Delhi District Court
Criminal Case/239/2000 on 30 October, 2012
FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi IN THE COURT OF SH. NEERAJ GAUR, METROPOLITAN MAGISTRATEIII/NORTH, DELHI FIR No. 239/2000 S/v Surender U/s 279/338 IPC PS: Subzi Mandi C/No. 151/2 U. ID No. 02401R0184822000 Date of Institution : 28.11.2000 Date of commission of offence : 20.06.2000 Name of the complainant : Sh. Balbir Singh S/o Sh. Man Singh Name and address of accused : Surender Kumar S/o Sh. Harpal Singh, R/o V.P.O. Khera Kallan, Delhi Offence complaint off : U/S 279/338 IPC Plea of guilt : Pleaded not guilty Final Order : Acquitted. Date of reserve for order : 30.10.2012 Date for announcing the order : 30.10.2012. U. ID NO. 02401R0184822000 Page No. 1 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi J u d g m e n t: Brief facts and pre trial proceedings 1.
The case of the prosecution, as disclosed in the chargesheet is that on 20.06.2000, complainant / PW2 SI Balbir Singh was standing at the Bus Stand near Delhi Flour Mill, Roshanara Road and waiting for a bus. At about 08.40 am, accused came driving a bus No. DL1PA1814. Complainant tried to board the bus from the back gate when it was in stationary condition. All of a sudden, accused negligently drove the bus and overtook another bus No. DL1PA1651. Due to this, complainant was crushed between both the buses. The complainant raised alarm and bus was stopped. Complainant was taken to Hospital. On the statement of complainant, the present FIR was registered. During the investigation, accused was arrested and personally searched. After completion of the investigation, accused was chargesheeted and sent up for trial.
U. ID NO. 02401R0184822000 Page No. 2 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi
2. Copies of the challan and documents were supplied to accused and after going through the challan and documents annexed therewith, charge u/s 279/338 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
Trial
3. To prove the charge, prosecution examined eight witnesses in total whose the depositions are being discussed in brief as follows :
(i) PW1 Sh. Vijay Kumar deposed that he being Duty Officer at PS on 20.06.2000 at about 08.45 am, he received Rukka through Ct. Mehar Singh sent by SI Khalid on the basis of which he registered the present FIR Ex.PW1/A.
(ii) PW2 SI Balbir Singh is the complainant in the present case who deposed that on 20.06.2000 at about 08.20 am, he was standing at Bus Stand, near Delhi Flour Mill, Roshanara Road.
In the meantime, Route No. 144, Bus No. DL1PA1814 came at the U. ID NO. 02401R0184822000 Page No. 3 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi spot. He further deposed that he tried to board the bus from the back gate after the same stopped at the bus stop. All of sudden, the driver of the above said bus negligently overtook another bus DL1PA 1651 which was already stationed at the spot. Due to this overtaking, he was crushed between both the buses. Thereafter, he raised alarm. The bus driver stopped the bus after overtaking. He further deposed that the said accident took place due to rash and negligent driving of the bus driver Surender. Thereafter, he was taken to HRH where police of PS Subzi Mandi reached. There, his statement Ex.PW2/A was recorded. He correctly identified the accused in the Court.
(iii) PW3 Sh. Shamsher s/o Mukhtiar Singh deposed that in the year 2000 one blue line bus route no. 144 bearing No. DL1PA1814 was coming from the side of Singhu School and was going towards Old Delhi Railway Station and he was the U. ID NO. 02401R0184822000 Page No. 4 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi Conductor on the said bus. At about 08.30 am, when the bus reached Flour Mill, near Palace Cinema, when the driver slowed down the bus because of speed breaker, one passenger boarded in the running bus. The bus was full of passengers. He further deposed that he requested the said passenger to come up from the stairs. One bus was also stationary at a distance of 100 meter and the said passenger struck against other stationary bus due to which he fell down on the road and sustained injuries. He further deposed that he along with driver / accused took the injured to Hindu Rao Hospital. Police also reached at the hospital.
The witness was crossexamined by the Ld. APP for the State during which he denied the suggestion that the driver /accused stopped the bus near T point Flour Mill and he was picking and dropping the passengers without there being any designated bus stop. He further denied that the bus was being U. ID NO. 02401R0184822000 Page No. 5 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi driven by the accused in rash and negligent manner. He was crossexamined by the Ld. Defence counsel.
(iv) PW4 Sh. Satvir Singh is the registered owner of the bus bearing No. DL1PA1814. He took the said vehicle on superdari vide superdarinama Ex.PW4/A.
(v) PW5 Sh. K.V. Singh, Medical Record Clerk, Hindu Rao Hospital proved the MLC No. 7478/2000 of SI Balbir Singh as Ex.PW5/A.
(vi) PW6 Ct. Mehar Singh deposed that on 20.06.2000, DD no. 7B regarding quarrel was received by IO SI Khalid Akhtar at about 08.20 am and thereafter, he accompanied IO to Roshan Ara Road near Delhi Flour Mill where they came to know that there was no quarrel and in fact an accident had occurred in front of Delhi Flour Mill and the injured has been taken to HRH. IO instructed him to remain at the spot and IO himself went to U. ID NO. 02401R0184822000 Page No. 6 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi HRH. IO returned at the spot at about 10.00 am along with two persons namely Surender and Samsher and it was revealed that Surender was driver of the offending bus bearing No. DL 1PA 1814 and Shamsher was Conductor on the said Bus. Accused Surender pointed out towards the bus bearing No. DL 1PA 1814 which was in stationary condition near road in front of Delhi Flour Mills. IO handed over a tehrir to him. He further deposed that he went to PS, got the case registered and returned at the spot along with copy of FIR and original tehrir and handed over the same to IO. The offending bus was seized by the IO vide seizure memo Ex.PW6/A. Accused Surender was arrested and he produced the documents of the offending bus and one robkar which were seized by the police. Arrest memo, personal search memo and body inspection memo of accused Surender are Ex.PW6/B, PW6/C & PW6/D respectively, seizure memo of U. ID NO. 02401R0184822000 Page No. 7 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi court robkar and photostat copy of D/L of accused are Ex.PW6/E & F respectively. Thereafter, they returned at the PS along with the accused and the offending bus. The bus was deposited in the malkhana by the IO. Accused was released on bail on producing the surety. Witness / PW6 was crossexamined by the Ld. Defence Counsel.
(vii) PW7 SI Khalid Akhter deposed on the same lines of PW6. He supported the prosecution version qua his investigation part. He deposed that he went to the hospital, collected the MLC of the injured and recorded the statement of injured Balbir Singh which is Ex.PW2/A. At the hospital accused and Sh. Shamsher met him. He prepared tehrir Ex.PW7/A, got the case registered through Ct. Mehar Singh. He prepared site plan Ex.PW7/B at the instance of Shamsher Singh, conductor of the offending bus. He proved the seizure memo of offending bus as Ex.PW6/A. He U. ID NO. 02401R0184822000 Page No. 8 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi further deposed about the arrest, personal search and body inspection of the accused vide arrested memo Ex.PW6/A, personal search memo Ex.PW6/C and body inspection memo Ex.PW6/D. The seizure memo of court robkar is ExPW6/E and seizure memo of photocopy of D/L of accused is Ex.PW6/F. After depositing the offending bus in malkhana, accused was released on bail on producing the surety. B/B and P/B in this regard are Ex.PW7/C. The bus was mechanically inspected from ASI (Tech.) Devender Kumar on his request Ex.PW7/D. He proved the detailed mechanical inspection report as Ex.PW7/E. He further deposed about the release of offending bus to its registered owner vide memo Ex.PW4/A. After obtaining the opinion of nature of injury on the MLC, Section 338 IPC was added in the chargesheet. After completion of investigation, he handed over the case file to SHO. He was crossexamined at U. ID NO. 02401R0184822000 Page No. 9 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi length by the Ld. Defence counsel.
(viii) PW8 ASI (Tech.) [retired] Devender Kumar conducted the mechanical inspection of the offending vehicle at the request of SI Khalid Akhtar and proved his detailed report as Ex.PW7/E. Statement of accused and defence
4. After concluding prosecution evidence, accused has been examined u/s 313 CrPC on 18.10.2012 during which he claimed his innocence. He further stated that one passenger i.e. PW2 suffered injuries but he forcibly caught the bus from the back door, although the bus was already overcrowded. The Conductor told the passengers not to board on the bus. The other bus was already standing without there being any bus stop. He denied that due to his negligence, the passenger suffered the injury. He further stated that he was not rash and negligent in driving the offending vehicle rather it was the negligence on the part of the injured that he boarded the bus, which was full of U. ID NO. 02401R0184822000 Page No. 10 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi passengers and even after the warning of the Conductor, stood hanging on the footstep of the bus knowingly that it was dangerous to his life. He preferred to lead evidence in his defence.
5. In his defence, accused has examined Sh. Jagat Singh as DW1, who deposed that he was the regular passenger in the aforementioned bus and used to board from Singhu School Bus Stop upto Hindu Rao Hospital, where he was employed. He further deposed that at about 08.30 am he was sitting in the bus when one passenger tried to board in the running bus despite warning given by the Conductor not to board in. That passenger was adamant and he boarded paying no heed to the request of the Conductor and other passengers. That passenger came in between the two buses and fell down and sustained injuries.
Arguments and appreciation of evidence in the light of legal propositions
6. Ld. Defence counsel firstly argued that as per the initial prosecution case, the place where PW2 boarded, was a designated bus U. ID NO. 02401R0184822000 Page No. 11 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi stop. However, Ld. APP for the State put a case by way of suggestion to PW3 that the accused was picking and dropping the passengers without there being any designated bus stop. He pointed out that the site plan Ex.PW7/B does not depict that there was any bus stop and PW07 / IO also admitted that he had not shown the bus stand in the site plan. Ld. Defence counsel argued that in case the place of boarding of PW2 in the bus was a designated bus stop, the site plan must have depicted it. He contended that in fact, PW2 boarded on a running bus and sustained injuries. He argued that the accused cannot be held guilty for the fault committed by the injured himself.
7. The case of the accused throughout the trial has remained that PW2 boarded on a running bus and sustained injuries. To prove the negligence or rashness on the part of the accused, prosecution also placed reliance upon the witness namely Shamsher but Shamsher / PW3 failed to give any support to the prosecution case. He U. ID NO. 02401R0184822000 Page No. 12 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi unequivocally deposed that he being the Conductor of the bus warned the passenger not to board on the already overcrowded bus. He also requested that passenger to come up from the stairs of the bus. He denied the suggestion given by Ld. APP for the State that the accused was picking and dropping the passengers without there being a designated bus stop. He also denied that accused was rash or negligent in his driving. He also denied that the site plan was prepared at his instance.
8. The indispensable ingredient of Section 279 and 338 IPC is rashness and negligence on the part of the culprit. The absence of any bus stand being depicted in the site plan supports the case of the accused that there was no designated bus stand where PW2 boarded the bus. One prosecution witness namely Shri Shamsher and one defence witness Sh. Jagat Singh deposed in the same lines that the passenger was trying to board in a running bus. If a person boards in a bus which U. ID NO. 02401R0184822000 Page No. 13 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi is not so crowded, within fraction of time he can climb up the stairs. PW2 could not do so and this fact implies that the bus was crowded from inside. PW3 and DW1 stated that the passenger was warned not to climb on the running and overcrowded bus. The driver of a passenger bus is expected to ensure that all the passengers have safely boarded in. However, if a passenger boards in a running bus and sustains injury, it would be unjust to fasten a criminal liability with the driver of the bus. The circumstances of the case demonstrate that the accident occurred within no time after PW2 caught hold of the bus. It is well settled law that prosecution is required to prove its case beyond reasonable doubts whereas the standard of proof expected from the accused is to prove his case on the scale of preponderance of probabilities. I am of the view that prosecution has failed to discharge its burden, although accused has been able to establish his case. In view of the foregoing discussion, I have arrived at a conclusion that it U. ID NO. 02401R0184822000 Page No. 14 of 15 FIR No. 239/2000 S/V Surender U/S 279/338 IPC PS Subzi Mandi could not be proved that the accused was rash or negligent in his driving and both the charges against the accused could not be proved beyond reasonable doubts.
Conclusion
9. In view of the above discussion, there is no evidence on record to prove that accused was driving the vehicle in a rash and negligent manner and thereby caused the grievous injury on the person of the complainant Balbir Singh. The prosecution has failed to prove the charge U/S 279/338 IPC. Accordingly, accused Surender is acquitted for the offences U/S 279/338 IPC. File be consigned to record room.
Announced in open court (Neeraj Gaur)
today i.e. 30.10.2012 MMIII/N, Tis Hazari Courts, Delhi
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