Delhi District Court
State vs . Krishan Chand on 15 September, 2014
FIR no.375/03
PS Narela
U/s. 279/337 IPC
State Vs. Krishan Chand
IN THE COURT OF SH. SANDEEP GUPTA
METROPOLITAN MAGISTRATE (NORTH): ROHINI COURT: DELHI.
FIR no.375/03
PS Narela
U/s. 279/337 IPC
State Vs. Krishan Chand
Date of Institution of case:- 11.12.03
Date of Judgment reserved:- 15.09.14
Date on which Judgment pronounced:- 15.09.14
JUDGMENT
Unique ID no. : 02401R0388692003
Date of Commission of offence : 07.10.2003
Name of the complainant : Sh. Jaman Singh, S/o Sh. Laxman
Singh, R/o H.No.41, Shalimar Park,
Bhola Nath Nagar, Shahdara,
Delhi.
Name and address of the accused : Krishan Chand, s/o. Sh. Kaliram,
r/o. VPO Ashanda, PS Sanpala,
District Jhajjar, Haryana. Also At:
H.No.1279, Gali No.27B, Swatanter
Nagar, Narela Delhi.
Offence complained of : 279/337 IPC
Plea of accused : Not guilty
Date of order : 15.09.2014.
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
The story of the prosecution in brief is as under:-
FIR no. 375/03 Page 1 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand
1. The accused Krishan Chand, s/o. Sh. Kaliram has been sent to face trial under Section 279/337 Indian Penal Code (hereinafter called as IPC) on the allegations that on 07.10.2003 at about 9.25 p.m. at Narela Alipur Road, Vill. Shahpur Garhi, near bus stand, he was found driving the truck No. DL 1GB 2558, in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving in the said manner he stuck against the Maruti Car bearing registration no.DBG 6240 and caused simple injuries on the person of complainant Jaman Singh and Nar Bhadur and thereby committed an offence u/s. 279/337 IPC and on the basis of the said allegations, the present FIR bearing no. 375/03 was registered at Police station Narela.
2. After investigation, charge sheet was filed against the accused.
The copies of charge sheet were supplied to the accused in compliance of Section 207 Code of Criminal Procedure (hereinafter called as Cr.P.C) and notice U/s. 251 Cr.P.C. for the offence U/s.279/337 IPC was served upon the accused on 24.07.06, to which he has pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined five witnesses, out of 11 witnesses as mentioned in the list of witnesses.
4. PW1 is Dr. A.K. Gupta, CMO Incharge Casualty, MB Hospital, Pooth Khurd, Delhi. He deposed that the MLCs bearing no.
FIR no. 375/03 Page 2 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand 701 and 702 dated 08.10.2003 were prepared by Dr.Yudhvir Singh, Medical Officer and he opined about the nature of injuries simple on the basis of the X-ray reports bearing no.315 and 316 dated 08.10.2003. His opinion is Ex.PW1/A and Ex.PW1/B. He has not been cross examined by accused despite given opportunity.
5. PW2 is Jaman Singh, S/o Sh. Laxman Singh, R/o 41, Shalimar Park, Bhola Nath Nagar, Shahdra, Delhi. He was the complainant and also the eye witness. He deposed that he was working as Driver with Sh. Narinder Nath, MLA. He further deposed that he did not remember the exact date but it was in the month of October 2003 when one day he alongwith Nar Bhadur, Prem Bhadur, Kamal and one Dallu were going to Alipur to attend the marriage of his relative Deepak in a Maruti car, the registration number of which he did not remember. They had to go to Narela. He further deposed that he was driving the Maruti Car and at about 8.45 PM when they reached a little ahead of Alipur on Narela road, then a truck the number of which he could not tell came from the front side being driven at a very high speed and struck against their car as a result of which their Maruti Car was turned to backward direction. He further deposed that he, Nar Bhadur and Prem Bhadur sustained injuries. He further deposed that he had not seen the driver of the truck at the time but later on he came to know at the PS that the truck was being driven by FIR no. 375/03 Page 3 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand one Krishan Chand at the time of accident. He further stated that he had seen the accused for the first time in the court three months back. He further deposed that he could not say how accident took place. His statement was recorded by the IO Ex. PW2/A. Ld. APP for the state sought permission to cross examine the witness as he is resiling from his previous statement.
During his cross examination by Ld. APP for the State he deposed that the number of Maruti Car in which they were travelling was DBG 6240. He further deposed that he could not tell the number of the truck as he had not seen it. He denied the suggestion that he had told the number of the truck to the police as DL 1 GB 2558. He admitted that the accident took place due to the rash and negligent driving of the truck by its driver. He also denied the suggestion that he had seen the accused Krishan Chand at the spot itself. He further denied the suggestion that he had handed over the accused Krishan Chand to the police on the spot. Statement marked A is read over and explained to the witness from Point A to A1. He admitted that the site plan was prepared by the police at his instance. He further denied the suggestion that accused Krishan Chand present in the court was arrested on his identification. The witness was confronted with portion B to B1 of statement marked A wherein it is so recorded. He further denied the suggestion that being won over by the FIR no. 375/03 Page 4 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand accused, he was not stating the true facts before the court.
During his cross examination by Ld. Defence counsel, he deposed that they were going to attend the marriage at that time. He further denied the suggestion that they took some liquor at that time. He deposed that the road where the accident occurred is a single road but it is very wide and there is no divider on the road. He further deposed that there were some factories and some other buildings near the spot of the accident. He admitted that his car was old. He denied the suggestion that it was defective. He further deposed that before the accident he saw the truck coming towards them. He again deposed that all of sudden he saw the truck coming towards themselves. The speed of the truck was might have been around 60 kmph at the time of accident. He further deposed that the driver side of the truck struck with the driver side of their car. He further deposed that he did not know who took them to the hospital. He admitted that after the treatment in the hospital they never came to the spot. He further deposed that he could not tell which part of the truck was damaged due to the collision. The bumper of the front side of the truck was struck against their Maruti Car. He denied the suggestion that the truck was being driven in the normal speed, but he was driving the car in a Zig-zag way because he was under the influence of liquor at that time. He further denied the suggestion that accused was not driving the truck FIR no. 375/03 Page 5 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand negligently.
6. PW3 is Sh. Manoj Kumar, S/o Sh. Om Parkash, R/o 347, Village Bhorgarh, Narela, Delhi-40. He deposed that at the relevant time, he was running a photo studio in the name of Anu Photo Studio. He further deposed police official took him to the place of occurrence and at his instructions, he took 4 photographs of accidental vehicle. The same are Ex.PW3/1 to Ex.PW3/5. During his cross examination by Ld. Defence counsel, he deposed that he had no personal knowledge of the accident.
7. PW4 is Ct. Surender, No.1833 Central, PS Paharganj, Delhi.
He deposed that on 08.10.03 on receiving DD no.61B he alongwith IO ASI Kartar Singh reached at Alipur-Narela Road, Shahpur Garhi, Delhi and found one Maruti Car bearing no.DBG 6240 and one truck, registration number of the same he did not remember in an accidental condition. Thereafter, they came to know that injured persons were shifted to hospital. He further deposed that IO left him at the spot and he himself went to the MB hospital, Pooth Khurd, Delhi. Thereafter, IO returned at the spot and handed over him rukka for registration of FIR. After getting the case registered, he returned at the spot with original rukka and copy of FIR and handed over the same to him. Thereafter, IO seized both the vehicles vide seizure memo Ex.PW4/A and Ex.PW4/B and the driving licence of the accused vide seizure memo Ex.PW4/C. Thereafter, IO FIR no. 375/03 Page 6 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand arrested the accused vide arrest memo Ex.PW4/D and conducted his personal search vide Ex.PW4/E. He further deposed that they brought the case property to PS and IO deposited the same in the Malkhana. Thereafter, IO recorded his statement. Ld. APP for the state put a leading question to the witness after seeking permission of the court that the registration number of the said truck was DL-1GB-2558, to which he replied that it is correct.
During his cross examination by Ld. Defence counsel he admitted that he was not present at the spot at the time of the said accident. He denied the suggestion that he has deposed falsely at the instance of the IO.
8. PW5 is SI Kartar Singh, No.2534D, PM Cell, Security, Delhi, PIS No.28760217. He deposed that on 07.10.03 on receiving DD no.61B he alongwith Ct. Surender reached at Alipur-Narela Road, Shahpur Garhi, Delhi and found one Maruti Car bearing no.DBG 6240 and one truck bearing registration number DL 1GB 2558 in an accidental condition and four injured persons and the driver of the offending truck namely Krishan Chand. He further deposed that PCR officials were also present at the spot. Thereafter, he left the accused Krishan Chand with Ct. Surender at the spot and he shifted the injured namely Krishan Chand, Nar Bahadur, Kamal and Prem to the hospital at MB Hospital Pooth Kalan, where they FIR no. 375/03 Page 7 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand were medically examined. He further deposed that injured Kamal did not get him medically examined. Thereafter, he recorded the statement of injured Jaman Singh vide Ex. PW2/A. Thereafter, they all came back at the spot and he prepared the rukka Ex. PW5/A and handed over the same to Ct. Surender for getting the case registered and he came back at the spot after getting the case registered and handed him the copy of the FIR and the endorsed rukka. Thereafter, he got the photographs taken through photographer which are Ex. PW3/1 to PW3/4 and its negatives as PW3/5. Thereafter, he prepared the site plan at the instance of the injured Jaman vide Ex.PW5/B. Thereafter, he seized both the vehicles vide seizure memo Ex.PW4/A and Ex.PW4/B and also the driving licence of the accused vide already Ex.PW4/C. Thereafter, he arrested the accused Krishan Chand vide memo Ex.PW4/D and conducted his personal search vide memo Ex.PW4/E. Thereafter, they brought both the vehicles and the accused and the injured persons to the police station. Thereafter, on production of surety, accused was released on bail. Thereafter, he got both the vehicles mechanically inspected through ASI Gurdeep Singh vide report Ex.PW5/C and Ex.PW5/D. Thereafter, the offending truck was released on superdari vide Ex.PW5/E. Thereafter, he recorded the statement of the witness. He further deposed that on 17.10.03, the abovesaid car was also released on superdari vide superdarinama FIR no. 375/03 Page 8 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand Ex.PW5/F. Thereafter, he collected the result on the MLCs of the injured persons on which the doctor opined that the injuries sustained by all the injured were simple in nature. The photographs of the truck are Ex.P1 to Ex.P5 and its negatives are Ex.P6. Thereafter, completion of the investigation chargesheet was prepared and filed in the court.
During his cross examination by Ld. Defence counsel he deposed that accused was arrested at the instance of complainant/injured Jaman Singh. He denied the suggestion that accused has been falsely implicated in the present case. He deposed that when he reached at the spot, all the four injured persons were fully conscious. He further denied the suggestion that he had deposed falsely.
9. It is a matter of record that after examination of all the material witnesses, the prosecution evidence was closed on 10.07.2013 and the statement of the accused u/s 313 Cr. P.C. was recorded on 11.09.2013 wherein accused stated that he is innocent and has been falsely implicated in the present case. However, he wanted to lead defence evidence and thus the matter was listed for defence evidence. Later on, Ld counsel for the accused submits that he did not want to examine any witness in defence and defence evidence stood closed vide order dated 17.01.2014.
10. I have heard the arguments advanced by Ld. APP for the state FIR no. 375/03 Page 9 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand as well as the accused and perused the entire record.
11. In the present matter, the accused has been charged for the offences U/s. 279/337 IPC. To prove a case U/s. 279/337 IPC against the accused, the prosecution has to prove the following facts:
a) that the accused was driving the vehicle i.e truck bearing registration no. DL 1GB 2558.
b) that the accused was driving the said vehicle in rash and negligent manner and;
C) that while driving the said vehicle in the aforesaid manner, had struck against the Maruti Car bearing no. DBG 6240 and caused simple injuries on the person of complainant Jaman Singh and Nar Bahadur.
12. In the present case to convict the accused, testimony of the injured/complainant is most crucial. The first and foremost as well as the major deficiency in the testimony of PW2 Jaman Singh has been that he failed to identify the accused and he deposed that he did not see the driver of the offending vehicle i.e. the truck at the time of the alleged accident. This witness also could not depose about the registration number of the truck as well as could not say in specific as to how the alleged accident took place. Merely saying that the accident had taken place because of the rash and negligent driving of truck driver will not FIR no. 375/03 Page 10 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand suffice. There have been improvements also in the testimony of PW2 in the sense that on one hand the witness deposed that he saw the truck coming towards their car before the accident but later on he deposed that all of a sudden, he saw the truck coming. There has been no explanation by this witness as to how exactly was the truck being driven and whether it was coming from the wrong side or was it being driven in a zig-zag manner. The onus on the prosecution to prove in detail and in specific, the rash and negligent driving of the accused become heavier in the present case in the sense that it is alleged that the offending vehicle was coming from the front side and therefore, the eye witness should have clearly stated as to from what distance it became visible to PW2 Jaman Singh who was the driver of Maruti Car, the offending vehicle coming from the front direction and whether PW2 blew any horn or gave any indication to the offending vehicle in order to avoid the alleged accident and if the offending vehicle suddenly came in front of the Maruti Car, then how and from which direction did the offending vehicle suddenly come in front of the Maruti Car. All these aspects have been left unexplained by the prosecution witness.
13. It may further be appreciated that PW5 SI Kartar Singh arrested the accused at the instance of PW2 Jaman Singh whereas PW2 specifically denied that the accused was arrested at his instance. Non FIR no. 375/03 Page 11 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand identification of the accused by the only eye witness examined by the prosecution as well as considerable deficiencies in the testimony of PW2 has proved fatal to the case of prosecution. It is noteworthy that the other public witnesses namely Prem, Nar Bahadur and Kamal Singh remained unserved and untraceable despite repeated efforts. All other witnesses are formal in nature whose no amount of evidence can tantamount to conviction of the accused. Therefore, there is no evidence before the court, by which it can be said that the prosecution has been able to prove that the accused was driving the truck bearing above mentioned registration number in rash and negligent manner which caused the simple injuries on the person of complainant Jaman Singh and Nar Bahadur. Hence, in these circumstances, there is no evidence on record to connect the accused with the offence for which he has been charged with.
14. Further, I would like to refer to judgment Devender Vs. State 185(2011)DLT655, passed by High Court of Delhi, wherein, it is held that:
7.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 vehicle may create a presumption and in such a case the driver has to explain how the accident happened without FIR no. 375/03 Page 12 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand 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. It further reads as under:-
8.The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer
9. A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequence. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution.
15. Further, I would also like to emphasize on the judgment Ram Avtar Vs. State of Rajasthan, II (2006) ACC 438, passed by Rajasthan High FIR no. 375/03 Page 13 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand Court wherein it is held that:
Thus, the essential ingredients for offence under section 279 IPC is that the vehicle should be driven in "rash and negligent manner". The concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence 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 the individual in particular, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279 IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279 IPC. For, speed of the vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?
8.In the case of Badri Prasad Tiwari Vs. The State I (1994) ACC 476:
1994 Cri. LJ 389 (Qri.), the Hon'ble Orissa High Court has held that "In FIR no. 375/03 Page 14 of 15 State V. Krishan Chand FIR no.375/03 PS Narela U/s. 279/337 IPC State Vs. Krishan Chand order to constitute an offence under Section 279 IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person.
9.Thus, in the present case the prosecution has failed to prove the rash and negligent manner as required by Section 279 IPC has not been proved beyond a shadow of doubt.
16. Hence, in view of the discussion made above and after scanning the entire evidence, I have no hesitation to hold that the prosecution has failed to prove the case against the accused beyond reasonable doubt and the accused cannot be convicted on the basis conjectures and surmises. Accordingly, benefit of doubt is being given to accused Krishan Chand and he is hereby acquitted of the said offences U/s. 279/337 IPC.
17. File be consigned to Record Room after necessary compliance.
(Sandeep Gupta)
MM-01(North)/Rohini/Delhi
Announced in open court today, 15.09.2014
Dated 15.09.2014
FIR no. 375/03 Page 15 of 15 State V. Krishan Chand
FIR no.375/03
PS Narela
U/s. 279/337 IPC
State Vs. Krishan Chand
FIR no.375/03
PS Narela
U/s. 279/337 IPC
State Vs. Krishan Chand
15.09.2014
Present : Ld. APP for the State.
Ld. counsel for the accused with accused Krishan Chand on bail.
Vide separate judgment dictated to the steno in the open court, accused Krishan Chand is acquitted of the said offence U/s. 279/337 IPC At request of accused Krishan Chand, his previous bail bond is extended in terms of Section 437 A of Cr.P.C.
File be consigned to Record Room, after due compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi FIR no. 375/03 Page 16 of 15 State V. Krishan Chand