Delhi District Court
State vs . Suresh Chand Sahu on 25 May, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE04,
PATIALA HOUSE COURTS, NEW DELHI.
Presided by: MS. AKRITI MAHENDRU
Cr.C. No. 44330/2016
FIR No. 112/2010
PS: Inder Puri
State Vs. Suresh Chand Sahu
JUDGMENT
a) Cr.C No. : 44330/2016
b) Date of Commission of offences : 02.09.2010
c) Name of complainant/informant : Sh. Raju Yadav.
d) Name of the Accused & : Suresh Chand Sahu, S/o Sh. Mani
his parentage Ram, R/o U 1/711, Dharam
Enclave,
Kirari Suleman, Prem Nagar,
Nangloi.
e) Offences complained of : u/s 279/337/338/304A IPC
f) Plea of the Accused : Pleaded not guilty
g) Final Order. : Acquittal
h) Date of such order. : 25.05.2022.
i) Date of institution. : 08.02.2010
1. Vide this judgment, this Court shall dispose of the instant case FIR registered under Section 279/337/338/304A of the Indian Penal Code, 1860 at PS Inderpuri.
2. Shorn off unnecessary details, case of the prosecution is that on 02.09.2010 at around 11:10 PM, while Raju Yadav (hereinafter referred to as the Complainant) along with his daughter Neelu and some other persons were returning home from Rajinder Nagar in Tata 407 Tempo bearing no. DL1LE4843 being driven by Suresh Chand Sahu (hereinafter referred to as the Accused), the vehicle careened ahead of Ratnapuri Gol Chakkar in front of Janak Vihar on Todapur Road owing to negligent or rash driving of the Accused which resulted in the death of Raj Kumar (hereinafter referred to as the deceased) and caused simple injuries to five persons, namely - Raju, Neelu, Shiv Charan, Jitender and Pawan; whereas, grievous injuries were FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /2/ suffered by Guddu, Rampher and Prem. Some passerby reported the accident at 100 number. Police reached the spot and took the injured to the hospital. The deceased however succumbed to the injuries the day after.
3. Upon completion of investigation, final report in the form of chargesheet under Section 173 of the Code of Criminal Procedure, 1973 was forwarded to this Court for prosecution of the Accused.
4. Cognizance of the offences complained of in the instant case FIR was taken and the Accused was summoned vide order dated 08.12.2010. After compliance of section 207 Cr.P.C copy of chargesheet was supplied to him. Subsequently after hearing the state, the defence and after careful perusal of the judicial file, notice u/s 279/337/338/304A IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
5. In order to prove the case against the Accused, prosecution examined 17 witnesses in its favour.
6. PW1 Raju Yadav deposed that on 02.09.2010 on the day of Janamashtami at about 09:00 PM, he along with some other persons namely, Rajender, Guddu, Rampher, Shivcharan and his daughter Neelu went to Rajender Nagar on Tata 407 bearing No. DL 1LE 4843 which belonged to and was being driven by the Accused. While they were coming back at around 10:30 PM and reached R Block, Janak Vihar, as it was raining and there was a big stone on the road, in an attempt to bypass the stone, the tempo tumbled and all of them received injuries. Since the witness turned hostile as he narrated a different version from what was stated in his earlier statement he was cross examined by Ld. APP. In his cross examination the witness refuted the suggestions that the vehicle was being driven at a high speed due to which it got imbalanced and tumbled. The witness was then confronted with his statement recorded under FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /3/ section 161 of CrPC (Ex.PW1/A) and he conceded that his signature were affixed on the statement at point A. PW1 also conceded that his statement was recorded by the police at the hospital though denied that the site plan Mark X (later exhibited as Ex.PW7/A) was prepared on his pointing out or at his instance by the police. He correctly identified the Accused and the offending vehicle on photographs (Ex.P1 (Colly)) being shown to him, thereafter photographs of the spot (Ex.P2 (Colly)) were shown to the witness who correctly identified the spot and acknowledged that no stone could be seen lying on the road in those photographs. The witness admitted that the road on the spot was a smooth road and denied the suggestions that he was won over by the Accused and was intentionally concealing the correct facts.
7. PW1 was then cross examined by Ld. Counsel for the Accused and agreed to all the suggestions put forth i.e., the spot was dark and it was raining heavily at the time of accident; or that the deceased was sitting at the parapet of the vehicle and was heavily drunk at the time due to which he was unable to balance himself and consequently fell down from the vehicle; or that the Accused tried to avoid the accident but in doing so the front wheel of the vehicle collided with a stone lying on the road and it toppled; or that the accident happened due to presence of a big stone on the road and he had apprised the police officials about the same but they did not reduce it into writing; or that the stone was removed from the road so as to avoid any further accident.
8. PW2 Shiv Charan was one of the victims of the accident, he deposed that he did not recall the date of the incident but at about 12:00 midnight he along with 8 other persons namely Prem, Guddu, Rampher, Jitender, Pawan and a lady, who he did not see as she was sitting in the front, was going in Tata 407 tempo from Janakpuri, the vehicle being driven by the Accused. When they reached near Mata ka mandir, Janak Vihar, the vehicle was being driven at a fast speed and it turned turtle at the turn, though he could not tell the exact speed but he stated that it was fast and he suffered injuries. PW2 depose that he could not identify the offending vehicle.
FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu
/4/
The witness was then cross examined by ld. APP for the state as he resiled from his earlier statement regarding place of incident and identity of the vehicle. In his cross examination the witness denied the suggestion that the accident occurred at Ratanpuri chowk and added that the chowk was ahead. Subsequently photographs of the offending vehicle and the spot (Ex.P1 & Ex.P2) were shown to the witness and he was asked if the same pertain to the offending vehicle as well as the spot and he answered in the affirmative.
The witness was pointedly cross examined by Ld. Counsel for the Accused. During the course of his cross examination the witness confessed that he did not recall the number of the vehicle and nobody had died at the spot, the victim died in the hospital. The witness denied the suggestion that accident occurred due to collision with another vehicle.
9. PW3 Pawan Kumar was one of the victims of the accident, he deposed that on 03.09.2010 at about 12:00 midnight he as well as some other persons were returning from the temple and going to their rooms in Todapur in the offending vehicle which was being driven at a very high speed and it turned turtle. Witness admitted that he could not tell the exact reason for upturning of the vehicle as he was sitting at the back but it was being driven at a fast speed. Witness correctly identified the Accused as well as photographs of the offending vehicle. On court question being put to him regarding the place of incident he stated that accident occurred near Pusa Gole chakkar, Janak Vihar.
10. In his cross examination the witness stated that he could not say if the accident occurred because the offending vehicle was hit by another vehicle. he further stated that the Accused had taken the injured persons to the hospital.
11. PW4 Jitender was also one of the victims of the accident, he reiterated the version put forth by PW3 with a slight variance regarding the time and the place of occurrence as according to him the accident happened on 03.09.2010 around 1111:30 PM, a little ahead of Janak Vihar FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /5/ bus stand. He recapped that the vehicle was being driven at a fast speed though pleaded his ignorance regarding the exact reason for upturning of the vehicle as he was sitting at the back. Witness correctly identified the Accused and the offending vehicle. During the course of his cross examination the witness conceded that he could not tell the exact reason for upturning of the vehicle and did not have any knowledge if the offending vehicle was hit by another vehicle as he was sitting at the back.
12. PW5 Ram Pher deposed that on the night of 02.09.2010 he along with other persons namely Raj Kumar, Pawan, Shivcharan, Jitender and Ganesh was going back to his house in Todapur in a tempo being driven by the Accused. At around 11:10 PM when they reached a little ahead of Ratanpuri chowk the Accused started driving the vehicle at a very high speed, thereby losing control over it due to which it turned turtle. Some person from the public made a call on 100 number and all the injured persons were taken to RML Hospital. Witness correctly identified the Accused and the offending vehicle. In his cross examination the witness stated that he did not know if the accident occurred because the offending vehicle was hit by another vehicle as he was sitting at the back side of the tempo.
13. PW6 Ram Kewal in his testimony deposed that on 04.09.2010 he identified the dead body of his brother Raj Kumar at the mortuary of RML hospital. The dead body identification and the handing over memo were exhibited as Ex.PW6/A & Ex.PW6/B respectively.
14. PW7 Ct. Devender deposed that on 02.09.2010 he was on emergency duty from 08:00 AM to 08:00 PM, on receipt of information by HC Sunil regarding an accident at Main Road, Todapur, he along with HC Sunil went to the spot where they found a Tata 407 tempo in accidental condition. The vehicle was upside down, on inquiry from public persons he got to know that the injured persons had already been taken to RML Hospital, thereafter they went to the hospital where the IO handed him the tehrir and sent him to the PS for registration of FIR.
FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu
/6/
After the registration of FIR he went back to the hospital and handed over the tehrir and FIR to the IO. The receipt of information regarding the accident was recorded vide DD No. 46B and their departure entry from PS was recorded vide DD no. 5B. Thereafter IO prepared the site plan Mark PW7/A and seized the vehicle vide seizure memo Ex.PW7/B. Driving license and RC of the vehicle were also seized by the IO. Witness deposed that he could not identify the Accused as he had not seen him. Witness was not cross examined on behalf of the Accused despite opportunity.
15. PW8 Ct. Uttam Kumar deposed that he was posted on emergency duty on 02.09.2010 and at around 10:00 AM he along with family members of the deceased namely Rajkumar went to RML hospital and received medical documents of the deceased from the mortuary. He got the body of the deceased identified from the family members and went to safdarjung for post mortem of the body. Thereafter body of the deceased was handed over his family members. Sealed blood sample of the deceased was handed over to him by the doctor which was Ex.PW8/A which he handed over to the IO.
16. PW9 HC Sunita was a formal witness who received the call regarding the accident and recorded the same in the rojnamcha vide DD Entry NO.46B which was Ex.PW9/A. She handed over the same to HC Sunil. Witness also produced original DD No. 32B dated 03.09.2010 recorded by W/Ct. Renu which was Ex.PW9/B (Check both documents in file)
17. PW10 ASI Sunil Kumar deposed in his testimony that on 02.09.2010 after receiving DD No.46B (Ex.PW9/A) he along with Ct. Devender reached at the spot where he saw the offending vehicle, no public witness was present at the spot. He took photographs of the vehicle as well as the spot with his camera meanwhile he received DD No.5B from RML Hospital and he went there leaving Ct. Devender at the spot. In the hospital he recorded the statement of one injured namely Raju Yadav (Ex.PW1/A). Thereafter he along with Raju Yadav went to the spot, FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /7/ prepared the rukka and handed it over to Ct. Devender for registration of FIR. He prepared the site plan (Ex.PW7/A) at the instance of Complainant Raju Yadav. He also seized the offending vehicle vide seizure memo already Ex.PW7/B and recorded statements of injured persons namely Prem, Shiv Charan, Pawan and Jitender. On 03.09.2010 at 12:50 PM on receiving DD No.32B regarding death of injured Raj Kumar he orally apprised the SHO and the present case was marked to ASI Jagdish for post mortem. Witness correctly identified the offending vehicle.
18. Witness was cross examined at length by ld. counsel for the Accused. During the course of his cross examination the witness stated that he was the first police personnel to reach the spot and he recorded the statement of Complainant Raju Yadav at RML Hospital, though denied the suggestion that Complainant Raju Yadav had informed him about the reason for upturning of the said vehicle being a large stone lying on the road after the turn. He stated that nobody had told him either in the capacity of a witness or a victim about the complainant sitting in front seat of the vehicle beside the driver seat. Witness denied the suggestion that the vehicle was being driven at a high speed in a rash and negligent manner. He said that nobody had told him anything about the deceased sitting at the roof (parapet) of the vehicle or about his inebriated condition. Witness denied the suggestions that the victims had informed him that the driver of the vehicle tried his best to avoid the accident by avoiding the large stone on the road and that he had recorded the complete information during investigation.
19. PW11 SI Jagdish Chander got the post mortem of the body conducted and recorded the statements of the son and brother of the deceased namely, Manoj (Ex.PW10/A?how) and Ram Kewal (Ex.PW6/A). After the post mortem of the deceased he handed over the body to to the family mebers of the deceased vide handing over memo (Ex.PW6/B) and seized the blood sample vide seizure memo (Ex.PW8/A).
20. PW12 SI Lakha Ram deposed in his testimony that the present case was marked to him FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /8/ for further investigation on 08.09.2010. He got the mechanical inspection of the offending vehicle conducted (Mark A) and issued notice under section 133 of the motor Vehicles Act, 1988 to the owner of the vehicle for which he received a reply (Ex.PW12/A). Witness exhibited, the documents namely, arrest memo Ex.PW1/b), Personal Search Memo of Accused (Ex.PW12/B), seizure memo of vehicle (Ex.PW12/C) & Seizure memo of Driving License (Ex.PW12/D).
21. In his cross examination the witness deposed that he did not visit the spot as he was the third IO of the case, though he conducted investigation and recorded statements of witnesses. he recorded the statement of injured persons but not of any other public witnesses. he denied any knowledge as to the fact of the deceased being under the influence of alcohol or regarding identity of the person siting besides the Accused in the front seat. PW13 Dr. Mohit Gupta was a formal witness who conducted the post mortem of the deceased and exhibited the post mortem report Ex.PW13/A, wherein the cause of death is opined as 'cerebral damage as a result of blunt force trauma to the head.
22. PW14 HC Mahender was another formal witness who endorsed the rukka Ex.PW14/A handed over to him by Ct. Devender and registered the FIR Ex.PW14/B.
23. PW15 Dr. Namarata Sachdeva was a formal witness who identified the signatures of Dr. Mrityunjay on the MLC's and XRay reports and exhibited them as Ex.PW15/AEx.PW15/E.
24. PW16 Dr. O.P.Meena was a formal witness who identified the signatures of Dr. Nivedita Dhingra & Dr. Shubham Jain on the MLC's and exhibited them as Ex.PW16/AEx.PW15/I.
25. PW17 Dr. Himanshu Aggarwal was summoned to provide an opinion regarding nature of injury caused to injured Ram pher and Shiv Charan as per their MLC Ex.PW16/G and Ex.PW16/E respectively. On perusal of the same he opined that Ram Pher suffered a grievous FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /9/ injury and Shiv Charan suffered a simple injury.
26. Thereafter PE was closed vide order dated 30.09.2021 and Accused was examined in the exercise of power under section 313 of the Code of Criminal Procedure, 1973. Accused pleaded innocence and denied the allegations against him. He admitted that he was driving the offending vehicle but denied the allegations made in the chargesheet and the FIR. He claimed that he was innocent and had been implicated falsely in the present case.
27. And in this backdrop, the Accused in spite of expressing willingness to lead defense evidence, adduced none on the record.
28. Final arguments were addressed on behalf of the Accused as well as by Ld. APP for the state. It was submitted by Ld. Counsel for the Accused that prosecution has not been able to establish its case beyond reasonable doubt therefore the benefit of doubt must accrue to the Accused. He submitted that the prosecution has not been able to prove the element of rashness or negligence as no independent witness has been examined to establish the same, the prosecution even failed to examine the person who informed the police about the accident. Also the Complainant Raju Yadav, in his testimony, has clearly deposed that the accident happened as the Accused was attempting to avoid a large stone lying on the road due to which the tempo tumbled despite the fact that the vehicle was being driven at a speed of 2030kmph, thereby establishing that the vehicle was not being driven in a rash and negligent manner and since the Complainant was sitting right beside the Accused he was in a better position to determine the reason for the accident as compared to the other injured persons. It was further submitted that the deceased was sitting on the parapet of the vehicle in an intoxicated condition, a fact which is apparent from his MLC (Ex.PW16/A), thereby putting himself at a risk since his act was itself rash / negligent. The Ld. Counsel argued that it was the Accused who took all the injured persons to the hospital, which clearly shows his noble intention.
FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu
/10/
29. Per contra, Ld. APP submitted that there is no discrepancy in the statement of the witnesses including the injured and the Accused has not led any evidence to show that he was falsely implicated and the reason behind the same. He further submitted that the prosecution has successfully proved its case and the guilt of the Accused persons has been duly established for offences u/s 279/337/338/304AIPC.
30. At this stage, it is deemed germane to reproduce the relevant and applicable provisions of law:
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 rupees, or with both.
Section 337.
Causing hurt by act endangering life or personal safety of othersWhoever causes 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 six months, or with fine which may extend to five hundred rupees, or with both.
Section 338.
Causing grievous hurt by act endangering life or personal safety of othersWhoever causes 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."
Section 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 FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /11/
31. The defence of the Accused is that the prosecution failed to prove the most essential ingredient of the aforementioned offences being rashness or negligence on the part of the Accused. A bare perusal of the above mentioned provisions makes it apparent that for an Accused to be prosecuted under any of these provisions it is imperative that he must have acted in a rash or negligent manner. Rashness, in simple terms, would mean committing an act with recklessness without paying any heed to its consequences whereas, negligence implies lack of proper care and caution on the part of the person doing the act. The distinction between rashness and negligence has been clearly outlined by the Hon'ble Supreme Court in the matter of 'Rathnashalvan v. State of Karnataka' reported as (2007) 3 SCC 474 wherein, it was observed as under:
"8. As noted above, 'Rashness' consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted..."
32. In order to prove its case, the prosecution is required to establish two essential ingredients:
1) That the vehicle was being driven in a rash or negligent manner
2) That causa causans of death of deceased/injuries to the victims was the act of Accused.
In the present case, in order to prove the first ingredient, i.e. rashness or negligence, reliance has been placed by the prosecution upon the fact that the offending vehicle was purportedly being driven at a high speed by the Accused which caused the vehicle to lose its balance and it turned turtle thereby causing death of one person and injuries to 8 persons, 5 eye witnesses were examined by the prosecution in order to establish the above fact out of which the FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /12/ Complainant PW1 turned hostile and resiled from his statement that the vehicle was being driven at a high speed on the contrary he stated that the vehicle was being driven at the speed of 2030 kph and it turned turtle because the Accused was attempting to avoid a big stone lying on the road, thereby absolving the Accused of all blame. The other 4 eye witnesses examined as PW2 to PW5 reaffirmed the fact that the vehicle was being driven at a high speed, but none of them could clearly testify as to what was the speed of the vehicle or if the said accident was caused because of the high speed of the vehicle. PW3 in his testimony clearly stated that he did not know how the tempo upturned as he was sitting at the back, a similar statement was made by PW4 as he also pleaded ignorance as to the reason for occurrence of the accident. PW5 in his examination in chief, though stated that the tempo was being driven at a very high speed and the accused was unable to control the same due to which it turned turtle but during the course of his cross examination the witness conceded that he was sitting at the backside of the tempo therefore did not know how the accident took place.
33. The prosecution story entirely rests upon the fact that the offending vehicle was being driven at a high speed, however none of the prosecution witnesses could testify as to what was the approximate speed of the vehicle at the time of the accident since all of them were sitting at the backside of the tempo and had no means to actually determine the speed of the vehicle, much less they could not read it on the speedometer. Furthermore, high speed is a relative / subjective term inasmuch as it not only varies from person to person but would also vary from the road (and/or its condition) the vehicle is being plied upon. For instance, speed limit on a highway or expressway would be higher compared to the arterial roads; speed limit would also vary from vehicle to vehicle, not to mention that in determining the question if a vehicle is being driven is a high or moderate speed, road as well as weather conditions assume equal relevance in answering the question, for there is no cast iron rule that the driver of high speeding vehicle whenever involved in an accident is invariably reprehensible of either rashness or negligence. In this context, it is profitable to recount the observations of the hon'ble Supreme court in the FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /13/ matter of 'State of Karnataka v. Satish' reported as (1998) 8 SCC 493 which read as under:
"...3.Both the trial court and the appellate court held the respondent guilty for offences under Sections 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 loquitur 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 it 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 favour 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 loquitur'..."
34. The aforementioned observations of the Hon'ble Supreme Court unravel a very pertinent question, to wit whether a presumption of rashness or negligence can be drawn in the present case against the Accused by invoking the doctrine of res ipsa loquitur. This doctrine literally means 'things speak for themselves'. In the instant case, there is no dispute regarding the identity of the offending vehicle as well as that of its driver; moreover, the factum of the vehicle being involved in an accident has been duly established by the photographs of the vehicle and the mechanical inspection report. In this factual scenario, begs the question whether a legal presumption be drawn against the Accused regarding his act being either rash or negligent by resorting to this doctrine. Apropos thereof, reference may be made to the following reproduced dictum of the Hon'ble Supreme Court in the celebrated judgment of 'Syad Akbar v. State of Karnataka' reported as 1979 AIR 1848:
FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu
/14/
"...Such simplified and pragmatic application of the notion of res ipsa loquitur, as a part of the general mode of inferring a fact in issue from another circumstantial fact, is subject to all the principles, the satisfaction of which is essential before an accused can be convicted on the basis of circumstantial evidence alone. Those are: Firstly, all the circumstances, including the objective circumstances constituting the accident, from which the inference of guilt is to be drawn, must be firmly established. Secondly, those circumstances must be of a determinative tendency pointing unerringly towards the guilt of the accused. Thirdly, the circumstances should make a chain so complete that they cannot reasonably raise any other hypothesis save that of the accused's guilt. That is to say, they should be incompatible with his innocence, and inferentially exclude all reasonable doubt about his guilt..."
The dictum of the aforementioned judgment was reiterated by the Hon'ble Supreme Court in a recent judgment in the matter of 'Nanjundappa & Anr. v. The State of Karnataka' pronounced on 17.05.2022 to expound the position of law as infra:
"... the doctrine of res ipsa loquitor stricto senso would not apply to a criminal case for bringing home the guilt of the Accused the prosecution has to firstly prove negligence and then establish direct nexus between negligence of the Accused and death of the victim..."
35. The aforesaid judgments make it amply clear that no presumption can be drawn against the Accused by invoking the doctrine of res ipsa loquitor unless the prosecution has firmly established all the circumstances leading up to the accident and those circumstances are of sterling quality that they should unreservedly point towards the guilt of the Accused without leaving any room for an alternative interpretation. In other words, the prosecution is not only required to establish that the act of the Accused was rash or negligent but it is also expected to dispel every other possibility or circumstance that could have contributed to the occurrence of the accident. The direct nexus between the rashness or negligence of the Accused and the death of the deceased / injuries suffered by the victims is a sine qua non for before an Accused could be convicted under the aforementioned sections.
36. Intriguingly, in the present case, none of the PWs has used the word rashness or negligence or even implied the same in his testimony. The only expression commonly used by the PWs is that 'the vehicle was being driven at a high speed' even though none of them has FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /15/ even provided any other or further information as is legally warranted to infer culpable rashness or negligence on the part of the Accused. Even if it is hypothesised that the vehicle was being driven at a high speed, prosecution has nonetheless failed to explain as to how the vehicle overturned, much less given the discrepancies / contradictions in testimonies of PWs that furnish rather obscure explanation regarding the probable cause of the accident, for while PW1 Raju Yadav (albeit declared hostile by the prosecution) has deposed the presence of a large stone on the road leading to the overturning of the vehicle while the Accused made an endeavour to circumvent it to avoid collision whereas, other PWs have attributed high speed as the cause of the accident, some of whom have imputed, not consistently though, that the vehicle overturned while the Accused was trying to turn it at a high speed. The plea of the Ld. APP for the State that the testimony of PW1 should be altogether discarded does not hold water in the adumbral of instructive observations that fell from the Hon'ble Supreme Court in the case titled as 'Sat Paul v. Delhi Administration' reported as AIR 1976 SC 294 which reads as follows:
"Even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the Court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such crossexamination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as a matter of prudence, discard his evidence in toto."
37. That said, even though the witness made a complete volte face from his unproven statement recorded under Section 161 of the Code of Criminal Procedure, 1973 however facts emerged in his testimony did raise questions that ought to have been answered by the prosecution without an iota of doubt during the trial. The factual circumstances highlighted by FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /16/ PW1 ought to have been put to the other witnesses by the prosecution so that they could have affirmed or negated them and aided this Court in arriving at an informed decision regarding the factual underscores of this case. PW2 was also crossexamined by the Ld. APP for the State and yet, no question regarding the aforementioned factual aspects deposed by PW1 were put to him on behalf of the prosecution. The witness had also stated in his testimony that it was raining on the night of the accident but there is no mention of the weather conditions on the fateful date by any of other PWs. Therefore, the question of fact that whether it was actually raining or not is a point which has remained not proved throughout the trial.
38. As a matter of law, in a trial of emanating from the charge of Section 304A of the Indian Penal Code, 1860, it is imperative upon the prosecution to prove beyond reasonable doubt that there was a direct nexus between the death of the victim and the act of the Accused. In order to prove this ingredient, law enjoins that the prosecution should be able to prove rashness or negligence on the part of the Accused as accounting for the death of the deceased. In the instant case, PW1 has deposed that the deceased was sitting on the parapet of the vehicle in an inebriated condition who lost his balance and fell from the vehicle. His death, it has been deposed by PW1, was the result of his own negligence and not caused by the act of the Accused. The Ld. Counsel for the Accused has relied upon the MLC of the deceased (Ex.PW16/A) to prove that the deceased was drunk at the time of the accident. An accident is defined as an undesirable or unfortunate happening that occurs unintentionally and results in harm, injury, damage or loss to any person or property; it is not necessary that it would always be the result of some person's rashness or negligence, for it could be a consequence of some unforeseen circumstance as well at times. In this context, observations of the Hon'ble Supreme Court in the matter of 'Ravi Kapoor v. State of Rajasthan' reported as (2012) 9 SCC 285 spring to mind which read as under:
"...The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /17/ not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof...."
39. Having settled that every accident is not necessarily attended by culpable rashness or negligence of the driver, the prosecution in the instant case is in remiss inasmuch as none of the other PWs was confronted with circumstance that the deceased was negligently sitting on the parapet in an inebriated condition to either prove or disprove the version rendered by PW1 which creates serious uncertainty regarding the version put forth by the prosecution visàvis the circumstances attending the death of the deceased, for other PWs have deposed verbatim without furnishing material particulars as might have aided this Court in arriving at just and plausible inference regarding the culpability of the Accused entailed in the accident.
40. The absence of clear proof of circumstances accounting for the accident, much less that the accident itself was actuated either by rashness or negligence of the Accused, and not owing to any of the myriad reasons inconsistently conjectured by the PWs, this Court has no means of ascertaining the real or actual cause of the Accused, for the prosecution has failed to discharge the burden statutorily cast upon it. To compound the ambiguity, discrepancy qua the place of incident in the testimonies of the PWs, though inconsequential, would nonetheless assume importance so as to disprove the site plan (Mark PW7/A) inasmuch the witness (PW1) at whose instance it was allegedly prepared has categorically denied it , which casts serious doubt regarding the place of occurrence even. PW 10 who was the first IO has stated in his cross examination that the turn was 50100 metres ahead from the place of incident, now if his testimony were to be taken on the facevalue even then, there is no explanation as to why a vehicle being driven on a smooth road, though at an allegedly high speed, would careen suddenly without any external interference or internal malfunction, as the case may be, even before it had reached the turning; the burden whereof also rested on the prosecution which it FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /18/ has patently failed to discharge in the instant case.
41. The prosecution in the present case has miserably failed to establish the chain of circumstances in which the accident could have occurred, leave alone been able to prove the guilt of the Accused beyond reasonable doubt. In this context, reference craves to be made to the observations of the Hon'ble High Court of Delhi in the matter of 'Abdul Subhan v. State of NCT of Delhi' reported as 133 (2006) DLT 562 wherein it was observed as follows:
"...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"...".
42. It is a settled proposition of criminal law that prosecution is obliged to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the Accused. Burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the Accused. In the instant case, the prosecution has miserably failed to discharge that burden even on the touchstone of preponderance of probabilities, leave alone beyond reasonable doubt.
43. Upon due circumspection of the totality of foregoing facts and circumstances, including but not limited to scrutiny of material available on record in the adumbral of the legal position governing the field, this Court is of the considered opinion that the prosecution could not prove beyond reasonable doubt that the accident had taken place due to rash or negligent driving by FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu /19/ the Accused which is sine qua non for commission of offence under Sections 279/337/338/304A of the Indian Penal Code, 1860. Having observed so, this Court hereby, acquits the Accused for the commission of offences under Section 279/337/338/304A of the Indian Penal Code, 1860 complained of in the instant case FIR.
Announced in open court (Akriti Mahendru) today i.e. on 25.05.2022 MM04 (New Delhi) All 19 pages have been checked Patiala House Court Delhi and signed by me. FIR No. 112/2010, PS: Inder Puri, State vs Suresh Kumar Sahu