Delhi District Court
State vs . Bhagwat Prasad on 8 October, 2015
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State vs. Bhagwat Prasad
FIR No.976/05
PS Paschim Vihar
U/s 279/304-A IPC
JUDGMENT
C C No. : 2548/2/10
Date of Institution : 09.10.2006
Date of Commission of Offence : 04.11.2005
Name of the complainant : Pradeep Kumar
S/o Sh. Tulsidas
R/o House no.630 A,
East Shalimar Bhag, Delhi
Name & address of the accused : Bhagwat Prasad
S/o Rampher
R/o WZ-335, Village Madipur,
Delhi
Offence complained of : 279/304-A IPC
Plea of accused : Pleaded not guilty
Final Order : Acquitted
Date of reserve for judgment : 07.10.2015
Date of announcing of judgment : 08.10.2015
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 279/304-A Indian Penal Code,1860.
2. The briefly stated story of the prosecution is that on 04.11.2005 at about 11.15 State v. Bhagwat Prasad U/s 279/304A IPC 1/13 FIR No. 976/05 PS Paschim Vihar am on Main Rohtak Road, Camp no.4, Jawalapuri, Delhi, the complainant Pradeep Kumar was riding a scooter bearing registration no. UA-07B- 3342(hereinafter referred to as "the scooter"). His parents i.e both mother and father were riding pillion. The tyre of his scooter got punctured suddenly. While he was trying to park his scooter, the accused came from behind driving one TATA-407 tempo bearing registration No. DL-1LB-6243(hereinafter referred to as "the Tempo") in a rash and negligent manner and struck against the said scooter. Due to the impact of the collision, mother of the scooterist fell on the patri(pavement) and received injuries which resulted in her death. Thus the accused is alleged to have committed an offence under Section 279/304-A Indian Penal Code,1860. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Copy of charge-sheet and other documents were supplied to the accused under Section 207 Cr.P.C. Notice under Section 251 Criminal Procedure Code was served upon the accused for offence Section 279/304-A Indian Penal Code vide order dated 17.01.2008, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined five witnesses i.e (1) Pradeep Kumar (2) Laxmi Chand (3) W/ASI Pushpa (4) HC Maha Singh and (5) SI Ashok Kumar.
5. PW-1 Pradeep Kumar deposed that on 04.11.2005 he alongwith his mother State v. Bhagwat Prasad U/s 279/304A IPC 2/13 FIR No. 976/05 PS Paschim Vihar and father, was going to Kunwar Singh Nagar, Najafgarh Road on his scooter. When they reached near Jawalaheri Market, Paschim Vihar, his scooter got punctured. While he was trying to park his scooter on the left side of the road, one TATA-407 tempo came from behind and struck against his scooter. Due to this, the witness and his father fell down on the right side of the scooter, while his mother fell down on the left side of the scooter. They saw that blood was oozing out of the body of his mother but they could not see from where it was coming. Witness took his mother to Jiya Lal hospital with the help of some public persons. The driver of TATA-407 tempo i.e the accused was also apprehended from the spot. The witness further deposed that the driver had also hit one child on patri after hitting their scooter. Police recorded his statement which is Ex.PW1/A. The accused was arrested vide memo Ex.PW1/B. The Learned APP for State put a leading question to the witness regarding the number of the TATA-407 tempo. The witness answered that he did not remember it exactly, but perhaps the number was 6243. The witness was shown the photographs of the offending vehicle Ex.P1 but the witness failed to identify the same. However, he stated that the colour and the make of the vehicle are same.
6. In the cross examination, PW-1 stated that at the time of the accident he was trying to take his scooter towards the left side of the road and also admitted that at that time there were three persons on the scooter. The witness was State v. Bhagwat Prasad U/s 279/304A IPC 3/13 FIR No. 976/05 PS Paschim Vihar confronted with his statement under Section 161 Cr.P.C where it had not been recorded that the accused had hit a child on patri also. He admitted that the accused was not arrested in his presence. He admitted that he never visited the spot again for the purpose of investigation. He denied the suggestion that the scooter got disbalanced due to presence of three riders.
7. PW-2 Laxmi Chand was the brother of the deceased who had identified her dead body at Sanjay Gandhi Memorial Hospital vide his statement Ex.PW2/A.
8. PW-3 W/ASI Pushpa was posted as Duty Officer on 04.11.2005. She had recorded the present FIR on basis of the rukka sent by IO HC Ashok Kumar and brought by Ct. Maha Singh at 12.50 pm. Copy of FIR is Ex.PW3/A and her endorsement on rukka is Ex.PW3/B.
9. PW-4 HC Maha Singh deposed that on 04.11.2005 he had joined the investigation with HC Ashok Kumar. He deposed that on the spot the scooter and the tempo were found lying in an accidental condition. On enquiry, they came to know that the injured has already been taken to Jiya Lal Hospital. He remained at the spot while the IO went to Jiya Lal hospital. After sometime the IO alongwith complainant Pradeep and the accused came to the spot. IO handed over the tehrir to the witness. The witness went to PS Paschim Vihar and got the FIR registered. Thereafter he returned back to the spot and handed over the original rukka and copy of FIR to the IO. IO seized the scooter and the Tempo vide memo Ex.PW4/A and Ex.PW4/B respectively. The driving license of State v. Bhagwat Prasad U/s 279/304A IPC 4/13 FIR No. 976/05 PS Paschim Vihar the accused was seized vide memo Ex.PW4/C and the documents of the Tempo were seized vide memo Ex.PW4/D. The accused was arrested and his personal search was conducted vide memo Ex.PW4/E. The witness deposed that he got shifted the dead body to the mortuary on the next day. He identified the offending vehicle in the photographs which are Ex.P1 (colly).
10. In the cross examination, PW-4 stated that the scooter was present on the left side of the road near footpath while the tempo was towards the divider side. The tempo was ahead of the scooter. He stated that the accused and the complainant did not accompany him to the Police Station. He denied the suggestion that all the proceedings were conducted at the Police Station.
11. PW-5 SI Ashok Kumar(IO) deposed on the same lines as PW-4. He further deposed that he had collected the MLC of the injured. He prepared the site plan Ex.PW5/B at the instance of complainant Pradeep. He seized the vehicles, Driving License and RC of the vehicle and arrested the accused. He recorded the statement of the witnesses. The witness deposed that further investigation was marked to ASI Dharampal and he handed over the case file to MHC(R).
12. Accused had admitted the genuineness of MLC No.345/05, PM no.765/05, Mechanical Inspection report of vehicle bearing no. DL-1LB-6243 and scooter bearing no. UA-07B-3342 vide his statement recorded under Section 294 Cr.P.C. However, he denied the contents thereof. As such, name of PW ASI State v. Bhagwat Prasad U/s 279/304A IPC 5/13 FIR No. 976/05 PS Paschim Vihar Devender, Dr. Neelam Garg and Dr. Ashish Jain were dropped from the list of witnesses. PW ASI Dharam Pal could not be examined as he had already expired.
13. The prosecution evidence was closed on 24.09.2014. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. The accused admitted that he was driving the said TATA-407 at the alleged date, time and place. However, he denied that he was driving in a rash and negligent manner. The accused stated that three persons were going on a scooter. All of a sudden the tyre of their scooter got punctured and they fell down on the road. His tempo had not struck the scooter and he had stopped the tempo so as to help the injured persons. He stated that he was falsely implicated in the present case.
14. I have heard the submissions made by the Learned APP for state and Learned Counsel for accused and carefully perused the evidence and the documents on record. Learned counsel for the accused has submitted that the accused has been falsely implicated in the present case. He submitted that the accused had stopped his tempo so as to help the injured persons. He also submitted that it was the complainant who was riding in a rash and negligent manner as there were three riders on one scooter. It is submitted that the accident in question had taken place as the scooter of the complainant had got disbalanced.
15. To bring home the guilt of rash and negligent driving to the accused, three State v. Bhagwat Prasad U/s 279/304A IPC 6/13 FIR No. 976/05 PS Paschim Vihar 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.
16. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
17. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have State v. Bhagwat Prasad U/s 279/304A IPC 7/13 FIR No. 976/05 PS Paschim Vihar adopted............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."
18. In the case at hand, the star witness of the prosecution is PW-1 who was the sole eye witness. This witness has only made a bald statement that the accused was driving in a rash and negligent manner. He has not specified the manner in which the accused was driving. It was observed by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows, "No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW1-0 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or State v. Bhagwat Prasad U/s 279/304A IPC 8/13 FIR No. 976/05 PS Paschim Vihar the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
19. Further, there are no photographs of the spot on the record. Even in the site plan Ex.PW5/B, only the place where the accident had taken place has been shown. The IO has not pointed out the place where the scooter and the rider had fallen down or the place where the deceased had fallen down, nor has he pointed out the place where the tempo and the scooter were found after the accident.
20. Let us have a look at the mechanical inspection reports of both the vehicles. As per the mechanical inspection report of TATA-407, the front bumper was damaged from the left side and the vehicle was fit for road test. As per the mechanical inspection report of the scooter, the rear stephney bracket was damaged and body was dented. The rear tyre was punctured and the left side body was slightly scratched. The damage to the motorcycle is not much. There is no damage to show that the tempo had hit the scooter with great force. Hence, it cannot be said that the tempo was being driven in a high speed or in a rash and negligent manner. On the contrary, it appears that the tempo had applied brakes in time so as to avoid colliding with the scooter or running over the scooter riders who had fell down.
21. Further, the possibility cannot be ruled out that it was the complainant who was State v. Bhagwat Prasad U/s 279/304A IPC 9/13 FIR No. 976/05 PS Paschim Vihar riding in a rash and negligent manner. Admittedly, there were three riders on the scooter. This in itself is a rash act. It is also an admitted fact that the tyre of the scooter had got burst. PW-1 has admitted in his cross examination that when the accident had taken place, all three of them were still sitting on the scooter. Hence, a probability cannot be ruled out that the scooter had got disbalanced due to burst of the tyre of the scooter. Also, it is not the case that the tempo had ran over the deceased. She had fallen down on the patri i.e footpath and had received abdominal injuries which resulted in her death.
22. In the case titled "Abdul Subhan vs State (NCT of Delhi)" 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi as below, "7. .....What is meant by high speed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this accident. Was the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura Road? Or was he on Mathura Road turning towards Sher Shah Road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve State v. Bhagwat Prasad U/s 279/304A IPC 10/13 FIR No. 976/05 PS Paschim Vihar into the path of the petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out is quite unsatisfactory."
23. The Hon'ble court further observed, "13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerened by courts.
13.4 The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5 Furthermore the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case. 13.6 ................
13. 7 Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent.
State v. Bhagwat Prasad U/s 279/304A IPC 11/13 FIR No. 976/05 PS Paschim Vihar Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity needs to be eliminated."
24. Further, it is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
25. In the case at hand, there is no evidence on record to prove that the accused was driving in a rash and negligent manner, except the bald statement made by PW-1. There are no photographs of the spot. The site plan is also vague and a mere formality.
26. In view of the above discussion and in light of above-mentioned case laws, the court is of the view that the prosecution has failed to prove its case against the accused. The prosecution has failed to prove that the tempo driver was driving in a rash and negligent manner or that the death of the pillion rider Chanderkala was caused due to the rash and negligent manner act of the accused. Thus he is entitled to be acquitted. Accordingly, accused Bhagwat State v. Bhagwat Prasad U/s 279/304A IPC 12/13 FIR No. 976/05 PS Paschim Vihar Prasad S/o Sh. Ram Pher is acquitted under Section 279/304-A Indian Penal Code.
27. As per Section 437 A Cr.P.C, the accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount.
ANNOUNCED IN THE OPEN COURT ON
8th October 2015
(SAUMYA CHAUHAN)
MM-07 (West), THC, Delhi
State v. Bhagwat Prasad U/s 279/304A IPC 13/13
FIR No. 976/05 PS Paschim Vihar