Delhi District Court
Briefly Stated The Case Of The ... vs Vijay Singh Page 8/12 on 6 May, 2014
IN THE COURT OF SH. PAWAN SINGH RAJAWAT
METROPOLITAN MAGISTRATE 07, CENTRAL, ROOM NO. 137,
TIS HAZARI COURTS, DELHI.
STATE
VERSUS
VIJAY SINGH
FIR No. 513/03
P.S.: KOTWALI
U/S: 279/304A IPC
1. Serial No. of the case : 02401R0521522003
2. Date of commission of offence : 14.09.2003
3. Name of the Complainant : HC BALDEV RAJ,
No. 3941/N, PS Kotwali, Delhi.
4. Name of the accused, and
his parentage and residence : VIJAY SINGH,
S/o Chandan Singh,
R/o 307/18, Pataudi Road,
Gandhi Nagar, Gurgoan, Haryana.
Also at 4A, Chandranagar, Prit
Vihar, Delhi.
5. Date when judgment : 01.05.2014
was reserved
6. Date when Judgment : 06.05.2014
was pronounced
7. Offence Complained of : Section 279/304A IPC
or proved
8. Plea of accused : Pleaded not guilty.
9. Final Judgment : Acquitted for the offence U/s
279/304A IPC
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 1/12
Brief Statement of reasons for the decision of the case
1. Briefly stated the case of the prosecution is that on 14.09.2003 at
about 7.00 am at SPM Marg, Chatta Rail Chowk, Delhi within the
jurisdiction of PS Kotwali, accused was driving RTV bearing registration
No. DL 1VA 2934 on public way in rash and negligent manner and struck
against an old unknown person who was crossing the road due to which
he died. Accordingly, FIR No. 513/03, PS Kotwali, U/s 279/304A IPC was
registered. The challan was filed on 23.12.2003.
2. On appearance of the accused, a notice under Section 251 Cr.P.C was
served upon him to which he pleaded not guilty and claimed trial for
offence under Section 279/304A IPC. Thereafter, the matter was put up
for prosecution evidence.
3. Prosecution has examined seventeen witnesses namely PW1 HC
Mohan Kumar, PW2 Rajesh Tripathy, PW3 Ct Satyavir Singh, PW4 T.U
Siddique, PW5 HC Dev Dutt, PW6 Ct Sanjay, PW7 Paramjeet Singh, PW8
HC Mukesh Kumar, PW9 HC Raj Pal, PW10 HC Devender, PW11 B.S Bhati,
P12 Atal Sharma, PW13 Ct Ram Karan Tiwari, PW14 ASI Baldev Raj,
PW15 SI Shekhawat Khan, PW16 HC Satya Dev and PW17 Gurdeep Singh
to prove the case of the prosecution. The evidence of each of PWs is very
relevant and the same is analyzed and discussed later on at appropriate
places.
4. After the Prosecution evidence was closed the statement of accused
was recorded and all the incriminating evidence were put to him wherein
he denied that he was driving the offending vehicle at 7am and stated that
he reached the spot at about 8.35am. He further stated that he was falsely
implicated in this case and did not undergo TIP as he was known to the
local police being a driver of the vehicle which used to pass through the
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 2/12
said area daily a number of times. He also stated that on the relevant day,
he left Chandan Nagar with the abovesaid vehicle at around 8am and
reached at Chatta Rail Chowk at around 8.35am and came to know that an
accident occurred at the the spot but he do not know which vehicle caused
the accident. He further stated that he wish to led evidence in his defence.
Thereafter, matter was adjourned for defence evidence. But no defence
evidence was led by the accused despite getting opportunities. Thereafter,
final arguments heard.
5. Ld APP for the State addressed useful and pertinent arguments. Ld.
APP for the state has argued that the offence against the accused is proved
beyond reasonable doubts the eye witnesses has correctly identified the
accused as the person who was driving the offending vehicle and hit the
deceased. He prays for conviction of the accused.
6. On the other hand, Ld counsel for the accused argued that no
accident caused by accused and he was falsely implicated. He further
argued that there are contradictions between the testimonies of witnesses.
He also argued that none of the witnesses have stated what was the speed
of the offending vehicle and has relied upon the judgement in the matter
of "Abdul Subhan Vs. State (NCT of Delhi) AIR 2004 [3] JCC 1797.He
prays for the acquittal.
7. PROSECUTION EVIDENCE:
7.1 PW2 is stated to be the eye witness of the accident and stated that
on 14.09.2003 he was selling newspaper at the traffic light, Chatta Rail
Chowk, SPM Marg and at about 7am one RTV driven in very high speed
came from Yamuna Bazar side and hit one aged person who was crossing
the road at Chatta Rail Chowk from Kashmere Gate towards Red Fort. He
further stated that after hitting that person, RTV stopped for some time
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 3/12
and then he noted the number of RTV as DL 1VA 2934 and thereafter
driver of RTV sped away towards Kodiya Pul and CAT van came and took
the injured to hospital. He also stated that at about 12 Noon when he
again came back at the spot, police recorded his statement. During cross
examination he stated that he is doing his work for last 1015 years and
traffic police knew him prior to the accident. He denied the suggestion that
he is deposing in connivance with the traffic police and have not seen the
accident and no incident took place. He stated that the front left portion of
the RTV hit the deceased. He also stated that he was standing nearby the
place of incident and there was no other person except beggars on the site
of incident and traffic police did not reached there. He denied the
suggestion that he is deposing falsely. He also stated that after the accident
5060 persons gathered at the spot and police asked number of people
about the accident. He denied the suggestion that he did not saw the
accident.
7.2 PW3 is the police official who stated that on 14.09.2003 he was on
patrolling duty in the area of Chhata Rail Chowk to Kodiya Pul and at
about 7/7.15 am he saw one RTV No. DL 1VA 2934 came from the side of
Yamuna Bazar and was going towards Kodiya pool in a very high speed
and driven rashly and negligently and hit one aged person of about 65/70
years coming from Kashmere Gate side and going towards Red Fort. He
further stated that the RTV slow down and stopped for a moment and he
tried to stop the RTV but the RTV sped away towards Kodiya Pul and
thereafter CAT van took the injured to hospital and he informed PP Red
Fort through wireless Alfa 67. During cross examination he stated that he
was alone on duty at the spot and 2/4/6 persons gathered at the spot and
statement of one Rajesh Tripathi paper vendor was recorded. He also
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 4/12
stated that the RTV was driver at big speed of about 30/40 but again said
50 kmph. He admitted that the police staff did not reached the spot in his
presence but denied the suggestion that he was not present at the spot. He
also stated that his statement was recorded in the PP and he accompanied
the IO to the spot of accident after about 9am. He denied the suggestion
that he is deposing falsely and had not seen the driver Vijay Singh or the
RTV.
7.3 PW4 is the mechanical inspector who conducted the mechanical
inspection of offending vehicle. He proved his report vide Ex. PW4/A.
7.3 PW5 proved the registration of FIR vide Ex.PW5/A and endorsement
on the rukka vide Ex. PW5/B.
7.4 PW6 stated that on receipt of call of accident by the HC Baldev
Singh he accompanied him at the spot where they were informed that
injured has been shifted to hospital and IO went to hospital leaving him at
the spot. He further stated that IO prepared rukka and got the FIR
registered through him.
7.5 PW7 is the owner of the offending RTV bearing No. DL 1VA 2934
and stated that on receipt of notice U/s 133 Motor Vehicle Act, he gave
reply vide Ex. PW7/A and got released the vehicle on furnishing
supardarinam vide Ex.PW7/B.
7.6 PW8 and PW9 are the DD writers and proved the DD No. 10 and DD
No. 39 vide Ex. PW8/A and Ex. PW9/A. PW16 is also the DD writer and
proved the DD entry in Rojnamcha register regarding Ct Satyavir and Ct
Ravinder vide Ex. PW16/A.
7.7 PW10 is the police official and stated that on 16.09.2003, Paramjeet
Singh, owner of RTV bearing No. DL 1VA 2934 came to Police Post
alongwith reply of notice U/s 133 MV Act and stated that on 14.09.2003
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 5/12
Vijay Singh was driving the RTV and also produced the accused as well as
the RTV. He proved seizure of documents, RTV bus and personal search
memo vide Ex. PW10/A to Ex. PW10/E.
7.9 PW14 is the IO of the case and stated that on 14.09.2003 on receipt
of DD No. 10 Ex. PW14/A, he alongwith Ct Sanjay reached at the spot
where he came to know that injured had been shifted to hospital and he
collected the MLC of unknown person and seized articles of injured i.e Rs.
296/, one old raksin bag containing two glass, 1 bowl, one plate and old
blanket vide Ex. PW14/C and came back at the spot and prepared rukka
and got registered the FIR through Ct Sanjay. He further stated that site
plan Ex. PW14/B was prepared by him at the instance of Ct Satyavir and
notice U/s 133 MV Act was served by him upon owner of the offending
vehicle. He also proved the seizure of the offending vehicle, arrest and
personal search of accused and seizure of driving license of accused and
other documents. He further stated that on 21.09.2003 injured expired
and thereafter investigation was transfered to ASI Shekhawat Khan and on
22.09.2003 he collected the clothes of the deceased after postmortem vide
Ex. PW 14/C and on 24.09.2013 took accused for TIP proceedings which
was refused by accused. During cross examination by Ld defence counsel,
he admitted that no witness was present till rukka was sent by him
through Ct Sanjay and Ct Satyavir met him at the spot at about 11.30am
during recording of statement of witness Rajesh. He denied the suggestion
that neither Ct Satyavir nor Rajesh met him at the spot and all the writing
work were done while sitting in the Police Station and accused has been
falsely implicated in the present case.
7.9 PW15 is the second IO of the case and stated that on 22.09.2003
investigation of the present case was transfered to him and thereafter he
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 6/12
reached JPN hospital as injured has expired and conducted proceedings
U/s 174 Cr.P.C and photographs of deceased taken. He further stated that
he collected the postmortem report and filed challan.
7.10 PW17 is the Ld ADJ who conducted the TIP of accused. He stated
that on 23.09.2003 on request of IO, he conducted the TIP of accused
wherein accused refused to participate in the TIP proceedings vide Ex.
PW17/B.
7.11 The identity of the case property/offending bus, MLC, postmortem
report and death summary of injured/deceased has not been disputed by
the accused during trial.
8. Both the eyewitnesses i.e. PW2 & PW3 had stated that the offending
vehicle was in very high speed but neither of them stated either about the
speed or what was the rashness and negligence they observed in driving
of the accused. Both the witnesses on being specifically asking failed to
state the exact speed of the offending vehicle. PW3 firstly stated the speed
as 30/40 KM but again said to be about 50 KM per hour. Moreover, the
prosecution is failed to bring on record the maximum or permissible speed
limit at the spot of accident.
9. The factum of the accident itself does not show the rashness and
negligence on the part of the driver unless specific observation about the
act of rashness or negligence is made by the eyewitness. My opinion is
foretified by the judgment of "Abdul Subhan Vs. State (NCT of Delhi)
AIR 2004 [3] JCC 1797 passed by the Hon'ble High Court of Delhi and
judgment of "State of Karnataka Vs. Satish" 1998 SCC (CRI) 1508 of
Hon'ble Supreme Court. In the judgment of "State of Karnataka Vs. Satish"
(supra) in para 3 it was held that "no specific finding has been recorded
either by the trial court or by the first appellate court to the effect that the
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 7/12
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 in aid the doctrine of res ipsa loquitor to hold the respondent guilty. It is further observed that 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".
10. In the judgment of "Abdul Suhan Vs. State" (supra) it is further observed that a mere allegation of high speed would not tantamount to rashness or negligence and held that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent and therefore, the petitioner cannot be convicted on the sole testimony of PW3 which itself suffers from various ambiguities. 10.1 In "Badri Prasad" (supra) it was observed 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 hut or injury to any person. The rashness and negligence which needs to be established is something more than a mere error of judgment and there is also a distinction between rashness and negligence in that, rashness conveys the idea of doing a reckless act without considering any of its consequences whereas negligence connotes want of proper care.
11. Even though the deceased died due to injury suffered that alone are not sufficient to convict the accused person as prosecution has failed to FIR No. 513/03 PS- Kotwali State Vs. Vijay Singh Page 8/12 prove the ingredients of Section 279 IPC.
12. The offence U/s 304 A IPC is made out if death is caused of any person by doing rash or negligent act not amounting to culpable homicide. In Rathnashalvan Vs. State of Karnataka, (SC) 2007 AIR (SC) 1064, the Hon'ble Supreme Court has held that;
"Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Section 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means FIR No. 513/03 PS- Kotwali State Vs. Vijay Singh Page 9/12 hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. 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."
13. Negligence is a tort as well as a crime used for the purpose of fastening the defendant with the liability under the Civil law and at times under the criminal law. To fasten the liability in criminal law, the degree of negligence has to be higher than that of negligence to fasten for damages in civil law. The essential ingredients of mens rea cannot be excluded from the consideration when the charge in a criminal Court consist of criminal negligence. In order to hold the existence of criminal rashlessness or or criminal negligence, it shall have to be found out that the rashlessness was of such a degree as to amount to having a hazard, having that the hazard was of such a degree that the injury was most likely imminent. The FIR No. 513/03 PS- Kotwali State Vs. Vijay Singh Page 10/12 element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequence. An accident may occur due to many factors and not only by negligent driving. An accident may occur due to error of judgment in driving or even due to some factor not necessarily being negligence of the driver. But in order to bring home the guilt in cases of 304 A IPC, the prosecution has to strictly prove and discharge the burden upon it. To show that the accident and the consequent death of the deceased took place due to negligent act of the accused. That such act may cause the death of such a person.
14. Eventhough it is not in dispute that deceases who remained unknown died of accidental injuries, but there are serious doubts as to whether the accident was a result of any negligence or rashness on the part of the driver of the offending vehicle. Moreover, presence of PW2 as well as PW3 at the time of accident is also doubtful as PW2 and PW3 both stated that at the time of accident, they were present at the spot. There is no explanation why they were not found by HC Baldev Raj when he reached the spot vide DD No. 10 dated 14.09.2003, PP Red Fort and in the rukka Ex. PW5/B in which it has been mentioned that the injured is unfit for statement as per MLC and no eyewitness has been found at the spot and therefore, the case was registered on the basis of DD number only. The time of departure of the tehrir is 11.15am whereas PW3 who is police official stated to be patrolling in the area at the time of accident stated that he accompanied the IO to the spot of accident after about 9am. In such circumstances, either PW3 is not stating the correct time or he is planted witness to bolster the case of the prosecution.
15. Accordingly, on the basis of the testimony of the witnesses and evidence on record, I am of the opinion that the prosecution has failed in FIR No. 513/03 PS- Kotwali State Vs. Vijay Singh Page 11/12 proving the allegations against the accused beyond reasonable doubt and therefore, the accused Vijay Singh is acquitted for the offence under Section 279/304 A of Indian Penal Code, 1860. Bail Bonds stands cancelled. Surety is discharged. Documents, if any, be cancelled. Endorsement, if any, be cancelled. Supardginama stands cancelled.
ANNOUNCED IN THE OPEN (PAWAN SINGH RAJAWAT)
COURT ON 06.05.2014 METROPOLITAN MAGISTRATE07
CENTRAL/TIS HAZARI COURTS
DELHI.
FIR No. 513/03
PS- Kotwali
State Vs. Vijay Singh Page 12/12