Delhi District Court
State vs . Suresh Kumar on 20 January, 2020
IN THE COURT OF SHRI SUMEET ANAND
METROPOLITAN MAGISTRATE-07, PATIALA HOUSE COURTS
NEW DELHI DISTRICT: NEW DELHI
FIR No. : 736/1997
Cr C No. : 38835/2003
PS : Tilak Marg
U/s : 279/337 IPC
State Vs. Suresh Kumar
JUDGMENT
A Case Identification 38835/2003
Number
B Name of the Daulat Singh, S/o Late Ratan Singh
Complainant
C Name of the accused Suresh Kumar, S/o Laxman Singh,
& his parentage and R/o 185 Arravali Apartment DDA
addressNimbus Flat Kalkaji Delhi (As per
Roman No9 L Chargesheet)
R/o Village Ram Sharan Majra,
Kurukshetra, Haryanna (As per
Statement recorded U/s 313
Cr.P.C)
D Offence complained of 279/337 IPC
E Date of commission of 15.11.1997
offence
F Date of Institution 29.04.1998
G Offence Charged 279/337 IPC
H Plea of accused Pleaded not guilty
I Order Reserved on 15.01.2020
J Date of 20.01.2020
Pronouncement
FIR No.736/1997 State. Vs. Suresh Kumar Page 1 of 17
K Final Order Acquittal for offences under
section 279 and 337 IPC;
Conviction for offence under
section 174-A IPC
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE
1. Prosecution alleges that on 15.11.1997 at about 04:15 PM at 'W' Point Tilak Marg the accused Suresh was driving the offending vehicle, bearing registration No. DL 1P 7188 (Bus) in a rash and negligent manner so as to endanger human life and personal safety of others and as a result of such driving, at the above mentioned place and at the abovementioned time, he took a sharp turn due to which the passenger / victim / injured namely Sok Devi fell down from the bus and sustained injuries, thereby the accused Suresh committed an offence punishable under section(s) 279 and 337 of the Indian Penal Code, 1860 (hereinafter IPC).
2. The case was registered on the statement of complainant (PW-2) Daulat Singh. His written complaint EX PW 2/A, based on which the FIR was registered is on record. During the course of the investigation PW-8 (HC Hari Kishan) an eye witness of the incident, joined the investigation. His statement was also recorded. Upon completion of the investigation, final report in the form of charge sheet under section 173(2) Cr.P.C. for the offences under section 279 and 337 IPC was forwarded to the Court against the accused Suresh Kumar for trial.
3. After taking cognizance of the offence by the court, accused Suresh Kumar was summoned. Pursuant to his appearance, in compliance FIR No.736/1997 State. Vs. Suresh Kumar Page 2 of 17 of section 207 Cr.P.C copy of chargesheet was supplied to him. Subsequently after hearing the state and the defence and after perusal of the judicial file, prima facie case against the accused for the offence punishable under section 279 and 337 IPC was found to be made out. Accordingly, notice of accusation under section 251 Cr.P.C was served upon the accused, to which he pleaded not guilty and claimed trial. Accordingly, thereafter the matter was posted for Prosecution Evidence.
4. During the course of the prosecution evidence, PW-1 (HC Bijender Singh) and PW-2 / complainant (Doulat Singh) were examined. However, despite opportunity they were not cross examined. Subsequently the matter was posted for further prosecution evidence, however, the accused withdrew himself from appearing before the court for trial. Consequently after issuing various processes to secure his presence, finally after due adjudication of process under section 82 Cr.P.C. qua the accused, he was finally declared absconder on 27.06.2008. Finally, vide order of the court fated 30.06.2009 the file was ordered to be consigned to the record room, to be revived for trial, as and when the accused is apprehended.
5. The absconder accused Suresh Kumar, was thereafter arrested in tis case on 02.03.12015 vide DD No. 31 B dated 02.03.2015 registered with Police Station Mandir Marg. On the same date he was produced before the court; and was formally taken into custody in this case and committed to Judicial Custody. The main file was also requisitioned from the record room and the matter was posted for further trial from the stage, where it was, before the accused was declared as an absconder; i.e. the stage of Prosecution Evidence.
FIR No.736/1997 State. Vs. Suresh Kumar Page 3 of 176. After the apprehension of the absconder accused Suresh Kumar, a formal charge of offence under section 174-A IPC was also framed against the accused, to which the accused pleaded not guilty and claimed trial. With respect to charge against the accused under section 174-A IPC, PW- 5 (ASI Inder Singh); PW-6 (SI Jai Singh) and PW-7 (ASI Ram Avatar) were examined in support of the case of the prosecution against the accused.
7. With respect to the main charge against the accused, i.e. under section 279 and 337 IPC, after the apprehension of the accused, PW-3 (Danvir Singh, Record Clerk from Lok Nayak Hospital, to prove the MLC of the Injured) was examined; PW-4 (Retd. SI Sugan Chand, the Investigating Officer) was examined; PW-8 (HC Hari Kishan, the eye witness) was also examined.
8. During the course of the prosecution evidence, the accused vide his separate statement recorded under section 294 Cr.P.C admitted the mechanical inspection report of the offending vehicle, accordingly, the corresponding witness i.e. ASI Devender (Mechanical Inspector) was dropped from the array of witnesses.
9. The summons to prosecution witnesses namely Sheela Devi (Injured) and Mawram were received back with the report that they have expired, therefore they were not summoned again and were dropped from array of witnesses. Summons to PW-2 / complainant (Doulat Singh), who had already been examined-in-chief, before the accused was declared absconder, was re-summoned / recalled for examination, after allowing application of the accused under section 311 Cr.P.C, however, the summons to him were also received back with the report that he had expired. Therefore, he was also not FIR No.736/1997 State. Vs. Suresh Kumar Page 4 of 17 summoned again and was dropped from array of witnesses.
10. One more witness, i.e. constable Parsu Ram was also dropped from array of witnesses, as Learned APP for the state stated that he has only assisted the Investigating Officer in the investigation, and as the investigating officer already stands examined, therefore, he could be dropped from array of witnesses. Accordingly, considering the statement of the Learned APP for the State and the age of the case PW Parsuram was dropped from array of witnesses.
11. After the completion of the prosecution Evidence, the statement of accused Suresh was recorded u/s 313 Cr.P.C wherein all incriminating evidences led against him during the trial by the prosecution witnesses, with respect to offence under sections 279 and 337 IPC; and also qua offence under section 174-A IPC were put to him, affording him an opportunity to give his explanation, if any.
12. In his statement recorded u/s 313 Cr.P.C., with respect to the offence under section 279 and 337 IPC, the accused denied the prosecution's case and pleaded innocence and false implication. He denied having driving the offending vehicle either in a rash or in a negligent manner. He claimed that the Bus, which he was driving had stopped on the red light and as soon as the light turned green and he moved forward, the injured tried to alight the moving bus and fell down.
13. In his statement recorded under section 313 Cr.P.C with respect to the offence under section 174-A IPC the accused claimed that infact he had come to the court, but the court room had changed, therefore he was unable to trace the court room and therefore could not appear before the court on dates fixed for trial. He also claims, that FIR No.736/1997 State. Vs. Suresh Kumar Page 5 of 17 after he became aware of the court date, he was coming to the court to attend the proceedings, but he was apprehended at the gates of Patiala House Courts.
14. Despite opportunity the accused did not lead any defence evidence.
Hence, the stage of defence evidence was closed and the matter was posted for Final Arguments. I have heard the learned APP for the State and learned counsel for the accused at length. I have also carefully perused the entire judicial record and carefully appreciated the evidence lead by the prosecution.
15. In order to prove the offences punishable U/s 279 and 337 IPC, the prosecution has to prove beyond all reasonable doubts, the following mandatory ingredients; viz,
i) The rash or negligent act / driving which is likely to cause hurt or injury to any other person; and
ii) the said rash or negligent act / driving of the accused was the proximate cause of the injuries sustained by the victim.
16. PW-2 / complainant (Doulat Singh) and PW-8 (HC Hari Kishan) are the two eye witnesses of the alleged incident / accident. PW-2 (Doulat Singh) has deposed in his testimony that, "on 15.11.1997 I had goNimbus Roman No9 Lne to ITO in a bus route No. 429 and boarded in the said from Govind Puri to ITO alongwith my relatives Soledevi, after 02:30 PM in the evening while our bus was red light before ITO due to sudden turn of the bus she fell down and received head injured and she was shifted to Irwin hospital for treatment. Police had recorded my statement EX PW 2/A with bears my signatures at point A. I has stated the true facts to the police in my FIR No.736/1997 State. Vs. Suresh Kumar Page 6 of 17 statement. I cannot say as to whether driver of the bus was apprehended by the police or not. Driver of the bus at fault since sudden turn of the bus without caring safety of passengers."
17. PW-8 (HC Hari Kishan) deposed in his testimony that, "on 15th November, 1997, I was posted as Constable. On that day I was posted at Tilak Marg (Traffic Circle) and that on that day my duty hours were 02:00 PM to 08:00 PM. On that day at around 04:15 PM, I saw that the driver of the bus bearing registration No. DL 1 P 7188 was driving the vehicle in a very rash and negligent manner and the said driver turned his vehicle in a very high speed near W Point towards ITO and hit one woman who fell doen and sustained injury due to rash and negligence driving of the accused. Thereafter, the injured lady was shifted to JPN Hospital and her name was reveled as Shailo Devi. My statement was recorded by the IO U/s 161 Cr.P.C. Accused is present in the court today, and correctly identified by the witness. I can identify the bus if shown to me. At this stage, MHC(M) has informed that the case property of the present case is released on superdari. Further examination in chief is deferred for want of case property.
18. In his further examination in chief, conducted on 29.11.2019, PW-8 deposed that, "at this stage, counsel for accused namely Ld. LAC C.K. Sharma stated that he is not disputing the identity of the offending vehicle i.e. bearing No. DL 1P 7188, hence production of the said vehicle is dispensed with. The speed of the offending vehicle was 60-70 kmph, however, I cannot say the speed of other vehicles which were moving ahead of the said offending vehicle. "
19. In his cross examination, PW-8 deposed that, "I was on duty at W FIR No.736/1997 State. Vs. Suresh Kumar Page 7 of 17 point Appu Ghar Red Light. At that point of time, the light was green, and due to lapse of time, I do not remember if it has just changed from red light to green light. Approximately 10-12 vehicles were moving ahead of the offending vehicles. I do not remember how many vehicles were moving together on the same road. It is wrong to suggest that the vehicle was moving at a speed of 10-15 kmph, due to a change of traffic light from red to green. It is wrong to suggest that the passanger was not hit from the back but she got down from the front door of the offending vehicle and fell down and driver stopped the vehicle immediately to help the passenger who has fallen down. It is wrong to suggest that the vehicle was being driven at the speed of 60-70 kmph and recklessly and was being driven at 10-15 kmph. "
20. From the testimony of PW-2 and PW-8 material contradictions between the testimony of the two eye witnesses of the prosecution is apparent and writ large. According to the testimony of PW-2 the victim / injured had fallen down from the bus, who was plying in the said bus; however, according to the testimony of PW-8 the victim / injured was knocked down / hit by the offending by the bus. This material contradiction between the testimony of the two eye witnesses of the prosecution drags the case of the prosecution within the ambit of reasonable doubts, the benefit of which has to be extended to the accused.
21. Moreover, the prosecution has not proved any document on record to show that on the date and time of the alleged incident / accident the witness PW-8 was on duty at the spot, as claimed and deposed by him. The proof of presence of PW-8 at the spot becomes significant in the light of the fact that his presence is not shown by the FIR No.736/1997 State. Vs. Suresh Kumar Page 8 of 17 Investigating officer in the site plan. In the opinion of this court, it was incumbent upon the investigating officer to specifically depict the exact spot, in the site plan, where the witness PW-8 was present at the time of the alleged incident / accident. This was necessary to enable the court to appreciate that whether from such point PW-8 could have actually witnessed the incident or not.
22. Moreover, PW-8 in his testimony has deposed that the accused was driving the offending bus in a rash and negligent manner; and approximately at the speed of 60-70 kmph. It is pertinent to note that, as per the testimony of PW-8, on the date and time of the alleged incident, he was posted at the spot as a Traffic officer, however, despite noting the driver of the offending vehicle was driving the vehicle in a rash and negligent manner he did not take any steps to apprehend the driver, or stop the alleged bus to challan it, or prosecute it. The inaction on part of PW-8 to apprehend the bus, despite finding it to be driven in a rash or negligent manner raises further doubts in the case of the prosecution.
23. Moreover, the inaction on part of PW-8 in not apprehending the bus that was being driven in a rash or negligent manner; and the omission of the investigating officer to specifically show his presence in the site plan; and the failure of the prosecution to prove the duty hours of PW-8 at the concerned spot on the date and time of the alleged incident; and the material contradictions between the testimony of PW-8 and PW-2 suggest that PW-8 was not present at the spot of incident on the date and time of the alleged incident.
24. From the testimony of PW-2 it is manifest that the alleged incident / accident occurred immediately after the offending vehicle, i.e. bus moved from the red light. Hence, as the alleged incident occurred FIR No.736/1997 State. Vs. Suresh Kumar Page 9 of 17 immediately after the bus was stationary therefore it is not possible that the bus was being driven at a high speed.
25. As far as driving the offending vehicle in a rash or negligent manner is concerned, this court is of the considered opinion that even if the testimony of both PW-2 and PW-8 are collectively taken into consideration, even after ignoring the facts highlighted in the cross- examination of PW-8, even then their testimonies are absolutely shorn of any necessary facts to enable the court to form even a vauge opinion regarding the manner in which the offending vehicle was being driven.
26. The Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 while dealing with a case u/s 304A IPC observed :
7. ...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.(underlining added)'
8. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge FIR No.736/1997 State. Vs. Suresh Kumar Page 10 of 17 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 charge has arisen it was the imperative duty of the accused person to have adopted.
27. In the most humble opinion of this Court, the testimonies of PW 2 and PW 8 even together are so absolutely deficient as to assist this court to form even a vague opinion, let alone any conclusion, regarding the offending vehicle being driven by the accused in a rash or negligent manner; and that the alleged injuries sustained by the injured in the alleged accident are proximate cause of the manner of driving of the accused.
28. The Hon'ble Apex Court in the judgment of "State of Karnataka vs. Satish" SCC (CRI) 1508 and the Hon'ble Delhi High Court in case titled "Abdul Subhan vs. State" 2007 (1) CCC (HC) 414 observed that in the absence of material facts and circumstances indicating that the accused driver acted in a rash or negligent manner, he cannot be held guilty of the offence.
29. The testimony of PW -2 and PW-8 lack material particulars capable of imputing either rashness, or even the negligence upon the accused while driving the offending vehicle. One of the alleged eye witness, i.e. PW-8 has stated the approximate speed of the offending vehicle, at the time of the alleged incident / accident to be 60-70 kmph, however, although he was able to take note of the approximate speed of the offending vehicle, however, he failed to FIR No.736/1997 State. Vs. Suresh Kumar Page 11 of 17 appreciate the approximate speed of the other vehicles plying ahead of adjacent to the offending vehicle. However, PW-8 has not given any cogent reason / basis on which he made his perception regarding the approximate speed of the offending vehicle. Merely reiterating that the accused was driving the offending vehicle at a fast / high speed is not, in the opinion of this court, sufficient to take the case of the prosecution beyond the bracket of "all reasonable doubts."
30. Rashness and negligence in driving a vehicle are subjective concepts and no straight jacket formula can be put to use to ascertain the rashness or negligence while driving the vehicle. Criminal rashness and negligence have to be proved like a 'Relevant Fact' during the course of trial and this onus lies upon the prosecution. There cannot be any reason, including the unfortunate death of a person involved in the incident / accident which may compel the courts to presume rashness or negligence in driving the offending vehicle. The Hon'ble Apex Court in the Judgment titled as Miyam vs. State of A.P. (2000)7 SCC 72:
"7. It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus while boarding the bus, no presumption of negligence can be drawn against the driver of the bus.
...
9. 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 FIR No.736/1997 State. Vs. Suresh Kumar Page 12 of 17 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."
31. PW-2 and PW-8 in their testimonies have vaguely stated that the accused was driving the offending vehicle at a very fast speed and in a rash and negligent manner. However, they have failed to elaborate the term "Driven Fast". It is a settled proposition of law that mere reiteration either of term rash and negligent or use of term 'high / fast speed' would not serve the purpose of prosecution to establish criminal rashness or negligence against the accused. The Hon'ble Apex Court in the judgment titled "State of Karnataka vs. Satish"
SCC (CRI) 1508 observed;
"Merely because the truck was being driven at a 'high speed' does not bespeak of either 'negligence or rashness' by itself. High speed is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by 'high speed' in the facts and circumstances of the case. None of the witnesses examined by prosecution could give any indication, even approximately, as to what they meant by high speed".
32. The Hon'ble Delhi High Court in Judgment titled "Abdul Subhan vs. State" 2007 (1) CCC (HC) 414 observed;
"10 ... In the present case also, I find that apart from the allegations that truck was being driven at a FIR No.736/1997 State. Vs. Suresh Kumar Page 13 of 17 very high speed, there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. therefore, in the absence of material facts it cannot be said merely because there is an allegation that petitioner was driving the truck at high speed, that the petitioner is guilty of the rash or negligent act. Clearly, the petitioner cannot be convicted on the sole testimony of PW3 which itself suffers from various ambiguities"
33. After perusal of the testimony of PW2 and PW 8 and in the light of the observations made by Hon'ble Superior Courts, as above referred, this court is of the humble opinion that the testimony of PW- 2 and PW-8, the eye witness to the incident / accident are short of material averments attributing either criminal rashness or negligence upon the accused at the time of driving the offending vehicle. In the most humble opinion of this court, the testimonies of the eye witness PW-2 and PW-8 are deficient to conclusively opine the nature of manner in which the offending vehicle was being driven at the relevant time. And, this deficiency materially affects the case of the prosecution.
34. Based on the abovedone discussion, this court is of the opinion that there are material shortcomings in the Site Map prepared by the IO and the same is of no benefit to understand the circumstances under which the incident / accident occurred; and from where the alleged eye witnesses, i.e. PW-8 witnessed it. This court is also of the opinion that there are reasonable doubts that PW-8 was present at the spot and he had witnessed the alleged incident / accident.
FIR No.736/1997 State. Vs. Suresh Kumar Page 14 of 1735. As such, prosecution failed to successfully bring home the guilt of accused Suresh Kumar for the offences punishable u/s 279 and 337 IPC through the testimony of examined witnesses. Accordingly, accused Suresh Kumar is entitled to benefit of doubts in the case of prosecution. Hence, accused Suresh Kumar is acquitted of the offence under section 279 and 337 IPC.
36. As far as offence under section 174-A IPC is concerned, the accused Suresh Kumar was declared absconder in this case vide order of the court darted 27.06.2008. The offence under section 174-A IPC, inserted by 25th Act of 2005, came into force / into effect from 23.06.2006. As such the date on which the accused was declared as an absconder in this case, the offence under section 174-A had already take the force of an offence.
37. According to section 82 (3) of the Cr.P.C. 'a statement in writing by the court issuing the proclamation to the effect that the proclamation was duly published on a specified day, in the manner specified in clause (i) of sub-section (2), shall be conclusive evidence that the requirements of this section have been complied with, and that the proclamation was published on such day'.
38. Hence, the declaration of accused as an absconder by the court cannot be brought to question / scrutiny by the accused on the ground of procedure adopted while declaring him as an absconder. Moreover, the prosecution in order to prove the proceedings under section 82 Cr.P.C qua the accused; and the manner of his apprehension has also examined the necessary witnesses.
39. Accordingly, the only recourse available to the accused to escape his FIR No.736/1997 State. Vs. Suresh Kumar Page 15 of 17 liability under section 174-A IPC was by way to prove, even to the extent of pre-ponderance of probability, that he did not have sufficient notice, or that for the reasons beyond his control he was prevented from appearing before the court on the date and time fixed by the court for his appearance by way of publication and processes issued under section 82 Cr.P.C.
40. The accused, in his statement recorded under section 313 Cr.P.C has given his explanation for his non appearance before the court. He stated that on the date of his appearance the court room had changed, about which he was not aware of; and that he tried to locate the court room but was unable to do so, therefore he could not attend the court hearing. He also stated that when he lateron came to know about the court room number by that time he had already been declared as an absconder by the court.
41. From the perusal of the record it is manifest that the accused was duly served with the summons of the court and in answer to them he appeared before the court. The notice of accusation under section 251 Cr.P.C was also served upon him and subsequently during the course of the prosecution evidence two witnesses were also examined.
42. Further perusal of the record also suggests that the accused was irregular in his appearance before the court and on various occasions he absented himself from appearance on dates fixed for hearings; and that his appearances had to be secured through coercive means. however, subsequently the accused totally withdrew himself from appearing before the court; and was subsequently declared as an absconder.
FIR No.736/1997 State. Vs. Suresh Kumar Page 16 of 1743. The explanation given by the accused for his inability to appear before the court on dates fixed, as recorded in his statement recorded under section 313 Cr.P.C. had to be proved. This onus was upon the accused, to be discharged by him during the course of trial, particularly by leading his defence. However, for the true and correct reasons known to the accused he preferred not to lead any defence evidence. This compels the court to raise an adverse presumption against the accused by virtue of section 114 of the Indian Evidence Act that either the facts stated by the accused, but not proved in accordance with laws either did not existed; or if the accused would have lead any such evidence with respect to the facts pleaded by him then they would have been against the accused.
44. Accordingly, the accused even at the threshold of pre-ponderance of probability failed to prove it before the court that he was prevented by anything beyond his control from appearing before the court. Accordingly, the prosecution has been successful in proving the guilty of the accused with respect to the offence under section 174-A IPC beyond all reasonable doubts. Accordingly accused Suresh Kumar is hereby held guilty for offence under section 174-A IPC. Digitally signed by SUMEET ANAND SUMEET Date:
ANAND 2020.01.25
11:06:51
+0530
Announced in the Open (SUMEET ANAND)
Court on 20th January, 2020 MM-07/PHC/New Delhi
FIR No.736/1997 State. Vs. Suresh Kumar Page 17 of 17