Delhi District Court
That The Accident Actually Took Place vs State (Nct Of Delhi)" 2006 (4) Lrc 472 on 1 December, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Rajiv Kumar
FIR No.179/01
PS Paschim Vihar
U/s 279/304A IPC
JUDGMENT
C C No. : 2239/2/10
Date of Institution : 19.11.2001
Date of Commission of Offence : 07.04.2001
Name of the complainant : Mohan Chand
S/o Sh. Sada Nand
R/o B-884, Camp no.4,
Jawalapuri, Delhi
Name & address of the accused : Rajiv Kumar
S/o Sh. Rameshwar Singh
R/o House no.203, Village Baprolla,
PS Nangloi,
Delhi
Offence complained of : 279/304A IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 02.11.2015
Date of announcing of judgment : 01.12.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under section State v. Rajiv Kumar U/s 279/304A IPC 1/12 FIR No.179/01 PS Paschim Vihar 279/304-A Indian Penal Code,1860.
2. The briefly stated story of the prosecution is that on 07.04.2001 at about 9.40 pm, the complainant Mohan Chand alongwith Ram Pal (the deceased) were boarding the bus having registration no. DL-1PA-1203 from the bus stand at Nangloi, Camp no.4, Rohtak Road, Jawalapuri, Delhi. When Ram Pal was boarding the same, the bus driver over took another bus from the wrong side in a rash and negligent manner due to which Ram Pal was crushed between the two buses. Ram Pal was rushed to the hospital. However, he succumbed to the injuries and expired on 08.04.2001. On basis of the statement of Mohan Chand, FIR was registered and investigation was carried out. Thus the accused is alleged to have committed an offence under Section 279/304-A Indian Penal Code,1860.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused in compliance of Section 207 Cr.P.C and thereafter notice under Section 251 Cr.P.C for offence under Section 279/304-A Indian Penal Code,1860 was served upon him vide order dated 01.05.2004, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined eight witnesses i.e (1)ASI Lata Singh (2) Mohan Chand (3) Ct. Satish (4) Bihari Lal (5) HC Ved Pal Singh (6) Retired ATI Bhule Ram (7) ASI Phool Kanwar and State v. Rajiv Kumar U/s 279/304A IPC 2/12 FIR No.179/01 PS Paschim Vihar (8) Retired SI V. N. Jha.
5. PW-1 ASI Lata Singh was posted as Duty Officer on the date of incident. She had received a tehrir sent by HC Phool Kumar through Ct. Ved Pal and had recorded the present FIR under Section 279/337 IPC. Copy of the FIR is Ex.PW1/A (OSR). The witness was not cross examined by the accused.
6. PW-2 Mohan Chand has deposed that on 07.04.2001, he reached at Nangloi, Camp no.4 bus stand at about 8.45 am. He boarded the bus at route no. GL-91 having registration no. DL-1PA-1203. He deposed that his neighbour Ram Lal who was behind him also tried to get inside the bus. However, at the same time the bus was started. The driver over take another bus in a rash and negligent manner due to which his neighbour Ram Lal was crushed between the two buses. He identified the accused as the driver of the offending bus. His statement as recorded by the police is Ex.PW2/A. He deposed that later on he came to know that Ram Lal has expired.
7. In the cross examination, PW-2 admitted that Ram Lal had come between two buses. The witness could not tell the number of the other bus. He denied the suggestion that the bus had moved on the whistle of the conductor. He admitted that many passengers were standing at the bus stop. He denied the suggestion that the other bus had come later on and voluntarily stated that the other bus was already standing there. He denied that the accused had not acted in rash or negligent manner and voluntarily stated that had the bus not State v. Rajiv Kumar U/s 279/304A IPC 3/12 FIR No.179/01 PS Paschim Vihar moved, the accident would not have occurred. He admitted that the speed of the bus was slow when it started.
8. PW-3 Ct. Satish deposed that on 08.04.2001, he received a call on telephone from HC Phool Kanwar that one person be sent to Sabji Mandi mortuary. He reached the Sabji Mandi mortuary at about 3.00-4.00 pm and remained there up to 11.00 pm. The postmortem was conducted and dead body was handed over to the relatives thereafter.
9. PW-4 Bihari Lal had identified the dead body of the deceased being his brother.
His statement is Ex.PW4/A.
10. PW-5 HC Ved Pal deposed that on 07.04.2001 on receiving DD no.10, he alongwith HC Phool Kumar had reached at DTC depot, Camp no.4, Jawalapuri, Nangloi, Delhi where it was revealed that the injured has already been removed to Sanjay Gandhi Memorial hospital. Upon reaching the hospital, IO met one Mohan Chand and recorded his statement. He deposed that IO prepared a rukka and on his instruction, the witness got the FIR registered at Police Station Paschim Vihar. Thereafter he returned back to the spot and handed over the original rukka and copy of FIR to the IO. The bus was seized vide memo Ex.PW5/A. The driver was arrested at the identification of the complainant vide memo Ex.PW5/B and his personal search was conducted vide memo Ex.PW5/C. The driving license of the accused was seized vide memo Ex.PW5/D. State v. Rajiv Kumar U/s 279/304A IPC 4/12 FIR No.179/01 PS Paschim Vihar
11. In the cross examination, the witness stated that no public person was found at the spot. He stated that IO had already prepared the site plan before his reaching the spot.
12. PW-6 Retired ATI Bhule Ram deposed that on 07.04.2001, he was working as ATI at Nangloi DTC Bus depot. On that day, the accused had come to their office and asked for a conductor. At his request, one conductor was assigned for his bus bearing registration no. DL-1PA-1203 at route no. GL-91. His report is Ex.PW6/A. During cross examination, PW-6 has admitted that the report Ex.PW6/A is not in his hand writing. However, the same bears his signatures at point A.
13. PW-7 ASI Phool Kanwar deposed that on 07.04.2001 on receiving DD No.4, Ex.PW7/A, he and Ct. Ved Pal reached the spot. They came to know that the injured has already been removed to Sanjay Gandhi Memorial hospital. They reached at said hospital and obtained the MLC of Ram Lal having no.1014/2001. The patient was declared to be unfit for statement by the doctors. The witness made efforts and found one Mohan Chand who claimed to be the eye witness. He recorded the statement of Mohan Chand. On basis of the same, he prepared the rukka Ex.PW7/B and handed it over to Ct. Ved Pal to get the FIR registered. He prepared the site plan Ex.PW7/C. Thereafter, notice under Section 133 Motor Vehicle Act was served upon the owner of the bus Satbir Singh. Satbir Singh appeared in the Police Post Mianwali Nagar on State v. Rajiv Kumar U/s 279/304A IPC 5/12 FIR No.179/01 PS Paschim Vihar the same day and revealed that Rajiv Kumar was driving the said bus. He had produced the accused in the police post. In the mean time, the eye witness also reached there and identified the accused. The accused was arrested and his personal search was conducted. He asked the accused to hand over his driving license but he deposed that the same has been seized in another case. The witness got the mechanical inspection of the bus conducted and collected the report which is Ex.PW7/F. He also asked DM, DTC Nangloi Depot to give him the details of the accused i.e his badge number and conductor etc. On 08.04.2001, DD No. 8 was received which is Ex.PW7/G informing about the death of the injured. He alongwith ASI V. N. Jha had gone to Trauma Center, Civil Lines and collected the body of the deceased. It was taken to Sabji Mandi mortuary where the postmortem was conducted. On 09.04.2001, the witness recorded the statement of ASI V. N. Jha and collected the postmortem report Ex.PW7/H. He prepared the charge-sheet and filed it in the court.
14. PW-8 Retired SI V. N. Jha deposed that on 08.04.2001, he had received DD no.8 alongwith the case file. He had proceeded to the Trauma Center and handed over the dead body in the mortuary. He moved an application for postmortem. The postmortem was conducted on 09.04.2001. He had recorded the statement of the relatives of the deceased regarding identification. Thereafter he had submitted the file with the SHO, Police Station Paschim Vihar. The witness was not cross examined by the accused.
State v. Rajiv Kumar U/s 279/304A IPC 6/12 FIR No.179/01 PS Paschim Vihar
15. The accused has admitted the genuineness of the MLC and the Postmortem report as well as the the dead body identification memo pertaining to the deceased vide his separate statement under Section 294 Cr.P.C.
16. Thereafter, the PE was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. He has stated that he has been falsely implicated. It was the deceased who was trying to board the moving bus. He has stated that he had to overtake the other bus as it had broken down and was parked there by its driver.
17. I have heard the submissions made by the Learned APP for state and the Learned Counsel for accused and carefully perused the evidence and the documents on record.
18. Ld. Counsel for accused has submitted that the accused has been falsely implicated in the present case. He submits that the IO has failed to place on record any statement of any of the passengers or passersby. The photographs of the spot are also not on record.
19. On the other hand, Ld. APP for State has submitted that the prosecution has proved its case beyond reasonable doubt and the accused be convicted for the alleged offences.
20. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
State v. Rajiv Kumar U/s 279/304A IPC 7/12 FIR No.179/01 PS Paschim Vihar
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
21. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
22. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness State v. Rajiv Kumar U/s 279/304A IPC 8/12 FIR No.179/01 PS Paschim Vihar will always depend upon the circumstances of each case".
23. In the case at hand, it is the allegation against the accused that he had started the bus in a rash and negligent manner even when he was trying to board the bus. The star witness of the prosecution is PW-1. However, this witness has only made a bald statement that the accused was driving in a rash and negligent manner. This statement in itself is not sufficient to prove the rashness/negligence on part of the accused. This court relies upon the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 for its findings. In the said case it was observed by the Hon'ble High Court of Delhi as follows:-
"No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and State v. Rajiv Kumar U/s 279/304A IPC 9/12 FIR No.179/01 PS Paschim Vihar negligence on the part of the Petitioner, especially when the area was a crowded one."
24. In the case titled "Abdul Subhan vs State (NCT of Delhi)" 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi as below, "13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerened 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. 13.5 Furthermore 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 ................
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 State v. Rajiv Kumar U/s 279/304A IPC 10/12 FIR No.179/01 PS Paschim Vihar are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity needs to be eliminated."
25. In the case at hand, there are no photographs of the spot on the judicial record.
In the site plan, it is seen that one bus was already standing at the spot and the accused was trying to take the bus from the other side. The IO has not made any investigation with respect to the condition of the other bus, whether it was stationary or running. The defence of the accused is that the deceased was trying to board the bus when the bus was in moving condition. From the site plan, it appears that the defence of the accused could be probable.
26. Also, PW-2 has admitted in his cross examination that the bus was moving in a slow speed when it started. If the other bus was already present at the spot and the speed of the bus was slow when in started, then in such circumstances, the negligence and rashness cannot be attributed to the accused. In fact, it appears that either it was the deceased who was trying to board the moving bus and in the process he was crushed between the two buses or the deceased had boarded the bus and was standing on the pavement/stairs of the bus.
27. Further, it is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and State v. Rajiv Kumar U/s 279/304A IPC 11/12 FIR No.179/01 PS Paschim Vihar convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
28. In view of the above discussion and in light of above-mentioned case laws, the court is of the considered opinion that the charges against the accused have not been proved. The prosecution has failed to prove that the accident was caused due to the rash and negligent driving of the accused. It has further failed to prove that it was the bus no.DL-1PA-1203 which had caused the accident or that the accused was driving the said bus at the relevant time. Thus, the accused is entitled to be acquitted. Accordingly, accused Rajiv Kumar s/o Rameshwar Singh is acquitted of charged under Section 279/304- A Indian Penal Code.
29. As per Section 437-A Cr.P.C, the accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED IN THE OPEN COURT ON
01st December 2015
(SAUMYA CHAUHAN)
MM-07 (West), THC, Delhi
State v. Rajiv Kumar U/s 279/304A IPC 12/12
FIR No.179/01 PS Paschim Vihar