Delhi District Court
State vs . Param Hans on 23 April, 2012
IN THE COURT OF SHRI PRASHANT SHARMA,
METROPOLITAN MAGISTRATE 06,
SAKET COURTS, NEW DELHI.
Serial No. : 414/02 dated 28.4.04
Unique Identification No. 02406R0993142004
State Vs. Param Hans
FIR No. 726/99
P. S. R.K.Puram
U/s 279/338 IPC
JUDGMENT:
1.Srl. No. of the case & Date of institution 414/02 and 11.8.2000
2.Date of commission of offence 21.9.99
3.Name of the complainant SI Dalip Kumar, PS R K Puram, New Delhi.
4.Name of the accused Param Hans, S/o Asha Ram R/o 6/13, Mohan Garden, Piple wala Road, New Delhi.
5.Nature of offence complained of 279/338 IPC
6.Plea of the accused person Accused pleaded guilty
7. Date reserved for order 23.4.2012
8.Final Order Acquitted
9.Date of such order 23.4.2012 Date of Institution : 31.5.2001 Date of order reserved : 9.4.2012 Date of pronouncement : 23.4.2012 BRIEF FACTS OF THE CASE:
1. Investigating officer, should investigate a matter, not superficially rather must go deep inside the prima facie facts. He must not forget the legal provisions of the Indian Penal Code. In this case, investigating officer, not only investigated the matter lightly rather had little regard about the offences in question.
2. Police machinery, came into action, when DD no.40B, was received on 21.9.99, at PS R K Puram. It was reported, that 45 persons had sustained injuries, as a FIR No.726/99 P. S. R K Puram Page No. 1 of 8 result of an accident. On receiving, the said DD entry, SI Dalip Kumar, went to the site of accident, with Ct. Saabu. There two vehicles, bearing no. HR 38 4187 and TSR bearing no. DL 1RC 2110, were found in accidental condition. No eye witness was found. During inquiry, it was found that injured persons were shifted to SJ hospital. After leaving Ct. Saabu at the spot, SI Dalip Kumar (herein after IO concerned) went to the hospital, where he found injured Gopal Jee, Subhash and Param Hans (viz. Accused in question). Doctor concerned told the SI that the two injured namely Subash and Gopal Jee had left the hospital. Subsequently, IO reached the site of accident and found conductor of the bus in question, Deen Mohammad and driver Ishmail. That the said driver and conductor had heard a noise of striking their bus and came to know that their bus was hit from the back by the offending vehicle. That they went to their department, for informing it about the accident in question and also came to know three persons were injured in the said accident. Subsequently, IO recorded their statements, made the rukka, got the FIR registered through Ct.
Saabu, prepared the site plan, seized the vehicle in question, got the TIP conducted, collected the MLC of injured in question and prepared the challan, which he subsequently filed.
3. Accused was given notice for commission of offences punishable U/S 279/338 IPC, for the fact that on 21.9.99 at about 12.30pm at Red light Hyatt Ring Road New Delhi within the jurisdiction of P.S. R.K.Puram he was driving his vehicle No. HR 38 4187 rashly and negligently and by so driving, he caused grevious injuries to injured person Gopal Jee S/o Sh. Keshav Dev.
4. Police registered the FIR in this case on the basis of complaint made by the complainant. Investigation was carried out and charge sheet was filed against accused under the offences with which accused has been charged.
5. After finding prima facie case against the accused, summons were issued against the accused by the court. Subsequently, charge was framed to which accused pleaded not guilty and claim trial and case was subsequently fixed for PE.
FIR No.726/99 P. S. R K Puram Page No. 2 of 86. In order to prove its case the prosecution has examined five witnesses. PW 1 SI Mahak Singh had deposed that he had registered the FIR Ex.PW1/A. PW 2 Mohammad Ishmail had deposed that his TSR was being hit by the vehicle of accused on the relevant date time and place in question, from the back. PW 3 Ct. Saahu had deposed that on 21.10.99 he was posted at P.S. R.K.Puram and on receiving of DD No. 40B, he alongwith the SI Dalip Kumar reached at the spot, where IO gave him a rukka for registration of FIR. After taking the rukka he went to P.S. and returned back with the copy of FIR. He joined the investigation and documents Ex. PW3/B and EX.P1/P2 were prepared in his presence. PW 4 ( Inadvertently referred as PW3) Insp. Dalip Kumar, was the IO in this case. He depose that on receiving no. the DD entry in question went to the site of accident, with Ct. Saabu. There two vehicles, bearing no. HR 38 4187 and TSR bearing no. DL 1RC 2110, were found in accidental condition. No eye witness was found. During inquiry, it was found that injured persons were shifted to SJ hospital. After leaving Ct. Saabu at the spot, SI Dalip Kumar (herein after IO concerned) went to the hospital, where he found injured Gopal Jee, Subhash and Param Hans (viz. Accused in question). Doctor concerned had told him that the two injured namely Subash and Gopal Jee had left the hospital. Subsequently, he reached the site of accident and found conductor of the bus in question, Deen Mohammad and driver Ishmail. That the said driver and conductor had heard a noise of striking their bus and came to know that their bus was hit from the back by the offending vehicle. That they went to their department, for informing it about the accident in question and also came to know three persons were injured in the said accident. Subsequently, he recorded their statements, made the rukka Ex.PW4/A, got the FIR registered through Ct. Saabu, prepared the site plan Ex.Px.PW4/B, seized the vehicles in question vide Ex. PW3/B and C, got the mechanical inspection conducted vide Ex. PW4/C, got the collected TIP conducted, prepared the memos Ex. PW4/D to PW4/F, collected the MLC of injured in question and prepared the challan, which he subsequently filed. PW5 (inadvertently marked as PW4 ) proved the duty slip Ex. PW4/A. PW6 (inadvertently marked as PW5 ) HC Anil Kumar deposed that in his presence document Ex. PW4/F was prepared by the IO.
FIR No.726/99 P. S. R K Puram Page No. 3 of 87. Accused admitted the FIR, Ex.A1, mechanical inspection report, Ex. A2, statement of office inspector of Haryana bus depot Ex. A3, MLC Ex.A4, Xray report Ex. A5 u/s 294 Cr.PC, read with 313(1)(a) Cr.PC and 281 Cr.PC. Subsequently PE was closed.
8. Statement of accused u/s 313 Cr.PC read with 281 Cr.PC was recorded in which accused refuted all the incriminating evidence put to him. He did not want to lead defence evidence and therefore, matter was fixed for judgment after final arguments were heard.
9. The only issue, before the court, was whether accused, was rash and negligent, in terms of his duty or not? If he was, then, whether the rash and negligent act of accused, was within the ambit of criminal rashness and negligence, in terms of section 279/338 IPC.
10.To do the aforesaid appreciation of rashness and negligence, It would be pertinent to bear in mind what is meant by 'rash negligent act'. The Apex Court in Prabhakaran Vs. State of Kerala [AIR 2007 SC 2376], observed thus:
"7... "Rashness" consists in hazarding a 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 indifference 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 charges has arisen it was the imperative duty of the accused person to have adopted".
The distinction has been aptly pointed out by Holloway J. in these words:
FIR No.726/99 P. S. R K Puram Page No. 4 of 8"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences, may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but In circumstances which show that th actor has to exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The immutability arises from the negligence of the civic duty of circumspection." (SCC In re: Nidamorti Nagabhusanam 7 Mad. H.C.R. 119)".
11. As per the contents of the charge sheet, accused was himself, victim of accident in question of as he had also sustained injuries, which were simple in nature. Normally nobody wants to sustain injury, by committing accident. In this case, accident had occurred, but there remained, wide open area, with regard to the aspect, as to how and why the said accident had occurred?
12. PW2 Mohd. Ishmail, was the alleged eye witness to the occurrence. He only had deposed that his TSR vehicle was hit by the offending vehicle from the back, when the said TSR was standing at the red light. Now, certain questions of probative value, though should have been explained by this witness, remained unanswered. Some of them were whether offending bus had some mechanical problem, which made it impossible to stop, at the red light? Whether the accused driving the offending vehicle, did not take precautions to see that the said TSR was standing at the spot? Whether it was a genuine or intentional over sight, on the part of the accused in question? In the absence of answers to aforesaid questions, I failed to find, as to how accused was rash and negligent in his driving. More so, where the probability, that it was a mistake simply, only amounting to negligence and not amounting to FIR No.726/99 P. S. R K Puram Page No. 5 of 8 criminal negligence, cannot be ruled out. Thus, testimony of PW2 was of no relevance to the prosecution.
13. Apart from PW2, it was the IO PW4 Insp. Dalip Kumar, who could have shouldered the responsibility of proving the case of the prosecution, in a significant way. But he also failed to do so. Reasons being, that he did not investigate the matter, as to how accused was rash and negligent in driving? He did not investigate the matter by examining the injured persons in question, apart from accused, who were the best persons, to tell the exact manner in which accident in question had occurred. Further, he did not show the presence of red light at the site of accident, by way of site plan, Ex PW4/C, so that the testimony of PW2 Mohd. Ishmail, could be believed, to some extent. He did not explain, as to why he did not mention the fact that the mechanical inspector was called by him from Haryana, in his charge sheet. It was strange and significant lapse on the part of IO, as mechanical inspectors were available in Delhi also. So what prompted the IO to call mechanical inspector from Haryana, remained a grey area. Hence, testimony of the IO was of no relevance for the prosecution.
14. The net result was that IO did not do the investigation diligently, resulting in protracted trial of accused. Apart from aforesaid witnesses, rest of the witnesses, needed no appreciation, as their evidence, in the absence of evidence of the witnesses, condemned above, loose their sanctity.
15.Prosecution therefore, failed to discharge its initial onus of proving its case beyond reasonable doubt.
16. Before coming to the conclusion, I must appreciate here the probable defence of the accused, which was that prosecution witnesses were interested witnesses. The said defence seemed probable and I believe it. Further, the probability, raised by the accused, that his FIR No.726/99 P. S. R K Puram Page No. 6 of 8 signatures were taken on blank papers, cannot be ruled out, if seen in the light of afore mention appreciation of evidence.
17. Keeping in mind the discussion made above, I find that prosecution failed to prove its case beyond reasonable doubt for the offence punishable U/s 279/338 IPC. Accordingly, accused Bala Subramanyam is acquitted for the commission of the offences punishable U/s 279/338 IPC. Previous bail bond will remain on record till expiry of six months from now as per section 437A Cr. P.C. This is done as accused persons did not furnish fresh bail bond. File be consigned to record room after necessary compliance.
Announced in open court ( PRASHANT SHARMA )
today i.e.23.4.2012 M.M.06, Saket Courts, New Delhi.
FIR No.726/99
P. S. R K Puram Page No. 7 of 8
State Vs. Param Hans
FIR No. 726/99
P. S. R.K.Puram
U/s 279/338 IPC
23.4.2012
Present : Ld. APP for State.
Accused is present in person.
Vide my separate judgment of even date accused is acquitted for the commission of offence U/s 279/304A IPC. Previous bail bond will remain on record till expiry of six months from now as per section 437A Cr. P.C. This is done as accused persons did not furnish fresh bail bond. File be consigned to record room after necessary compliance.
( PRASHANT SHARMA ) M.M.6, Saket Courts, New Delhi 23.4.2012 FIR No.726/99 P. S. R K Puram Page No. 8 of 8