Delhi District Court
State vs . Laxman on 14 January, 2019
State Vs. Laxman
IN THE COURT OF SH. VAIBHAV MEHTA,
METROPOLITAN MAGISTRATE (SOUTH) 05,
SAKET COURTS, NEW DELHI
State versus Laxman
FIR No. 79/05
PS Mehrauli
U/s.279/337/304-A/427 IPC &
66/192 M.V. Act.
JUDGMENT
1 Serial No. of the case : 2034355/2016
2 Date of commission : 18.02.2005
3 Date of institution of the case : 27.01.2007
4 Name of complainant : Sh. Raj Kumar @ Kallu
5 Name of accused : Laxman S/o. Sh. Swaroop
R/o. Jhuggi, D-Block, Sanjay
Colony, Bhatti Mines, New
Delhi.
6 Offence complained of : U/s.279/337/304-A IPC
& 66/192 MV Act
7 Plea of accused : Pleaded not guilty
8 Arguments heard on : 14.01.2019
9 Final order : Acquitted for the offences
279/337/304-A IPC & U/s.
66/192 MV Act
Digitally
10 Date of judgment : 14.01.2019 signed by
VAIBHAV
VAIBHAV MEHTA
BRIEF FACTS AND REASONS FOR DECISION MEHTA Date:
2019.01.18
16:35:43
+0530
1 It is the case of the prosecution that on 18.02.2005, at about 7.45
A.M. at Dera Mod, Fatehpur, in front of Aplatoon well, Bhati Road, New FIR No. 79/05 PS Mehrauli 1 of 16 State Vs. Laxman
Delhi, accused was found driving Tempo bearing registration No. HR- 38A-8658 in a manner so rashly or negligently as to endanger human life and personal safety of others.
Further, on the above said date, time and place, while driving the said vehicle in aforementioned manner, accused hit against electric pole and caused the tempo to turn turtle and thereby caused the simple injuries to complainant Raj Kumar and other occupants of the tempo as per MLCs. Furthermore, on the above mentioned date, time and place while driving the aforesaid Tempoo in aforesaid manner accused caused death of Ram Swaroop and Gulshan not amounting to culpable Homicide. Thereafter, the present FIR No.79/05 got registered against accused Laxman for offence U/s. 279/337/304-A/427 IPC & 66/192 of MV Act.
CHARGE 2 Charge was framed against accused Laxman on 19.04.2010 for offences U/s. 279/337/304-A IPC & U/s. 66/192 MV Act, wherein the accused pleaded not guilty and claimed trial.
EVIDENCE LED BY PROSEUCTION 3 The prosecution examined seventeen witnesses to prove their case: -
FIR No. 79/05 PS Mehrauli 2 of 16
State Vs. Laxman
PWs Name Designation
PW-1 Sh. Raj Kumar the complainant/one of the injured
persons sitting in the offending
vehicle
PW-1 A Sh. Sanjay (wrongly Injured/passenger sitting in the
offending vehicle.
mentioned as PW-1)
PW-2 Sh. Jaggu Injured/passenger sitting in the
offending vehicle.
PW-4 Sh. Harish Chand Injured/passenger sitting in the
offending vehicle.
PW-5 Sh. Kashmir Injured/passenger sitting in the
offending vehicle.
PW-6 Sh. Chetan Injured/passenger sitting in the
offending vehicle.
PW-7 Sh. Vinod Injured/passenger sitting in the
offending vehicle.
PW-8 Sh. Basu Dev Injured/passenger sitting in the
offending vehicle.
PW-9 Sh. Raj Pal Injured/passenger sitting in the
offending vehicle.
PW-10 Sh. Badru Injured/passenger sitting in the
offending vehicle.
PW-11 Sh. Ramesh Injured/passenger sitting in the
offending vehicle.
PW-12 Sh. Arjun Injured/passenger sitting in the
offending vehicle.
PW-13 Sh. Raj Kumar Injured/passenger sitting in the
offending vehicle.
PW-14 Sh. Mahipal Superdar of TATA 407 bearing
registration No. HR-38A-8658
PW-15 Sh. Hansa Injured/passenger sitting in the
offending vehicle.
PW-16 Sh. Suresh Kumar Injured/passenger sitting in the
FIR No. 79/05 PS Mehrauli 3 of 16
State Vs. Laxman
offending vehicle.
4 The prosecution has relied upon the following documents: -
Srl. Exhibited by Documents Exhibited as
Nos.
1 PW-1 Sh. Sanjay Statement U/s. 161 Cr.P.C. Mark PW -1/A
(wrongly
mentioned as
PW-1)
2 PW-3 Sh. Ram Statement U/s. 161 Cr.P.C. Ex.PW-3/A
Singh
3 PW-4 Sh. Harish Statement U/s. 161 Cr.P.C. Ex.PW-4/A
Chand
4 PW-5 Sh. Statement U/s. 161 Cr.P.C. Ex.PW-5/A
Kashmir
5 PW-6 Sh. Statement U/s. 161 Cr.P.C. Ex.PW-6/A
Chetan
6 PW-7 Sh. Vinod Statement U/s. 161 Cr.P.C. Ex.PW-7/A
7 PW-8 Sh. Basu Statement U/s. 161 Cr.P.C. Mark PW-8/A
Dev
8 PW-9 Sh. Raj Statement U/s. 161 Cr.P.C. Mark PW-9/A
Pal
9 PW-10 Sh. Statement U/s. 161 Cr.P.C. Mark PW-10/A
Badru
10 PW-11 Sh. Statement U/s. 161 Cr.P.C. Ex.PW-11/A
Ramesh
FIR No. 79/05 PS Mehrauli 4 of 16
State Vs. Laxman
11 PW-12 Sh. Arjun Statement U/s. 161 Cr.P.C. Ex.PW-12/A
12 PW-13 Sh. Raj Statement U/s. 161 Cr.P.C. Ex.PW-13/A
Kumar
13 PW-15 Sh. Statement U/s. 161 Cr.P.C. Ex.PW-15/A
Hansa
14 PW-16 Sh. Statement U/s. 161 Cr.P.C. Ex.PW-16/A
Suresh Kumar
5 PW-1 Sh. Raj Kumar deposed that he worked as a labourer and
at about 08:00-08:30 AM on the day of the incident, he alongwith 30-35 labourers was going to work in Gurgaon in a tempo and the same was being driven by accused Laxman. PW-1 further deposed that he was sitting in the back body of the tempo, when he found that the tempo had hit a electric pole situated on the road. As per PW-1, the speed of tempo was 20-25 kmph at that time and after the accident, the driver / accused informed that the steering of tempo got failed.
PW-1 correctly identified the accused Laxman in the Court.
6 PW-1 Sh. Sanjay (wrongly mentioned as PW-1 and shall be read as PW-1A) deposed that in the year 2005, he was going for labour work in Gurgaon by tempo and at that time, the speed of Tempo was not more than 30 Kms. And it turned turtle while it turning. As per the witness, there were about 27 persons traveling in the said tempo and about 25 got injured and he also sustained injuries on his right arm after which some villagers picked all of them and took them to AIIMS hospital. PW-1 Sh. Sanjay further deposed that he did not see the driver as he FIR No. 79/05 PS Mehrauli 5 of 16 State Vs. Laxman was sitting in the back side of the Tempo alongwith Ranjlal, Raj Kumar, Arjun and others, who also got injured and stated that police recorded his statement at the spot.
7 PW-2 Sh. Jaggu deposed that he was a labourer and on the day of incident, he was going to Gurgaon in a Tempo for work. When tempo turtled down and he later came to know that Tempo turtled down because of steering fail.
8 PW-3 Sh. Ram Singh deposed that on 15.02.2005, he alongwith 20-22 people were going to Gurgaon for labor work in Tempo TATA -407. As per PW-3 Sh. Ram Singh, the said Tempo was being driven by accused Laxman and he was driving the Tempo in a normal speed. PW- 3 further deposed that the said Tempo met with accident at Dera Mor and he sustained injuries during the said accident, after which, he was shifted to AIIMS hospital by other Tempo. As per the witness, the accident had occurred at the turning point and hit the pole and as a result, the tempo turned turtle and later on, he came to know that steering of aforementioned vehicle had failed (working not property) and in the said accident two persons had died.
PW-3 correctly identified the accused Laxman in the Court.
9 PW-4 Sh. Harish Chand deposed that he was a labourer and was going to Gurgaon in Tempo for work and on his way to Gurgaon near Dera Mor, Fatehpur Beri, suddenly one cow came in front of tempo and the driver of tempo lost his control on vehicle and the vehicle turtled FIR No. 79/05 PS Mehrauli 6 of 16 State Vs. Laxman down. PW-4 further deposed that he sustained injuries on his two fingers and at that time, 20-25 persons were sitting in the tempo, after which, police came at the spot and took them to the hospital.
10 PW-5 Sh. Kashmir deposed that he was a labourer and was going for work and at that time, he was sitting at the back portion of the Tempo and when they reached near Dera Mor, Fatehpur Beri, the accident took place. PW-5 deposed that he was sitting at the back portion of the Tempo and so he did not see the driver and did not know anything about the accident as he had become unconscious.
11 PW-6 Sh. Chetan deposed that he was a labourer and was going for work to Gurgaon alongwith other laborers in the Tempo. PW-6 further deposed that he was sitting at the back portion of the Tempo and when they reached near Dera Mor, Fatehpur Beri, suddenly one cow came in front of tempo and the driver of tempo lost his control on vehicle and the vehicle turtled down. PW-6 further deposed that there were numerous persons who were sitting in the tempo and he was sitting at the back portion of the Tempo and after the accident, he became unconscious and regained his consciousness in the hospital.
12 PW-7 Sh. Vinod deposed that he was working as labourer and on the day of incident, he was going for work towards Gurgaon via Tempo and was sitting at the back portion corner of the Tempo. PW-7 deposed that when they reached near Dera Mor, Fatehpur Beri, suddenly the tempo turned turtled down as a result of which, he became unconscious FIR No. 79/05 PS Mehrauli 7 of 16 State Vs. Laxman and regained his consciousness in the hospital.
13 PW-8 Sh. Basu Dev deposed that in the year 2005, he was going alongwith many boys namely Ram Singh, Pappu, Ram Swaroop and Badru and he fell down from the Tempo and sustained injuries.
14 PW-9 Sh. Raj Pal & PW-10 Sh. Badru did not support the case of the prosecution and turned hostile.
15 PW-11 Sh. Ramesh deposed that he alongwith other laborers going towards Okhla Industrial Area in the Tempo and the Tempo was running normally and during a turn, the tempo turned turtle, after which, he became unconscious and sustained injuries on his hand. Thereafter, the call was made at 100 number by someone and thereafter, Police arrived at the spot and took them to the hospital.
16 PW-12 Sh. Arjun deposed that he alongwith other laborers were going for labour work at some place at Delhi in a Tempo and he was sitting at the back side of the Tempo when the steering of Tempo got slipped and Tempo met with an accident and he alongwith other some laborers fell out of the Tempo. PW-12 further deposed that he sustained injuries on his face and his hands, after which, he became unconscious and gained his consciousness at AIIMS.
17 PW-13 Sh. Raj Kumar deposed that the incident took place somewhere in the year 2005 and he alongwith other 24 -25 laborers FIR No. 79/05 PS Mehrauli 8 of 16 State Vs. Laxman were going towards Gurgaon for labor work in a Tempo and at that time he was sitting in the back side thereof and the Tempo was running smoothly in normal speed, when suddenly, the accident took place and Tempo turned turtle. PW-13 further deposed that he had only made the call at 100 Number, after which, PCR arrived at the spot and took the injured persons including him to the AIIMS. The all injured persons including him were treated there and the persons after getting treatment were discharged from there and Police recorded his statement, which was proved as Ex.PW-13/A. 18 PW-14 Sh. Mahipal deposed that he is the superdar as well as registered owner of vehicle i.e. Tata 407 bearing registration NO. HR- 38A-8658 and he had received notice U/s. 133 MV Act in respect of the aforesaid TATA 407 and had replied to the same stating that at the time of accident, his driver namely accused Laxman was driving the aforesaid vehicle. The aforesaid notice as well as reply to the same were proved as Ex.PW-14/A. PW-14 further deposed that the said TATA 407 is not in a state to be produced before the Ld. Court as the same was not in working condition and therefore, placed on judicial record the photographs of the aforesaid TATA 407 and the same were proved as Ex.P-1 to Ex.P-6.
19 PW-15 Sh. Hansa deposed that in the year 2005, he alongwith other 24 -25 laborers were going towards Gurgaon for labor work in a Tempo and was sitting in the back side thereof and the Tempo was running smoothly in normal speed, when after going about 3 Kms., the FIR No. 79/05 PS Mehrauli 9 of 16 State Vs. Laxman accident took place suddenly and Tempo turned turtle, after which, he became unconscious. PW-15 further deposed that someone called at 100 number and after sometime, PCR arrived and all the injured persons including him were taken to the AIIMS through PCR and he remained in the hospital for about 10 days.
20 PW-16 Sh. Suresh Kumar deposed that in the year 2005, he alongwith other 24 -25 laborers were going towards Gurgaon for labor work in a Tempo and was sitting in the back side thereof and the Tempo was running smoothly in normal speed, when suddenly, the accident took place and Tempo turned turtle and he became unconscious. PW-16 further deposed that someone called at 100 number and after sometime, PCR arrived and all the injured persons including him were taken to the AIIMS through PCR and he remained in the hospital for about 2-3 days.
21 Witness namely Dharamraj cited in the list of witnesses was called and he came alongwith with his sister Kavita for deposition, his sister stated that witness namely Dharamraj has been undergoing treatment at AIIMS Trauma Center.
Further, after the interaction with the witness, Ld. APP as well as this Court observed that witness does not appear to be in a fit state of mind as he was not knowing his name. After that this Court found it necessary to get preliminary enquiry as per Section 328 of Cr.P.C. conducted and subsequently, MS AIIMS Trauma Center was directed to get the witness Dhanraj examined from Psychiatric or Clinical Psychologist for prognosis of his condition.
FIR No. 79/05 PS Mehrauli 10 of 16 State Vs. Laxman
In compliance of order dated 30.11.2018, report was received from the MS, AIIMS qua witness Sh. Dhanraj stating that after detailed Psychiatric assessment, the witness was found to be having post head injury dementia and he is not mentally fit to depose before the Court and also the condition of the witness is unlikely to improve in future. In view of the said report from MS AIIMS, this Court vide order dated 21.12.2018 dropped this witness and deleted the name of this witness from the array of witnesses.
22 After going through the testimonies of the public witnesses examined by the prosecution, this Court had observed that not even a single public witness out of seventeen witnesses examined by the prosecution had stated that the accused was driving the vehicle in question in rash and negligent manner, therefore, since none of the public witnesses have supported the case of the prosecution, this Court is of the view that examination of the formal witnesses would be an exercise in futility. Therefore, PE stands closed. Further, this Court also does away with recording of statement U/s.313 Cr.P.C. of accused.
FINAL ARGUMENTS 23 The counsel for accused has submitted that not even a single public witness has supported the case of the prosecution and none of the 17 witnesses have stated anything about the accused driving the vehicle in question in rash and negligent manner. Therefore, accused be acquitted for the offeneces alleged in the charge sheet.
FIR No. 79/05 PS Mehrauli 11 of 16 State Vs. Laxman LEGAL PROVISIONS 24 Section 279 IPC states as under : -
Rash driving or riding on a public way : - Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
A rash act is primarily an over-hasty act and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. Austin has in his "Austin or jurisprudence" drawn a distinction between negligence, headlessness and rashness as follows: -
In case of negligence, the party performs not an act to which he is obliged. He breaks a positive duty.
In case of Heedlessness or Rashness, the party does an act from which he is bound to forbear. He breaks a negative duty.
In case of Negligence, he adverts not to the act, which is his duty to do.
In case of Heedlessness, he adverts not to consequences of the act, which he does.
Mere negligence cannot be construed as rashness. There are degree of negligence and rashness and in order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such a degree as to amount to taking risk knowing that the risk FIR No. 79/05 PS Mehrauli 12 of 16 State Vs. Laxman was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences. In a rash act there is consciousness or awareness of the mind with reference to the act done and the actor indulges in the act with the foolhardy hope or state of mind, an absence of awareness or consciousness of what should be done or omitted to be done, such a state of mind being consequent upon failure to apply or exercise the requisite caution of precaution [In Babul Chakraborty 2005 Cri. L.J. 4712 (Gau.)] In Ravi Kapur's case (AIR 2012 SC 2986), Hon'ble Supreme Court has observed that 'rash and negligent driving' has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow speed but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of Section 279. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as endanger FIR No. 79/05 PS Mehrauli 13 of 16 State Vs. Laxman human life.
Section 304A IPC states as under:-
Causing death by negligence-- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both"
In order to convict the accused u/s 304A IPC, the prosecution must be able to establish:-
a) There must be death of the person in question.
b) The accused must have caused such death.
c) That such act of the accused was rash and negligent and that it did not amount to culpable homicide.
Section 337 IPC states as under: -
Causing hurt by act endangering life or personal safety of other:-
Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
FIR No. 79/05 PS Mehrauli 14 of 16 State Vs. Laxman COURT OBSERVATIONS 25 On the basis of material on record including testimonies of
witnesses and after hearing arguments of counsel for accused as well as Ld. APP for the State, this Court makes the following observations: -
(a) PWs Sh. Raj Kumar S/o. Sh. Kishori Lal, Sh. Raj Kumar S/o. Sh.
Amar Singh, Sh. Sanjay, Sh. Ram Singh, Sh. Suresh Kumar and Sh. Hansa have categorically stated that the vehicle in question was being driven at a normal speed of about 25-30 Kms. Per hour.
(b) PWs Sh. Jaggu, Sh. Kashmir, Sh. Vinod, Sh. Basu Dev, Sh. Raj Pal, Sh. Ramesh, Sh. Arjun and Sh. Badru did not support the case of the prosecution and did not state anything incriminating against the accused Laxman.
(c) PWs Sh. Harish Chand & Sh. Chetan during their examination-in- chief categorically stated that the accident occurred since a cow suddenly came in front of the Tempo.
(d) None of the public witnesses examined by the prosecution have stated anything incriminating against the accused and have no where specified that he was driving the vehicle in a rash and negligent manner FIR No. 79/05 PS Mehrauli 15 of 16 State Vs. Laxman and have not supported the case of the prosecution in any manner.
Therefore, this Court is of the view that examination of remaining formal witnesses is an exercise in futility and thereby, PE stands closed and statement U/s. 313 Cr.P.C. of accused is also dispensed with.
26 For the reasons mentioned above, this Court is of the view that prosecution has not been able to prove the guilt of accused Laxman beyond doubt and the testimonies of the remaining formal witnesses would not be sufficient to prove the guilt of accused Laxman to the effect that he was driving the vehicle in the rash and negligent manner, which resulted in cause of simple injuries to victims and led to the death of Sh. Ram Swaroop and Sh. Gulshan. Therefore, this Courts acquits the accused Laxman for the offences U/s. 279/337/304-A IPC & 66/192 of MV Act.
Accused Laxman is directed to furnish bail bonds U/s. 437 A Cr.P.C.
Announced in the open (VAIBHAV MEHTA )
court on 14.01.2019 MM-5 (South), Saket Courts
New Delhi
FIR No. 79/05 PS Mehrauli 16 of 16