Delhi District Court
That The Accident Actually Took Place vs State on 28 May, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Vishnu Dutt Joshi
FIR No. 347/05
PS Paschim Vihar
U/s 279/304A IPC
JUDGMENT
C C No. : 1618/2/10
Date of Institution : 03.01.2006
Date of Commission of Offence : 30.04.2005
Name of the complainant : ASI Kaptan Singh No. 19/D
PS Paschim Vihar, Delhi
Name & address of the accused : Vishnu Dutt Joshi
S/o Govind Vallabh
R/o RZA - 9, Nanda Block
Mahavir Enclave, Palam Delhi
Offence complained of : 279/304A IPC
Plea of accused : Pleaded not guilty
Final Order : Acquittal
Date of reserve for judgment : 23.05.2015
Date of announcing of judgment : 28.05.2015.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/s 279/304A IPC.
2. Briefly stated prosecution story is that on 30.04.2005 on Rohtak Road opposite Super Bazar, Paschim Vihar the accused was driving a tempo bearing no.
State v. Vishnu Dutt Joshi U/s 279/304A IPC 1/9 FIR No. 347/05 PS Paschim Vihar DL-1LE-1476 in a rash and negligent manner so as to endanger human life and personal safety of others. While driving the said vehicle in such manner, he hit a person namely Javed from the back side and caused his death not amounting to culpable homicide. Thus the accused is alleged to have committed an offence under Section 279/304A IPC. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused under Section 207 Cr.P.C. Notice under Section 251 Cr.P.C for offence under Section 279/304A IPC was framed against him by the Ld. Predecessor vide order dated 02.07.2007 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined three witnesses i.e (1) Vikrant Kumar (2) S. P. Chauhan and (3) HC Ghashi Ram.
5. PW-1 Vikrant Kumar deposed that on 30.04.2005 at about 6.30 - 7.00 pm, he was going to Peeragarhi chowk. He deposed that when he reached at main Rohtak Road, opposite super bazar, Paschim Vihar, he saw that one tempo was going towards Peeragarhi. The driver of the said tempo i.e the accused drove the tempo in a rash and negligent maner and hit one person. The witness called on 100 number. The police came to the spot and took the injured to the hospital. He deposed that 2-3 other persons were also sitting in the said tempo State v. Vishnu Dutt Joshi U/s 279/304A IPC 2/9 FIR No. 347/05 PS Paschim Vihar along with accused. Ld. APP had put a leading question to the witness regarding the number of the tempo. To this witness replied that it could be the same number.
6. PW-2 S. P. Chauhan deposed that he is the registered owner of TATA tempo.
He deposed that on 04.05.2005 he had received the notice under Section 133 M V Act. He replied to the notice that the said tempo was being driven by the accused Vishnu Dutt on 30.04.2005. The said reply is Ex. PW2/A. He got the vehicle released on superdari vide superdarinama Ex.PW2/B.
7. PW-3 HC Ghashi Ram deposed that on 02.05.2002 he was posted as DD writer at PS Paschim Vihar. He had recorded the wireless message from Trauma Center regarding death of an unknown person of 25 years of age which he recorded vide DD entry no. 18B. Same is Ex. PW3/A . He deposed that ASI Kaptan Singh had gone to the hospital to take further action.
8. Two witness namely Mukaram and Shoaib Alam remained unserved even through DCP concerned and accordingly, their names were dropped from the list of witnesses. PW ASI Kaptan Singh and Ct. Sunder Singh could also not be examined as they had expired.
9. Accused has admitted the MLC of the injured, the postmortem report, the FIR and the mechanical inspection report of tempo bearing no. DL-1LE-1476 under Section 294 Cr.P.C, Hence the remaining witnesses were not examined by the prosecution.
State v. Vishnu Dutt Joshi U/s 279/304A IPC 3/9 FIR No. 347/05 PS Paschim Vihar
10. Thereafter, the PE was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. The accused has admitted that he was driving the tempo on the given date, time and place. However, he denied that he was driving the tempo in a rash and negligent manner. He had stated that the speed of the tempo was 25-30 Kmph and the accused came in front of his tempo from left hand side all of a sudden. He stated that he ran away from the spot as he was afraid from beating from the public. No DE was led despite opportunity.
11. I have heard the submissions addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record.
12. Ld. Counsel for accused has submitted that the accused has been falsely implicated in the present case. He submits that the prosecution has failed to prove that the accused had acted in a rash and negligent manner. He has submitted that accused has not disputed the factum of his driving the said tempo on the given date time and place. He also admits that an accident had taken place between his tempo and the pedestrian. However, he has denied that the same was due to his fault. He submits that testimony of eye witness does not prove any rashness on behalf of accused.
13. On the other hand, Ld. APP has submtted that testimony of PW-1 has sufficently supported the case of the prosection and the accused is liable to be convicted.
State v. Vishnu Dutt Joshi U/s 279/304A IPC 4/9 FIR No. 347/05 PS Paschim Vihar
14. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
15. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". The words "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
16. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, 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 State v. Vishnu Dutt Joshi U/s 279/304A IPC 5/9 FIR No. 347/05 PS Paschim Vihar regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case."
17. It was observed by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows, "No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
State v. Vishnu Dutt Joshi U/s 279/304A IPC 6/9 FIR No. 347/05 PS Paschim Vihar
18. A similar view was expressed by the Hon'ble High Court of Delhi in "Rajesh Kumar v. State" Criminal Revision petition no. 490/2008". The Hon'ble Court had observed that, "For attracting the provisions of Section 304A Indian Penal Code, the negligent act of the accused must be culpable and gross and not merely based on an error of judgment, or the one which arises because of lack of intelligence. For holding an accused criminally liable one has to take into consideration all the attending circumstances which must also include any situation created by the negligent act of the injured person. In the present case, there is no evidence on record to show that the Petitioner was driving the offending vehicle at a very high speed or in a rash and negligent manner. There are no skid marks on the road to show that the vehicle was being driven at a high speed. Thus, in view of circumstances of the present case, it cannot be held that the accused was grossly negligent or reckless and that he must be held criminally liable. The prosecution in the present case has not been able to prove its case beyond reasonable doubt against the Petitioner. In the light of the above said judgement, the court is of the view that the prosecution has failed to prove the most important ingredient for the offence under Section 279/304A IPC i.e the accused should have been State v. Vishnu Dutt Joshi U/s 279/304A IPC 7/9 FIR No. 347/05 PS Paschim Vihar driving in a rash and negligent manner."
19. In case titled as "Abdul Subhan vs State, NCT of Delhi" 2007 Cr.L.J1089, Hon'ble High Court of Delhi had observed that, "In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor 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 loquitor."
20. In the case at hand, the star witness of the prosecution was PW-1 who has deposed that one tempo was being driven in a rash and negligent driving and had hit one person. He made call on 100 number and police had come to the spot. This witness has not deposed anything about the speed of the tempo or the manner in which the tempo was being driven. Merely making a bald statement that the accused was driving the vehicle in rash and negligent manner is not sufficient to prove the rashness / negligence on part of the accused. Moreover there are no photographs of the spot on the judicial record. The reason for non-filing of the photographs is known best to the IO who has not been examined. The site plan is also merely a perfunctory one and nothing material could be inferred from it. The mechanical inspection report is also of no State v. Vishnu Dutt Joshi U/s 279/304A IPC 8/9 FIR No. 347/05 PS Paschim Vihar use to the prosecution as no damage was found on the vehicle as no collision with another object had taken place.
21. Hence, court is of the view that though it has been proved by the prosecution that the accident had taken place between tempo and one pedestrian, however, there is no thing on record to prove that the tempo was being driven by the accused in a rash and negligent manner. It is not a case where the tempo had ran over the deceased or that injured was thrown into air due to the impact of the collision. There is absolutely no evidence on record to prove the rashness or negligence on part of the accused.
22. In view of the above discussion and in light of the aforesaid case-laws, court is of the considered opinion that the prosecution has failed to prove the charges against the accused. The prosecution has failed to prove that the accused Vishnu Dutt was driving the tempo bearing number DL-1LE-1476 in a rash and negligent manner and had hit the deceased thereby causing his death. Accordingly, accused Vishnu Dutt stands acquitted.
23. Accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/-
with one surety of like amount.
ANNOUNCED IN THE OPEN COURT ON
28th May 2015
(SAUMYA CHAUHAN)
MM-07(West)/THC/28.05.2015
State v. Vishnu Dutt Joshi U/s 279/304A IPC 9/9
FIR No. 347/05 PS Paschim Vihar