State Nct Of Delhi vs Ram Kumar
2012 Latest Caselaw 3622 Del

   *                THE HIGH COURT OF DELHI AT NEW DELHI

   +                               CRL.L.P.262/2012

                                              Date of Decision:30.05.2012
   STATE NCT OF DELHI                                     ...... Petitioner
                    Through:              Mr.M.N.Dudeja, APP.

                                    Versus
   RAM KUMAR                                           ...... Respondent
                             Through:     Nemo.

   CORAM:
   HON'BLE MR. JUSTICE M.L. MEHTA

   M.L. MEHTA, J. (Oral)

1. The present appeal is preferred under Section 378(3) Cr.P.C. assailing the judgment and order dated 11.01.2012 in C/No.22 MT/07 arising out of FIR No. 355/99 registered at P.S. Model Town. Vide the impugned judgment; the respondent was acquitted of the charges framed against him under Section 279/304-A IPC.

2. The brief facts of the case in a nutshell are that on 09.07.1999 at about 7.45 p.m., opposite State Bank Colony, Model Town, the respondent was driving bus bearing registration no. DL-APA-3923. It was alleged in the abovementioned FIR registered on the basis of DD No. 25B that a person named Parkash (herein after referred to as deceased) was travelling and when he was deboarding the bus when the respondent suddenly drove the offending bus in such a rash manner that the deceased fell of the bus and sustained injuries. The deceased succumbed to his injuries on the next day. In order to prove the fact of rash and negligent driving by the

respondent, the prosecution examined 5 witness, including PW-1A Thom Bahadur (brother of the deceased) who claimed to be an eye witness of the accident. After consideration of the entire evidence placed on record, the Ld. M.M. recorded findings in the following words:

"15.In view of the above discussion, the prosecution has not only failed to give credence to the testimony of sole alleged eyewitness PW1A Thom Bahadur, but has also failed to prove the identity of the accused and his mens rea i.e. his culpable rash or negligent act. In these circumstances, it is clear that the prosecution has failed to discharge the onus placed upon it and hence, the accused is entitled to benefit of doubt."

3. The judgment and order passed by the Ld. M.M. has been challenged by the State on the ground that it is unsustainable as the evidence brought on record by the prosecution has not been properly appreciated by the trial Court. It has been further averred that the trial Court had erroneously discarded the testimony of eye witness Thom Bahadur without any cogent reason.

4. On the perusal of the record, it is evident that the present FIR was registered on the basis of the DD entry. When the Investigating Officer reached on the spot of accident, he did not find PW1 -A Thom Bahadur on the accident spot and came to know that the victim had been removed to the Hospital. Upon reaching the hospital also, Thom Bahadur was nowhere to be found. In the MLC No. 9366/99 of the deceased, the name of his father was mentioned as "unknown" which was not possible had PW-1A been present in the hospital. There is nothing on record to explain

the absence of Thom Bahadur from the hospital when his brother was battling for his life. It is unbelievable that if Thom Bahadur who is the brother of the deceased, was present in the hospital, then how come that the name of his father would have been mentioned as „unknown‟. Further, it is also unbelievable that he would have left his injured brother unattended in the hospital. No explanation of any sort of his having left the hospital has come on record which would simply draw a conclusion that he was not present in the hospital as also on the spot of accident. This conduct undoubtedly compels this Court to raise a grave suspicion that PW-1A had been examined as prosecution witness to support the prosecution case. Further, in his cross examination, Thom Bahadur had unequivocally stated that the offending bus had fled away from the spot after the accident, but according to the prosecution version, the Investigating officer had found the bus at the accident spot. In the light of so many unexplained factors, it is established that PW-1A Thom Bahadur was not an eye witness to the accident and his testimony being shaky and unreliable, was rightly not taken into account by the Ld. M.M. in arriving at his decision.

5. Moving on, it is evident that the identity of the driver of the offending bus was also not satisfactorily established by the prosecution. Admittedly, neither the owner of the offending bus was examined by the prosecution not there was anything on record to prove that he was served a notice under Section 133 of the Motor Vehicles Act. In such a scenario only an eye witness to the accident could prove the identity of the accused. It has been already noted in the above paragraph that PW-1A was not an eye

witness of the case and had been introduced to depose about the incident before the trial Court and hence anything stated by him regarding the identity of the driver of the offending bus cannot be taken to be of any credence.

6. It is relevant to state at this point that in absence of any material which could reveal the identity of the driver of the offending bus, any discussion regarding the factum of rash and negligent driving would be fruitless. However for the sake of arguments, even if it is presumed that the respondent was indeed the driver of the offending bus, still the factum of rash and negligent driving has not been proved by the prosecution which is germane for conviction of a person under Section 279/304-A IPC. Neither the site plan of the accident spot, nor the testimony of the witness examined by the prosecution has been able to lend credence to the prosecution case. In State of Kerala vs. Satish (1998) 8SCC 493, it has been rightly observed by the Hon‟ble Apex Court that, "Criminality is not to be presumed, subject of course to some statutory exceptions. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur". There being no evidence on the record to establish "negligence" or "rashness" in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view".

7. In view of the above discussion, I find no illegality or perversity in the well reasoned order of acquittal passed by the ld. M.M. Consequently, the petition is dismissed in limine.

M.L. MEHTA, J.

MAY 30, 2012 ss/akb