Delhi District Court
State vs Ajay on 26 September, 2023
IN THE COURT OF SH. JITENDER: THEN METROPOITAN
MAGISTRATE01 : NORTH : ROHINI COURTS : DELHI
AND
PRESENTLY, SPECIAL RAILWAY MAGISTRATE,
CENTRAL, OLD DELHI RAILWAY STATION
STATE VS. AJAY
FIR Number : 286/2010.
Under Section : 279/338/304A IPC.
Police Station : Narela.
JUDGMENT
a) Registration no. of case : 5285491/2016
b) Name & address of the : Dinesh Singh complainant S/o R P Singh R/o Village Chhap, PO Mirganj, Distt. Gopalganj, Bihar
c) Name & address of : Ajay accused S/o Sh. Ram Gopal R/o Gali No. 1, Pancheel Colony, Sonepat, Haryana
d) Date of Commission of : 18.07.2010 offence FIR No. 286/2010 PS Narela State Vs. Ajay Page 1 of 20
e) Offence complained of : 279/338/304 IPC
f) Plea of the accused : Pleaded not guilty.
g) Final Order : Acquitted
Date of Institution : 30.03.2011
Judgment Pronounced on : 26.09.2023
JUDGMENT
Before embarking upon the discussion in the present case, it is necessary to state that the final arguments in the present case were heard by the undersigned as MM01, North and in view of para no. 2 of the transfer order no. 62466279/DHC/Gaz/G 7/VI.E.2(a)/2023 dated 29.08.2023 of Hon'ble Delhi High Court, the judgment is now being pronounced in the present transferee Court.
Brief facts:
1. The case of the prosecution is that on 18/07/2010 at around 06:30 AM near HP petrol pump, Singhu Border, Kacha Service road, HP petrol pump Narela, Delhi,(hereinafter the "spot"
or "the place of accident" or "the spot") accused was found driving a tempo Eicher cantor bearing No. HR693382 (hereinafter the "offending vehicle") in rash and negligent manner so as to endanger human life and personal safety of other and hit against a pedestrian FIR No. 286/2010 PS Narela State Vs. Ajay Page 2 of 20 namely Krishan Mohan Pathak due to this caused injuries resulting in his death and also hit against the other stationed vehicle i.e. a truck bearing no. HR46B1352 and thereby caused grievous injuries to jasbir who was working with the accused as helper. The present FIR No.286/2010 was registered under section 279/338/304A Indian Penal Code (hereinafter "IPC").
2. On the basis of the investigation carried out by the police, chargesheet was filed under section 173 Cr.P.C in the court and chargesheet and other relevant document were supplied to the accused in compliance of section 207 Cr.P.C to the satisfaction of the accused.
3. Notice for committing the offence punishable under section 279/338/304A IPC was served upon the accused on 22/04/2013 to which accused pleaded not guilty and claimed trial. Thereafter, the matter was fixed for PE.
Issues to be decided
4. Before proceeding further, as per mandate laid down under Section 354 (1) (b) Cr.PC following are the points of determination which are necessary to consider in order to arrive at a conclusion:
FIR No. 286/2010 PS Narela State Vs. Ajay Page 3 of 20(1). Whether accused has committed the offence for rash driving or riding on a public way under section 279 IPC ?
(2). Whether accused has committed the offence causing grievous hurt by act endangering life or personal safety under section 338 IPC?
(3). Whether accused has caused death by such act with rash or negligence act under section 304A IPC?
Observation
5. "Whether accused has committed the offence for rash driving or riding on a public way under section 279 IPC?"
Let us peruse the provision of Section 279 IPC, which is as under : Section 279 Rash driving or riding on a public way Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Essentials Ingredients of Section 279 IPC FIR No. 286/2010 PS Narela State Vs. Ajay Page 4 of 20 (1). Driving or riding in a public way (2). Such driving or riding must be rash or negligent to the point of endangering human life or causing harm or injury to others.
The Hon'ble Supreme court in the case titled Ravi Kapur v. State of Rajasthan, (2012) 9 SCC 284 observed that:
"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 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."
The Hon'ble Supreme court further observed that Ravi Kapur (supra);
"The court has to adopt another parameter i.e. "reasonable care" in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrians happen to be children of tender years. It is axiomatic to say that while driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to FIR No. 286/2010 PS Narela State Vs. Ajay Page 5 of 20 avoid danger to others."
6. "Whether accused has committed the offence causing grievous hurt by act endangering life or personal safety under section 338 IPC?"
Let us peruse the provision of Section 338 IPC, which is as under : Section 338: Causing grievous hurt by act endangering life or personal safety of others: Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with impris onment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
Essentials Ingredients of Section 338 IPC (1). Accused did an act rashly or negligently.
(2). Act endangered human life or the personal safety of others.
(3). Such act cause grievous hurt.FIR No. 286/2010 PS Narela State Vs. Ajay Page 6 of 20
7. "Whether accused has caused death by such act with rash or negligence act under section 304A ?"
Let us peruse the provision 304A IPC, which is as under : Section304A. Causing death by negligence.--Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Essentials ingredients of the section 304A (1). There must be death of person in question (2). The death must be caused by the accused (3). The death must be caused due to rash or negligent act of accused; and (4). Act of the accused must not amount to culpable homicide.
In Alister Anthony Pareira v. State of Maharashtra's [(2012) 2 SCC 648] Section 304A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 FIR No. 286/2010 PS Narela State Vs. Ajay Page 7 of 20 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
As noted above, "rashness" consists in hazarding dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifferences as to the consequences. 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 circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
In, Dalbir Singh v. State of Haryana[(2000) 5 SCC 82 :
2000 SCC (Cri) 1208], the Apex Court was concerned with a case FIR No. 286/2010 PS Narela State Vs. Ajay Page 8 of 20 where the accused was held guilty of the offence under Section 304 A IPC. The Court made the following observations:
When automobiles have become death traps any leniency shown to drivers who are found guilty of rash driving would be at the risk of steering of automobiles, particularly professional drivers, must be kept under constant reminders of their duty to adopt utmost care and also of the consequences befalling them in cases of dereliction. One of the most effective ways of keeping such drivers under mental vigil is to maintain a deterrent element in the sentencing sphere. Any latitude shown to them in that sphere would tempt them to make driving frivolous and a frolic."
FINDINGS
8. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and the benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. In the case titled as Dr. S. L. Goswami vs State of Madhya Pradesh, 1972 Supreme Court Cases (Cri) 258, Hon'ble Apex Court has held that:
(i) The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does is shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less.
(ii) The standard of proof to prove a defence plea is not the same as that which rests upon the prosecution.
Where the onus shifts to the accused, and the evidence FIR No. 286/2010 PS Narela State Vs. Ajay Page 9 of 20 on his behalf probabilizes the plea he will be entitled to the benefit of reasonable doubt".
9. In the present case the charge for the offence U/s 279/338/304A IPC has been framed against accused. Before appreciating the evidence, let us first discuss relevant legal provisions given under Indian Penal code. In the present case, prosecution is required to prove the following ingredients to establish the guilt of the accused for the offences punishable under section 279/338/304A IPC that:
(i) That an accident was caused with a particular vehicle.
(ii) That accused was driving that particular vehicle which caused the accident.
(iii) That grievous hurt/death to any person must have been caused.
(iv) and it must have been caused by rash or negligent act/driving of the accused.
Establishment of identity of accused and offending vehicle
10. The case of the prosecution is that on 18/07/2010 at around 06:30 AM near HP petrol pump, Singhu Border, Kacha Service road, HP petrol pump Narela, Delhi, accused was found driving a tempo Eicher cantor bearing No. HR693382 in rash and negligent manner so as to endanger human life and personal safety of other and hit against a pedestrian namely Krishan Mohan Pathak due FIR No. 286/2010 PS Narela State Vs. Ajay Page 10 of 20 to this caused injuries resulting in his death and also hit against the other stationed vehicle i.e. a truck bearing no. HR46B1352 and thereby caused grievous injuries to jasbir who was working with the accused as helper. The first requirement for the prosecution is to prove the identity of the accused and the offending vehicle. For that purpose, prosecution has examined PW2 Deep Raj, who is stated to be the eye witness of the present case. PW2 has stated in his testimony that, "I am a driver. I used to drive truck no. HR46B 1352. On 18.07.2010 I was driving the aforesaid truck and was going to Sonepat. On the way I stopped my truck at HP petrol pump Singhu Border to take tea. During this I saw one cantor no. HR69 3382 coming in a rash and negligent manner at a high speed and hit against one person who was coming on the road. Due to the accident that person died on the spot. Name of the driver of the cantor was Ajay who is present in the court today and correctly identified by the witness". Further, PW2 crossexamined by the Ld. Counsel for the accused and he deposed that, "I arrived at the spot at about 02:30 AM. The accident occurred at about 04:00 AM. I had not seen the driver to driving the vehicle. Vol. but I had taken the driver out of the truck as his legs were stuck in the truck. I had taken the accused Ajay out of the driving seat of the truck". He further deposed that, "police person had not taken my signature on any document". However, Ld. Counsel for the accused put the suggestion that, "it is wrong to suggest that due to the quarrel between me and accused I have FIR No. 286/2010 PS Narela State Vs. Ajay Page 11 of 20 falsely implicate the accused and therefore, other person present at the spot one not joined the investigation". Further, prosecution has examined PW9 and PW9A, both were the investigating officer in the present case. Their testimonies are also relevant to the testimony of PW2. PW9 SI Samunder Singh has deposed that, "I also met the eyewitness namely Dinesh at the hospital". Further, PW9A deposed that, "I met one eyewitness namely Dinesh at the spot". PW9 a further deposed in cross examination that, "I did not meet any of the eyewitness bearing my investigation except Dinesh". Additionally, PW10 HC Gunawat also deposed that, "one eyewitness Dinesh was present at the spot".
It is rollout in the testimonies of PW9, PW9A and PW10 that there were only one eyewitness present whose statement was recorded by the PW9A. Further, it is also arise in the testimony of PW9A that, he does not meet any other eyewitness during his investigation except the one Dinesh. The testimonies of these 3 witnesses effectuate a grave doubt upon the testimony as well as the presence of eyewitness PW2 Deep Raj in the present case. Once the doubt has been created with respect to the presence of the eyewitness at the spot at the relevant time, relying upon the same testimony is not safe.
Interested witness
11. The accused has taken the defense that, all the witnesses FIR No. 286/2010 PS Narela State Vs. Ajay Page 12 of 20 are interested witness, as eyewitness has an altercation with the accused and rest are the police witnesses. As regards the contention that all the eyewitnesses are close relatives of the deceased, it is by now wellsettled that a related witness cannot be said to be an "interested" witness merely by virtue of being a relative of the victim. A witness may be called interested only when he or she derives some benefit from the result of a litigation, which in the context of a criminal case would mean that the witness has a direct or indirect interest in seeing the accused punished due to prior enmity or other reasons, and thus has a motive to falsely implicate the accused.
In Mohan Singh v. State of Madhya Pradesh (1999) 2 SCC 428 the Supreme Court pointed out:
The principles relating to appreciation of the evidence of interested and related witnesses, as explained in the above decisions, may be summarised as under:
(a) Once the Court is satisfied that the witness who is related to the victim is not a chance witness, then the evidence of such witness would have to be examined from the point of view of probabilities. The version of such witness as to the assault has to be carefully scrutinised.
(b) Though the witness may be hostile to the assailant, it is not likely that such witness would deliberately omit to name the real assailant and substitute in his place the name of enemy of the family out of malice.
(c) It is not improbable that in giving evidence, such a witness may name the real assailant and may add other persons out of malice and enmity and that is a factor FIR No. 286/2010 PS Narela State Vs. Ajay Page 13 of 20 which has to be borne in mind in appreciating the evidence of interested witnesses.
(d) Merely because a witness is shown to be a relative of the deceased, and it is also shown that the witness shared the hostility of the victim towards the assailant, it cannot be said that the evidence of such witness would never be accepted unless it is corroborated on material particulars.
(e) Where the witnesses are interested, the court should approach their evidence with care and caution in order to exclude the possibility of false implication.
In Jayabalan v. UT of Pondicherry (2010) 1 SCC 199, the Supreme Court held as under:
"23. We are of the considered view that in cases where the court is called upon to deal with the evidence of the interested witnesses, the approach of the court, while appreciating the evidence of such witnesses must not be pedantic. The court must be cautious in appreciating and accepting the evidence given by the interested witnesses but the court must not be suspicious of such evidence. The primary endeavour of the court must be to look for consistency."
12. This court arrived at the conclusion as to the defense of interested witness which was taken by the accused when his statement was recorded that, the presence of the eyewitness at the spot in the present is already under doubt, moreover, accused has taken the defense that, the eyewitness had an quarrel with him and therefore falsely implicate him in the present case. Therefore, FIR No. 286/2010 PS Narela State Vs. Ajay Page 14 of 20 accused has successfully created a doubt upon the presence of the eye witness at the spot as well as upon his intention for falsely implication of the accused.
Site Plan and Faulty Investigation
13. The site plan is a vital part of the investigation and that it should give a clear description of the spot to which it belongs. Site plan is not a mere formality, but, it is an essential feature in order to reach the firm conclusion by the court in order to ascertain whether the offence has been committed by the accused or not. The site plan must disclose the relevant thing and it must corelate/corroborate with other evidence and the testimonies of the witnesses. In the present case PW9 SI Samunder Singh stated that, "I prepared the site plan at the spot and the same is Ex. PW9/I bearing my signature at point A". Further, PW9A also deposed that, "I narrated the circumstances to ASI Samunder Singh and ASI Samunder Singh prepared the site plan at the instance of complainant". Is is appreared from the testimonies of PW9 and PW9A that, the site plan was prepared by the Io at the instance of the complainant despite that, the site plan was not bear the signature of the complainant. This fact generate the grave doubt upon the credibility of site plan and the manner in which the investigation carried out by the investigating agency.
As a general principle, it can be stated that error, FIR No. 286/2010 PS Narela State Vs. Ajay Page 15 of 20 illegality or defect in investigation cannot have any impact unless miscarriage of justice is brought about or serious prejudice is caused to the accused. (Union of India vs. Prakash P. Hinduja AIR 2003 SC 2612). If the prosecution case is established by the evidence adduced, any failure or omission on the part of the I.O cannot render the case of the prosecution doubtful. (Amar Singh vs. Balwinder Singh, AIR 2003 SC 1164, Sambu Das vs. State of Assam AIR 2010 SC 3300). If direct evidence is credible, failure, defect or negligence in investigation cannot adversely affect the prosecution case, though the court should be circumspect in evaluating the evidence (Ram Bihari Yadav vs. State of Bihar AIR 1998 SC 1850, Paras Yadav vs. State of Bihar AIR 1999 SC 644, Dhanraj Singh vs. State of Punjab AIR 2004 SC 1920, Ram Bali vs. State of U.P. AIR 2004 SC 2329).
14. As far as the defective and illegal investigation is concerned, Apex Court held that If investigation is illegal or suspicious, the rest of the evidence must be scrutinized independent of the impact of the faulty investigation; otherwise criminal trial will descend to the I.O ruling the roost. Yet if the court is convinced that the evidence of eyewitnesses is true, it is free to act upon such evidence though the role of the I.O in the case is suspicious. (Abu Thakir, AIR 2010 SC 2119). An accused cannot be acquitted on the FIR No. 286/2010 PS Narela State Vs. Ajay Page 16 of 20 sole ground of defective investigation; to do so would be playing into the hands of the I.O whose investigation was defective by design. (Dhanaj Singh vs. State of Punjab AIR 2004 SC 1920). Mere defective investigation cannot vitiate the trial. (Paramjit Singh vs. State of Punjab AIR 2008 SC 441).
15. The fact that the site plan was not signed by the complainant at whose instance it was prepared is lapse on the part of the investigating agency. This court concurred with the above cited judgment and arrived at the conclusion that lapses in the investigation cannot caste any doubt upon the case of the prosecution unless it cause the miscarriage of justice. Form the above reasoning, this court finds that, site plan which not bears the signature of the complainant at whose instance it was prepared, found to be not credible and prosecution failed to prove its sanctity.
Circumstantial evidence
16. Circumstantial evidence is the most important aspect to decide the liability of the accused in any criminal trial. Circumstantial evidence is indirect evidence that does not, on its face, prove a fact in issue but gives rise to a logical inference that the fact exists. Circumstantial evidence requires drawing additional reasonable inferences in order to support the claim. When no other conclusive evidence is present to establish the liability of the FIR No. 286/2010 PS Narela State Vs. Ajay Page 17 of 20 accused, the prosecution shall rely upon the circumstantial evidence corroborating with other evidence. However, the circumstantial evidence must be of conclusive tendency and must create a chain of event or evidence which only pointed towards the guilt of the accused and left no other probability in favor of accused.
In Sharad Birdhi chand Sarda v. State of Maharashtra (1984) 4 SCC 116 153, the Apex court has observed about the circumstantial evidence that:
"(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must' or 'should' and not 'may be established':
(ii) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty:
(iii)The circumstances should be of a conclusive nature and tendency:
(iv)They should exclude every possible hypothesis except the one to be proved and;
(v) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probably the act must have been done by the accused".
CONCLUSION
17. It is the settled principle of criminal jurisprudence that the prosecution required to prove its case beyond all reasonable FIR No. 286/2010 PS Narela State Vs. Ajay Page 18 of 20 doubt. This follow from the cardinal principle that accused is presumed to be innocent unless proved guilty and the accused is entitled to the benefit of every reasonable doubt. The case in hand was stand upon the testimony of PW2 Deep Raj who stated to be eye witness of the case. In a case of motor accident, it is most pertinent to establish the identity of the accused as well identity of offending vehicle and the manner in which the driver of the offending vehicle was driven by its driver. In the present case, the presence of PW2 is itself under doubt. On a consideration of the totality of factors pleaded by prosecution and the accused, this court arrived at the conclusion that prosecution has failed to establish its case beyond every reasonable doubt against the accused. Moreover there were so many other contradiction and infirmities roll out in the testimonies of the witnesses during their cross examination. It is needless to mention here that the investigating agency did not investigate the case in hand in a fair and reasonable manner. All the prosecution witnesses not supported the case of the prosecution and testimonies of the prosecution witnesses suffers from many infirmities, inconsistency and contradiction. The evidence of the prosecution witnesses not trustworthy and not corroborated with the circumstantial evidences and the witnessed of the prosecution have not been able make a continue link. Moreover, accused successfully dent the case of the prosecution and also able to create a doubt in the mind of the court and benefit of the same must be given to him.
FIR No. 286/2010 PS Narela State Vs. Ajay Page 19 of 2018. In view of the above discussions, the accused Ajay is hereby acquitted for the charges under Section 279/338/304A Indian Penal Code.
Dictated & Announced in Open Court.
Digitally signed by JITENDERJITENDER Date: 2023.09.27 16:44:14 +0530 (Jitender) Special Railway Magistrate, Central, Old Delhi Railway station Then MM01/North, Rohini, Delhi 26.09.2023 FIR No. 286/2010 PS Narela State Vs. Ajay Page 20 of 20