IN THE COURT OF SHRI NARESH KUMAR LAKA METROPOLITAN MAGISTRATE, TIS HAZARI COURTS, DELHI [CASE NUMBER] Police Station: Rajouri Garden under [SECTION] [ACT] (a) ID Number of the Case : 02401R0013421995 (b) Date of commission of the : 31/07/1995 offence (c) The name of the complainant : Sh. [ENTITY] S/o Sh. Tarsen Singh R/o WZ490, Sri Nagar, Shakur Basti, Delhi. (d) The name of the accused : [ENTITY] S/o Sh. persons, their parentage and [ENTITY] R/o H. No. residence 517, Village Alipur, Delhi. (e) The offence complained of : Under [SECTION], [SECTION] & [SECTION] [ACT]. (f) The plea of the accused : Pleaded not guilty (g) The final order : Acquitted (h) The date of such order : 07.05.2012 Police case was instituted on: 19.09.1995 Final arguments were advanced on: 05.05.2012 Judgment is announced on: 07.05.2012 FIR No. 570/95 PS Rajouri Garden State Vs. [ENTITY] Page 1 of 13 JUDGMENT
Brief facts of the case: It is the case of the prosecution are that on 31.07.1995 at about 04.50 PM at Ring Road near Gurunanak Marble House, Raja Garden, Delhi within the jurisdiction of PS Rajouri Garden, accused was found driving bus No. DL 1P 6278 in a very high speed and while driving so he hit against a scooter which was being driven by [ENTITY] and consequently, the said [ENTITY] died and the pillion rider Sh. [ENTITY] sustained simple injuries and thereby the accused committed offences punishable u/[SECTION], [SECTION], [SECTION] [ACT]. After completion of investigation, final report under [SECTION] [ACT] was filed alleging the said offences.
2. On appearance of the accused, a notice under [SECTION] [ACT] was served upon him for the offences under [SECTION], [SECTION] & [SECTION] [ACT] to which he pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution examined following eight witnesses namely:
PW1 ASI [ENTITY] PW2 [ENTITY] PW3 Dr. [ENTITY] PW4 Dr. [ENTITY] PW5 [ENTITY] PW6 [ENTITY] PW7 [ENTITY] PW8 Retd. SI [ENTITY]
4. Statement of accused under [SECTION] in term of 313 [ACT] was recorded. The accused did not examine any witness in his defence.
5. I have heard Assistant Public Prosecutor for the State and counsel for the accused. File perused.
DEPOSITION OF PROSECUTION'S WITNESSES
6. PW1 ASI [ENTITY] is the Duty Officer who deposed that on 31.07.1995 he received rukka sent by SI [ENTITY]. Carbon copy of the same is Ex. PW1/A.
7. PW2 [ENTITY] is the injured who deposed that on 31.07.1995 he along with his elder brother [ENTITY] was riding on a scooter bearing no. DL 1SJ 1670 as a pillion rider and was going towards Dhaula Kuan and at about 4.40 PM when they were just ahead of Raja Garden Chowk, one yellow colour bus bearing no. DL 1P 5138 under STA permit immediately took a break as a result of which his brother also applied break and one red line bus bearing no. DL 1P 6278 which was coming from behind at a very high speed and in a very rash and negligent manner hit their scooter. He further stated that he had not seen the driver of the red line bus as he became unconscious immediately after the accident and thereafter they were shifted to DDU Hospital and his brother waws declared as brought dead. His statement was recorded by the police.
8. PW3 Dr. [ENTITY] deposed that on 01.08.1995 he conducted the postmortem examination on the body of [ENTITY] and his postmortem report is Ex. PW3/A. PW4 Dr. [ENTITY] deposed that on 31.07.1995 injured [ENTITY] and [ENTITY] were medically examined and the their MLCs are Ex. PW4/A and Ex. PW4/B.
9. PW5 [ENTITY] identified the dead body of his brother in law [ENTITY] and the identification memo in this regard is Ex. PW5/A. PW6 Retd. ASI [ENTITY] is the police official who deposed that on 31.07.1995 he was the In charge of PCR Van P20 and at about 5.00 PM to 5.15 PM he admitted the injured/deceased to DDU Hospital.
10. PW7 [ENTITY] is the police official who deposed that on 31.07.1995 IO SI [ENTITY] received DD No. 47B and he along with IO reached at the spot where bus bearing no. DL 1P 6278, another bus no. DL 1P 5138 and one accidental two wheeler scooter bearing no. DL 1SJ 1670 were found and IO left for hospital where the injured was shifted in PCR Van. He stated that after sometime IO came back at the spot and handed over him rukka for registration of FIR and after registration of FIR, he came back at the spot where accused [ENTITY] and injured [ENTITY] met them. He further stated that IO seized the bus bearing no. DL 1P 6278, another bus no. DL 1P 5138 and one accidental two wheeler scooter bearing no. DL SSJ 1670 vide seizure memos Ex. PW7/A, Ex. PW7/B and Ex. PW7/C. He further stated that accused was arrested and personal search of the accused was conducted vide memo Ex. PW7/D and driving licence of the accused was also seized vide seizure memo Ex. PW7/E.
11. PW8 Retd. SI [ENTITY] is the police official who deposed that on 31.07.1995 he received DD No. 47B Ex. PW8/ A and after that he along with Ct. [ENTITY] reached at the spot i.e. Ring Road, Raja Garden near Gurunanak Marble House where two buses bearing no. DL 1P 5138, another bus no. DL 1P 6278 and one accidental two wheeler scooter bearing no. DL 1SJ 1670 were found. He came to know that injured was shifted to DDU Hospital by PCR Van and he reached at DDU Hospital where injured/deceased [ENTITY] declared brought dead and he came to know that another injured [ENTITY] left the DDU Hospital after taking first aid. He stated that IO prepared rukka Ex. PW8/B and prepared site plan at the instance of injured [ENTITY] Ex. PW8/C. He further stated that he seized the bus bearing no. DL 1P 6278, another bus no. DL 1P 5138 and one accidental two wheeler scooter bearing no. DL SSJ 1670 vide seizure memos already Ex. PW7/A, Ex. PW7/B and Ex. PW7/C. He further stated that accused was arrested and personal search of the accused was conducted vide memo already Ex. PW7/D and driving licence of the accused was also seized vide seizure memo already Ex. PW7/E. He further stated that on the next day, postmortem of deceased [ENTITY] was conducted and he recorded the statements of relatives of the deceased Ex. PW5/A and Ex. PW8/D and after postmortem dead body of the deceased was handed over to his relatives vide handed over memo Ex. PW8/E. He further stated that all the three vehicles were mechanically inspected vide memo Ex. PW8/F, Ex. PW8G and Ex. PW8/H. DEFENCE OF THE ACCUSED
12. In the statement recorded under [SECTION] [ACT], the accused stated that he is innocent and he has been falsely implicated in the present case. He specifically took the defence that he was not the driver of the bus and he was forced by the owner of the bus to face this case. He further stated that the offending bus was being driven by his brother inlaw and he was not made an accused as he was not having a driving licence.
APPRECIATION OF EVIDENCE AND REASONS FOR DECISION
13. In order to prove the alleged offences u/[SECTION], [SECTION] and [SECTION] [ACT], the prosecution is essentially required to prove the following ingredients:
(i). Identity of the accused: In the sense that it was the accused only who was driving the offending vehicle on the day of incident;
(ii). Elements of rashness or negligence: That the accused was driving his vehicle in a public place in such a manner which tantamounts to rashness or negligence on his part; and that the injury and death is occasioned on account of such act.
Identity of the accused
14. In the statement u/[SECTION] [ACT], accused specifically took the defence that he was not driving the offending vehicle on the day of incident. He further stated that he was forced to face this case by his owner and on the day of incident, his brother in law (sala) namely [ENTITY] S/o Sh. [ENTITY] was driving the above said offending bus. He also stated that he was made accused in the present case as [ENTITY] was not having a driving licence. As per the rukka, the accident took place on 31.07.1995 and the accused [ENTITY] was arrested with the offending vehicle on the spot. Personal search memo of the accused is also of the same date i.e. 31.07.1995. Moreover, the accused has not shown any justified reason as to why he became accused in the present case at the instance of owner of the accused. He has also not placed on record any complaint made against the owner of the vehicle for his false implication, nor he led any evidence to prove such defence. On the contrary, PW7 [ENTITY] correctly identified the accused as the driver of the offending vehicle. In view of aforesaid evidence, I hold that it was the the accused only who was driving the offending vehicle on the day of incident.
Elements of Rashness and Negligence
15. Prosecution examined total 8 witnesses. As per the list of witnesses, PW [ENTITY] and PW [ENTITY] already expired. PW [ENTITY] was dropped as he was not traceable. Out of the 8 witnesses, PW2 [ENTITY] is the only eye witness and rest of the witnesses are formal in nature being the police officials, concerned doctors/record clerks and the IO. PW2 [ENTITY] deposed that on the day of incident, he along with his elder brother [ENTITY] was riding on a scooter bearing no. DL 1SJ 1670 and when they were just ahead of Raja Garden Chowk, one yellow colour bus bearing no. DL 1P 5138 immediately applied breaks as a result of which his brother also applied break on the scooter. PW2 [ENTITY] further stated that one red line bus bearing no. DL 1P 6278 which was coming from behind at a very high speed and in a very rash and negligent manner hit their scooter. Consequently he sustained injuries and he became unconscious and his brother was taken to the hospital where he was declared brought dead.
16. Prosecution proved on record the rukka. Needless to say that rukka/FIR is the most valuable document as the same is recorded at the very first instance and on the basis of this document the entire machinery is put into motion. As such, the evidential value of rukka/FIR is entirely different from the evidentiary value of statement recorded u/[SECTION] [ACT] In the rukka which bears signature of PW2 [ENTITY], it is specifically stated that while the scooterist was going on the road, suddenly tyre of the bus got punctured and the driver of the said bus instantaneously applied break and due to this reason the driver of the scooter (deceased) also applied break and the bus which was coming from the back side hit the scooter. Although PW2 [ENTITY] did not disclose the fact of bursting/puncture of the tyre but the same fact is disclosed in rukka/FIR which is admittedly proved by the prosecution. The PW2 [ENTITY] also clearly stated that his statement was recorded by the IO. Apart from the above evidence, when the PW7 [ENTITY] was asked a question in his crossexamination about the bursting of type, he did not either admit or deny the fact that the accident took place as the bus bearing no. DL 1P 6278 has suddenly applied breaks and due to bursting of tyre the scooter ramped into it. The above facts proves that the driver of the bus applied break on bursting of tyre in an emergency. In my opinion, the occurrence of bursting/puncture of tyre is related to the mechanical process and it is not in the hands of driver of a particular vehicle or bus. More particularly such instance can be termed as an accident or misfortune as defined in [SECTION] of [ACT]. In order to prove the ingredients of rashness or negligence on the part of the accused, the prosecution is required to prove that the accused did not take proper care or caution or diligent steps for avoiding such incident of bursting of type. The investigation and the prosecution is totally silent on this aspect.
In this regard, I rely on the observations of Hon'ble Supreme Court of India in case of [PRECEDENT] which squarely apply to the facts of present case as under "The primary reasons for nonapplication of the abstract doctrine of res ipsa loquitur to criminal trials are: in the criminal trial, the burden of proving everything essential to the establishment of the charge against the accused always rests on the prosecution, as every man is presumed to be innocent until the contrary is proved, and criminally is never to be presumed subject to statutory exception. In criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the court, as a reasonable man beyond all reasonable doubts. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely bases upon an error of judgment."
17. Further PW2 [ENTITY] simply deposed that the driver of the offending bus was driving his bus in a very high speed. In this regard, the observations of our own High Court in the case of [PRECEDENT] squarely apply to the facts of present case. In the said case, it was has held that driving at high speed by itself does not imply negligence or rashness. It was further held that negligence and rashness have to be established as a fact. By quoting the case of [PRECEDENT] (supra), the Hon'ble Court observed that "Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "highspeed". "High Speed" is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "highspeed" in the facts and circumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor". In view of aforesaid evidence brought on record and the cited cases, I hold that the prosecution failed to prove the elements of rashness or negligence on the part of accused.
18. Keeping in view the aforesaid facts and circumstances of the present case and the evidence produced on record, I hold that the prosecution failed to prove the alleged offences u/[SECTION], [SECTION] and [SECTION] [ACT] against the accused. The accused is accordingly acquitted for the said offences. File be consigned to record room.
Announced in the open court on 07.05.2012 ([ENTITY]) Metropolitan Magistrate, Tis Hazari Courts, Delhi