Delhi District Court
State vs . Santosh Kumar on 4 March, 2020
IN THE COURT OF Ms. SHILPI JAIN
METROPOLITAN MAGISTRATE-02(CENTRAL),
TIS HAZARI COURTS, DELHI - 110054
FIR No.432/07
PS Timarpur
State Vs. Santosh Kumar
U/s 279/337/338 IPC
CNR No. DLCT-02-000642/09
CIS No.299895/16
JUDGMENT
(a) Sr. No. of the Case 299895/16
(b) Date of offence 29.07.2007
(c) Complainant Sh. Sanjeev Chaudhary S/o. Suresh Chand
Chaudhary, R/o. Mohalla Fakkarpura, Post
Jaswant Nagar, District Etawa, U.P.
(d) Accused Santosh Kumar S/o. Sh. Sone Lal, R/o. Village
Kuthon, PS Kuthon, District Jalon, U.P and House
No. A-9/5/1, Shakti Vihar, Meethapur, Numberdar Colony, Delhi.
(e) Offence 279/338 IPC. (f) Plea of accused Pleaded Not guilty (g) Final Order Acquitted (h) Date of Institution 30.01.2009 (i) Date when judgment was 04.03.2020 reserved (j) Date of judgment 04.03.2020 FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.1 of 21 BRIEF FACTS AND REASONS FOR SUCH DECISION:-
1. The present FIR was registered at PS Timarpur against accused Santosh Kumar for the offence U/s 279/337/338 IPC.
2. It is the case of the prosecution that on 29.07.2007, at about 4:30 am, at Outer Ring Road, near Village Gopal pur, on the road towards Burari, Delhi, accused was found driving eicher tempo bearing no. DL-1LG-6044 in a manner so rash or negligent so as to endanger human life and personal safety of others. It is further alleged that while driving the aforesaid tempo in aforesaid manner he struck against one stationery truck and caused simple injuries to passengers namely Sanjeev Chaudhary and Ram Avtar and caused grievous injuries to Rishabh, conductor Desh Raj, Sanjeev Kumar and Geeta and thereby committed an offence under Section 279/337/338 IPC.
COURT PROCEEDINGS
3. After completion of the investigation, charge-sheet was filed by the police in the Court and the copy of the charge sheet and annexed documents were supplied to accused Santosh.
CHARGE
4. Thereafter, charge under Section 279/337/338 IPC was framed against the accused Santosh Kumar vide order dated 08.02.2011 passed by Ld. Predecessor to which he pleaded not guilty and claimed trial.
5. Thereafter, matter was fixed for PE.
FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.2 of 21 PROSECUTION EVIDENCE
6. In order to prove the guilt of the accused, prosecution examined as many as 10 witnesses.
7. PW-1 is ASI Kriapl Singh, who deposed that on 29.07.2007, he was posted as duty officer, that he received rukka from Ct. Rajinder, that on the basis of which he registered FIR Ex. PW-1/A, that he made endorsement on rukka Ex. PW-1/B.
8. PW-2 is Davinder Kumar, who deposed that on 29.07.2007, on the request of ASI Rajinder Singh, he mechanically inspected eicher mini truck bearing no. DL-1LG-6044 and Tata truck HP-19-B4929, that there were fresh damages found on both the vehicles and Tata truck was found fit for road test but eicher truck not found fit for road test, that his report in this regard is Ex. PW-2/A and Ex. PW-2/B.
9. PW-3 is Sanjeev Chaudhary, who deposed that on 29.07.2007, he along with his wife, son namely Rishabh Chaudhary was going towards Ambla from Faridabad on a truck bearing registration no. DL-1LG-6044 with his luggage, that he hired the said truck for carrying the household items from Faridabad to Ambla as they were shifting there, that they reached at Wazirabad Red Light T point at around 4:30 am he saw one truck bearing registration no. HP-19-B4929 was lying at one side of the road and he also noticed that the driver of their truck was at high speed and driver namely Santosh Kumar was driving the truck in rash and negligent manner and hit against the said HP number truck lying at one side of road with same high speed, that on the date of said accident, his friend Sanjeev Kumar, Ram Avtar and one conductor namely Desh Raj was also in the truck, that Sanjeev Kumar, Ram Avtar and conductor Desh Raj had got minor injuries but due to the impact of such accident, his wife FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.3 of 21 sustained several injuries at lower portion of leg, that his son also got injuries at forehead etc., at the time of accident he also got injuries on his nose.
10. He further deposed that after sometime, PCR van came at the spot and they took them to the Trauma Centre, that IO recorded his statement which is Ex. PW-3/A, that he has also signed seizure memo of HP truck and their truck which is Ex. PW-3/B and Ex. PW-3/C, that on 29.07.2007, he has signed the arrest memo Ex. PW-3/D, personal search memo Ex. PW-3/E while present at Trauma centre. Thereafter, photographs of offending truck bearing registration no. DL-1L-G-6044 and of HP truck were shown to the witness and witness correctlyl identified the same as Ex. P-1.
11. In the cross examination PW-3 deposed that he hired vehicle TATA 407 for shifting his luggage articles from Faridabad to Ambala City, that the TATA 407 came at his place at 10.30 pm on 28.07.2007, that he never took the help of accused driver and helper for loading his luggage into TATA 407. (vol. Vehicle was Eicher truck), that the vehicle was hired to transport the goods as well as to carry the family members, that he was sitting at back side of vehicle with luggage, that the offending vehicle was being driven at very high speed of around 100 km/h and hit the other vehicle stationed on the road, that he sustained injuries on his nose, that all the injured persons were taken to the hospital, that he had not come to the spot from the hospital after the incident, that the site plan and the seizure of the vehicle was not done on the spot in his presence, that he do not remember the damages on the other truck, that his wife and son remained admitted in trauma center about 1 ½ months and he was discharged after three days, that his wife sustained injuries on her chin and multiple fractures on left leg, that in the present case the accused driver had also sustained injuries. He denied that incident had happened FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.4 of 21 due to disturbance created by the passengers in the offending vehicle and not due to rashness and negligence of accused, that he is deposing falsely.
12. PW-4 is Smt. Geeta, who deposed that on 29.07.2007, she along with her family members were going in a truck no. 6044 from Faridabad to Ambala, that truck was loaded with household articles, that she along with son Rishabh was present in the cabin of the truck along with the driver, that accused/driver was driving the truck, that at about 4:00 am, they reached at Wazirabad, that a truck was parked on the road side and the accused was driving the truck at very high speed and hit the stationed truck, that she became unconscious and she was taken to the hospital in ambulance, that parking indicator of stationed truck were on, that incident had happened due to negligence of the accused/driver. Thereafter, three photographs of offending truck shown to the witness and witness correctly identified the same.
13. In the cross examination, PW-4 deposed that they started from Faridabad at 12 midnight, that there were 7 persons traveling in the truck that night, that out of those 7 persons, 4 were sitting with driver on the front side & 3 were sitting on the back side of the truck, that her husband & daughter were sitting behind, however, she alongwith her son & 2 other persons were sitting in front alongwith the driver, that at that time, her son was around 10 years old and they sat in the said truck on the instructions of her husband, that she do not know whether the same was objected by the driver or not. She denied that the driver had objected them to sit in the said truck/cabin of the truck. She further deposed that she do not remember whether any disturbance was created by her son at that time, she further deposed that she and her son had slept while the driver driving the truck, that she do not remember whether the driver objected on their sleeping inside the cabin or not. She denied that driver had FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.5 of 21 objected on their sleeping inside the cabin. She further deposed that the alleged incident had taken place when they both were sleeping inside the cabin, that she only heard that the alleged accident had taken place at Wazirabad, that her statement was not recorded by the police, that she cannot say about the speed of truck at the time of alleged accident as she was sleeping.
14. Thereafter, PW-4 was reexamined by Ld. APP for the State and she deposed that when they started from Faridabad, the driver was driving the truck in little high speed, however, at the time of accident she was sleeping, that the offending truck had hit the stationed truck in the alleged incident.
15. PW-5 is Sh. Ram Avtar, who deposed that on 27.07.2007, he along with Sanjeev Kumar, Neeraj and children of Sanjeev Kumar and his wife took one tempo eicher whose registration number he do not remember from Faridabad and going towards Ambala as Sanjeev Kumar along with his family shifted from Faridabad to Ambala, that they boarded all the furniture and household articles in the abovesaid tempo, that driver of the tempo was Santosh Kumar, that they started for Ambala from Faridabad and when they reached near red light, Wazirabad T point, Gopalpur, it was 4:30 am and half of red light they have crossed, he saw one truck whose registration number he do not remember was stationed at near patri and its indicator was blowing, that their tempo hit against the above said truck as their tempo was at very high speed and tempo was being driven by driver Santosh Kumar in rash and negligent manner, that they all sustained injuries in that accident, that their tempo was hit against the stationed truck due to the fault of driver, that after sometime, ambulance van came and took them to the hospital, that IO recorded his statement in the hospital.
FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.6 of 21
16. He admitted number of tempo was DL-1LG-6044 and registration number of truck was HP-19B-929. Thereafter, three photographs of both the vehicles were shown to the witness and he correctly identified the accidental vehicle i.e. truck and offending vehicle i.e. tempo, that case property is Ex. P-1 (colly).
17. In the cross examination, PW-5 deposed that he do not remember the time when they left from Faridabad, that there were around 8-10 people in the aforesaid offending tempo including its driver and helper, that he cannot tell the name of all 8-10 persons, who were sitting in the said tempo at that time, that four persons including driver and helper were sitting near driver seat and rest of persons were sitting on the back portion of tempo, that as far as he could remember the name of some persons sitting behind they were Sanjeev Kumar, he himself, Sanjeev Kumar Chaudhary (other person), daughter of Sanjeev Kumar Chaudhary, that he do not remember the name of other persons who were sitting behind, however, wife and son of Sanjeev Kumar Chaudhary were sitting in the cabin of driver seat. He denied that they forcefully sit in the said temp against the wishes of its driver. He further deposed that he do not remember the time of accident in the present case today, that at the time of accident he was sleeping. He admitted that he was sleeping and for this reason he cannot tell how the said accident happened. He further deposed that the accident took place due to the fault of the accused driver of the offending vehicle. He denied that accused driver was not at fault in causing accident. He also deposed that police reached at the spot after half an hour of accident, that police recorded his statement once at hospital. He denied that he is deposing falsely.
18. PW-5 was re-examined by Ld. APP for the State. During re-examination he admitted that he never stated to police in his statement under Section 161 Cr.P.C that he was sleeping, that he was not sleeping at the time of FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.7 of 21 accident. He voluntarily deposed that at that time he was in some drowsiness and not fully sleeping.
19. Thereafter, in the cross examination it was put to the PW-5 by Ld. Defence Counsel, is it correct that at the time of incident you were sleeping in the tempo, to which he replied that he was sleeping at the time of accident and do not know how the accident occurred. He further deposed he got to know about the accident only after getting down from the tempo.
20. PW-6 is Sh. Pawan Kumar, who deposed that he do not remember the exact date, month and year of the incident however in the year of 2007, he was going towards Chandigarh from Delhi on Truck bearing no. HP 19B 4929, that it was about 3.30 am, he started from Naya Bazar, Purani Delhi, that when he reached at Wazirabad, his above said truck got break down, that he blown all indicators and parked the truck at one side of the road, that after some time, accused struck his Eicher Mini cantor from behind, that he made a call at number 100, that he helped the accused to take him out from his vehicle, that there were 6-7 persons in the above said mini cantor who also sustained injuries in the above said accident, that PCR van came at the spot and took the injured to the hospital, that accident occurred because accused was feeling sleepy while driving, that he do not remember the registration number of Eicher mini cantor, that no further inquiry was made by IO from him. Thereafter, three photographs from which one photograph is of vehicle no. HP19B4929 and two photographs of offending vehicle i.e. Eicher mini cantor bearing no. DL 1LG 6044 are shown to the witness, that witness has correctly identified the same after looking the photographs, that photographs are Ex. P1(colly) in the testimony of PW3. He admitted that IO collected and seized my DL, RC and insurance of vehicle. It is correct that the exact date of incident was 29.07.2007.
FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.8 of 21
21. In the cross examination, PW-6 deposed that the polcie reached at the spot after 15-20 minutes, that he had made a PCR call, that he do not remember the number by which he had made call regarding the incident, that he do not know how many police officials came at the spot, that the tyre of his truck came out while moving of the said vehicle, that the truck stopped immediately. He denied that the offending vehicle had hit his truck due to his own negligence. He deposed that police officials had not recorded his statement at any point of time after the accident. He denied that accused was driving the vehicle in rash and negligent manner. He admitted that he had not seen the accused whether he was feeling sleepy at the time of accident. He further deposed that among the passengers there were men, and one woman and one child and all of them were conscious. He denied that he is deposing falsely at the instance of the IO.
22. PW-7 is Sh. Sanjeev Kumar, who deposed that the incident is of the year 2007, that he along with his colleague Ram Avtar along with Sanjeev Chauhdary were going from Faridabad to Amabala in a tempo 407, that he do not know the registration number of the said vehicle, that the time they left from Faridabad was about 2:00-3:00 am, that accused Santosh was driving the vehicle, that Sanjeev Chaudhary and his family were shifting from Faridabad to Ambala, that Santosh Kumar (driver), his helper, wife of Sanjeev Chaudhary and his son were sitting near driver in the cabin of the aforesaid tempo and he alongwith Sanjeev Chaudhary, Ram Avtar and daughter of Sanjeev Chaudhary were sitting at the rear portion of the tempo where luggage/articles of Sanjeev Chaudhary was loaded.
23. He further deposed that he do not remember the time, however, near Wazirabad, one truck was already parked/stopped in left side and its indicator was blinking and their tempo struck against the said truck from FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.9 of 21 behind, that they did not receive any serious injury except minor injuries, that they got down from the tempo, that they saw the front portion of their tempo got damaged and all persons, who were sitting in cabin as aforesaid got serious injuries, that after sometime, police came there, that police recorded his statement, that he do not know, who called police, that police took them to Tramua Center in their vehicle, that Sanjeev Chaudhary and his family members remained at hospital as his family members got serious injuries, that after receiving initial treatment, they got discharged.
24. PW-7 was cross examined by Ld. APP for the State. During Cross examination, he deposed that admitted that in his statement Mark 7A, he stated to police that the date of accident was 29.07.2007 and time was 04:30 am, that in his statement Mark 7A, he stated to police that one Neeraj was also with them, that in his statement Mark 7A, he stated to police that the registration number of the Eicher Tempo was DL 1 LG 6044 which the accused Santosh was driving on the date of accident, that in his statement Mark 7A, he stated to police that on that day when their tempo reached between Wazirabad T-point and Gopal Pur Joint Point one truck bearing registration No. HP 19B 4929 (which was in broken down condition) standing near Platform of the road and its indicator were blinking or that driver Santosh was driving his vehicle in high speed in rash and negligent manner and hit the said truck from behind. He further deposed that in consequence of this accident, they got injuries. He admitted that in his statement Mark 7A, he stated to police that accused Santosh was arrested by IO in his presence. Thereafter, three photographs of tempo bearing registration No. DL 1LG 6044 and the aforesaid truck are shown to witness, who correctly identified the same and same is Ex. P1 (colly).
25. In the cross examination by Ld. Defence Counsel, PW-7 deposed that he knew Sanjeev Chaudhary from the year 2005, that it takes about two and FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.10 of 21 half hours for coming from Faridabad to Wazirabad. He admitted that in photograph taken at the time, it is shown that rear portion of the aforesaid tempo was covered with a tirpal and due to this reason persons sitting in rear side cannot see the scene, which is ahead of tempo. He deposed that he cannot tell due to whose mistake the aforesaid accident took place as he was sitting in the rear portion of the tempo. He denied that the truck which was ahead of tempo was not in standing position, that the aforesaid truck was also running ahead of tempo in between the road as its tyre came out and due to this reason the said truck stopped and its accident with tempo took place, that accused was not driving the tempo in rash and negligent manner. He further deposed that tempo was in normal speed, that after accident police reached at spot within 10 to 15 minutes. He denied that he is deposing falsely.
26. PW-8 is Dr. Thinosekho Chucha, who deposed that on 29.07.2007, he prepared MLC NO. 89665 of patient Rishabh, MLC No. 89664 of patient Santosh, MLC No. 89666 of patient Deshraj, MLC No. 89667 of patient Sanjeev Chaudhary, MLC No. 89668 of patient Ram Avtar, MLC No. 89669 of patient Sanjeev Kumar and MLC No. 89670 of patient Geeta, that he clinically examined all the above said patients and prepared the reports in his own handwriting, that MLCs are Ex. PW-8/1 to Ex. PW-8/7, that he referred all the patients to respective specialties as written in the MLCs further management.
27. In the cross examination, PW-8 admitted that he has no personal knowledge of the incident.
28. PW-9 is Anil Kumar, who deposed he has been working as a record clerk at sushruta trauma centre since March, 2000, that doctor Praveen(Sr. Ortho), Dr. Phani Kiran(Sr. Ortho) and doctor Dhirender Pratap Singh, Sr. had already left the services of the hospital and their whereabouts are not FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.11 of 21 known, that he has worked with the aforesaid doctors and he had seen them while signing and writing the documents, that he can identify the signatures and handwritings of aforesaid doctors. Thereafter, MLC no.89665 Ex.PW8/1 of the patient Rishab dated 29.07.2007 was shown to the witness and witness correctly identified the signature of Dr. Phani Kiran at point B of the said MLC and stated that the opinion given by the doctor as 'grievous' same is Ex. PW9/A, that MLC no.89664 of the patient Santosh dated 29.07.2007 was shown to the witness and witness correctly identified the signature of Dr. Dhirender Pratap Singh at point B of the said MLC and stated that the opinion given by the doctor as 'dangerous' same is Ex. PW9/B, that MLC no.89666 of the patient Deshraj dated 29.07.2007 was shown to the witness and witness correctly identified the signature of Dr. Phani Kiran at point B of the said MLC and stated that the opinion given by the doctor as 'grievous' same was Ex. PW9/C, that MLC no.89667 of the patient Sanjeev Choudhary dated 29.07.2007 was shown to the witness and witness correctly identified the signature of Dr. Phani Kiran at point B of the said MLC and stated that the opinion given by the doctor as 'simple' same is EXPW9/D, that MLC no.89668 of the patient Ram Avtar dated 29.07.2007 was shown to the witness and witness correctly identified the signature of Dr. Dhirender Pratap Singh at point B of the said MLC and stated that the opinion given by the doctor as 'simple' same is EXPW9/E, that MLC no.89669 of the patient Sanjeev Kumar dated 29.07.2007 is shown to the witness and witness correctly identified the signature of Dr. Dhirender Pratap Singh at point B of the said MLC and stated that the opinion given by the doctor as 'grievous' same is EXPW9/F, that MLC no. 89670 of the patient Geeta dated 29.07.2007 is shown to the witness and witness correctly identified the signature of Dr. Praveen at point B of the said MLC and stated that the opinion given by the doctor as 'grievous' same is Ex. PW9/G. FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.12 of 21
29. PW-10 is HC Rajinder, who deposed that on 29.07.2007, he was posted at PS Timarpur, as constable, that on that day, he joined the investigation along with the IO and reached at the spot i.e. on Ring Road between Wazirabad and Gopalpur, where one truck bearing registration no. HP- 19B-4929 and one eicher tempo bearing registration DL-1LG-6044 was found, that the front portion of the tempo was damaged and rear portion of truck was damaged, that the injured was already taken to hospital by the PCR, that IO left him at the spot and he went to the hospital, that he remained at the spot, that after sometime, IO returned to the spot and handed over the rukka, that he went to the PS and handed over the same to the DO, that after sometime DO handed over him copy of FIR and original rukka with direction to hand over the same to IO/ASI Rajinder, that he return to the spot and handed over the same to the IO for further investigation, that IO seized the offending truck vide seizure memo Ex. PW-3/B and tempo vide seizure memo Ex. PW-3/C, that IO seized the RC and insurance of eicher tempo vide seizure memo Ex. PW-10/A and also the DL, RC and insurance of truck vide memo Ex. PW-10/B, that he along with the IO return to the PS and the case property was deposited in the malkhana, that IO arrested the accused vide arrest memo Ex. PW- 3/D and conducted personal search vide memo Ex. PW-3/E. Thereafter, witness was shown the photographs, that witness correctly identified the same belonging to Eicher Tempo and the truck seized by the IO, that photographs is Ex. P-1 (colly).
30. In the cross examination, PW-10 deposed that they reached at the spot at about 4:30 am on the motorcycle of the IO, that IO return at the spot from the hospital at about 9:00 am. He admitted that public persons had already gathered at the spot when they reached at the spot, that IO inquired from the public persons to join the investigation but none agreed to become the witness and left the place without disclosing their name and addresses. He further deposed that no legal notice was served upon FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.13 of 21 the witnesses who refused to join the investigation, that he do not remember who was present at the time of arrest of accused, that IO recorded his statement only once at the spot, that IO had not got the signature of any public witness on the seizure memos or on arrest memo in his presence. He denied that he had not joined the investigation along with the IO and never visited to the spot and nothing was seized in his presence and the accused was also not arrested in his presence, that accused has been falsely implicated in the present case, that all the proceedings were carried out in the PS, that he is deposing falsely.
31. It is pertinent to mention here that one injured namely Desh Raj was dropped from the list of witnesses vide order dated 27.08.2019 passed by Ld. Predecessor 'being unserved'.
32. It is also pertinent to mention here that ASI Rajender was also dropped from the list of witnesses due to medical reasons vide order dated 18.02.2020.
33. Thereafter, PE was closed and matter was fixed for SA.
THE STATEMENT OF THE ACCUSED PERSON UNDER SECTION 313 Cr.P.C/DEFENCE OF THE ACCUSED.
34. Statement of the accused Santosh Kumar under Section 313 Cr.PC was recorded vide order dated 26.02.2020 by putting entire incriminating evidence to the accused. He denied the allegations against him and stated that he has been falsely implicated in the present case. Accused chose not to lead DE, accordingly, Defence evidence was closed and matter was fixed for final arguments.
35. Final argument heard on behalf of defence counsel as well as State and FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.14 of 21 record perused.
APPRECIATION OF FACTS/CONTENTIONS/ANALYSIS AND FINDINGS:
36. Perusal of the record reveals that accused Santosh was charged with the offence under Section 279/337/338 IPC.
37. Section 279 IPC stipulates that:-
"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".
38. Section 337 IPC stipulates that:-
"Causing hurt by act endangering life or personal safety of others- whoever causes 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 imprisonment of either description for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both".
39. Section 338 stipulates that:-
"Causing grievous hurt by act FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.15 of 21 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 imprisonment 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.
40. 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:-
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.
41. These words i.e. "Rash" and "Negligent" have not been defined in the Indian Penal Code. However, as per Blacks Law Dictionary, 8th Edition the word 'Negligent' is characterized by the persons failure to exercise the degree of care that someone of ordinary prudence would have exercise in the same circumstances.
42. The Oxford Advanced Learner's Dictionary, 6th addition defined 'Rash' as doing something that may not be sensible without first thinking about the possible result.
43. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.16 of 21 caused. Therefore, to incur criminal liability the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual.
44. 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 questions as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be a sufficient considering all the circumstances of the case.
45. It is the case of the prosecution that on 29.07.2007, at about 4:30 am, at Outer Ring Road, near Village Gopal pur, on the road towards Burari, Delhi, accused was found driving eicher tempo bearing no. DL-1LG-6044 in a manner so rash or negligent so as to endanger human life and personal safety of others. It is further alleged that while driving the aforesaid tempo in aforesaid manner he struck against one stationery truck and caused simple injuries to passengers namely Sanjeev Chaudhary and Ram Avtar and caused grievous injuries to Rishabh, conductor Desh Raj, Sanjeev Kumar and Geeta and thereby committed offence under Section 279/337/338 IPC.
46. Perusal of the record reveals that one injured namely Desh Raj has not been examined in the case in hand in order to substantiate the allegations in question as he was dropped from the list of witnesses vide order dated 27.08.2019 passed by Ld. Predecessor 'being unserved'.
47. Furthermore, ASI Rajender was also dropped from the list of witnesses FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.17 of 21 due to medical reasons vide order dated 18.02.2020 and such investigation of the case in hand is also not proved in accordance with law.
48. PW-3 is Sanjeev Chaudhary, who deposed that the driver of offending truck was driving it at a high speed in rash and negligent manner and hit one vehicle lying at the side of the road due to which victims suffered injury, however, it is in contradiction with the testimony of PW-6 who categorically deposed in his cross examination that accident occurred because accused was feeling sleepy while driving. Both the PWs have given different reasons for happening of accident and thereby contradicted testimony of each other regarding cause of accident.
49. Furthermore, PW-3 Sanjeev Chaudhary categorically deposed in his cross examination that he was sitting at the back side of the vehicle with his luggage and offending vehicle was being driven at a very high speed of around 100 kilometer per hour and hit the other vehicle stationed on the road. It is pertinent to note that admittedly he was sitting at the back side of the vehicle with luggage and PW-7 another victim Sanjeev Kumar categorically admitted in his cross examination that in the photographs it is shown that rear portion of the aforesaid tempo was covered by tirpal and due to this reasons persons sitting in the rear side cannot see the scene which is ahead of tempo, thereby giving an inference that there is no occasion for PW-3 to see the exact speed of the offending vehicle as well as the accident happening as he was admittedly sitting at the back side of the vehicle which is covered with tirpal. In view of testimony of PW-7 it is clear that testimony of PW-3 Sanjeev Chaudhary cannot be relied upon to establish the guilt of the accused beyond reasonable doubt as he has not seen the incident happening because he was sitting at the rear side of the vehicle.
FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.18 of 21
50. PW-4 is another injured Geeta, who categorically deposed in her testimony that alleged incident took place when she as well as her son were sleeping inside the cabin and she only heard that the alleged accident had taken place at Wazirabad. She further deposed that she cannot say about the speed of the truck at the time of alleged accident as she was sleeping. It is pertinent to note that in the re-examination by Ld. APP for the State also PW-4 Geeta categorically deposed that at the time of accident she was sleeping, thereby giving an inference that she has not seen the accident happening in front of her eyes and thereby she also failed to impute any kind of rash and negligent act on the part of the accused in driving the offending vehicle.
51. PW-5 is another victim Ram Avtar, who also deposed in his cross examination that he do not remember the time of accident and at the time of accident he was sleeping. He further admitted in the cross examination that since he was sleeping, he cannot tell how the said accident happened. By way of aforesaid testimony he also failed to prove the guilt of the accused beyond reasonable doubt.
52. PW-6 is another injured Pawan Kumar, who deposed that accident occurred because accused was feeling sleepy while driving thereby contradicting testimony of PW-3 who deposed that accident happened as accused was driving it at high speed. Considering aforesaid material contradiction testimony of PW-6 cannot be relied upon to establish the guilt of the accused.
53. PW-6 further denied in his cross examination that accused was driving the vehicle in rash and negligent manner and he admitted that he has not seen the accused whether he was feeling sleepy at the time of accident. By way of aforesaid testimony he denied the case of prosecution in toto as well as contradicted his own examination in chief regarding cause of FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.19 of 21 happening of accident.
54. PW-7 is another victim Sanjeev Kumar, who categorically deposed in his cross examination that he cannot tell due to whose mistake the aforesaid accident took place as he was sitting in the rear portion of the tempo which is covered with tripal and due to this reason he cannot see the scene, thereby he also failed to impute any kind of rashness and negligence on the part of the accused in driving the offending vehicle.
55. Other witnesses are formal in nature who were not present at the spot when accident happened and accordingly cannot prove the guilt of the accused beyond reasonable doubt.
56. Therefore, in view of the aforesaid facts and circumstances, appreciation of evidence, material contradiction in the testimony of prosecution witnesses, witnesses failed to impute any kind rashness and negligence on the part of the accused, non examination of two key witnesses namely Desh Raj and ASI Rajender prosecution has failed to establish its case against the accused Santosh beyond reasonable doubt and accordingly benefit of doubt goes to the credit of the accused and accused Santosh stands acquitted of the offences under Section 279/337/338 IPC accordingly.
57. Necessary BB with surety along with latest passport size photograph and residence proof furnished in compliance of Section 437 A CrPC. Same is accepted for a period of six months from today.
58. File be consigned to the record room after due compliance.
59. Issue notice to injured to appear before DLSA, Central on 12.03.2020 for the purpose of compensation as per mandate of judgment FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.20 of 21 passed by Hon'ble High Court in Satya Prakash's Vs. State : 203 (2013) DLT 652.
60. Ahlmad is directed to send the ordersheet/proceedings to DLSA (Central) complete in all respect for necessary compliance for 12.03.2020 Digitally signed SHILPI by SHILPI JAIN Date:
Pronounced and Signed in the Open Court on 04.03.2020 JAIN 2020.03.06 17:03:19 +0530 (Shilpi Jain) MM-02(Central)/THC/Delhi 04.03.2020 FIR No. 432/07 PS Timarpur State Vs. Santosh Kumar Page No.21 of 21