCs. First injured was Ram Karan whose MLC is mark A in the name of unknown and he was remained in SGM Hospital but other injured namely Satyabir was referred to the Trauma Center at Kashmere Gate. He reached at Trauma Centre, near Kashmere Gate where injured Satbir was still not fit for statement and admitted in ICU. He returned back to the spot and met with Ct. Ramdhari. No eye witness met him in the hospital or at the spot. On the basis of DD No. 50 B, he prepared the rukka Ex. PW 9/C and got the FIR registered through Ct. Ramdhari. He further deposed that thereafter he seized both the aforesaid vehicles vide memo Ex. PW 6/A and Ex. PW 6/B. After that he returned back to the police station. Meanwhile, owner of the offending water tanker namely Ashok reached there with the accused. On the same time, injured Ram FIR NO. 237/01 PS Kanjhawla Page 5 of 14 Karan also reached at the police station. At the police station injured Ram Karan identified the accused Shiv Shanker as driver of offending water tanker. He recorded his statement Ex. PW 4/A and then he alongwith the complainant reached at the spot and prepared the site plan Ex. PW 9/D at the instance of complainant. He returned back to the police station and then interrogated the accused. He seized accused's driving licence vide memo Ex. PW 8/B. He also seized the photocopy of RC and insurance of water tanker from Ashok Kumar vide memo Ex. PW 8/A. Then he arrested the accused vide arrest memo already Ex. PW 8/C and personal search was also conducted vide personal search memo Ex. PW 8/D and thereafter accused was released on bail. Mechanical inspection of both the vehicles were got conducted vide inspection report already Ex. PW 2/A and Ex. PW 2/B. Later on the offending vehicle was released on superdari vide superdarinama Ex. PW 9/E as per the orders of SHO. He further deposed that when he reached at Trauma Center, he came to know that injured Satyabir was already discharged and taken away by his relatives. He came to know that Satyabir was taken to Maharaja Agarsen Hospital for further treatment. He remained unfit for the statement and on 03.10.2001 he expired. He received the information vide DD No. 8 A, same is Ex. PW 9/F. After that he collected the dead body from Maharaja Agarsen Hospital, Punjabi Bagj, Delhi and took it to the SGM Hospital in Mortuary and got identified the dead body by his relatives Rajbir Singh and Nirajan Singh. He further deposed that thereafter the postmortem on the dead body of Stayavir Singh was got conducted vide report Ex. PW 9/G. Dead body was handed over to his relative Rajbir Singh vide memo EX. PW 9/H. After completion of the investigation he prepared the charge sheet and submitted the same for judicial verdict.FIR NO. 237/01 PS Kanjhawla Page 6 of 14
PW-10 Jaipal Singh deposed that on 27.09.2001 he was present in CATS Alpha 29 and after received a call he reached at Manjari Karala Road, and took the injured to SGM Hospital.
PW-11 Dr. Komal Singh deposed that on 03.10.2001 he was HOD in SGM Hospital and conducted the postmortem on the body of Satvir Singh and found that his death was caused due to head injury which was subsequent to the road accident and proved the PM report Ex. PW 9/B.
5. The prosecution evidence was closed on 01.10.2013. The accused was examined u/s 313 Cr.P.C. on 17.12.2013 to which he pleaded his innocence and false implication. The accused wished not to lead Defence evidence.
6. I have carefully perused the case record and have heard arguments advanced by ld APP for the state as well as by ld defence counsel.
7. The accused Shiv Shanker in the present case is charged for the offence U/s 279/304A IPC on the facts that on 27.09.2001 at about 7 p.m. at Majri Karala Road Delhi he driving the tanker no. HR-38-4788 rashly or negligently and it against scooter bearing no. HR-14A-7564 and caused death of Satbir Singh s/o Bhim Singh not amounting to culpable homicide.
8. The Section 279/304A are reproduced below for reference:
Section 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 FIR NO. 237/01 PS Kanjhawla Page 7 of 14 rupees, or with both.
Section 304A. Causing death by negligence 304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
9. To prove the case against the accused the prosecution was obliged to prove the following ingredients:-
-That the accused was driving the offending tanker
-in a rash or negligent manner;
-caused death of Satbir Singh S/o Bhim Singh
-death was direct consequence of the rash or negligent driving.
10. The Hon'ble Supreme Court has defined rashness/negligence as in Mohammed Aynuddin @ Miyan Vs State of Andhra Pradesh, 2000 AIR (SC) 2511. It has been held that:-
"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.FIR NO. 237/01 PS Kanjhawla Page 8 of 14
It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution".
11. The prosecution examined as many as 11 witnesses to discharge their burden of proof and to prove the guilt of the accused. Out of these 11 witnesses, the main star witnesses is PW 4 Ram Karan who was allegedly present at the spot at the time of the accident. PW 4 Ram Karan deposed that on 27.09.2001 he alongwith his nephew Satbir were going to Jhajjar on a two wheeler scooter and when they reached at Majri Karala Road, one water tanker bearing no. HR 38 4788 came in a rash and negligent manner and hit their scooter and due to which they both fell down and received injuries on head and shoulders. Thereafter police took them to the SGM Hospital. The accused Shiv Shanker was the driver of the aforesaid water tanker at the time of accident and due to his negligence, they received injuries.
12. The incident relates to 27.09.2001 at around 7 pm and the FIR was registered on 27.09.2001 at 11.45 pm. The FIR is without name and was registered on the basis of endorsement by the IO on the DD 50B vide which the information was received from the PS. It has not come on record as to who has given the first information to the police. It is the prosecution version that the other injured Ram Karan came to the police station on 28.09.2001 and the owner of offending vehicle produced the driver accused at the police station and at the instance/identification of injured Ram Karan, IO arrested the accused. Surprisingly, the arrest memo and the personal search memo did not bear the signatures of the injured Ram Karan. If the accused was arrested at the instance of Ram Karan, then the memo should have contained the signatures of Ram Karan. It FIR NO. 237/01 PS Kanjhawla Page 9 of 14 is a serious lapse and creates a major dent in the prosecution version. To the contrary, during cross examination PW4 Ram Karan deposed that his statement was recorded by the IO in Tis Hazari courts. PW4 did not depose that he was referred to Trauma center or that was discharged on 28.9.01 or that he went to police station on 28.9.01 or that at his identification the accused was arrested.
13. It is the prosecution case that after the incident, both the injured were taken by CATS to SGM Hospital. The MLCs of both the injured reveals they were brought by different persons. MLC Ex PW9/B shows that the patient was brought by CATS Alpha 29 Jaipal Singh and MLC Mark X shows that the patient was brought by PCR HC Balwan Singh. Both the MLCs shows patient unconscious and both were referred to Trauma center. The MLC Ex PW9/B is allegedly of Satyabir aand MLC Mark X is allegedly of Ram Karan. Nothing has been shown on record which could suggest that the MLC Mark X is anyways connected to Ram Karan. No documents of trauma center are filed on record. If the condition of injured Ram Karan was such as mentioned in the MLC Mark X, then how immediately i.e. on 28.9.2001 he reached the police station is not explained. If the condition of patient was such as mentioned in MLC Mark X that he was referred to trauma center, then his appearance at the police station on the very next day appears unbelievable. No documents of trauma centre are produced to show that Ram Karan was discharged on 28.9.2001. The arrest memo being unsigned by Ram Karan also falsifies the prosecution story.
14. The deceased Satbir was admittedly driving the scooter and after accident, he was admitted to SGM and then to Trauma center and thereafter to Maharaja Agrasen Hospital where he expired on 3.10.2001. The Death summary of Satbir FIR NO. 237/01 PS Kanjhawla Page 10 of 14 Singh shows alleged history of ch. Alcholism and also history of being drunk at the time of accident. The MLC of unknown Mark X also shows smelling of alchol "+".
15. To prove the guilt of the accused, it is incumbent on the prosecution to prove that the accused was negligent and death of deceased was proximate cause of death. Ram Karan deposed as PW4 in the court and he is the main witness on whose testimony the prosecution case solely rests. There is no other ocular witness and no circumstances corroborate the version of PW4. It is not deposed by the eye witness PW4 as to in which manner the offending was being driven so as to categorize it as rash or negligent. PW4 stated that offending tanker was being driven rashly and negligently. Merely reiterating the words of section 279 or 304 A IPC is not sufficient. The manner in which the vehicle was being driven which shows that driver acted rashly or negligently must be proved. The presence of PW3 at the spot is shoddy and not completely established. His version is unreliable without corroboration and insufficient to base the conviction of accused. No other witness has been examined by the prosecution. No other medical records (of trauma center) connecting the accident with the injury to injured Ram Karan and deceased were produced before the court. Death summary of deceased shows alleged history of ch. Alcholism and being drunk at time of accident. No concrete bridge is found to connect the act of accused with the death of deceased. The Apex court while acquitting the accused in Braham Dass vs. State of H. P. , 2009 AIR SC 3181 observed:
"Section 279 IPC deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the accused FIR NO. 237/01 PS Kanjhawla Page 11 of 14 was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. The foundation in accusations u/s. 279 IPC is not negligence. Similarly in Section 304A IPC, the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304A, it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence which led to show that any negligence was involved.
16. The scheme of IPC makes rash and negligent driving as punishable. An error of judgment or mistake is not culpable. To convict the accused u/s 304A IPC rash or negligent driving must be the direct consequence of death. The Hon'ble High Court of Delhi in Mohan Shyam vs. State (NCT of Delhi), Crl. Rev. P. No. 272/2012, decided on 25.05.12 acquitted the accused on the basis of following observations:
"In order to prove the act of negligence and rashness, it must be shown that the act was done without proper regard to its consequences and without any precautions taken for ensuring the safety of others. But, from the material available on record, it is nowhere seen that the truck was being driven in a wanton fashion or by flouting any traffic rules or in a reckless manner. ......... 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; he will be deemed guilty from the start of the trial. . In the absence of any material on the record, no presumption of "rashness"
or "negligence" could be drawn by invoking the maxim "res ipsa loquitur".
17. In the present case, there is allegations that the accused was driving the FIR NO. 237/01 PS Kanjhawla Page 12 of 14 offending tanker in a rash and negligent manner and has thereby caused death of the deceased. The complicity of the accused could have been proved by the ocular evidence or circumstantial evidence. The ocular and the circumstantial evidence is insufficient to infer the guilt of accused. It is well settled law that on convict the accused on circumstantial evidence there must be complete chain of events pointing towards the guilt of the accused and no other. The Apex Court in Sharad Birdhichand Sarda v. State of Maharashtra, (AIR 1984 SC 1622) while relying on the ratio propounded Hanumant Govind Nargundkar and Anr. V. State of Madhya Pradesh, (AIR 1952 SC 343), held that onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be' established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved;
and (5) there must be a chain of evidence so complete as not to leave any reasonable FIR NO. 237/01 PS Kanjhawla Page 13 of 14 ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
18. It is well settled law that the burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. The accused has a right to maintain silence in the trial. Every accused is to be presumed innocent until proved guilty. The burden of proof on the prosecution is to prove the case by leading cogent, convincing and reliable evidence so as to prove the guilt of accused beyond reasonable doubt. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave cannot take place of proof. No evidence has come on record to prove the culpability on the part of accused. The prosecution has failed to prove the case against the accused and therefore, the accused is entitled to be exonerated.
19. The accused Shiv Shankar @ Shanker is hereby acquitted for the offences u/sec. 279/304 A IPC in the present case. Bail bonds are cancelled and sureties are discharged. Documents, if any be returned after cancellation of endorsement on the same.
File after necessary compliance be consigned to record room.
Announced in open court ( SUSHIL ANUJ TYAGI )
20th day of December, 2013 Metropolitan Magistrate,
Rohini Courts: Delhi
FIR NO. 237/01 PS Kanjhawla Page 14 of 14