Delhi District Court
State vs . Balbir Singh on 27 May, 2019
1
IN THE COURT OF MS. NEETI SURI MISHRA: METROPOLITAN MAGISTRATE02
(CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Balbir Singh
FIR No. 486/05
U/s: 279/304A IPC
P.S. Timar Pur
CNR No. DLCT020001412006
J U D G M E N T
Unique Identification No. : 288245/16 Date of Institution : 08.02.2006 Date on which case reserved for judgment : 27.04.2019 Date of judgment : 27.05.2019 Name of the complainant : Sh. Rakesh Kumar Date of the commission of offence : 11.10.2005 Name of accused : Balbir Singh, S/o Late Sh. Jyota Singh, R/o. Village Ahru Khurd, Devi Garh, Distt. Patiala, Punjab147111. Offence complained of : U/s 279/304A IPC Offence charged of : U/s 279/304A IPC Plea of the accused : Pleaded not guilty. Final order : Acquitted FIR No .486/05, State vs. Balbir Singh 2
1. The factual background of the present case as per prosecution is that on 11.10.2005, at about 12.45 pm, at the main Sant Nagar, Burari, Delhi, the accused Balbir Singh was driving one Truck bearing no. HR 37B 1373 in such a rash or negligent manner, so as to endanger human life and personal safety of others and he allegedly, hit one cyclist namely Deepak thereby causing his death (not amounting to culpable homicide). The allegations thus, levelled by prosecution against the accused are that he committed offences punishable u/s 279/304A IPC.
2. It is alleged that after the accident, PCR call was made and subsequently, information at PS. Timarpur was received regarding the accident and eventually, FIR in the present case was registered. Investigation was thereafter conducted by the police officials and on conclusion of the investigation, chargesheet was filed in terms of Section 173(2) Cr.P.C. for the offences under Section 279/304A IPC. The court took cognizance of the offences, summoned the accused and on his appearance, copy of the chargesheet was supplied to him in compliance with the provision under Section 207 Cr.P.C.
3. Thereafter, on the basis of the contents of chargesheet, the substance of accusations was explained to the accused in terms of Section 251 Cr.P.C. The accused did not plead guilty and claimed to be tried.
4. To establish the guilt of the accused, prosecution examined a total of ten (10) witnesses and the record of their testimonies is as under:
PW1 Devender Singh deposed that deceased Deepak Kumar was his nephew who had expired in a road side accident. He proved his dead body identification statement recorded at Subzi Mandi Mortuary as EX.PW1/A and stated that after the FIR No .486/05, State vs. Balbir Singh 3 postmortem, the dead body of the deceased was handed over to his father.
PW2 Rakesh Kumar deposed that he was having a shop of Tent house in the name of Chawla Tent House. He stated that on 11.10.2005, at about 12.30 pm, he was present at Thakur Auto Spare Parts shop where he saw that one truck bearing no. HR 37B 1373 was coming from the side of Burari by driving in high speed and was going towards Bypass and hit one person who was on cycle and the offending vehicle had run away towards Burari Bypass. He stated that the deceased had come under the abovesaid offending vehicle and the said offending vehicle had crushed. He further stated that he chased the said offending vehicle by his scooter and stopped the offending vehicle at red light near Burari Authority. He stated that the driver of the said offending vehicle came out from the abovesaid offending vehicle and disclosed his name as Balbir and then he handed over the accused to the police official. He further identified the accused in the court and stated that the police recorded his statement proved as EX.PW2/A. Witness identified the spot from the photographs which are already on record. He stated that the photographs are Mark A. The speed of the vehicle according to him was 40 to 50 km/ph and stated that the deceased was driving his cycle on the left side of the road. He stated that the left side front portion of the truck hit against the cycle.
PW3 ASI Ravinder Singh deposed that on 11.10.2005, he was posted as head constable and his duty hours were from 8 am to 8 pm. He stated that on that day, he registered FIR in the present case proved as EX.PW4/A on the basis of rukka sent by ASI Balbir Singh and stated that thereafter, he handed over the copy of FIR and original rukka to Ct. Yashpal.
PW4 HC Yashpal Singh deposed that on 11.10.2005, he was posted as FIR No .486/05, State vs. Balbir Singh 4 constable at PP. Burari PS. Timar Pur and on that day, he was on patrolling duty in the area of Sant Nagar Burari where he received a call from the PS to reach at outer ring road Burari red light and he immediately reached at the aforesaid place where a public person namely Rakesh Kumar was apprehending driver namely Balvir Singh along with a truck container bearing number HR 37B 1373. He stated that ASI Balbir Singh/IO was also present at the aforesaid place and IO recorded statement of aforesaid Rakesh Kumar and prepared the rukka and handed it over to him for registration of FIR. Witness stated that he went to PS, got FIR registered and returned back on the spot with copy of FIR and original rukka and handed over the same to the IO and IO recorded his statement PW5 Retired ASI/Tech Devender Kumar deposed that on 12.10.2005, he mechanically inspected one Tata truck container bearing no. HR 37B 1371, on request of ASI Balbir Singh. Witness proved his mechanical inspection report as EX.PW5/A. PW6 Ishwar Singh denied clicking any photographs of present case FIR and denied knowing anything about the case. Witness was crossexamined by Ld. APP for the State.
PW7 HC Vikas deposed that on 11.10.2005, he was posted as a constable at PS. Timapur and on that day, he was working as duty officer from 8 am to 8 pm and at about 12.45 pm, he received a call from Control Room regarding accident. Witness stated that he recorded this information vide DD entry no. 22 proved as EX.PW7/A(OSR) and shared the information with ASI Balvir Singh for investigation.
PW8 Shiv Mohan deposed that on 11.10.2005, he was posted s Assistant Ambulance Officer, Babu Jagjeevan Ram Hospital and on that day, at about 12.30 FIR No .486/05, State vs. Balbir Singh 5 pm, on receiving the information of accident, he took the CAT ambulance and reached at Main Burari road near Vinayak Estate and found one injured of the age of 1617 years and there was no sign of life in him. Witness stated that thereafter, they returned back to the hospital.
PW9 Dr. Akash Jhanjee, Specialist Forensic Medicine, Sabzi Mandi Mortuary, Delhi deposed that on 12.10.2005, he was posted at Sabzi Mandi Mortuary as Junior Specialist and on that day, his colleague namely Dr. Ashok Jaiswal was also posted at Sabzi Mandi Mortuary as Chief Medical officer. Witness stated that he had been deputed by Medical Superintendent of Aruna Asaf Ali Govt. Hospital to identify the signatures of the doctor Ashok Jaiswal. Witness stated that he can identify the signature of Dr. Ashok Jaiwal as he had seen him while signing and preparing different PM reports during the course of duty with him. Witness stated that as per the record, Postmortem Number 1557 of deceased namely Deepak was conducted by Dr. Ashok Jaiswal on 12.10.2005 and the Postmortem Report is EX. PW9/A which bears the signature of Dr. Ashok Jaiswal.
PW10 Retired SI Balbir Singh deposed that on 11.10.2005, he was posted as an ASI at PS. Timar Pur and on that day, at about 12.45 pm, he received an information vide DD no. 22 regarding an accident. He stated that he along with Ct. Ajeet went to Sant Nagar Burari, Opposite Vinayak Steel and saw that one cycle was in accidental condition and one boy aged about 1617 years was lying on the road and was bleeding from his mouth and ear. Witness stated that in the meantime, the CAT Ambulance Alpha One reached there and he helped them to take out the injured and I/C man of above said CAT told him that injured has already expired and thereafter, he called one photographer at the spot and got clicked the photographs of that body. Witness stated that he shifted the dead body to the Sabzi Mandi Mortuary through Ct. Sitaram and in the meantime, witness came to know FIR No .486/05, State vs. Balbir Singh 6 that the offending truck which caused this accident was caught by public at Burari red light. He stated that then he went to Burari red light, there one Rakesh Kumar met him who handed him over the custody of the accused and offending vehicle and witness recorded statement of Rakesh Kumar which is already EX.PW2/A. Witness stated that he prepared the rukka EX.PW10/A and handed him over the same to Ct. Yashpal for registration of FIR and after some time, Ct. Yashpal returned back to the spot along with copy of FIR and original rukka and handed over the same to him. Witness stated that thereafter, he along with accused and Ct. Yashpal along with truck and complainant Rakesh went to spot and he prepared the site plan at the instance of the complainant proved as EX.PW10/B and also seized the DL of the accused and prepared the seizure memo EX.PW10/C. Witness stated that he also seized the offending truck and cycle proved as EX.PW10/D and EX.PW10/E and also seized the RC, insurance and permit of the offending vehicle proved as EX.PW10/F. Witness stated that he arrested the accused and conducted his personal search vide memos EX.PW10/G and EX.PW10/H and on the next day, he handed over the dead body of the deceased to the relatives after the identification which was proved as Dead Body Identification Memo proved as EX.PW10/I. He stated that the Handing Over Memo of dead body is EX.PW10/J. Witness stated that he recorded the statement of witness and got the truck mechanically examined bearing no. HR 37B 1373.
Witness correctly identified the accused in court and also correctly identified the dead body from five photographs and the photographs along with negatives are already mark A. Witness also correctly identified the offending vehicle from two photographs from the judicial file and photographs along with negatives are EX.P1(Colly.).
5. On completion of prosecution evidence, all the incriminating facts and FIR No .486/05, State vs. Balbir Singh 7 evidence were put to the accused, as per the mandate of Section 313 r/w Section 281 Cr.P.C. and his statement was recorded without oath. Accused refused to lead defence evidence. Subsequently, the case was fixed for final arguments.
6. Final arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused were duly heard and considered and the evidence of prosecution witnesses alongwith the documentary evidence led by the prosecution were thoroughly examined. Ld. APP for the State argued that prosecution has proved its case beyond reasonable doubt. Per contra, Ld. Counsel for accused while refuting the arguments advanced by Ld. APP for State contended that prosecution has miserably failed to establish the accusation against the accused and the sole eyewitness has not supported the prosecution's case.
7. It has been the case of prosecution that on 11/10/2005 at about 12:45 pm at the Main Sant Nagar, Burari Road, Opposite Vinayak Steel, Burari, the accused Balbir Singh was driving a truck bearing no. HR 37B 1373 in such a rash or negligent manner that while driving the vehicle in such manner he hit one cyclist namely Deepak and crushed him under the truck, thereby causing his death, not amounting to culpable homicide. The offence alleged by prosecution against the accused are punishable u/s 279/304A IPC.
8. It is settled law that Section 279 IPC punishes the act of a person driving or riding a vehicle on a 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. Section 304A IPC punishes the act of causing death (not amounting to culpable homicide) of a person by doing a rash or negligent act. In the case of Abdul Subhan vs State (NCT Of Delhi), 133 (2006) DLT 562, the Hon'ble High Court of Delhi while discussing about the ingredient of Section 279 & 304A IPC observed:
FIR No .486/05, State vs. Balbir Singh 8 "As observed in Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under Section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved."
The abovementioned judgment sufficiently enlightens us that for establishing accusations u/s 279/304A IPC, prosecution is not only required to establish that the accused was rash or negligent while driving the vehicle, but it is additionally incumbent on prosecution to establish that the causa causans of death of deceased / or the proximate cause of death of deceased was the act of accused.
9. Further, what would constitute a rash and negligent act has been described by the Hon'ble Supreme Court in Mohammed Aynuddin @ Miyan vs State Of Andhra Pradesh on 28 July, 2000, in the following words:
"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. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
10. Besides this, it has also been upheld in various decisions that evidence of high speed simpliciter, is not ipso facto proof of rashness or negligence.
FIR No .486/05, State vs. Balbir Singh 9 In the case of Rajib Netra Panigrahi vs State Of Orissa on 20 July, 1990, Hon'ble Orissa High Court, observed:
"It is no doubt true, as contended on behalf of the petitioner and as supported by authorities, that high speed in driving of a vehicle does not by itself amount to rash and negligent driving. If the accuseddriver was driving the vehicle on the highway and had negotiated the distance safely, it could not have been said that he was driving rashly or negligently because of the high speed."
11. In the case of Kishore Chand Joshi v. State, (decided on 12.11.2018), the Hon'ble High Court of Delhi observed:
"17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver."
The Hon'ble High Court of Delhi in Abdul Subhan (Supra), also observed:
"The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of highspeed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very highspeed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent."
12. Further in Abdul Subhan (supra), the decision of State of Karnataka v. Satish, 1998 SCC (CRI) 1508, was also discussed in which the Supreme Court observed:
"3. Both the trial court and the appellate court held the respondent guilty for offences under Section 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "highspeed". 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 "highspeed", both the courts pressed into aid the doctrine of res ipsa loquitor to hold the respondent guilty.
FIR No .486/05, State vs. Balbir Singh 10
4. Merely because the truck was being driven at a "highspeed" 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 "highspeed". "Highspeed" is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "highspeed" 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 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".
13. Besides the ingredients mentioned above, the identity of the accused as driver of the vehicle must also be established separately, by prosecution in order to prove the guilt of accused.
14. With regard to the identity of accused as driver of truck bearing no. HR37B 1373 it is noteworthy that accused has not denied that he was driving the truck abovementioned. Ld. Counsel for accused argued that it is not in dispute that the truck in question was being driven by the accused, which is also clear from the statement of the accused recorded under Section 313/281 Crpc. Hence, the ingredient regarding the accused being driver of abovementioned truck stands established beyond all reasonable doubt.
15. Next ingredient which it was incumbent for prosecution to prove against the accused was rashness or negligence in his driving the truck, abovementioned. To substantiate its allegations of rashness or negligence, prosecution summoned in the dock its sole eyewitness Shri Rakesh Kumar who claimed to have witnessed the FIR No .486/05, State vs. Balbir Singh 11 accident and was examined as PW2. Before embarking on appreciation of his evidence, it is deemed fit and appropriate to reproduce the relevant portion of this testimony for the sake of convenience as under:
"I am residing at the above said address with my family and was having a shop of Tent House in the name of Chawla Tent House. On 11.10.2005 at about 12:30 pm I was present at Thakur Auto Spares Part shop where I saw that one truck bearing No. HR37B1373 was coming from the side of Burari by driving in high speed and was going towards bypass and hit to a person who was on cycle and the offending vehicle had run away towards Burari bypass. The deceased had come under the above said offending vehicle and the said offending vehicle had crushed. I chased the said offending vehicle by my scooter and stopped offending vehicle at red light near Burari authority."
16. In the abovequoted testimony of PW2, except the allegations that the truck was being driven at high speed, there is no other deposition regarding the manner in which the accused was driving the truck in question. There is an absolute dearth of evidence regarding rashness or negligence in his driving the truck by accused, in the testimony of PW2. The speed of truck has been disclosed by the witness in the latter part of his testimony as 4050 kms per hour, but it is not clear whether the said speed was above the speed limit fixed for the vehicles in that area. Furthermore, their exists no evidence of the manner in which the accident occurred. The testimony of witness is silent on the point of how and from which site was the cycle of deceased hit. It is not clear whether deceased was riding his cycle in the left lane of the road or in the middle lane of the road or from where did the truck hit him. There is no evidence about by which tyre of the truck was the deceased crushed. Even the site plan does not furnish any cue about the spot of accident and rightly so, because the alleged sole eyewitness denied in his crossexamination that the site plan was prepared at his instance. He has totally refuted that after he handed over the accused to the police, he participated in further investigation proceedings conducted by the IO. Further, the witness deposed that at the time of accident he was present at Thakur Auto Spare Parts shop, but in the site plan proved as FIR No .486/05, State vs. Balbir Singh 12 Ex.PW10/B the said shop is not depicted. Therefore, there lies complete ambiguity about the distance from where the witness had seen the accident.
17. Additionally and strangely, the witness in his examinationinchief deposed that he had chased the offending vehicle by his scooter and stopped it at the red light near Burari Authority. But in his crossexamination he admitted as correct that the abovesaid scooter by which he had chased the offending vehicle was driven by someone else and he was the pillion rider. In this regard, it is unclear as to from where and when did he meet that another person who the witness permitted to drive his own scooter, when he was himself riding it. It is further strange that the witness failed to disclose the name of the said person whom he permitted to drive the vehicle. What is furthermore ambiguous is whether that person was also an eye witness and as to why was he not made a witness by the IO if he had also apprehended the accused from the spot. It is also unclear as to why PW4 HC Yashpal Singh deposed that when he reached at the spot, he found only PW2 with the driver. If both PW2 and the other person had intercepted the truck of accused then whey was he not made witness.
18. Thus having considered the testimony of the sole eyewitness, it is absolutely clear that he is not a trustworthy witness. No reliance can be placed on his testimony for convicting the accused as there are material discrepancies in his evidence. Needless to say that the burden to prove the guilt of accused is on prosecution and this general burden never shifts. Hence, in view of the foregoing discussion, it is held that the prosecution has failed to prove beyond all reasonable doubts that the accident causing the death of the deceased Deepak was caused by the accused due to his rash or negligent driving of the truck bearing no. HR37B1373. The evidence led by prosecution is not only deficient on the essential ingredient of rashness or negligence in driving the vehicle but even the sole eyewitness does not appear to be FIR No .486/05, State vs. Balbir Singh 13 a trustworthy and believable witness. The accused Balbir Singh is thus acquitted for the offences punishable under Section 279/304A IPC in the present case.
19. Bail bond in compliance of Section 437 A Cr.P.C was directed to be furnished.
NEETI Digitally signed by
NEETI SURI MISHRA
SURI Date: 2019.06.05
MISHRA 20:43:53 +0530
Pronounced in open court (NEETI SURI MISHRA)
on 27.05.2019 MM02 (Central): Tis Hazari Courts
Courts:Delhi:/27.05.2019
(This Judgment contains 13 pages and
all pages are signed by me)
FIR No .486/05, State vs. Balbir Singh