Delhi District Court
Sh. Nem Bahadur vs State (Govt. Of Nct Of Delhi) on 1 December, 2017
Criminal Appeal No.157/2017
IN THE COURT OF SH. PULASTYA PRAMACHALA
SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT
KARKARDOOMA COURTS, DELHI
Criminal Appeal No. : 157/2017
Under Section : 279/304A IPC
Police Station : Ghazipur
FIR No. : 232/2011
CNR No. : DLET01-011154-2017
In the matter of :-
SH. NEM BAHADUR
S/o. Sh. Dev Bahadur,
R/o. H.No.282, Mundeli, Teda Ghat,
Khatima, District Udham Singh Nagar, Uttrakhand.
............APPELLANT
VERSUS
STATE (GOVT. OF NCT OF DELHI)
.........RESPONDENT
Date of Institution : 23.09.2017
Date of Receiving : 25.09.2017
Date of reserving judgment : 16.11.2017
Date of pronouncement : 01.12.2017
Decision : Appeal is allowed.
JUDGMENT
1. This is an appeal directed against the judgment of conviction dated 23.08.2017 and order on sentence dated 25.08.2017, passed by trial court in a case titled as State v. Nem Bahadur, bearing FIR No. 232/2011, under Section 279/304A IPC, PS Ghazipur. Vide impugned judgment of conviction dated 23.08.2017, trial court convicted accused Nem Bahadur (appellant herein) for aforesaid offences. Vide impugned order on sentence dated 25.08.2017, ld. trial court sentenced convict Nem Bahadur to undergo simple imprisonment for a period of three months for offence under Section 279 IPC and to undergo simple imprisonment for a period of one year as well as to Page 1 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 pay a lump sum amount of Rs.1 lakh as compensation in favour of LRs of deceased for offence under Section 304A IPC. BRIEF FACTS OF THIS CASE :-
2. Briefly stated, prosecution was launched against appellant with allegations that on 09.08.2011 at about 12:40 PM, while driving a truck bearing no.HR38N-3422, near Murga Mandi, Ghazipur Fly over, appellant hit a cyclist driving his truck in rash and negligent manner and at high speed. On account of this accident, cyclist died.
PW1/Mohd. Rafique Khan was the eyewitness and on the basis of his statement, present FIR was lodged. Appellant was chargesheeted and tried for offence under Section 279/304A IPC. Prosecution examined 13 witnesses to prove its case. Appellant was also examined under Section 313 read with Section 281 Cr.P.C. Appellant did not lead any defence evidence. After hearing submissions from both sides, trial court was concluded into conviction of appellant for offence under Section 279/304A IPC and consequent sentence against the appellant.
GROUNDS : -
3. Being aggrieved of the impugned judgment of conviction and order on sentence, appellant Nem Bahadur preferred this appeal on the following relevant grounds :-
● That the trial court failed to appreciate the material contradictions appearing in the testimonies of PW1. That time and date of the incident is 09.08.2011 at 12:45 PM, whereas PW1/Mr. Rafiq Khan stated in his statement dated 05.03.2014 that incident happened on 09.08.2011 at 12 midnight. That the distance between the place of incident and toll tax is about 50 meters and the question of rash and negligent driving did not arise. That death of deceased might have happened due to fall from toll height or by any blunt Page 2 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 force impact. That there is no eyewitness of the incident and the prosecution has also not produced any eyewitness. That PW4 in his statement disclosed that "Eye witness did not personally tell me regarding identity of accused." That in his statement under Section 313 Cr.P.C read with Section 281 (1) Cr.P.C dated 26.07.2017, accused/ appellant herein categorically denied his presence at the spot on the day of incident.
● That no independent public witness was joined by IO of the present case during the investigation of entire proceedings, while they were easily available on the spot. That all the witnesses are formal being official and interested except PW1, who also did not support the prosecution story. That there was no evidence on the record, which could prove that at the time of alleged accident, the appellant was driving the vehicle in question in rash and negligent manner.
● That the trial court convicted the appellant only on sympathy ground as a young man had died in the alleged accident. ● That the trial court did not appreciate the fact that there was no eye witness of the alleged incident, however, the prosecution cited one alleged eyewitness namely Rafique Khan (PW1) and there are number of contradictions in his deposition as stated above. ● That there is no evidence on the record that appellant was driving the vehicle in high speed, rashly or negligently. Hence, ingredients of Section 279/304A IPC are not fulfilled.
● That LRs of deceased have already got compensation of Rs.6 lakh approx in MACT court.
APPRECIATION OF EVIDENCE AND ARGUMENTS AS WELL AS FINDINGS :-
4. Ld. counsel for appellant argued that case of prosecution was not Page 3 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 proved beyond doubts and prosecution failed to prove if this accident had taken place due to rash or negligent driving of the offending truck. He further submitted that according to PW1 the accident had taken place during mid night, though the case of prosecution is that the accident took place at around 12:40 PM. He further submitted that site plan Ex.PW10/A shows that there was a toll tax booth, which was around 50 meters away from the place of accident. All the trucks stopped at such toll tax booth and therefore, there was no scope of driving the truck at high speed. He further submitted that appellant was not present at the spot at the time of accident nor did he drive the offending truck. He was falsely identified by PW1. He further submitted that police did not bring the caller who informed police at 100 number.
5. In support of his arguments, ld. counsel relied upon certain judgments to submit that simply saying that truck was being driven at high speed does not establish that it was being driven in rash or negligent manner. He further submitted that there is no presumption that the offending vehicle was being driven in rash or negligent manner. The judgments relied upon by ld. counsel for appellant in support of his contentions are as follows :-
● State of Karnataka v. Satish, 1999 [1] JCC [SC] 97. ● Kandhara Singh v. State of Punjab, 2007(4) RCR (Criminal)
679.
● Balbir Singh v. State of Punjab, 2010 (2) RCR (Criminal) 539. ● Madhukar Gaurishankar Swami v. State of Maharashtra, 2008 (1) RCR (Criminal) 409.
● Abdul Subhan v. State of Delhi, 2007(1) RCR (Criminal) 260. ● Vinod Kumar v. State of Delhi, Crl. Rev. P. No.131/2010, decided on 13.10.2011 by Delhi High Court.
6. Per contra, ld. Addl. PP for the State submitted that PW3 had produced accused before IO submitting that he was the driver of offending truck. He further submitted that PW1 deposed that the truck Page 4 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 was being driven at high speed and appellant did not dispute in his cross-examination that the truck was being driven in rash or negligent manner. He further submitted that appellant himself refused to participate in TIP on the grounds that he was present at the spot and he was seen by the persons present there. Therefore, plea of alibi as taken by the appellant under Section 313 Cr.P.C, is not sustainable.
7. To start with the analysis of evidence and rival arguments, it is worth to mention here that following facts are not in dispute. The accident took place between truck bearing no.HR-38N-3422 and bicycle being driven by deceased Mohd. Wakil at the given place and time. It is also not in dispute that this truck belonged to East West Products Limited and appellant was employed there as driver.
8. The dispute revolves around two issues :- (1) whether appellant was driving the offending truck at the time of this accident? (2) whether the offending truck was being driven in rash or negligent manner while causing the accident in question?
9. As far as first issue is concerned, ld. defence counsel relied upon statement of PW1, wherein he deposed that on 09.08.2011 he was on night duty and on that day after 12 mid night he was coming at Murga Mandi, Ghazipur. When he reached under the fly over going ahead from toll tax, he saw truck in question hitting a cyclist while being driven in rash manner and at high speed. Driver of the truck stopped the truck and fled away from the spot.
10.On perusal of trial court record, I find that as per rukka Ex.PW4/A, PW1 met first IO i.e. PW10 on the spot of accident. The accident had taken place at about 12:45 PM. According to PW10, he left PW1 along with Ct. Om Prakash (PW4) at the spot and went to LBS hospital. He obtained MLC of injured, who was declared brought dead. Thereafter, he came back to the spot of accident and recorded Page 5 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 statement of PW1, which was proved as Ex.PW1/A. In Ex.PW1/A, PW1 did mention about time of 12:45 PM, when this accident had taken place. Keeping in view these facts being brought on the record, the above mentioned testimony of PW1 appears to be a case of either confusion or typographical mistake. It is possible that out of some communication gap the term '12 mid night' was used in the testimony of PW1. However, on combined reading of testimony of PW4 and PW10, it is well established that the accident had taken place at around 12:45 PM and PW1 was found present there by these two police officials. PW1 had given his statement before PW10 as eyewitness of the accident. Therefore, aforesaid discrepancy in the testimony of PW1 cannot be fatal for the case of prosecution.
11.The next important piece of evidence is the statement given by appellant before ld. MM during his TIP proceedings. Appellant had admitted this TIP proceedings, during the course of trial. At the time of his production before ld. MM for the purpose of TIP proceedings, appellant refused to participate in the same and gave following statement "On 09.08.2011, I was present at the spot about 12:45 PM, where people have seen me in the day light." For the aforesaid reasons given by appellant, he refused to participate in TIP. Such statement of appellant also shows that he was present at the spot of accident at the time of accident and appellant himself claimed that it was around 12:45 PM, when he was seen by public on the spot during the day light. In the background of such statement given by appellant and the statement given by PW3 that as per record of company appellant was driver of this truck on the given day, I find that identification of appellant as driver of the truck by PW1 before the court, cannot be questioned. It is well apparent that the plea of alibi as taken by appellant under Section 313 Cr.P.C was an after Page 6 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 thought plea. Appellant in fact did not suggest to PW1 that he was not driving the truck at the relevant time and in any case the plea of alibi has to be established by the accused by leading evidence in that regard, that too beyond doubts. Therefore, I do not have any doubt regarding appellant being driver of offending truck at the time of alleged accident.
12.However, the second issue is also very important issue because culpability of the appellant can be based upon the finding on this issue only. The case laws cited by defence counsel make it amply clear that it was duty of the prosecution to establish that the appellant was driving his truck in rash or negligent manner. In the case of Satish (supra) Supreme court also clarified that merely because truck was being driven at high speed, does not speak of either negligence or rashness by itself. As per observations made by the higher courts in the cited case laws even the high speed is to be properly explained by the prosecution witness because it is a relative term.
13.In the present case, PW1 was the only witness of prosecution to narrate the manner in which the accident had taken place. In this regard, PW1 came up with following statement during his testimony before the court "when I reached under the fly over, little ahead from toll tax, I had seen that truck bearing no.HR38N-3422 being driven by its driver at a rash and high speed and hit a cyclist, who fell down on the road."
14.One can find from the above mentioned testimony that no clear cut picture of the accident can emerge so as to visualize if the offending vehicle driver was actually rash or negligent, while hitting the cyclist. In fact, use of term 'rash and negligent driving' by a witness amounts to giving a finding regarding the manner in which the vehicle was Page 7 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 being driven. This had been the old practice of the prosecution to use such terms while examining a witness. Unfortunately, use of such term does not help the court because the court has to take its own call on the basis of appreciation of the factual description of the manner, in which the accident takes place. Court is not to be guided by the opinion formed or decision taken by any witness regarding rash or negligent driving of offending vehicle. Herein, in the present case the witness used two terms i.e. 'rash' and 'high speed'. He was not asked to explain that why did he find the offending truck to be rash. He was also not asked to explain the approximate speed of the truck. In such circumstances, I find that it was not explained by the prosecution as to how this accident took place in categorical terms.
15.It would be advisable for the prosecution as well as for the trial court to seek factual explanation from a witness regarding the manner in which the accident in question takes place, rather than seeking any opinion or decision from the witness regarding rashness or negligence on the part of alleged offending vehicle. The case laws cited by defence also make it clear that there is no presumption of rashness or negligence against the driver of offending vehicle and such fact has to be established beyond doubts by the prosecution.
16.The impugned judgment reflects that ld. Magistrate expected some evidence from the side of appellant to disprove the claim of PW1 and prosecution that he was driving the truck in rash or negligent manner. In my opinion, this was not a legal approach to appreciate the evidence. Onus can be shifted upon the accused only if the prosecution establishes beyond doubt the relevant facts. It is not for the accused to explain that why he should not be assumed to be driving the vehicle in rash or negligent manner nor is he duty bound to explain as to how the accident had taken place. It is for the Page 8 of 9 (Pulastya Pramachala) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi Criminal Appeal No.157/2017 prosecution to establish beyond doubts that the accused was actually driving the vehicle in rash or negligent manner.
17.As already observed by me herein above, sole testimony of PW1 in respect of the manner in which the accident in question took place, is bereft of the necessary details so as to explain in categorical manner if the truck was actually being driven in rash or negligent manner. In these circumstances, no presumption can be raised by this court against the appellant so as to find him guilty for alleged offences. Therefore, appeal is allowed and appellant is acquitted of the alleged charges. Accordingly, impugned judgment of conviction dated 23.08.2017 and order on sentence dated 25.08.2017 are set aside.
18.TCR along with copy of judgment be sent back to the trial court.
File be consigned to record room, as per rules.
Digitally signed by PULASTYA PRAMACHALA PULASTYA Location: Court
PRAMACHALA No.3, Karkardooma
Courts, Delhi
Date: 2017.12.01
15:59:50 +0530
Announced in the open court (PULASTYA PRAMACHALA)
today on 01.12.2017 Special Judge (PC Act) CBI, East
(This order contains 9 pages) Karkardooma Courts, Delhi
Page 9 of 9 (Pulastya Pramachala)
Special Judge (PC Act) CBI, East District
Karkardooma Courts, Delhi