Delhi District Court
State vs . Brahma Nand on 17 December, 2012
1 FIR No:530/2003
State Vs. Brahma Nand
IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI
FIR NO: 530/2003
PS: Dabri
U/s: 279/304A IPC
State V. Brahma Nand
Date of institution of the case : 22/11/2003
Date on which Judgment was reserved : Not Reserved
JUDGMENT
a) S. No. of the case : 395/2
b) Date of commission of offence : 29.07.2003
c) Name of the Complainant : Smt. Asgari
W/o Late Sh. Gulsher Ali
R/o Village Patak Pur, PS:
Bahjoi, Distt.Muradabad,
UP At Present:
C/o Bharat Singh
R/o D4445, Vill. Mangla
Puri, New Delhi.
2 FIR No:530/2003
State Vs. Brahma Nand
d) Name of accused and address : Brahma Nand
S/o Sh. Talewar
R/o Village Ganesh Pura,
PS: Kurawli Distt. Mainpuri
U.P.
e) Offence complained of : u/s 279/304A IPC
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 17.12.2012
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. The present case was registered at the complaint of complainant Smt. Asgari in which she alleged that on 29.07.2003 her grandson Saddam Ali was playing outside her house at D 4445, Village Mangla Puri, Delhi. She was sitting near the door. During playing chappal of her grandson was left in the gali and at about 4:00 pm she 3 FIR No:530/2003 State Vs. Brahma Nand picked her grandson in her lap and picking up his chappal. At that time from the said of Mangla Puri DESU office, a Tata 407 Tempo came at a very high speed. She perplexed and her grandson fell down from her lap and she fell down towards the door of the house. The front wheel of tempo ran over the head of her grandson. She and neighbourers raised alarm and driver of the tempo ran away leaving behind the tempo bearing number DL 1LE 3402. At her complaint the present case was registered and after completion of investigation, charge sheet was filed against accused for the offence U/s 279/304A IPC.
2. Cognizance taken for the offence and charge for offence u/s 279/304A IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3. Prosecution has filed list of Thirteen witnesses and examined 4 FIR No:530/2003 State Vs. Brahma Nand Ten witnesses.
4. PW1 Mohd. Jalaluddin stated that he do not recollect the date and month, however the year was 2003. He went to the house of his brother at Mangla Puri afternoon. The son of his brother Shamsher aged about 3 years was getting down in the gali along with his Grandmother. The boy was crushed under the wheel of tempo driven by the accused. He further stated that he do not remember if the police obtained his signatures on the papers nor he recollect that if anything was seized by the police. Police had made inquiry from him about the accident. He explained to them and his statement was recorded accordingly.
5. PW2 Shamsher Ali stated that on 30.07.2003 he identified the dead body of his son Saddam. His identification statement is Ex.PW2/A. 5 FIR No:530/2003 State Vs. Brahma Nand
6. PW3 Smt. Shabnam stated that the accident took place in 2003 she was living in Mangla Puri along with her motherinlaw, her husband and brotherinlaw (devar). Her son Saddam Hussain who was one and half years old. Her motherinlaw was with her child who was in her lap. She was cooking something inside. Her child was playing outside. She happen to see the accident, as the tempo ran over the head of her one and half year old child. She fell unconscious having seen the blood and dead body of her son. The offending vehicle was big vehicle, which is generally used for transport of material and it has a open space on the rear side. The driver ran away from the spot. The witness points out towards the accused and stated that he was the driver of the offending vehicle on the date of the incident. Police came to the spot.
7. PW4 Smt. Asgari stated that she do not remember the date 6 FIR No:530/2003 State Vs. Brahma Nand of accident. However, it happened 5 years back. It was rainy season. It occurred at about 4:00 pm. On the day of accident while her grand son namely Saddam, aged about 1 ½ years was playing outside her rented house, a vehicle being used to carry fruits, being driven by the accused came there and ran over his said grandson. The accident was caused on account of rash and negligent driving of the driver. The accident occurred when she was in her room. She had sound of vehicle and came out and saw that the said vehicle being driven by the accused came there and ran over her said grandson. She became perplexed and unconscious. Her grandson died on the spot.
8. PW5 Sukhpal Singh is the registered owner of the offending vehicle. He stated that on the day of accident, accused had taken away the vehicle from his house as he was his driver. He further stated that he had signed on the reply of notice Ex.PW5/A and the vehicle was taken 7 FIR No:530/2003 State Vs. Brahma Nand into possession by the police and lateron he got released it on superdari vide memo Ex.PW5/B. He identified the photographs Ex.P1 to P6 of his vehicle.
9. PW6 ASI Sri Niwas who was the duty officer stated that on 29.07.2003 at about 5:50 PM he received rukka through Ct. Mithilesh. On the basis of the same he recorded FIR of the present case, copy of which is Ex. PW6/A.
10. PW7 Harbir is the photographer who deposed regarding the photographs Ex.P1 to P6 taken by him of the offending tempo on 29.07.2003. The negatives of the same are Ex.P7.
11. PW8 Ct. Mahipal went to the spot along with IO He stated that at the spot they found one tempo bearing No. DL 1LE 3402 and one 8 FIR No:530/2003 State Vs. Brahma Nand deadbody of child aged about 1 ½ years was lying near the tyre of the tempo. IO called the photographer at the spot for taking photographs of the place of occurrence. He took the dead body at DDU hospital mortuary. IO recorded his statement.
12. PW9 Ct. Mithlesh Pandey stated that on 29.07.2003 on receipt of DD No.26 at about 4.10 pm . he along with Ct. Mahipal and IO/ASI Dharamvir Singh reached at the spot where they found offending tempo loaded with the fruits and dead of child namely Saddam aged about 1 ½ years was lying near the left side wheel of the tempo. The body was sent to DDU hospital Mortuary through Ct. Mahipal. The grand mother of the deceased child was also present at the spot and IO recorded her statement and got the case registered through him. After the registration of FIR he came back to the spot and handed over the carbon copy of FIR and original tehrir to I.O. I.O. seized the tempo vide seizure 9 FIR No:530/2003 State Vs. Brahma Nand memo already Ex.PW1/A and also seized the sleepers of the deceased child vide seizure memo Ex.PW1/B. Thereafter, they took the tempo to PP: Mangla Puri. At about 7.10 pm the owner of the tempo Sukhpal Singh came to the chowki along with the driver/accused Brahmanand. IO arrested the accused and took his personal search vide Ex.PW1/C and Ex.PW1/E. IO seized the driving licence of the accused vide Ex.PW1/D. At about 7.30 pm eye witness Md. Jallaluddin came to the police chowki and identified the accused Brahama Nand who caused the accident and ran away from the spot. At about 8.20 pm they reached the PS: Dabri and the case property was deposited at the mlakana and the accused was locked up. IO recorded his statement.
13. PW10 Shri Sanjiv Jain, Judge/Presiding Officer MACT Court, Saket District Courts, appeared and deposed regarding the TIP proceedings of the accused conducted by him on 22.08.2003 as MM at 10 FIR No:530/2003 State Vs. Brahma Nand Patiala House Courts, New Delhi on the application of IO Ex.PW10/A. He stated that accused Brahma Nand refused to get his TIP conducted. The TIP proceedings of accused Brahma Nand is Ex.PW10/B. The application for supplying the copy of TIP proceedings to IO is Ex.PW10/C.
14. No other witness was examined by the prosecution and PE closed after giving sufficient opportunities to the prosecution. Statement of accused recorded u/s 313 Cr.P.C. in which he denied all the allegations against him and stated that he do not want to lead evidence in his defence and thereafter the matter was fixed for final arguments.
15. I have heard the arguments of both the parties. Ld. APP for the State has argued that the case is totally proved against the accused. There is sufficient evidence to establish the case of prosecution beyond reasonable 11 FIR No:530/2003 State Vs. Brahma Nand doubt and therefore accused deserve maximum punishment. Ld. Counsel for the accused stated that prosecution cannot prove any ingredients of the offence against accused. The alleged eye witness is planted one. The complainant had also given contradictory statement. The version of alleged eye witness is not reliable. No mechanical inspection of the vehicle is proved. No post mortem report is proved and I.O. of the case is also not examined. Story of the prosecution is concocted one. Accused is falsely implicated in the present case and is liable to be acquitted. I have gone through the oral and documentary evidence on record and analyzed the statement of witnesses.
16. In the present case, the allegations against the accused is that he drove the vehicle/tempo No. DL 1LE 3402 in so rash and negligent manner so as to endanger human life and personal safety of others and due to that negligent act of accused, death of child Saddam was caused. 12 FIR No:530/2003
17. The alleged offence against the accused are section 279 and 304 A IPC. 279 IPC reads as under:
" 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 Rs.1,000/, or with both"
18. And Section 304 A IPC reads as under:
"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 safely 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 13 FIR No:530/2003 State Vs. Brahma Nand to five hundred rupees, or with both".
19. Perusal of the above said provisions states that to put a case u/s 279 IPC, two ingredients must be proved by the prosecution i.e. I. Driving of a vehicle or riding on a public way, II. Such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any person.
20. Therefore, it is clear that to impose criminal liability against the accused under this section, it is necessary that the injuries suffered by the complainant should have been the direct result of a rash or negligent act of the accused, and that act must be the proximate and efficient cause without the intervention of another's negligence.
21. In the present case, the statement of the complainant Smt. 14 FIR No:530/2003 State Vs. Brahma Nand Asgari is very important for the prosecution case. Her statement must be uncontradictory and corroborative to stand the prosecution case. Perusal of her statement reveals that there are many contradictions occurred in her statement. In her complaint Ex.PW4/A, she stated that when accident was occurred, at that time she was picking her grandson in her lap to pickup his chappal from the street and when offending vehicle came there the child fell down in the street and she fell down towards the door of the house. On the other hand in her statement before the court she had not stated such facts. She neither stated regarding the leaving of chappal of her grandson in the street nor stated regarding the fact that the child was in her lap. Although minor contradictions regarding the sequence of transactions are bound to occur due to lapse of a long time but usually a person of ordinary prudence cannot forgot main fact of accident that whether at the time of accident, the deceased child was in her lap or the child was playing outside himself.
15 FIR No:530/2003
22. In her chief examination, complainant herself admitted that when the accident occurred, then she was in her room and she came outside after hearing the sound of the vehicle. She further stated that she gave signal to accused by raising her hand to stop the vehicle but he did not stop. But these facts regarding giving signal by her not stated in the complaint. In her complaint ExPW4/A, she stated that the vehicle came at very high speed but in her chief examination she admitted that she cannot tell the speed of the vehicle. In her cross examination by the Ld.APP for the State, she specifically denied the fact that the accident occurred while she was picking the child in her lap which is stated by her in Ex.PW4/A. In Ex.PW4/A, she stated that accused ran away from the spot when she along with neighbourer raised alarm but in her cross examination by Ld. Defence Counsel she stated that she cannot say if accused had ran away from the spot as she became unconscious after seeing the accident. She also could 16 FIR No:530/2003 State Vs. Brahma Nand not clarified that being an illiterate, how she told the make and number of the vehicle to the police and she stated in her cross examination by the Ld.APP that she do not know if somebody had written the number of offending vehicle or her palm. Therefore, these material contradictions make her statement doubtful. It is also held by Hon'ble Delhi High Court in Sikandar Kumar Vs. State 1998 (3)Crimes 69 that material contradictions in the statements of witnesses creates doubt in the prosecution version and it would be unsafe to place total reliance on their testimony.
23. Another important witness is PW-1 Mohd. Jalaludin who is produced by the prosecution as an eye witness. He had also produced a different version and stated that at the time of incident, the deceased child was getting down in the street from the stairs along with his grand mother. But he had not stated the number or make of vehicle in his chief examination. He only stated particulars of the vehicle when he was cross examined by Ld.APP for the State 17 FIR No:530/2003 State Vs. Brahma Nand after declaring him hostile. In his whole chief examination, he nowhere stated that at the time of accident, accused was driving the vehicle at high speed or in rash and negligent manner. The presence of rash and negligent act is sine qua non to hold the accused guilty for the offence u/s 279/304A IPC. It is also held by Hon'ble Patna High Court in Munile Sao Vs. State of Bihar (1997)3 Crimes 200 (Pat.) that in order to impose criminal liability on the accused, it must be found as a fact that collusion was entirely or mainly due to the rashness or negligence.
24. PW3 Smt. Shabnam also stated that at the time of accident she was cooking something inside and her child was playing outside. She happens to see the accident as the tempo ran over the head of her child. Therefore, she had only seen the circumstances after the accident already occurred. Therefore, she is also not a competent witness to establish the fact that the accident was occurred due to rash and negligent driving by the 18 FIR No:530/2003 State Vs. Brahma Nand accused.
25. The other witnesses i.e. Ct. Mithlesh and Ct. Mahipal are formal procedural witnesses who reached at the spot with the IO after the incident and completed the procedural formalities. PW5 who is the owner of vehicle stated that accused was driving the offending vehicle being a driver on the day of accident. PW10 proved the fact that accused refused to join the TIP proceedings.
26. As far as the fact that the accused was driving the vehicle in question at the time of accident is concerned, the collective reading of all the witnesses and evidence suggest that prosecution established this fact. The photographs of the vehicle on the spot, corroborative statements of public/eye witnesses regarding the running away of accused from the spot and his identification by them, statement of owner in this regard and refusal 19 FIR No:530/2003 State Vs. Brahma Nand of TIP by the accused are sufficient to prove this fact at the time of accident, accused was driving the offending vehicle.
27. But mere establishing the fact that accused was driving the vehicle is not itself gives rise to the presumption that the accused was driving the vehicle in rash and negligent manner. The circumstances have also shown the fact that, the vehicle was stopped at the spot and as per photograph it is also seen that the rear wheel of vehicle not crossed the place of alleged collusion and stopped before it. Therefore, the fact that the vehicle was at a extra ordinary high speed also not presumed. There is also no sufficient statements of any other witness describing the driving of the vehicle in rash and negligent manner. There is also lack of any circumstantial evidence to establish the fact of rash and negligent driving by the accused. It is also held by Supreme court of India in Mohammad Aynuddin Alias Miyan Vs. State of Andhra Pradesh 2000(3) Crimes 119 20 FIR No:530/2003 State Vs. Brahma Nand (SC) that for any motor accident negligence of driver cannot be presumed.
28. To prove the case u/s 304A IPC, it must be established that the death of deceased was the direct result of rash and negligent act of the accused.
29. The IO of the case ASI Dharamvir Singh who has completed the whole investigation also not examined. The concerned Doctor regarding the postmortem report of deceased child also not appeared before the court. The mechanical inspection report regarding the offending vehicle also not proved.
30. Therefore, after taking into consideration the facts and circumstances and statement of witnesses on record, court comes at the conclusion that the prosecution failed to establish the essential ingredients 21 FIR No:530/2003 State Vs. Brahma Nand of the offence u/s 279/304 A IPC against the accused Brahma Nand beyond reasonable doubt due to incomplete chain of evidence. Hence, the accused Brahma Nand S/o Sh. stands acquitted in the present case FIR No. 530/2003 PS: Dabri for the offence u/s 279/304 A IPC. Bail bonds of the accused shall remain in force for the period of six month starting from today in accordance with section 437A Cr.P.C as no fresh bail bond furnished by the accused. File be consigned to record room after due compliance.
Announced in the open court on this 17th day of December 2012 (Dr. JAGMINDER SINGH) This judgment contains 21 pages METROPOLITAN MAGISTRATE which bears my signatures at DWARKA COURTS/DELHI each page.
22 FIR No:530/2003
State Vs. Brahma Nand FIR NO: 530/2003 PS: Dabri U/s: 279/304A IPC State V. Brahma Nand 17/12/2012 Present: Ld. APP for the State.
Accused on bail with Ld. Counsel Sh. Munish Talwar. Written arguments filed. Final arguments heard. Vide separate judgment pronounced and dictated in the open court, accused Braha Nand is acquitted for the offence u/s 279/304A IPC. File be consigned to record room after due compliance.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI