Delhi District Court
Mahesh Kumar vs The State Of Nct Delhi on 31 January, 2020
IN THE COURT OF SH. SUNIL CHAUDHARY:
ADDITIONAL SESSIONS JUDGE / NORTH EAST:
KARKARDOOMA COURTS: SHAHDARA: DELHI.
Criminal Appeal No. 60/2019
CNR No. DLNE010025422019
Mahesh Kumar
S/o Sh. Vishambhar Dayal
R/o H. No. 9/5055, Gali No. 1,
Kaushik Puri, East Old Seelampur,
Delhi. ....... Appellant
Vs.
The State of NCT Delhi. .......Respondent
Date of Institution : 02.07.2019
Judgment Reserved on : 20.01.2020
Date of Judgment : 31.01.2020
In FIR No. : 201/2011
PS. : New Usmanpur
U/s. : 279/304A IPC
JUDGMENT :
1. The present appeal has been filed by appellant against the judgment dated 18.03.2019 and order on sentence dated 03.06.2019 which were passed by Ld. MM, NorthEast in FIR No. 201/2011, PS New Usmanpur.
Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 1 of 182. The facts of the case arrising from the record are that an intimation was received by the police on 26.05.2011 about an accident caused by DTC bus and the matter was marked to ASI Subhash who reached to the hospital where he found that the injured brought to the hospital has been declared brought dead and he found ASI Rajesh Kumar present there and he recorded his statement. As per statement of ASI Rajesh Kumar who was deputed at the picket duty near Dharampura on 26.05.2011 and at about 08:20 pm, he saw that one person was trying to cross the road and he was hit by one DTC bus bearing no DL1PC1131 which came from the side of red light, Shashtri Park and was being driven in rash and negligent manner. The accused Mahesh Kumar was found the driver of the offending vehicle. The case was registered u/s 279/304A IPC and upon completion of the investigations, final report was filed by the police. Notice for the offences punishable u/s 279/304A IPC was served upon the accused by the Ld. Trial Court on 29.03.2012 and the prosecution was asked to lead the evidence as the accused/appellant pleaded not guilty to the notice and claimed the trial.
3. The prosecution examined 12 witnesses to substaintiate the accusation against the accused. The accused in his examination claimed his false implication in the case. Upon completion of the trial after hearing both the sides, the accused was held guilty vide order dated 18.03.2019 by Ld. Trial Court for the offence punishable u/s 279/304A IPC and was sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 1000/ for offence punishable u/s 279 IPC and simple imprisonment for one year Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 2 of 18 and to pay fine of Rs. 3000/ for offence punishable u/s 304A IPC vide order dated 03.06.2019.
4. The appellant has challenged the conviction and the sentence in the present appeal on the submissions that the judgement and order are bad in law as well as the facts of the case as Ld. Trial Court has not considered the material on record and erroneously convicted the appellant. It is submitted that the Ld. Trial Court failed to appreciate that the offence punishable u/s 304A IPC is not made out against him as the prosecution is not able to prove that he was driving the DTC bus in rash and negligence manner. It is submitted that the finding of Ld. Trial Court that PW1 Ct. Shishpal and PW2 ASI Rajesh Kumar are eye witnesses and both of them have seen the offending vehicle coming at high speed and being driven in rash and negligent manner by accused and the bus hit the victim is incorrect. It is submitted that their being no evidence on record to establish negligence or rashness in driving the bus on the part of appellant, there is no rash or negligently driving on part of appellant, which is sine quo non to attract Section 279/304A IPC, as per deposition of PW1 who was not knowing the meaning of word "gaflat" and in his opinion, it means fast speed. It is further submitted that there is no specific finding recorded by the Ld. Trial Court to the effect that the appellant was driving the bus either negligently or rashly and that after holding that the appellant was driving the bus at a high speed, Ld. Trial Court pressed into aid the doctrine of res ipsa loquitor to hold the appellant guilty. It is submitted that it is settled principle of law that Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 3 of 18 merely driving at high speed does not come into the act of negligent or rashness driving. It is submitted that PW2 on whose statement FIR was registered has deposed in his cross examination that he heard voice and after hearing the voice, he went towards the spot and it is clear from his statement that he has not seen the accident. It is submitted that as per the witnesses, public gathered there but none was joined into the investigation nor have been examined by the prosecution.
4.1 It is submitted that there are contradictions in the testimony of PW1 and his testimony is not trustworthy as he did not utter a single word about IO SI Subhash and he deposed that his statement was recorded by IO SI Amit Kumar and also that statement of ASI Rajesh Kumar and tehrir made on it was prepared by IO SI Amit Kumar and the site plan was prepared by IO SI Amit Kumar on the instance of ASI Rajesh Kumar. It is submitted that this witness further deposed that he had signed one or two paper on that day and his statement was recorded on those papers. It is submitted that statement of PW1 was recorded by IO ASI Subash on 27.05.2011 and not by SI Amit Kumar on 26.05.2011 at about 10:00 pm as deposed by the witness.
4.2 It is submitted that the findings of the Ld. Trial Court that PW1 and PW2 are the eye witnesses of the accident and these witnesses corroborated with each other are based on conjecture and surmise and on the contrary, they did not see the accident and were not present at the spot and were introduced to help the prosecution case. It is submitted that there are Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 4 of 18 inherent and glaring contradictions between the said two witnesses about the recording of the statement of PW2, preparation of site plan, about shifting of injured to the hospital, about removing of bus from spot and the seizure of the documents pertaining to the offending bus. It is submitted that in the facts of the case, the victim was to blame more than the appellant as he was trying to cross the busy road without following any traffic rule and regulations and guidelines of the traffic. It is submitted that there was no zebra crossing or red light from where he was trying to cross the road. It is submitted that the Ld. Trial Court has committed a manifest error of record in arriving at finding that appellant was driving the vehicle in rash and negligent manner and had passed judgment without proper application of mind. The appellant has placed reliance on the following cases in support of appeal:
(a) State of Karnataka Vs Satish, 1991 (1) JCC (SC) 97,
(b) A. Shankar Vs State of Karnataka, AIR 2011 SC 2302,
(c) Vijay Kumar Vs State of Rajasthan, 2014 (2) JCC 888,
(d) Rohtash Kumar Vs State of Haryana, JT 2013 (8) SC 181,
(e) Tori Singh Vs State of U.P., AIR 1962 SC 399,
(f) Rajesh Vs State of Haryana, 2011 (3) Crimes 83 P& H,
(g) State of Maharashtra Vs Ahmed Shaikh Babajan, 2008 (4) JCC 2929,
(h) Hari Vs State of Maharashtra, (2009) 3 SCC (Cri) 1254,
(i) Hiral Lal Vs State of Delhi 2012 (2) JCC 1311.
Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 5 of 185. The appeal is opposed on behalf of opposition with the submissions of Ld. Addl. PP that witnesses examined as PW1 and PW2 by the prosecution are the eye witnesses and they have deposed consistently in the trial and their testimony is sufficient to prove the offence of rash and negligent driving by the appellant and causing an accident in which the victim was hit and was declared dead when he was taken to the hospital. It is submitted that the contradictions pointed out by the appellant are minor and the same do not go to the root of the matter. It is submitted that even otherwise, it is settled proposition of law that due to fault in investigation, the prosecution case cannot make to suffer. It is submitted that minor contradictions are natural to happen in the testimony of witnesses examined before the Trial Court after sufficient long time. It is submitted that the judgment passed by the Ld. Trial Court is correct and is passed after appreciating the evidence and the law applicable. It is submitted that appeal is liable to be dismissed as is meritless.
6. To bring home the guilt of the accused for the offences punishable u/s 279 IPC, the prosecution is required to prove and establish the driving of a vehicle on a public way in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any other person, by the accused and for the offence punishable u/s 304A IPC, any rash or negligent act of the accused which causes death of any person is required to be proved.
7. In the case in hand, the apprehension of the accused and that he Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 6 of 18 was driving the bus bearing no. DL1PC1131 at the time of accident are not disputed. The relevant fact required to be proved is whether the accused was driving the said bus in rash and negligent manner and the accident happened due to his driving the bus in rash and negligent manner. The Hon'ble High Court of Delhi in case of Abdul Subhan Vs State reported at 2007 CRI. L. J. 1089 issued various guidelines in respect of investigation of fatal road accident. The same are as under: "13. Before I part with this case I would like to make it known that I have come across various cases of a similar nature involving allegations of rash and/or negligent driving in which I find that the investigations carried out are below par. It is a wellknown fact that road accidents are on the rise and many of these accidents result in fatalities. It is also becoming more and more apparent that the investigating agencies are not investigating such accidents in a proper and scientific manner. The result and consequence of which is that even those persons who might have been guilty for having committed offences under Sections 279/304A, IPC are being acquitted on the basis of benefit of doubt or lack of evidence. This is not a very happy situation. In cases of road accidents particular which result in fatalities, the investigation should Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 7 of 18 be carried out in a swift and scientific manner.
13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of Courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were travelling. This would enable the Courts to examine the evidence in a much more objective manner and the Courts would not be faced with vague and subjective expressions such as "highspeed".
13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 8 of 18 personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all tell signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the Court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by Courts.
13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 9 of 18 13.5. Further more, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.
13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants.
13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no criminal Court would (and ought not to) convict any person merely on the basis of conjectures, assumption, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a chargesheet is filed, the Court is presented with a case which when taken objectively would lead to the inescapable conclusion that a conviction is maintainable.
Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 10 of 1814. In view of the discussion above, this revision petition is allowed. The impugned order is set aside and the petitioner is acquitted. Since the petitioner is in custody, he is directed to be released forthwith.
15. A copy of this judgment be sent to the Commissioner of Police and Joint Commissioner of Police (Traffic) for appropriate directions to the officers who conduct investigations into traffic accidents so that proper investigations are carried out henceforth in Delhi"
8. After going through the chargesheet, I found that the guidelines which were passed by Hon'ble High Court of Delhi have not been followed while investigating the present case. If the investigation had been conducted as per the guideline, there would have not been any difficulty to come to the final conclusion and to ascertain the fact of driving of vehicle by the appellant in rash or negligent manner.
9. PW1 Ct. Shishpal Singh deposed during the trial that "On 26.05.2011 I was posted at Police Station New Usman Pur Delhi as Constable. On that day I alongwith ASI Rajesh Kumar were on picket duty at GT Road Dharampura from 02:00 pm to 11:00 pm. At about 08:20 pm one person was crossing the road in front of our picket. In the mean time Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 11 of 18 one DTC Bus bearing registration number DL1PC1131 green colour came from Shastri Park Red Light side and hit the person who was crossing the road from front side. The driver/accused (who is present in the court today and is correctly identified by the witness) while driving the DTC Bus rashly and negligently and at a very high speed. The injured fell down on the road. ASI Rajesh Kumar immediately rushed at the spot and accused/driver of the abovementioned DTC bus was overpowered"
10. PW2 ASI Rajesh Kumar has also deposed in similar line and verbatim. PW1 Ct. Shishpal Singh in the cross examination deposed that there is no zebra crossing at the place of occurance and he stated that there is a speed breaker. He was not able to tell that due to the speed breaker, the vehicles come to halt. He admitted that there is no red light at the place of occurrence. He admitted that at 08:20 pm, there is a heavy rush on that road due to peak hours. He deposed that he does not much regarding the word "gaflat" and in his opinion, it is regarding fast speed. He deposed that the vehicles were running at different speeds at about 08:30 pm. PW2 ASI Rajesh Kumar also admitted that there is no zebra crossing where the deceased was crossing the road and there is no traffic police officials on or around the place of occurrence. He also admitted that there is a heavy rush at the time of alleged accident due to peak hour. He deposed that when he was sitting on the picket, accident took place and they reached at the spot and he noticed the bus number. He deposed that as he was at the opposite side of the road and it was a night time, they heard a voice and went towards Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 12 of 18 the spot.
11. Both these witnesses have deposed about driving the DTC bus rashly and negligently and at a very high speed. The witnesses have not explained the manner in which the vehicle was being driven and how the said manner was considered by them rash and negligent. As per the testimony of PW1 who has deposed that "gaflat" means to him fast driving, it may be said that they saw the vehicle being driven at a very high speed. The prosecution has not brought on file the speed of the vehicle at which the same was being driven at the time of accident. Mere saying that vehicle was being driven at a high speed is not sufficent to consider the manner of driving rash or negligent. The Hon'ble Apex Court in case of State of Karnataka Vs Satish, IV (2006) ACC 582 (SC) has observed as under.
"4. Merely because the truck was being driven at a 'highspeed' does not bespeak of either 'negligence' or 'rashness' by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by 'high speed'. 'High speed' is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by 'high speed' in the facts and circumstances of the case. In a criminal trial, the burden of proving every thing essential to the establishment of the charge Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 13 of 18 against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved"
12. The Ld. Trial Court has opined as under: "11. Thus going by the arguments of Ld. Defence Counsel if there was heavy rush then the offending vehicle could not be driven at high speed, however, the witnesses PW1 and PW2 who are the eye witnesses of the case have deposed that offending vehicle was driven at hight speed. Further, when the vehicle had hit the victim it resulted into fatal injuries to him. The nature of injuries due to impact blunt force as mentioned in postmortem report of victim indicate that the impact could only be caused if a vehicle in high speed would hit a person. Had the driver of vehicle was driving it in moderate speed then impact cannot be expected to be of such nature so as to cause fatal injuries to the victim"
13. The IO has not investigated about the number of other vehicles plying on the road at that time and if this fact had been investigated and the number of vehicle have been brought to the file, then it may have been opined appropriatedly whether at that time running of offending vehicle in a Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 14 of 18 high speed was possible or not. It is not the case of the witnesses that at that time, the bus was overtaking any other vehicle. If vehicles at large number were going through the said point at that time then the running of offending vehicle in a fast speed than to the other vehicles on the road is not possible. In the absence of said evidence, the burden cannot be shifted on the accused and it is the prosecution who has to prove that the running of vehicle at the fast speed at the time of accident was possible and the offending vehicle was being driven at a fast speed which considering the circumstances of the spot at that time was sufficient to show that the running of the vehicle was rash and negligent.
14. In case of Mahadeo Hari Lokre Vs The State of Maharashtra, AIR 1972 Supreme Court 221, it is held as under: "Negligent driving along public way - If a pedestrain suddenly crosses a road without taking note of the approaching bus there is every possibility of his dashing against the bus without the driver becoming aware of it. The bus driver cannot save accident however slowely he may be driving and therefore he cannot be held to be negligent in such a case"
In the facts of the present case, it is not brought on file that the victim was not in a condition to see the coming offending bus and that the accused who was driving the said bus was in a position to save the accident.
Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 15 of 1815. It is held by the Hon'ble High Court of Delhi in case of Hira Lal Vs The State of NCT of Delhi, 2012 IV AD (Delhi) as : "No doubt it is the duty of the drivers of commercial vehicles to be cautious on the road, but is equally the responsibility of people driving any type of vehicle to be mindful of the correct manner of use of vehicle on the road in order to avoid collision with the other vehicles. Every person is bound to anticipate the perils normally expected on the road and not challenge his own safety by driving in the dangerous fashion as evidenced in the present case. It is not that in every case road accidnet, the driver of a commercial or heavy vehicle shall be presumed to be guilty of rash and negligent driving and without any iota of evidence against him, he will be deemed guilty from the start of the trial. The Courts instead of acting like a mouthpiece of prosecution, should weigh the evidence meticulously before making the driver of the commercial or heavy vehicle an easy and predictable scapegoat. It is quite possible, as proved in the present case that a person can be himself responsible for his accidental death. The Courts have to be detached from any kind of undue Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 16 of 18 sympathy and public emotion while dealing with every case and until the factum of rash and negligent driving is proved beyond any doubt against the accused, the Courts should desist from jumping to a prejudiced conclusion"
16. The contradictions pointed out by the counsel for the appellant in regard to preparation of site plan, removal of the bus from the spot, recording of statement of the witnesses, seizure of the documents pertaining to bus and who took the injured to the hospital are the minor contradictions having no effect on the act of the appellant as it is his driving which is crucial fact to be considered by the court while coming to the opinion whether he was driving in a rash and negligent manner when the accident happened. The evidence available on file when is read in the light of aforesaid judgments, the same is not sufficient to say that the accused was driving the vehicle at the time of accident in rash and negligent manner. In the absence of any act by the accused in rash and negligent manner, he cannot be held guilty for the offences punishable u/s 279 and 304A IPC.
17. For the reasons stated above, the judgment dated 18.03.2019 thereby convicting the accused for offences u/s 279/304A IPC and the order on sentence dated 03.06.2019 are set aside by allowing the appeal.
18. The appellant is directed to furnish bail bond in the sum of Rs. 15,000/ with one surety of the like amount in requirement of Section 437 A Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 17 of 18 Cr.PC.
19. Record be returned to the Ld. Trial Court with the copy of this order who will pass necessary orders for release of amount deposited on account of imposition of fine after the lapse of period of limitation to file the appeal against this order, if approached by the appellant.
20. Appeal file be consigned to the Record Room.
Announced in the open court Digitally signed by SUNIL CHAUDHARY SUNIL Location: Delhi CHAUDHARY Date: 2020.02.04 on 31st day of January, 2020. 13:10:38 +0530 (Sunil Chaudhary) Additional Sessions Judge / NE / KKD Courts / Delhi. Crl. Appeal No. 60/2019 Mahesh Kumar Vs. State Page 18 of 18