Delhi District Court
State ...........Prosecution vs . on 10 February, 2023
IN THE COURT OF MS. BHARTI GARG,
METROPOLITAN MAGISTRATE09 SOUTHWEST
DISTRICT, DWARKA COURTS, NEW DELHI
FIR No. 110/21
Police Station Jafarpur Kalan
Under Section(s) 279/304A IPC
Cr. Case no. 847/22
CNR no. DLSW020049772022
IN THE MATTER OF:
State ...........Prosecution
Vs.
Krishan Singh
S/o Prem Singh
R/o Village Mundhela, Vikas Puri,
New Delhi ............Accused
1. Name of complainant : SI Kuldeep Singh
2. Name of accused person : Krishan Singh
3. Offences complained of : Under Sections 279/304A of
The Indian Penal Code, 1860
4. Plea of accused : Not guilty
5. Date of commission of offence : 28.07.2021
6. Date of institution of case : 31.01.2022
7. Date of reserving judgment : 11.01.2023
8. Date of pronouncement : 10.02.2023
9. Final judgment : Acquitted
State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.1/15
Digitally signed
by BHARTI
BHARTI GARG
GARG Date:
2023.02.10
15:59:00 +0530
JUDGMENT:
1. The present case pertains to prosecution of accused in respect of offences punishable under Sections 279/304A of The Indian Penal Code, 1860 (hereinafter referred to as 'IPC' for brevity).
2. Shorn of unnecessary details, the case of prosecution is that on 28.07.2021 at an unknown time, at Main Road from Rawta Mor to Samaspur Village near ITI Road, Jafarpur Kalan, Delhi, the accused was driving cluster bus bearing registration no.DL1PD1167 (henceforth, 'offending vehicle') at high speed in a rash and negligent manner so as to endanger human life and personal safety of others and hit one motorcycle bearing registration no.DL9SAX1836 (henceforth, 'damaged vehicle') thereby causing death of Rahul Vashisht (hereinafter, 'deceased') not amounting to culpable homicide. The deceased was rushed to RTRM hospital, where he was declared brought dead. The IO collected the MLC of deceased and got the FIR registered. During investigation, he recorded the statements of eye witnesses, prepared the site plan, seized both the vehicles and got them mechanically inspected. The documents of offending vehicle were seized and notice u/S 133 of MV Act was served upon the registered owner of the offending vehicle who stated that the same was being driven by accused on the date of incident. The accused was arrested and later released on bail. After the culmination of investigation, chargesheet was filed against the accused.
State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.2/15 Digitally signed by BHARTI BHARTI GARG GARG Date: 2023.02.10 15:59:10 +0530
3. Cognizance was taken of offences under Sections 279/304A of IPC and accused was summoned to face trial for the said offences. Upon his appearance, the copy of chargesheet was supplied to him in compliance with Section 207, Criminal Procedure Code (henceforth 'Cr.P.C').
4. On the basis of material filed along with chargesheet, notice of accusation under Sections 279/304A of IPC was served upon accused to which he pleaded not guilty and claimed trial. The accused admitted the genuineness of GD no.63A dated 28.07.2021 as Ex.A1, DD no.7A dated 29.07.2021 as Ex.A2, FIR along with Certificate under Section 65B of Indian Evidence Act as Ex.A3 (colly), GD no.67A dated 28.07.2021 as Ex.A4, mechanical inspection report of the offending vehicle as Ex.A5, mechanical inspection of damaged vehicle as Ex.A6, MLC as Ex.A7. postmortem report as Ex.A8, request letter qua autopsy as Ex.A9, memos of dead body identification of deceased as Ex.A10 and Ex.A11, death summary of deceased as Ex.A12 (colly) and indemnity as Ex.A13, under Section 294 of Cr. P. C.
5. In the pursuit to prove its case, the prosecution examined four witnesses in all. PW1 Harvind (eyewitness) stated that on 28.07.2021, he was the conductor of offending vehicle which was being driven by accused. They were going towards Kair Depot via Rawta and Samaspur Road and at about 10:0010:15 pm, as they were proceeding towards Samaspur Village, he saw that a motorcyclist, who was without a helmet, was coming from opposite side and overtaking a vehicle in front State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.3/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.02.10 of the offending vehicle. On seeing the same, the accused turned the offending vehicle to the left, but despite that, the motorcyclist hit the offending vehicle due to which it collided with an electric pole. He deboarded the offending vehicle and saw the deceased lying at a distance beneath his motorcycle. He was sent to hospital in another vehicle. He then called at 100 number and PCR arrived. The police noted down his name as well as that of accused. As PW1 did not support the case of prosecution on certain facts, the Ld, APP was granted permission to put him questions in the nature of crossexamination, wherein he identified the place of incident and offending vehicle through photographs Ex.PW1/P1 (colly) and Ex.PW1/P2 (colly) respectively. He was confronted with his previous statement Mark H1 and denied that accused was driving the offending vehicle rashly and negligently at high speed in the middle of road due to which it had hit the damaged vehicle. In his cross examination by accused, he stated that speed of the offending vehicle was around 35 kmph and had a speed governor which fixed the upper limit of speed at 40 kmph. He further stated that the electric pole which the offending vehicle eventually hit was fixed at katcha road adjacent to the main road.
6. PW4 SI Kuldeep Singh (first IO) deposed regarding the investigation conducted by him. Upon receiving information regarding the road traffic accident vide DD no.63A, he along with Ct. Manoj went to the spot where they found the offending vehicle and damaged vehicle lying in an accidental condition. The deceased had already been taken to hospital. He received DD State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.4/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.02.10 15:59:25 +0530 no.67A regarding the deceased and went to the hospital. He collected the MLC and came back to the spot where he clicked photographs of the spot. He further tendered tehrir as Ex.PW4/A, site plan as Ex.PW4/B, dead body handing over memo as Ex.PW4/C, unnatural report as Ex.PW4/D, notice U/s 133 MV Act as Ex.PW4/E, disclosure statement of accused as Ex.PW4/F, arrest memo as Ex.PW4/G, personal search memo as Ex.PW4/H seizure memo qua DL of accused as Ex.PW4/I and documents qua duty register of the relevant period regarding the offending vehiclea as Mark X (colly). The case was then sent to MACT Cell, Dwarka. In the crossexamination, he stated that there was a white strip diving the road at the spot of incident and the road was about 4045 feet wide. He stated that he had roughly noted down the facts narrated by Conductor and put the same in case file, but did not record his statement u/S 161 Cr.P.C. He admitted that the offending vehicle was stationed just before the electric pole.
7. PW2 SI Raj Kumar (second IO) deposed that during further investigation, he got both the vehicles mechanically inspected. He released the offending vehicle pursuant to the order of court, prepared panchnama Ex.PW2/A, and obtained indemnity bond Mark C and valuation report Mark D. He further obtained the MLC and postmortem report of deceased. In the crossexamination, he could not tell as to at whose instance the site plan was prepared. He admitted that the deceased did not have DL at the time of incident as he was not major. He admitted State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.5/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.02.10 that the offending vehicle had a speed governor and GPS.
8. PW3 HC Manoj Kharb had accompanied the IO SI Kuldeep to the spot and deposed in tune with his testimony. He tendered in evidence the seizure memos qua offending vehicle as Ex.PW3/A and qua damaged vehicle as Ex.PW3/B. In his cross examination, PW3 stated there was white line separating the road at the spot. He further stated that when he went to the spot, the offending vehicle was partly on katcha road adjacent to the main road.
9. On account of the admission made by accused under Section 294 Cr.P.C qua the genuineness of GD no.63A dated 28.07.2021 as Ex.A1, DD no.7A dated 29.07.2021 as Ex.A2, FIR along with Certificate under Section 65B of Indian Evidence Act as Ex.A3 (colly), GD no.67A dated 28.07.2021 as Ex.A4, mechanical inspection report of the offending vehicle as Ex.A5, mechanical inspection of damaged vehicle as Ex.A6, MLC as Ex.A7. postmortem report as Ex.A8, request letter qua autopsy as Ex.A9, memos of dead body identification of deceased as Ex.A10 and Ex.A11, death summary of deceased as Ex.A12 (colly) and indemnity as Ex.A13, PWs Rajesh Kumar, Ram Kishore, HC Ramkesh, HC Dharamvir, Dr. Sitanta Das, Dr. Parvinder Singh, Chander Prakash and Yashpal were dropped from the list of prosecution witnesses and their examination in that regard was dispensed with.
10. Thereafter, the prosecution evidence was closed and statement of accused was recorded under Section 281 read with State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.6/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.02.10 15:59:41 +0530 313 Cr. P. C. All the incriminating circumstances appearing against him in the evidence were put to the accused. The accused controverted all the allegations and stated that that he has been falsely implicated in the present case. He additionally stated that it was the deceased who was rash and negligent as he was coming from wrong side at high speed and hit his vehicle. The accused chose not to lead evidence in his defence. Thus, defence evidence was closed and the matter was taken up for final arguments.
11. It is argued by the Ld. APP for State that the prosecution has been able to establish the case against accused beyond reasonable doubts. The testimony of witnesses has remained unshaken on the point that the incident happened due to the negligence of accused. The MLC and PM report of deceased is also proved and there is no material discrepancy occurring in the prosecution evidence. It is further corroborated by the documentary evidence on record. Therefore, it is prayed that the accused be convicted of alleged offences.
12. Per contra, the Ld. Counsel for accused has strenuously urged for acquittal of accused on various grounds. It is contended that it is not established beyond all reasonable doubts that the incident happened due to the offending vehicle. The only eye witness has not supported the case of prosecution and his testimony is not worthy of credit. It is further submitted that prosecution has utterly failed to prove the ingredient of rashness or negligence on the part of accused.
State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.7/15 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.02.10 15:59:48
13. Arguments heard. Record perused. Considered.
14. It is a paramount tenet of criminal law that every accused is presumed to be innocent and cannot be convicted unless the prosecution is able to discharge the initial onus rested upon it beyond all reasonable doubts. The failure to do so would necessarily result in acquittal of accused. It has been held by Hon'ble Punjab & Haryana High Court in Sadhu Singh Vs. State of Punjab (1997) 3 RCR (Cri) 421: "5. In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
15. Before delving into merits, it is pertinent to give a brief outline of offences for which the accused has been tried. Section 279 IPC proscribes the driving of vehicle on a public way in such a rash or negligent manner so as to endanger human life or likely to cause hurt or injury to any person. Secondly, Section 304A makes punishable the causing of death due to such rash or negligent act. In the instant case, the prosecution is required to prove the following three points to bring home the guilt of accused under the aforementioned provisions: (a) deceased died as a result of collision of the offending vehicle with the damaged vehicle on the date of incident, (b) the offending vehicle was driven by the accused at the relevant time, and (c) the accused was driving the offending vehicle rashly or negligently.
16. At the outset, the fact that the deceased had died in a State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.8/15 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.02.10 15:59:56 road traffic accident on the relevant date and time is not disputed by the accused. The MLC Ex.A7 and postmortem report Ex.A8 of deceased stand duly proved in that regard. The cause of death has been opined in the postmortem report as antemortem injuries caused by blunt force trauma and possible due to the accident as alleged by prosecution.
17. It is further culled out from the cumulative reading of testimony of PW1 and statement of accused u/S 281 r/w 313 Cr.P.C that the deceased was riding the damaged vehicle which was hit by the offending vehicle being driven by accused on the date of incident. In as much as these facts have remained unrebutted during the evidence of PW1 and corroborated by the statement of accused himself, the pivotal question falling for determination is whether the accused was driving the offending vehicle rashly or negligently as to fasten him with criminal liability. A brief understanding of the meaning of expressions 'criminal rashness' and 'criminal negligence' is imperative before adjudicating upon the manner of driving of offending bus in the present facts and circumstances. The Hon'ble Supreme Court observed in Alister Anthony Pareira Vs. State of Maharashtra (2012) 2 SCC 648 as hereinunder: "37. In Empress of India v. Idu Beg ILR (1881) 3 All 776, Straight J., explained the meaning of criminal rashness and criminal negligence in the following words:
"...criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.9/15 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.02.10
16:00:03
consequences. Criminal negligence 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."
18. In order to label the rash act of accused as criminal, it should be of such nature as would imply complete recklessness or indifference towards the hazardous consequences which may ensue, i.e. the culpability arises from acting despite consciousness. Similarly, a negligent act would be punishable in criminal law if there has been a gross neglect in duty of exercising reasonable care.
19. Now, it is noteworthy that PW1 has not supported the case of prosecution on the element of rash and negligence on the part of accused as he stated that the accident did not happen due to any fault of accused. At this juncture, it is imperative to note that the evidence of hostile witness is not to be discarded completely in view of Section 154(2) of Indian Evidence Act 1872, as the maxim 'falsus in uno, falsus in omnibus' is not applicable under Indian Law. It has been held by Hon'ble Superme Court in Rohtash Kumar Vs. State of Haryana (2013) 14 SCC 434 that the evidence of such witness can be admitted to the extent that his version is found to be reliable upon a careful scrutiny thereof.
20. It is evident from the deposition of PW1 that it was the deceased, coming on motorcycle from opposite direction, who was trying to overtake a vehicle ahead of it, upon which the State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.10/15 Digitally signed by BHARTI BHARTI GARG Date: GARG 2023.02.10 16:00:11 accused moved the offending vehicle towards the left, and in spite of this, both the vehicles collided. He added that the offending vehicle then hit against an electric pole on the katcha road adjacent to the main road. This part of his testimony is also in consonance with the position of vehicles observed by PW3 and PW4 when they proceeded to the spot, as they admitted that the offending vehicle was found stationed partly on the katcha road very near to an electric pole.
21. The edifice of prosecution case rests on the fact that accused was driving the offending vehicle at high speed. However, PW1 categorically denied that the offending vehicle was running at high speed and rather, stated its speed to be around 35kmph. Even otherwise, mere averment of high speed of vehicle is not a determinative factor of rashness or negligence. The term 'high speed' is quite subjective and no certain value can be attached to it without considering the attending facts and circumstances. In that regard, the court relies on the following observations in State of Karnataka Vs. Satish (1998) 8 SCC 493: "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 State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.11/15 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.02.10
16:00:28
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".
22. In the absence of any peculiar fact or circumstance brought on record, the speed of 35kmph could not be per se assumed as high since the incident admittedly happened at the dead of night when the traffic is mostly light. A suggestion to this effect was even put by Ld. APP to PW1 in his crossexamination, which was admitted by him. Apart from this, the IO did not collect the tyre skid marks to substantiate the case framed by him. The prescribed speed limit on the route was not checked and no effort was made to ascertain if the said limit was breached by the offending vehicle on the relevant date.
23. No other fact or circumstance is on record which would either remotely or conclusively establish that accused was rash or negligent while driving. In fact, the material transpiring on record depicts a different story altogether. The version of PW1 that deceased was riding the motorcycle without wearing a helmet, in conjunction with the affirmation of PW2 that he was a minor at the time of incident and without driving licence, points to a possibility that it was the deceased himself who was negligent on road.
24. The court is fortified in its inference as it is manifest from the site plan that the damaged vehicle was found lying on the wrong side, a little ahead of the offending vehicle. Admittedly, it was a single road with two lanes meant for State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.12/15 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.02.10 opposite ways divided with white strips. This lends credence to the ocular evidence of PW1 that it was the deceased who had come on the wrong side in order to overtake the vehicle in front of it. It further supports the line of defence adopted by accused in the case at hand. In such an event, the likelihood of the accused trying to avoid the imminent collision, as it meandered towards the left, after he saw the deceased overtaking the vehicle ahead of it, is quite strong.
25. It cannot be gainsaid that in accident cases, rashness and negligence to be established by the prosecution must be of nature culpable or gross, and not something merely based upon an error of judgment. At this juncture, reliance may be placed on Syad Akbar Vs. State of Karnataka (1980) 1 SCC 30 wherein the Hon'ble Supreme Court has held that: "An error of judgment of the kind, such as the one in the instant case, which comes to light only on postaccident reflection, but could not be foreseen by the accused in that fragmented moment before the accident, is not a sure index of negligence, particularly, when in taking and executing that decision the accused was acting with the knowledge and in the belief that this was the best course to be adopted in the circumstances for everyone's safety."
26. Viewed through the lens of aforesaid legal position, the mere collision of the offending vehicle with damaged vehicle, without there being anything on record insinuating towards absolute guilt of accused, does not suffice in law to convict him for rashness or negligence. His conduct, as is evident from the limited material on record, rather appears to be innocent than gross. Having said that, there is not even an iota of material to State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.13/15 Digitally signed by BHARTI BHARTI GARG Date:
GARG 2023.02.10
16:00:45
show that the offending vehicle was being driven rashly or negligently, apart from the account of PW1, who has not uttered even a single word in that regard in his deposition.
27. As an upshot of the foregoing discussion, it is held that the prosecution evidence, both oral and documentary, including the surrounding circumstances is not of formidable nature as to deduce that that the accident could not have happened but for the fault of accused only. The manner of driving of accused has not been elaborated in a way so as to irresistibly call it rash or negligent. The bald and vague allegation of high speed or rash and negligent driving is inadequate in itself to prove the particulars of alleged offences. Not only this, the only eye witness to the case has not supported the case of prosecution in that regard. The prosecution has the bounden duty to discharge the initial onus before it can shift on to the other party. Several reasonable doubts have emerged in the narrative put forth by prosecution as analysed hereinabove. The basic ingredient of rashness or negligence has not been proved by prosecution so as to attract the offences of Sections 279/304A IPC in the instant case. The inescapable conclusion is that the accused is entitled to benefit of doubt.
28. Resultantly, since the prosecution has failed in proving its case beyond shadow of all reasonable doubts against the accused, the accused Krishan Singh S/o Prem Singh R/o Village Mundhela, Vikas Puri, New Delhi, is held not guilty and hereby acquitted of the offences punishable under Sections State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.14/15 Digitally signed by BHARTI BHARTI GARG GARG Date:
2023.02.10 16:00:54 +0530 279/304A of Indian Penal Code, 1860.
Pronounced in open court in the Digitally signed presence of accused on 10.02.2023.
by BHARTI
BHARTI GARG
GARG Date:
2023.02.10
16:01:05 +0530
(Bharti Garg)
MM09/South West District
Dwarka Court/New Delhi/10.02.2023
It is certified that this judgment contains fifteen pages and each page has been signed by the undersigned.Digitally signed
BHARTI by BHARTI GARG GARG Date: 2023.02.10 16:01:11 +0530 (Bharti Garg) MM09/South West District Dwarka Court/New Delhi/10.02.2023 State Vs. Krishan Singh CNR no. DLSW020049772022 Page no.15/15