Delhi District Court
Accusation Against The Accused vs Vide This Judgment The Accused Is Being ... on 13 August, 2014
IN THE COURT OF METROPOLITAN MAGISTRATE-05
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Bhim Singh
FIR No. 337/2010
Police Station : Dwarka North
Under Section : 279/338 IPC
Unique Case ID Number: 02405R0097962012
Date of institution : 24.01.2012
Date of reserving : 23.07.2014
Date of pronouncement: 13.08.2014
JUDGMENT
a) Serial number of the case : 166/6/14
b) Date of commission of offence : 03.10.2010
c) Name of the complainant : Constable Prashant,
No. 3867/Traffic Circle,
Dwarka Sector-23.
d) Name, parentage and address : Sh. Bhim Singh
of the accused S/o Sh. Pratap Singh,
R/o Village Samaspur Khalsa,
District Jaffar Pur,
New Delhi-73.
e) Offence complained of : Section 279 read with Section
338 IPC
f) Plea of the accused : Pleaded not guilty
State v. Bhim Singh
FIR No. 337/2010 P.S.: Dwarka North Page 1 of 23
g) Final order : Acquitted
h) Date of final order : 13.08.2014
BRIEF STATEMENT OF FACTS AND REASONS FOR THE
DECISION
1. Vide this judgment the accused is being acquitted of the offences punishable under Section 279 read with Section 338 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 337/2010 Police Station Dwarka North by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Succinctly, the case of the prosecution is that on 03.10.2010 at about 08:30 a.m. at Red Light, Road No. 201, Sector-1, Dwarka, New Delhi within the jurisdiction of Police Station Dwarka North, the accused was found driving a Green Line Low Floor DTC bus bearing no. DL 1 PC 7988 in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause injury to any other person and caused simple as well as grievous injuries to Smt. Sonam Chedan.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was filed.
4. The case was received by way of transfer by this Court on 27.01.2014.
State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 2 of 23 ACCUSATION AGAINST THE ACCUSED
5. Vide order dated 25.04.2012 passed by the learned predecessor of this Court, notice of accusation under Section 251 Cr.P.C. for the offences punishable under Sections 279, 337 and 338 of the I.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
EVIDENCE OF THE PROSECUTION
6. The prosecution in all examined ten witnesses.
7. PW-1 Ms. Sonam is the injured in the present case. PW-2 Constable Prashant is the complainant/eye-witness of the accident. PW-3 Head Constable Amar Singh is the duty officer who had recorded FIR no. 337/10 Ex.PW3/A in the present case and had made his endorsement Ex.PW3/B on the rukka. PW-4 Sh. V. K. Mishra is the Foreman in the DTC who had mechanically examined the DTC bus No. DL 1 PC 7988 and vide his report Ex.PW4/A. PW-5 (wrongly mentioned as PW-4) Constable Rajender Singh had joined the investigation with the investigating officer and had taken the rukka to the police station for registration of FIR. PW-6 Sh. Jugti Ram Khatri had appeared on behalf of Depot Manager Sh. Vijay Singh Thakur and deposed that on 03.10.2010, he had handed over to the investigating officer the photocopy of the insurance, certificate of registration and permit of DTC bus No. DL 1 PC 7988, duty slip of driver/accused Bhim Singh dated 03.10.2010 Ex.PW6/A and the same were seized by the investigating officer vide memo Ex.PW4/D. He further deposed that the said DTC State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 3 of 23 bus was got released on superdari vide superdarinama Ex.PW6/B. PW-7 Dr. Sanjay Rai identified the signatures of Dr. Siddharth, who had medically examined injured Sonam in the DDU Hospital vide MLC Ex.PW7/A. PW-8 Dr. Shailender Jain, Surgeon, Ayushman Hospital, Dwarka deposed that neither he had treated the injured Sonam in connection with the present case or prepared her MLC no. 18345 nor was she admitted in Ayushman Hospital. PW-9 Sh. Roshan Lal, record clerk from DDU hospital brought the MLC No. 18345, Ex.PW7/A of injured Sonam and identified the handwriting and signatures of Dr. Siddharth on the same. PW-10 Sub Inspector Jagdish Chander is the investigating officer in the present case.
STATEMENT / DEFENCE OF THE ACCUSED
8. In his examination under Section 313 Cr.P.C., the accused denied the entire evidence put to him. He categorically stated that he is innocent and has been falsely implicated in the present case. Though he admitted that he was driving the bus in question at the relevant place, time and date, he stated that he was not driving it in a rash or negligent manner. He further stated that he was driving the bus normally and was crossing the signal when it was green but the lady/injured was talking on phone and she did not even notice the signal and stepped on the road and came in front of the bus. He further stated that he was not at fault. He added that the victim fell down out of fright after seeing the bus and the bus had not even touched her. He further stated that the injuries sustained by the injured Smt. Sonam were not grievous. He stated that the site plan is wrong and there were State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 4 of 23 no skid marks at the spot. He further stated that the victim was crossing the road at some distance after the Zebra crossing and not on the Zebra crossing, which was between the bus and the injured.
DEFENCE EVIDENCE
9. To prove his defence, the accused examined two witnesses. DW-1 Sh. Jagbir Singh and DW-2 Sh. Sanjay were traveling in the offending bus at the time of the accident. They both deposed on the same lines and stated that at the time of the alleged accident, the bus in question was being driven by the accused and they were traveling in the said bus. They deposed that at the red light of Sector-1, Dwarka, when the driver started the bus after the signal had turned green for his side, a woman was crossing the road while talking on the phone. They further deposed that the bus had not even touched the lady (injured), who fell down of her own. They stated that the accident was not caused due to the negligence of the accused.
ANALYSIS AND FINDINGS
10. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Jai Dev Sharma, learned counsel for the accused have been considered.
I. Charge under Section 279 of the I.P.C.
11. In order to bring home the guilt of the accused in respect of the offence under Section 279 I.P.C. charged against him, the prosecution was required to prove the following:
State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 5 of 23
(i) that it was the accused who was driving the offending vehicle on the date, time and place of the alleged accident;
(ii) that it was the vehicle i.e. DTC Green Line Low Floor Bus bearing No. DL 1 PC 7988 which was being driven by the accused on the date, time and place of the alleged accident; and
(iii) that the accused was driving the offending vehicle in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person.
Re: Identity of the accused
12. In order to establish the identity of the accused qua the accident in question i.e. to establish that it was the accused who was driving the offending vehicle i.e. DTC Green Line Low Floor Bus bearing No. DL 1 PC 7988 on the date, time and place of the alleged accident, the prosecution has examined three witnesses i.e. PW-1 Smt. Sonam, PW-2 Constable Prashant and PW-6 Sh. Jugti Ram Khatri.
13. PW-1 Smt. Sonam is the injured in the present case. She deposed that on the day of the incident at the relevant time, she was going to her house to take a file as she had forgotten to take the same along with her at the time of leaving for her office and when she was trying to cross Red Light, Sector-2, Dwarka, a DTC Green Low Floor bus hit her due to which she sustained injuries. On a specific question having been put to her by learned Assistant Public Prosecutor for the State as to who was driving the vehicle, she stated that she did not remember the driver of the vehicle. She has not been cross-examined State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 6 of 23 on this aspect by learned Assistant Public Prosecutor for the State. As such, her testimony is of no aid to the prosecution in establishing the identity of the accused qua the alleged accident.
14. As per the prosecution case, PW-2 Constable Prashant had also witnessed the accident in question as he was on duty at the spot. In his testimony recorded in the court, he has correctly identified the accused as the driver of the offending vehicle. He was not cross-examined on behalf of the accused on the point of identity of the accused. Not even a suggestion was put to the said witness in his cross-examination on behalf of the accused to the effect that the accused was not driving the bus in question at the relevant time. Accordingly, his testimony as to the identity of the accused in respect of the alleged accident has remained unchallenged.
15. PW-6 Sh. Jugti Ram Khatri is a retired Traffic Inspector from DTC who had handed over the documents of the vehicle along with duty slip of the accused to the investigating officer. He produced the duty slip Ex.PW6/A of the accused as per which on the day of the alleged accident, accused Bhim Singh was driving the offending vehicle i.e. DTC Green Line Low Floor Bus bearing No. DL 1 PC 7988. The said witness had not been cross-examined on behalf of the accused. His testimony has, therefore, remained unchallenged.
16. Further, in his statement recorded under Section 313 Cr.P.C., the accused has admitted that he was driving the vehicle in question on the date, time and place of the alleged accident. The said admission on part of the accused lends credence to the evidence led by the State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 7 of 23 prosecution. Moreover, DW-1 Sh. Jagbir Singh and DW-2 Sh. Sanjay, produced in defence evidence by the accused, also deposed that on the date and time of the alleged accident, the accused was driving the bus in question.
17. In view of the above, the prosecution has successfully established that it was the accused who was driving the vehicle in question on the date, time and place of the alleged accident.
Re: Identity of the offending vehicle
18. The case of the prosecution is that on the relevant date, time and place the accused was driving the DTC Green Line Low Floor Bus bearing No. DL 1 PC 7988.
19. The injured PW-1 Smt. Sonam could not state the registration number of the offending vehicle. After seeing the bus in question, she deposed that she did not recall the registration number of the bus but the bus which had hit her looked just like the bus produced by the superdar. Thus, she could not identify the offending vehicle with certainty despite the same having been shown to her. As such, her testimony is of no aid to the prosecution on the point of identity of the bus bearing No. DL 1 PC 7988 in respect of the alleged accident.
20. The complainant PW-2 Constable Prashant stated the correct registration number of the alleged offending vehicle in his testimony. Though the offending vehicle was not shown to him during his examination in the court and as such he did not identify the offending vehicle in the court, he was not cross-examined on behalf of the State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 8 of 23 accused on the point of identity of the DTC bus in question. Not even a suggestion was put to the said witness in his cross-examination on behalf of the accused to the effect that the low floor DTC green coloured bus bearing no. DL 1 PC 7988 was not involved in the alleged accident. Accordingly, his testimony as to the identity of the DTC Green Line low floor bus bearing no. DL 1 PC 7988 in respect of the alleged accident has remained unchallenged.
21. Further, in his statement recorded under Section 313 Cr.P.C., the accused has admitted that he was driving the DTC Green Line Low Floor bus bearing No. DL1PC7988 on the date, time and place of the alleged accident. The said admission on part of the accused lends credence to the evidence led by the prosecution.
22. In view of the aforesaid, the involvement of the DTC Green Line Low Floor bus bearing no. DL 1 PC 7988 in the accident in question stands established.
Re: Manner in which offending vehicle was being driven
23. The prosecution has examined two witnesses namely PW-1 Smt. Sonam and PW-2 Constable Prashant as witnesses of the spot of the accident. Thus, it is their testimony which is to be examined for the purpose of this ingredient.
24. PW-1 Smt. Sonam is the injured in the present case. During her examination in chief, she stated that on 03.10.2010, she was going to Gurgaon for her duty but as she had forgotten her file at home, she went back home from Sector-6 and while she was trying to cross red State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 9 of 23 light Sector 2, Dwarka, at about 8.30/9 am through Zebra Crossing, a DTC Green Line Low Floor bus hit her and she sustained injuries. She did not state of her own as to in what manner the said DTC bus was being driven before it had hit her. On a specific question put to her by the Court, she firstly stated that after the accident she did not remember half the things, however, thereafter, upon the same question having been put to her by the Court again, she stated that the vehicle was being driven at a high speed. In the cross-examination conducted by the learned Assistant Public Prosecutor for the State, the injured PW-1 stated that she had not completely recovered after the accident and she kept forgetting things. She stated that she was not undergoing any treatment with regard to the same and had not consulted any doctor. In view the admission on the part of the witness that she had not completely recovered after the accident in question and keeps forgetting things as a result of the injuries sustained in the accident, it cannot be ruled out that PW-1 did not correctly and completely remember the facts relating to the alleged accident. Accordingly, this Court is hesitant in relying upon the testimony of the said witness.
25. Even if the aforesaid is not relied upon to discard the testimony of PW-1 regarding the manner in which the offending vehicle was being driven at the time of the accident, her testimony is of little assistance to the prosecution to establish rashness or negligence on part of the accused, for the reasons discussed hereunder.
26. As regards the manner in which the offending vehicle was being driven at the time of, or immediately before, the alleged accident, PW-1 State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 10 of 23 has merely stated that the DTC Green Line Low Floor Bus bearing No. DL 1 PC 7988 was being driven at a ''high speed" and struck against her. As already noted above, the same was not volunteered by the injured herself but came in response to a specific question put to her by the Court in that regard. The statement of PW-1 that the offending vehicle was being driven at a high speed does not by itself tantamount to rashness or negligence as is required to be established for bringing home the charge under Section 279 I.P.C. Reliance is placed upon the decision of the Hon'ble Supreme Court in State of Karnataka v. Satish, (1998) 8 SCC 493, wherein it was observed as under:
"3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304-A 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 State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 11 of 23 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". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
5. There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the order of acquittal. The appeal fails and is dismissed. ..." (emphasis supplied)
27. The aforesaid decision was also relied upon by the Hon'ble High Court of Delhi in Abdul Subhan v. State (NCT of Delhi), 2006 (3) JCC 1797: 133 (2006) DLT 562, wherein it was held that a mere allegation of high speed would not tantamount to rashness or negligence. Thus, merely because PW-1 has stated that the offending vehicle was being driven at a high speed does not lead one to the conclusion that there State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 12 of 23 has been either rashness or negligence on part of its driver, more so as 'high-speed' is a relative expression and there is no material on record either to show what was the speed limit on the road in question at the relevant time or the speed at which the offending vehicle was being driven at the relevant time.
28. The testimony of PW-1 is, therefore of no aid to the prosecution in establishing rashness or negligence on part of the accused in driving the DTC bus in question at the time of the alleged accident.
29. The other witness examined by the prosecution to establish rashness or negligence on part of the accused is PW-2 Constable Prashant, who is the complainant in the present case. He deposed that in the year 2010, he was deputed at Sector 1 & 2 Red Light when he saw a DTC Green Line low floor bus bearing No. DL 1 PC 7988 coming from the side of power house and heading towards Madhu Vihar. He further deposed that though the traffic signal had turned yellow, the driver did not stop the bus and crossed the crossroad at high speed. He stated that the offending vehicle had hit a lady who was crossing the road in which the bus was entering after a turn.
30. While, as per the prosecution, PW-2 Constable Prashant was present at the spot being the traffic constable on duty and had witnessed the alleged accident, on the basis of the evidence on record, the very presence of PW-2 Constable Prashant at the spot at the time of the alleged accident is doubtful. No duty roaster, DD entry or roznamcha with regard to the duty of Constable Prashant at the spot on the relevant date and time has been proved or even produced by the State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 13 of 23 prosecution. In his cross-examination, while PW-2 stated that he had reached the spot at about 07.00 am, he admitted that no entry had been made in that regard and he had only telephonically informed the Traffic Inspector about his arrival at the spot. Further, the injured/PW-1 did not mention about the presence of any Traffic Constable, much less the complainant Constable Prashant, at the spot and rather stated that she had not paid attention towards the presence of any police official at or near the spot. Accordingly, the injured also could not confirm the presence of PW-2 at the spot at the relevant time. Thus, the presence of the witness at the spot at the time of the alleged accident has not been established beyond reasonable doubt.
31. Further, even if it is assumed that the complainant PW-2 Constable Prashant was present at the spot at the relevant time, it is doubtful that he had witnessed the alleged accident. In his cross- examination, PW-2 Constable Prashant stated that at the time of the alleged accident, he was standing in the middle of the road on the footpath. However, he admitted that while the site plan had been prepared by the investigating officer at his instance, the position where he was standing at the time of the alleged accident has not been marked in the site plan. Accordingly, the exact position at which the complainant PW-2 was allegedly standing at the time of the alleged accident has neither been shown in the site plan Ex. PW-10/D nor been explained by the witness himself despite a question in that regard having been put to him by the learned defence counsel. It is, thus, not possible to assess whether the position of PW-2 was such as would have enabled him to have witnessed the alleged accident. Further, he State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 14 of 23 admitted that his attention was on the road which had green signal. Since it is the version of PW-2 in his examination in chief that the signal on the road on which the bus in question was being driven was yellow, clearly the attention of the said witness was not on the said road on which the bus in question was being driven. However, he stated that his attention turned when the bus crossed the traffic signal which was red and volunteered that he had indicated the driver to stop before he had crossed. Thus, on the basis of the above statements of PW-2, it is clear that he had not seen or observed the manner in which the bus in question was being driven at least till the time it had not crossed the signal at the crossing. Also, PW-2 categorically admitted in his cross- examination that his attention was not towards the road from where the lady was passing. Though he has stated that his attention turned when the bus crossed the traffic signal, since as per PW-2 the injured was crossing the road on the zebra crossing, the distance between the signal crossing and the spot (at or near the zebra crossing) at which the bus in question had allegedly hit the injured Smt. Sonam was too small for PW-2 to have assessed the manner in which the bus in question was being driven. The said witness had no opportunity or little opportunity to observe the manner in which the bus in question was being driven and much less to assess the speed at which the same was being driven. Keeping in view the limited opportunity that was available to the complainant/PW-2 to observe the manner in, and speed at, which the alleged offending vehicle was being driven, this Court is hesitant in relying upon the testimony of the said witness regarding the said aspect. Thus, the prosecution has failed to prove State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 15 of 23 beyond reasonable doubt that PW-2 Constable Prashant had actually witnessed the alleged accident or had sufficient opportunity to observe the manner in which the offending vehicle was being driven immediately prior to the accident in question.
32. In view of the above, the presence of PW-2 Constable Prashant at the spot and the fact that he had actually witnessed the accident in question have not been established on record. Even if the testimony of PW-2, regarding the manner in which the offending vehicle was being driven at the time of the accident, is not discarded for the aforesaid reason, his testimony is of little assistance to the prosecution to establish rashness or negligence on part of the accused, for the reasons discussed hereunder.
33. Regarding the manner in which the offending vehicle was being driven at the time of, or immediately before, the alleged accident, in his testimony recorded in the court, the complainant PW-2 Constable Prashant deposed that at the time of the alleged accident, the signal for the road on which the accused was driving the bus in question was yellow, however, the accused did not stop and instead crossed the crossroads at a high speed and hit a pedestrian/injured Smt. Sonam, who was crossing the road towards which the accused had turned the bus. However, the alleged fact of the signal having been yellow at the relevant time had not been mentioned by the said witness in his complaint Ex.PW-2/A on the basis of which the FIR in the present case had been registered. Thus, while in the witness box, the complainant/PW-2 has made major improvement over his version State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 16 of 23 contained in the complaint Ex.PW-2/A. The prosecution has not brought any documentary evidence to prove that at the relevant (precise) time the signal for the road on which the bus in question was moving was yellow. Further, in his cross-examination, PW-2 admitted that while a Head Constable authorised to issue challan for violation of traffic rules had reached the spot at about 8.00-8.15 am, however, no challan was issued to the accused regarding jumping of red light. From the aforesaid it appears that the allegation of the complainant/PW-2 to the effect that the signal at the relevant time was yellow and the accused had jumped the same is merely the result of an afterthought. The said portion of the testimony of the complainant/PW-2 can, therefore, not be relied upon being in the nature of an improvement. Moreover, while, as noted above, in his examination-in-chief, PW-2 has deposed that the traffic signal had turned yellow but the driver did not stop the bus and crossed the crossroad, in his cross-examination, he stated that his attention turned when the bus crossed the traffic signal which was red. There is, accordingly, inconsistency in the versions of PW-2 in the examination-in-chief and cross-examination as to whether the bus had crossed the crossroad while the signal was yellow or red. Further, in his cross-examination, PW-2 also volunteered that he had indicated the driver to stop before he had crossed the signal. However, the said fact does not find mention in his statement Ex.PW-2/A and he also admitted in his cross-examination that he had not informed the investigating officer of the fact that he had signalled the driver of the bus to stop before he had crossed the traffic signal. The aforesaid alleged fact volunteered by the witness in his cross-examination is also, State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 17 of 23 therefore, nothing but an improvement made by PW-2 in his enthusiastic attempt to establish guilt on part of the accused.
34. Besides the aforesaid as to the accused having crossed the crossroads while the signal for him was still yellow, PW-2 has stated that the DTC Green Line Low Floor Bus bearing No. DL 1 PC 7988 was being driven at a ''high speed". As already noted above while discussing the testimony of the injured/PW-1, the statement of a witness that the offending vehicle was being driven at a high speed does not by itself tantamount to rashness or negligence as is required to be established for bringing home the charge under Section 279 I.P.C., more so as 'high-speed' is a relative expression and there is no material on record either to show what was the speed limit on the road in question at the relevant time or the speed at which the offending vehicle was being driven at the relevant time.
35. Thus, the testimony of PW-2 is also of no aid to the prosecution in establishing rashness or negligence on part of the accused in driving the DTC bus in question at the time of the alleged accident.
36. In view of the above, in the opinion of this Court, the prosecution has failed to prove that at the relevant time the offending vehicle was being driven in a manner which was so rash or negligent as to endanger human life or personal safety of others or to cause hurt to any other person. Therefore, the third ingredient to bring home the guilt of the accused under Section 279 I.P.C. could not be proved by the prosecution.
37. Rather, there is material on record which suggests that there had State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 18 of 23 been negligence on part of the injured herself and the same may have been the cause for the alleged accident. In her cross-examination, PW-1 stated that normally she was required to reach her office by 08.30 am. As per the version of PW-1 in her examination-in-chief, the alleged accident had taken place at about 08.30/9 am while she was crossing the road at the red light, Sector 2, Dwarka to return home from Sector 6 as she had forgotten a file at home. Thus, the injured/PW-1 was running much behind time and would, therefore, have been in a rush to reach her office as soon as possible. It has also been admitted by PW-1 in her cross-examination that on the day of the alleged accident, she had forgotten her official file at home and was in hurry to reach her office. Further, while pedestrians are required to cross a public road only at the zebra crossings provided for the purpose, as per the case of the prosecution itself as stated in the complaint Ex.PW-2/A, the injured was crossing the road at the time of the accident in question from near the zebra crossing rather than at the zebra crossing. While in her cross-examination, the injured PW-1 has stated that she was crossing the road "exactly through" the Zebra Crossing, and in his testimony the complainant PW-2 has also stated that the injured was crossing the road "on" the zebra crossing, perusal of the site plan Ex. PW10/D reveals that the point 'A', which depicts the place where the alleged accident took place, is almost at the entry point of the road in question and much before the Zebra Crossing. Thus, the versions of PW-1 and PW-2 in their testimony in court that the injured was crossing the road at/on/through the zebra crossing cannot be believed inasmuch as the same is a mere improvement over the version revealed from the State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 19 of 23 complaint Ex.PW-2/A and the site plan Ex.PW-10/D. The fact that she was hit by a vehicle running on the road while she was crossing the same at a point much before the zebra crossing at the corner of the road is itself suggestive of the fact that the injured had failed to take due care and caution before attempting to cross the road. In fact, the present appears to be a case where the injured, who was a pedestrian, may have suddenly crossed the road, without looking to check for vehicles coming from either side, as she was admittedly in a hurry to reach her office, and interrupted the path of the alleged offending vehicle. Thus, the alleged accident appears to have been caused due to the negligence of the injured, rather than that of the accused.
Re: Other factors for doubting the prosecution version
a) Independent public witness(es) not cited or examined
38. As per PW-2 Constable Prashant, the injured was removed to the hospital immediately after the accident through a taxi; the offending bus was carrying passengers; and the place where the accident took place is also a running road and as such there would in all probability have been persons who had witnessed the alleged accident. However, despite availability, no such independent public person has been examined or even cited as a witness by the prosecution. Further, the Delhi Home Guard Constable (Traffic) Nand Lal, who had accompanied the injured to the hospital has also not been examined in the present case.
State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 20 of 23
b) Inconsistencies in the version of the complainant
39. There are inconsistencies in the version of the complainant which create a reasonable doubt as to the truthfulness of the prosecution story.
40. While in the complaint Ex.PW2/A, the complainant has not stated anything about jumping of red light by the accused, in his testimony in court, the complainant/PW-2 stated that the accused had crossed the road, while the signal for crossing the road was yellow.
41. In his examination-in-chief, PW-2 deposed that the traffic signal had turned yellow but the driver did not stop the bus and crossed the crossroad. However, in his cross-examination, he stated that his attention turned when the bus crossed the traffic signal which was red. Thus, there is inconsistency in the versions of PW-2 as to whether the bus had crossed the crossroad while the signal was yellow or while it was red.
42. While the site plan Ex.PW10/D shows skid marks of 16 feet caused by the tyres of the bus in question, the complainant/PW-2 has not stated anything about skid marks on the road in his statement recorded in the court.
43. In his cross-examination, PW-2 volunteered that he had indicated the driver to stop before he had crossed the signal, however, the said fact does not find mention in his complaint Ex.PW-2/A and he also admitted in his cross-examination that he had not informed the investigating officer of the fact that he had signalled the driver of the State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 21 of 23 bus to stop before he had crossed the traffic signal.
c) Lapses in the site plan
44. While as per complainant PW-2 Constable Prashant as well as the investigating officer PW-10 Sub Inspector Jagdish Chander, the site plan Ex.PW10/D had been prepared by the investigating officer at the instance of the complainant, the same does not bear the signatures of the complainant.
45. While the site plan Ex. PW10/D reflects the spot at which the accident had taken place, the same does not show the position of the bus and the injured after the accident.
46. Further, the site plan does not reflect the position of the eye witness/complainant/PW-2 at the time of accident.
47. The site plan, further, does not reflect as to whether the injured was crossing the road from the divider towards Sector-6, Dwarka or from Sector-6, Dwarka side towards the divider towards Sector-2, Dwarka.
48. In view of the aforesaid detailed discussion, this Court finds it difficult to believe the prosecution version and hold the accused guilty of the offence punishable under Section 279 I.P.C. The accused is granted the benefit of doubt and is accordingly acquitted of the offence punishable under Section 279 I.P.C.
II. Charge under Section 338 of the I.P.C.
49. For bringing home the guilt of the accused in respect of the State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 22 of 23 charge under Section 338 of the I.P.C., the prosecution was required to prove that (1) grievous hurt had been caused to the injured Smt. Sonam, and (2) the same was caused by the accused by doing an act so rashly or negligently as to endanger human life, or the personal safety of others. As already discussed above, the prosecution has failed to establish beyond reasonable doubt that the accused committed any rash or negligent act or did any act so rashly or negligently as to endanger human life, or the personal safety of others. Thus, the accused is allowed the benefit of doubt and is acquitted of the offence punishable under Section 338 I.P.C.
CONCLUSION
50. Accordingly, the accused is acquitted of the offences punishable under Section 279 I.P.C. as well as Section 338 I.P.C.
51. File be consigned to record room.
Announced in open Court on 13.08.2014.
(MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 13.08.2014 State v. Bhim Singh FIR No. 337/2010 P.S.: Dwarka North Page 23 of 23