Delhi District Court
Sate vs . Dharambir Singh on 23 January, 2015
FIR No. 368/04
PS Narela
U/s. 279/338 IPC
Sate Vs. Dharambir Singh
IN THE COURT OF SH. SANDEEP GUPTA
METROPOLITAN MAGISTRATE: ROHINI COURT: DELHI.
FIR No. 368/04
PS Narela
U/s. 279/338 IPC
Sate Vs. Dharambir Singh
Date of Institution of case:- 19.01.05
Date of Judgment reserved:- 27.11.14
Date on which Judgment pronounced:- 23.01.15
JUDGMENT
Unique ID no. :02401R1128412005
Date of commission of offence :05.09.04
Name of complainant :Smt. Rubi Devi W/o Sh.
Prem Singh R/o H.No.35, Gali No.2,
Rajiv Colony, Narela, Delhi.
Name and address of accused :Dharambir Singh
S/o. Sh. Chhotu Ram, R/o V & P.O.
Nahra Distt. Sonepat, Haryana.
Offence complained of :279/338 IPC
Plea of accused :Pleaded not guilty
Final order :Acquitted
Date of order :23.01.2015
BRIEF REASONS FOR DECISION:
The story of the prosecution in brief is as under:-
1. The accused Dharambir Singh S/o Sh. Chotu Ram has been sent to face trial under Section 279/338 Indian Penal Code (hereinafter called as IPC) on the allegations that on 05.09.04 at about 11:10 am., at Arya Samaj Road, Shiv Vatika, Narela, Delhi he was found driving a bus bearing registration no. DL-1PA-4045 in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the abovesaid Page No.1 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh vehicle in the abovesaid manner his bus stuck against the pedestrian baby Anupama aged about 4 years and caused her grievous injuries and on the basis of the said allegations, the present FIR bearing no.368/04 was registered at Police station Narela and the accused has been charged with the offence under Section 279/338 IPC.
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. 279/338 IPC was served upon the accused on 16.10.06, to which he has pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined five witnesses.
4. PW1 is Smt. Ruby Devi W/o Sh Prem Singh, R/o H.No. 35, Gali No.2, Rajiv Colony, Narela, Delhi. She deposed that on 05.09.04 at about 10:30/10:45 am she came out of her house and she had to go to market and her daughter Anupama, aged about 3 ½ years was also with her. She further deposed that when she reached near Shiv Vatika then a bus, registration number of which she did not remember came from the front side. She further deposed that suddenly her daughter left her Page No.2 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh hand and ran towards the road and she was hit by the bus coming from the front side. She further deposed that her daughter became unconscious. She further deposed that she with the help of public persons took her daughter to Reena Nursing Home and from where her daughter was referred to Trauma Center. She further deposed that the accused present in the court was the same person who was driving the bus at the time of accident and this accident occurred due to his fault. She further deposed that her landlord made a call at 100 number. She further deposed that police had met her at the Trauma Center and had recorded her statement Ex.PW1/A. She further deposed that accused had also came to the Trauma Center from where he was arrested by the police Ld. APP for the state sought permission to cross examine the witness as she was resiling from her previous statement. During her cross-examination by Ld. APP for the state she denied the suggestion that she had stated to the police that on the day of accident her daughter Anupama was playing with other children of the locality outside her house and at about 11:10 a.m she came out of her house to call her daughter and she saw that Anupama alongwith other children were crossing the road when suddenly a bus bearing no. DL 1PA 4045 came from the side of Narela Terminal being driven at a very high speed and in a rash and negligent manner and struck against her daughter Anupama, as a result of which, Anupama fell down on the road. She was confronted with statement Ex.PW1/A Page No.3 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh wherein it was so recorded. She deposed that when she alongwith her daughter was going on the side of the road the offending bus came from the front side being driven at a high speed and on seeing the bus her daughter became frightened and left her hand. She further deposed that she could not control her daughter and the bus hit against her daughter. Witness was confronted with statement Mark A from point A to A1 where it was so recorded. She denied the suggestion that she had ever made any such statement to the police. She further deposed that site plan was not prepared by the police at her instance. She further denied the suggestion that on 06.09.04 she had gone to the police station where accused was present and on her identification he was arrested. She further denied the suggestion that she had compromised the matter with the accused and that she was not telling the truth being won over by the accused.
During her cross-examination by Ld. defence counsel she deposed that her statement was recorded by the police at Trauma Centre. She further deposed that IO also recorded the statement of her husband and her landlord. She further deposed that accused is not her relative. She admitted that after the incident first time she identified the accused in court. She had also stated in his statement about the description of the accused. She further deposed that she has stated to the police that she had taken her daughter to Reena Nursing Home. She was confronted with the statement Ex.PW1/A where it was not so Page No.4 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh recorded. She further deposed that she had already received a compensation of Rs.23,000/- from the court of MACT. She denied the suggestion that accused was not driving the said bus at the relevant time and place. She further denied the suggestion that she had deposed falsely for getting the compensation against the said bus.
5. PW2 is SI Charan Singh, PS Jahangir Puri, No.522/D. He is the duty officer who on receipt of rukka from Ct Yashbir sent by ASI Ved Prakash registered the present FIR and he has exhibited the FIR as Ex.PW1/A. He has not been cross-examined by Ld. defence counsel despite given opportunity.
6. PW3 is Ct. Yashbir Singh, no.3463 PCR, Outer Zone, Delhi. He deposed that on 05.09.04 on receiving DD no.16B, he alongwith ASI Ved Prakash reached at the spot i.e. Arya Samaj Road, Shiv Vatika where they met one Ruby, mother of injured. Thereafter, they went to Trauma Center, where they met Ruby, mother of injured Anupama and injured was declared unfit for making statement. Thereafter, IO prepared rukka and handed over to him for registration of FIR. Thereafter, he went to PS and got the FIR registered. Thereafter, he went to spot and handed over the original rukka and copy of FIR to ASI Ved Parkash. Thereafter, IO prepared the site plan. He further deposed that IO gave the notice u/s 133 M.V. Act to the registered owner of the Page No.5 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh vehicle in question. His cross examination was deferred but later on, this witness never turned up for his cross examination.
7. PW4 is Lady Ct. Suresh Bala, No.3691, DAP 1st Battallion, PHQ, Delhi. She was the DD writer. She deposed that on 05.09.04 his duty hours were from 8:00 a.m. to 4:00 pm. She further deposed that on that day, she recorded DD no. 16B whose attested copy Ex.PW4/A is on record. She had brought the original DD register containing the aforesaid DD entry. She admitted that the same was in her handwriting. She further deposed that the said DD was marked to ASI Ved Prakash. She has not been cross-examined by the accused despite given opportunity.
8. PW5 is SI Ved Prakash, No. 2752/D, DIU North West, Delhi. He deposed that on 05/09/04, on receipt of DD No. 16 B, he along with Ct. Yashbir reached at Sushruta Trauma Centre, where he obtained MLC of injured Anupama D/o Sh. Prem Singh on which doctor opined patient was not fit for statement and opinion on nature of injury was kept reserved. He further deposed that there he met eyewitness Smt. Ruby Devi W/o Sh. Prem Singh and recorded her statement Ex.PW1/A. Thereafter, he prepared the rukka Ex.PW5/A and handed over to Ct. Yashbir for registration of FIR. Thereafter, he reached at Arya Samaj road, near Shiv Vatika, Narela, Delhi. Eyewitness Ruby also reached at the spot. Thereafter, he prepared the site plan Ex.
Page No.6 of 14 FIR No. 368/04PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh PW5/B, at the instance of eyewitness Smt. Ruby. Thereafter, he recorded statement of witnesses. Thereafter, he tried to search the offending vehicle i.e. bus No. DL-1PA-4045, but the same could not be found. He further deposed that one person Gagan Deep who was the owner of the said bus came to the PS to inquire about the accident and he gave notice U/s133 MV Act to Gagan Deep Ex. PW5/C, on which he replied that on 05/09/04, accused Dharamvir who was present in the court was driving the bus. He further deposed that the reply on notice U/s 133 MV Act was Ex.PW5/D. He further deposed that Gagan Deep had produced the accused Dharamvir in the PS and the aforesaid bus. Thereafter, the bus was taken into possession by him vide memo Ex.PW5/E. The photocopy of documents of the bus were also taken into possession vide Ex.PW5/F. Thereafter, driver produced his DL which was taken into possession vide memo Ex. PW5/G. Thereafter, accused was arrested and his personal search was conducted vide Ex.PW5/H and PW5/I. Thereafter, accused was released on bail. He further deposed that mechanical inspection of the bus was got conducted in the PS and the report was Ex.PW5/J. Thereafter, on the same day, the said bus was released to its registered owner Gagan Deep vide superdarinama Ex.PW5/K. Thereafter, the MLC was submitted in the hospital for opinion on which doctors opined that the nature of injury was grievous. He further deposed that after completion of investigation, the chargesheet was prepared and filed in the court. He further deposed that he could identify the offending Page No.7 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh vehicle if shown to him but the offending vehicle could not be produced in the court as the superdar was untraceable.
During his cross-examination by Ld. defence counsel he deposed that when he reached at the spot he did not find the offending vehicle. He further deposed that nobody met him except the complainant at the hospital. He further deposed that on 06.09.04 the accused was produced by the owner of the vehicle. He denied the suggestion that no accident was occurred of the abovesaid vehicle. He further denied the suggestion that accused was not driving the vehicle at the relevant time and place. He further denied the suggestion that the accused was falsely implicated at the instance of complainant. He also denied the suggestion that no proceeding was conducted at the spot and all the documents were prepared at PS and that he had deposed falsely.
9. It is a matter of record that after examination of all the material witnesses on 11.12.2013 prosecution evidence was closed.
10. Subsequent to the recording of statement of witnesses, statement of accused was recorded and all the incriminating evidence having came on record were put to the accused, in which he submitted that he is innocent and has been falsely implicated in the present case. He has further submitted that he does not wish to lead any evidence and final arguments were Page No.8 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh heard.
11. I have heard the arguments advanced by Ld. APP for the state as well as the Ld. Defence counsel and given my thoughtful consideration to the entire record.
12. In the present matter, the accused has been charged for the offences punishable under Section 279/338 IPC. To prove a case U/s. 279/338 IPC against the accused, the prosecution has to prove the following facts:-
a) that the accused was driving the vehicle i.e bus bearing registration no. DL 1PA 4045;
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, he stuck against the pedestrian baby Anupama aged about 4 years and caused her grievous injuries.
13. In the present case, testimony of eye witness is most crucial to sustain the conviction of the accused. PW1 Ruby deposed that deceased who was her daughter left her hand and ran towards the road during which she was hit by the bus. She categorically denied that the bus bearing aforementioned registration number was being driven at a very high speed and in rash and negligent manner. She also deposed that she could not control her daughter and her daughter left her hand. Hence after perusing the testimony of this witness, it can safely be said that this Page No.9 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh witness did not depose upon the aspect of rash and negligent driving by the accused. Moreover there is no other eye witness examined by the prosecution to the alleged incident.
14. In cases of road accident, wherein allegations of rash and negligent driving have been levelled against the accused, there is heavy burden upon the prosecution to establish clearly the factors showing the rash and negligent driving of the accused but as already discussed above, the testimony of PW1 Smt. Ruby Devi does not mention any detail such as width of the road, where the alleged accident occurred, presence of any traffic signal or any divider to show that it was a one way or a two way road or the actual speed of the offending vehicle at which it was being driven at the time of alleged accident and other relevant aspects. In this regard I would like to place reliance upon Abdul Subhan Vs State [133 (2006) DLT 562, Delhi High Court ] where in it was observed that merely coming to a conclusion that a vehicle was being driven at a high speed does not in itself mean the accused was driving a vehicle rashly or negligently. It laid emphasis upon many questions such as were the traffic light working or not? What is meant by high speed? Why there is no evidence with regard to tyre skid marks? What was the speed of the motorcyclist? It was held that in a criminal trial, burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the Page No.10 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "
"negligence" could be drawn by invoking the maxim "res ipsa loquitor".
15. Now, 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 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.
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 Page No.11 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh 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.
16. Further, I would also like to emphasize on the judgment Ram Avtar Vs. State of Rajasthan, II (2006) ACC 438, passed by Rajasthan High 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 Page No.12 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh 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 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 beyond a shadow of doubt.
17. Hence after perusing the entire record, in the absence of any incriminating evidence/testimony on record of any public/eye witness against the accused and considering that all other witnesses are formal in nature, whose no amount of evidence can tantamount to conviction of the accused, the prosecution has miserably failed to prove the present case beyond any Page No.13 of 14 FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh reasonable doubt against the accused.
18. Hence, in view of the discussion made above and after scanning the entire evidence, I have no hesitation to hold that the prosecution has miserably failed to prove the case against the accused beyond reasonable doubt. Accordingly, accused Dharambir Singh is hereby acquitted of the said offences U/s. 279/338 IPC.
19. File be consigned to Record Room after necessary compliance.
(SANDEEP GUPTA) Metropolitan Magistrate Rohini/Delhi Announced in open court today, Dated 23rd January, 2015.
Page No.14 of 14 FIR No. 368/04PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh FIR No. 368/04 PS Narela U/s. 279/338 IPC Sate Vs. Dharambir Singh 23.01.2015 Present : Ld. APP for the State.
Accused on bail alongwith Ld. Counsel.
I have heard the arguments and perused the record. Vide separate judgment dictated to the steno in the open court, accused Dharambir Singh is acquitted of the said offence U/s 279/338 IPC.
At request, bail bond of accused Dharambir Singh 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 Page No.15 of 14