Delhi District Court
State vs . Gurmail Chand on 28 June, 2019
IN THE COURT OF Ms. SHIVALI SHARMA
CHIEF METROPOLITAN MAGISTRATE
EAST: KARKARDOOMA COURT: DELHI
FIR No. : 28/06
PS : Kalyanpuri
U/s : 279/337/304A IPC
STATE Vs. Gurmail Chand
JUDGMENT
A .New No. 11333/16
B Name of the Jamil Ahmed s/o Zahur Ahmed r/o
complainant Mohalla Jogiyan Kasba, Sardhana,
PS Sardhana, Meerut, UP.
C Name of the accused Gurmail Chand s/o Sh. Jamna Dass
& his parentage and r/o Village Swara Distt Ropar,
address Punjab
D Offence Complained 279/337/304A IPC
of
E Date of commission of 19.01.2006
offence.
F Date of Institution 19.04.2007
G Offence Charged 279/337/304A IPC
H Plea of the accused Pleaded not guilty.
I Order Reserved on 27.06.2019
Date of 28.06.2019
Pronouncement
K Final Order Acquitted.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION State vs. Gurmail Chand FIR No.28/06 Page1 of 37 PROSECUTION'S CASE 1 The story of the prosecution is that on 19.1.06 at about 1.50 am at Gazipur Telco T Point within the jurisdiction of PS Kalyanpuri accused Gurmail Chand was found driving truck bearing no. HR 55 C 2595 in a manner so rash and negligent as to endanger human life or personal safety of others and while so driving the aforementioned vehicle he hit against a bus bearing no. UP 14 R 0088 in which a marriage party was travelling and thereby caused simple hurt on the persons of Shahzad, Sahid, Hunoo, Mohd.Khalid, Rajham Wadhawi, Roshan Mohd. Usman, Shehdas, Zarina, Gulistan, Jammul, Nasreen, Irshad and two unknown passengers and caused grevious hurt on the persn of Mantasho and also caused death of Habib, Intkaf and Mohd. Latif not amounting to culpable homicide. Thus, accused Gurmail Chand is alleged to have committed offences u/s 279/337/338/304A IPC.
FIR 2 On the basis of the said allegations and on the basis of complaint Ex. PW 1/A of complainant Jameel, rukka (Ex. PW31/B) was prepared and present FIR (Ex.AD1) was lodged on 19.01.2006.
NOTICE 3 After investigation, chargesheet under section 173 Cr. P.C was State vs. Gurmail Chand FIR No.28/06 Page2 of 37 filed on 19.04.2007.
4 On the basis of the chargesheet and after compliance of Sec.207 Cr.P.C., a notice for the offence punishable under section 279/337/338/304A IPC was framed against accused Gurmail Chand and was read out to him, to which he pleaded not guilty and claimed trial on 03.09.2007.
PROSECUTION EVIDENCE 5 To bring home the guilt against the accused prosecution has examined 31 witnesses in all:
6 PW1 Jamil Ahmad is the complainant who deposed that in the night of 19.1.06 he was driving bus no. UP 14 R 0088 in which a marriage party was traveling back from Delhi to Meerut. At about 1.30 AM in the night while he was crossing Gazipur Telco T Point on a green signal one truck bearing no. HR 55 C 2595 came from the side of Gazipur Highway (Anand Vihar Bus Adda Side). The said truck was being driven at a very high speed and in a zig zag manner and hit against a bus as a result of which the bus over turned and fell on the ground on the driver side. Two persons died at the spot while several other passengers sustained injuries. The injured were taken to hospital by PCR. He had also sustained inuries on his head and left side of his chest. He became unconscious and was taken to hospital where he came to know that driver of the bus had fled away. On State vs. Gurmail Chand FIR No.28/06 Page3 of 37 specifically being questioned, he stated that from Telco T Point he was taking his bus to Gazipur Highway side i.e. towards the right side from Telco T Point as he was coming from Laxmi Nagar via Preet Vihar. The truck had come from Anand Vihar Bus Adda Side and struck the bus. He prove his statement as Ex. PW 1/A. He also deposed that he was driving his bus in proper manner and was following the trafic signals and accident had occured due to negligence of the truck driver. 7 This witness was cross examined by Ld. APP for State as he was not disclosing the compete facts. He was confronted with his complaint Ex. PW 1/A wherein he had stated that the bus was coming from the side of Gazipur High Way but he maintained his stand that the truck came from Anand Vihar Bus Adda side and struck against the conductor side of the bus. He also stated that he had not stated to the police that the driver of the truck had alighted from the truck and fled away. Rather he volunteered that he had heard the nurse in the hospital saying to another to keep an eye on the driver of the truck lest he may flee from there as the police had to record the statement of the driver. He was on bed when he heard this statement and he was not aware if police had apprehended driver of the bus or not. He specifically stated that he had not identified accused Gurmail Chand in the PS as the driver of the offending truck. When shown accused Gurmail Chand he stated that he might State vs. Gurmail Chand FIR No.28/06 Page4 of 37 be the driver of the truck but the was not aware about the same. 8 However, in his cross examination, PW 1 specifically stated that he had not seen the accused prior to his evidence before the court.
9 PW2 Harbans Lal is the registered owner of the accidental bus who deposed that on 18.1.06 his bus had gone to Delhi with a marriage party. Jameel Ahmad was the driver of the bus. He came to know that there was an accident near Telco T Point Gazipur Delhi in which his bus was damaged by a truck. He produced the bus as Ex. P1.
10 PW3 Dilshad Ahmad is one of the passengers in the bus who was also injured in the accident. He deposed that on 19.1.06 at about 1.30 am when they were returning from a marriage in a bus, the bus was packed. When they reached Gazipur T Point,a truck being driven in a rash and negligent manner struck against their bus. He identified the accused as Driver of the offending truck. He correctly stated the registration no of the bus as well as offending truck. He had sustained injuries in the accident while his son Intkab had expired due to injuries sustained in the hospital. He proved his statement of identification of his son as Ex. PW 3/A. 11 In his cross examination he stated that the truck came from the side of the bus itself and not from opposite directions and had struck against the driver side. He also testified that although the State vs. Gurmail Chand FIR No.28/06 Page5 of 37 back of the accused was facing him initially the accused had glanced and started moving away from him. No one had attempted to catch the driver. He had not seen the accused either in the hospital or in the PS. 12 PW4 Sagir Ahmad is again a passenger of the bus and a victim in the accident. He deposed that at the time of the accident the light inside the bus was switched off and he was having little child. A big collision had taken place due to which bus over turned. He broke the glass and came outside the bus. He was sitting in the bus in a row behind the seat of the driver and the collision had taken place against the bus on the side in which he sat. The collision was caused by a truck which was coming at a high speed but he had not seen truck driver. He deposed about number of offending truck. When he had come outside the bus the driver had already fled away. 13 In his cross examination he testified that he had not seen the truck before the collision and had only seen it after the strike. He also stated that he was almost asleep at the time of the accident.
14 PW5 Raj Kumar Badwa is another passenger who was travelling by accidental bus at the time of accident and had sustained injury. Regarding the accident he stated that it occurred at around 2 am at Telco T Point Gazipur when a truck came from right side and struck against their bus because of State vs. Gurmail Chand FIR No.28/06 Page6 of 37 which the bus over turned. At that time bus was full of passengers and the truck was being driven at a very high speed in rash and negligent manner. He deposed about registration number of the bus and stated that he sustained injuries due to the accident and his spleen was ruptured. Many passengers were injured while 3 passengers including Habib Ahmad had expired. He identified accused as driver of the bus at the time of the accident.
15 In his cross examination he testified that the truck against the driver side of the bus and he was sitting immediately after the driver seat on the driver side of the bus. He had seen the truck at the time of accident but not prior to that.
16 PW6 Sagir Ahmad is again one of the baraaties traveling by the bus who had sustained injuries in the accident. He also deposed about the manner in which accident had occurred and identified the accused as the driver of offending bus. He deposed about registration number of offending truck as well as accidental bus and stated that he had sustained injuries in the accident. He deposed that the truck was being driven n a very high speed and in rash and negligence manner at the time of accident. 3 passenger had expired in the accident and several had sustained injuries. He also stated that he had not seen the truck before the strike. The offending truck had struck the bus on the driver side.
State vs. Gurmail Chand FIR No.28/06 Page7 of 37 17 PW7 Kartar Singh is registered owner of offending truck who deposed that on 18.1.06 accused Gurmail Chand was the driver of offending truck. He had received information from PS at around 89 pm regarding the accident. He got his truck released on superdari. The police officials gave him a notice mark A on which he gave his reply Ex. PW 7/B to the extent that accused Gurmail Chand was driving the truck at the time of accident.
18 In his cross examination he admitted that he was not aware as to who was driving the offending truck in the night of 18.1.06. 19 PW 8 Dr. Vinay Kumar Singh had conducted the post mortem of deceased Habib vide PM report Ex. PW 8/A and that of Intkab vide PM report Ex. PW 8/B. 20 PW9 Dr. R.N. Das, CMO, LBS Hospital deposed that on 19.1.06, he examined a patient Rani d/o Sh. Shahid, 16 years female who was brought to the hospital with the alleged history of road traffic accident and prepared the MLC Ex. PW 9/A and on that day at about 3 am he also examined a patient Shamshad s/o Sh. Himdad 50 years male who was brought to the hospital with the alleged history of road traffic accident and prepared MLC Ex. PW 9/B. On that day he also examined patient Shaista d/o Sh. Idrish, 17 years female who was brought to the hospital with the alleged history of road traffic accident State vs. Gurmail Chand FIR No.28/06 Page8 of 37 and prepared MLC Ex. PW 9/C. 21 PW 10 Dr. Parvesh Sharma deposed that on 19.1.06 he was working as CMO LBS Hospital. There was a mass casualty and lot of injured persons were brought to the hospital with the alleged history of road traffic accident. He had examined about 18 injured persons. He examined patient Shahzad s/o Sh. Abdul Rahim vide MLC Ex. PW 10/A, patient Sagir s/o Jameel aged 20 years vide MLC Ex. PW 10/B, patient Kallu vide MLC Ex. PW 10/C, Mohd. Khalid s/o Jameel aged 20 years vide MLC Ex. PW 10/D, patient Raj Kumar s/o Nand Kishore aged 55 years vide MLC Ex. PW 10/E, patient Roshan w/o Munna aged 20 years vide MLC Ex. PW 10/F, patient Mohd. Usman s/o Mohd. Ishaq aged 80 years vide MLC Ex. PW 10/G, patient unknown male, aged about 25 years vide MLC Ex. PW 10/H, patient Habib s/o Abdul Ahmad vide MLC Ex. PW 10/J, patient unknown male aged about 18 years vide MLC Ex. PW 10/K, patient Mohd Laik s/o Rashid ahmad aged about 35 years vide MLC Ex. PW 10/L, patient Shahdab s/o Mohd. Shahid aged about 10 years vide MLC Ex. PW 10/M, patient Shahid s/o Zakir Ali aged about 50 years vide MLC Ex. PW 10/N, patient Kishan s/o Ramesh aged about 19 years vide MLC Ex. PW 10/O, Fehmida w/o Shahida aged 46 years vide MLC Ex. PW 10/P, patient Dilshad s/o Latif Ahmad aged 38 years vide MLC State vs. Gurmail Chand FIR No.28/06 Page9 of 37 Ex. PW 10/Q, patient Jameel Ahmad s/o Jagor Ahmad aged 25 years vide MLC Ex. PW 10/R, patient Naseem s/o Anas aged 22 years vide MLC Ex. PW 10/S and patient Jameel Ahmad s/o Jagor Ahmad aged 25 years vide MLC Ex. PW 10/D. He identified his signatures on all the MLCs.
22 PW 11 Dr D. Mohanti has deposed that on 11.5.06, while posted at GTB Hospital in the department of Surgery, on the basis of surgical record of patient Irshad Ahmad, male, aged 50 years he had given his opinion regarding nature of injury sustained by him being simple. His opinion is Ex. PW 11/A. On 20.5.06, on the basis of surgical records of patient Dilshad aged about 15 years male, he had given his opinion nature of injuries being simple vide his opinion Ex. PW 11/B and on 11.5.06 on the basis of surgical notes in respect of patient Mastasha, which were placed before him for opinion he came to the conclusion that further examination of patient was necessary before giving any final opinion regarding nature of injuries. He had noted his observations in this regard on surgical note which is Ex. PW 11/C. 23 PW 12 Dr. Yogesh Tyagi deposed that on 20.1.06 he was posted at Sardarjang Hospital in the department of Forensic Medicine and had received a request alongwith 15 inquest papers which are Ex. PW 12/A. On the same day he had State vs. Gurmail Chand FIR No.28/06 Page10 of 37 conduced post mortem of deceased Mohd. Latif on request of IO SI Shri Gopal and prepared post mortem report Ex. PW 12/B wherein he opined that the cause of death was hypo volumic shock due to multiple fractures and laceration of liver produced by blunt force impact.
24 PW 13 Dr. Hari Shanker identified the signatures of Dr. Sanjay on the death certificate of deceased Habib prepared on 19.1.06 which is Ex. PW 13/A. 25 PW 14 Nizamuddin is again a victim who was traveling by the accidental bus at the time of the accident. He deposed that on 18.1.06, he alongwith his other relatives and friends had come at Turkman Gate, Delhi in the marriage of one Rahis s/o Habib. After departure of marriage they boarded bus no. UP 14 R 0088 for going back to Meerut. At about 1.30 am or 2 am when the bus reached near Telco T Point Gazipur red light and was crossing a chowk, suddenly a truck no. HR 55 C 2595 which was being driven in a rash and negligent manner hit against a bus due to which the bus over turned. He identified the accused Gurmail Chand as the driver of offending truck and stated that he had ran away from the spot. All the passengers/ Baraaties received injuries. Police came there and took them to hospital. His statement was recorded by the police.
26 PW 15 Yunus is again a victim who was traveling by the accidental bus at the time of the accident. He deposed that on State vs. Gurmail Chand FIR No.28/06 Page11 of 37 18.1.06, he alongwith his other relatives and friends had come at Turkman Gate, Delhi in the marriage of one Rahis s/o Hadib. After departure of marriage they boarded bus no. UP 14 R 0088 for going back to Meerut. At about 2 am when the bus reached near Telco T Point Gazipur red light and was crossing a chowk, suddenly a truck no. HR 55 C 2595 which was being driven in a rash and negligent manner hit against a bus due to which the bus over turned. He identified the accused Gurmail Chand as the driver of offending truck and stated that he had ran away from the spot. All the passengers/ Baraaties received injuries. Police came there and took them to hospital. His statement was recorded by the police.
27 PW 16 Zarina is a hostile witness and she did not support the case of the prosecution despite being cross examined by Ld. APP for state.
28 PW 17 Mohd. Sabir deposed on 26.11.11 that about 56 years ago, a Baraat of his nephew had come to Turkmaan Gate, Delhi. He had also attended the marriage ceremony at Turkmaan Gate, Delhi. Thereafter he returned back to his house on his bike. When he reached at his home he came to know about the accident of Baraat bus. He immediately went to GTB Hospital to see the injured persons where he came to know that many persons were injured and three persons were dead in the hospital. His brother in law Habib and other relatives State vs. Gurmail Chand FIR No.28/06 Page12 of 37 had expired in the accident. He received all the three dead bodies and took them to Meerut. He identified the dead body of his brother in law Habib vide memo Ex. PW 17/A. 29 PW18 Abrar deposed on 26.11.11 that about 56 years back an accident had occurred at Delhi and after receiving a call from his father Shokat Ali who was also traveling in accidental bus alongwith the Baraat and had also sustained injuries, he took his inured father to Gaziabad. Thereafter he returned back to the spot of accident i.e. Red Light at a Chowk near Anand Vihar ISBT where police jeep was found and he was informed that the injured had been shifted to hospital. He went to the hospital where he identified the dead body of his uncle Habib. 30 PW 19 Ct. Anil Kumar deposed that on 20.1.06 in his presence SI Jaswant Singh had given a notice u/s 133 MV Act to Sh. Kartar Singh, registered owner of offending truck bearing no. HR 55 C 2595. Kartar Singh also produced driver of the said truck namely Gurmail Singh. He identified the accused and stated that he was arrested vide memo Ex. PW 19/A. DL of the accused was seized vide memo Ex. PW 19/B. Disclosure statement of accused Ex. PW 19/C was also recorded by the IO. 31 PW 20 Dilshad is again a hostile witness. He deposed on 2.8.14 that about 8 years back he was returning after attending a Baraat. At about 2 am he was sleeping when an accident took place due to which he became unconscious. He regained his State vs. Gurmail Chand FIR No.28/06 Page13 of 37 consciousness in hospital. Despite cross examination by Ld. APP for State, he did not identify the accused as the driver of offending vehicle and stated that he had not seen the accident as he was sleeping.
32 PW 21 Smt. Roshan is again a hostile witness. She is also one of the victims who was traveling by the accidental bus on 18.1.06. Although he deposed that an accident had occurred with the bus by which the Baraat was returning to Meerut at about 2.30 am near Gazipur Telco T Point when a truck being driven in a rash and negligent manner had come from the front side and hit against their bus. But she denied the registration no. of the offending truck was HR 55 C 2595. she also failed to identify the accused as driver of the offending truck despite cross examination by Ld. APP for State.
33 PW 22 Retired SI Mahesh Singh Yadav deposed that on 18/01/06, he was on night checking duty from 08.00 pm to 08.00 am and he was present in the area of PS Kalyan Puri alongwith Ct. Anant Ram. On 19/01/06, at about 02.15 am, they received a wireless information regarding accident at TelcoT Point, Near Anand Vihar Bus Terminal Red Light. They reached there and found one bus bearing no. UP14R0088 and one truck bearing no. HR55C2595 in accidental condition. The bus was over turned and many passengers had sustained injuries. PCR Van was carrying the injured persons to the hospital. After some State vs. Gurmail Chand FIR No.28/06 Page14 of 37 time, SI Jaswant alongwith Ct. Surender also reached at the spot to attend the call. SI Jaswant alongwith Ct. Surender left for the hospital leaving behind him and Ct. Anant Ram at the spot for the custody of the vehicles involved in the accident. Accused driver was not there at the spot. After some time, IO / SI Jaswant came back at the spot and recorded the statement of the complainant Zamil / driver of the bus. At about 11.30 am, DD No. 37B was marked to him for postmortem of the deceased Latif but on that day his postmortem could not be conducted. On 20/01/06, as per the directions of the SHO, he handed over the DD No. 37B alongwith other documents to ASI Shree Gopal who got conducted the postmortem of the dead body of the deceased Latif. IO recoded his statement on 22/01/06.
34 PW23 Sh. T.U. Siddiqui is the Mechanical Inspector who deposed that on 20.01.2006 on the request of SI Jaswant Singh, PS Kalyanpuri, he conducted mechanical inspection of TATA truck bearing no. HR55C2595 (10 wheelers) and on the same day he also mechanically inspected TATA bus bearing no.UP 14R0088 at PS Kalyanpuri. He submitted two detailed reports with the fresh damages to the IO of this case, which are exhibited as Ex.PW23/A and Ex.PW23/B. 35 PW24 HC Surender Pal deposed that on 19.01.2006, he was on emergency duty at PS Kalyanpuri. On that day, at about State vs. Gurmail Chand FIR No.28/06 Page15 of 37 02:20 AM SI Jaswant Singh received information from on a wireless set regarding the accident between bus and truck at Telco Tpoint, Anand Vihar, Bus Stand. He along with SI Jaswant Singh reached the spot, where they found one truck bearing no.HR55C2595 and a bus bearing no.UP14R0088 were damaged in an accident. ASI Mahesh Yadav and Ct. Anant met us along with Ct. Home Guard there, who told them that injured persons had been removed to LBS hospital by PCR personnel. Thereafter, ASI Mahesh Yadav and Ct. Anant Ram were left at the spot to look after the spot and he along with SI Jaswant went to LBS hospital, where IO recorded statement of injured person, but he does not remember his name. Thereafter, IO prepared rukka and handed it over to him for the registration of FIR. Thereafter, he went to the PS Kalyanpuri and got registered the FIR and collected copy of FIR and original Tehrir and returned to LBS hospital and handed over the same to the IO. Thereafter, he along with IO went to Hedgewar hospital and GTB hospital and collected the MLCs of the injured persons. They went to spot where IO seized accidental truck and bus, vide seizure memos Ex.PW24/A and Ex.PW24/B. Thereafter, both the vehicles were removed from the spot to the Malkhana of PS Kalyanpuri by crane and case properties were deposited in the Malkhana. Thereafter, IO received the information vide DD No.31B from Ct. Sunil regarding death of injured persons.
State vs. Gurmail Chand FIR No.28/06 Page16 of 37 He along with IO reached the Mortuary, LBS hospital and IO prepared the inquest papers regarding the dead bodies and postmortem was conducted on the dead body of deceased persons. After postmortem, the dead bodies were handed over to their relatives by the IO. In cross examination by Ld. APP for state, witness deposed that it is correct that the name of injured/ complainant was Jameel Ahmed, who was driver of the said bus.
36 PW 25 SI Shree Gopal deposed that on 20.01.06, he was posted at PS Kalyan Puri as ASI. On that day the then SHO directed him to get conducted the postmortem of the dead body of Mohd. Laik S/o Rashid Ahmed as the main IO of this case was busy. He reached at Safardarjung hospital mortuary where dead body of the deceased Laik was in the mortuary. He prepared the inquest papers regarding the death of the said deceased and the dead body was identified by brother of deceased and his brother in law. After postmortem, the dead body of the said Mohd. Laik was handed over to his brother Sharif Ahmed. Inquest papers are Ex. PW 25/A1 to 25/A3 Identification memos are Ex. PW 25/B and 25/B1. He placed the papers on the file through IO.
37 PW 26 HC Anant Ram deposed that on 19.01.06, he was posted at PS Kalyan Puri as Constable On that day he was doing the checking duty alongwith the ASI Mahesh Yadav on State vs. Gurmail Chand FIR No.28/06 Page17 of 37 motorcycle. The information was received at about 02.15 am through wireless set that accident and over turning of bus had taken place at Telco T point Anand Vihar bus terminal. Thereafter, they reached at the spot where one bus UP148 0088 was over turned and a truck HR55C2595 was standing near the bus. Injured had been removed to hospital by PCR. SI Jaswant came at the spot alongwith Ct. Surender and Ct. Surender was deputed at the spot and IO Jaswant went to the hospital. Later, IO recorded his statement. 38 PW 27 Shahzad is again a victim who was traveling by the accidental bus and was injured in the accident. He deposed that he was only 6 years old at that time and was sleeping and had not seen the accident.
39 PW 28 Dr. Sumit Chakravarti, Consultant Surgeon at ESI Hospital deposed that on 01.06.2006, he was posted at GTB Hospital as Sr. Resident. On that day Disaster MLC no.8 dated 19.01.2006 was given to him for opinion. After looking at surgical record, it was found that the patient has absconded at the time of examination so he could not give final opinion regarding this disaster MLC no.8 Ex. PW 28/A. 40 PW 29 Dr. Amit Gupta Sr. Medical Officer, Lok Nayak Hospital, Delhi deposed that on 19.1.06 he was posted in Hedgewar Hospital as Medical Officer. On that day patient Rakesh was brought to the hospital for medical examination and treatment.
State vs. Gurmail Chand FIR No.28/06 Page18 of 37 On that day he prepared MLC no.E/2168 after examination of the patient. During examination Lacerated wound on right eye brow was found on the body of patient. MLC is Ex. PW 29/A. On abovesaid date and time at 4.05 am one patient namely Pradeep was also brought to the hospital for medical examination and treatment. On that day he prepared MLC no.E/2167 after examination of the patient. During examination Superficial Lacerated wound on fore head and abrasion on left ring finger were found on the body of patient. MLC is Ex. PW 29/B. 41 PW 30 Dr. I.K. Dhammi, identified the signatures of Dr. AP Singh on examination report no.9 of patient Zarina, examination report no.10 of Patient Younus, report no.4 of patient Irshad, report no.5 of patient Dilshad which are already Ex. PW 11/B and report no.2, Ex. PW 11/C all dated 19.1.06. He deposed that opinion regarding injury in report no. 9, 10, 4, 5 was given as simple.
42 PW31 Inspector Jaswant Singh deposed that on 19.01.2006, at about 2.20 AM, on receipt of DD No. 4A (Ex. PW 31/A) regarding the over turning of the bus at Telco TPoint Red Light, Aanad Vihar Bus Adda, he alongwith Ct. Surender reached at the spot where ASI Mahesh Yadav, Ct. Anant Kumar and PCR Staff met them. Truck No. HR 55C 2595 and Bus no. UP 14R 00 88 were found damaged at the spot. The bus was over turned.
State vs. Gurmail Chand FIR No.28/06 Page19 of 37 He came to know that injured passengers had been taken to the LBS hospital by the PCR and CATS. He deputed ASI Mahesh Yadav and Ct. Anant Kumar at the spot. He alongwith Ct. Surender reached at the LBS hospital where several injured were admitted and their MLCs were being prepared. He interrogated bus driver Jamil and recorded his statement Ex. PW1/A. He collected the MLC of Jamil and prepared the rukka Ex. PW31/B. He sent the rukka for registration of FIR through Ct. Surender from the hospital. He interrogated other injured persons and collected the MLCs of remaining injured persons namely Rani, Karan, three MLCs of Dilshad, Three MLCs of Sahir, baby Sahista, Sehzad and other injured persons. Ct. Surender came to LBS hospital after registration of FIR and handed over copy of FIR to him. He also knew that some of the injured were also admitted in other hospitals namely GTB and Dr. Headgewar. He went to the said hospitals and also collected the MLCs of other injured persons. Thereafter, he reached at spot. He seized the said truck and bus vide seizure memos Ex. PW24/A and Ex. PW24/B. He prepared the site plan Ex. PW31/C at the instance of witness/injured Sameer. Thereafter the case property was deposited in Mall Khana PS Kalyanpuri. He received information vide DD No. 31B regarding the death of injured namely Intkab and Habeeb at LBS hospital which is Ex. PW31/D. Thereafter, he alongwith Ct. Surender reached at State vs. Gurmail Chand FIR No.28/06 Page20 of 37 mortuary of LBS hospital. He prepared the inquest paper of deceased Mohd. Habeeb and Intkab Ex. PW31/E1 and Ex. PW31/E2. The dead body of Habeeb was identified by Sagir Ahmed and Sabir vide memos Ex. PW31/E3 and Ex. PW17/A. The dead body of Intkab was identified by Dilshad Ahmed and Abrar Ahmed vide memos Ex. PW3/A and Ex. PW31/E4. After the postmortem of the dead body of Habeeb and Intkab their dead bodies were handed to their relatives. He received information from the duty officer PS Kalyanpuri that one injured namely Laik Ahmed expired at Safdarjang hospital. Since he was busy in the postmortem of other deceased persons, ASI Mahesh Yadav was deputed for the inquest and postmortem of deceased Laik Ahmed. ASI Shree Gopal got the PM conducted at Safdarjang hospital as PM could not be conducted on 19.01.2006.
43 On 20.01.2006, Kartar Singh, Registered Truck Owner alongwith accused Gurmail Chand came to the police station. He served a notice under Section 133 MV Act on the registered owner Kartar Singh who gave a written reply to the same which is Ex. PW31/F. He interrogated the accused and arrested him vide arrest memo already Ex. PW14/A. Eye witness Jameel and Dilshad Ahmed identified the accused Gurmail in the PS. Thereafter, he recorded the disclosure statement of the accused. He seized DL of the accused (Ex. PW 31/6) vide State vs. Gurmail Chand FIR No.28/06 Page21 of 37 memo already Ex. PW19/B. Accused was released on bail. On 20.01.2006, both the vehicles were mechanically inspected vide memos Ex.PW 23/A and Ex. PW23/B. 44 He collected the PM reports of all the three said deceased alongwith the papers. He also submitted the MLCs for the opinion of the doctors and collected the same. He recorded the statements of all the injured persons. He identified the accused. 45 In addition to the above evidence, accused had admitted u/s 294 Cr.P.C. the registration of present FIR which is Ex. AD1, MLC no.7 prepared by Dr. Sandeep which is Ex. AD 2, MLC no.2,4,9 and 10 prepared by Dr. AB Singh which are Ex. AD3 (colly), MLC no.1 prepared by Dr. VK Jain which is Ex. AD4 and xray report no.3,4,5,9,2 prepared by Dr. Rajpal which are Ex. AD5 (colly). Accordingly the examination of relevant witnesses was dispensed with.
STATEMENT OF ACCUSED 46 Statement of accused was recorded u/s. 313 Cr.P.C. on 29.03.2019 wherein the entire incriminating evidence proved on record against him was put to the accused Guamail Chand. He denied all the allegations and evidences against him and stated that he was falsely implicated in the present case. He stated that he was not aware about the accident and he was not driving the State vs. Gurmail Chand FIR No.28/06 Page22 of 37 offending truck bearing no.HR 55 C 2595 at the time of the accident. The witnesses have falsely identified him as the driver of the offending truck. At the time of the accident i.e. in the night of 19.1.06 he was not present in Delhi. He had returned to Delhi from Punjab on 20.1.06. He was falsely implicated in this case at the instance of owner of offending truck namely Kartar Singh as he wanted to get his truck released. Witness identified him as he was shown to them by IO in the PS stating that he was driving the offending truck at the time of the accident so that they could easily get the insurance claim.
DEFENCE EVIDENCE 47 The accused has examined one witnesse in his defence. 48 DW 1 is Pawan Lawani who is brother in law of the accused.
He is a resident of Punjab. He deposed that accused had come to his house on 15.1.06 for ten days stay for personal visit. He had stayed with them till 20.1.06. On 20.1.06 at about 10 am he received a phone call from his employer Kartar Singh who called him to Delhi immediately for verification of his DL. Thereafter accused left for Delhi. Later on they came to know that accused was falsely implicated in an accident which had occurred in the night of 1819 January 2006. At the time of alleged accident accused Gurmail Chand was with him at his residence at Punjab and was not in Delhi.
State vs. Gurmail Chand FIR No.28/06 Page23 of 37 49 Final arguments have been heard and record carefully perused.
JUDICIAL RESOLUTION 50 It is a settled proposition of criminal law that prosecution is supposed to prove its case on the judicial file by leading cogent, convincing reliable and trustworthy evidence beyond reasonable doubts. The case of prosecution has to fall or stand on its own legs and it cannot drive any benefit from the weakness if any, in the defence of the accused. It is not for the accused to disprove the case of the prosecution and onus to prove the case against the accused beyond reasonable doubts never shifts and it always remains on the prosecution. Further, benefit of doubt in the prosecution story always goes to the accused and it entitles the accused to acquittal.
51 To bring home the guilt of rash and negligent driving against the accused, three things need to be proved by the prosecution beyond any reasonable doubt. The three essential ingredients are as follows: 51.1 That the accident actually took place.
51.2 That the accident took place due to rash and negligent driving.
51.3 That the accused was the person who was driving the offending vehicle at the relevant time.
52 These words i.e "rash" and "negligent", have not been defined State vs. Gurmail Chand FIR No.28/06 Page24 of 37 in the Indian Penal Code. However as per Blacks 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.
53 The Oxford Advanced Learner's Dictionary, Sixth Edition defines 'Rash'as doing something that may not be sensible without first thinking about the possible results. 54 Elaborating further, in State of H.P. v. Piar Chand, Cr. Appeal No. 109 of 2003, decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression "
rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
State vs. Gurmail Chand FIR No.28/06 Page25 of 37 The Apex Court has elaborated further the requirements of Sec. 304A IPC in Rathnashalvan v. State of Kar nataka, (SC) 2007 A.I.R. (SC) 1064.
"Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. 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. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the State vs. Gurmail Chand FIR No.28/06 Page26 of 37 amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
As noted above, " Rashness " consists in hazard ing a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The crim inality lies in such a case in running the risk of do ing such an act with recklessness or indifference as to the consequences. 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 partic ular, which, having regard to all the circumstances out of which the charge has arisen it was the im perative duty of the accused person to have adopted.
State vs. Gurmail Chand FIR No.28/06 Page27 of 37 The distinction has been very aptly pointed out by Holloway, J. in these words :
1."Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection." (See In Re : Nidamorti Nagabhusanam 7 Mad. HCR
119)"..............................................................
............
55 Coming back to the facts of the present case, the prosecution State vs. Gurmail Chand FIR No.28/06 Page28 of 37 was required to prove beyond any reasonable doubt that on 19.1.06 at about 1.50 AM an accident had occurred between accidental bus bearing no. UP 14 R 0088 and offending truck bearing no. HR 55 C 2595; in the said accident the bus over turned resulting in simple injury to various accused persons;, grievous injury to one Mantasho and death of three persons namely Habib, Intqab and Mohd. Latif; the accident had occurred due to rash and negligent driving of the truck driver; and the accused Gurmail Chand was driving the offending truck in a rash and negligent manner at the time of the accident. 56 Prosecution has examined various injured persons including the driver of the accidental bus to prove the manner in which the accident had occurred. These witnesses are PW 1 Jameel who is the complainant as well as driver of the accidental bus and the victims/ passengers in the accidental bus i.e. PW 3 Dilshad Ahmad, PW 4 Sagir Ahmad, PW 5 Raj Kumar Badwa, PW 6 Sagir Ahmad s/o Sh. Jameel Ahmad, PW 14 Nizamuddin, PW 15 Yunus, PW 16 Zarina, PW 20 Dilshad, PW 21 Roshan and PW 27 Shahzad. All these witnesses have deposed about the manner in which the accident has occurred on 19.1.06 at about 1.50 am. The testimony of these witnesses is consistent on the point that the accident had occurred due to rash and negligent driving by the driver of the offending truck who had come driving his truck at a high speed and hit against the bus which was State vs. Gurmail Chand FIR No.28/06 Page29 of 37 running at a normal speed following the traffic rules, resulting in over turning of accidental bus. Their testimonies are also consistent on the point that various passengers in the bus had sustained injuries due to the accident and three of the passengers had expired due to the injuries sustained. Most of these witnesses have also deposed about registration no. of offending truck as well as accidental bus. Accordingly, from the testimonies of these witnesses it is duly proved on record that on 19.1.06 at about 1.50 am an accident had occurred between accidental bus bearing no. UP 14 R 0088 and offending truck bearing no. HR 55 C 2595, in the said accident the bus over turned resulting in injuries to various passengers and death of three persons. It is also duly proved on record that the accident had occurred due to rash and negligent driving of the driver of the offending truck.
57 The next essential fact required to be proved by the prosecution was that the accused was driving the offending truck at the time of the accident. This fact has been clearly disputed by the accused. Now let us examine the evidence brought on record by the parties for establishing or contradicting this fact.
58 As stated above, the prosecution has examined 11 witnesses who are eye witness to the accident as well as the victims. Out of these 11 witnesses, 4 witnesses i.e. PW 16, PW 20, PW 21 State vs. Gurmail Chand FIR No.28/06 Page30 of 37 and PW 27 are hostile on the point of identification of the accused. All these witnesses have been cross examined by Ld. APP for State but they did not support the case of prosecution on the aspect that accused was driving the offending truck at the time of the accident. PW 16 Zarina categorically denied even being involved in the accident and she stated that she had come to Delhi for the first time for giving her evidence. PW 20 Dilshad deposed that he was sleeping at the time of accident and he was not aware as to because of whose fault the accident had occurred and he was not in a position to identify the driver of the offending truck. PW 20 Roshan, although deposed that the accident had occurred due to the rash and negligent driving of the truck driver, but she stated that she was not in a position to identify the driver of the offending truck. PW 27 Shahzad deposed that he was merely 6 years old at the time of the accident and was sleeping inside the bus at that time and had not seen the accident. Accordingly, testimonies of these 4 witnesses is not of any use to the case of the prosecution for establishing the fact that accused was driving the offending truck at the time of the accident.
59 Complainant Jameel Ahmad/ PW 1 also failed to identify the accused as the driver of the offending truck. When accused was shown to him during cross examination by Ld. APP for State, he stated that he might have been driver of the truck but State vs. Gurmail Chand FIR No.28/06 Page31 of 37 in his cross examination he categorically testified that he had not seen the accused prior to the date of recording of his evidence. He even stated that he had not identified the driver Gurmail Chand at PS in the presence of the police officials. He stated that while he was admitted in hospital, he had over heard nurses talking that the driver had been apprehended and eye should be kept on him so that he does not abscond which is contradictory to the case of prosecution as per which driver was not apprehended at the time of the accident. He even deposed that the offending truck had hit against the accidental bus from the side of the conductor and the bus had over turned on the driver side which is again contradictory to the site plan and deposition of other witnesses. Considering the over all testimony of PW 1/ complainant I am of the considered opinion that his testimony is not of any support to the prosecution for establishing the identity of accused as the driver of the offending truck.
60 PW 3 Dilshad Ahmad is another victim who, as per the case of the prosecution, also identified the accused in the PS during investigation. This witness also identified the accused as driver of the offending truck in his deposition before the court. However he deposed that offending truck had hit the accidental bus from the driver side of the bus (which is also the case of the prosecution as per the site plan as well as deposition of police State vs. Gurmail Chand FIR No.28/06 Page32 of 37 witnesses except the deposition of complainant/ PW 1) while he was sitting on the conductor side of the bus. He also stated that he had neither seen the accused in the hospital nor in the PS and had only seen the accused while he was escaping from the spot after the accident. He testified that while the accused was escaping, his back was towards his side and he had only seen a glance of the accused when he started moving away. He denied having ever identified or seen the accused in the PS during the investigation. In view of the over all testimony of this witness, his evidence regarding identification of the accused as the driver of the offending truck at the time of the accident is very weak and requires corroboration by other evidence. It cannot be relied upon solely for holding beyond any reasonable doubt that accused was driving the offending truck at the time of the accident.
61 PW 4 Sagir Ahmad s/o Kasim Ali deposed about the accident but he stated that he had not seen the driver of offending truck at the time of the accident and when he came out of the bus the truck driver had already fled away.
62 PW 5 Raj Kumar Badwa and PW 6 Sagir Ahmad s/o Sh.
Jameel Ahmad are two other victims who identified the accused as driver of the offending truck. Both of them deposed that they were sitting on driver side of the bus and the truck had struck against the bus from the driver side. In their cross examination, State vs. Gurmail Chand FIR No.28/06 Page33 of 37 both these witnesses testified that they could not see the truck before the strike as the truck had come suddenly. After the collusion the offending bus had over turned. Then in what manner and when they were able to see the person who was driving the offending truck is not clarified by any of these witnesses. None of these witnesses stated that they had seen the accused at the spot or inside the truck after they came out from accident. They also did not depose that they had identified the accused as driver of offending bus during investigation. Infact this is not even the case of the prosecution. No TIP of the accused was conducted for getting him identified by these witnesses. In these circumstances, considering the over all testimonies of these witnesses, their identification of the accused as the driver of offending truck is found to be doubtful. 63 PW 14 Nizamuddin and PW 15 Yunus have also identified the accused as driver of offending truck but in their cross examination, both these witnesses admitted that they were sleeping at the time of accident and had not seen the manner in which the accident had occurred. They also failed to identify the accused as driver of offending truck with conviction as they were actually sleeping at the time of accident and had not clearly seen the accident. These witnesses were also cross examined on behalf of the State but they gave varying statements thus making them unreliable witnesses.
State vs. Gurmail Chand FIR No.28/06 Page34 of 37 64 In addition to the testimonies of these victims prosecution is relying upon testimony of PW 7 Kartar Singh who was the registered owner of offending truck and had given his reply Ex. PW 7/B on the notice u/ s133 MV Act (Mark A) to the effect that accused Gurmail Chand was driving the offending truck at the time of the accident. In his cross examination this witness testified that he was having 2025 trucks at the time of accident and usually two drivers were employed on every truck and he was having about 50 drivers. He could not tell from which place the offending truck was coming or where it was going on 18.1.06. He also stated that he did not maintain any register about the driver deployed on a particular truck. He could not recollect the driver who was deployed on various trucks nor he could tell the name of the second driver who was deployed on offending truck at the time of accident. He even admitted that he was not aware as to who was driving the offending truck in the night of 18.1.06 i.e. at the time of accident. He neither produced any record to show that accused was employed by him as one of his driver nor any document has been produced on record to show that accused was on duty as a driver on the offending truck at the time of the accident. He has been given suggestions on behalf of the accused that he has been falsely implicated in this case which have been denied by him. In these circumstances, in the absence of any documentary evidence State vs. Gurmail Chand FIR No.28/06 Page35 of 37 and wavering and vague deposition of this witness, his testimony is also not considered to be reliable enough for holding that accused was driving the offending truck at the time of the incident.
65 On the other hand, the accused has examined his relative Pawan as DW 1 who had categorically deposed that at the time of the alleged accident the accused was present at his house at Punjab. He stated that accused was in Punjab since 15.1.06 and had returned to Delhi on 20.1.06 at about 10 am on receipt of a call from Kartar Singh / PW 7 that he was required for verification of his driving license. This witness has been cross examined on behalf of prosecution but he has denied all the suggestions given. The perusal of the arrest memo of the accused, clearly shows that accused has been arrested on 20.1.06 at about 4 pm which timing is in consonance and not in contradiction to the deposition of DW 1. His testimony gives probability to the defence of the accused that he was not driving the offending truck at the time of the alleged accident. This probability is sufficient to create a dent on the prosecution case to the effect that the accused was driving the offending truck at the time of the accident and accordingly this fact cannot be held to have been proved on record beyond any reasonable doubt. 66 It is a settled law that while the prosecution is required to prove its case against the accused beyond any reasonable doubt, the State vs. Gurmail Chand FIR No.28/06 Page36 of 37 defence of the accused has to be weighed on the scale of preponderance of probabilities. This is because of the reason that merely because the defence of the accused appears to be probable is sufficient to create a doubt on the case of the prosecution.
67 In view of the reasons, given above and the over all evidence on record and considering the probable defence of accused that he was not driving the offending truck at the time of the accident, I have no hesitation in holding that the prosecution has miserably failed to prove on record the offences charged against the accused beyond any reasonable doubt. 68 Accused Guamail Chand is accordingly acquitted for the offence u/s 279/337/338/304A IPC as charged against him. 69 File be consigned to record room.
Digitally signed by SHIVALI SHARMA SHIVALI Location: East
District Karkardooma
ANNOUNCED IN THE OPEN COURT SHARMA Courts Delhi
Date: 2019.06.28
ON 28.06.2019 16:19:54 +0530
(SHIVALI SHARMA)
CMM (EAST)/KKD/28.06.2019
Certified that this judgement contains 37 pages and each page bears my signatures.
(SHIVALI SHARMA) CMM (EAST)/KKD/28.06.2019 State vs. Gurmail Chand FIR No.28/06 Page37 of 37