Delhi District Court
State vs . Abdul Majid on 25 September, 2013
IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04,
SOUTH DISTRICT, NEW DELHI
STATE VS. Abdul Majid
FIR NO: 642/07
P. S. Ambedkar Nagar
U/s 279/304 A IPC
Unique ID no. 02403R0379542008
JUDGMENT
Sl. No. of the case : 891/2 (3.1.2011) Date of its institution : 31.5.2008 Name of the complainant : Rakesh Kumar Date of Commission of offence : 5.9.2007 Name of the accused : Abdul Majid Offence complained of : Section 279/304 A IPC Plea of accused : Not Guilty Case reserved for orders : 18.9.2013 Final Order : Acquitted Date of Judgment : 25.9.2013 BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the prosecution of the accused Abdul Majid pursuant to a charge sheet filed by the Police Station Ambedkar Nagar under section 279/304 A Indian Penal Code, 1860 State Vs. Abdul Majid 1/14 FIR no. 642/07 (for short IPC) subsequent to the investigation carried out by them in FIR no. 642/07.
2. Filtering out unnecessary details, the case of the prosecution is that on 5.9.2007 at about 9.15 pm complainant Rakesh Kumar alongwith his brother Raj Kumar went to a fruit shop in Khanpur, New Delhi. When he alongwith his brother were crossing the road one bus no. DL 1PB 4563 (for short "offending bus") route no. 419 came from the Chirag Delhi side in a rash and negligent manner and took U turn from the red light due to which brother of the complainant came under the front tyre of the bus. After causing accident, accused fled away from the spot. PCR van reached at the spot and took him to AIIMS hospital. Complainant alongwith his family members also reached at the hospital where they came to know that the injured had died. The stage was then set for the police to register the case and investigate the matter.
3. On consummation of investigation and other formalities, charge sheet was submitted against the accused and the accused was indicted on charges under section 279/304 A IPC. He pleaded not guilty and claimed trial.
4. The prosecution, to prove above charges against the accused, tendered oral as well as documentary evidence. In all, four witnesses were examined. PW 1 Sh. Rakesh deposed that he reside at the aforesaid address along with his family. On 5.9.2007 at around 9.15 pm in the night he was coming from Phal Mandi along with his wife. At Khanpur Red light when they were trying to cross the road a bus bearing no. DL 1PB 4563 then route no. 419 and at present plying at route no. 534 from the side of Chirag Delhi came in a very rash and negligent being driven by the accused. The bus took a U turn from Khanpur Red light and hit his brother who came under the left front wheel of the bus. He has seen the driver at the time of incident. When the accident occurred he knocked at the door of the driver and asked him to stop the vehicle but he had not stopped the vehicle and tried to take the bus away from the spot. The driver had stopped the vehicle after around 20/25 steps on the hue and cry of the public. The State Vs. Abdul Majid 2/14 FIR no. 642/07 accused ran away from the spot. When he was knocking the door of the driver, he had seen the accused. His complaint in this regard is Ex.PW1/A. The bus was seized vide seizure memo Ex.PW1/B. The bus was in a high speed. During the course of investigation police prepared site plan at his instance. Accused was arrested vide memo Ex.PW1/C and his personal search was carried out vide memo Ex.PW1/D. Prior to post mortem, dead body of deceased Raj Kumar was identified by him. In this regard police recorded identification statement, same is Ex.PW1/E. Police also prepared death report, same is Ex.PW1/F. He was cross examined by Ld. Counsel for the accused.
5. PW 2 Ct. Shobir Singh deposed that on 05.09.2007, he was posted as constable at PS Saket. On that day in connection investigation of report no. 43 he along with ASI Dilip Singh reached at spot i.e Red Light Khan Pur where DL 1PB 4563 was found standing and in reference of injured it came into their knowledge that he has been shifted to the hospital through PCR Van. Thereafter DD no 46 information was received that injured was admitted to AIIMS hospital. And thereafter ASI Dilip Singh left him at the spot to reach at AIIMs hospital. After passing of one hour ASI Dilip Singh reached at the spot and handed over him rukka for registration of the case and present case was registered by him after arriving at PS. After getting registration he returned back at the spot and handed over the copy of FIR and Rukka to the IO. Investigation of case was assigned to ASI Dilip Singh. During the course of investigation, IO prepared site plan, and seized the offending bus bearing no. DL 1PB 4563 route no. 419 vide memo Ex. PW 1/B. During the course of investigation IO seized the original insurance, copy of RC of offending vehicle vide memo Ex. PW 2/A on production by owner of the offending vehicle namely Smt. Triveni. Copy of insurance and RC are collectively Mark A. During the course of investigation IO arrested accused Abdul Majid in the presence of complainant and he was produced by the owner of the offending vehicle vide memo State Vs. Abdul Majid 3/14 FIR no. 642/07 Ex. PW 1/C and his personal search was carried out vide memo Ex. PW 1/D. After arrest IO also seized the original DL of the accused on production by accused Abdul Majid vide memo Ex. PW 2/B. He identified accused Addul Majid who was arrested by the IO in his presence on the identification of complainant and on the production by owner of the offending vehicle. He was cross examined by Ld. Counsel for the accused.
6. PW 3 SI Dilip Singh deposed that on 5.9.07, he was posted at PS Ambedkar Nagar and on that day, on receiving of DD no. 43 regarding accident, he alongwith Ct. Shovir reached the spot i.e Khanpur, red light signal where it was learnt that the injured was taken to the hospital by PCR van and offending vehicle i.e a blue line bus bearing no. DL 1PB 4563 plying on route no. 419 was found lying. Thereafter, he received another DD no. 46 from Trauma Centre and he went to the AIIMS where he collected the MLC of one injured/deceased Raj Kumar on which the doctor have declared him brought dead. Thereafter, he got the dead body preserved in the mortuary of the hospital. He searched for the eye witness and one Rakesh Kumar, the brother of the deceased was found present and after making inquiries, he recorded his statement being Ex.PW1/A and came to the spot where he prepared the rukka Ex.PW3/A and sent Ct. Shovir to police station for the registration of FIR. After the registration of FIR, Ct. Shovir came to the spot and handed over him the copy of the FIR and original rukka. In the meantime, he also prepared site plan being Ex.PW3/B at the instance of the complainant. The offending vehicle was also seized vide memo Ex.PW1/B. He again searched for the accused but he could not be found. On 6.9.2007, he sent a notice u/s 133 M.V Act to Smt. Triveni, the registered owner of the said offending vehicle, the notice is Ex.PW3/C and in reply thereto Smt. Triveni replied vide her reply Ex.PW3/D that at the time of the accident, the bus driver Abdul Majid was driving the aforesaid vehicle and she also produced her in the police station where he arrested him vide State Vs. Abdul Majid 4/14 FIR no. 642/07 memo Ex.PW1/C and conducted his personal search vide memo Ex.PW1/D. The D/L of the accused and documents of the bus were also seized vide memo Ex.PW2/B and Ex.PW2/A respectively. The mechanical inspection of the offending bus was got conducted. The post mortem of the dead body was also got conducted which was handed over to its relatives after the identification. He recorded the statement of witnesses and the challan was filed in the Court on completion of investigation. He was cross examined by Ld. Counsel for the accused.
7. PW 4 is HC Banwari Lal who deposed that on 6.9.2007 he got the post mortem of the deceased Raj Kumar done at Mortuary of AIIMS on the direction of the investigating officer/SI Dilip Singh. After post mortem dead body was got identified by his relatives vide memo Ex.PW1/E and after identification, dead body was handed over to its relative vide memo Ex.PW4/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
8. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 26.4.2013.
9. The statement of the accused under Section 313 of the Criminal Procedure Code, 1973 (for short, `the Code') was recorded wherein incriminating circumstances were put to him. He disavowed all the allegations against him. He further submitted that no accident was caused by him, he was not there on the spot and had no detail knowledge about the accident and this case. Further, he chose not to lead defence evidence. Consequently, the matter was then posted for final arguments.
10. I have heard the learned Assistant Public Prosecutor and the learned Advocate for the accused at length and carefully perused the record in extenso. Ld. APP has canvassed that the prosecution has been successful in proving the guilt of the accused beyond reasonable doubt. Eye witness has correctly identified the accused to be the State Vs. Abdul Majid 5/14 FIR no. 642/07 driver of the offending bus, who drove his bus negligently leading to the death of victim Raj Kumar.
11. Per contra, it is assiduously argued by Ld. Counsel for the accused that witness Rakesh has been planted by the prosecution in order to substantiate its case which is evident from number of anomalies and discrepancies that have cropped up in his examination. Ld. Counsel for the accused has highlighted the abovesaid discrepancies which I shall be discussing in the following part of my judgment.
12. I have bestowed my thoughtful considerations to the rival submissions made before me. In order to bring accused to justice, prosecution has to prove the necessary ingredients of the offence under sections 279/304 A of IPC.
Section 279 of 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 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 both".
Section 304 A reads as under :
Causing death by negligence Whoever caused 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.
13. In order to bring home the guilt of the accused, prosecution has to prove two important aspects, firstly that the accused was driving the offending bus on 5.9.2007 at around 9.15 pm at Khanpur Red Light, Chirag Delhi side. Secondly, that the said bus was being driven by the accused in rash or negligent manner which resulted into the accident of one Raj Kumar, who later succumbed to his injuries.
State Vs. Abdul Majid 6/14 FIR no. 642/07
14. Before I proceed to give my finding on the abovesaid aspects, it is pertinent to note that Ld. Counsel for the accused has not oppugned the factum of accidental death of Raj Kumar on the given date. The same stands also proved by the testimony of PW 1 Rakesh Kumar who proved the dead body identification statement as Ex.PW1/E and the post mortem report of the deceased Ex. A5, genuineness of which is admitted by the accused under section 294 of the Code.
15. Regarding the first aspect whether the offending bus was being driven by the accused or not, prosecution has examined Sh. Rakesh as PW 1 who is said to have accompanied the deceased before the accident and later on had an opportunity to see the offending bus as well as its driver. In his examination in chief he has specifically stated that he had seen the driver of the offending bus at the time of the accident. When the accident took place he knocked at the door of the driver and asked him to stop the vehicle but he did not stop and tried to take the bus away from the spot but halted on the hue and cry of public after the distance of 2025 steps. Thereafter, accused ran away from the spot. Ld. Counsel for the accused has vociferously argued that this witness is a planted witness in order to bring home the conviction of the accused and he cannot be said to be present at the spot at the time of the unfortunate accident. To this effect, he has taken this Court through the cross examination of witness PW 1 as well as the initial complaint of the witness Ex.PW1/A. In the initial complaint, it has been stated by the witness that soon after mowing down his brother i.e the deceased, the bus halted at some distance following the commotion of the public but the driver fled away from the spot leaving the offending bus behind. It is worthwhile to note that in his initial complaint, it has not been stated by him that he knocked the driver side of the door and had an opportunity to have a glimpse of him. Although, he had stated that he can identify the driver of the offending bus if he was produced before him. In his cross examination, he is claimed to have knocked at the State Vs. Abdul Majid 7/14 FIR no. 642/07 conductor side door of the offending bus and not of the driver side as claimed by him in his examination in chief. He has also conceded the fact that after the incident, he saw the driver of the bus in the Court for the first time meaning thereby that the accused was arrested by the investigating officer without any identification at the instance of the complainant/PW 1. PW 1 denied the suggestion that the offending bus was not being driven by the accused.
16. Having regard to the abovesaid discussion and the incongruities regarding the identification of the accused, doubts have arisen regarding the claim of the witness PW 1 that he was alongwith his deceased brother at the time of the accident. Be that as it may, accused has not disputed the genuineness of the notice u/s 133 M.V Act under section 294 of the Code that was served upon the owner of the offending bus by the investigating officer on 6.9.2007 i.e a day after the accident. The document containing the notice u/s 133 M.V Act as well as its reply by the owner of the offending bus that on the relevant date and time of the accident, the offending bus was being driven by the accused only. In his statement u/s 313 of the Code, accused has disavowed the incriminating evidence against him regarding the offending bus being driven by him. He has stated that he has been falsely implicated in this case and at the time of the accident he was not there on the spot but to substantiate his stand accused has not adduced any evidence, therefore I hold and observe that prosecution has been able to prove that the accused was in fact driving the offending bus at the relevant point of time and has caused the accident in question.
17. Now before giving any finding on the issue of rashness or negligence, let us see as to what in actual is being rash or negligent. In the case titled Ram Avtar v. State of Rajasthan, 6th December, 2005 it was held in para 6 and 8 "6. Thus the essential ingredient for offence under Section 279, IPC is that the vehicle should be driven in "rash and negligent manner". The State Vs. Abdul Majid 8/14 FIR no. 642/07 concept of rashness and negligence is borrowed from the law of tort into the criminal law. But in criminal law for rashness the criminality lies in running the risk of doing an act with recklessness or indifference to consequences. On the other hand, criminal negligence 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, 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 (Ref. To AIR 1944 Lah. 163). Hence, the prosecution has to prove the existence of these two elements to bring home the offence under Section 279, IPC. However, the mere fact that accused was driving vehicle at high speed may not attract provision of Section 279, IPC. For, speed of a vehicle is not always determinative of the question whether vehicle was driven in a rash and negligent manner. One has to consider the surrounding circumstances of the case to conclude whether the driving was done in rash and negligent manner or not?
"8. In the case of Badri Prasad Tiwari v. The State I (1994) ACC 476 : 1994 Cri. LJ 389 (Ori.), the Hon'ble Orissa High Court has held that "In order to constitute an offence under Section 279, IPC, it must be established that the accused was driving the vehicle on a public way in a rash and negligent manner to endanger human life or to likely cause hurt or injury to any other person". The Hon'ble High Court further held, "In the case, I find that except a bare statement made by P.W. 2 that the vehicle was being driven in a high speed, no attempt has been made to establish that there was any rash and/or negligent act on the part of the driver". Therefore, the Hon'ble Orissa High Court was pleased to acquit the accused person. Similarly, in the cae of Beda Kanta Phukan v. The State of Assam,1992 Cri. LJ 1197 (Gau.) the Hon'ble Gauhati High Court has held that merely because the accused was driving the vehicle at a high speed may not attract provisions of Section 279."
State Vs. Abdul Majid 9/14 FIR no. 642/07
18. Also in Keshav v. State of Haryana, 21st January 2010, Punjab and Haryana High court, it was held:
".....In support of the first argument, counsel for the petitioner has relied upon State of Kar nataka v. Satish, (1998)8 SCC 493. Para 4 of the Crl. Revision No.922 of 1998 [4] judgment read as under: "4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed"
is a relative term. It was for the prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"........"
19. It is also hackneyed that the main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed at which the vehicle was running, but the density of the traffic as well. Speed of a vehicle by itself would not lead to conclusion of negligence in driving. It would depend upon the place and circumstances where and under which the vehicle was moving. It is trite that prosecution has to stand on its own legs and has to prove the case beyond reasonable doubt. So, merely stating that the vehicle was being driven rashly and negligently would not advance the cause of the prosecution.
20. To establish the factum of the offending bus being driven in a rash and negligent manner by the accused, PW 1 Rakesh has been cited as a sole eye witness. He is State Vs. Abdul Majid 10/14 FIR no. 642/07 said to have accompanied the deceased at the time of the accident. The relevant part of his testimony is reproduced as below;
"On 5.9.2007 at around 9.15 pm in the night I was coming from Phal Mandi along with my wife. At Khanpur Red light when we were trying to cross the road a bus bearing no. DL 1PB 4563 then route no. 419 and at present plying at route no. 534 from the side of Chirag Delhi came in a very rash and negligent being driven by the accused present in the Court today (correctly identified). The bus took a U turn from Khanpur Red light and hit my brother who came under the left front wheel of the bus."
21. From the reading of the abovesaid extract, it transpires that when the deceased was crossing the red light alongwith PW 1, he came under the left front wheel of the offending bus while the bus was taking Uturn from Khanpur red light. In my considered opinion, this description of the accident being given by witness PW 1 is not at all sufficient to record a finding that the accused was in fact rash or negligent in driving the bus. This description fails to inspire the confidence of this Court in as much as the same appears to be highly cryptic and superficial. Witness PW 1 has not made it clear as to whether he was moving behind or ahead of his deceased brother and when they both were trying to cross the red light then how come he did not suffer any injury. Furthermore, it has been stated that by PW 1 that the bus was in a high speed but as a general practice at the time of taking Uturn vehicle naturally slows down and when the vehicle is of the magnitude of a bus then certainly its speed deaccelerates while taking a Uturn. Witness PW 1 has also admitted in his cross examination that the bus cannot take Uturn in a very high speed. For a moment even if we assume that the bus was infact at a high speed while it took Uturn but then in such circumstance the width of the road also assumes significance. The wider the road is, easier it would be for the vehicle to take the Uturn. But in the instant case the width of the road where the offending bus sought to take Uturn and where the deceased came to be hit has State Vs. Abdul Majid 11/14 FIR no. 642/07 nowhere been brought on record.
22. There are certain other facets in the present case which reveal that witness PW 1 Rakesh may may not have accompanied his brother at the time of the unfortunate accident and eventually may not have been present at the spot. It is the statement of PW 1 in his initial complaint Ex.PW1/A that soon after the accident PCR van came at the spot and shifted his brother to the hospital and he proceeded for his home to inform his parents about the accident and thereafter he alongwith his parents went to AIIMS hospital where he came to know that his brother Raj Kumar had succumbed to his injuries. Now in his cross examination, he admitted that he reached AIIMS hospital at around 1010.30 pm and at the very next moment he stated that he signed his complaint in the police station at around 9.30 pm on 5.9.2007. He also stated that he had not signed any other document except his complaint Ex. PW1/A at any point of time after the date of the accident. As per the statement of investigating officer PW 3 SI Dilip Singh he recorded the statement of witness PW 1 in the hospital. So from these circumstances, it is clear that the prosecution has waffled on the aspect of recording of the initial statement of the complainant. When he is stated to have reached the AIIMS hospital at around 1010.30 pm then in no circumstances, he could have signed his complaint at the police station at 9.30 pm on the date of the incident.
23. Furthermore, in his cross examination, he has conceded that he did not make a call at 100 number neither did the PCR came in his presence nor did he see the PCR taking his younger brother to the hospital. Now these statements of witness PW 1 are quite flummoxing and confounding for the reason that in his initial complaint, it has been stated by him that PCR van came in his presence and removed his brother to the hospital. I am unable to fathom as to how could witness PW 1 being the brother of the deceased left the spot for his home without waiting for the PCR to take his younger brother to the hospital. If a relative or a friend of any person meets with an accident State Vs. Abdul Majid 12/14 FIR no. 642/07 then the natural conduct of the person accompanying him would be to immediately provide medical aid to the injured person. But in the instant case, from the statements of witness PW 1 it appears that he left the place of occurrence without ensuring that his deceased brother was being taken to the hospital or not. This conduct of PW 1 completely defies logic and eventually belies his claim that he was present at the place of occurrence.
24. Another interesting facet of the instant case is the site plan Ex.PW3/B, which the investigating officer is said to have prepared at the instance of the complainant i.e PW 1 Rakesh Kumar. In the site plan Ex.PW3/B, point A is shown as the place where the offending bus had caused the accident of the deceased. In an accident case, site plan is of utmost significance as it helps envision the circumstances in which the accident took place. PW 1 in his cross examination has admitted that the site plan was not prepared by the investigating officer in his presence. His supplementary statement u/s 161 of the Code regarding the preparation of the site plan at his instance is shown to have been recorded on 7.9.2007 whereas the date shown on the site plan Ex.PW3/B as 6.9.2007. PW 1 is said to have met the investigating officer in the hospital where his statement was recorded and thereafter, investigating officer proceeded to the spot. It has nowhere come on record that on 6.9.2007, PW 1 at any point of time visited the spot with the investigating officer. Hence, from these circumstances it can be inferred that the site plan Ex.PW3/B has not been prepared at the instance of the complainant PW 1, which further dents and corrodes the case of the prosecution. In view of this, it cannot be said with certainty that the accident had been caused by the offending bus at point A at which it is shown to have been committed in the site plan.
25. In view of the foregoing discussion, I hold that prosecution has failed to assemble the case of rash or negligent driving against the accused. There are glaring defects in the case of the prosecution regarding the presence of PW 1 at the place of occurence, the State Vs. Abdul Majid 13/14 FIR no. 642/07 benefit of which goes in favour of the accused. Consequently, accused stands exonerated for the offences with which he is charged. He is set at liberty.
Announced in the open court (Navjeet Budhiraja)
on 25.09.2013 Metropolitan Magistrate04,
South, New Delhi
State Vs. Abdul Majid 14/14 FIR no. 642/07