Delhi District Court
Ghanshyam vs State (Government Of Nct Of Delhi) on 29 January, 2015
IN THE COURT OF SH. RAKESH SYAL, SPECIAL JUDGE, (PC ACT)
& (CBI)-03, SOUTH WEST DISTRICT, DWARKA, NEW DELHI
Crl. Appeal No. 07/14
In re:
Ghanshyam,
S/o Sh. Ram Chander,
R/o 3209, Ram Bazar,
Mori Gate,
Delhi-110006
............... Appellant
Versus
State (Government of NCT of Delhi)
............... Respondent
Date of Institution : 10-10-2014
Date on which Order reserved : 16-01-2015
Date on which Order passed : 29-01-2015
ORDER
1. This judgment shall decide Criminal Appeal filed by appellant Ghanshyam (accused before the Ld. Trial court) against judgment dated 23-08-2014 and order on sentence dated 12-09-2014 passed by the Ld. Metropolitan Magistrate-05, (South West), Dwarka Courts, New Delhi, vide Crl. Appeal. No. 07/14 29-01-2015 1 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) which the appellant was convicted for offences punishable u/s 279 IPC and 304A IPC, and sentenced to undergo simple imprisonment for a period of one month for the offence punishable u/s 279 IPC, and six months simple imprisonment, and to pay compensation of Rs. 25,000/- to the LRs of the deceased u/s, 357 Cr. P.C., for the offence punishable u/s 304A IPC and in default of payment of compensation amount, to further undergo simple imprisonment for a period of 15 days.
2. The facts leading to filing of this appeal are that on 18-12-2008, on receipt of DD No. 21A at PS Chhawla, SI Zile Singh along with Ct. Naresh reached the site of accident at BDO office, near Primary School, Najafgarh- Chhawla Road, where blue line bus bearing No. DL 1 PB 3808, route No. 790A, and motorcycle bearing No. HR 14 B 5801, make Pulsar, black in colour, were found in accidental condition. Near the rear wheel of the bus, Sh. Rakesh s/o Daya Nand, who was serving with BSF, was lying dead. One Ct. Kashmiri Lal of BSF gave statement, wherein he stated that he was serving as a Ct. Driver in BSF. On that day, he was going to his house on his motorcycle. Along with him, Ct. Rakesh s/o Daya Nand of 25 th Btn, BSF, who was resident of village Jhatvada, Distt. Jhajhar, Haryana was going on his motorcycle bearing No. HR 14B 5801, make Pulsar. At about 8:15 pm, when they reached BDO office near Primary School, Najafgarh-Chhawla road, one private bus bearing No. DL 1 PB 3808, route No. 790, which plies from Old Delhi Railway Station to Najafgarh, came from behind at a fast speed and in a rash and negligent manner and hit Rakesh, who was going ahead of him, from the left side. Sh. Rakesh fell down and came under the rear wheel of the bus.
Crl. Appeal. No. 07/14 29-01-2015 2 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) He caught hold of the bus driver. Seeing the anger of the public, the said driver escaped. He can identify the driver. A rukka was accordingly sent to PS Chhawla and FIR was registered. Investigation was carried out, during which site plan was prepared, and the bus and the motorcycle were taken into custody. Postmortem of the deceased Sh. Rakesh was got done from DDU hospital. Notice to Sh. Gurmeet Singh, Attorney holder of the bus u/s 133 M.V. Act was given. He produced the bus driver accused Ghanshyam at the police station. Mechanical inspection of the two vehicles was got done. Postmortem Report of the deceased was obtained and statements of the witnesses were recorded. On conclusion of investigation, report u/s 173 Cr.P.C. was filed against accused Ghanshyam.
3. Cognizance was taken. Accused was summoned. After supplying copies u/s 207 Cr. P.C., notice u/s 251 Cr. P.C. was given to the accused for commission of offences punishable u/s 279 IPC and 304 A IPC. Accused pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined eight witnesses. PW1 Sh. Gurmeet Singh is the Manager of the registered owner of the bus bearing No. DL 1PB 3808. PW2 Sh. Daya Nand and PW3 Sh. Mukesh are father and brother respectively of the deceased Sh. Rakesh who have identified his dead body vide identification memos, Ex. PW2/A and Ex. PW3/A respectively. PW4 HC Jai Pal is the Duty Officer who had recorded DD No. 21A, Ex. PW4/A and registered FIR, Ex. PW4/B. PW5 Ct. Naresh had assisted the IO in the investigation. PW6 Sh. Puran Chand had conducted Crl. Appeal. No. 07/14 29-01-2015 3 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) mechanical inspection of the bus and the motorcycle and given reports, Ex. PW6/A and Ex. PW6/B respectively. PW8 HC Kashmiri Lal of BSF is the complainant/eye witness and PW7 SI Zile Singh is the IO. On 06-07-2012, the accused had admitted the genuineness of MLC dated 18-12-2008, Ex.P/A/1 and Postmortem Report dated 19-12-2008, Ex.P/A/2.
5. Statement of the accused u/s 313 Cr. P.C., read with section 281 Cr. P.C., was recorded wherein he admitted that he was driving the bus in question at the relevant time and place. However, he stated that he was driving the same carefully and at a slow speed. He had just left the bus stop after boarding and de-boarding some passengers, when he heard cries of the passengers that someone had fallen down. When he stopped the vehicle and got off the same, he saw that a motorcyclist had fallen on the road. He denied that he was driving the bus in a manner so rash or negligent as to endanger human life or personal safety of others. He also denied that while driving the vehicle he had struck against the motorcycle bearing No. HR 14B 5801 and caused death of Rakesh. He further stated that motorcyclist had fallen towards the rear tyres of the bus and that the vehicle driven by him had not struck against the said motorcycle. Accused had not examined any witness in his defence.
6. Vide judgment dated 19-11-2013, accused was convicted for commission of offences punishable u/s 279 IPC and 304A IPC. Vide order on sentence dated 21-11-2013, he was sentenced to undergo simple imprisonment for a period of one month for the offence punishable u/s 279 Crl. Appeal. No. 07/14 29-01-2015 4 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) IPC, and six months simple imprisonment and to pay compensation of Rs. 25,000/- to the LRs of the deceased u/s 357 Cr. P.C. for the offence punishable u/s 304A IPC and in default of payment of compensation amount, to further undergo simple imprisonment for a period of 15 days.
7. Appellant/convict preferred an appeal against the aforesaid judgment and order on sentence. The then Ld. District & Sessions Judge, South West District, Dwarka Courts, New Delhi, Ld. Appellate Court, vide his judgment dated 21-01-2014, observed :-
"2. From a bare perusal of the judgment it reveals that appellant has been held guilty after consideration of only the examination in chief of the eye witnesses and after mentioning that in cross examination nothing contradictory could be brought out and the witness has passed the acid test, which is not sustainable in as much as in the cross examination the eye witness had categorically stated it is the motorcycle driver i.e. Deceased who tried to overtake the bus so driven by the appellant and hit the bus from the left side. Rather cross examination of eye witness has not been dealt with.
3. The other aspect in cross examination in favour of the appellant has also not been discussed. Further more, the Trial Court had dealt the case as of contributory negligence. It is only in civil cases where a contributory negligence comes into play as the damages sought can be granted in proportion to the contribution by the driver/victim. But in criminal cases, the concept of contributory negligence, is not applicable.
4. Ld. Trial court had also failed to look into the aspect of the site plan prepared at the site and to connect it with the commission of crime by the accused or even the mechanical inspection report of the two vehicles which are relevant, for arriving at a right decision, as held by Hon'ble High Court in case of Abdul Subhan Vs. State reported in 2007 Cri.L.J. 1089."
The Judgment dated 19-11-2013 and order on sentence dated 21-11-2013 were set aside and the matter was remanded back to the Ld. Trial Court to consider the evidence and the law afresh in accordance with law. After re-
Crl. Appeal. No. 07/14 29-01-2015 5 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) hearing final arguments, Ld. Trial Court has passed the impugned judgment and order on sentence.
8. The Ld. Trial court has in its judgment, inter-alia, relied upon statement of PW8 H.C. Kashmiri Lal that accused was driving the bus near the divider of the road and held that it was evident that the bus was being driven by the accused in the first lane i.e. extreme right (fast) lane rather than in the bus lane i.e. extreme left lane in violation of the guidelines issued by the Hon'ble Supreme Court of India in M.C. Mehta Vs. Union of India & Others, AIR 1998 SC 190. Ld. Trial court also considered the statement of PW8 that the bus in question had just started after alighting passengers at the bus stop and that at the time of accident in question, it was being driven near the divider and came to the conclusion that the bus was being driven in a zigzag manner. It was also held that before negotiating a turn towards the left, it was incumbent upon the accused to slow down, give a signal using the indicator of the bus and take a turn only after ensuring, with the help of the rear view mirror or assistance of the conductor, that the bus did not suddenly come in front of, or interrupt the path of, any other vehicle on its left. Ld. Trial court has also relied upon mechanical inspection report of the bus, Ex.PW6/A, as per which both the side view mirrors of the bus were broken and thus, came to a conclusion that the bus was being driven without rear/side view mirrors being in place. Ld. Trial court also held that contributory negligence on the part of deceased in overtaking the bus from the left side was no defence against criminal liability u/s 279 or 304 A IPC.
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9. The impugned judgment and order on sentence have been assailed, inter-alia, on the grounds that there is no evidence on record that the offending vehicle was being driven in a rash or negligent manner. It is stated that Ld. Trial Court has failed to consider the fact that there are three different versions of the sole eye witness, PW8 Kashmiri Lal. At the time of accident, he stated that the offending bus, at a fast speed, came from behind and hit the motorcycle of Rakesh Kumar, resulting in his death. During his examination in chief, he stated that the appellant was driving the offending bus near divider of the road and he suddenly took a turn on the left side and struck against one motorcycle which was driven by Rakesh Kumar and suddenly Rakesh Kumar fell down at the side of the offending bus and the rear wheel of the offending bus crushed the head of Rakesh Kumar. During his cross examination, he stated that both he and the deceased were behind the offending bus driven by the appellant/convict. He further admitted that the offending bus had just started after enlightening (sic alighting) the passengers at the bus stop and speed of the offending bus was slow at the time of accident. He also admitted that the deceased Rakesh Kumar was in front of him and he tried to overtake the offending bus from left side and near the spot of the accident some construction work was going on and some material was lying on the road. It is further stated that in view of the discrepancies, the prosecution has failed to prove its case. It is also stated that the deceased Rakesh Kumar was also liable for negligence as when the offending bus was being driven by the appellant, he tried to overtake the offending bus from the left side/wrong side and during this process he fell down from his motorcycle and came under the rear wheel of the bus after Crl. Appeal. No. 07/14 29-01-2015 7 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) hitting the bus from the wrong side.
10. It is further stated that PW8 Kashmiri Lal nowhere stated that the offending vehicle was being driven rashly and negligently by the appellant. There is a strong possibility that the deceased Rakesh Kumar, while overtaking the offending bus, slipped down from his vehicle and came under the wheel of the bus because there was some construction material lying on the road. It is also stated that it was wrongly presumed that the offending bus was driven near the divider i.e. in the fast/right most lane and just prior to the accident, accused had changed the lane from right most to the left most lane and was driving in a zigzag manner and ignored the fact that the offending bus which had just started from he bus stop (left most lane) was in a slow speed and had hardly reached the middle of the road when the deceased tried to overtake the bus from the right side and hit the same and fell down and came under the rear wheel of the offending bus.
11. It is further stated that the cross examination of sole eye witness i.e. PW8 H.C. Kashmirl Lal was not appreciated. Ld. Trial Court erred in holding that appellant was driving a heavy vehicle on public road without proper rear side view mirrors being in place and taking a sudden/fast left turn while driving in a fast lane without checking the vehicles to the left of the bus clearly constitute criminal negligence. The Ld. Trial Court ignored the fact that the rear side view mirrors of the bus was very much there at the time of accident and actually after the incident, the bus was damaged by the people who had gathered at the place of accident and stoned the offending vehicle Crl. Appeal. No. 07/14 29-01-2015 8 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) because of which the rear view mirrors and other window glasses were broken.
12. It is also stated that it was wrongly held that contributory negligence is no defence against the criminal liability for the offence under Section 279 IPC or Section 304A IPC. It was not appreciated that the offending bus was not being driven near the divider i.e. the right most side and appellant had not suddenly taken turn on the left side and struck against the motorcycle, there was no skid marks of the bus on the road and that is why no skid marks have been shown in the site plan. It is further stated that it was wrongly held that there is nothing in the police report that photographs of the accident have been taken by ignoring the statement of PW5 Const. Naresh, who stated that IO took photographs of the spot.
13. Sh. Rajnish Kumar, ld. counsel for the appellant has argued that the only eye witness i.e. PW8 Sh. Kashmiri Lal has given three contradictory statements. In his first statement to the police, on which rukka was sent, he stated that the bus came from behind in a rash and negligent manner and hit Rakesh Kumar from left side. During his examination in chief as PW8, he stated that the bus was running near the divider of the road. Suddenly, it took a turn to the left and struck against the motorcycle driven by the deceased Rakesh Kumar. However, during his cross examination, he stated that they were following the bus. The bus started after alighting the passengers. The speed of the bus was slow. Deceased Rakesh Kumar tried to overtake the bus from left side. He also stated that some construction material was lying Crl. Appeal. No. 07/14 29-01-2015 9 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) on the ground. Ld. counsel, thus, argued that there is no evidence that accused was driving the bus in a rash or negligent manner. It is contended that in his statement u/s 313 Cr. P.C., accused has stated that the motorcycle had fallen near the rear tyre of the bus. He further argued that PW5 Const. Naresh had deposed about IO taking photographs of the spot but the same were not filed by the prosecution. Thus, an adverse inference may be drawn. Ld. counsel has relied upon Mohan Shyam Vs The State (NCT of Delhi), (Crl. Rev. No. 272/2012, decided by the Hon'ble High Court of Delhi on 25-05-2012), Rajender Singh Vs State (Govt. NCT of Delhi), (Crl. Rev. P. 624/2009, decided by Hon'ble High Court of Delhi on 17-07-2012) and Abdul Subhan Vs State, 2007 Cril. L.J. 1089.
14. Sh. Pramod Kumar, ld. Addl. P.P has argued that PW8 Sh.Kashmiri Lal has proved that the appellant was driving the bus in a rash and negligent manner as he has testified that the driver of the bus was running his bus near the divider of the road and he suddenly took a turn on the left side and struck against the motorcycle which was being driven by Rakesh Kumar.
15. I have heard Sh. Rajnish Kumar, ld. counsel for the appellant and Sh. Pramod Kumar, ld. Addl. P.P. and also perused the record.
16. In the present case, the following points were required to be determined:-
(a) Charge u/s 279 IPC
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Ghanshyam Vs. State (Govt. of NCT of Delhi)
(i) Whether on 18-12-2008, at 8:15 PM at Najafgarh-Chhawla road, near BDO office and Primary School, i.e. a public way, appellant Ghanshyam was driving blue line bus bearing registration no. DL 1PB-3808?
(ii) If so, whether appellant Ghanshyam was driving the said bus in a manner so rash or negligent as to endanger the human life or to be likely to cause hurt or injury to any other person?
(b) Charge u/s 304A IPC
(i) Whether on 18-12-2008, at 8:15 PM, at Najafgarh-Chhawla road, near BDO office and Primary School, appellant Ghanshyam had caused death of Sh. Rakesh Kumar ?
(ii) If so, whether the said death was caused by the appellant Ghanshyam by doing a rash or negligent act not amounting to culpable homicide?
17. From the evidence and other material on record and arguments advanced by the parties, there appears to no dispute about the following facts:
-
(i) On 18-12-2008, at 8:15 PM, at Najafgarh-Chhawla road, near BDO office and Primary School, appellant Ghanshyam was driving a blue line bus bearing registration no. DL 1PB-3808.
(ii) On the aforesaid date, time and place, deceased Rakesh Kumar was driving motorcycle bearing registration no. HR 14B 5801.
(iii) On the aforesaid date, time and place, Sh. Rakesh Kumar S/o Daya Nand died due to injuries sustained by him on account of collision between the aforesaid bus bearing registration no. DL 1PB-3808 and his motorcycle Crl. Appeal. No. 07/14 29-01-2015 11 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) bearing registration no. HR 14B 5801.
18. However, the following facts are in dispute:-
a) Whether appellant Ghanshyam was driving the bus in a manner so rash or negligent as to endanger the human life or to be likely to cause hurt or injury to any other person?, and
b) Whether the death of Sh. Rakesh Kumar was caused by appellant Ghanshyam by doing a rash or negligent act not amounting to culpable homicide?
19. As per the site plan, Ex.PW7/B, it appears that the accident had taken place towards the left half of the road. There is no dispute that when the collision between the two vehicles took place, both the vehicles were moving in the same direction and the motorcycle was on the left side of the bus. The same is also corroborated by the mechanical inspection reports of the bus and the motorcycle, Ex.PW6/A and Ex.PW6/B respectively. As per the mechanical inspection report of the bus, Ex.PW6/A, inter-alia, there was a scratch on the left side body of the bus. As per the mechanical inspection report of the motorcycle, Ex.PW6/B, inter-alia, the right side leg guard of the motorcycle was damaged.
20. The only eye witness of the incident, cited and examined by the prosecution, is PW 8 H.C. Kashmiri Lal. He has testified about IO recording his statement, Ex.PW8/A at the site of accident on 18-12-2008. It is pertinent to note that in his statement, Ex.PW8/A, made after the accident on Crl. Appeal. No. 07/14 29-01-2015 12 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) 18-12-2008, at the site of accident to SI Zile Singh, PW 8 HC Kashmiri Lal stated that he was working as a driver in BSF. On that day, he was going on his motorcycle to his house and along with him, Ct. Rakesh S/o Daya Nand of 25th Btn., BSF was going on his motorcycle, bearing No. HR 14B 5801, Pulsar. Both of them were going together after taking permission to go home. At about 8:15 P.M., when they reached BDO Office, near Primary School, Najafgarh-Chhawla Road, a private bus No. DL 1PB 3808, route No. 790 A, which plies from Old Delhi Railway Station to Najafgarh came from behind, being driven by the driver at a fast speed and in a rash and negligent manner, and hit Rakesh, who was going ahead of him from the left side. Rakesh fell down and came under the rear wheel of the bus.
21. However, in his examination-in-chief, PW 8 H.C. Kashmiri Lal testified that on 18-12-2008, at about 8:00-8:15 P.M., he went to Uttam Nagar on motorcycle. When he reached near BDO Office, one bus (route No. 790) registration No. 3808 was coming from the side of Chhawla and going towards Najafgarh. At that time, the driver of the bus was running his bus near the divider of the road and he suddenly took a turn on left side and struck against one motorcycle which was driven by Rakesh. Suddenly Rakesh fell down at the side of bus and the rear wheel of the bus crushed the head of Rakesh. He immediately stopped the bus and apprehended the accused. He also stated that he informed BSF officials and police also reached there in the meantime. IO recorded his statement, Ex.PW8/A and accused was handed over to police.
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22. During his cross-examination, PW 8 H.C. Kashmiri Lal admitted that on the day of incident, he was on his motorcycle and Rakesh was driving his own motorcycle. He further admitted that they both were behind the bus driven by accused. He also admitted that the bus had just started after enlightening (sic alighting) the passengers at the bus stop. He further admitted that the speed of the bus was slow at the time of incident. Rakesh was in front of him. He also admitted that Rakesh tried to overtake the bus from left side. He further admitted that near the spot, some construction work was going on and some material was lying on the road. However, he denied that motorcycle of Rakesh slipped from the concrete lying on the road. He voluntarily stated that when accused took left side turn, the motorcycle of Rakesh struck against the bus. He also stated that the incident took place ahead from the bus stand and no passenger tried to get down from the bus as the bus was in running condition.
23. The prosecution version, as can be discerned from the charge sheet and statement, Ex.PW8/A of PW 8 H.C. Kashmiri Lal is that the bus came from behind the motorcycle of Rakesh and hit the motorcycle from the left side of the bus. It is neither the case of the prosecution nor it is mentioned in statement, Ex.PW8/A that the bus was being driven near the divider of the road or that it suddenly took a turn on the left side. However, in contradistinction to the above, PW 8 H.C. Kashmiri Lal testified that the bus was being driven near the divider of the road, both he and Rakesh were behind the bus which had just started after alighting the passengers at the bus stop and was at a slow speed, Rakesh tried to overtake the bus from the left Crl. Appeal. No. 07/14 29-01-2015 14 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) side and when the accused took left side turn, the motorcycle of Rakesh struck against the bus. The above two versions regarding the manner in which accident took place are quite different. There is no explanation by the prosecution regarding the above discrepancy. PW 8 H.C. Kashmiri Lal was also not asked to explain the same.
24. In view of the aforesaid, more than one views are possible, one; that the bus came from behind the motorcycle and struck it while overtaking the motorcycle and second; that Sh. Rakesh tried to overtake the bus from the left side and his motorcycle collided with the bus either because it slipped due to construction material lying on the road, or the bus moved towards left side or otherwise.
25. In India, the vehicles can overtake the vehicles going in front of them, in the same direction, from the right side and not from the left side. As per regulation 4 of the Rules of the Road Regulations, 1989, generally the driver of a motor vehicle shall pass to the right of all traffic proceeding in the same direction as himself. Further, as per regulation 6 of the said Regulations, the driver of a motor vehicle shall not pass a vehicle travelling in the same direction as himself, inter-alia, if the driver ahead of him has not signalled that he may be overtaken. The driver of the vehicle which is to overtake or pass a vehicle travelling in the same direction is required to ensure that there is sufficient clear space for overtaking and he is supposed to obtain a signal from the driver ahead of him that he (i.e. the driver going ahead) may be overtaken.
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26. The driver of a vehicle is required to drive/maneuver his vehicle mainly keeping in view the traffic and the road conditions ahead of him. No doubt the driver of a heavy vehicle has to be careful and dilligent while driving the vehicle on road. But in case, a motorcyclist tries to overtake the vehicle from the wrong side without obtaining a signal from him that he may be overtaken and strike against the heavy vehicle, the driver of the heavy vehicle cannot be held liable for the accident.
27. According to PW 8 H.C. Kashmiri Lal, deceased Rakesh was trying to overtake the bus from the left side. However, it is neither the case of the prosecution nor there is any material on record to show that the accused signalled to him that he may be overtaken. In such a case, the accused cannot be held to be driving the bus in a manner so rash or negligent as to endanger the human life or to be likely to cause hurt or injury to any other person.
28. It is also pertinent to note that as per the prosecution version, accused had fled away from the spot on 18-12-2008. A notice u/s 133 M.V. Act was given to Sh. Gurmeet Singh, attorney holder of the owner of the bus who produced the accused at the police station on 19-12-2008 and then the accused was arrested. As per Ex.PW8/A, PW 8 H.C. Kashmiri Lal had apprehended the driver of the bus but on seeing the anger of the public, he had escaped and run away. PW 7 SI Zile Singh also testified that prior to his arrival at the spot, the accused had already fled away from there. He Crl. Appeal. No. 07/14 29-01-2015 16 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) further stated that the eye witness Sh. Kashmiri Lal told him that he had caught hold of the accused, however, since public had gathered there, the accused fled away in fear. However, in contradistinction to the aforesaid prosecution case and his own earlier statement, PW 8 H.C. Kashmiri Lal testified, inter-alia, that he informed BSF officials, police also reached there in the meantime, IO recorded his statement, Ex.PW8/A and accused was handed over to police. He further stated that he does not know at what time, accused was arrested. However, he handed over the accused to them.
29. Since PW 8 H.C. Kashmiri Lal has, in his earlier statement, Ex.PW8/A and in his testimony before the court, given different versions about the manner in which accident took place and the date of arrest of the accused, a doubt has arisen about the credibility of his deposition. Prosecution has not been able to prove that the accident took place in the manner as stated in the charge sheet.
30. It is also relevant to note that in the report u/s 173 Cr.P.C., there is no mention of IO taking photographs of the spot. However, PW 5 Ct. Naresh, who was present during investigation has deposed that IO took photographs of the spot. The said statement of PW 5 Ct. Naresh has gone unquestioned. No such photograph has been produced by the prosecution. This also raises a doubt regarding fair investigation. It is also pertinent to note that PW 5 Ct. Naresh has testified that when he reached the spot along with SI Zile Singh, the glasses of bus were broken. PW 7 SI Zile Singh also, during his cross-examination, admitted that sufficient damage was already Crl. Appeal. No. 07/14 29-01-2015 17 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) done by the public person to the bus. In view of the aforesaid statements, it cannot be held that at the time of accident, the bus was being driven with broken rear/side view mirrors.
31. In Mohan Shyam Vs. The State (NCT of Delhi) (supra), it was held, "13. In order to prove the act of negligence and rashness, it must be shown that the act was done without proper regard to its consequences and without any precautions taken for ensuring the safety of others. But, from the material available on record, it is nowhere seen that the truck was being driven in a wanton fashion or by flouting any traffic rules or in a reckless manner. A heavy vehicle like truck or a bus cannot be as easily maneuvered or brought to a halt within fraction of seconds. Maintaining a safe distance from such vehicles and giving proper indicators is also a very important rule of driving which was unfortunately neglected in the present case. If any vehicle comes in front of such heavy vehicles without any prior warning, then it may not be possible for such driver to avoid the collision. Had the truck been driven in a wrong lane or in an unpredictable fashion, it could be presumed that the driver was negligent in its driving. But in the present case, the truck was being driven in a manner which was in confirmation with the traffic rules and its own size. Taking a sudden right turn without any warning is in fact an indication that the deceased did not take the precaution that is required for the safety of oneself as well as the fellow commuters on the road.
14. In my opinion, the reckless manner in which the deceased was riding the motorcycle has been underplayed by terming it contributory negligence, when in fact the petitioner did not do a single thing that can be presumed to be rash or negligent. It is the duty of Courts to deal with each and every case with an open mind and arrive at a conclusion after due consideration of all the facts and circumstances. Every person is bound to anticipate the dangers 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 of road accident, the driver of a commercial or heavy vehicle shall be presumed to be guilty of rash and negligent driving Crl. Appeal. No. 07/14 29-01-2015 18 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) and without any iota of evidence against him' he will be deemed guilty from the start of the trial. In the absence of any material on the record, no presumption of "rashness" could be drawn by invoking the maxim "res ipsa loquitur"." (emphasis supplied)
32. In Rajender Singh Vs. State (Govt. of NCT of Delhi) (supra), it was held, "10. Furthermore, it may be noted that PW6 in his testimony has stated that the bus driver hit the lady while she was crossing the road and the driver ran away due to the green light. Thus there is a very strong possibility of the lady crossing the road negligently when the traffic signal was green due to which the accident occurred. Site plan Ex. PW6/B shows that there is a foot over bridge and despite the same the deceased was crossing the road and not using the bridge made for pedestrians to cross the road, while signal is green or during heavy vehicular traffic on the road. PW 6 has also deposed that he noted the bus number after the accident had taken place and that he was at about 300-400 yards away from the bus stop when the accident took place.
11. It is not the case of prosecution that the deceased was standing at the bus stop and the Petitioner driving his bus rashly and negligently ran over a lady standing at bus stop. The place of accident is a busy road where the traffic movement is very high and the deceased was crossing the road when there was green light for the vehicles and not using the foot over bridge is an essential aspect which needs to be looked into. No doubt the driver of a heavy or any vehicle has to be very careful and diligent while driving the vehicle on roads. But in case a person crosses the road when the traffic signal is green for vehicles to move the negligence on the part of pedestrian can not make the driver/accused person wholly liable for the accident. The deceased or the injured is also liable for the negligence. In such circumstances the offence/criminal negligence under Sections 279/304A cannot be attributed to the driver of the vehicle." (emphasis supplied)
33. It is well settled that if two views are possible, one pointing to the guilt of accused and other to his innocence, the second in favour of the Crl. Appeal. No. 07/14 29-01-2015 19 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi) accused, must be accepted. In this regard, reference can be made to Narendra Narain Singh Vs. State of Bihar AIR 1991 SC 1842 and Baboo Ram Vs. State, Cri LJ 483. In the present case, more than one views are possible regarding the manner in which collision between the two motor vehicles took place. Thus, the view in favour of the accused has to be accepted.
34. In view of the aforesaid discussion, it is considered that prosecution has failed to prove its case against appellant/accused Ghanshyam beyond a reasonable doubt. Accordingly, the appeal is allowed and judgment dated 23-08-2014 and order on sentence dated 12-09-2014 are set aside. Appellant/accused Ghanshyam is acquitted of the charges levelled against him.
35. His bail bonds are cancelled and his surety is discharged.
36. A copy of judgment, along with Trial Court Record, be sent to Ld. Trial Court.
37. Appeal file be consigned to Record Room.
Announced in the Open Court today on 29th day of January, 2015 (Rakesh Syal) Spl. Judge, (PC Act) & (CBI) -03, Dwarka Courts, New Delhi (ra) Crl. Appeal. No. 07/14 29-01-2015 20 of 20 Ghanshyam Vs. State (Govt. of NCT of Delhi)