Delhi District Court
That The Accident Actually Took Place vs State on 19 February, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Mahabir Singh
FIR No. 185/2008
PS Paschim Vihar
U/s 279/304A IPC
JUDGMENT
C C No. : 2470/2/10
Date of Institution : 17.12.2008
Date of Commission of Offence : 24.08.2000
Name of the complainant : HC Abhay Singh No. 138/W
Name & address of the accused : Mahabir Singh
S/o Prabhu Dayal
R/o C-3/416, Sultanpuri, Delhi
Offence complained of : 279/304A IPC
Plea of accused : Pleaded not guilty
Final Order : Acquittal
Date of reserve for judgment : 06.02.2015
Date of announcing of judgment : 19.02.2015.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1.Vide this judgment this court shall decide the present case u/s 279/304A IPC.
2.The briefly stated story of the prosecution is that on 05.05.2008, the complainant Sunil Kumar along with his elder brother Manoj Kumar were going towards Multan Nagar bus stand to catch a bus to Azadpur. At about 9.00 AM, they reached at Rohtak Road Chowk, Multan Nagar. His brother Manoj Kumar was State v. Mahabir Singh U/s 279/304A IPC 1/12 FIR No. 185/2008 PS Paschim Vihar crossing the road to catch the bus while the complainant was behind him at a little distance. All of a sudden the accused came driving a bus bearing no. DL1PA6886 on route no.219 in a rash and negligent manner so as to endanger human life and personal safety of others and hit Manoj Kumar, brother of the complainant. Due to the impact of the same, he fell down on the road. The bus driver looked out of the window and escaped along with the bus. Some public persons called on 100 number and the injured was taken to the SGM hospital in the PCR van. Thus the accused is alleged to have committed an offence under Section 279/304A IPC. After completing the formalities, investigation was carried out.
3.Charge sheet was filed against the accused in the court. Documents were supplied to the accused under Section 207 Cr.P.C. Notice under Section 251 Cr.P.C for offence under Section 279/304A IPC was framed against him by the Ld. Predecessor vide order dated 21.04.2012 to which he pleaded not guilty and claimed trial.
4.In order to prove the case against the accused, the prosecution has examined eight witnesses i.e (1) Sunil Kumar (2) L/HC Sushila (3) Surender (4) HC Om Prakash (5) HC Virender (6) Subhash Chand (7) HC Abhay Singh and (8) SI Raj Kumar).
5.PW-1 Sunil Kumar is the eye witness who deposed that on 05.05.2008 he was going to Azadpur with his brother Manoj Kumar. At about 9.00 am, when they State v. Mahabir Singh U/s 279/304A IPC 2/12 FIR No. 185/2008 PS Paschim Vihar reached at Multan Nagar Road and were crossing the road, suddenly one bus bearing no.6886 came in a rash and negligent manner and hit against his brother Manoj. He fell down and sustained injuries. Some public persons called the police. The police reached there and took them to Sanjay Gandhi Memorial hospital (hereinafter referred to as SGM hospital). The witness identified the accused as the driver of the offending truck. He deposed that his brother expired at Sanjay Gandhi Memorial hospital. This witness was not cross examined by the accused.
6.PW-2 L/HC Sushila deposed that on 05.05.2008 she being the duty officer, had recorded the present FIR on the basis of rukka brought by Ct. Virender. After registering the FIR, she handed over the original rukka and copy of FIR to Ct. Virender, to be handed over to the IO. Copy of FIR is Ex.PW2/A and endorsement of the witness on rukka is Ex.PW2/B.
7.PW-3 Surender Singh is the son of the accused who deposed that on the date of incident his father Mahabir Singh was driving the bus bearing no. DL1PA 6886. He deposed that after the accident he was served with the notice under Section 133 M V Act and he had replied to the same. His reply is Ex.PW3/A. The accused was arrested and the documents of the bus were seized vide memo Ex.PW3/B and Ex.PW3/C.
8.PW-4 HC Om Prakash deposed that on 06.05.2008 he had joined the investigation with IO ASI Raj Kumar. He deposed that the eye witness Sunil State v. Mahabir Singh U/s 279/304A IPC 3/12 FIR No. 185/2008 PS Paschim Vihar Kumar had come to the police station Paschim Vihar and at the same time the owner of the offending bus was also called at the police station. The accused Mahabir and his son Surender Singh had come at the police station and produced the offending vehicle. The eye witness Sunil Kumar identified the accused as the driver of the bus. IO seized the bus and the document. The accused was arrested vide memo Ex.PW4/B and his personal search was conducted vide memo Ex.PW4/C.
9.PW-5 HC Virender had deposed that on 05.05.2008 he along with HC Abhay Singh had gone to the spot of accident on receiving DD NO. 11A. There they came to know that injured had been shifted to SGM hospital. They proceeded to the hospital where the injured was found admitted. However, doctor had declared him unfit for statement. IO prepared the rukka and handed over to him for registration of FIR. After getting the FIR registered, he went back to the spot. He came to know that the injured has already expired at the hospital. He deposed that IO got the postmortem of the dead body conducted. IO also prepared the site plan. Therefore, IO sent him to serve notice under Section 133 M V Act to the owner of the bus Surender Singh Dagar. On the next day, the owner of the vehicle came to the police station along with the accused and the offending vehicle and IO arrested the accused.
10.PW-6 Subhash Chand deposed that on 27.05.2008 he was posted at vehicle Inspection Unit of Burari as PLT Inspector. He along with Anuj Gupta, PlTI had State v. Mahabir Singh U/s 279/304A IPC 4/12 FIR No. 185/2008 PS Paschim Vihar conducted the inspection of bus in the presence of Ct. Virender Dhankar. He deposed that he had inspected the bus which was parked outside the premises of PS Paschim Vihar. They found that the seal of Electronic Control Unit in the Electronic Speed Governor was tampered/ broken and the steel wire was outside the unit. The seal of Electronic Speed Governor was not in order. His inspection report Ex.PW6/A.
11.PW-7 HC Abhay Singh deposed that on 05.05.2008 he had gone to Metro Pillar no.47, Rohtak Road, Delhi on receiving DD No. 11 A where he came to know that the injured had been shifted to SGM Hospital. They reached SGM hospital and there injured Manoj Kumar was found admitted with alleged history of road traffic accident. Injured was declared unfit for statement by the doctor. He prepared rukka Ex.PW7/A and gave the same to Ct. Virender for registration of FIR. Ct. Virender got FIR registered at PS Paschim Vihar and further investigation was marked to ASI Raj Kumar. In the meantime, injured was declared dead. IO reached the hospital and got the postmortem examination of dead body conducted. Thereafter, the dead body was handed over to the relatives of the deceased. IO prepared the site plan at the instance of eye witness Sunil Kumar and recorded his statement.
12.PW-8 SI Raj Kumar deposed that on 05.05.2008 he received DD No. 24A regarding death of Manoj Kumar in Sanjay Gandhi Memorial hospital. On that information he along with HC Abhay and Ct. Virender had gone to SGM State v. Mahabir Singh U/s 279/304A IPC 5/12 FIR No. 185/2008 PS Paschim Vihar hospital. There he met with the relatives of the deceased who identified the dead body. He got the postmortem conducted by moving an application Ex.PW8/1. After postmortem, the body was handed over to the father and brother of the deceased. The brother of the deceased also told him that the bus no. DL1 PA 6886 had hit his brother and driver had ran away from the spot. He went to the spot along with Sunil Kumar and prepared the site plan Ex.PW8/A. On enquiry, he found that owner of the bus was Surender Singh Dagar which is Ex.PW8/B. The reply to the notice is Ex.PW3/A. On 06.05.2008 the owner came to the police station with the bus and driver. The witness recorded the disclosure statement of the accused and arrested the accused vide memo Ex.PW4/B and conducted his personal search vide memo Ex.PW4/C. The offending bus, Driving license of accused, registration certificate and insurance papers of the bus were seized vide memo Ex.PW3/B, Ex.PW3/C, Ex.PW4/C and Ex.PW8/C respectively. Witness deposed that he got the bus mechanically inspected. Thereafter, the bus was deposited in Malkhana. Witness further deposed that after completion of the investigation, he filed the charge-sheet in the court.
13.None of the prosecution witnesses was cross examined by the accused.
14.Thereafter, the PE was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. Accused stated that on the said date he was not on duty and was actually driving the bus State v. Mahabir Singh U/s 279/304A IPC 6/12 FIR No. 185/2008 PS Paschim Vihar one day before the date of accident. He has stated that he was not even present at the spot on the said date. No DE was led despite opportunity.
15.I have heard the submissions addressed by the Ld APP for state and the brief submissions made by the accused himself and carefully perused the documents on record.
16.To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1.That the accident actually took place.
2.That the accident took place due to rash and negligent driving.
3.That the accused was the person who was driving the vehicle at the relevant time.
17.Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". The words "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
18.The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
State v. Mahabir Singh U/s 279/304A IPC 7/12 FIR No. 185/2008 PS Paschim Vihar "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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............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."
19.In case at hand, the allegations against the accused are that on 05.05.2008 at about 9.00 am he was driving the bus no. DL1PA 6886 in a rash and negligent manner and had hit the pedestrian Manoj Kumar and caused his death. The star witness of the prosecution was PW-1 Sunil Kumar, who was present at the spot along with deceased i.e his brother. In his testimony, he has deposed that when they reached at Multan Nagar road and were crossing the road, the accused had come in rash and negligent manner and hit his brother Manoj. He has identified the accused as the driver of the said bus and also identified the bus. The testimony of this witnsess has remained unrebutted as he was not cross exmained by the accused.
20.However, PW-1 has nowhere stated in his testimony about the speed of bus nor has he deposed anything about the manner in which the bus was being driven.
State v. Mahabir Singh U/s 279/304A IPC 8/12 FIR No. 185/2008 PS Paschim Vihar He has merely stated that the bus was being driven by the accused in a rash and negligent manner. There are no photographs of the accident on record. Infact, there is little material evidence on record to show that the accused was driving in a rash and negligent manner except a bald statement by the Pw-1 that the accused was driving in a rash and negligent manner.
21.It was observed by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows, "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."
22.A similar view was expressed by the Hon'ble High Court of Delhi in "Rajesh Kumar v. State" Criminal Revision petition no. 490/2008. The Hon'ble Court observed that, State v. Mahabir Singh U/s 279/304A IPC 9/12 FIR No. 185/2008 PS Paschim Vihar "For attracting the provisions of Section 304A Indian Penal Code, the negligent act of the accused must be culpable and gross and not merely based on an error of judgment, or the one which arises because of lack of intelligence. For holding an accused criminally liable one has to take into consideration all the attending circumstances which must also include any situation created by the negligent act of the injured person. In the present case, there is no evidence on record to show that the Petitioner was driving the offending vehicle at a very high speed or in a rash and negligent manner. There are no skid marks on the ro ad to show that the vehicle was being driven at a high speed. Thus, in view of circumstances of the present case it cannot be held that the accused was grossly negligent or reckless that he must be held criminally liable. The prosecution in the present case has not been able to prove its case beyond reasonable doubt against the Petitioner. In the light of the above said judgement, the court is of the view that the prosecution has failed to prove the most important ingredient for the offence under Section 279/304A IPC i.e the accused should have been driving in a rash and negligent manner."
23.In case titled as "Abdul Subhan vs State, NCT of Delhi" 2007 Cr.L.J1089, Hon'ble High Court of Delhi had observed that, "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 State v. Mahabir Singh U/s 279/304A IPC 10/12 FIR No. 185/2008 PS Paschim Vihar 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"."
24.In the present case, there are many lacunae in the prosecution story. First and foremost, no judicial TIP of the accused was conducted despite availability of the eye-witness. Secondly, no photographs of the accident or of the spot have been filed on judicial record by the I.O for the reasons best known to him. There are no photographs showing skid marks on the road. There is no indication in the site plan also that the deceased was crossing the road at zebra crossing. There is no evidence regarding the speed of the bus. Even the eye witness, PW-1 has only made a bald statement that the accused was driving the bus in a rash and negligent manner.
25.In view of the above discussion and in light of the aforesaid case-laws, court is of the considered opinion that the prosecution has failed to prove the charges against the accused. The prosecution has failed to prove that the accused Mahabir Singh was driving bus number DL1PA 6866 on route no.219 at 9.00 am in a rash and negligent manner and had hit the deceased thereby causing his death. Accordingly, accused Mahabir Singh stands acquitted.
State v. Mahabir Singh U/s 279/304A IPC 11/12 FIR No. 185/2008 PS Paschim Vihar
26.Accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED IN THE OPEN COURT ON
19th February 2015
(SAUMYA CHAUHAN)
MM-07(West)/THC/19.02.2015
State v. Mahabir Singh U/s 279/304A IPC 12/12
FIR No. 185/2008 PS Paschim Vihar