State Of Delhi vs Thakur Dass
2008 Latest Caselaw 2246 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI
+                  Crl. Appeal No. 39/2002
%                       Date of Decision: 15th December, 2008


#    State of Delhi                               .....Appellant
!                                  Through: Mr. Sunil Sharma,
                                   Advocate

                        Versus

$    Thakur Dass                                ..... Respondent
^                                  Through: None


     CORAM:
*    HON'BLE MR. JUSTICE P.K.BHASIN
1. Whether Reporters of local papers may be allowed to see the
   judgment?(No)
2. To be referred to the Reporter or not?(No)
3. Whether the judgment should be reported in the digest?(No)


                        JUDGMENT(ORAL)

P.K.BHASIN, J:

This appeal has been filed by the State assailing the

judgement dated 08.09.98 passed by the learned Metropolitan

Magistrate acquitting the respondent-accused of the charges

under Sections 279/304-A IPC.

2. It is the case of the prosecution that on 3.12.90 the

respondent was driving a mini bus no. DBP 2162 near Laxmi

Nagar Crossing sometime between 4 and 5 p.m. at a very fast

speed and in a rash and negligent manner and while so driving his

bus hit one two wheel scooter no. DBL-7286, being driven by PW-

3, from behind because of which the pillion rider of that scooter,

who happened to be the wife of the scooter driver, fell down and

got injured. She was removed to Ganga Ram Hospital where,

however, she succumbed to the injuries sustained by her around

8.15 p.m. As per the further prosecution case the police had

recorded the statement of the scooter driver, PW-3 Dr. B.S. Seth

after the death of his wife. In that statement he had claimed that

on the day of accident he was going with his wife on scooter no.

DBL-7286 from Pusa Road to Laxmi Nagar and when they

reached the „T‟ point, Laxmi Nagar, Vikas Marg the traffic signal

was showing red light. There was one private bus standing at the

red light and when he overtook that bus from his right side his

wife was hit by the back side of the bus and she fell down. When

he heard her shriek he stopped his scooter and saw his wife lying

down on the road near the left side tyre of the bus whose number

he did not recollect. He then lifted his wife and took her to Walia

Nursing home in a maruti van which was coming from behind and

from there he took her to Ganga Ram Hospital on the advice of

the doctors but she died in Ganga Ram Hospital in the night.

3. The respondent had fled away from the place of accident in

his bus and when the investigating officer recorded the statement

of the scooter driver, PW-3 Dr. B.S. Seth he could not tell the

number of the private bus, which is now being claimed by the

prosecution to be bus number DBP 2162 belonging to the

acquitted accused. The police could not get the number of the bus

involved in the accident till April,1991 and then it filed an

„untraced case‟ report in the concerned Court to the effect that

the vehicle which had caused the accident could not be

ascertained and so the case was being closed but could be re-

opened if the police would come to know of the offending vehicle.

That report is a part of the trial Court‟s record and it has the

endorsement of the Magistrate as "Cancelled". It appears from

the trial Court record that the husband of the deceased, Dr. B.S.

Seth informed the police vide his letter dated 24.4.91 wherein he

wrote that his wife had fallen from his scooter on 3.12.90 and

was run over by mini bus no. DBP 2162. He further stated that FIR

was registered on 4.12.90 on which date he was too shocked to

recollect the number of the bus and further that one Mr. S.N.

Mittal, resident of 244-A/24, Shivaji Gali, Pandit Park, Delhi-51

had seen the whole incident. That that Mr. S.N. Mittal had met

him later on and had informed him as to how the accident had

taken place and his wife was run over by the mini bus no. DBP

2162. After about 15 days he alongwith Mr. Mittal had gone to

the police station three times but could not meet the investigating

officer and thereafter he himself remained sick for 93 days

followed by some tragedy in the house of Mr. S.N. Mittal due to

which Mr. Mittal was preoccupied for one month. On receipt of

this information from Dr. B.S. Seth, it appears, that the police

reached upto the respondent herein and he admitted before the

police official that he was driving bus no. DBP 2162 on 4.12.90 at

about 6.30 p.m. Thereafter the police seized bus no. DBP 2162

on 11.5.91 and on the same day it was released to Thakur Dass

on the same day on superdari.

4. After completing the investigation of the case the police

charge-sheeted the respondent. Charges under Sections

279/304-A IPC were framed by the trial Court. The respondent

pleaded not guilty and claimed trial. In support of its case the

prosecution examined only three witnesses out of whom one was

the scooter driver whose wife became the victim of the accident

and the other two were police witnesses.

5. The prosecution had sought to establish its case mainly on

the testimony of PW-3 Dr. B.S. Seth, husband of the deceased. In

his examination-in-chief Dr. B.S. Seth deposed about the

occurrence as under:

"On 3.12.1990 in the evening I was coming on my scooter no. DDM 7280 with my wife from Punkuai Road to Vikas Marg. When we reached near T point, Laxmi Nagar, Red light I had stopped my scooter there. In the meanwhile one mini bus no. DEP 2162 hit against my scooter from behind and my wife fell down from the scooter. Immediately I saw her lying

under the right front wheel of mini bus. By that time he had retracted back his vehicle and I picked her and noted down the number............."

The learned trial Judge, however, did not feel convinced with

the testimony of this sole eye-witness and so acquitted the

respondent-accused since there was no other evidence showing

the involvement of the respondent-accused in the accident. It was

held by the trial Court that since PW-3 had not alleged that the

driver of the mini bus was driving in a rash and negligent manner

the accused could not be held guilty for the offences for which he

was tried and also that there was no circumstantial evidence on

record so as to implicate the accused with regard to the offence

for which he was charged. The State considered the judgment of

the trial Court to be not sustainable at all and so sought leave of

this Court to challenge the same which was granted.

6. At the time of hearing of this appeal today none appeared

from the side of the acquitted accused, respondent herein and

since this is an old appeal I did not consider it appropriate to defer

the hearing. Accordingly, I heard the Additional Public Prosecutor

Shri Sunil Sharma who took me through the prosecution evidence

while submitting that the decision of the learned trial Court is

perverse, palpably unreasonable and unjustified and not

sustainable at all. Mr. Sharma argued that there is no doubt that

PW-3 did not specifically state in his evidence that the driver of

the mini bus was driving rashly and negligently, as has been

observed by the learned trial Court, but since he had deposed that

the mini bus had hit his scooter from behind it is clear that the

bus driver must have been driving the bus rashly and negligently

and at a high speed as otherwise the deceased would not have

sustained such serious injuries which ultimately proved fatal only

after some hours of the accident. Mr. Sharma sought to bring this

case within the principle of res ipsa loquitur.

7. In my view, the decision of the learned trial Court to the

effect that the prosecution could not be said to have established

the charges against the accused beyond reasonable doubt,

cannot be said to be perverse or unreasonable at all as has been

submitted by the learned APP. PW-3 has neither claimed that the

mini bus which caused the accident was being driven rashly and

negligently nor that it was being driven at a fast speed by the

respondent-accused. So, it cannot be presumed that just because

there was an accident between the bus and the scooter the bus

must have been driven at the time of the accident by its driver

rashly and negligently or at a fast speed, as was the submission of

the learned APP. When the learned APP was asked to show from

the record as to how he was taking shelter under the principle of

res ipsa loquitur and to point out the circumstances from which it

could be inferred that the death of the deceased could not have

been caused unless the mini bus driver was driving the bus rashly,

negligently and at a fast speed the learned APP on going through

the trial Court record submitted that he could not point out any

such circumstance since the prosecution had not examined the

person who had inspected the two vehicles involved in the

accident and so nothing could be said regarding the extent of

damage caused to the scooter because of the mini bus striking

against it from behind. Learned APP also submitted that the

prosecution had also not examined the doctor who had medically

examined the deceased when she was rushed to the hospital and

so he could not even point out the nature of injuries sustained by

her. When asked as to the cause of death of the deceased, the

learned APP submitted that even the autopsy surgeon had not

been examined by the prosecution and the post mortem report

had remained unproved. Faced with this situation, learned APP

very fairly submitted that in the absence of examination of these

material witnesses the prosecution cannot take the advantage of

the principle of res ipsa loquitur.

8. In view of the aforesaid serious flaws in the prosecution

case the charges against the respondent-accused cannot be said

to have been established and there is no reason whatsoever for

reversing the judgment of acquittal passed by the learned

Metropolitan Magistrate. Consequently this appeal filed by the

State is dismissed.

December 15 , 2008                                 P.K.BHASIN,J