Delhi District Court
Fir No. 405/08, Ps-Sarita Vihar State vs Sandeep Chauhan Page No. 1 Of 14 on 12 October, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN,
METROPOLITAN MAGISTRATE-05, SOUTH EAST DISTRICT
SAKET DISTRICT COURTS, NEW DELHI
STATE
VS
SANDEEP CHAUHAN
FIR No. : 405/08
U/s. 279/337/304A IPC
PS : Sarita Vihar
A. Cr No. : 89560/16
B. Date of Institution : 20.03.2009
C. Date of Commission of Offence : 31.07.2008
D. Name of the complainant : Smt. Hiroo
E. Name of the Accused : Sandeep Chauhan,
S/o Sh. Inderpal Singh,
R/o H. No. 3,
Village Palhera,
Mohan Nagar,
Ghaziabad, U.P.
F. Offences complained of : 279/337/304 A IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not Reserved.
I. Final order : Acquitted.
J. Date of such order : 12.10.2018
FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 1 of 14
JUDGMENT
Brief Facts :-
1. It is the case of the prosecution that on 31.07.2008 at about 07:20 AM, accused was driving a truck bearing registration no.
HR-38-M-5746, in such a rash and negligent manner so as to endanger human life and safety and while driving the aforesaid vehicle in the aforesaid manner accused hit against one motorcycle bearing No. DL-3S-AH-0403 and caused simple injury to Smt. Hiroo and caused death of Deep Chand. Thus, the accused was alleged to have committed the offences punishable U/s 279/337/304A IPC. The said incident took place at at Badarpur Ashram Road, Near Sarita Vihar Flyover. Cognizance taken accordingly and accused was summoned.
2. Upon his appearance, the accused was supplied with the copy of challan and documents in compliance of section 207 Cr.P.C. Thereafter, the matter was listed for arguments on charge.
3. After hearing, Prima facie offences punishable U/s 279/337/304A IPC were found to made out against the accused. Notice U/s 251 CrPC was framed accordingly. The accused FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 2 of 14 pleaded not guilty and claimed trial. Accordingly, matter was listed for prosecution evidence.
4. To bring home the guilt of accused, prosecution has produced and examined eight witnesses. Vide his separate statement recorded u/s 294 Cr.P.C, the accused admitted the genuineness of (1) MLC no. 130424 of injured Hiroo prepared by Dr. Sarang, AIIMS (2) Post Mortem Report no. 768/08 of deceased Deep Chand prepared by Dr. Ashish Jain, AIIMS, New Delhi.
5. The statement of accused was recorded u/s 313 Cr.PC. In his statement, accused denied the prosecution case and pleaded innocence. He stated that Police has falsely implicated him in the present case and that all the witnesses had deposed falsely. Accused produced Dharamvir and Sunil Kumar in his defence. After conclusion of defence evidence, matter was listed for final arguments.
6. I have heard Ld. APP for the State and Ld. Defence Counsel as well as gone through case file very carefully.
7. The argument of Ld. APP is that there is enough material FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 3 of 14 on record to prove the case against the accused. Ld. Defence counsel on the other hand has argued that the accused has been wrongly associated with the offence in question and as such the accused is entitled to acquittal in the present case.
8. I have perused the case file very carefully and have duly considered the respective arguments.
Relevant Law:-
The settled propositions of criminal are :
(A) Prosecution is required to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence.
(B) In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, in the defence of the accused.
(C) The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused.
(D) The accused is entitled to the benefit of every reasonable FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 4 of 14 doubt in the prosecution story and such doubt entitles the accused to acquittal.
Law relating to requirement of independent witness
9. Sections 100 Clause 4 & 5 Cr.P.C: Requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Minor contradictions do not effect the credibility of the prosecution case.
10. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date of occurrence".
Overall context of the case is to be seen.
11. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that Courts have a duty to undertake a complete and comprehensive appreciation of all the FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 5 of 14 vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Law relating to Evidentary value of testimony of Police Officers:
12. The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds; Karamjit Singh v. State (Delhi Administration), AIR 2003 SC 1311.
Definition of rashness and negligence
13. What is rashness or negligence has been defined in relevant paragraphs of the judgment of Ravi Kapur Vs State of Rajasthan 2012(7) SCALE354 which are quoted below:
Para11- "Negligence means omission to do something which a FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 6 of 14 reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence."
B. Para 17- "A rash act is primarily an overhasty 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 consequences. Criminal negligence is the failure to exercise duty with reasonable and FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 7 of 14 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."
Ingredients to be proved.
14. I have perused the record very carefully and have considered the arguments advanced by the Ld. APP as well as the defence counsel. Before giving the reasons and my decision on the case, it would be pertinent to lay down the basic ingredients of Sec. 279 of IPC. The accused is liable to be punished under Sec. 279 IPC when the prosecution proves the following ingredients :
(i) the accused should have been driving offending vehicle at the relevant time and place.
(ii) the manner of driving should be rash or negligent in a way to endanger human life or which is likely to cause hurt or injury to any other person.
FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 8 of 14
15. Now I will discuss whether the ingredients as outlined above have been satisfied by the prosecution or not.
(i)- The accused should have been driving the offending vehicle on public way?
16. PW-5 Inspector Padam Singh Rana deposed that on 31.07.2008 he was posted at PS Sarita Vihar as SI. On that day, he received DD No. 10-A regarding accident having occurred at road going towards Badarpur to Aashram near Sarita Vihar flyover. He alongwith Ct. Mahavir reached at the spot where he found a motorcycle DL-3SAH-0403 and truck bearing no. HR- 38M-5746 in an accidental condition. At that time, front tyre of motorcycle was struck under the rear wheel of truck. Near the motorcycle, dead body of one person was also lying. The dead person was identified as Deep Chand. He got photography of spot. He seized motorcycle and truck. He also came to know that one lady was also traveling on the motorcycle and she had also sustained injuries and had already been shifted to unknown hospital. No eye witness met him on the spot. He prepared Rukka on the basis of DD No. 10-A and handed it over to Ct. Mahavir for FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 9 of 14 registration of FIR. He went to PS and got FIR registered and returned back at the spot and handed over him copy of FIR and original Rukka. In the meantime, son of deceased namely Parth also reached at the spot and identified the deceased. IO prepared personal search memo of deceased and shifted dead body of deceased to AIIMS Mortuary through Ct. Mahavir. After sometime, IO came to know that injured lady had been admitted in AIIMS Trauma Centre. He visited AIIMS Trauma Centre and met injured lady whose name was revealed as Heeru Devi. He got conducted postmortem of deceased and dead body was handed over to relatives thereafter. He also prepared dead body identification and handing over memos which are Ex. PW1/A and Ex.PW1/B. He recorded statements of witnesses. On 01.08.2008, he gave notice u/s 133 MV Act to the registered owner of offending vehicle namely Manbeer. Notice is Ex. PW5/C. The owner of truck revealed that his truck was being driven by accused/driver Sandeep Chauhan. The owner of dumper also produced accused Sandeep Chauhan in the police station. He arrested accused vide arrest memo Ex. PW3/A. He got conducted mechanical inspection of both vehicles. The report are Ex. PW4/A and Ex. FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 10 of 14 PW4/B. He also seized DL of accused vide seizure memo Ex. PW5/D. He recorded statements of Smt Hiroo Devi, Supedar Manbeer and PCR Incharge, Ram Meher. He collected postmortem report of deceased, MLC of injured Hiroo Devi. IO had correctly identified four photographs of offending vehicle attached with judicial file. Photographs are Ex. P-1 to Ex. P-4.
17. PW-3 Smt. Heeru deposed that on 31.07.08, she alongwith Deep Chand was going to Lajpat Nagar for her daily work on a motorcycle. At about 07:15 AM when they reached near Sarita Vihar flyover in the meanwhile, one truck came in fast speed and overtook their motorcycle. Suddenly the driver took left turn due to which the truck hit against their motorcycle and they fell on the ground. The deceased Deep Chand came under the left tyre of the truck and died at the spot. In the meanwhile, some public persons gathered at the spot and police also reached the spot. The PCR van took them to the hospital. At one stage, the witness identified the accused in the Court. However, Ld. Predecessor put a question to the witness whether she could identify the face of the person who caused the accident, she stated that FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 11 of 14 'NO'.
18. PW-2 Manbir Singh deposed that he was the registered owner of truck bearing no. HR-38M-5746. He had got his vehicle on superdarinama vide Ex. PW2/B. The accused Sandeep Chauhan was driving the above said vehicle on the day of accident i.e., 31.07.2008 at about 07:30 pm vide memo Ex. PW2/A. This witness was duly cross examined by the accused. During the cross examination, he admitted that his driver i.e., the accused had informed him that the Tyre of the truck had punctured and it was standing at the spot. He further deposed that accused also informed him that he had fixed the Jack to change the Tyre of the truck.
19. The defence of the accused is that the tyre of the truck had punctured and the truck was stationary on the left side of the road while he was in process of changing the same.
20. The owner of the vehicle Manbir Singh in his cross examination as a prosecution witness corroborated the defence of the accused by admitting that accused had informed him about the punctured tyre and his attempt to change the same. FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 12 of 14
21. While the IO/ Inspector P. S. Rana deposed that the dead body was stuck in the left side rear wheel of the truck, he was contradicted by ASI Ram Karan who deposed that he saw a person was lying near the rear tyre of the driver side i.e., the right side of the truck. This is one of the major contradiction in the prosecution's case which has not been explained. The position of dead body is disputed in view of the contradiction. No photograph of the site was taken to show the position of the dead body viz-a-viz the offending truck. Even the site plan prepared by the IO is vague and cryptic and only shows one position at point A where the Truck, motorcycle and body was allegedly found. Thus, the exact position of each of them cannot be ascertained. The Mechanical Inspection Report of the truck does not show much damage and the photograph Ex.P1 shows Truck parked on the left side of the road side of the road with left rear tyre punctured thereby corroborating the defence of the accused and denting the prosecution's case. The injured Hiroo Devi failed to identify the offender when the Ld. Predecessor Court put specific question to her. The accused has successfully proved that the Truck was stationary on the Road with Punctured Tyre. FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 13 of 14 Prosecution has not been able to prove otherwise. When the truck itself is proved to be stationary, it was not being driven and consequently no rashness or negligence can be presumed in the given set of facts. These are a major lacuna in the prosecution's case which have not been explained. The burden of proving the case is on the Prosecution and it has to prove its case beyond the pales of reasonable doubt and has to stand on its own legs. It cannot rely on the absence or imperfection of the defence. Whereas the accused is only required to raise reasonable doubt on the prosecution's case. As discussed in preceding paragraphs, there are several glaring loopholes in the Prosecution's version and benefit of doubt had indeed accrued and the same must necessarily be extended to the accused. In these circumstances, the accused Sandeep Chauhan is hereby acquitted for commission of offence U/s Digitally 279/337/304A IPC. signed by SHIVANI SHIVANI CHAUHAN CHAUHAN Date:
2018.10.15 Announced in the open 16:09:25 Court on 12.10.2018 +0530 (SHIVANI CHAUHAN) METROPOLITAN MAGISTRATE-05 SOUTH EAST DISTRICT SAKET COURTS NEW DELHI FIR No. 405/08, PS-Sarita Vihar State Vs Sandeep Chauhan Page no. 14 of 14