IN THE COURT OF SH. NAVJEET BUDHIRAJA, METROPOLITAN MAGISTRATE04, SOUTH DISTRICT, NEW DELHI STATE VS. [ENTITY] FIR NO: 141/03 P. S. Sangam Vihar U/[SECTION] A [ACT] Unique ID no. 02403R0347272003 JUDGMENT
Sl. No. of the case : 378/2 (19.7.2003) Date of its institution : 19.7.2003 Name of the complainant : Sh. [ENTITY], S/o Sh. [ENTITY], R/o L980/23, Sangam Vihar, New Delhi. Date of Commission of offence : 24.3.2003 Name of the accused : [ENTITY], S/o Sh. [ENTITY], R/o Village Pehri, PS Mursan, Distt Mahamaya Nagar, Hathras, U.P. Offence complained of : [SECTION] A [ACT] Plea of accused : Not guilty Case reserved for orders : 17.7.2014 Date of judgment : 1.8.2014 Final Order : ACQUITTED BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused [ENTITY] upon the police report filed by P.S. Sangam Vihar u/[SECTION] A of [ACT] (for short '[ACT]') subsequent to the investigation carried out by them in FIR no. 141/03.
2. To trace the brief facts, on 24.3.2003, upon receipt of DD 14 [ENTITY], ASI State Vs. [ENTITY] 1/11 FIR no. 141/03 [ENTITY] and Ct. [ENTITY] reached the spot at opposite Sulabh Shauchalaya, Lal Kuan, MB Road where on the road deceased [ENTITY], S/o [ENTITY], R/o H.no. 57/9, Gali no. 7, Tughlakabad Extension was found met with an accident and his scooter was also found present at the spot alongwith one crane. ASI [ENTITY] photographed the spot, victim was admitted to AIIMS hospital. One eye witness namely [ENTITY], S/o [ENTITY] was found at the spot whose statement was recorded to the effect that on24.3.2003 at about 3.10 pm, he was going from Pul Prahlad Pur to Sangam Vihar and when he reached near Sulabh Shauchalaya, Lal Kuan he saw one person was coming towards Pul Prahlad Pur. In the meantime, one crane no. HR 46A 3092 took a U turn and hit against a scooter no. DL 3SB 3365 due to which scooter rider fell on the road and the crane ran over his stomach. Driver of the crane got down and ran away from the spot. On dated 24.3.2003 at 7.35 pm, the abovesaid statement of the witness was dispatched for registration of the FIR which was recorded upon DD no. 11A at 8.05 pm. This statement formed the foundation of the registration of the present case. Thereafter, IO/ASI [ENTITY] embarked upon the investigation into the present case wherein he recorded the statement of some material witnesses namely [ENTITY], [ENTITY], [ENTITY], Ct. [ENTITY], [ENTITY], [ENTITY], Ct. [ENTITY] and also collected certain documentary evidence.
3. It was based on the above investigation, the prosecution proceeded against the accused. Accused was formally charged under [SECTION] A [ACT] to which he pleaded not guilty and claimed to be tried.
4. To substantiate the charges, the prosecution examined as many as eleven witnesses. The prosecution exhibited number of documents which included site plan Ex.PW11/C, DD no. 17 Mark A seizure memo of scooter Ex.PW2/B, seizure memo of crane Ex.PW2/C, notice u/[SECTION] [ACT] Ex.PW11/B, reply to the notice u/[SECTION] [ACT] Ex.PW1/A, arrest memo Ex.PW10/A, personal search memo Ex.PW10/B, seizure State Vs. [ENTITY] 2/11 FIR no. 141/03 memo of DL Ex.PW10/C, seizure memo of insurance Ex.PW10/D, seizure memo of RC Ex.PW10/E, dead body identification memo Ex.PW5/A, mechanical inspection of vehicle no. DL 8SF 3365 Ex.PW6/A, mechanical inspection of vehicle no. HR 46A 3092.
5. PW 1 Sh. [ENTITY], registered owner of the offending crane deposed that on the relevant date and time, accused was driving the offending crane. He also proved his reply to the notice u/[SECTION] [ACT] as Ex.PW1/A. He was not cross examined by Ld. Counsel for the accused despite according opportunity.
6. PW 2 Sh. [ENTITY] deposed that on 24th about two years ago from 7.9.2005 at about 3.30 pm, he was coming from Pul Prahlad Pur on his scooter and was proceeding towards Mehrauli. When he reached at Lal Kuan one person was found coming on the scooter who was on his right side and coming from the side of Tughlakabad and was proceeding towards Pul Prahlad Pur. On the road there was a cut. In the meantime, a crane took a U turn without caring the traffic rules and from the cut run over the abdomen and after that struck against bus stand. The number of crane was 3092 and was of Haryana number. Huge crowd gathered at the spot. Police recorded his statement Ex.PW2/A in the police post. The scooter and crane were taken into possession by the investigating officer vide memo Ex.PW2/B. He was cross examined by Ld. Counsel for the accused.
7. PW 3 Sh. [ENTITY] identified the dead body of his son [ENTITY] in the mortuary of hospital vide his identification statement Ex.PW3/A. He was not cross examined by Ld. Counsel for accused despite according opportunity.
8. PW 4 Sh. [ENTITY], the then Ld. ADJ who deposed that on 11.4.2003 he was working as MM in New Delhi and on that day an application for holding the TIP proceedings of accused [ENTITY] was assigned to him by Ld. Link MM. The accused was produced before him in muffled face by ASI [ENTITY] who identified State Vs. [ENTITY] 3/11 FIR no. 141/03 the accused vide endorsement Ex.PW4/A. The accused was told about the TIP and that the name of witness who has to come to identify him. Accused was asked about his willingness to participate in the TIP. Accused refused to participate in the TIP. He was duly warned that his refusal to take part in the TIP shall read against him and adverse inference shall be drawn against him during trial. He still persisted in refusing to participate in the TIP stating that the witness has seen him in the police station. His statement Ex.PW4/B to this effect was recorded. He proved the TIP proceedings as Ex.PW4/C upon application Ex.PW4/D. He was not cross examined by Ld. Counsel for accused despite according opportunity.
9. PW 5 SI [ENTITY] deposed that on 25.3.2003 the postmortem of the dead body of deceased [ENTITY] was conducted at AIIMS mortuary and the dead body of the deceased was handed over to the relatives after identification and he recorded the statement of [ENTITY] and [ENTITY] vide Ex.PW3/A and Ex.PW5/A. He was not cross examined by Ld. Counsel for accused despite according opportunity.
10. PW 6 Sh. [ENTITY] proved the mechanical inspection of scooter no. DL 3SF 3365 and crane no. HR 46A 3092 as Ex.PW6/A and Ex.PW6/B. He was not cross examined by Ld. Counsel for accused despite according opportunity.
11. PW 7 [ENTITY] deposed that on 24.3.2003 on receipt of call vide DD no. 17, he alongwith ASI [ENTITY] went to the spot near toilet, Lal Kuan, MB road where one injured was lying on road and one scooter no. HR 46 and one crane were standing at the spot. He took the injured to AIIMS hospital. He also got the FIR registered. He was cross examined by Ld. Counsel for the accused.
12. PW 8 [ENTITY] deposed that on 25.3.2003, he was the caretaker of the dead body at mortuary, AIIMS. IO ASI [ENTITY] handed over the dead body to the father of the deceased and brother in law of the deceased [ENTITY] after identification. He further deposed that till the time, the dead body remained in his custody, no one State Vs. [ENTITY] 4/11 FIR no. 141/03 tampered with the same. He was not cross examined by Ld. Counsel for accused despite according opportunity.
13. PW 9 Ct. [ENTITY] deposed that on 24.3.2003 on receiving of DD no. 14 mark A, he alongwith ASI [ENTITY] and Ct. [ENTITY] reached the spot i.e opposite toilet MB road, Lal Kuan. At the spot, one person namely [ENTITY] who was injured and a scooter and offending crane were also found at the spot. Injured [ENTITY] was shifted to hospital through Ct. [ENTITY]. During the course of investigation, IO seized the aforesaid scooter vide memo Ex.PW2/B, offending crane vide memo Ex.PW2/C. He was cross examined by Ld. Counsel for accused.
14. PW 10 Ct. [ENTITY] proved the arrest and personal search of accused vide memos Ex.PW10/A and Ex.PW10/B, seizure memos of DL, copy of insurance papers of the offending crane and RC vide memos Ex.PW10/C, Ex.PW10/D and Ex.PW10/E. He was cross examined by Ld. Counsel for accused.
15. PW 11 SI [ENTITY] deposed that on 24.3.2003, on receipt of DD 14 regarding accident at the road near Sulab Shauchalaya, Lal Kuan, MB Road. Then he alongwith Ct. [ENTITY] and Ct. [ENTITY] went to the spot where he found one two wheeler scooter no. DL 3SF 3365 and one crane HR 46A 3092 lying on the road. One person was also lying on the road whose chest was crushed. He tried to search the eye witness at the spot but could not find any. After sometime one eye witness namely [ENTITY] reached the spot. He sent the injured to AIIMS. He inquired witness [ENTITY] and recorded his complaint Ex.PW2/A. In the meantime, he received DD no. 17 regarding death of injured in AIIMS hospital. He prepared rukka Ex.PW11/A, got the FIR registered, seized the crane and scooter vide memos Ex.PW2/C and Ex.PW2/B. He also issued notice u/[SECTION] [ACT] to the owner of the offending crane which is Ex.PW11/B, prepared site plan Ex.PW11/C, arrested accused vide memo Ex.PW10/A, his personal search was conducted vide memo Ex.PW10/B. He also seized the DL of accused, insurance and State Vs. [ENTITY] 5/11 FIR no. 141/03 RC of the offending crane vide memos Ex.PW10/C, Ex.PW10/D and Ex.PW10/E. He also proved the photographs as Ex.P1 (colly). He was cross examined by Ld. Counsel for accused.
16. This is the overall prosecution's evidence in this case. Prosecution evidence stood closed vide order dated 3.3.2014.
17. The accused was examined under the provision of [SECTION] [ACT] (for short 'the Code') and all the incriminating evidence were put to him which he denied and answered that he has been falsely implicated in this case. He also chose not to lead defence evidence.
18. I have heard the Ld. APP for State and counsel for accused and perused the records of the case.
19. It is argued by the Ld. APP for State that the case of the prosecution has been duly proved and the only irresistible conclusion that can be drawn from the prosecution's evidence is the conviction of the accused.
20. It is the vehement submission of Ld. Counsel for the accused that the case of the prosecution is based upon the testimony of PW2 only who is shown to be the ocular witness to the incident in question but considering the discrepancies and ambiguities in his testimony, he appears to be a planted witness hence cannot be relied upon. Although witness PW2 claimed to be known to the deceased and present at the spot but he exhibited unusual behavior by not making call at 100 number or taking the deceased to the hospital after the alleged accident. Even the IO also claimed to have not found any eye witness initially. But he later claimed to have recorded the statement of witness [ENTITY] at the spot which is contrary to the claim of witness [ENTITY] as per whom his statement was recorded in the police post. On all these counts, accused is entitled to be acquitted.
21. Now I proceed to consider the rivalised contentions raised at the bar and independently State Vs. [ENTITY] 6/11 FIR no. 141/03 scrutinize the relevant evidence brought on record.
22. Accused is indicted for offences u/[SECTION] A [ACT]. Both sections speak of rash and negligent act. [SECTION] [ACT] punishes the offence of driving a vehicle in a manner "so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person" ; and [SECTION] A [ACT] provides punishment for causing death of any person by doing any rash or negligent act not amounting to culpable homicide. Proof of rashness and negligence is required for [SECTION] [ACT] as also u/[SECTION] [ACT]. To constitute either of the offences u/[SECTION] [ACT] or [SECTION] [ACT], proof of criminal rashness or criminal negligence is essential. In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such a disregard for life and safety of others as to amount to a crime.
23. In order to bring home the guilt of the accused, prosecution has to prove three aspects, firstly that the accused [ENTITY] was driving the offending crane at the given time and place, secondly that the accused was driving the offending crane in a rash and negligent manner and hit against the scooter no. DL 3SF 3365 and caused the death of [ENTITY] and thirdly, in the said road accident, victim [ENTITY] succumbed to his injuries and died.
24. In so far as the aforenoted third aspect is concerned, there has not been any serious challenge or dispute on the part of the accused. This aspect also stands sufficiently established from the statement of witness PW 3 Sh. [ENTITY] who on 25.3.2003 identified the dead body of his son vide Ex.PW3/A. Accused has also admitted the postmortem of deceased [ENTITY] as Ex.PC which demonstrates that victim was brought in the AIIMS hospital on 25.3.2003 at 12 noon with alleged history of road traffic accident on 24.3.2003 at about 3.30 pm following which he was brought to AIIMS where he was declared brought dead at about 18 hours 29 minutes on 24.3.2003 and State Vs. [ENTITY] 7/11 FIR no. 141/03 wherein doctor has opined the cause of death as shock due to multiple injuries caused by blunt force which could be possible in RTA.
25. Regarding the identity of the accused as well as that of the offending vehicle i.e the crane bearing no. HR 46A 3092, prosecution has rested its case upon the testimonies of three witnesses. First witness is PW2 [ENTITY] who claimed having witnessed the accident in question and has also deposed about the no. of the crane as 3092, HR number during his testimony. Although he has not deposed about the complete registration number of the offending vehicle but there are other evidence to this effect. PW11 SI [ENTITY] is the IO who on 22.3.2003 received DD NO. 14 regarding the accident at the given place. He along with Ct. [ENTITY] and [ENTITY] went to the spot and found two wheeler scooter bearing no. DL 3SF 3365 i.e the accidental scooter and the offending vehicle i.e the crane stationed near Lal kaun in accidental condition . But since the driver of the crane was not found at spot therefore IO issued u/[SECTION] [ACT] to the owner of the offending vehicle which is Ex. PW11/B. On 1.04.03, owner of the offending vehicle i.e PW1 [ENTITY] deposed that the accused was the driver of his crane on the date of the accident i.e 24.03.03. He had also spoken about the receipt of notice u/[SECTION] Act which he replied mentioning the accused to be the driver of the offending crane on the date of the accident. The said reply is Ex. as PW1/A.
26. The testimony of all the above said witnesses has not been controverted by or on behalf of accused with regard to his presence and involvement along with the offending vehicle on the given date and time on the given place. It has not been suggested to witness PW2 that accused was not behind the wheels of the offending vehicle at the given time and place. In fact from the suggestions given to this witness, it can be easily extrapolated that the accident in question was caused by the accused while he was driving the offending vehicle. He, however, took a stand that due to the negligence of the deceased scooterist only, he had died. This stand of the accused shall be State Vs. [ENTITY] 8/11 FIR no. 141/03 adverted upon in the following discussion. Hence, it stands established beyond the shadow of reasonable doubt that accused as well as offending vehicle were present at the spot at the given time and were instrumental in causing the accident.
27. Moving further, in a fairly recent Judgment of Apex court, the concept of driving has been extensively explained. The Judgment is titled as [PRECEDENT] and para 10 and 11 is reproduced as below:
"10. IN order to examine the merit or otherwise of contentions (b) and (c) raised on behalf of the appellant, it is necessary for the Court to first and foremost examine (a) what is rash and negligent driving; and (b) whether it can be gathered from the attendant circumstances. Rash and negligent driving has to be examined in light of the facts and circumstances of a given case. It is a fact incapable of being construed or seen in isolation. It must be examined in light of the attendant circumstances. A person who drives a vehicle on the road is liable to be held responsible for the act as well as for the result. It may not be always possible to determine with reference to the speed of a vehicle whether a person was driving rashly and negligently. Both these acts presuppose an abnormal conduct. Even when one is driving a vehicle at a slow sped but recklessly and negligently, it would amount to 'rash and negligent driving' within the meaning of the language of [SECTION] [ACT]. That is why the legislature in its wisdom has used the words 'manner so rash or negligent as to endanger human life'. The preliminary conditions, thus, are that (a) it is the manner in which the vehicle is driven; (b) it be driven either rashly or negligently; and (c) such rash or negligent driving should be such as to endanger human life. Once these ingredients are satisfied, the penalty contemplated under [SECTION] [ACT] is attracted".
"11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It State Vs. [ENTITY] 9/11 FIR no. 141/03 is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence".
28. Regarding the aspect of rashness or negligence on the part of the accused in handling the offending vehicle, the case of the prosecution hinges upon the testimony of PW2 [ENTITY] only but his testimony is not inspiring enough in so far as the element of rashness and negligence on the part of accused is concerned. He has imputed recklessness on the part of the accused by deposing that the offending vehicle, being driven by the accused, took a sudden Uturn without caring the traffic rules & from the cut ran over the scooterist coming from the opposite direction. But in his cross examination, he conceded certain facts which cast suspicion on his testimony. He has admitted that police had not asked him about the place where he saw the scooterist for the first time after the impact. Neither did the police prepared the site plan in his presence or shown the same to him. In any accident case, site plan is of utmost significance which enables the court to envision the place of accident and the surrounding circumstances. As per the statement of IO PW 11 he prepared the site plan Ex.PW11/C but it is unfathomable as to why he choose to prepare site plan on his own without taking assistance from PW 2 [ENTITY] who the prosecution claims to be eye witness. In the site plan mark A is shown to be the point where the accident occurred but it in the absence of any statement of PW 2 [ENTITY] to this effect, it can be considered to be the figment of imagination of the IO. In this view of matter, it would be highly unsafe to rely upon the site plan produced on record.
29. In addition to the above, it is also pertinent to note that although PW 2 has attributed recklessness upon the accused for not caring about the traffic rules but it is nowhere State Vs. [ENTITY] 10/11 FIR no. 141/03 shown that there was traffic signal on the cut from where the accused Uturned the offending vehicle. Neither is there any statement or other evidence that UTurn was not permitted to be taken. It is also not the case of the prosecution that the accused was driving the offending vehicle in a high speed while taking Uturn.
30. It would also not be out of place to mention that there has been an apparent delay in registration of the FIR which throws doubt on the case of the prosecution. The occurrence is shown to have taken place at 3:10 PM where as the rukka is shown to have been sent for the registration of the FIR at 7:30 PM. The FIR also does not specify the direction and distance of the place of the occurrence from the PS. When the witness PW2 has claimed to be present at the spot only then there was no occasion for the delay in recording his statement and dispatching the same for the registration of FIR. To augment this, witness PW2 has claimed to have given his statement in the police post whereas it can be culled out from the statement of IO PW11 that the statement of the witness was recorded at the spot only. All these circumstances adversely affect the case of the prosecution and are too significant to ignore.
31. Rest of the witnesses are formal in nature whose testimony alone cannot warrant the conviction of the accused. Prosecution has not been able to establish beyond reasonable doubt that accused was in fact reckless in driving the offending crane leading to the death of the deceased [ENTITY]. Consequently, accused [ENTITY] stands acquitted for the offence u/[SECTION] A [ACT]. He is set at liberty.
Announced in the open Court ([ENTITY]) on 01.08.2014 Metropolitan Magistrate04, South, New Delhi State Vs. [ENTITY] 11/11 FIR no. 141/03