Delhi District Court
Unknown vs Vide This Judgment The Accused Is Being ... on 22 June, 2013
IN THE COURT OF METROPOLITAN MAGISTRATE-05
(SOUTH-WEST), DWARKA COURTS, NEW DELHI
Presided by: Ms. Manika
State v. Chander Pal
FIR No. 15/08
Police Station : Chhawla
Under Section : 279/338 IPC
Unique Case ID Number: 02405R0155252012
Date of institution : 01.04.2009
Date of reserving : 22.06.2013
Date of pronouncement: 22.06.2013
JUDGMENT
a) Serial number of the case : 149/01//12
b) Date of commission of : 27.10.2008
offence
c) Name of the complainant : Constable Surender Singh
d) Name, parentage and : Sh. Chander Pal
address of the accused S/o Sh. Rama Shish Singh
R/o Village Chainpur, Post Of-
fice Mirzapur, District
Chhapra, Bihar
e) Offence complained of : Section 279/338 IPC
f) Plea of the accused : Pleaded not guilty
State v. Chander Pal
FIR No. 15/2008 P.S.: Chhawla Page 1 of 16
g) Final order : Acquitted
h) Date of final order : 22.06.2013
BRIEF STATEMENT OF FACTS AND REASONS FOR THE DECISION
1. Vide this judgment the accused is being acquitted of the offence punishable under Sections 279/338 of the Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.') in the instant case FIR No. 15/2008 Police Station Chhawla by giving benefit of doubt for the reasons mentioned below.
CASE OF PROSECUTION
2. Briefly stated, the case of the prosecution is that on 27.10.2008 at about 4.00 pm in front of Gate No.4, BSF Camp, Chhawla, Delhi, within the jurisdiction of PS Chhawla, the accused was found driving a truck bearing No. HR-38-8411 in a rash and negligent manner so as to endanger human life and personal safety of other or likely to cause injury to any other person and hit his truck against a bicycle being ridden by Sh. Surender Singh and caused grievous injuries to the said Sh. Surender Singh.
COURT PROCEEDINGS
3. Upon completion of investigation, police report under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.') was filed.
4. The case was received by way of transfer by this Court on State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 2 of 16 19.04.2012.
5. The opportunity of the prosecution to examine prosecution witness namely Constable Ajay Singh listed at serial No. 2 of the list of witnesses was closed vide order dated 10.01.2013.
ACCUSATION AGAINST THE ACCUSED
6. Vide order dated 17.08.2009 passed by the learned predecessor of this Court, notice of accusation under Section 251 Cr.P.C. for the offences punishable under Sections 279 and 338 of the I.P.C. was served upon the accused to which he pleaded not guilty and claimed trial.
ADMISSION/DENIAL OF DOCUMENTS
7. Vide order dated 31.07.2012, in compliance with the provisions of Section 294 of the Cr.P.C., the accused was called upon to admit or deny the genuineness of copy of FIR No.15/08 dated 27.10.2008, report of radiologist bearing No.141640 dated 27.10.2008, MLC bearing No.141640 dated 27.10.2008 of Surender Singh and DD No.19 A dated 27.10.2008, which were admitted by the accused and were accordingly exhibited as Ex. P/A/1 to Ex. P/A/4 respectively.
EVIDENCE OF THE PROSECUTION
8. The prosecution in all examined eight witnesses.
9. PW-1 Sh. Rajeev Bhardwaj is the Deputy Commandant, BSF, who had reached the spot on receipt of information regarding the accident in question and had handed over the accused along with the State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 3 of 16 offending truck to the investigating officer. PW-2 Sh. Surender Singh is the complainant, injured and an eye-witness in the present case. PW-3 Sh. Virender Kumar is the registered owner and superdar of the truck bearing No. HR 38 8411, which was allegedly involved in the accident in question. PW-4 Sh. Puran Chand is the mechanical inspector who had prepared the mechanical inspection report Ex. PW4/A in respect of truck bearing No. HR 38 8411. PW-5 Sh. Ajay Pal Singh is the Nursing Assistant who had attended to the injured at BSF Hospital Chhawla and had accompanied the injured to Trauma Centre AIIMS New Delhi. PW-6 Constable Anil Kumar had accompanied the investigating officer to the spot on 27.10.2008 and joined investigation. PW-7 Sub-Inspector (retired) V.P. Singh is the investigating officer in the present case. PW-8 Head Constable Bharat Lal identified the handwriting and signatures of the MHC(M) on Ex. PW8/A i.e. entry at serial No.18 in register No.19.
FINDINGS
10. The record has been thoroughly and carefully perused. The respective submissions of Sh. Brijesh Kumar, learned Assistant Public Prosecutor for the State and Sh. Y.P. Sirohi, learned counsel for the accused have been considered.
I. Charge under Section 279 I.P.C.
11. In order to bring home the guilt of the accused in respect of the offence under Section 279 I.P.C. charged against him, the prosecution was required to prove the following:
(i) that it was the accused who was driving the offending vehicle State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 4 of 16 on the date, time and place of the alleged accident;
(ii) that it was the vehicle (truck) bearing No. HR-38-8411 which was being driven by the accused on the date, time and place of the alleged accident; and
(iii) that the accused was driving the offending vehicle in a manner so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person.
Re: Identity of the accused
12. In order to establish the identity of the accused qua the accident in question i.e. to establish that it was the accused who was driving the offending vehicle i.e. truck bearing No. HR-38-8411 on the date, time and place of the alleged accident, the prosecution has examined two witnesses namely PW-1 Sh. Rajeev Bhardwaj and PW-2 Sh. Surender Singh.
13. PW-2 Sh. Surender Singh is an eye-witness to the accident in question. As per the prosecution, PW-2 had seen the driver of the offending truck after the accident as the driver of the offending truck had stopped the truck and disclosed his name as Chander Pal to the injured Sh. Surender Singh. However, in his examination-in-chief, PW-2 injured Sh. Surender Singh stated that he had not seen the driver of the offending truck as he was not in a condition to do so. He further stated that he was later on informed that the name of the driver of the offending truck was Chander Pal. He did not identify the accused in the court as the driver of the offending truck.
State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 5 of 16
14. PW-1 Sh. Rajeev Bhardwaj stated that upon receipt of information regarding the accident in question, he immediately reached the spot, where the driver of the offending truck, namely, Chander Pal was also present. He correctly identified the accused Chander Pal, present in the court, as the driver of the offending vehicle. However, in his cross-examination conducted on behalf of the accused, PW-1 admitted that he had not seen the accident take place. Accordingly, PW-1 could not have seen the person who was driving the offending vehicle at the time of the accident and accordingly, his testimony to the effect that it was the accused Chander Pal who was driving the offending vehicle at the time of the accident in question is of no aid to the prosecution.
15. In view of the above, the prosecution has failed to establish that it was the accused who was driving the vehicle in question on the date, time and place of the alleged accident.
16. In his statement recorded under Section 313 Cr.P.C., however, the accused has admitted that he was driving the vehicle in question on the date, time and place of the alleged accident. Learned Assistant Public Prosecutor for the State submitted that, since the accused has admitted the aforesaid fact in his aforesaid statement, same need not be proved by the prosecution. However, mere admission as to a certain aspect in the statement of the accused does not by itself amount to proof thereof. In the absence of affirmative evidence being led by the prosecution an admission in the statement of the accused cannot be made the sole basis for conviction. Reliance is placed on the decision State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 6 of 16 of the Hon'ble Supreme Court of India in Mohan Singh v. Prem Singh, 2003 Cri.L.J. 11, wherein it was held as under:
"28. The statement made in defence by accused under Section 313 Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 Cr.P.C of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part is found to be false on the basis of the evidence led by the prosecution. ... ...
31. The statement of accused under S. 313 of Cr.P.C. is not a substantive piece of evidence. It can be used for appreciating evidence led by the prosecution to accept or reject it. It is, however, not a substitute for the evidence of the prosecution. As held in the case of Nishi Kant (supra) by this Court, if the exculpatory part of his statement is found to be false and the evidence led by the prosecution is reliable, the inculpatory part of his statement can be taken aid of to lend assurance to the evidence of the prosecution. If the prosecution evidence does not inspire confidence to sustain the conviction of the accused, the inculpatory part of his statement under S. 313 of Cr.P.C. cannot be made the sole basis of his conviction." (emphasis supplied).
17. Keeping in view the principles enunciated in the above decision, it is clear that since, as discussed above, the prosecution has failed to bring forth reliable evidence to prove that it was the accused who was driving the offending vehicle at the time of the accident, the inculpatory portion of the statement of the accused under Section 313 Cr.P.C.
State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 7 of 16 cannot alone be relied upon to hold that it was the accused who was driving the vehicle in question at the time of the alleged accident.
18. Thus, the identity of the accused in relation to the accident in question has not been established beyond reasonable doubt.
Re: Identity of the offending vehicle
19. The case of the prosecution is that on the relevant date, time and place the accused was driving a truck bearing No. HR-38-8411. The accused did not dispute the identity of the offending vehicle. Same is also recorded in the testimony of PW-1.
20. In view of the aforesaid, the involvement of the truck bearing No. HR-38-8411 in the accident in question stands established.
Re: Manner in which offending vehicle was being driven
21. The prosecution has only examined one witness namely PW-2 Sh. Surender Singh as a witness of the spot of the accident. Thus, it is his testimony which is to be examined for the purpose of this ingredient.
22. PW-2 Sh. Surender Singh is the complainant and injured in the present case. In his examination-in-chief, he stated that the offending truck bearing No. HR 38 8411 came from behind at a high speed and hit his bicycle from behind. He further stated that the driver of the offending truck was not driving the truck in a proper manner and that is why he hit against him.
23. Firstly, the testimony of PW-2 to the effect that the offending truck State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 8 of 16 was being driven at a high speed is not reliable inasmuch as he has himself stated that the offending truck had hit him from behind and, therefore, there was no opportunity for him to have seen the manner in which or the speed at which the offending truck was being driven. Secondly, even if the statement of PW-2 to the effect that the offending vehicle was being driven at a high speed was to be believed, the same does not by itself tantamount to rashness or negligence as is required to be established for bringing home the charge under Section 279 I.P.C. Reliance is placed upon the decision of the Hon'ble Supreme Court in State of Karnataka v. Satish, (1998) 8 SCC 493, wherein it was observed as under:
"3. Both the trial court and the appellate court held the respondent guilty for offences under Sections 337, 338 and 304-A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitur to hold the respondent guilty.
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 proving everything essential to the establishment of the charge State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 9 of 16 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. ..." (emphasis supplied)
24. The aforesaid decision was also relied upon by the Hon'ble High Court of Delhi in Abdul Subhan v. State (NCT of Delhi), 2006 (3) JCC 1797: 133 (2006) DLT 562, wherein it was held that a mere allegation of high speed would not tantamount to rashness or negligence. Thus, merely because PW-2 has stated that the offending vehicle was being driven at a high speed does not lead one to the conclusion that there has been rashness or negligence on part of its driver, more so as 'high- speed' is a relative expression and there is no material on record either to show what was the speed limit on the road in question at the relevant time or the actual speed at which the offending vehicle was being driven at the relevant time.
25. Besides high speed, the injured/complainant PW-2 has also alleged that the driver of the offending truck was not driving the same in a proper manner. However, he has failed to describe as to what was 'not proper' about the manner in which the offending truck was being driven.
26. The requirement of Section 279 I.P.C. is that the vehicle was being driven by the accused in a manner so rash or negligent as to State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 10 of 16 endanger human life or personal safety of others or likely to cause hurt to any other person. In order to bring home the charge under Section 279 I.P.C., what is expected of a prosecution witness is to furnish a description of the manner in which the offending vehicle was being driven. Whether the said manner is or not so rash or negligent as to endanger human life or personal safety of others or likely to cause hurt to any other person is a matter to be adjudicated by the Court. A bald statement of a prosecution witness that the accused was not driving the offending vehicle in a proper manner is, in the opinion of this Court, not sufficient to bring home the guilt of the accused under Section 279 I.P.C. Reliance is placed on the decision of the Hon'ble High Court of Delhi in Vinod Kumar v. State, 2011 [4] JCC 2786, wherein it was observed as under:
"6. PW10 Jitender Sharma the alleged eye-witness of the incident has deposed that on 25th November, 1999 at about 1:00/1:15 p.m. he was standing in front of Sunny Selection, Babarpur Road and he saw that one bus bearing No. 1690 was coming from Maujpur side towards Babarpur via Shahdara at the time of accident and the driver of the said bus was driving the bus in a very rash and negligent manner and hit the boy. ... This witness in his cross-examination admitted that he cannot tell how the accident occurred. ...
7. 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 State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 11 of 16 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.
8. The essential ingredients to constitute an offence punishable under Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person. For an offence under Section 304A, the act of accused must be rash and negligent, which should be responsible for the death which does not amount to culpable homicide. The prosecution in the present case has failed to prove how the act of the Petitioner was rash or negligent to bring the same under the purview of Sections 279/304A IPC."
27. In the instant case as well, the injured PW-2 has merely stated that the driver of the offending truck was not driving the same in a proper manner, without actually describing as to how he was driving the said vehicle. Thus, his testimony is not sufficient to hold that the offending vehicle was being driven in a rash or negligent manner. Further, there is no other evidence brought on record by the prosecution to show the manner in which the driver of the truck in question was driving the same to prove the rashness or negligence on part of the driver of the truck in question.
28. In view of the above, in the opinion of this Court, the prosecution has failed to prove that at the relevant time the offending vehicle was State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 12 of 16 being driven in a manner which was so rash or negligent as to endanger human life or personal safety of others or to cause hurt to any other person. Therefore, the third ingredient to bring home the guilt of the accused under Section 279 I.P.C. could not be proved by the prosecution.
Re: Other factors for doubting the prosecution version
a) Testimony of the star witness deficient and unreliable
29. Though in his complaint Ex. PW2/A the injured PW-2, who is the star witness of the prosecution in the present case, stated that after the accident, the driver of the truck had stopped the truck and had stated his name as Chander Pal, during his examination in court, he failed to identify the accused as the driver of the offending truck on the plea that he had not seen the driver of the offending truck not being in a condition to do so. Further, though in his complaint Ex. PW2/A, PW-2 merely stated that he had received injuries on his right leg, in his examination-in-chief, he stated that his right leg had been crushed by the front left tyre of the offending truck. His testimony to the aforesaid effect does not find support from the MLC as the same does not speak of any crush injury.
30. Thus, the testimony of the star witness of the prosecution is not only deficient but also tends to be unreliable.
b) Absence of independent public witnesses
31. Other than the injured Sh. Surender Singh himself, the prosecution has not examined any other eye-witness to the alleged State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 13 of 16 accident.
32. Though the prosecution had cited as a witness one Constable Ajay Singh, 25th Battalion, BSF Camp, Chhawla, who had allegedly witnessed the accident being present at Gate No.4, BSF Camp, Chhawla at the time of the accident, during trial despite multiple opportunities the prosecution was unable to trace the said witness and ensure service of summons upon him. Accordingly, the opportunity of the prosecution to examine the said witness was closed vide order dated 10.01.2013. Thus, the prosecution failed to examine the said eye-witness.
33. Besides, the prosecution did not even examine any other independent eye-witness to the alleged incident.
c) Site plan not proved
34. The site plan Ex. PW7/B does not bear the signatures of any witness. As per PW-7 Sub-Inspector (retired) V.P. SIngh, the site plan Ex. PW7/B had been prepared by him. It is not understood as to how and on what basis the investigating officer had prepared the site plan Ex. PW-7/B. The site plan has, thus, not been proved by the prosecution.
d) Want of photographs and mechanical inspection of the bicycle of the injured
35. While the mechanical inspection of the truck in question had been got conducted and its photographs taken and placed on record, in respect of the bicycle of the injured, which had allegedly been hit by the State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 14 of 16 truck from behind, neither any mechanical inspection was got conducted nor any photographs taken. The same is a serious lacuna in the investigation.
36. In view of the aforesaid detailed discussion, this Court finds it difficult to believe the prosecution version and hold the accused guilty of the offence punishable under Section 279 I.P.C. The accused is granted the benefit of doubt and is accordingly acquitted of the offence punishable under Section 279 I.P.C.
II. Charge under Section 338 IPC
37. For bringing home the charge under Section 338 of the I.P.C., the prosecution was required to prove that (1) grievous hurt had been caused to the injured, and (2) the same was caused by the accused by doing an act so rashly or negligently as to endanger human life, or the personal safety of others. As already discussed above, the prosecution has failed to establish beyond reasonable doubt that it was the accused who was driving the offending vehicle or caused the alleged accident. Further, the prosecution has also not established beyond reasonable doubt that the accused did any act so rashly or negligently as to endanger human life, or the personal safety of others. Thus, the accused is allowed the benefit of doubt and is acquitted of the offence punishable under Section 338 of the I.P.C.
CONCLUSION
38. Accordingly, the accused is acquitted of the offences punishable under Section 279 I.P.C. as well as Section 338 I.P.C.
State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 15 of 16
39. File be consigned to record room.
Announced in open Court on 22.06.2013 (MANIKA) Metropolitan Magistrate-05 (South-West), Dwarka Courts, New Delhi 22.06.2013 State v. Chander Pal FIR No. 15/2008 P.S.: Chhawla Page 16 of 16