Delhi District Court
State vs . Manoj Kumar on 31 May, 2013
IN THE COURT OF SH. A.K. AGRAWAL, MM-IV (East)
KARKARDOOMA COURTS, DELHI
FIR. No. : 541/05
PS Shakarpur
Offence Complained of : 279/304A IPC
Date of commission of Offence : 16.06.2005
Unique Case I.D. No. : 02402R0505322006
Serial No. : 1028/09
JUDGMENT
STATE Vs. MANOJ KUMAR Manoj Kumar S/o Sh. Pooran Chand, R/o House No. 2, Gali No. 2, Mandawali, Fazalpur, Delhi.
.......................Accused
Ct. Malkhan Singh
PS Shakarpur ................Complainant
Date of Institution : 10.08.2006
Plea of the accused : Pleaded not guilty
Date of reserving judgment/order : 31.05.2013
Date of pronouncement : 31.05.2013
Final order : ACQUITTED
Brief reasons for the decision of the case: -
1. Briefly stated the story of the prosecution is that on 16.06.2005 at 10.50 am at place Shakarpur Chungi Pusta, Vikas Marg, Delhi, accused Manoj FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.1 of 11 was driving his vehicle i.e. Bus bearing No. DL1PA 3821, (for short 'Bus') in a rash and negligent manner and in the process, he suddenly applied brakes at the Red Light Signal, due to which one passenger of bus namely Aqil, fell down from the front gate of bus and got crushed by rear tyres of bus, causing him fatal injuries due to which the injured expired. The accused driver was apprehended at the spot with the aforesaid bus. Accordingly an FIR was registered for offences punishable u/s 279/304-A IPC. After completion of investigation, charge sheet was filed against the accused for offences punishable u/s 279/304-A IPC itself on 10.08.2006. Cognizance of offence was also taken on the same day.
2. Notice of accusation u/s 251 Cr.P.C. for offence punishable under 279/304-A IPC was served upon the accused on 28.04.2011 to which he pleaded not guilty and claimed trial. During trial, the accused did not dispute the MLC and post mortem of of deceased, so the concerned witnesses were not summoned to prove these documents. The MLC of deceased is Ex. C-1 & Post Mortem Report is Ex. C-2.
3. During PE, four witnesses were examined by the prosecution.
4. PW1 is Ct. Malkhan who deposed that on 16.06.2005, he was on picket duty at Chungi Check Post, PS Shakarpur and at about 10.50 A.M., one bus bearing No. DL1PA 3821 (route No. 39) was coming from ITO in rash and negligent manner and driver of bus suddenly applied brake at red light due to which one passenger of bus fell down from the front gate of bus and crushed over by backward tyres of bus. He (this witness) stopped that bus and apprehended the driver at the spot. He further deposed that injured was sent to LBS hospital by PCR van and he informed about this incident to PS through his wireless. On it, IO/SI B.D. Pathak came at the spot and thereafter, IO had gone to hospital. After returning from hospital, IO recorded the statement of this witness vide Ex.PW1/A. Witness FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.2 of 11 correctly identified the accused in the court. Accused did not dispute the identity of vehicle during examination of this witness.
5. PW2 is L/HC Pan Vati, Duty Officer, who registered the present FIR. The copy of FIR is Ex.PW2/A and her endorsement on rukka is Ex.PW2/B. She made D.D. No. 14/B regarding the departure of HC Malkhan vide Ex. PW2/C. She further made D.D. Entry No.13/A regarding the accident vide Ex.PW2/D and she further made D.D. Entry No. 30/A regarding death of injured in accident vide Ex.PW2/E.
6. PW3 HC Ved Pal who deposed that on 16.06.2005, he was on duty on Romio R-25 and he took injured Akil to LBS hospital.
7. PW4 is SI B.D. Pathak who deposed that on receiving D.D.No.13/A, he alongwith Ct. Ratan Singh reached at Shakarpur Chungi near Police Picket, Vikas Marg, where Ct. Malkhan Singh met and disclosed that injured had already been taken to LBS hospital by PCR van. One bus bearing No.DL1PA 3821 was also standing at the spot and the driver of bus namely Manoj, was also present. This witness went to LBS hospital leaving Ct. Malkhan and Ct. Ratan Singh at the spot, where he collected the MLC of injured Akil who was declared as unfit for statement by doctor. Thereafter he (this witness) came back at the spot and recorded the statement of Ct. Malkhan vide Ex.PW1/A and prepared rukka vide Ex. PW4/A and got FIR registered through Ct. Ratan. Thereafter, he seized the above said bus vide Ex.PW4/B and also seized documents of bus vide Ex.PW4/C. He prepared site plan vide Ex.PW4/D. Thereafter, accused Manoj Kumar was arrested vide Ex.PW4/E and personal search of accused was also conducted vide Ex.PW4/F. The injured expired in the meantime. The witness further deposed that on 18.06.2005, mechanical inspection of bus was also conducted vide Ex.PW4/G. The witness also stated that the relatives of deceased Akil could not be found. The FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.3 of 11 photographs of the dead body were taken vide Mark A1 to A4. Thereafter, post mortem of deceased Akil was got conducted vide Ex.PW4/H. Witness further deposed that on 27.06.2005, he seized the clothes of deceased Akil vide seizure memo Ex. PW4/I and on the same day, the body was handed over to Wakf board, Daryaganj after the post mortem vide handing over memo Ex. PW4/J. The witness correctly identified the accused in the court. Accused did not dispute the identity of vehicle during the examination of this witness.
8. Thereafter, PE was closed. Statement of accused under Sec 313 Cr.P.C.
read with 281 Cr.P.C. was recorded on 16.04.2013 wherein the accused admitted that he was driving the aforesaid vehicle but he denied that the accident took place from his vehicle. He asserted that he was falsely implicated in this case. No defence evidence was led by accused.
9. During final arguments, the Ld. APP prayed for conviction of the accused on the basis of Prosecution evidence. He argued that the eye witness PW1 has proved that the accident was committed by the aforesaid Bus which was being driven by the accused in a rash and negligent manner and when the accused suddenly applied brake, deceased passenger fell down and came under the wheels of bus. Moreover the remaining prosecution witnesses have also supported the case, so he argued that the accused deserved to be convicted.
10. On the other hand, the Ld. Defence Counsel argued that the case against the accused was not proved at all. He argued that there is no public witness of incident despite the fact that there were many passengers in the bus at the time of alleged accident. He also argued that PW1 has admitted that he firstly saw the bus from the distance about 5 meters so it was not possible for him to have ascertained whether bus was being driven in a rash and negligent manner or not. He also argued that PW1 had admitted FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.4 of 11 in his cross examination that when IO was doing investigation, he had left the spot and gone to other side of road which shows that the documents which are alleged to be prepared at the instance of PW1 are fabricated documents. He also alleged that PW1 has been planted in this case in order to prove the prosecution story. Accordingly, he prayed that accused deserves to be acquitted. Thereafter final arguments were closed.
11. In the instant case, the accused is alleged to have committed the offences punishable u/s 279/304 A IPC. The relevant sections read as under:-
Sec 279 IPC:- 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.
Sec 304 A IPC:- 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.
So the prosecution is required to prove two things for offence u/s 279 IPC:- (a) Firstly, the accused was the driver of the offending vehicle in question, and (b) Secondly, driving of vehicle by accused was in a manner so rash or negligent, so as to endanger human life, or to be likely to cause hurt or injury to any other person. Furthermore in order to prove offence punishable u/s 304-A IPC, the prosecution in addition to above facts, is also required to prove:- (c) That by doing the aforesaid act in the aforesaid manner, the accused caused death of any person.
FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.5 of 11
12. Having heard arguments of both sides, it is not disputed by the defence that deceased Akil died in a vehicular accident and also fact that on the date of incident, the accused was himself driving the bus. Since the accused has taken the defence that the accident took place from some other vehicle, the question before the court is two fold, firstly, whether the accident took place from the bus of accused or not; and if yes, secondly, whether the accident took place due to rash and negligent driving of the accused or not ?
13. In Rabindra Kumar Dey vs State Of Orissa 1977 AIR 170 it was held by Hon'ble Supreme Court that:-
"Three principles of criminal jurisprudence which are well settled are as under:(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty; and (iii) that the onus of the prosecution never shifts."
I shall proceed with appreciation of prosecution evidence in the light of the ratio of aforesaid judgment.
14. Submissions of both sides has been duly considered and the evidence on record carefully perused. In the present case, PW1 is eye witness of accident and hence, a material witness. PW2 being the duty officer is a formal witness. PW3 is also a formal witness who merely took the injured to hospital. PW4 is IO of the case whose testimony is corroborative in nature. It is self evident that the prosecution is primarily relying on the FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.6 of 11 testimony of PW1 in order to prove its case.
15. The prosecution case is that deceased fell down from the Bus when the accused applied sudden brakes and thereafter came under the wheels of the Bus. As far as the first question regarding the fact whether the accident took place from the bus of accused is concerned, the testimony of PW1 has remained unimpeached. The witness has correctly stated the date, time and manner in which accident took place. He has also correctly mentioned the number of bus which caused accident. He also identified the accused as driver of aforesaid bus. The bus was stopped by this witness at the spot itself. It is also pertinent to mention that as per PW4, when he reached at the spot, he found the aforesaid bus standing at the spot and this witness was not even cross examined on this point which proves the presence of bus at the spot. The testimony of witnesses is being corroborated by documents Ex.PW1/A & Ex.PW4/A which were prepared at the spot at the time of accident. Further more, the presence of PW1 also cannot be disputed because his presence at the spot is proved by D.D.No.14/B, which is Ex.PW2/C. Infact nothing has been extracted by the defence counsel from the cross examination of PW1, which can render the testimony of this witness uncredible and prove that he did not witness the accident.
16. At this stage, it would be appropriate to consider the defence taken by the accused. The contention of Ld. defence counsel is that PW1 is a planted witness being a police official. However, as observed above, the presence of PW1 at the spot of accident is duly proved by Ex.PW2/C. Further more, there are catenas of judgement wherein it has been clearly held that simply because the witness is a police official, his testimony cannot be treated with suspicion until unless it is proved to be unreliable or contradictory on material particulars. In State v. Sushil Sharma (Delhi) 2007 Cri.L.J. 4008, the Hon'ble High Court had observed on the issue of FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.7 of 11 reliability of evidence of police witnesses that :-
"In our view, evidence of PWs 3, 4 and PW-5 cannot be discarded because they are policemen. Being a policeman is no disqualification to be a witness in a criminal trial. They had no reason to depose falsely against the accused. They were on patrolling duty and so were expected to be in the area under their jurisdiction. It was not unnatural for them to have been around Ashok Yatri Niwas at the time of incident at Bagia restaurant. We do not find anything in their cross-examination which may throw any doubt about the correctness of their version."
17. Similarly in this case, PW1 had no reason to depose falsely against the accused. Furthermore even, the contradictions cited by defence counsel in the testimony of PW1 is of minor nature and not of much consequence. They do not affect the merits of the case. In view of aforesaid, discussions, I am of the considered opinion that accident has in fact taken place from the vehicle of accused itself.
18. As far as second question, whether the accused was driving his vehicle rashly and negligently is concerned, the prosecution case is that when the accused applied brakes suddenly, deceased who was passenger in the bus fell down and came under the wheels of bus. However, this is not a proof that the vehicle was being driven in a rash and negligent manner. Normally an incident of this nature in which a person falls down from the Bus, takes place when that person is either trying to board or de-board the Bus which is in motion. In some other cases, people are standing dangerously on the foot board of the Bus at the gate and when the brakes are suddenly applied by the driver, someone falls down from the Bus, which has allegedly happened in the present case. It is a common knowledge that when the vehicles ply on the road, there are many occasions when the driver has to apply brakes suddenly. No driver FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.8 of 11 howsoever efficient he may be, can ply vehicle without instances wherein he has to apply sudden brakes in order to stop the vehicle. Further when brakes are applied, there is a big jerk in the vehicle and if a person who is standing on the foot board in the vehicle, suffers that jerk, sometimes, he may fall down from the vehicle which appears to have happened in this case. The bus driver cannot be held responsible for all such incidents without any proof to the effect that he was driving the vehicle rashly and in a negligent manner. It has been held in catenas of judgement that there cannot be any presumption that an accident takes place due to the fault of driver of vehicle itself. In the case of Mohd. Aynuddin alias Miyam v. State of A.P. (2000) 7 SCC 72 while acquitting the driver of the Bus in a case where the deceased passenger fell down from the Bus and got crushed, the Hon'ble Supreme court had observed that:
"It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus no presumption of negligence can be drawn against the driver of the bus.
19. The evidence of PW1 is insufficient to show that the accident took place because of the fault of driver. It is also pertinent to mention that PW1 was standing on the road and not in the bus so as to determine whether the bus driver applied the brakes suddenly or not. It appears that he has stated this fact on the basis of his observation from the road which is subjective in nature. The prosecution is not even entitled to take benefit of the principle of Res Ipsa Loquitur. It is also surprising as to why none of FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.9 of 11 the other passenger on the bus has not been cited as a witness. The passenger inside the bus would have been in a much better position to tell as to where the deceased passenger was standing/sitting in the bus and how he fell down from the Bus.
20. In State of Karnataka v. Satish (1998) 8 SCC 493, it has been held by the Hon'ble Supreme Court that ;-
"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".
Similar was the view of Hon'ble High Court in Abdul Subhan v. State (NCT of Delhi) 133 (2006) DLT 562.
21. It has been held by Hon'ble Supreme court in Bhikari vs State Of Uttar Pradesh 1965 SCR (3) 194 that:
"If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the court as regards one or more of the ingredients of the offence including menses of the accused, he would be entitled to be acquitted."
22. In view of above observations and findings, in my considered opinion, the FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.10 of 11 prosecution has merely been able to prove that the deceased came under the wheels of the bus but it has not been able to prove beyond reasonable doubt that the accused was driving the Bus in a rash and negligent manner while committing the aforesaid accident. Accordingly, accused Manoj is given benefit of doubt and he is hereby acquitted from offences punishable u/s 279/304-A IPC.
Ordered Accordingly.
Announced in open court on Dated: 31.05.2013 (A. K. AGRAWAL) MM(East)/KKD/31.05.2013 FIR No. 541/05 PS Shakarpur State Vs Manoj Kumar Page no.11 of 11