Delhi District Court
State vs Ravi @ Ravinder Bartarya on 25 November, 2019
IN THE COURT OF Ms POOJA AGGARWAL:
METROPOLITAN MAGISTRATE-04: NORTH-WEST DISTRICT:
ROHINI DISTRICT COURTS: NEW DELHI
FIR No. 09/1995
PS Keshav Puram
State Vs Ravi @ Ravinder Bartarya
Date of Institution: 29.03.1995
Date of Judgment: 25.11.2019
JUDGMENT
(a) Serial Number of the case : 1863/2017
(b) Date of commission of offence : 15.01.1995
(c) Name of the complainant : Jagat Singh
(d) Name of Accused, his : Ravi @ Ravinder Bartarya
parentage & residence S/o Sh. R.B Bartarya
R/o UU 102D, Pitam Pura, Delhi
Earlier R/o QU 79C, Pitam Pura,
Delhi and UU 210, Pitam Pura,
Delhi
(e) Offence complained of : U/s 279/337/338 IPC
(f) Plea of Accused : Pleaded not guilty
(g) Final order : Acquittal
BRIEF STATEMENT OF REASONS FOR THE DECISION
1) The accused Ravi @ Ravinder has been sent to face trial for the FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 1 of 15 commission of offences under Section 279/337/338 of the Indian Penal Code (hereinafter referred to as 'IPC') on the allegations that on 15.01.1995, at 4:45 pm, at light point Britannia Chowk, Lawrence Road, Delhi within the jurisdiction of PS Keshav Puram, he was driving a Maruti Van bearing registration no. DID-6770 in rash and negligent manner so as to endanger human life and personal safety to others and while so driving, he caused simple hurt to Baby Priyanka and grievous hurt to one Jagat Singh.
2) After completion of the investigation, chargesheet was filed in Court, cognizance of the offences was taken but despite repeated issuance of process, the accused did not appear and was declared PO by the Ld. Predecessor vide order dated 08.10.2001 and after examination of public witnesses the file was consigned to the record room.
3) Thereafter, on 28.09.2016, the accused was produced after being apprehended, whereafter he was admitted to bail and after consideration of the arguments advanced, notice was served upon the accused for the commission of offences under Section 279/337/338 IPC by the Ld. Predecessor to which the accused pleaded not guilty and claimed trial.
4) To prove its case, the prosecution examined 6 witnesses out of 11 cited witness as PW Jagat remained unserved even through the office of DCP whereas PW Shyam Lal Ex. SI as well as PW SI Darshan expired during the course of trial.
FIR No. 09/1995PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 2 of 15
5) PW1 Ms. Priyanka testified that on the day of the incident ie., 15.01.1995, she was 7 years old and was travelling to the house of her aunt (Tai Ji) from Lawrence Road, from her house in Moti Nagar by an auto with her mother, sister and brother and when they reached at Red Light, Britania Chowk, one sky blue colored Maruti Van came from their left side and hit their auto on the left side due to which the auto overturned on the right side causing them injuries. She correctly identified the accused in the court and the accused did not dispute the identity of the offending vehicle during her testimony. She was duly cross-examined by the Ld. Counsel for the accused wherein she stated that the accused had ran away from the spot and that when the Maruti had hit her auto she had slightly seen the face of the accused as she was sitting on the outer side of the seat and she had also seen that the car being driven by the accused was not stopping despite coming very close to the auto. She further testified in her cross- examination that she had injured the little finger of her left hand and the ring finger of her right hand. She denied the remaining suggestions of the accused.
6) PW-2 Shruti Malhotra being another eyewitness testified that on 15.01.1995, she was returning from Moti Nagar via a Lawrence Road with her mother Geeta and sister Priyanka in an auto, the registration number of which she could not remember due to lapse of time further testifying that when the said auto was taking a turn towards Lawrence Road from the side of Britania Chowk at which FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 3 of 15 time the traffic signal of their side was green, one Maruti Van came at a very high speed and in rash and negligent manner hitting against the auto rickshaw due to which the rickshaw overturned and while she sustained bruises along with her mother, her sister Priyanka sustained serious injuries and her little finger got severed, hanging with only one vein. She further testified that some public persons took them out from the auto and they were taken to Maharaja Agarsen Hospital for treatment and her sister underwent to operation/surgery in respect of injuries sustained by her. PW-2 expressed uncertainty as to whether or not the traffic signal was there and she also testified that some digging work was being carried out at the time of incident. She further testified that she had seen the driver of the offending vehicle who had fled from the place of incident and went on to testify that the accident had taken place due to rash and negligent driving of the accused at a high speed.
7) She correctly identified the accused in the court and during leading questions put to her by Ld. APP, she admitted that the time of incident was around 4:45 pm but she could not remember due to lapse of time whether or not the registration number of TSR was 4826 or whether the registration of Maruti Van was DID 6770. She could also not remember due to lapse of time whether the offending vehicle was come from the side of Wazirpur or not. She also admitted that her sister had sustained injuries on both hands. The accused did not dispute the identity of the offending vehicle during the testimony of PW-2 as well. PW-2 was duly cross-examined by FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 4 of 15 Ld. Counsel for the accused wherein she testified that at the time of accident excluding the driver her brother Anshul was also sitting in the auto along with her mother and sister. She further testified that she had sustained only minor injuries on her hand and that the digging work was at the place of the incident where the auto had overturned. She further testified that she had seen the glimpse of the accused when he was fleeing from the spot and her mother had identified him.
8) PW3 Smt. Geeta being another injured testified on similar lines as PW-2 Ms. Shruti and went on to testify that she had seen the driver of the offending vehicle and had also seen him fleeing from the place of incident. She correctly identified the accused in the court and gave similar responses as PW-2 to the leading question put to her by Ld. APP. The accused did not dispute the identity of the offending vehicle during the testimony of PW-3 as well. She was duly cross- examined by Ld. Counsel for the accused.
9) PW-4 SI Balkar Singh, being the then Duty Officer testified as to having registered the present FIR ie Ex.PW-4/A on 15.01.1995, after receipt of rukka from Ct. Jitender sent by SI Darshan Lal and he also proved his endorsement Ex PW4/B upon the same. He also relied upon the photocopy of the said FIR Ex.PW-4/C. He was not cross- examined by the accused despite opportunity.
10) PW5 Sh. K.D Sharma being the Record Clerk, Maharaja Agarsen FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 5 of 15 Hospital, Punjabi Bagh, identified the handwriting and signatures of Dr. Praveen Garg on the MLC of Baby Priyanka ie, MLC No. 507 ie., Ex.PW-5/A wherein the nature of injury had been opined by Dr. Praveen Garg as simple testifying that he had been deputed by the Medical Superintendent of Maharaja Agarsen Hospital to bring the original medical record of Baby Priyanka who was examined by Dr. Praveen Garg on 15.01.1995 and his whereabouts were not known nor any doctor was there in the hospital who had worked with him or could identify his signatures and handwriting testifying further that he had seen Dr. Praveen write and put signatures during the course of his official duty. He was duly cross-examined by the Ld. Counsel for the accused.
11)PW-6 Sh. K.V Singh, being the Record Keeper, Hindu Rao Hospital testified as to having been deputed by Medical Superintendent of Hindu Rao Hospital to bring the original medical record relating to MLC No. 410/95 of one Sh. Jagat Singh S/o Sh. Kehar Singh who was examined in the said hospital on 15.01.1995 by Dr. N.R Tuli who was working as CMO in the said hospital at that time as the present whereabouts of Dr. N.R Tuli were not known to the hospital and there was no other doctor in the hospital who had worked with him or could identify his signatures or handwriting. He further testified that he could identify the signatures of handwriting of Dr. N.R Tuli as he had seen him writing and putting signatures during the course of his official duties and further testified as to the original record relating to the abovesaid MLC having been weeded out. He FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 6 of 15 further testified that he could also identify the signature and handwriting of Dr. Birender Singh who was working in the said hospital as Dr. Orthopediacs in the year 1995 and his present whereabouts were not known to the hospital. He identified the signatures of Dr. N.R Tuli on the MLC no. 410/95 of Jagat Singh ie., PW-6/A on which the nature of injury was opined by Dr. Birender Singh as grievous and he also identified the signatures of Dr. Birender Singh thereon testifying further that the weapon used was blunt.
12) During the course of trial, vide separate statement of accused recorded on 22.05.2018, he did not dispute the genuineness of TIP proceedings Ex.Z1 upon which relevant witnesses were dropped.
13) The prosecution evidence was thereafter closed upon request of the Ld APP for the State whereafter statement of accused was recorded under Section 281 read with Section 313 of the Code of Criminal Procedure, 1973 wherein the entire incriminating evidence was put to the accused who maintained his innocence stating that he had been falsely implicated as it was the auto which was coming from front at a high speed and it was the auto which had stuck from back side.
14) The accused also opted to lead defence evidence and examined himself as DW-1 after his application under Section 315 Cr.P.C was allowed.
FIR No. 09/1995PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 7 of 15
15) As DW-1, the accused testified that in January 1995 when he was coming from Azadpur side towards Britania Chowk, he took left turn from Britania Chowk towards Lawrence road and there was a pit/dug hole on the turn and at the same time an auto came from the opposite side and hit him from behind and his car stopped due to said dug hole and the accident in question took place. He further testified as to having sustained injuries and as to one public person having taken him to near by doctor/small hospital who treated him and sent him home.
16) The accused/DW-1 further testified that he had gone to the place of accident on the next day and came to know that his vehicle had been taken to PS Keshav Puram and he then got it released from the said PS and he was also admitted to bail. He further testified that he also come to know in the PS that the passengers as well as driver had received minor injuries in the said accident and that he will be informed if there is any issue/clarification and he left Delhi after approximately one month since he had changed his residence and came to know in 2016 when he applied for renewal of his passport. He was duly cross-examined by Ld. APP for the State.
17) Thereafter, the defence evidence was closed vide separate statement of accused and final arguments were advanced by Ld. APP for the State and by Ld. Counsel for the accused which have been carefully considered along with the evidence on record.
FIR No. 09/1995PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 8 of 15
18) It is a settled proposition of law that in a criminal trial, it is for the prosecution to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and to ensure that its case is able to stand on its own legs. Accused is entitled to the benefit of every reasonable doubt in the prosecution version.
19) In the case at hand, it was for the prosecution to prove:
1. the factum of the accident having taken place between Maruti Van bearing no. DID 6770 and TSR bearing no. DHR4826.
2. the identity of the accused as being the driver of the offending vehicle ie., Maruti van bearing no. DID 6770 at the time of the accident;
3. the factum of the accident to be the result of the rash and negligent driving of the accused at a public place and
4. the factum of simple injury to Baby Priyanka and grievous injury of Jagat Singh having resulted from such accident.
Appreciation of evidence
20) From the oral testimony of PW-1 Priyanka, PW-2 Shruti and PW-3 Geeta the factum of accident having taken place between Maruti Van bearing no. DID 6770 and TSR bearing no. DHR4826 on the date of the accident ie., 15.01.1995 stands duly proved as even in the cross- examination of these witnesses no suggestion to the contrary was put to them nor at the time of recording of statement under Section 281 read with 313 of the Code of Criminal Procedure, the accused has disputed the same. Hence, the factum of accident having taken FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 9 of 15 placed between between Maruti Van bearing no. DID 6770 and TSR bearing no. DHR4826 being admitted stands proved.
21) It is also duly noted here that PW-1 Priyanka, PW-2 Shruti and PW-
3 Geeta have all correctly identified the accused Ravi in the Court as being the driver of the offending Maruti Van bearing no. DID6770 at the time of the accident. The accused has also not disputed the genuineness of TIP proceedings Ex.Z-1 wherein also he had not disputed the factum of him driving the Maruti van at the time of the accident. Even in the cross-examination of PW-1 Priyanka, PW-2 Shruti and PW-3 Geeta no suggestion was put to them as to the accused not being the driver of the Maruti Van nor at the time of recording of statement under Section 281 read with 313 of the Code of Criminal Procedure, the accused has disputed the same. Hence, the factum of the accused driving the Maruti Van bearing no. DID 6770 at the time of accident stands proved as admitted.
22) However, to prove its case, it was also imperative for the prosecution to prove the rashness and negligence on the part of the accused while he was driving the offending vehicle at the time of the accident. It has to be borne in mind that a rash act is primarily an overhasty 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.
FIR No. 09/1995PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 10 of 15 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 (Ref: Mohd. Aynuddin alias Miyam v. State of A.P. (2000) 7 SCC 72).
23) In the present case, PW-1 Priyanka has categorically testified that on 15.01.1995 when she was travelling in an auto from Moti Nagar to Lawrence Road with her mother, sister and brother and had reached at Red Light, Britania Chowk, one sky blue color Maruti Van had come from their left side in rash and negligent manner and hit their auto on the left side causing it to overturn on the right side which resulted in injuries. PW-1 Priyanka however has not elaborated as to the manner of such rashness or negligence.
24) It is duly noted that PW-2 Shruti Malhotra and PW3 Geeta have also testified on similar lines testifying further that when the traffic signal of their side was green, their auto rickshaw was taking a turn towards Lawrence Road from Britania Chowk side and that the Maruti van was being driven in a high speed. It is duly noted that it is not the case of the prosecution that the accused had jumped any red light before hitting the auto in question in as much as even in the site plan Mark Z, the direction of the Maruti car is shown to be travelling from the left side of the ring road to taking a left turn towards FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 11 of 15 Lawrence Road. There is also nothing on record to indicate that the left turn was not free and hence, negating the presence of any rashness or negligence on his part while so taking a turn.
25) It has been argued that by the Ld APP for the State that since the vehicle was being driven in high speed which the accused could not control, the presence of rashness/negligence stands proved. There is however, no merit in the argument as raised since it is noted that while PW2 Shruti and PW-3 Geeta have testified on similar lines as to the accused driving the Maruti Van in high speed and in rash and negligent manner, the prosecution has not been able to prove on record the exact speed at which the car was being driven. It is to be borne in mind that while a witness may depose as to the manner of driving or speed at which the vehicle was being driven, the witness cannot render an opinion on 'rash and negligent' since high speed in itself may not be sufficient to hold that the driver of the vehicle was rash or negligent. (Ref: Kishore Chand Joshi v State (2018) SCC Online Del 12337).
26) It is pertinent to note that even if the van was being driven in 'high speed', that in itself does not lead to the inference that there was presence of either any "negligence" or "rashness" on the part of its driver even more so when none of the witnesses examined by the prosecution could give any indication, even approximately, as to what was meant by "high speed" as 'high speed' is a relative term and FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 12 of 15 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.
27) It cannot be lost sight of that in a criminal trial, the burden of providing 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 this 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". (Ref State of Karnataka v Satish (1998) 8 SCC 493).
28) In this case, PW2 Shruti has herself admitted in her cross-
examination that some digging work was going on at the time of the accident and even PW3 Geeta has reiterated in her cross-examination that digging work was going on on the left side of road where the accident took place. However, for reasons best known to the IO, no such digging work has been reflected in the site plan as filed and since the IO could not be examined in this case, no explanation could come on record for such omission thereby causing benefit of the doubt to be extended to the accused for such withholding of fact.
FIR No. 09/1995PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 13 of 15
29) It is also duly noted that the prosecution has also failed to prove on record the point of impact between the van and the Auto since, the mechanical inspection reports of both the vehicles were not proved during trial. In the absence thereof, merely on the vague testimony of PW1 to PW3 as to van being driven in rash and negligent manner, the Court cannot resort to conjectures and surmises to assume presence of rashness or negligence on the part of the accused ie to assume that the accident took place only because the accused failed to exercise reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. Hence, it is held that the prosecution has failed to prove the presence of rashness or negligence of the accused to have resulted in the accident in question.
Decision
30) In view of the above discussion, and in the totality of the facts and circumstances of his case, as the prosecution has failed to discharge the onus placed upon it and has failed to prove its case beyond any reasonable doubt, the benefit of doubt is given to the accused Ravi @ Ravinder Bartarya S/o: Sh Sh. R.B Bartarya and he is acquitted of offence under Section 279/304A IPC in FIR No.9/95 PS Keshav Puram.
31) The accused is directed to furnish fresh personal bond in a sum of Rs. 10,000/- with one surety in like amount in compliance of provisions of Section 437A of the Code of Criminal Procedure and is FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 14 of 15 directed to be present before the Ld. Appellate Court as and when notice is served upon him.
32) File be consigned to the Record Room after necessary compliance.
Announced in the open court
on 25.11.2019 POOJA
Digitally signed by
POOJA AGGARWAL
AGGARWAL Date: 2019.11.25
17:03:09 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi Certified that this judgment contains 15 pages and each page bears my signature.
Digitally signed by POOJA POOJA AGGARWAL
AGGARWAL Date: 2019.11.25
17:03:16 +0530
(POOJA AGGARWAL)
Metropolitan Magistrate-04/ North West District Rohini District Court/New Delhi FIR No. 09/1995 PS Keshav Puram U/s 279/337/338 IPC State Vs Ravi @ Ravinder Page No. 15 of 15