IN THE COURT OF MS. [ENTITY], METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT State v. [ENTITY] FIR No.51/04 PS Paschim Vihar U/[SECTION] [ACT] JUDGMENT
[CASE NUMBER] Date of Institution : 19.03.2004 Date of Commission of Offence : 25.01.2004 Name of the complainant : [ENTITY] S/o [ENTITY] R/o G-512, Mangolpuri, Delhi Name & address of the accused : [ENTITY] S/o [ENTITY] R/o D-374, J J Colony, Inderpuri, New Delhi Offence complained of : 279/304A [ACT] Plea of accused : Pleaded not guilty Final Order : Acquitted Date of reserve for judgment : 24.04.2015 Date of announcing of judgment : 12.05.2015. BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case u/[SECTION] [ACT].
2. The briefly stated story of the prosecution is that on 25.01.2004 at about 11.00 am, at Hari Singh Park, Multan Nagar, main Rohtak Road, within the jurisdiction State v. [ENTITY] U/[SECTION] [ACT] 1/14 FIR No. 51/04 PS Paschim Vihar of PS Paschim Vihar, the accused [ENTITY] was driving the vehicle tempo no. DL1LB 8326 (hereinafter referred to as "the said tempo") in a rash and negligent manner so as to endanger human life and personal safety of others. It is further the story of the prosecution is that while driving the said tempo in such manner, he hit one motorcycle bearing no. DET 1371 (hereinafter referred to as 'the motorcycle') and caused the death of motorcycle rider namely [ENTITY]. Thus the accused is alleged to have committed an offence under [SECTION] [ACT]. After completing the formalities, investigation was carried out.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused under [SECTION] [ACT] Notice under [SECTION] [ACT] for offence under [SECTION] [ACT] was framed against him by the Learned Predecessor vide order dated 24.03.2006, to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined five witnesses i.e (1) [ENTITY] (2) [ENTITY] (3) [ENTITY] (4) [ENTITY] and (5) SI [ENTITY]
5. PW-1 [ENTITY] has deposed that in the year 2004 he had seen that one person was lying in an injured condition at the main road, Hari Singh Park. He took the injured to MGH hospital in his car and got him admitted there. He deposed that the police came to the hospital in his presence. The witness was State v. [ENTITY] U/[SECTION] [ACT] 2/14 FIR No. 51/04 PS Paschim Vihar cross examined by the Ld. APP for State as he was resiling from his previous statement.
6. In the cross examination by the Ld. APP for State, this witness denied that he knew that injured was declared brought dead by the doctor. He admitted that incident had occurred as one tempo/container had hit one motorcycle. However, he could not tell the number of the motorcycle or the tempo. He also deposed that he is not aware whether the accident had occurred due to the rash and negligent driving of the accused. In the cross examination by the Ld. Defence Counsel, the witness stated that the IO had not recorded his statement.
7. PW-2 [ENTITY] deposed that on 25.01.2004 he was given the DD No.6A which is Ex.PW2/A by which he reached the Government hospital, Punjabi Bagh. There IO ASI [ENTITY] met him and he handed over the DD No.6A to him. Thereafter IO prepared the rukka and sent him to PS Paschim Vihar for registration of FIR. After registration of FIR, he returned back to the spot. Witness deposed that IO took the possession of the tempo and the motorcycle vide seizure memo Ex.PW2/B and Ex.PW2/C respectively. IO recorded his statement. This witness was also cross examined by the Ld. APP for State.
8. In the cross examination by the Ld. APP for State, the witness admitted that IO had taken the possession of the driving license of both the injured and the accused vide seizure memo Ex. PW2/D and Ex.PW2/E respectively. RC of the State v. [ENTITY] U/[SECTION] [ACT] 3/14 FIR No. 51/04 PS Paschim Vihar tempo was seized vide memo Ex.PW2/F and the photocopy of the documents of tempo were seized vide memo Ex.PW2/G. He admitted that he had gone to Maharaja Agrasen hospital on 25.01.2004. He admitted that the accident had taken place due to rash and negligent driving of the accused. He deposed that the accused might be the same person who was driving the tempo on 25.01.2004. He admitted that IO had recorded his statement which is Mark X. He identified the photographs of the spot along with negatives as Mark P1 to P3. The accused did not dispute the identity of the tempo. In the cross examination by the Ld. Defence Counsel, the witness stated that IO had recorded the statement of [ENTITY] in his presence, however, he could not remember the exact time of the same.
9. PW-3 [ENTITY] is the registered owner of the above said tempo. He deposed that at the time of the accident, accused [ENTITY] was driving the vehicle. He deposed that he had received the notice under [SECTION] [ACT] which is Ex.PW3/A and he had replied to the same in his own handwriting appearing at point A to A and bears his signature at point B on Ex.PW3/A. He deposed that he had got the said tempo released on superdari vide superdarinama Ex.PW3/B. He identified the photographs as Ex.P1 and P2. This witness was not cross examined by the accused.
10. PW-4 [ENTITY] has deposed that on 26.01.2004 at about 11.00 am he was present in the telephone booth. He saw that public had gathered in front of State v. [ENTITY] U/[SECTION] [ACT] 4/14 FIR No. 51/04 PS Paschim Vihar gate no.5, Hari Singh Park, Multan Nagar. He also rushed to the spot. He deposed that the injured was taken to the Agrasen hospital in a maruti car by 4-5 persons. Thereafter, police arrived at the spot and enquired from him about the incident. This witness was also cross examined by the Ld. APP for State.
11. During cross examination by Ld. APP for State, witness admitted that he was doing the job of tea-seller at main Rohtak Road, Hari Singh park, in front of Multan Nagar. He admitted that on 25.01.2004, one motorcycle was coming from Peeragarhi side and going towards Punjabi Bagh. In the meantime, he was hit by a car bearing no. DL1LB 8326 due to which he fell down and started bleeding from the head. He admitted that the accident had occurred due to negligence of the accused. The identity of the accused has not been disputed. The witness was not cross examined by the Defence Counsel.
12. PW-5 SI [ENTITY] deposed that on 25.01.2003 he received DD No. 5A which is PW5/A and proceeded to the spot along with [ENTITY]. There, they found the tempo and the motorcycle in accidental condition. The injured had already been taken to Agrasen hospital. He left [ENTITY] at the spot and went to the hospital where he came to know that injured was brought dead in the hospital. Eye witness [ENTITY] also met him there. The witness recorded his statement and collected the MLC of the deceased. Statement of [ENTITY] is Ex.PW5/B. He identified the signatures of PW [ENTITY] on the documents prepared by him during investigation. He further State v. [ENTITY] U/[SECTION] [ACT] 5/14 FIR No. 51/04 PS Paschim Vihar deposed that in the meantime, DD No.6A was received from Ct. [ENTITY]. He prepared rukka which is Ex.PW5/D and handed it over to Ct. [ENTITY] for getting the FIR registered. Thereafter, witness along with PW [ENTITY] went to the spot. There, the witness prepared the site plan Ex.PW5/B and got the photographs of the spot. He seized both the vehicles and recorded the supplementary statement of [ENTITY]. He gave the notice under [SECTION] [ACT] to the owner of the tempo. In the reply, it was revealed that the driver of the tempo is [ENTITY]. Owner produced the driver in the police station where he was arrested and his personal search was conducted vide memo Ex.PW5/F and Ex.PW5/G. Witness deposed that he got the vehicle mechanically inspected and got the postmortem of the deceased conducted. The postmortem report is Ex.PW5/E. The dead body was identified and handed over to the relatives vide memo Ex.PW5/I. He filed the challan in the court after completion of the investigation.
13. During cross examination, he denied the suggestion that he had never visited the spot or that he was deposing falsely. He admitted that he had not seen the alleged accident himself.
14. Thereafter, the PE was closed. Statement of accused was recorded u/[SECTION] [ACT], wherein he denied all the allegations and pleaded innocence. The accused did not lead DE despite opportunity.
State v. [ENTITY] U/[SECTION] [ACT] 6/14 FIR No. 51/04 PS Paschim Vihar
15. I have heard the submissions addressed by the Ld APP for state and the Ld. Counsel for accused and carefully perused the documents on record. The Ld. Counsel for accused has submitted that the prosecution has not been able to prove its case. He has submitted that the accused does not deny that accident had occurred between the tempo and the motorcycle. However, it is denied that he was driving in a rash and negligent manner.
16. 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.
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.
17. 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.
18. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "[PRECEDENT]", State v. [ENTITY] U/[SECTION] [ACT] 7/14 FIR No. 51/04 PS Paschim Vihar AIR 1972 SC 685 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 of each case".
19. In "[PRECEDENT]", [CASE NUMBER], decided on 2.6.2003, Himachal Pradesh High Court, while dealing with the meaning of the expression " rashness " and " negligence " held as follows :
"18. Criminal rashness is doing a dangerous or wanton act with the knowledge that it is so and may cause injury but without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and State v. [ENTITY] U/[SECTION] [ACT] 8/14 FIR No. 51/04 PS Paschim Vihar proper precaution imperative to be adopted by a person to avoid causing of injury to the public or a person or a individual."
20. In the case at hand, the accused has not denied the factum of accident between his tempo and the motorcycle. In fact, he has admitted in his statement under [SECTION] [ACT] that the tempo was being driven by him at the relevant date, time and place and also that after the accident he had ran away from the spot due to the fear of beating by public. However, the accused has denied that he was driving the vehicle in a rash and negligent manner. According to the accused, the motorcyclist was trying to take a left turn by squeazing his motorcycle between the partri and the tempo.
21. Hence, the question before this court is that whether the accused was driving the tempo in a rash and negligent manner and had hit the motorcycle and caused the death of the motorcyclist or not. The star witness of the prosecution was [ENTITY]. However, this witness has remained unserved even throgh DCP concerned and his name was dropped from the list of witnesses.
22. There are two more eye witnesses to the accident in question - PW-1 and PW-4. PW-1 has deposed only about the factum of accident between the motorcycle and the tempo at the alleged place. He had taken the injured to the hospital in his car. However, PW-1 could not tell anything about the number of the vehicle or the person who was driving the said tempo or the manner in State v. [ENTITY] U/s [SECTION] FIR No. 51/04 PS Paschim Vihar which the accident had taken place. He could not depose as to whether the accident had occurred due to rash and negligent driving of the accused or that the accused was driving in a rash and negligent manner.
23. The testimony of PW-4 has not been of much help to the prosecution. The witness has deposed that on 26.01.2004 at about 11.00 am, he was present in the telephone booth and on seeing the public gathered at the spot, he also rushed there. It was only when the witness is cross examined by the Ld. APP that he deposed about the facts as alleged by the prosecution. Also, this witness has deposed that it was a car which had hit the motorcycle. He has not deposed anything about the manner in which the accused was driving the tempo.
24. In case titled as "[PRECEDENT], Hon'ble High Court of Delhi had observed that, "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 favor 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 the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor"."
State v. [ENTITY] U/[SECTION] [ACT] 10/14 FIR No. 51/04 PS Paschim Vihar
25. Further, it has been observed by the Hon'ble High court of Delhi in the case titled as "[PRECEDENT] as follows, "No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW-10, the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
26. A similar view was expressed by the Hon'ble High Court of Delhi in "[PRECEDENT]. The observation made by the Hon'ble Court are being reproduced below, "For attracting the provisions of [SECTION] [ACT], the negligent act of the accused must be culpable and State v. [ENTITY] U/[SECTION] [ACT] 11/14 FIR No. 51/04 PS Paschim Vihar gross and not merely based on an error of judgment, or the one which arises because of lack of intelligence. For holding an accused criminally liable one has to take into consideration all the attending circumstances which must also include any situation created by the negligent act of the injured person. In the present case, there is no evidence on record to show that the Petitioner was driving the offending vehicle at a very high speed or in a rash and negligent manner. There are no skid marks on the road to show that the vehicle was being driven at a high speed. Thus, in view of the circumstances of the present case it cannot be held that the accused was grossly negligent or reckless that he must be held criminally liable. The prosecution in the present case has not been able to prove its case beyond reasonable doubt against the Petitioner."
27. In the case at hand, none of the eye witness has deposed anything about the manner in which the accused was driving the tempo. Only a bald statement has been made by PW-4 that the accident had occurred due to the negligence of the accused. He has not deposed anything about the manner in which the vehicle was being driven. The photographs of the spot i.e Ex.P1, P2 and P3 are on record. These photographs show the motorcycle lying on its right side in State v. [ENTITY] U/[SECTION] [ACT] 12/14 FIR No. 51/04 PS Paschim Vihar accidental condition and splattered blood of the victim and a broken helmet. From these photographs, it appears that the motorcyclist had fallen down as his motorcycle had slipped there or turned there. There is no damage to the motorcycle visible in the said photographs. The mechanical inspection report of the motorcycle also shows that the rear number plate is dented and right side body was scratched. As per the mechanical inspection report of the tempo Ex.PW5/H, the front bumper was slightly scratched from left side. Neither the photographs nor the mechanical inspection reports suggest that the tempo was being driven in a high speed or that the motorcycle was hit from behind or from right side by a high speeding vehicle.
28. Also, from the photographs it appears that the motorcycle was on the left side of the tempo which is essentially the lane meant for buses and other heavy vehicles. Hence, the defence of the accused seems probable that the deceased was trying to bring his motorcycle between the patri and the truck and was got hit by the tempo.
29. It is not the case of the prosecution that the deceased was ran over by the tempo. It is also not the case of the prosecution that the deceased was thrown into the air due to impact of the collision with the tempo. The prosecution has simply alleged that the tempo had hit the motorcycle from behind. This collision appears to be a natural accident and not an accident caused due to the rashness and negligence of the accused. Hence, the court is of the view State v. [ENTITY] U/[SECTION] [ACT] 13/14 FIR No. 51/04 PS Paschim Vihar that the prosecution has failed to bring anything on record to prove that the accused was driving the tempo in a rash and negligent manner and had hit the motorcycle due to his rash and negligent driving. Proseuction has also failed to prove that the death of the injured was casued due to rash and negligent driving of the accused.
30. In view of the above discussion, the court is of the considered opinion that the prosecution has failed to prove that the accused was driving the vehicle in a rash and negligent manner and had hit the motorcycle due to which motorcylist fell down and expired. Therefore, the guilt of the accused has not been proved and thus he is entitled to be acquitted. Accordingly, accused [ENTITY] is acquitted under [SECTION] [ACT].
31. 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 12th May 2015 ([ENTITY]) MM-07(West)/THC/12.05.2015 State v. [ENTITY] U/[SECTION] [ACT] 14/14 FIR No. 51/04 PS Paschim Vihar