Delhi District Court
State vs . Uttam on 27 January, 2012
9
IN THE COURT OF MS. NAVITA KUMARI BAGHA: MM, NEW DELHI
STATE VS. UTTAM
FIR NO. : 423/97
P.S. : Tilak Marg
U/Sec. : 279/304A IPC
JUDGMENT :
1. Srl. No. of the case & Date of institution : 667/2 & 05.12.1998
2. Date of commission of offence : 14.07.1997
3. Name of the complainant : State through Sh. Parkash
4. Name of the accused : Uttam S/o Sh. Mohan Vir R/o House No. 929, Sector 37, NOIDA, U.P.
5. Nature of offence complained of : U/Sec.279/304A IPC
6. Plea of the accused person : Accused pleaded not guilty
7. Final Order : Acquitted
8. Date of such order : 27.01.2012 BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. In brief the accused Uttam is facing trial for offences punishable U/Sec.279/304A IPC on the allegations that on 14.07.1997 at about 08.20 a.m. at Ring Road in front of Jhuggi Nangla Machi, the accused was driving Bus bearing No. DL1P2932 in a rash and negligent manner so as to endanger human life and personal safety of State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9 others and while so driving, he hit against a stationary bus bearing No. DL1P5513 and caused death of conductor of that bus namely Mahender and thus committed the offences U/Sec.279/304A IPC.
2. After completion of investigation, chargesheet was filed. After supplying the copies to the accused U/Sec.207 Cr.P.C., a notice U/Sec.251 Cr.P.C was served upon the accused on 08.11.2001 for the offences punishable U/Sec.279/304A IPC to which he pleaded not guilty and claimed trial.
3. The prosecution had cited 12 witnesses, out of which only 6 witnesses were examined by the prosecution.
4. Statement of accused was recorded U/Sec.313 Cr.P.C. on 29.07.08 in which he denied the case of the prosecution and pleaded innocence. He said that he had been falsely implicated in this case and that he was not driving the bus as it was being driven by Jaswant Singh, son of the owner of the bus. Though he opted for leading evidence in his defence but despite grant of opportunity for the same he did not lead any evidence and his DE was closed by the Ld. Predecessor Court vide order dated 10.09.2008.
5. I have heard the final arguments from Ld. APP Sh. Naresh Kumar Verma and Ld. defence counsel Sh. Udhai Raj Singh and perused the entire record.
6. Let us first examine the evidence led by the prosecution. The first witness of the prosecution i.e. PW1 is Dr. Bhim Singh, who deposed that the postmortem of deceased Mahender Singh S/o Sh. Puran Singh was conducted by Dr. A.P. Singh, State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9 who had left the services of the hospital and that his whereabouts were not known but he could identify his signature and handwriting. Accordingly, he identified the signature of Dr. A.P. Singh at point A on the postmortem report Ex.PW1/A.
7. PW2 is H. Ct. Kuldeep Singh, who deposed that on 14.07.1997, he was posted at P.S. Tilak Marg from 09.00 a.m. to 05.00 p.m. and at about 10.30 a.m., he registered the FIR No. 423/97 U/Sec.279/304A IPC i.e. Ex.PW2/A on the basis of the rukka sent by I.O./S.I. Sipattar Singh through Ct. Lalit Narayan.
8. PW3 is S.I. Bhaskar Sharma, who deposed that on 13.09.1997, the further investigation of the present case was assigned to him and on 13.10.1997 he returned the same to the SHO as the challan was complete.
9. PW4 is Ct. Shiv Kumar, who deposed that on 15.07.1997, he was posted at P.S. Tilak Marg and on the said date he joined the investigation of the present case alongwith I.O./S.I. Sipattar Singh and reached at LNJP Hospital, Delhi Gate alongwith I.O. He further deposed that after the postmortem of the dead body of the deceased, same was handed over to his relatives.
10. PW5 is Sardul Singh, who deposed that on 15.07.1997, he identified the dead body of his Nephew namely Mahender Singh at LNJP Hospital, Delhi Gate and his statement was recorded by the I.O. in this regard. He further deposed that after the postmortem the dead body was handed over to them vide memo Ex.PW5/A bearing his signatures at point A.
11. PW6 is Krishan Pal, who deposed that on 14.07.1997, he was working as driver on State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9 bus bearing no. DL1P5513 and was going towards ISBT Kashmiri Gate via Ring Road from Village Jaitpur and at about 08.00 a.m., when they reached Ring Road in front of Nangla Machi, the bus broke down and he parked it by the side of the road. He further deposed that he alongwith helper namely Prakash was shifting the passengers to other buses and in the meantime, one bus bearing number DL1P2932 came from the side of Sarai Kale Khan in a rash and negligent manner and in a fast speed and hit his bus from behind, as a result of which the conductor of the bus namely Mahender Singh came under the offending bus and sustained injuries on his hands and legs, who was declared dead when taken to the hospital at Delhi Gate. He further deposed that police recorded his statement and took possession of both the buses vide seizure memos Ex.PW3/B and Ex.PW3/C. He further deposed that police registered a case on the statement of Prakash who had expired. But he deposed that he could identify the signature and handwriting of Prakash. He identified the signatures of Pakash at point A on his statement Ex.PW6/A. He further deposed that accident had taken place due to rash and negligent driving of accused who had hit his stationary bus from behind. In his crossexamination, he admitted that Mahender Singh was repairing the bus and was under the bus, however, he denied the suggestion of the defence Counsel that Mahender suddenly came out from the right side of the stationary bus. He voluntarily said that he had come out from the bus from behind. He denied the suggestion that he was not present at the spot and therefore, could not tell how the accident had taken place. He also denied the suggestion that the accused was not driving the vehicle at the time of accident. However, he admitted that the passengers of his bus had already left the spot before the accident. State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9
12. Ld. APP has argued that the prosecution has proved the case against the accused and he be punished U/Sec.279/304A IPC. But the counsel for the accused has argued that the prosecution has remained unsuccessful to prove the case beyond reasonable doubt as neither it has been proved by the prosecution that the accident had occurred due to the rash or negligent driving of the accused nor that the death was caused due to the rash or negligent act of the accused.
13. Now, let us see the relevant provisions of law under which the accused has been booked and tried for.
Sec.279 IPC - 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. Sec.304A IPC 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.
14. Rash or negligent act referred to in Sec.304A means an act which is immediate cause of death and not an act or omission which can at best be said to be a remote cause of death. This section is correlative with Ss.279 and 338 IPC. Sec.279 applies State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9 to the driving of any vehicle, or riding, on public way in a manner so rash or negligent as to endanger human life or to be likely to hurt or injure any person where no hurt has actually been caused. Sec.338 applies to a case where grievous hurt has been caused to any person by an act being done so rashly or negligently as to endanger human life or the personal safety of others. Sec.338 is more general than Sec.279 and embraces not only the act of driving or riding but all acts which endanger human life or personal safety. Sec.304A while being as general as Sec. 338 is restricted to cases where death has been caused. The requirements of Sec. 304A are that there must be a direct nexus between death of a person and rash or negligent act of the accused. A remote nexus is not enough. For the purpose of criminal law there are degrees of negligence and a very high degree of negligence is required to be proved before a charge can be sustained under this section. Mere negligence is not enough to bring a case within the ambit and scope of this section. Negligence or rashness proved by evidence must be such as should carry with it a criminal liability. Criminal rashness is hazarding a dangerous act with the knowledge that it is so and that it may cause an injury. There is a breach of positive duty. It is clear from the above said provisions that in order to prove offences punishable U/Sec.279/304A IPC there must be rash or negligent driving by the accused and the death must have been caused by the rash or negligent act of the accused. In the present case the prosecution was required to prove that the accused was driving the bus bearing registration No. DL1P2932 in such a rash or negligent manner that he hit the stationary bus bearing registration no. DL1P5513 and caused death of Mahender. The prosecution was required to prove that the said death was caused as a result of rash or negligent driving of the accused. State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9
15. It is well settled law that the rashness or negligence cannot be presumed against the driver. The prosecution must prove the rash or negligent driving of the accused as well as the direct nexus between the death of deceased and rash or negligent driving of the accused for holding him guilty U/Sec.279/304A IPC. The PW6 has deposed that the offending bus was at a very fast speed. But he could not tell about the exact speed of the offending bus. He has simply stated that the bus was at a very fast speed. The manner of driving of the accused has not been explained by him as to how he was rash or negligent in his driving. It is settled law that mere fast speed in itself is not the conclusive proof of the guilt of accused. It has been held in Tukaram Sitaram Gore Vs. State, 1971 Cri.L.J. 767 that the high speed of the motor vehicle does not by itself prove rashness or negligence of the driver. It has been further held that there can be no presumption of negligence from the mere fact that a man is knocked down and killed by the motorist. There must be evidence of rashness or negligence. The prosecution has to prove the guilt of the accused beyond reasonable doubt. It is the prosecution which has to prove the case beyond reasonable doubt and the burden of proof cannot be shifted to the accused. There can be no burden on an accused to prove that he was not driving the vehicle in a rash or negligent manner. It is for the prosecution to establish the guilt of an accused beyond reasonable doubt and the ingredients necessary to show that a particular offence was committed must be made out by the evidence adduced in prosecution. There is no initial burden on the accused to prove his innocence. Certainly there is no presumption that a man drove a lorry in a rash or negligent manner, merely because there was an accident as there could be many more reasons of the accident. Sec.304A IPC is no exception to the general principle that the innocence of a person has to be assumed till guilt is established. In the present case the State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9 prosecution has examined only one eyewitness i.e. PW6 Krishan Pal (driver of the stationary bus DL1P5513). All other witnesses are the witnesses of investigation. The PW6 stated in his examinationinchief that he alongwith his helper Prakash was shifting the passengers of his bus to other buses at the time when the offending bus hit his stationary bus. But in his crossexamination he said that all the passengers of his bus had already left the spot before the accident. Thus there is contradiction in his own statement. If he was busy in shifting the passengers to other bus at the relevant time then how he could have witnessed the accident ! He has stated in his crossexamination that the deceased Mahender, conductor of his bus, was under the bus and was repairing it. The case of the accused is that Mahender had suddenly come out from the right side of the stationary bus and accident occurred as the driver could not anticipate his sudden appearance from beneath the bus. The PW6 has said that the deceased had come out from beneath the bus from behind but the case of the accused is that he had suddenly come out from beneath the bus from the right side of the bus and thus suddenly came in the centre of the road which the driver could not anticipate. The only eyewitness i.e. PW6 has remained unsuccessful in explaining as to how exactly the accident had occurred as his own exact position on the spot is not proved. The site plan was not prepared at his instance. The prosecution has neither proved the site plan nor the mechanical inspection reports of the buses from which the inference could have been drawn about the positioning of the two buses. The rash or negligent driving must be proved by leading cogent evidence. General evidence is not sufficient to hold accused guilty. Since there is no cogent evidence about the rash or negligent driving of the accused, so he could not be held guilty for the accident or the death. State Vs. Uttam FIR No.423/97 P.S. Tilak Marg 9
16. Hence it is clear from the material on record that the prosecution has failed to prove beyond reasonable doubt that the accused had hit the bus bearing No. DL1P5513 and caused death of Mahender by his rash or negligent act. Hence he is acquitted for the offence punishable U/Sec.279/304A IPC. His Bail Bond is cancelled. His surety is discharged. Endorsement on the documents of the surety, if any, be cancelled.
17. File be consigned to Record Room.
(Announced in open
Court on 27.01.2012) (Navita Kumari)
MM, New Delhi.
State Vs. Uttam
FIR No.423/97
P.S. Tilak Marg
9
FIR No. 423/97
U/Sec. 279/304A IPC
P.S. Tilak Marg
27.01.2012
Present : APP for state.
Accused in person.
Vide separate judgment accused is acquitted for the offences punishable U/Sec. 279/304A IPC. Fresh bail bond of accused furnished as per Sec.437A Cr.P.C. and the same is accepted. It will remain in force till six months from today. File be consigned to Record Room.
(Navita Kumari) MM/ND/27.01.12 State Vs. Uttam FIR No.423/97 P.S. Tilak Marg