IN THE COURT OF SHRI [ENTITY], METROPOLITAN MAGISTRATE : WEST-05, TIS HAZARI COURTS, DELHI FIR No: 42/2013 P.S. : Anand Parbat [CASE NUMBER] State v. [ENTITY], S/o Late Sh. [ENTITY], R/o House No. 101, Sukhbir Colony, Village Bodhpur,Delhi-110036. Date of institution of case : 18.07.2013 Date of reserving the judgment : (not reserved) Date of pronouncement of judgment : 21.12.2019 JUDGMENT
1. S. No. of the Case: 65844/2016 2. Date of Commission of Offence: 19.03.2013 3. Date of institution of the case: 18.07.2013 4. Name of the complainant: [ENTITY] 5. Name of the accused: [ENTITY] 6. Offence complained or proved: 279/[SECTION] [ACT] 7. Plea of Accused: "Not Guilty" FIR No. 42/13 State v. [ENTITY] 1 of 15 [ENTITY] 8. Final Order: Acquitted 9. Date of Final Order: 21.12.2019 BRIEF FACTS AND REASONS FOR DECISION
1. The trial in the present case took place on the basis of the chargesheet filed in FIR No. 42/2013 [ENTITY] which was registered upon the information of injured [ENTITY]. The case of the prosecution in brief is that the accused [ENTITY] was driving the vehicle bearing registration No. DL1PC-7702 at Military Road, near CNG Pump, Anand Parbat, Delhi in a rash and negligent manner on 19.03.2013 at about 01:30 P.M. and hit the injured [ENTITY] due to which he sustained grievous injuries. The investigation in the above stated FIR was conducted by SI [ENTITY] and he filed the report under [SECTION] [ACT] in the Court on 18.07.2013.
2. The cognizance of the offence was taken and documents were supplied to the accused under [SECTION] [ACT] as he was present in the Court on the same date. The notice under [SECTION] and [SECTION] [ACT] was framed against the accused on 11.12.2013. The accused pleaded not guilty and claimed trial. The prosecution evidence commenced on 11.12.2013 and was concluded on 30.10.2019. The statement of the accused was recorded on 30.10.2019 under [SECTION] [ACT] and the final arguments were heard on 21.12.2019.
FIR No. 42/13 State v. [ENTITY] 2 of 15 [ENTITY]
3. In order to prove its case, the prosecution has examined 11 witnesses. I will be referring to the testimony of the witnesses in brief in the present Judgment.
PW1 Sh. [ENTITY]: The witness deposed that on 19.03.2013 he was standing near CNG Pump at Military Road to cross the road at about 01:00 P.M. and suddenly one DTC bus came on a fast speed and hit him due to which he fell down and the front wheel of the bus ran over his leg. Thereafter, some public persons gathered at the spot and PCR van also came and took him to Lady Hardinge Hospital.
Thereafter, he was taken to Ganga Ram Hospital. He was also treated at Willington Hospital at Gole Market. He remained admitted in the hospital for about 58 days. He also stated that the number of offending bus was given to the PCR officials by some public persons.
Those persons had told the number of the bus as 7702. Police officials had inquired from him and he had shown the place of occurrence to the IO. IO had recorded his statement Ex.PW1/A. The site plan is Ex.PW1/B. FIR No. 42/13 State v. [ENTITY] 3 of 15 [ENTITY] PW2 Sh. [ENTITY], Traffic Inspector: The witness deposed that on 30.03.2013, the IO has served him a notice alongwith the notice under [SECTION] [ACT] which are Ex.PW2/A and Ex.PW2/B. Thereafter on 31.03.2013, he produced the DTC Bus at the [ENTITY] and same was seized vide seizure memo Ex.PW2/C. He also produced the accused before the IO and he was arrested vide memo Ex.PW2/D. He was also personally searched in his presence vide memo Ex.PW2/E. He has also given the duty slip of the accused which is Ex.PW2/F. He also handed over the documents of the offending vehicle which were seized vide Ex.PW2/G. He got the vehicle released from the Court vide document Ex.PW2/H. The copy of the attendance register of the accused of 19.03.2013 is Ex.PW2/I and the GPS location of the bus is Ex.PW2/J. PW3 [ENTITY]: The witness deposed that on 19.03.2013, he has registered the present FIR Ex.PW3/A on the basis of rukka brought by Const. [ENTITY] and sent by SI [ENTITY] at about 5:00 P.M. He also FIR No. 42/13 State v. [ENTITY] 4 of 15 [ENTITY] made endorsement on tehreer which is Ex.PW3/B and also issued certificate under [SECTION] of the [ACT] which is Ex.PW3/C. PW4 [ENTITY]: The witness deposed that on 19.03.2013, he was deputed in PCR unit and he was on duty on the said date, when he received information from control room regarding accident at the Military Road. He went there and found injured [ENTITY] and took him to hospital in PCR van. He was told by the public persons that the number of the bus was 7702.
PW5 ASI [ENTITY]: The witness deposed that on 19.03.2013, he received a call regarding accident in the capacity of Duty officer and he reduced this fact into writing vide DD No. 16A which is Ex.PW5/A (OSR).
PW6 [ENTITY]: The witness deposed that the offending vehicle was deposited in the malkhana by the IO vide entry No. 2052 dated 21.03.2013 and the copy of the entry is FIR No. 42/13 State v. [ENTITY] 5 of 15 [ENTITY] Ex.PW6/A (OSR).
PW7 Const. [ENTITY]: The witness deposed that on 21.03.2013, he joined the investigation with the IO and accused was arrested in his presence and also personally searched. The documents of offending vehicle were also seized in his presence alongwith the offending vehicle.
PW8 Const. [ENTITY]: The witness deposed that on 19.03.2013, he was on emergency duty with the IO and received a DD No. 16A regarding accident at Military Road. Thereafter, they went to the spot and the statement of the injured was recorded by the IO. Then the IO had handed over him a tehreer and he took the same to the police station and got the FIR registered.
PW9 Retd. SI [ENTITY]: The witness deposed that on 10.04.2013, he joined the investigation and he deposited the MLC of the injured at the hospital for opinion with regard to the injury. Thereafter, on 06.05.2013, he collected the result of the MLC alongwith the x-ray report and the nature of injury was stated FIR No. 42/13 State v. [ENTITY] 6 of 15 [ENTITY] as grievous.
PW10 Inspector [ENTITY]: The witness deposed that on 19.03.2013, he received DD No. 16A regarding accident and he went to the spot and came to know that the injured was taken to the hospital. Thereafter, he alongwith Const. [ENTITY] went to the hospital and collected the MLC of the injured. He also recorded the statement of the injured and prepared the tehreer which is Ex.PW10/A and got the FIR registered. Thereafter, he recorded the statement of PCR officials and searched the particulars of the offending vehicle and came to know that the accident was caused by a DTC bus bearing registration No. DL1PC-7702. He gave the notice to the Inspector of Wazirpur Depot and the case property alongwith the accused were produced before him. He seized the offending vehicle alongwith the necessary documents. He also arrested the accused and conducted his personal search. He also seized the driving license of the accused.
PW11 Sh. [ENTITY]: The witness has FIR No. 42/13 State v. [ENTITY] 7 of 15 [ENTITY] mechanically inspected the vehicle bearing registration No. DL1PC-7702 at the report of the IO SI [ENTITY] and his mechanical inspection report is Ex.PW11/A.
4. I have carefully gone through the record and the submissions made by the parties before me. In the present case, it is not in dispute that the injured [ENTITY] sustained grievous injuries as the MLC pertaining to the injured was admitted by the accused under [SECTION] [ACT].
5. The counsel for the accused has argued that they are not disputing the fact that an accident had taken place and injured sustained grievous injuries. Further, registration of the FIR in this regard by the concerned police officials is also not disputed by them. They are disputing the fact that the accident did not take place from the vehicle which was being driven by the accused and even if it is established, the prosecution has miserably failed to prove the negligence or rashness on the part of the accused for causing the injuries to the injured. He has stated that the injured did not know about the number of the offending vehicle and the persons who told the number were not examined in the Court and there is every possibility that the number was taken down wrongly. Further, from the perusal of the testimony of the injured it is clear that the accident took place due to his mistake as he was trying to cross the road without due care. He has improved his version as initially in his complaint given to the police he has stated that he was standing at the FIR No. 42/13 State v. [ENTITY] 8 of 15 [ENTITY] spot. The counsel has emphatically stated that the witness never stated about the speed of the bus and by merely stating that it was being driven at a fast speed cannot be a ground to attribute negligence.
6. The Ld. APP for the State has argued that the prosecution has succeeded in establishing its case as the injured has identified the offending vehicle even though he did not know the number of the bus but the same has been established through the testimony of the PCR officials PW4. Further, the injured has categorically stated that he was hit by the offending vehicle which was coming at a very fast speed and the same is sufficient to establish negligence on the part of the accused.
7. Before proceeding further, it will be relevant to discuss the relevant provisions of law which are involved in the present case. The accused has been served notice under [SECTION] and [SECTION] [ACT]. It will be pertinent to refer to the provision which are as below:-
[SECTION] [ACT]. Rash driving or riding on a public way 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 of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
FIR No. 42/13 State v. [ENTITY] 9 of 15 [ENTITY]
[SECTION] [ACT] . Causing grievous hurt by act endangering life or personal safety of others.
Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
8. [SECTION] [ACT] punishes the driving of a vehicle on a public way in a rash or negligent manner due to which human life will be endangered or the same is likely to cause hurt or injury to any other person. [SECTION] [ACT] on the other hand, punishes any act of a person which is so rash or negligent as is likely to endanger human life or the personal safety of others and due to such act a person gets grievously hurt. Thus, the essence of both the Sections to punish a person is that there should be a rash or negligent act which should be committed by an offender. This is the main ingredient and in the absence of the same, a person cannot be held liable for the above stated offences.
9. The Apex Court has defined rashness/negligence in "[PRECEDENT] wherein it has been held that "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 FIR No. 42/13 State v. [ENTITY] 10 of 15 [ENTITY] 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. The prosecution was under the obligation to prove that the accused was driving the offending vehicle on 19.03.2013 at around 01:30 P.M. at Military Road, near CNG Pump, Anand Parbat, Delhi in a rash and negligent manner so as to endanger human life or the safety of public persons who are on road and further due to this rash and negligent act, he had hit one person namely [ENTITY] due to which he sustained grievous injuries.
11. The prosecution in order to prove that the accused was driving the offending vehicle on the date of accident has examined PW1 Sh. [ENTITY], PW2 [ENTITY], PW4 [ENTITY] and PW10 Inspector [ENTITY]. It has been stated by the PW1 that he did not note down the number of the offending vehicle but it was a DTC bus. PW4 has stated that he was told by the public persons that the number of the vehicle was 7702. PW10 has stated that upon inquiry he came to know that bus No. 7702 pertains to the Wazirpur Depot of the DTC and he came to know about the complete particulars from there with regard to the bus number i.e. DL1PC-7702. It has been admitted by PW4 in his cross examination that he did not note down the number of the persons FIR No. 42/13 State v. [ENTITY] 11 of 15 [ENTITY] who told him about the number of the bus. It is not disputed by the accused that he was the driver of DTC bus and used to ply on the said route. However, there is no eye witness who could say that he has noted down the number, the information received by PW4 is a hearsay information and in the absence of any material witness, the same cannot be relied but the IO has completed his investigation on the basis of the same. The possibility that the bus number might have been noted wrongly by the said public persons cannot be ruled out as there are number of DTC buses which are green in colour are plying in Delhi. Even if it is presumed that the accident took place from the vehicle which was being driven by the accused, the prosecution has failed to establish negligence or rashness aspect also. PW1 has stated in his statement to the police which is Ex.PW1/A that he was standing at the spot, when he was hit by the bus at the fast speed but during his examination in chief he has stated that he was trying to cross the road. Two different versions of the witness creates a doubt with regard to his testimony given in the Court. Further, he has only stated that the bus was coming at a fast speed but he has not stated the speed of the vehicle. Merely stating that the bus was coming at a high speed cannot be a ground to establish the negligence. I will rely upon the Judgment of Hon'ble High Court in case titled as [PRECEDENT] wherein the Court relied upon the Judgment of Hon'ble Supreme Court in case titled as [PRECEDENT] and held as follows:
" the aforesaid observations of the FIR No. 42/13 State v. [ENTITY] 12 of 15 [ENTITY] Supreme Court make it more than clear that a mere allegation of high speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegations that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent. In any event, there is no description or approximation of what was the speed at which the truck was being driven. The expression "high-speed" could range from 30 kilometer per hour to 100 kilometer per hour. It is not even known as to what the speed limit on Mathura Road was and whether the petitioner was exceeding that speeding limit. Therefore, in the absence of material fact, it cannot be said, merely because there is an allegation that the petitioner was driving the truck at a high speed, that the petitioner is guilty of rash or negligent act. "
FIR No. 42/13 State v. [ENTITY] 13 of 15 [ENTITY]
12. The evidence apparent on record is insufficient for basing the conviction for the accused. The benefit of doubt goes in favour of the accused and he is entitled to be exonerated. The burden to prove the case beyond reasonable doubt lies on the shoulder of the prosecution. Every accused is to be presumed innocent until proved guilty. The accused cannot be convicted on the basis of mere probabilities or presumptions. Suspicion howsoever grave may be, cannot take place of proof.
13. In case titled [PRECEDENT] it has been observed by Hon'ble Supreme Court that "The right of accused to obtain the benefit of a reasonable doubt is the necessary outcome and counterpart of the prosecution's undeniable duty to establish its case beyond reasonable doubt and that this right is available to the accused even if he fails to discharge his own duty to prove fully the exception pleaded."
14. In case titled [PRECEDENT] it has been observed by Hon'ble Supreme Court that "Where on the evidence two possibilities were available, one which went in the favour of the prosecution and the other which benefited the accused, the accused was undoubtedly entitled to the benefit of doubt. The principle had special relevance where the guilt of accused was sought to be established by evidence."
15. In view of above discussion, this Court is of view that the FIR No. 42/13 State v. [ENTITY] 14 of 15 [ENTITY] prosecution has not been able to prove its case beyond reasonable doubt. Benefit of doubt goes in favour of accused. Accordingly, accused [ENTITY] is acquitted for the offences punishable under [SECTION] & [SECTION] [ACT].
16. Accused is directed to furnish Bail Bonds under [SECTION] of [ACT] in the sum of Rs.10,000/- which would remain valid for a period of six months.
[ENTITY] Date: 2019.12.24 15:46:07 +0530 Announced in open Court ([ENTITY]) on 21st day of December 2019 Metropolitan Magistrate West-05, Delhi FIR No. 42/13 State v. [ENTITY] 15 of 15 [ENTITY]