Delhi District Court
Permanent Address At vs State on 6 October, 2022
IN THE COURT OF SHRI ARUL VARMA
ADDL SESSIONS JUDGE04 & SPECIAL JUDGE (NDPS) ACT
SOUTH EAST DISTRICT: SAKET COURT: NEW DELHI
CA No 160/2017
Kamal Dev
S/o Sh. Banka Ram
R/o Gali No.1 Gulab Vatika,
Loni Road, Ghaziabad UP
Permanent Address at:
Village Ladrour , PS Bhoraj,
Distt Hamirpur
Himachal Pradesh
..........Appellant
Vs.
STATE
(Govt of NCT of Delhi
...........Respondent
Instituted on :22.04.2017
Argued on : 06.10.2022
Decided on : 06.10.2022
JUDGMENT
1 Vide this order, this Court shall adjudicate the Criminal Appeal filed by appellant, seeking to set aside impugned judgment of conviction dated 07.03.2017 and order on sentence dated 22.03.2017, passed by Ld. Trial Court, whereby the Ld. ACMM convicted the appellant for the offences punishable u/s Kamal Dev Vs State CA No.160 of 2017 1/12 279/304 A IPC and also directed the appellant to undergo sentence of rigorous imprisonment for a period of two years for offence u/s 304 A IPC alongwith fine of Rs. 25,000/ to be paid as compensation to the family of deceased and for offence u/s 279 IPC rigorous imprisonment for a period of six months alongwith Rs. 1,000/.
IMPUGNED ORDER FACTS 2 The facts of the case are hereby succinctly recapitulated: It was alleged that the complainant was sitting on the side of the road alongwith his friend i.e. PW3 Rahul and he saw that accused/appellant herein who was driving a truck bearing registration no. DL 1GB 6423 tried to overtake the motorcycle bearing registration no. DL 3SAY1769, from right side and while trying to overtake, hit the said motorcycle and as a result of which motorcycle got disbalanced, the motorcyclist fell down and came under the right rear tyre of the truck and died. Thus, FIR got registered.
FINDINGS OF THE LD TRIAL COURT 3 After weighing the evidence, the Ld Trial Court opined, Kamal Dev Vs State CA No.160 of 2017 2/12 that the accused was overtaking the motorcyclist in the night when there was little traffic movement o the road, and was negligent in doing so, and thereby caused death of the deceased. Ld. Trial Court also held that this is a case which resulted in the death of a person and is a case of accident by professional bus driver who was driving a commercial vehicle i.e Truck, which he was supposed to be driving with utmost care. Moreover, accused/appellant ran away from the spot alongwith truck after the incident. Thus, Ld. Trial Court convicted the appellant herein.
CONTENTIONS OF LD. COUNSELS FOR THE APPELLANT & THE RESPONDENT 4 Ld. Counsel for the appellant submitted that the impugned
judgment of conviction and order on sentence are contrary to law and on the basis of facts established on record, as there is no effective and strict evidence in the case against the appellant. It was further submitted that the entire case of prosecution is based upon the alleged statement of complainant PW1 Vir Singh which is exhibited as PW1/A by the prosecution however, the said piece of evidence is absolutely and evidently false and fabricated. It was further contended that the Ld. Trial Court erred in holding Kamal Dev Vs State CA No.160 of 2017 3/12 that the prosecution has proved and established its case beyond reasonable doubt whereas the matter of fact is that it is clearly false and fabricated case and no material evidence came on record in this regard. Ld. Counsel also contended that the Ld. Trial Court has erred in holding the appellant guilty as there were no photographs either of the spot, or of the vehicles on the spot on record in order to show that any such incident had even been taken place at the alleged spot which creates a serious doubts and also destroys the story of prosecution. It was further submitted by Ld. Counsel for appellant that the Ld. Trial Court has erred in holding the appellant guilty as mechanical inspection report was not appreciated by Ld. Trial Court which also does not support the case of prosecution. Ld. Counsel for appellant has placed reliance on:
(i) Abdul Subhan Vs State (NCT of Delhi) 2007 CriLJ 1089,
(ii) Ram Chander Vs State (Delhi) 2017(4) JCC 2676,
(iii) S.N Hussain Vs The State Of Andhra Pradesh, AIR 1972 SC 685 5 Per Contra, Sh. WasiUr Rahman, Ld. Addl. PP for the State submitted that the Ld. Trial Court has correctly passed the order and has rightly convicted the appellant herein.
6 Submissions heard.
Kamal Dev Vs State CA No.160 of 2017 4/12 DECISION 7 In order to substantiate its case the prosecution, at the foremost, has to establish that the accused was driving in a rash and negligent manner. In order to substantiate its version, the prosecution placed reliance on testimonies of two witnesses, who avowed that they were the eye witnesses to the commission of said offence. In this context, it would be apt to reproduce the following testimony of PW1, Vir Singh "I do not remember the date and month, however, it was in the year 2013, when I alongwith my friend Rahul Sharma were standing at outside the Nehru Market, main Mathura Road at about 11:0011:30 pm one truck was coming from the side of Delhi and it was going towards Faridabad and the said truck hit against the motorcycle at the cut/slip road, which is leading towards Mehrauli." 8 The above statement nowhere lends credence to the assertions of the prosecution that the accused/truck driver was driving the truck either at high speed or that he was driving in a rash and negligent manner. On the other hand, the said witness was crossexamined by the Ld. Addl PP for State as he was partly resiling from his previous statement. The following was elicited in his crossexamination by the Ld. Addl PP for State:
Kamal Dev Vs State CA No.160 of 2017 5/12 "It is wrong to suggest that the driver of the offending vehicle/truck was driving the truck at high speed, rashly and negligently. Vol. The driver of the truck was not driving the said vehicle at high speed. After hitting the motorcycle from back, accused slowed down the truck a little, but then he overran his truck on the bike and the deceased."
9 Further, the other eye witness ie PW3 Rahul merely deposed that driver of the truck in question was driving the said vehicle at a very high speed and the driver of the said truck tried to over take the motorcycle from his right side. The mere factum of driving the truck at the high speed does not tantamount to rashness or negligence, as has been laid down in catena of judgments. Moreover, the truck was over taking from the right side, which is in consonance with the traffic rules. Further, in his crossexamination dated 07.09.2016, PW3 categorically deposed that the truck driver was maintaining the distance of 10 to 15 feet from the motorcycle. This averment also fortifies the submissions of Ld. Counsel for accused, whereby he had contended that the accused was not driving the truck in a rash and negligent manner, as he was maintaining sufficient distance between both the vehicles.
10 At this juncture, it would be apt to peruse the following Kamal Dev Vs State CA No.160 of 2017 6/12 extracts of Ram chander (supra), in which it was held as thus:
"15 A reading of aforesaid Section shows that to constitute an offence under Section 279 IPC, it must be shown that the person was driving the vehicle in a rash or negligent manner. Criminal Negligence or criminal rashness is an important element of the offence under Section 279 IPC. Mere fact that the accused was driving the vehicle at high speed may not attract the provisions of Section 279 IPC and the prosecution is required to bring on record such negligence and rashness. 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 rashness or negligence on the part of the driver.
18 The prosecution had to prove that there was a direct nexus between the death of the person and rash and negligent act of the petitioner. The mere fact that a person knocked down and died, the presumption of negligence against the petitioner cannot be drawn. The fact the death of the deceased was caused by rash and negligent driving has to be proved by the prosecution as merely driving at a high speed does not denote driving in a rash manner and the petitioner cannot be held guilty for causing death of the deceased. In order to impose criminal liability on the petitioner, it must be found as a fact that collision was entirely or atleast mainly due to the rashness or negligence on the part of the petitioner who was driving the vehicle.
19 In the present case, the prosecution failed to show that though the death of the deceased occurred, it was due to the rash and negligence act of the petitioner. The prosecution failed to bring that there was a direct nexus between the death of the deceased and rash and Kamal Dev Vs State CA No.160 of 2017 7/12 negligence act on the part of the petitioner."
11 Moreover, in S.N Hussain(supra) , it was laid down as thus:
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 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 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 reason best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."
12 Further, during the course of arguments, Ld. Counsel for Kamal Dev Vs State CA No.160 of 2017 8/12 appellant convicted had invited the court's attention to various contradictions and discrepancies in the testimonies of the prosecution witnesses. It was brought to the fore that PW1 did not remember the date of incident nor did he remember the registration number of vehicle. Further PW1 deposed that the police stayed at the spot for about 1½ hours, whereas PW3 averred that police was at the spot for about 10 to 15 minutes after apprehending the accused and bringing him back at the spot. It was also highlighted that PW1 Vir Singh deposed that PW3 Rahul Sharma alone went to chase the offending vehicle/truck, which was contrary to the statement given by PW1 in his original complaint Ex. PW1/A wherein it was mentioned that a passerby accompanied PW3 Rahul, while chasing the accused. 13 Further, there are no photographs of either the spot of the incident or of the vehicle on the spot. Proper investigation has also not been conducted by the police authorities in terms of Abdul Subhan (supra) verdict. In the said verdict, it was ordained as thus:
"13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with Kamal Dev Vs State CA No.160 of 2017 9/12 maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exacts point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regards to the length of the tyre skid marks of the vehicles involved int eh impact go a long way in indicating the speed at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "highspeed".
13.2 The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the telltale signs of collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically should or not prior to the impact so as to enable the court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in collision but also of the site and surrounding areas so that the exact topography can be easily discerned by court." 14 Thus, the above discussion makes it explicit that shoddy investigation was carried out, as even the first IO was not examined as witness, no photographs were taken nor was a Kamal Dev Vs State CA No.160 of 2017 10/12 proper site plan prepared and photographs of skid marks were not taken.
15 Apart from bland assertions that the impugned vehicle in question was driven by the accused in a rash or negligent manner, the prosecution could not establish its case beyond reasonable doubt. Mere factum that the victim was knocked down by the truck and died cannot raise the presumption of negligence against accused. In order to impose criminal liability, on the accused it has to be cogently established that the collision was due to rashness or negligence on part of the accused. In the absence of any cogent material on record, no presumption of rashness or negligence can been drawn by invoking the rule of res ipsa loquitur.
16 Thus, in light of fact that the prosecution witnesses have not attributed rashness or negligence to the accused, and also considering the fact that PW3 categorically deposed that the truck driver was maintaining a distance of about 10 to 15 feet from the motorcycle, it cannot be said with certainty that the truck driver acted in rash and negligent manner whilst driving his truck. Kamal Dev Vs State CA No.160 of 2017 11/12 CONCLUSION 17 Ergo, in view of the aforesaid discussion, this Court deems it fit to set aside the impugned judgment of conviction dated 07.03.2017 and order on sentence dated 22.03.2017, passed by, Ld. ACMM, SouthEast, Saket Courts New Delhi, and the appellant is hereby acquitted.
18 TCR, if any, alongwith copy of this order be sent to Ld. Trial Court for necessary information/ compliance. 19 Appeal file be consigned to record room after due compliance.
Order be uploaded on official website of District Courts. Announced in the open court on 06th October, 2022 (ARUL VARMA ) ASJ04 + Spl. Judge (NDPS) South East District, Saket Court, New Delhi:
Kamal Dev Vs State CA No.160 of 2017 12/12