Delhi District Court
State vs . Hari Om on 5 January, 2016
FIR No. 370/04 PS Narela
U/s. 279/337/338 IPC
State Vs. Hari Om
IN THE COURT OF SHRI SANDEEP GUPTA
METROPOLITAN MAGISTRATE: ROHINI COURTS: DELHI.
FIR No. 370/04
U/s 279/337/338 IPC
PS: Narela
State vs. Hari Om
Date of Institution of case:-06.05.2005
Date of Judgment reserved:-05.01.2016
Date on which Judgment pronounced:-05.01.2016
JUDGMENT
Unique ID no. : 02401R0382062005
Date of Commission of offence : 05.09.04
Name of the complainant : Sh.Jeet Singh
s/o Sh. Phool Singh
R/o C-5/88, Sultanpuri, Delhi.
Name and address of the : Hari Om
accused persons s/o Sh. Chand Singh
R/o Village Ashoda PS
Bahadur Garh, Distt. Jhajjar,
Haryana.
Offence complained of : 279/337/338 IPC
Plea of accused : Not guilty
Date of order : 05.01.2016
Final Order : Acquitted
BRIEF REASONS FOR DECISION:
1. The story of the prosecution in brief is as under:
The accused Hari Om has been sent to face trial under Section 279/337/338 of Indian Penal Code (hereinafter called as IPC) on the allegations that on 05.09.04 at about 3.15pm at Narela Alipur Road, Opposite Joginder Nursery, Holambi Kalan More, was found driving tempo bearing No. DL-1LB-4811, in a rash and negligent manner so as to endanger the human life and personal safety of others and thus while driving in the said manner, he struck his vehicle against a tempo no. HR-46-2272 Page 1 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om and caused simple injuries on the person of Raju, Kailash, Abdul Hakim and Pawan and grievous injuries on the person of Shashi Kumar and thereby committed offences punishable U/s 279/337/338 IPC and on the basis of said allegations, present FIR bearing No.370/04 was registered at PS Narela and the accused has been charged with the offences U/s 279/337/338 IPC.
2. After investigation, charge sheet was filed against the accused person. 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 charge U/s. 279/337/338 IPC was framed against the accused vide order dt. 01.03.2007, to which he pleaded not guilty and claimed trial.
3. In support of its version, the prosecution examined eight witnesses.
4. PW1 is Sh.Jeet Singh s/o Phool Singh R/o C-5/88, Sultanpuri, Delhi. He is one of the eye witnesses in the present case. He deposed that he was victim driver. He does not remember the exact date and month but it was in the year 2004 when one day, when he was driving his tempo bearing no. HR-46-2272 towards Narela alongwith three other labourers, at about 3.15pm, and was near Alipur Road, near some nursery, a tempo bearing no. DL-1LB-4811 came from the front side and when the said tempo reached near his tempo, the said tempo driver suddenly gave a dodge as a result of which that tempo collided against his tempo and due to collusion, he and three labourers travelling in his tempo sustained injuries. He correctly identified the accused Hari Om. He further deposed that someone called the police and police reached at the spot and recorded his statement Ex.PW1/A. He further stated that site plan was Page 2 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om prepared by the police at his instance.
In his cross-examination by Ld. Defence counsel for the accused, this witness stated that the he had received minor injuries in his left arm but he was not medically examined. He admitted that he had entered into a compromise with the accused at the spot and did not want to proceed with the case . He further stated that it was settled with the accused that he would bear the expenses of repair of his tempo and accused shall bear the expenses of repair of his tempo. He denied the suggestion that it was his fault or he did not receive any injury or he was deposing falsely before the court.
5. PW2 is Smt.Kamla Devi w/o Sh. Dharamvir Singh R/o H.No. 19, Village Sultanpuri, Majra, Nangloi, Delhi. She was registered owner of tempo no. DL-1LB-4811. She deposed that accused Hari Om was driving the said truck at the time of accident. She obtained the vehicle on superdari vide superdaginama Ex.PW2/A. The identity of the vehicle was not disputed by the Ld. counsel for the accused. She has not been cross-examined by the accused despite given opportunity.
6. PW3 is Sh.Phool Singh s/o Sh. Bhagwan Shah R/o H.No. C-5/88, Sultanpuri Dabas,Delhi. He was registered owner of tempo no. HR-46-2272. He deposed that he obtained the said tempo on superdari vide superdaginama Ex.PW3/A. The identity of the vehicle was not disputed by the Ld. counsel for the accused. He has also not been cross-examined by the accused despite given opportunity.
7. PW4 is Ct. Ajay, No 1441/NE, PS Bhajan Pura, Delhi.
He deposed that on 05.09.04 he was posted at PS Narela. On that day on receiving DD No 11A, he along with SI Ishwar went to spot Page 3 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om i.e Narela Alipur Road, Near Jogender Nursery, Narela, Delhi. They found 2 tempos in accidental condition bearing registration No. HR-46-2272 & DL-1LB-4811. They came to know that injured persons had already been shifted to MB Hospital. Thereafter IO left him at the spot and he went to the hospital. After sometime he returned to the spot and he prepared the rukka and handed over to him. He went to PS for registration of the case and returned to the spot along with copy of FIR and original rukka and same was handed over to IO. Thereafter IO seized both the tempos EX. PW4/A & PW4/B, both bears his signatures at point A. Thereafter driver of the offending vehicle came there and IO arrested the accused vide arrest memo Ex.PW4/C and conducted personal search Ex.PW4/D both memos bearing his signatures at point A. In the mean time 4-5 injured persons namely Shashi Kumar, Abdul Hamid, Pawan Kumar, Raju, Kailash and complainant came at the spot and IO recorded their statements. On producing surety accused was released on bail. Thereafter they brought the case property to PS. IO recorded his statement. He has also not been cross-examined by the accused despite given opportunity.
8. PW5 is Retd. SI Ishwar Singh S/o Sh. Chhotu Ram, R/o Village Garhi Randhala, Delhi. He is the IO of the present case. He deposed that on 05.09.2004, he was posted PS Narela as SI. On that day, on receipt of DD No. 11A Ex. PW5/A, he alongwith Ct. Ajay reached at Narela Alipur Road, near Jogender Nursery Holambi Kalan Mor, Delhi. There he found two tempos No.HR-46-2272 and DL-1LB-4811 in accidental condition standing on the side of the Jogender Nursery. He came to know that injured had already been taken to M.B. Hospital. He left Ct. Ajay Page 4 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om at the spot and he went to the M.B. Hospital. He collected MLCs of 5 injured persons. Injured Jeet Singh was fit for statement. He recorded statement of Jeet Singh, Ex.PW1/A, bearing his signature at point A, duly attested by him at point B. He came back at the spot, prepared rukka Ex. PW5/B and handed over the same to Ct. Ajay for registration of FIR who went to the PS and got the FIR registered. After registration of FIR Ct. Ajay came back at the spot and handed over copy of FIR and original rukka to him. He prepared the site plan Ex.PW5/C, bearing his signature at point A. He took into possession both the tempos vide memos Ex. PW4/A and PW4/B, bearing his signature at point B respectively. He brought both the tempos in the PS and deposited in Malkhana. Registered owner of the tempo produced accused Hari Om in the PS. He arrested the accused Hari Om and also conducted his personal search vide memos Ex.PW4/C and Ex.PW4/D, bearing his signature at point B respectively. Driving license of the accused was taken into possession vide memo Ex.PW5/D, bearing his signature at point A. Accused was released on bail. Mechanical Inspection of both the vehicles were got conducted and their report are Ex.PW5/E and Ex.PW5/F, bearing his signature at point A respectively. Both the tempos were released on superdari to their registered owners Kamla Devi and Phool Singh vide memos Ex.PW2/A and PW3/A. He recorded statement of witnesses and deposited MLCs of the injured persons in the PS for opinion and on the MLC of injured Shashi, Doctors opined nature of injuries as grievous. After completion of investigation chargesheet was prepared and filed in the court under the supervision of SHO. Accused Hari Om was also correctly identified by him. During his cross-examination by Ld. Defence counsel, he deposed that there Page 5 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om was no crowd at the spot. He reached the spot at about 12:00 noon. Ct. Ajay took rukka at about 11:45 p.m. and came back at the spot 12:45 a.m. He asked the persons from the Nursery to join the investigation but none agreed and left the spot. No notice was given to public persons who refused to join the investigation. He finally left the spot 3:00 a.m. It has heavy traffic road and many vehicles were passing through that. He denied the suggestion that accused was not the driver of the offending vehicle or that the accident occurred by some other vehicles and offending vehicle of the present case was not involved in the accident or that accused and the present offending vehicle is falsely implicated in the present case. He further denied the suggestion that all the writing work was done while sitting at the PS or that he had not conducted the investigation in a fair manner. He further denied the suggestion that he was deposing falsely being a police official.
9. PW6 is SI Kartar Singh, No. D/3885, Ashoka Traffic Line, Delhi. He deposed that on 05.09.2004, he was posted at PS Narela as Duty Officer. His duty hours were 8:00 a.m. to 4:00 p.m. On that day, at about 3:37 p.m. an information was received in the PS through wireless set regarding a road accident at road going from Narela to Bhorgarh near Narela Farm House by a TATA 407 and there were many injured persons. He reduced the information in writing and recorded the same in DD register vide DD No. 11A dated 05.09.2004. Further investigation was given to SI Ishwar Singh. True copy of DD No. 11A which is in his own handwriting and duly attested by concerned ACP is placed on record and the same is Ex. PW5/A. He has not been cross- examined by the accused despite given opportunity.
Page 6 of 14FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om
10. PW7 is Retired ASI/Technician, Devender Kumar, R/o 1623, Jain Nagar, Kanjhawala Road, Delhi. He deposed that on 06.09.2004, he had Mechanically inspected two vehicle, i.e. TATA Tempos bearing numbers DL-1LB-4811 and HR-46-2272. Upon mechanical inspection of TATA tempo No. DL-1LB-4811 he found pressed damages on the front right side body, frame, headlight, bonnet damaged. He also found engine system damaged, front wind screen glass, broken, front right wheel suspension and steering system damaged and radiator damaged and the vehicle was not fit for road test. The detailed report is Ex.PW5/E, bearing his signature at point B. He further deposed that upon mechanical inspections of TATA tempo No. HR-46-2272. He found fresh damages on the front right side body, headlight and bonnet damaged, he also found engine system damaged, front wind screen glass, broken, front right wheel suspension and steering system damaged and radiator damaged and the vehicle was not fit for road test. The detailed report is Ex. PW5/F, bearing his signature at point B. He has not been cross-examined by the accused despite given opportunity.
11. PW8 is Dr. Yudhvir Singh, CMO, M.V. Hospital, Pooth Khurd, Delhi. He deposed that on 05.09.2004, he was posted at M.B. hospital Pooth Khurd, Delhi as CMO. On that day, two patients were brought to the hospital with alleged history of RTA, namely Shashi Kumar S/o Sh.Tara Chand, aged about 25 years male and Kailash S/o Sh. Ram Raj, aged about 20 years male. He examined both the patients. Upon medical examination of Shashi Kumar the patient was referred to SR Ortho for further management. After obtaining opinion of Radiologist and Ortho Department, he opined nature of injuries as grievous. MLC of Page 7 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om Shashi Kumar is Ex. PW8/A, which bears his signatures at point A, B, C, and D. Upon medical examination of one patient Kailash he found nature of injuries as simple. MLC of Kailash is Ex. PW8/B, which bears his signatures at point A,B and C. During cross- examination by Ld. defence counsel, this witness deposed that it is correct that no date is mentioned in MLC Ex. PW8/A on which he gave the opinion. He denied the suggestion that he had given a false opinion at the instance of IO.
12. It is a matter of record that after examination of above mentioned witnesses, prosecution evidence was closed vide order dated 21.04.15. Subsequently, statement of accused person was recorded u/s 313 CrPC separately, in which he submitted that he is innocent and has been falsely implicated in the present case. He further stated that accident occurred due to the negligence of other tempo driver himself and he was not driving rashly or negligently. Thereafter, matter was listed for final arguments.
13. I have heard the arguments advanced by Ld. APP for the state as well as Ld. defence counsel for the accused and perused the entire record.
14. In the present matter, the accused has been charged for the offences punishable under Section 279/337/338 IPC. To prove a case U/s. 279/337/338 IPC against the accused, the prosecution has to prove the following facts:-
a) that the accused was found driving a vehicle bearing registration no DL-1LB-4811;
b) that the accused was driving the said vehicle in rash and negligent manner;
c) that while driving the said vehicle in the aforesaid manner, Page 8 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om he struck against the other tempo bearing registration no.
HR-46-2272 as a result of which Raju, Kailash, Abdul Hakim, Pawan and Shashi Kumar sustained injuries.
15. In the present case to sustain the conviction of the accused, testimony of the injured / eye witnesses is most crucial. It is a matter of record that none of the injured persons namely Raju, Kailash, Abdul Hakim, Pawan and Shashi Kumar could ever grace the witness box as these witnesses remained userved and untraceable despite issuance of summons to them umpteen times. Given the scenario, we are left with the deposition of only one eye witness, i.e., PW1 Jeet Singh who happens to be the complainant in the present case. According to the deposition of PW1, he was driving the tempo and three labourers were also travelling in his tempo and all sustained injuries due to the collision with the other tempo. Considering that, there is only one eye witness examined by the prosecution i.e. PW1 Jeet whose deposition has to be scrutinized carefully to ascertain specifically the rash and negligent driving of the accused at the time of alleged incident. PW1 deposed that driver of the offending vehicle suddenly gave a dodge because of which the offending vehicle collided against his tempo. Now, this statement appears to be quiet vague and silent on various aspects. It has not been explained at all by this witness as to what actually does the witness mean by a sudden dodge and this terminology appears to be quiet ambiguous. Neither there is any mention as to whether there was any divider on the road or what was the actual speed of the offending vehicle at the relevant time or whether PW1 blew any horn to avoid the collision? There is no detailed description of other factors also such as from what distance, it Page 9 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om was noticed by PW1 that the driver of offending vehicle has changed his lane of driving and exactly to which side of his vehicle, the offending vehicle had struck, i.e., whether the offending vehicle collided against the front side or on the back side of the tempo driven by PW1? It is further surprising to believe that PW1 did not sustain any injury as there is no MLC on record of this witness and even PW1 did not mention the names of those labourers, who were travelling in his tempo. Further co- relating the deposition of this witness with the site plan Ex.PW5/C, it appears that according to the case of prosecution, driver of the offending vehicle suddenly started driving on the wrong side of the road and struck against the victim vehicle but as already discussed above, PW1 remained silent on various vital aspects and the only statement given by him that the driver of the offending vehicle suddenly gave a dodge appears to be cryptic and not specific. In fact the eye witness did not depose anything about the width of the road where the alleged accident occurred or was it a one way road. There are no photographs also on record for drawing an inference as to exactly in what position, the vehicles collided with each other. It is a settled law that there is a heavy burden upon prosecution to unequivocally and clearly establish the allegation of rash and negligent driving by the accused to the hilt.
16. 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 does not mention any detail such as width of the road, where the alleged Page 10 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om 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 the present case, it is not denied that accused was not driving the vehicle at the time of alleged accident but his defence has been that the accident occurred because of the fault of negligence of complainant himself. It is noteworthy that no notice was given by the IO to the public persons who refused to join the investigation. There are no photographs on record of the accidental vehicles to show their respective positions in which they were found at the spot. Testimony of PW1 remained uncorroborated by any other cogent evidence or independent witness which has proved fatal to the prosecution case. Analyzing further the testimony of eye witness alongwith other prosecution witnesses, there appears to be inconsistency in the sense that as per the version of PW1 there were four injured in total whereas according to the testimony of IO, there were five injured and since only PW1 Jeet was fit for statement, his statement was recorded.
17. Now, 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 Page 11 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "
"negligence" could be drawn by invoking the maxim "res ipsa loquitor".
18. 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 the alleged wrong doer.
9. A rash act is primarily an over hasty act. It is opposed to a Page 12 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om 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.
19. 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 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 Page 13 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om 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.
20. Therefore, after scanning the entire record and keeping in view the above discussion, in the absence of compelling and persuasive testimony of the injured on record which remained uncorroborated by any other eye witness against the accused, in my considered opinion, the prosecution has miserably failed to prove the present case against the accused and hence, the accused Hari Om is hereby acquitted from offences u/s 279/337/338 IPC.
21. File be consigned to Record room after necessary compliance.
Announced in open court today on 5th January'2016 (Sandeep Gupta) Metropolitan Magistrate North District/Rohini/Delhi Page 14 of 14 FIR No. 370/04 PS Narela U/s. 279/337/338 IPC State Vs. Hari Om 05.01.16 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 is acquitted of the offence U/s 279/337/338 IPC.
Accused is directed to furnish fresh bail bond for a sum of Rs.10,000/- with one surety of like amount in terms of section 437 A of Cr.P.C. The same stands furnished and accepted.
File be consigned to record room after necessary compliance.
(Sandeep Gupta) Metropolitan Magistrate Rohini/Delhi 05.01.16 Page 15 of 14