1 IN THE COURT OF MS. [ENTITY]: METROPOLITAN MAGISTRATE02 (CENTRAL), TIS HAZARI COURTS:DELHI State Vs. [ENTITY] FIR No. 136/09 U/s: 279/304A [ACT] P.S. Timar Pur CNR No. DLCT020005232011 J U D G M E N T
Unique Identification No. : 291601/16 Date of Institution : 21.03.2011 Date on which case reserved for judgment : 23.05.2019 Date of judgment : 24.05.2019 Name of the complainant : [ENTITY] Date of the commission of offence : 06.08.2009 Name of accused : [ENTITY], S/o Sh. [ENTITY], R/o. Village Gajbad District Panipat, Haryana. Offence complained of : U/[SECTION] A [ACT] Offence charged of : U/[SECTION] A [ACT] Plea of the accused : Pleaded not guilty. Final order : Convicted FIR No .136/09, State vs. [ENTITY]
1. The brief facts of the case as per prosecution are that on 06.08.2009, at about 6:26 a.m., the accused came driving one truck bearing no. HR 45A 3788 and as he reached in the middle of the Yamuna River Bridge, Timarpur within jurisdiction of P.S. Timarpur, he struck against one rickshaw puller who was riding his cycle rickshaw, from behind due to which the rickshaw puller was flung in the air and later was crushed under the tyre of the truck, causing his instant death. It is alleged that accused drove the vehicle in a rash or negligent manner and the accident had occurred due to his fault. PCR call with regard to accident was made. The accused was apprehended at some distance from the spot of accident by a public person and police officials, pursuant to which FIR was got registered against him.
2. Investigation pursuant to the registration of FIR was conducted by the police officials. On conclusion of the investigation, chargesheet was filed in terms of [SECTION] [ACT] for the offences under [SECTION] [ACT]. The court took cognizance of the offences, summoned the accused and on his appearance, the copy of the challan was supplied to him in compliance with the provision under [SECTION] [ACT]
3. On the basis of the contents of the chargesheet, the substance of accusation was explained to the accused in terms of [SECTION] [ACT] for the commission of offences under [SECTION] [ACT]. The accused did not plead guilty and claimed to be tried.
4. To establish the guilt of the accused, the prosecution examined a total of nine witnesses. The record of their testimonies is as under:
PW1 [ENTITY] deposed that on 06.08.2009, at about 6.30 am, he was going to drop his daughter at Delhi University Metro Station by his bike. He FIR No .136/09, State vs. [ENTITY] stated that when they reached at Wazirabad Yamuna Bridge, he saw one truck bearing no. HR 45A 3788 hit one rickshaw from behind, the rickshaw puller was flung in the air due to the impact and thereafter, when he fell down the truck ran over the body of rickshaw puller. He stated that blood spread all over the spot, but the accused tried to run away with his abovesaid truck by increasing its spread. He stated that he chased him and overtook him after crossing the Yamuna Bridge near Chhoti Puliya at Ganda Naala which was at a distance of 40 meters from the Yamuna Bridge. He stated that he took out the accused from the truck and handed him over to the police officer of Delhi traffic police and made call at 100 number. He stated that name of driver is [ENTITY] and witness identified the accused in court. He stated that the rickshaw was although in high speed and was trying to cross the Yamuna Bridge. He stated that the offending vehicle was also in high speed and both the vehicles were in the same lane. He further stated that the offending vehicle was behind the rickshaw. He stated that thereafter, the witness went to the metro station, dropped his daughter and came back home, thereafter, he received a call from PS. Timarpur and was called there. He stated that thereafter, he went to the PS and informed the police officials about the incident who had recorded his statement as EX.PW1/A. He stated that the offending vehicle and rickshaw were taken to PS. Timarpur, dead body of deceased was removed from the spot. He stated that accused was arrested and his personal search was conducted vide memo EX.PW1/B & EXPW1/C and police prepared site plan at the instance of complainant EX.PW1/D. The accused did not dispute the identity of the offending vehicle during the testimony of the witness.
PW2 [ENTITY] deposed that on 06.08.2009, he was posted as HC and worked as duty officer from 8 am to 4 pm and on that day, he received [ENTITY] at about 8.10 am, from Ct. [ENTITY] sent by SI [ENTITY]. He deposed that on the basis of [ENTITY], he registered the FIR proved as EX.PW2/A(OSR) and made endorsement on [ENTITY] proved as EX.PW8/B. FIR No .136/09, State vs. [ENTITY] PW3 [ENTITY] deposed that on 06.08.2009, he was on emergency duty, when duty officer handed him over one DD entry to hand over to SI [ENTITY]. He stated that he went to Wazirabad Tpoint along with DD entry and handed over the same to SI [ENTITY]. Witness stated that thereafter, he along with Ct. [ENTITY] and SI [ENTITY] went to the spot i.e. Wazirabad bridge where they found one rickshaw in accidental condition and one dead body was found lying near the rickshaw on the road. Witness stated that the offending truck bearing no. HR 45A 3788 was stationed at a distance of around 100 to 150 meters and the accused was also present there. Witness stated that IO seized the driving license of the accused vide seizure memo EX.PW3/A, took dead body to the mortuary, got the postmortem of the dead body conducted and after proper identification, the dead body was handed over to the relative of deceased vide memo EX.PW3/B. Witness identified the accused in the court and also identified the face of the deceased, one cycle rickshaw from the photographs which are EX.PW3/P1(colly).
PW4 [ENTITY], Retired ASI (Tech.) deposed that on 06.08.2009, he mechanically inspected one Eicher truck bearing no. HR 45A 3788 on the request of SI [ENTITY] from PS. Timarpur. Witness proved his mechanical inspection report as EX.PW4/A. PW5 [ENTITY], deposed that he was the registered owner of vehicle i.e. truck bearing registration No. HR 45A 3788 and on 13.08.2009, he received a notice from police officials of PS Timar Pur to the effect as to who was driving the aforesaid vehicle on 06.08.2009. He stated that the said notice was replied to by him and the said reply is Ex.PW5/A and at the time of accident, accused [ENTITY] was driver on his aforesaid vehicle. He stated that he had got released the aforesaid vehicle on superdari from the Court and superdarinama in this regard is Ex.PW5/B. Witness proved four photographs of the said vehicle along with one photograph of Chasis number in the Court and same is Ex.P4(colly).
PW6 Dr. [ENTITY], Specialist Forensic Medicine, Sabzi Mandi FIR No .136/09, State vs. [ENTITY] Mortuary deposed that on 06.08.2009, he was working as Junior Specialist at Aruna Asaf Ali Hospital, Sabzi Mandi Mortuary and on that day, one dead body of person namely [ENTITY] was brought before him and identified by [ENTITY] in law of deceased), [ENTITY] of deceased) and sent by SI [ENTITY]. He stated that after postmortem, he prepared postmortem report bearing number 1392/2009 at around 3:45 p.m. and prepared his report as EX.PW6/A, thereafter. He stated that as per his opinion, the cause of death was the combined effect of Carcinocerebral damage and Haemorrhagic shock and the time since death is around 8 to 12 hours.
PW7 [ENTITY] deposed that on 06.08.2009, he received information about the death of his relative and he identified the dead body of deceased and his statement to this effect is EX.PW7/A. PW8 [ENTITY] deposed that on 06.08.2009, he received information about the death of his relative and he identified the dead body of deceased and his statement to this effect is EX.PW8/A. PW9 Inspector [ENTITY] deposed that on 06.08.2009, he was posted as SI at PS. Timar Pur and on that day, he was on night duty from 8 pm to 8 am. He stated that on that day, at about 6.30 am, Ct. [ENTITY] met him and handed him over DD no. 14B regarding an accident at Wazirabad Bridge. Thereafter, he along with Ct. [ENTITY] and Ct. [ENTITY] left for the spot and at the spot, he noticed one rickshaw lying in accidental condition in the middle of the bridge and the rickshaw puller was also lying on the road in injured condition and blood was oozing out from his body. He stated that at the spot, he also met with complainant namely [ENTITY] who stated that he was the eye witness of the incident and saw that one truck bearing no. HR 45A 3788 had hit against the said rickshaw from behind. He stated that [ENTITY] also handed over to him accused [ENTITY] as the driver of the offending vehicle. He stated that he recorded the statement of [ENTITY] which is already proved as EX.PW1/A. He stated that complainant also FIR No .136/09, State vs. [ENTITY] stated that he stopped the offending vehicle at Wazirabad traffic signal, which was fleeing away after the incident. He stated that he prepared the [ENTITY] on the statement of the complainant which is EX.PW9/A. He stated that the rickshaw puller had already expired and thus he sent his dead body along with Ct. [ENTITY] to Sabzi Mandi Mortuary. He stated that he also sent Ct. [ENTITY] with [ENTITY] to get the case registered. He stated that in the meantime, he prepared the site plan on the instance of the complainant which is already EX.PW1/D and Ct. [ENTITY] came to the spot after getting the FIR registered and handed over to the witness the original tehrir and copy of FIR. He stated that thereafter, he seized the rickshaw and offending vehicle vide seizure memos EX.PW9/B and EX.PW9/C. He stated that he also seized the DL of accused and RC of truck vide memos already EX.PW3/A and EX.PW9/D. He stated that he also seized the copy of insurance and permit vide memo EX.PW9/E and after interrogation of the accused driver [ENTITY] present in the court, he arrested him vide memo already EX.PW1/B. He stated that personal search of the accused was also conducted vide memo already EX.PW1/C and thereafter, accused was released on bail. He stated that after identification of dead body, its postmortem was got conducted. He stated that he recorded the statement of [ENTITY] and [ENTITY] regarding the same which are already EX.PW8/A and EX.PW7/A respectively and thereafter, the dead body was handed over to the legal heirs of the deceased vide memo already EX.PW3/A. He stated that he also got the mechanical inspection of the offending vehicle conducted. He stated that thereafter, the offending vehicle was released on superdari by the order of the court. He stated that he also obtained the PM report and served notice u/[SECTION] [ACT] to the owner of the vehicle who filed his reply which is already EX.PW5/A. He stated that thereafter, he was transferred and the case file was handed over to the MHC(R). The identity of offending vehicle is not disputed by defence. Witness also identified the photographs of cycle rickshaw already EX.PW3/P1.
FIR No .136/09, State vs. [ENTITY]
5. On completion of prosecution's evidence, all the incriminating facts and evidence were put to the accused, as per the mandate of [SECTION]/[SECTION] [ACT] and he was afforded an opportunity to explain the incriminating circumstances. Accused refused to lead defence evidence.
6. Final arguments were heard and record of the case was perused meticulously.
Ld. APP for the State Shri [ENTITY] argued that prosecution has proved its case against the accused beyond all reasonable doubt, hence, the accused be convicted in the present case. Ld. Counsel for the accused per contra argued that the investigation was malafidely conducted by the IO and the accused has been falsely implicated in the present case. He further stated that there are various loopholes in the investigation due to which the accused is liable to be acquitted in the present case.
7. Having heard the final arguments from rival parties, let us now examine whether prosecution has successfully proved the case against the accused beyond all reasonable doubt or not. In the present case, the accused [ENTITY] has been tried for commission of offence punishable under [SECTION] [ACT].
8. It is settled position of law that [SECTION] [ACT] punishes the act of a person driving or riding a vehicle on a 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. [SECTION] [ACT] on the other hand punishes the act of causing death (not amounting to culpable homicide) of a person by doing a rash or negligent act. With what would constitute a rash or negligent act, the Hon'ble High Court of Delhi in [PRECEDENT], has observed:
"As observed in [PRECEDENT] (supra) the essential ingredients of [SECTION] [ACT] are that there must be rash and negligent driving or riding on a public way and FIR No .136/09, State vs. [ENTITY] the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under [SECTION] [ACT], it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in [PRECEDENT] (supra), to establish the offence either under [SECTION] or [SECTION], the commission of a rash and negligent act has to be proved."
9. Further, in [PRECEDENT], (Decided on 28 July, 2000), the Hon'ble Supreme Court observed:
"A rash act is primarily an over hasty 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 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."
10. Besides the ingredients mentioned above, the identity of the accused as driver of the vehicle must also be established separately by prosecution, in order to prove the guilt of accused.
11. With regard to the identity of the accused as the driver of the offending vehicle, it is essential to note that the evidence of PW5 Sh. [ENTITY] who appeared in the dock as the registered owner of the vehicle deposed, that he had received notice u/[SECTION] [ACT] from the police officials on 13.08.2009, and deposed that in his reply to the notice proved as EX.PW5/A, he had stated that at the time of accident the custody/possession of his truck had been handed over to the accused. This testimony of PW5 is duly corroborated by the statement of the accused recorded u/[SECTION]/[SECTION] [ACT] who admitted that on the day of the FIR No .136/09, State vs. [ENTITY] accident, he was driving the truck bearing no. HR 45A 3788. Hence, it is undisputed that at the time of accident, the accused only and no one else was the driver of truck bearing no. HR 45A 3788.
12. The next ingredient that the prosecution had to establish during trial was that the accused was driving the truck in a rash or negligent manner and the accident in question had occurred due to his fault and due to his rash or negligent driving. For establishing the ingredient abovementioned, the prosecution examined one person named as [ENTITY] as the eyewitness of the accident. The witness was duly cross examined at length by Ld. Counsel for accused and from the very inception of his evidence, the witness has cogently described how the accident in question had occurred. He clearly deposed that on the day of accident i.e. on 06.08.2009, at about 6.30 am, when he was going to drop his daughter to the Delhi University Metro Station, enroute he observed one truck bearing no. HR 45A 3788 hit one rickshaw from behind. The witness further deposed that the rickshaw puller was flung in the air due to the impact and after he fell down on the road, the truck was run over his body which resulted in spreading of blood all over the spot. It is further essential to record that the witness has clearly deposed that he chased the truck upto certain distance of 40 meters, after crossing the Yamuna Bridge near the Chhoti Puliya and after intercepting the truck he took out the accused from the said truck and handed him over to the police officer of Delhi Traffic police. The point essential to be mentioned here is, that even the accused in his statement recorded u/[SECTION] [ACT] has clearly stated that as he took a turn towards the Azad Pur side after crossing the spot of accident, he was intercepted by one car and the car driver told him that he had caused one accident. The accused also corroborated the presence of police officials at the spot where he was intercepted, which fact is supportive of the evidence of PW1. Regarding the factum of how the accident occurred, the witness has further stated that the rickshaw was in high speed when it FIR No .136/09, State vs. [ENTITY] was trying to cross the Yamuna Bridge and the offending vehicle which was also in high speed i.e. at a speed of 4045 Km/ph was behind the rickshaw. I have carefully examined the crossexamination of PW1 where he has stood firm and unimpeached in his evidence. No material discrepancy or variation could be elicited in his cross examination by the Ld. Counsel for accused. The witness clearly appears to be a trustworthy witness who has elaborately deposed about the occurrence observed by him. It is further undisputed that the accused was arrested at some distance from the spot which factum has also been corroborated by him in his statement recorded u/[SECTION] [ACT] However, from a perusal of the evidence of PW1, it is further shown that the witness has deposed that the rickshaw was hit from behind by the truck. With regard to hitting the vehicle of the victim from behind, Ld. APP for State submitted that negligence in driving the truck is manifest, ought to be presumed and is more than clear from the fact that the rickshaw of deceased was hit from behind by the truck. Ld. APP for State has relied on the decision of Hon'ble High Court of Delhi in [PRECEDENT], (Decided on 22.04.2003). From a perusal of the abovementioned decision, it is clear that in the said case rashness or negligence in driving the vehicle has been clearly attributed to the driver of the offending vehicle who hits another vehicle from behind, unless the accused/driver is able to cogently establish in his defence that the driver of the vehicle of victim/injured had suddenly applied brakes, leading to the collision between the two vehicles. The Hon'ble High court of Delhi in [PRECEDENT], (Decided on 13.10.2015) also upheld the conviction of the accused in the circumstances where the evidence on record suggested that the vehicle of the victim was hit by the offending vehicle from behind in the absence of a convincing defence.
13. In the present case admittedly, PW1 has not deposed that the offending truck was being driven either in a rash or negligent manner. Be that as it may, in a recent decision the Hon'ble Delhi High Court in the case of Kishore Chand Joshi v. State, FIR No .136/09, State vs. [ENTITY] (Judgment delivered on 12.11.2018), observed:
"17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligent". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver."
Hence, relying on the principle laid down by the Hon'ble High Court of Delhi in the abovementioned cases, it is clear that PW1, has explained elaborately the manner in which the accused was driving the offending vehicle on the day of accident and how he had caused the death of the deceased by hitting the rickshaw from behind and by running the truck over the body of deceased after he landed on the road after the hit. Rashness explicitly lies in the fact that the accused failed to stop the truck even after hitting the cycle rickshaw. Therefore, the prosecution has establish beyond reasonable doubt the rashness in driving the offending vehicle by the accused.
14. Ld. Counsel for the accused while advancing final arguments contended that a material aspect which weakens the prosecution's case is that the cycle rickshaw which was driven by the deceased at the time of accident was not proved in evidence inspite of the fact that it was seized by the IO. He stated that instead of the cycle rickshaw merely one bicycle has been proved by the prosecution, which is definitely not the vehicle of the victim. He argued that this being a major loophole in the investigation conducted by IO creates doubt in the whole story of the prosecution for which benefit of doubt ought to be given to the accused. In this regard, it is essential to note that the settled proposition of law is that if by way of cogent evidence, the prosecution succeeds in establishing the guilt of accused then, merely due to certain loopholes in the investigation conducted by the IO, the FIR No .136/09, State vs. [ENTITY] accused is not entitled to an acquittal. In the case of [PRECEDENT], it was observed by the Supreme Court that if the direct evidence is credible and trustworthy, failure, defect or negligence in investigation cannot adversely effect the prosecution's case, though, the court should be circumspect in evaluating the evidence. The mandate of the abovementioned decision has also been followed by the Hon'ble High Court of Delhi in [PRECEDENT], (Decided on 20.05.2019). Therefore, the loopholes suggested by the Ld. Counsel for accused cannot be considered so material as to be going to the root of the matter and as a ground for acquittal of accused when the direct evidence of the eyewitness is found trustworthy and believable.
15. The mechanical inspection report proved as EX.PW4/A elicits dent on the front portion of the truck. Besides this, the postmortem report of PW6 proved as EX.PW6/A clearly proves the cause of death as Carcinocerebral damage and Hemorrhage shock which can be caused due to a road traffic accident. Prosecution has proved its case against accused beyond all reasonable doubt.
16. Thus, in view of the foregoing discussion, the accused [ENTITY] S/o. Sh. [ENTITY] is convicted in the present case for the offences punishable u/[SECTION] [ACT]. Digitally signed by [ENTITY] Date: 2019.06.21 MISHRA 17:34:04 +0530 Pronounced in open court ([ENTITY]) on 24.05.2019 MM02 (Central): Tis Hazari Courts Courts:Delhi:/24.05.2019 (This Judgment contains 12 pages and all pages are signed by me) FIR No .136/09, State vs. [ENTITY]