IN THE COURT OF MS. [ENTITY], CHIEF METROPOLITAN MAGISTRATE (EAST ), KARKARDOOMA COURTS, DELHI STATE Vs. VINOD KUMAR CHAUHAN FIR No. 747/06 PS: KALYAN PURI U/s: 279/[SECTION] [ACT] JUDGMENT
a). ID No. of the case : 02402R0428062007 b). Serial number of the case : 55/07 c). Date of commission of offence : 26.12.2006 d). Name of complainant, if any : [ENTITY] s/o [ENTITY] r/o Village Bikaner, Distt. Rewari, Haryana. e). Name & address of accused : [ENTITY] s/o Sh. [ENTITY] r/o 279D, J & K Block, Dilshad Garden, Delhi f). The offence complained of : u/[SECTION] / [SECTION] [ACT] g). The plea of accused : Pleaded not guilty h). Final order : Acquitted i). The date of such order : 17.08.2013
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Briefly stated, the facts of the present case have been disclosed in the complaint of the complainant that on 26.12.2006 at about 7:30 am at near Competent Authority on Gazipur Road, Delhi within the jurisdiction of PS Kalyan Puri, the accused [ENTITY] was driving the Motorcycle bearing regn. no. DL7S [ENTITY] CMM/East/Delhi 3773 in a manner so rash and negligent so as to endanger human life and personal safety of others and while driving the aforesaid vehicle in the said manner hit against a pedestrian / deceased [ENTITY] s/o [ENTITY] and caused his death not amounting to culpable homicide and thereby committed offence punishable u/[SECTION] [ACT].
2. On the complaint, FIR no.747/06, u/[SECTION] [ACT] was registered against the accused, investigation were carried out and challan was prepared and presented in the court after completion of the investigation.
3. Charge for the offence punishable u/[SECTION] [ACT] was framed on 20.07.07 against the accused [ENTITY] to which he pleaded not guilty and claimed trial.
4. To prove its case, prosecution examined eight witnesses in the present case.
5. PW1 Dr. [ENTITY] was the Medical Officer on 26.12.06 and he proved the MLC Ex.PW1/A of deceased [ENTITY]. PW2 Dr. [ENTITY], Sr. Resident, Deptt. Forensice Medicine, who proved the post mortem report Ex.PW2/A of deceased [ENTITY]. PW3 [ENTITY] and PW4 [ENTITY] are the sons of the deceased / complainant [ENTITY] and they had identified the dead body at Safdarjung hospital of their father [ENTITY] and their statements Ex.PW3/A and Ex.PW4/A respectively was recorded by the IO. Thereafter the dead body was handed over to them. PW5 Ct. [ENTITY] is a police witness who had joined the investigation of the case. He proved the seizure [ENTITY] CMM/East/Delhi memo Ex.PW5/A, B, C and the arrest memo Ex.PW5/D. PW6 ASI [ENTITY] is the IO of the case who deposed that on receiving DD No.43B, Ex.PW6/A he alongwith Ct. [ENTITY] went to Meenakshi Hospital where he met with complainant [ENTITY] in injured condition. He recorded statement Ex.PW6/B of complainant [ENTITY]. He proved the rukka Ex.PW6/C, FIR Ex.PW6/D site plan Ex.PW6/, DD No.56B Ex.PW6/G. Ex.PW7/A [ENTITY] is the DO who proved the FIR Ex.PW7/A and endorsement on rukka Ex.PW7/B. PW8 SI [ENTITY] is also a police witness and he proved the identification memo Ex.PW8/A and the documents regarding the post mortem Ex.PW8/B, C & D.
6. In his statement recorded u/[SECTION] [ACT], accused denied the prosecution case against him and pleaded innocence and false implication. However, accused preferred not to lead evidence in his defence. Matter was finally heard accordingly.
7. I have heard the Ld. APP for the state and Ld. defence counsel for the accused and have also carefully perused the judicial record.
8. It is to be seen that the witnesses examined by the prosecution are all the police officials and none of the eye witness to the incident is examined by the prosecution. On the basis of the testimony of the police witnesses it cannot be said that it is the accused who by driving the aforesaid vehicle in rash and negligent manner caused the death of complainant.
9. Ld. APP for State has argued that in the case titled [ENTITY] vs State decided [ENTITY] CMM/East/Delhi on 30 January, 2012 by the Hon'ble Delhi High Court in [CASE NUMBER], Hon'ble Ms. Justice [ENTITY] has held that the statement of the deceased to the police officer on the basis of which FIR was registered is admissible under [SECTION] of the [ACT].
10.I agree with the contention of the learned APP that Ex.PW6/B is admissible under [SECTION] of the [ACT] and can be relied upon. Even the MLC of the deceased shows that the deceased was conscious.
11.However, the Hon'ble Judge further observed that, "The essential ingredients to constitute an offence punishable under [SECTION] [ACT] are that there must be rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person. For an offence under [SECTION], the act of accused must be rash and negligent, which should be responsible for the death which does not amount to culpable homicide.
12.The Hon'ble Supreme Court in [PRECEDENT] held that:
"It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case the driver has to explain how the accident happened without negligence on his part. Merely because a passenger fell down from the bus [ENTITY] CMM/East/Delhi while boarding the bus no presumption of negligence can be drawn against the driver of the bus.
The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence, the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.
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 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."
13.In [ENTITY]'s case, the Hon'ble Justice [ENTITY] finally acquitted the driver of the bus giving him benefit of doubt.
14.In the present case, also there is no presumption that it was the driver / accused who was at fault. There is no other eye witness to the incident. The accused has had [ENTITY] CMM/East/Delhi no opportunity to crossexamine the deceased, on whose statement Ex.PW6/B, the present FIR is registered. The statement Ex.PW6/B though admissible in evidence cannot form the sole basis of conviction in the absence of any supporting independent evidence and hence, the accused is entitled to benefit of doubt.
15.In view of the aforesaid, accused is hereby acquitted of the offence punishable u/[SECTION] [ACT]. His Bail Bond stands cancelled. Surety Bond stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification. File be consigned to record room. ANNOUNCED IN THE OPEN COURT ON THIS 17th DAY OF AUGUST 2013.
([ENTITY]) CMM:EAST/KKDCOURTS:[ENTITY] CMM/East/Delhi