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[Cites 13, Cited by 0]

Delhi District Court

State vs . Manohar Lal on 13 January, 2021

    IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN
  MAGISTRATE­06, SOUTH EAST DISTRICT, SAKET COURTS, NEW
                           DELHI

STATE                      VS.           Manohar Lal

FIR NO:                                  447/2010

P. S                                     Kalkaji

U/s                                      279/337/338/304 A IPC

Crc No./92671/2016

JUDGMENT

Sl. No. of the case                  :   7/2

Date of its institution              :   27.01.2011

Name of the complainant              :   Sh. Deepak Arora,
                                         S/o Late Sh. Vijay Arora,
                                         R/o N­46, Double
                                         Storey, Lajpat Nagar­IV,
                                         New Delhi.

Date of Commission of offence        :   28.10.2010

Name of the accused                  :   Manohar Lal, S/o Sh.
                                         Dharam Chand, R/o H.
                                         No. 179/5, RZE, Pul
                                         Prahladpur, New Delhi.

Offence complained of                :   279/337/338/304 A IPC

Plea of accused                      :   Not Guilty

Case reserved for orders             :   07.01.2021

Final Order                          :   Acquitted

Date of orders                       :   13.01.2021



BRIEF STATEMENT OF FACTS FOR THE DECISION:­



                                 1

1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused Manohar Lal for having committed the offence punishable u/s 279/337/338/304 A of Indian Penal Code, 1861 (hereinafter referred as "IPC").

2. Briefly stated, it is the case of Prosecution that on 28.10.2010 at about 09:15 PM near NSIC Office, New Delhi, the accused was driving container no. HR 38 P 7637 in a very rash or negligent manner so as to endanger the human life and personal safety of others and while driving in such a reckless manner, accused hit the scooter LML DL 3S AF 9735 belonging to the complainant. The said scooter was being driven by the complainant himself and two other persons namely Daya Shankar Tiwari and M D Kalam were sitting on the scooter at that time when the container belonging to the accused hit the scooter from the back. Consequently, Daya Shankar Tiwari received serious injuries and doctor declared him brought dead. Complainant and M D Kalam have also received injuries.

3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused. Thereafter, notice was framed against the accused vide order dated 05.03.2012 u/s 279/337/338/304 A IPC, to which he pleaded not guilty and claimed trial.

4. In order to prove the guilt of accused, the Prosecution examined following three witnesses:

 Sh. Deepak Arora, the eye witness and the complainant, examined as PW­1;  Sh. Ram Narayan was examined as PW­2 who identified the body of the deceased;
 HC Pradeep was examined as PW­3 (inadvertently mentioned as PW­4 in the case record); and  SI Babu Lal, IO in the present as PW­4 (inadvertently mentioned as PW­5 in the case record);
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5. Accused has admitted u/s 294 Cr.PC the factum of registration of FIR NO. 447/2010, DD NO. 32 A, MLC No. 233066/10, 233042/10, 233063/10, PM report no. 889/10, mechanical inspection report, statement of Hanuman Prasad and Ram Narayan which are Ex. P1 to P9. Further, the accused has also admitted the genuineness of x­ray report and superdarinama of superdar Ajeet Singh u/s 294 Cr.PC.

6. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed on 11.12.2019. Thereafter, statement of accused was recorded u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") on 11.03.2020 wherein all the incriminating circumstances were put to him which he denied and took a defence that he has been falsely implicated in the present case and the victim scooter had collided on the middle right side of his truck after getting hit by some other car which was plying on the right side of the victim's scooter. He chose not to lead defence evidence.

7. I have heard the Ld. APP and Ld. defence counsel and have perused the case file.

8. PW­1 in his evidence has stated in detail that on 28.10.2010 after offering pooja at Kalkaji temple, he along with Daya Shankar Tiwari and M D Kalam were returning to Lajpat Nagar at about 09:15 PM on his scooter bearing no. DL 3S AF 9735. While driving the above said vehicle, a truck which was coming in a high speed had hit his scooter and Daya Shankar Tiwari received serious injuries and doctor declared him dead.

9. PW­2 in his testimony Deposed that he went to Jai Prakash Hospital for identification of dead body of the deceased namely Daya Shankar Tiwari. He was brother in law of his brother and death of the deceased was due to accident by a truck / dumper near the bridge, near Kalkaji Mandir.

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10. PW­3 in his testimony deposed that he received a DD NO. 32 A at about 09:00 PM regarding accident near NSIC bus stand near Kalkaji Mandir, New Delhi. When he reached the spot he found two injured persons. One of the injured person sustained injury on his head and one of them had already died at the spot. He further deposed that one scooter and one container were found in accidental condition and injured persons were taken to the hospital for medical help. Rukka was prepared by IO after recording the statement of complainant.

11. PW­4 in his testimony deposed that after receiving DD No. 32 regarding an accident in front of NSIC, he reached at the spot with Ct. Pradeep and Shailender. After reaching at the spot he saw on dead body lying on the road. One LML scooter bearing no. DL 3SAF 9735 and one container truck bearing no. HR 38T 7637 were found at the spot. Thereafter, he prepared rukka and handed it over to PW­3 for the registration of FIR. Thereafter, IO has given a detailed account of the whole investigation process wherein he collected the MLC of the injured persons, got the dead body identified by the relative and made a request for postmortem of dead body at AIIMS Trauma Centre. He further deposed that he had served notice u/s 133 M V Act upon the registered owner namely Ajit Singh and also got conducted the mechanical inspection of the vehicle. The said Ajit Singh produced the accused driver in the PS along with relevant documents of the offending vehicle. Accused was arrested in the present case on 29.10.2010 and was released on bail on the next date. He has conducted the investigation in the present case and filed the charge sheet before the court. Offending vehicle was correctly identified by the witness when the photographs available was shown to him during his examination.

12. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the cross­examination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused, on the other hand, argued that material contradictions have appeared in the testimonies of the PWs and 4 prosecution has not been able to prove the guilt of the accused beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.

13. I have considered the rival submissions.

14. Before, discussing the testimonies of PWs, it would be prudent to discuss the legal position involved in the present case.

LAW INVOLVED IN THE PRESENT CASE

15. Section 279 of the IPC provides for the offence of rash driving or riding on a public way. It reads as under:

"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."

16. On bare reading of the above provision, it becomes clear that there are primarily three essential ingredients which constitute offence of rash driving on a public way.

a. Person must be driving or riding on a public way;

b. He must be driving in a rash or negligent manner;

c. Likely to endanger human life or cause hurt or injury to any person

17. Section 337 & 338 IPC provide for the offences of causing hurt/grievous hurt by an act endangering life or personal safety of others. These provisions are the consequences of a rash or negligent act of driving on a public way punishable u/s 279 IPC.

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"337. Causing hurt by act endangering life or personal safety of others­ 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.
338. Causing grievous hurt by act endangering life or personal safety of others­ Whoever causes grievous 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 two years, or with fine which may extend to one thousand rupees, or with both."

18. Perusal of these provisions also make it very clear that hurt/grievous hurt as the case may be must be caused by a rash or negligent act endangering human life or personal safety of others. These provisions will be applicable/attracted only in cases where the hurt/grievous hurt, as the case may be, is a direct result of the rash or negligent act.

19. Further, section 304A IPC provides for the offence of causing death by negligence. Death must have been caused by rash or negligent act which must not amount to culpable homicide. It reads as under:

"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 dine, or with both."

20. A perusal of the above discussed provisions makes it very clear that an act of rashness or negligence endangering the human life or personal safety is a common ingredient in all these offences. Now a question arises as to what would constitute a rash or negligent act. The doing of a rash or negligent act, which causes, death is the essence of section 304A. There is a slight distinction between a rash act and a negligent act. 'Rashness' conveys the idea of recklessness or doing an act without 6 due consideration and 'negligence' connotes want of proper care. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.

21. At this stage, reference may be taken from the decision of the Hon'ble Supreme Court in the case of Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh, wherein the Hon'ble Apex Court has discussed in detail as to what constitute a rash or negligent act. It interalia held the following:

"A rash act is primarily an over hasty act. It is opposed to deliberate act. Still a rash act can be a deliberate act in the sens 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."

22. Further, in the case of Braham Dass vs. State of Himachal Pradesh (2009) 3 SCC (Cri) 406, while discussing the legal position with respect to an offence u/s 279/304A IPC, the Hon'ble Supreme Court has interalia held the following:

"Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, 7 there was no evidence led to show that any negligence was involved."

23. Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial. What is important is that he has not taken due care or has done the said act with indifference to the consequences.

24. Further, it should be noted that there should be direct link between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim. The the Hon'ble Delhi High Court in the case of Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 has discussed the ingredients which need to be established by the prosecution for convicting an accused u/s 279/304 A IPC. The Hon'ble Court has interalia held the following:

"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 or negligent act has to be proved."

25. The above­mentioned judgment sufficiently enlightens 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.

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FINDINGS

26. As discussed above, the most important ingredient which needs to be established by the prosecution in order to bring home the conviction of an accused u/s 279/337/338/304 A IPC is the "act of rash and negligent driving by the accused". In the present case, in order to prove "rash and negligent act of the accused" the prosecution has primarily relied upon the testimony of PW­1, PW­3 & PW­4.

27. PW­1 is the complainant and eye­witness of the present case. During his examination­in­chief, he has supported the prosecutions' story. However, there are material contradictions in the testimony of PW1. During his cross­examination he interalia deposed that he was driving his scooter in the middle lane of the road. One car which was plying on his right side slightly turned towards him and in order to prevent the collision, he turned his scooter towards the left where the truck in question was going straight. He further stated that the truck driver had no fault in the accident and the accident took place only when he turned his scooter towards the left. He also denied his previous statement that the truck in question hit his scooter from the back. In the cross­examination he stated that it was him who struck his scooter in the middle of the truck. When he was confronted with the complaint Ex. PW1/1, he simply denied his statement. He also stated that the police officials had taken his signature on the blank paper and necessary details were filled up by the police officials themselves.

28. Further, PW­1 in his testimony has in a very casual manner simply deposed that the truck was coming in a high speed. He did not state the manner in which the truck was being driven or the approximate speed at which the truck was being driven by the accused. It is a settled proposition of law that evidence of high speed simplicter, is not ipso facto proof of rashness or negligence. High speed cannot be criteria to conclude rash and negligent driving, rather to prove guilt of the accused, if 9 any, u/s 279/304A/337/338 IPC, it is incumbent upon the prosecution to prove act of rashness and negligent on the part of the accused so as to endanger human life. At this stage, reference can be taken from the decision of the Hon'ble Supreme Court in the case of State of Karnataka vs. Satish 1998 (8) SCC 493 wherein the Apex Court has interalia held the following:

"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 providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in 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 10 acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged.

29. Moreover, the above observation has also been made by the Hon'ble Delhi High Court in the case of Kishore Chand Joshi vs. State CRL.REV.P. 627/2016, the Hon'ble Delhi High Court observed:

"A witness can depose as to the manner of driving or speed at which the vehicle was being driver 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 of negligence on the part of the driver."

30. Similar ratio has been reiterated by the Hon'ble Delhi High Court in Abdul Subhan (supra), wherein the Hon'ble Court while dealing with the similar set of facts has interalia held the following:

"The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegations 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."

31. Therefore, in view of the observations made by the various Courts, it becomes very clear that an inference of act of rashness or negligence cannot be drawn from a simple testimony of the PWs that the vehicle was being driven in a high speed. Specific evidence has to be led by the prosecution in order to prove this. The manner in which the vehicle was being driver also needs to be established by the prosecution.

32. Also, as discussed in para 27 of this judgment, perusal of the statements given PW­1 in his cross­examination makes it very clear that he has not at all supported the prosecution version. He has contradicted his own statement given in examination in 11 chief. Therefore, his testimony cannot be relied upon in order to prove the guilt of the accused beyond reasonable doubt.

33. Another witness who has been examined by prosecution was PW­3 who was asked by the IO to join the investigation. It should be noted that PW­3 is not an eye­ witness in the present case. He reached at the spot only after the occurrence of accident. He supported the prosecution's story to the extent that an accident had occurred in the present case, complainant had received injuries, one person died and another person got grievously injured. He also supported the prosecution's story to prove that the accused was produced by the registered owner of the offending vehicle in the police station and was later arrested in the present case. He also corroborated the factum of registration of FIR, seizure of vehicles and medical examination of the deceased and injured persons. However, his testimony could not prove the act of rashness of negligence on part of the accused driver. He could neither explain the manner in which the truck was being driver by the accused nor could he explain the manner in which the accident had taken place in the present case.

34. Further, the prosecution has relied upon the testimony of PW­4, the IO of the present case in order to prove the guilt of the accused. During his examination in chief, PW­4 has given a detailed account of the investigation carried out by him in the present case. However, perusal of the testimony of PW­4 also makes it very clear that like PW­3 he was also not the eye witness of the accident. He reached at the spot only after the accident took place. While he conducted the investigation in the present case, he could not explain in detail the act of rashness and negligence on the part of the accused driver. He did not even state that the accused was driving his car in a high speed. Although he has got conducted the mechanical inspection of the vehicle which shows that the vehicles were involved in the accident, however, the same is not sufficient enough to prove the act of rash or negligent driving of the 12 accused. Therefore, even the testimony of PW­4 is not sufficient enough to prove the guilt of the accused in the present case beyond reasonable doubt.

35. Further, it should be noted that mechanical inspection reports of the vehicles which have been admitted by the accused u/s 294 Cr.P.C show "front left bumper scratch" on the offending vehicle and damages and scratches on the scooter. However, it should be noted that it is an undisputed fact that the offending vehicle had indeed collided with the scooter. The question here is as to whether the accused was driving the offending vehicle in a rash or negligent manner due to which the said vehicle had collided with the scooter. Mechanical inspection reports of the vehicles do shows some damages or scratches on both the vehicles, however, they are not sufficient enough to prove the factum of rashness or negligence on the part of accused driver.

36. Also, the site plan Ex. PW­5/B which has been prepared by IO is not sufficient enough to prove the act of rashness or negligence on the part of the accused. While it shows the location of the accident (which is an undisputed fact), it could not be inferred that the offending vehicle was either being driven at a speed high or the accident occurred due to the rash or negligent act of the accused.

37. Having discussed the above, now a question arises as to whether a presumption of rashness or negligence can be drawn in the present case against the accused driver by invoking the doctrine of res ipsa loquitur. This doctrine which literally means "things speak for themselves" is mostly applicable in the civil cases of negligence wherein a presumption is drawn against the wrongdoer that he has not taken due and proper care or he has done certain acts rashly. According to this doctrine, a presumption of negligence is drawn against the wrong doer from the circumstances and burden of proof shifts to him to prove his innocence. While discussing about the applicability of this doctrine in the realm of criminal offences, the 13 Hon'ble Supreme Court in the case of Ravi Kapur vs. State of Rajasthan (2012) 9 SCC 285 has interalia held the following:

"18. In light of the above, now we have to examine if negligence in the case of an accident can be gathered from the attendant circumstances. We have already held that the doctrine of res ipsa loquitur is equally applicable to the cases of accident and not merely to the civil jurisprudence. Thus, these principles can equally be extended to criminal cases provided the attendant circumstances and basic facts are proved. It may also be noticed that either the accident must be proved by proper and cogent evidence or it should be an admitted fact before this principle can be applied. This doctrine comes to aid at a subsequent stage where it is not clear as to how and due to whose negligence the accident occurred. The factum of accident having been established, the Court with the aid of proper evidence may take assistance of the attendant circumstances and apply the doctrine of res ipsa loquitur. The mere fact of occurrence of an accident does not necessarily imply that it must be owed to someone's negligence. In cases where negligence is the primary cause, it may not always be that direct evidence to prove it exists. In such cases, the circumstantial evidence may be adduced to prove negligence. Circumstantial evidence consists of facts that necessarily point to negligence as a logical conclusion rather than providing an outright demonstration thereof. Elements of this doctrine may be stated as:
 The event would not have occurred but for someone's negligence.
 The evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the event.
 Accused was negligent and owed a duty of care towards the victim"

38. Further, in the case of State of Himachal Pradesh vs. Manpreet Singh HLJ 2008 (HP) 538, while discussing the applicability of this doctrine in a case of criminal negligence, the Hon'ble Court has interalia held the following:

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"Legally, in a case of rash and negligent act, if the prosecution is able to prove the essential ingredients of the offence, the onus to disprove it shifts upon the respondent to show that he had taken due care and caution to avoid the accident. It is an admitted fact that the said Shri Daya Ram has died in the accident caused by the respondent but still it is incumbent upon the prosecution to prove that it was the rash and negligent act of driving to conclude the rash and negligent driving of the respondent. In other words, it must be proved that the rash or negligent act of the accused was causa causans and not causa sin qua non (cause of the proximate cause). There must be some nexus between the death of a person with rash or negligent act of the accused."

39. Therefore, analysis of the aforementioned judgments makes it very clear that the doctrine of res ipsa loquitur is equally applicable in a criminal cases provided that prosecution successfully proves the essential ingredients of the offence, the accident must not have occurred but for someone's negligence or rashness and evidence on record rules out the possibility that actions of the victim or some third party could be the reason behind the accident.

40. In the instant case, the accused in his statement recorded u/s 313 Cr.P.C. while admitting the factum of accident has stated that scooter collided against his truck on its right side after it was hit by the car which was plying on the right side of the scooter. It is interesting to note that this statement has also been corroborated by the deposition made by the eye­witness PW­1 during his cross­examination. Prosecution has not examined the other eye­witness i.e. M.D Kalam in the present case. No other public witnesses were examined by the prosecution to establish the essential ingredients of the offence u/s 279/304A/337/338 IPC. Also, examination of evidences available on record suggests that role of a third party in the present case cannot be entirely ruled out. In fact statements of accused u/s 313 Cr.P.C and testimony of PW­1 suggest the involvement of a car in the present case.

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41. Since, the prosecution could not completely rule out the possibility of a third party and also could not prove the essential element of rashness or negligence present in the present case, therefore, merely establishing the factum of accident would not be sufficient enough for the applicability of doctrine of res ipsa loquitur so that a presumption of rashness or negligence can be raised on the part of the accused driver.

42. Therefore, in view of the above discussion, I am of the considered view that the prosecution has miserably failed to establish the act of rashness of negligence on the part of accused in the present case, and, thereby, miserably failed to prove the guilt of the accused beyond reasonable doubt. Eye­witness did not support the prosecution's story. Testimonies of rest of the witnesses are not sufficient enough to prove the guilt of accused. Hence, benefit of doubt has to be given to the accused.

43. Accused stands acquitted of the offence punishable u/s 279/304A/337/338 IPC. 

  Announced in the open court                      (Animesh Kumar)
  on 13.01.2021                                    MM­06, South East
                                                   Saket/ New Delhi

It is certified that this judgment contains 16 pages and each page bears my signatures.

(Animesh Kumar) MM­06, South East, New Delhi/13.01.2021 16