IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT State v. Jaswant FIR No.492/2002 PS Paschim Vihar U/[SECTION] [ACT] JUDGMENT
[CASE NUMBER] New case no. : 70213/16 Date of Institution : 22.02.2003 Date of Commission of Offence : 25.08.2002 Name of the complainant : Sh. [ENTITY] S/o Sh. [ENTITY] R/o 201/1 Gali no.9, Than Singh Nagar, [ENTITY], Delhi Name & address of the accused : [ENTITY] S/o [ENTITY] R/o B-30 Nilothi Extension, Nihar Vihar-II, Nangloi, Delhi Offence complained of : 279/337/304A [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date on which reserved for judgment : 11.08.2016 Date of announcing of judgment : 20.08.2016 BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section State v. [ENTITY] U/s [SECTION] FIR No.492/02 PS Paschim Vihar [SECTION] [ACT]
2. The briefly stated story of the prosecution is that on 25.08.2002, the complainant [ENTITY] alongwith his brother [ENTITY] and friend [ENTITY] were returning from a birthday party on his scooter(two wheeler) bearing registration no. DL-8SC-2132. At about 10.50 pm when they reached near Peera Garhi Fly over, Rohtak Road, the accused [ENTITY] S/o [ENTITY] came driving one bus bearing registration no. DL-1PB-4064 (hereinafter referred to as 'the bus') on route no.879 in a rash and negligent manner and hit the scooter of the complainant. All three scooter riders fell on the road and received injuries. PCR van took the injured persons to Sanjay Gandhi Memorial (SGM) hospital. During treatment the pillon rider [ENTITY] succumbed to the injuries. Thus, the accused is alleged to have committed an offence under Section [SECTION] [ACT]
3. Charge sheet was filed against the accused in the court. Copy of charge-sheet and other scruttable documents were supplied to the accused in compliance of [SECTION] [ACT] Notice under [SECTION] [ACT] for offence under Section [SECTION] [ACT] served upon the accused vide order dated 04.12.2006, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined nine witnesses i.e (1) [ENTITY] (2) [ENTITY] (3) [ENTITY] (4) [ENTITY] (5) [ENTITY] (6) [ENTITY] (7) [ENTITY] (8) ASI [ENTITY] and (9) Inspector State v. [ENTITY] U/[SECTION] [ACT] 2/13 FIR No.492/02 PS Paschim Vihar Rajesh Kumar.
5. PW-1 Ct. [ENTITY] deposed that on the night of 25.08.2002 at about 11.05 pm he received one wireless message from Ct. [ENTITY] regarding the accident between a bus and a scooter at Peera Garhi Chowk. He recorded the said information vide DD no.20 and handed it over to [ENTITY]. [ENTITY] left for the spot alongwith Ct. [ENTITY]. The copy of DD entry is Ex.PW1/A, He further deposed that on the same day at about 2.40 am, Ct. [ENTITY] from SGM hospital telephonically informed that the injured [ENTITY] has expired. He recorded the said information as DD entry no.23 which was handed over to SI [ENTITY]. Copy of the said DD entry is Ex.PW1/B.
6. PW-2 [ENTITY] deposed that on 26.08.2002 he accompanied SI [ENTITY] to SGM hospital on receiving DD entry no.23. IO recorded the statements regarding identification of the dead body of [ENTITY]. The postmortem of the dead body was conducted. Thereafter dead body was handed over to the maternal uncle of the deceased vide memo Ex.PW2/A.
7. PW-3 [ENTITY] had identified the dead body of his cousin [ENTITY] vide his statement Ex.PW3/A. PW-4 [ENTITY], brother of the deceased [ENTITY] had also identified the dead body of [ENTITY]. The dead body was handed over to him vide memo Ex.PW2/A. None of these witnesses were cross-examined by the accused despite opportunity.
State v. [ENTITY] U/[SECTION] [ACT] 3/13 FIR No.492/02 PS Paschim Vihar
8. PW-5 [ENTITY] deposed that in the year 2000 he had gone to Nangloi alongwith his brother [ENTITY] and friend [ENTITY] to celebrate the birthday of his elder brother [ENTITY] on his Scooter LML Select. While returning from Nangloi, they reached at Peera Garhi Flyover at about 11.00- 11.30 pm. One bus came from opposite side and hit their scooter. They fell down and received injuries. One PCR van took them to Sanjay Gandhi Memorial hospital. His statement as recorded by the IO is Ex.PW5/A. The witness identified the accused as the driver of the offending bus. The identity of the bus was not disputed by the accused.
9. During cross-examination, PW-5 stated that the accident had taken place in the year 2002. He could not remember the registration number of the offending bus. He stated that the bus had hit their scooter from the front side. He was sitting in between the deceased and his younger brother. He denied the suggestion that he had not seen the bus coming from Peera Garhi side. They were shifted to the hospital by their elder brother who was coming in his car behind them. He could not tell who called on 100 number as he had become unconscious after the collision. He admitted that he does not know who was driving the offending vehicle at the time of accident as he had become unconscious. He could not remember the date on which his statement was recorded by the IO. He deposed that he regained consciousness after about one week of the accident.
State v. [ENTITY] U/[SECTION] [ACT] 4/13 FIR No.492/02 PS Paschim Vihar
10. PW-6 [ENTITY] deposed that on 25.08.2002 he was coming from Nangloi alongwith his brother [ENTITY] and friend [ENTITY] after celebrating a birthday party on a scooter. At about 10.45-11.00 pm when they reached at Peera Garhi Flyover one bus came from opposite side and hit their scooter. They fell down and received injuries. Someone took them to Sanjay Gandhi Memorial Hospital. This witness could not identify the driver of the offending bus. He also did not depose anything about tge rashness or negligent driving of the accused. Hence, Ld. APP put some leading question to him after taking permission from the court. Ld. APP asked him that the accident in question was the result of rash and negligent driving of the bus. However, in reply he stated "I cannot say." Ld. APP asked whether the accused was the same person who was driving the offending bus at the time of accident. To this the witness replied that he had not seen the driver at the spot.
11. PW-7 [ENTITY] had identified the dead body of the deceased [ENTITY] vide his statement Ex.PW7/A.
12. PW-6 and PW-7 were not cross-examined by the accused despite opportunity.
13. PW-8 ASI [ENTITY] deposed that on 25.08.2002 he was posted as HC at PP Mianwali Nagar, PS Paschim Vihar. On that day he received DD no.20 PP Mianwali Nagar regarding an accident and he alongwith Ct. [ENTITY] went to the spot i.e Peera Garhi Chowk. The bus and the scooter were lying at the spot.
State v. [ENTITY] U/[SECTION] [ACT] 5/13 FIR No.492/02 PS Paschim Vihar
He came to know that injured had been shifted to SGM hospital by PCR van. He left Ct. [ENTITY] at the spot and went to SGM hospital. The injured persons namely [ENTITY], [ENTITY] and [ENTITY] were found admitted vide [CASE NUMBER] respectively. [ENTITY] and [ENTITY] were declared fit for statement while [ENTITY] was unfit for statement. He recorded the statement of [ENTITY] and [ENTITY] and returned to the spot. The accused met him at the spot. He prepared rukka Ex.PW8/A and handed it over to Ct. [ENTITY] for registration of FIR. Ct. [ENTITY] returned to the spot with the original rukka and copy of FIR and handed it over to him. He prepared the site plan Ex.PW8/B at the instance of eye-witnesses [ENTITY] and [ENTITY] who had already reached the spot. He seized the bus and the scooter vide memos Ex.PW8/C and Ex.PW8/D. He seized the driving license of the accused vide memo Ex.PW8/E. He arrested the accused vide memo Ex.PW8/F and conducted his personal search vide memo Ex.PW8/G. Accused was released on bail. He recorded the statement of witnesses. Vehicles were taken to PS Paschim Vihar and deposited in malkhana. Thereafter, further investigation was carried out by SI [ENTITY].
14. During cross-examination, the witness denied the suggestion that injured [ENTITY] was not fit for statement as he remained unconscious for about one week after the accident. He denied the suggestion that he recorded the statement of injured [ENTITY] after one week of the accident. He denied the suggestion that the site plan was prepared while sitting in the Police Station.
State v. [ENTITY] U/[SECTION] [ACT] 6/13 FIR No.492/02 PS Paschim Vihar
15. PW-9 Inspector [ENTITY] deposed that further investigation of this case was marked to him on 26.08.2002. He along with Ct. [ENTITY] went to SGM Hospital. He prepared the inquest papers and handed it over to the incharge of Department of Forensic Medicine for the postmortem of the dead body of the deceased [ENTITY]. Same is Ex.PW9/A. After postmortem, the dead body was handed over to the relatives of the deceased. The dead body was identified by [ENTITY] and [ENTITY] vide their statements Ex.PW9/B and Ex.PW7/A. The mechanical inspection of the bus and the scooter was conducted. He deposited the MLCs at Sanjay Gandhi Hospital for final opinion. On 20.09.2002, he handed over the file to MHC(R) as he was transferred. During cross- examination the witness stated that he could not remember whether he had recorded the statement of any witness under [SECTION] [ACT]
16. Vide his separate statement recorded under [SECTION] [ACT], the accused admitted the genuineness of the death report (Ex. A1), MLC report of [ENTITY], [ENTITY] and [ENTITY] (Ex. A2, A3 and A4), postmortem report of [ENTITY] (Ex.A5), X-ray report no.4422/14 (Ex.A6) and FIR no.492/02 (Ex.A7). Hence, the name of witness Dr. [ENTITY], Dr. [ENTITY], [ENTITY] and Dr. [ENTITY] were dropped from the list of witnesses.
17. Thereafter, the Prosecution evidence was closed. Statement of accused was recorded u/[SECTION] [ACT], wherein he denied all the allegations and pleaded State v. [ENTITY] U/[SECTION] [ACT] 7/13 FIR No.492/02 PS Paschim Vihar innocence. The accused admitted that he was driving the above-mentioned bus at the alleged date, time and place. However, he denied that he was driving in a rash and negligent manner or that the accident had taken place with his bus.
18. I have heard the submissions made by the Learned APP for state and the Learned Counsel for accused and carefully perused the evidence and the documents on record.
19. Learned Counsel for accused has submitted that the prosecution has failed to prove its case beyond reasonable doubt. He has submitted that PW-6 has turned hostile and has failed to support the story of the prosecution. Also, PW-5 has admitted in his cross-examination that he had not seen the bus driver as he had become unconscious after the accident. The counsel has submitted that it was the injured persons who had acted in rash and negligent manner. They were tripling on the scooter and none of them was wearing helmet. Further, as per MLC of [ENTITY], alcohol was found positive in his breath.
20. Per contra, Learned APP has submitted that the prosecution has successfully proved its case as PW-5 has duly identified the accused and has supported the story of the prosecution. Hence the accused is liable to be convicted.
21. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution, that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
State v. [ENTITY] U/[SECTION] [ACT] 8/13 FIR No.492/02 PS Paschim Vihar
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
22. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the [ACT]. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
23. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of "[PRECEDENT] as under :
"Criminal negligence on the other hand, 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, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances State v. [ENTITY] U/s [SECTION] FIR No.492/02 PS Paschim Vihar of each case".
24. In the case at hand, the star witness of the prosecution are PW-5 and PW-6 being the eye-witnesses and the injured. However, PW-6 has failed to support the story of the prosecution. Though he deposed that an accident had taken place between their scooter and a bus, he failed to identify the accused as the driver of the offending bus. He has also not deposed anything about the rash and negligent driving of the accused. He even stated that he could not say which if the two drivers had acted in a rash and negligent manner. Hence, PW-6 has failed to support the story of the prosecution.
25. The other eye-witness PW-5 deposed about the accident and has also identified the accused as the driver of the offending vehicle. However, in his cross- examination, he denied that he had not seen the accused driving the bus as he had become unconscious. Infact, he stated that he had not regained consciousness till after one week of the accident. The relevant portion of his testimony is reproduced verbatim as under:-
"It is correct that I do not know who was driving the offending vehicle at that time, as after the collision I became unconscious. My statement was recorded by the IO at Sanjay Gandhi Memorial hospital. However, I do not remember the date. I regained consciousness after one week of the accident."
State v. [ENTITY] U/[SECTION] [ACT] 10/13 FIR No.492/02 PS Paschim Vihar
26. In view of the contradiction in the statement of this witness, the court is of the opinion that his testimony has become unreliable and unworthy of credit.
27. Another point of contradiction is the site plan. As per the site plan Ex.PW8/B, the scooter was coming from the side of Nangloi and the bus was coming from left side i.e Mangolpuri side. However, both PW-5 and PW-6 have deposed that the bus was coming from the opposite site i.e from Punjabi Bagh. This is yet another contradiction which further dilutes the testimony of PW-5 and PW-6.
28. Also, PW-5 has deposed that they were taken to Sanjay Gandhi Memorial hospital by their elder brother, who was coming in a car behind them. However, there is no mention of their elder brother's name in the MLC of any of the injured persons, nor his statement has been recorded by the IO.
29. Not only this, there are no photographs of the spot on record. In the site plan Ex.PW8/B, IO has indicated the path of the scooter as well as the bus. However, he has failed to indicate whether the traffic signal was red for the bus or not. In fact, he has not made any investigation on this point.
30. In the case titled "[PRECEDENT], it was held by the Hon'ble High Court of Delhi as below, "13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerened by courts.
State v. [ENTITY] U/[SECTION] [ACT] 11/13 FIR No.492/02 PS Paschim Vihar 13.4 The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5 Furthermore the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.
13.7 Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity needs to be eliminated."
31. It is a cardinal principle of criminal jurisprudence that prosecution is supposed to prove its case beyond reasonable doubts by leading reliable, cogent and State v. [ENTITY] U/[SECTION] [ACT] 12/13 FIR No.492/02 PS Paschim Vihar convincing evidence. Further, it is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such reason doubt in the prosecution case entitles the accused to acquittal.
32. In the case at hand, the testimony of both the eye witnesses, PW-5 and PW-6 has been found to be not reliable. Also there are various discrepancies and loopholes in the investigation.
33. In view of the above discussion, the court is of the opinion that the prosecution has failed to prove its case beyond reasonable doubt. It has not been proved that the accident in question was caused due to the rash and negligent driving of the accused or that the death of [ENTITY] was a result of the rash and negligent act of the accused. The accused is entitled to be acquitted. Accordingly, accused [ENTITY] s/o [ENTITY] is acquitted of charge under Section [SECTION] [ACT].
34. As per [SECTION] [ACT], the accused is admitted to bail on his furnishing bail bond in the sum of Rs.10,000/- with one surety of like amount. ANNOUNCED IN THE OPEN COURT ON 20.08.2016 ([ENTITY]) MM-07 (West), THC, Delhi State v. [ENTITY] U/s [SECTION] FIR No.492/02 PS Paschim Vihar