Delhi District Court
State vs . on 26 July, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-05,
SAKET COURTS,
DELHI
Presided over by- Ms. Twinkle Chawla, DJS
Cr. Case No. -: 93278/2016
CNR No. -: DLSE020054302015
FIR No. -: 201/2013
Police Station -: Sarita Vihar
Section(s) -: 279/304A IPC
In the matter of -
STATE
VS.
Mohammad Akil
S/o Sh. Arif Ali,
R/o Village Bhawanipur,
Distt. Badayun, U.P.
... Accused Person
1. Name of Complainant :- Rajender Singh, S/o
Sh. Ganesh Singh.
2. Name of Accused Person :- Mohammad Akil
3. Offence complained of or :- 279/304A IPC
proved
4. Plea of Accused Person :- Not Guilty.
5. Date of Commission of offence :- 12.06.2013
6. Date of Filing of case :- 04.06.2015
7. Date of Reserving Order :- 14.07.2023
8. Date of Pronouncement :- 26.07.2023
9. Final Order :- Conviction
JUDGMENT
1. The case of prosecution in brief is that on 12.06.2013 at about 11.35 PM at Road No. 13, in front of Splendor Forum, Jasola District Centre Corner, within the jurisdiction of PS Sarita Vihar, the Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 1 of 24 Accused was driving a Container Traulla bearing reigstration No. HR 38 Q 9996 in a rash and negligent manner, so as to endanger human life and personal safety of others and while so driving accused person has hit against a motor cycle bearing registration No. DL 9S AF 6188 (which was being driven by Kundan Singh) and caused death of Kundan Singh (motorcyclist) not amounting to culpable homicide. As such, it is alleged that the accused person has committed the offences punishable under section 279/304A of the Indian Penal Code, 1860 (hereinafter, "IPC"), for which the present FIR was lodged in PS Sarita Vihar.
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statement of witnesses were recorded under section 161 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC). Relevant record was collected. Final report under section 173 CrPC, was prepared against the abovenamed accused person and chalan was presented in the court on 04.06.2015. After taking cognizance of the offence, the accused person was summoned to face trial.
3. On his appearance, a copy of chargesheet was supplied to him in terms of section 207 of CrPC. On finding a prima facie case against the accused person, notice under section 279/304A IPC was framed against the accused person on 29.02.2016. The accused person pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt: -
Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 2 of 24ORAL EVIDENCE PW1 :- Rajender Singh, S/o Sh. Ganesh Singh.
(Complainant in the present case)
PW2 :- Narayan Singh, S/o Sh. Ganesh Singh.
(Eye witness)
PW3 :- SI Babu Lal, No. D-4576, PS Sarita Vihar, New Delhi.
(IO, who filed the chargesheet)
PW4 :- ASI Ranbir Singh, No. 2641/SE, PS Sarita Vihar, New
Delhi.
(First IO)
PW5 :- Vivek Kumar, S/o Late Sh. Jagdish Prasad.
(Superdar/Supervisor of MV Logistics)
PW6 :- Naresh Kumar
(Photographer, NK Photo Studio)
PW7 :- T.U. Siddiqui
(Mechanical Vehicle Inspector)
PW8 :- Ct. Sujeet Kumar, No. 3306/SE, PS Sarita Vihar.
(IO accompanying witness)
DOCUMENTARY EVIDENCE
Ex. PW1/A :- Written complaint of the complainant. Ex. PW1/B :- Seizure memo of offending vehicle, helmet and to Ex. motor cycle of Kundan Singh.
PW1/D Ex. PW1/D1 Site plan prepared by IO.
Ex. PW1/E :- Application of IO for postmortem of dead body. Ex. PW1/F :- Identification memo prepared by the IO. Ex. PW1/G :- Handing over memo of dead body to PW-1. Ex. P1 :- Photographs of offending vehicle alongwith dead (Colly) body of Kundan Singh and entangled motor cycle of Kundan Singh in traula.
Ex. P2 :- Negatives of photographs (Ex. P1 (Colly)). (Colly) Ex. PW2/A :- Identification memo of dead body prepared by IO.
Ex. PW4/A :- Notice u/s 133 MV Act served upon Vivek Kumar (Supervisor).
Ex. PW4/B :- Seizure memo of documents pertaining to the offending vehicle.
Ex. PW4/C :- Arrest memo of the accused.
Ex. PW4/D :- Personal search mem of the accused.
Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 3 of 24Ex. PW5/A :- Authorisation letter to represent MV Logistics vide letter dt. 13.06.2013.
Ex. PW5/B :- Reply of PW-5 to notice u/s 133 MV Act.
Ex. PW5/C :- Release of container on behalf of the firm by PW-
5 on Superdarinama.
Ex. PW7/A :- Detail report of inspection of motor cycle bearing No. DL 9S AF 6188.
Ex. PW7/B :- Detail report of inspection of Ashoka Leyland Loaded 18 wheeler Trolla bearing No. HR 38 Q 9996.
DOCUMENTS ADMITTED PURSUANT TO STATEMENT OF
ACCUSED U/S 294 CrPC
Ex. A1 :- Copy of FIR.
Ex. A2 :- Certificate u/s 65B Indian Evidence Act.
Ex. A3 :- Endorsement on rukka.
Ex. A4 :- MLC bearing No. 372181 dt. 13.06.2013.
Ex. A5 & :- DD No. 4A dt. 13.06.2013 and 13A dt. 13.06.2013.
Ex. A6
Ex. A7 :- Seizure memo of Accused's vehicle/Trauller.
Ex. A8 :- Seizure memo of victim's helmet.
Ex. A9 :- Seizure memo of victim's motor cycle.
Ex. A10 and :- Seizure memo of original documents, DL and permit
Ex. A11 of Accused.
Ex. A12 and :- Arest memo and personal search memo.
Ex. A13
Ex. A14 :- TIP proceedings dt. 27.06.2013.
Ex. A15 :- Notice u/s 133 MV Act.
Ex. A16 :- PM report bearing No. TC 364/2013.
Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 4 of 24
Ex. A17 and :- Verification report of RC, Permit and Fitness
Ex. A18. Certificate of vehilce of the accused and DL of the accused.
5. During the course of trial witnesses mentioned at Sr. No. 5, 6, 7, 10, 11, 12, 13 and 14 of the list of witnesses in the chargesheet were dropped, pursuant to statement of accused u/s 294 CrPC.
6. PW-1 Rajender Singh has deposed that on 12.06.13 at about 11:30 pm, he alongwith his brother Narayan Singh was going to his house at the aforesaid address on his bike bearing No. DL 3S CF 4613. The said bike was being driven by PW-1. Nephew of PW-1 namely Kundan singh was also accompanying them on his own motorcycle bearing no. DL 9S AF 6188. He was riding his bike ahead of them. When they reached in front of splendor Forum, Road No. 13 where construction of underpass was going on, one container (traula) bearing no. HR38 Q 9996 came from back side on Mathura road, Sarita Vihar and hit against motorcycle of Kundan Singh. The traula was being driven at a high speed. They had entered Mathura Road from Road No. 13. The traula dragged the motorcycle of Kundan Singh to a distance of about 100 yards. His body was crushed under the wheels of said traula but it was not stopped by its driver. The driver stopped the offending vehicle after travelling some distance, left the vehicle on Mathura Road and fled away from the spot. PW-1 saw the face of driver of traula properly when he got down from his vehicle. PW-1 called at no. 100 using his mobile phone. PCR officials came at the spot. Police officials from PS Sarita Vihar also reached the spot and got the spot photographed and recorded the statement of PW-1 which is Ex. PW1/A bearing his signature point A. Ambulance was called and shifted the dead body of Kundan Singh to Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 5 of 24 AIIMS Trauma Centre. IO seized the offending vehicle, helmet of Kundan Singha and his motorcycle vide memos Ex. PW1/B to Ex. PW1/D respectively, bearing the signature of PW-1 point A on all memos. IO also prepared site plan at the instance of PW-1. Same is Ex. PW1/D1 bearing signature of PW-1 point A. On the same day, PW-1 went to Trauma Centre where IO applied for postmortem of dead body vide application Ex. PW1/E bearing signature of PW-1 point A. IO also prepared identification memo of dead body which is Ex. PW1/F bearing signature of PW-1 point A. After postmortem, dead body was handed over to PW-1 vide memo Ex PW1/G bearing signature of PW-1 point A. On 27.06.13, PW-1 went to PS Sarita Vihar to meet the IO. As soon as PW-1 reached in PS Sarita Vihar, one person accompanied IO on his motorcycle as pilion rider came at the campus of PS Sarita Vihar whom PW-1 identified as the driver of offending traula which caused accident of the nephew of PW-1 in the night of 12/13.0613. IO recorded supplementary statement of PW-1 in this regard. Statement is Mark A. PW-1 identified the photographs of offending vehicle alongwith dead body of Kundan Singh and entangled motorcycle of Kundan Singh in traula. Photographs are Ex. P1 (colly) and negatives are Ex P2 (colly). PW-1 also identified the accused in court.
In his cross examination, he stated that many vehicles were plying on the road, trauller was coming from Ashram side. He further stated that he could not tell the speed of the vehicle, which was at high speed. He stated that he had gone to the hospital alongwith one police official and the injured.
7. PW-2 Sh. Narayan Singh has deposed that on 12.06.2013, at about 11.30PM, he alongwith his brother Rajender Singh was going to their abovesaid house on bike bearing No. DL-3SCF- 4613. The said Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 6 of 24 bike was being driven by the brother of PW-2 Rajender Singh. Nephew (bhanja) of PW-2 namely Kundan Singh was also accompanying them on his motorcycle bearing no.DL-9SAF-6188. He was riding his bike ahead of them. When they reached in front of splendor Forum, Road NO.13, where constructions of underpass was going on, one container (trolla) bearing no.-HR-38Q-9996 came from back side on Muthra Road, Sarita Vihar and hit against the abovesaid motorcycle of Kundan Singh. The accident occurred due to the rash and negligent driving of abovesaid trolla driver. The trolla dragged the motorcycle of Kundan Singh to a distance of about 100 yards. His body was crushed under the wheels of said trolla but the trolla was not stopped by his driver. The driver stopped the offending trolla after traveling some distance, left the vehicle on Muthra Road and fled away from the stop. PW-2 had seen the face of abvoesaid trolla driver properly when he got down from his vehicle. Brother of PW-2 called at 100 number from his mobile phone. After sometime, PCR came at the spot. Police from PS-Sarita Vihar also reached at the spot and got the spot photographed and recorded statement of brother of PW-2 namely Rajender Singh. Ambulance was called and dead body of Kundan Singh was shifted to AIIMS Truama Centre. IO seized the offending vehicle, Helmet of Kundan Singh and his motorcycle vide memos already Ex-PW1/B to EX-PW1/D respectively in presence of PW-2. On the same day, PW-2 alongwith brother of PW-2 Rajender Singh went to Trauma Centre where IO applied for postmortem of Kundan Singh's dead body. IO also prepared identification memo of dead body which is Ex-PW2/A, bearing signature of PW-2 at point A. After postmortem, dead body was handed over to PW-2 vide memo already Ex-PW1/G bearing signature of PW-2 at point B. Accused is present in the court today (correctly identified by the wintess). PW-2 correctly identified photographs of offending vehicle, dead body of Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 7 of 24 Kundan Singh and entangled motorcycle of Kundan Singh in Trolla. Photographs are already EX-P1 (colly) and negatives are P-2 (colly).
In his cross examination, he stated that the deceased was at a distance of 10/15 steps from them. Only 1/2 vehicles were on the road. The traula was coming from the side of Badarpur. He stated that he could not tell the speed of the trauller. However, it was a high speed. He did not accompany the injured to the hospital.
8. PW-3 SI Babu Lal has deposed that he does not remember the date on which further investigation of present case was marked to him. However, the investigation was marked to him after the transfer of ASI Ranvir Singh. PW-3 observed that all the investigation has already been done by the ASI Ranvir Singh and no further investigation was required to be conducted. Hence, PW-3 has compiled the chargesheet and submitted the same before Court concerned.
He was not cross examined by the accused despite opportunity.
9. PW-4 ASI Ranbir Singh deposed that on 12-13.06.2013 intervening night. He was posted at PS Sarita Vihar on emergency duty on that day. After 12.00AM PW-4 received DD no. 4A regarding accident in the area of Road no. 13 near Splinder Farm, Jasola. PW-4 alongwith Ct. Sujit Kumar reached at the above said address. Where PW- 4 saw one dead persons lying on the road. At some distance one traula bearing no. HR38Q-9996 and one motorcycle bearing no. DL9SAF-6188 were attached with traula. Thereafter PW-4 called the private photographer namely Naresh Kumar at the spot. PW-4 got the photograph of the spot. PW-4 sent the dead body to hospital by private ambulance. There was a eyewitness namely Rajinder present at the spot.
Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 8 of 24In the meantime PW-4 recorded the statement of Rajinder. Ct. Sujit Kumar came back at the spot after admitting the deceased person and handed over a MLC to PW-4 in which doctor declared brought dead. Thereafter PW-4 prepared Tehrir which is already exhibited as Ex.PW1/A bearing signature of PW-4 at point A and gave to Ct. Sujit Kumar for registration of FIR. Thereafter PW-4 prepared the site plan of the incident which is already Ex.PW1/D bearing signature of PW-4 at point B. In the meantime Ct. Sujit Kumar came back at the spot and handed over PW-4 original FIR and Rukka. Thereafter PW-4 took the possession of container traula , motorcycle and helmet and seized the same vide memos path alread Ex.PW1/B, C and D bearing signature of PW-4 at point B. Thereafter PW-4 along with Ct. Sujit Kumar as well as case property came back to PS and case property deposited in Malkhana. At 9.00AM complainant along with his brother, Narayan Singh and other 10 people came at PS. Complainant told to PW-4 he was the uncle of deceased and his parents reside in Uttrakhand. However the parents of deceased person is unable to come to PS. Therefore the dead body of the deceased handed over to them. PW-4 narrated the matter the SHO and he directed to handed over the body to complainant. Thereafter PW-4 along with complainant reached at mortuary at AIIMS Trauma Center where PW-4 got conducted the postmortem of the deceased and the body was handed over to complainant Rajinder. PW-4 also collect the postmortem report of deceased. Thereafter PW-4 came back to the PS. On the same day. The owner's supervisor of the container/traula along with driver came at the PS who told that he is the person who was driving the above said container/traula on the day of incident. In the meantime PW-4 served the notice U/s 133 MV Act upon Vivek Kumar (Supervisor) which is exhibited as Ex.PW4/A. Thereafter supervisor gave documents to PW-4 pertaining to the offending vehicle and seized the same which is Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 9 of 24 exhibited as Ex.PW4/A bearing signature of PW-4 at point A. Thereafter PW-4 arrested and conducted personal search of the accused vide memo are exhibited as Ex.PW4/C and D. bearing signature of PW-4 at point A. PW-4 released the documents persons on police bail. Thereafter PW-4 got conducted the mechanical inspection of offending vehicle. On 27.06.2013 PW-4 produced the accused before the Ld. MM court for identification however accused denied the same. PW-4 also recorded the supplementary statement of complainant.
In his cross examination, he stated that he received DD No. 4A after 12.00 AM and that he went alongwith Ct. Sujeet Kumar on motor cycle. The offending vehicle was at a distance of 100 yards from the dead body. Two persons and other public persons were present at the spot. Complainant did not give the description of the accused in his statement. Lights were present on the road at the said time. He took photograph of the skid mark of the tyres of the offending vehicle.
10. PW5 Vivek Kumar deposed that on 13.06.2013 he was working in the M V Logistics, I-45, Erose Gardeb Faridabad and he was posted as Supervisor in the aforesaid firm. On 13.06.2013 PW-5 was authorized by Mool Chand Sharma i.e. that the proprietor of aforesaid firm to represent the firm in the present case on behalf of the firm vide letter dated 13.06.2013 which is present in the case file and is Ex.PW5/A. After the execution of letter dated 13.06.2013. PW-5 appeared before the IO and replied notice u/s 133MV Act. On 12.06.2013 container trolla bearing no. HR 38 Q 9996 belongs to aforesaid firm and Mohd. Akil was deputed as its driver. PW-5 further replied that on 12.06.2013 at about 11.35 p.m. the aforesaid container was in the possession of its driver namely Mohd. Akil. Reply of PW-5 to notice u/s 133 MV Act is Ex.PW5/B. During investigation on Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 10 of 24 16.06.2013, PW-5 applied for the release of aforesaid container on behalf of the said firm and PW-5 got released the same on superdari vide superdarinama Ex.PW5/C. PW-5 correctly identified four photographs taken from the spot, 4 photographs of aforesaid Container bearing no.HR 38 Q - 9996. Photographs are a part of Ex.P1 & Ex.P2 colly.
In his cross examination, he stated that he was not carrying any proof to show that he was working as a supervisor with MV Logistics. He did not know whether any attendence register was maintained by the firm. He denied the suggestion that the accident took place by some other driver of the firm, who ran away from the spot.
11. PW6 Naresh Kumar has deposed that on the intervening night of 12/13.06.2013, he was called by the IO to reached road no.13 in front of Jasola district centre in front of splendor forum near underpass. It was around 12.45 a.m. (13.06.2013 ) when PW-6 reached the aforesaid road no.13. There PW-6 saw one injured person in the pool of blood was lying on the road and one motor cycle was crushed under the Container /Trolla bearing HR 38 Q 9996 were also present there. Thereafter, PW-6 took photographs of aforesaid injured / deceased , motorcycle and Trolla from different angles on the instructions of the IO/ SI Ranvir Singh. Later on PW-6 developed the said photographs and handed over the same along with the relatives to the IO. PW-6 correctly identified photographs already Ex.P1 colly and P2 colly.
In his cross examination, he stated that he remained at the spot for 30-60 minutes. He did not remember whether any eye witness was present or not.
12. PW-7 Sh. T.U. Siddiqui has deposed that he is a government approved surveyor and loss assessors and working for more than 40 years independently in this field. On 13.06.2013, on the request Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 11 of 24 of ASI Ranveer Singh, PS Sarita Vihar, PW-7 had inspected a Hero Honda Passion Pro motor cycle bearing No. DL9SAF6188 and prepared detailed report with the fresh damaged which is Ex. PW7/A, bearing signatures of PW-7 and seal at Point A. On 13.06.2013, on the request of ASI Ranveer Singh, PS Sarita Vihar, PW-7 had inspected a Ashoka Leyland Loaded 18 wheeler Trolla bearing No. HR38Q9996 and prepared detailed report with the fresh damaged which is Ex. PW7/B, bearing signatures of PW-7 and seal at Point A. PW-7 correctly identified the four photographs of aforesaid bike and four photographs of aforesaid trolla, annexed with the judicial file. Photographs are already exhibited as P1 (Colly).
In his cross examination, he stated that he does not remember whether IO had requested him for inspection of vehicle in writing or not. He denied the suggestion that the offending vehicle had no fresh damages.
13. PW-8 Ct. Sujeet Kumar has deposed that on the intervening night of 12-13.06.2013, he was posted as Constable at PS Sarita Vihar. On that day, PW-8 along with IO/ASI Ranbir Singh was on nigh emergency duty. On the intervening night at around 12:15 AM, IO received DD No. 4A regarding the present incident and thereafter PW-8 accompanied him to the spot i.e. Road No. 13 in front of Splendor Farm where work of under-pass was in progress. They saw one person was lying there in the pool of blood and one motorcycle make Hero Honda Passion PRO bearing No. DL9S AF 6188 was affixed under one container trola bearing No. HR38 Q 9996 at the spot. They met the eye witness namely Rajender Singh at the spot who got his statement recorded. IO got photographed the spot through private photographer namely Naresh Kumar. Injured/deceased was also shifted to hospital in a Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 12 of 24 private ambulance. PW-8 accompanied him in the ambulance and they reached AIIMS Trauma Centre where injured was declared brought dead. The identity of injured was revealed as Kundan Singh. PW-8 obtained the MLC and reached the spot. PW-8 handed over the MLC to the IO and IO prepared Rukka. PW-8 took the Rukka to PS and got the FIR registered. After registration of FIR, PW-8 returned to the spot and handed over the copy of FIR along with original Rukka to the IO. IO seized aforesaid motorcycle, aforesaid offending trola and helmet of the deceased from the spot vide seizure memo already Ex. PW1/B, PW1/C and PW1/D all bearing signatures of PW-8 at point B. Eye witness also signed the seizure memo in presence of PW-8. Case property was deposited by the IO in the Malkhana. Thereafter, PW-8 along with the IO went to Mortuary AIIMS Trauma Centre. IO got conducted the post- mortem of deceased after identification of dead body by its relatives. After post mortem dead body was handed over to its relatives. PW-8 signed dead body identification statement and dead body handing over memo as witness. IO collected post-mortem report and PW-8 accompanied him to the PS. At around 03:15 PM, PW-8 along with the IO was present in the PS, when 2 persons reached PS. One of them introduced himself as Vivek Kumar, Supervisor MV Logistics. He informed that aforesaid offending trola belongs to his company. He produced the 2nd person before the IO and informed that he was the driver of offending trola on alleged date, time and place. On inquiry accused driver revealed his name as Md. Akil. IO interrogated him and after interrogation his driving license was seized by the IO vide seizure memo already Ex. PW4/B bearing signature of PW-8 at point B. IO arrested him vide arrest memo already Ex. PW4/C and his personal search was conducted by the IO vide memo already Ex. PW4/D. Accused was released on police bail as per law. Accused was given Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 13 of 24 necessary instructions for his TIP. PW-8 correctly identified photographs taken from the spot including the photographs of offending truck and aforesaid bike and 30 photographs of offending trola/truck, aforesaid motorcycle and the dead body found at the spot. along with the negatives annexed with the judicial file. Photographs are already Ex. P1 (colly).
In his cross examination, he stated that they reached the spot within ten minutes of receipt of information. He stated that he did not remember whether statement of eye witness was recorded by the IO at the spot or not. He stated that eye witness had accompanied him in the ambulance. He stated that when they reached at the spot, two eye witnesses were present there. He stated that sufficient light was available at the spot.
STATEMENT OF ACCUSED
14. Thereafter, before the start of defence evidence, in order to allow the Accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of Accused was recorded without oath on 28.04.2023 under section 313 CrPC in which he stated that he is innocent and he has been falsely implicated in the present case. He further stated that he wishes to lead DE. As part of the DE, he examined one Mohd. Abid, who deposed that the Accused was from his village and that in summer time of 2013, the supervisor of MV Transport had come to the room in which the Accused and DW-1 was sitting and asked the accused to come with him so that papers could be Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 14 of 24 signed and vehicle of MV Transport, which was seized by the police, could be released. He has stated that the accused has been framed by MV Transport Company only to get their vehicle released. In his cross examination, he stated that he did not know who was the driver of the said vehicle on 12.06.2013. He also stated that while had accompanied the accused and the supervisor to the PS, he had not dislcosed to the police officer that accused was not driving the said vehicle.
ARGUMENTS
15. I have heard the Ld. APP for the state and Ld. counsel for the Accused at length. I have also given my thoughtful consideration to the material appearing on record.
16. It is argued by the Ld. APP for the state that there is sufficient material on record to convict the Accused for the said offences.
17. Per contra, the Ld. counsel for the Accused has argued that the state has failed to establish its case beyond reasonable doubt. Ld. Counsel has argued that there are no eye witnesses to the accident and the testimony of PW-1 and PW-2 is manufactured as they are relatives of the deceased. It is also stated that the prosecution has failed to prove that the offending vehicle was being driven in a rash and negligent manner.
As such, it is prayed that the Accused person be acquitted for the said offences.
Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 15 of 2418. The Accused person has been charged for the offences under section 279/304A IPC. For offences under section 279/304A IPC, the prosecution has to prove beyond reasonable doubt, the following mandatory ingredients, viz., i. That the Accused was driving a vehicle on a public way;
ii. the said vehicle was driven in a rash or negligent manner;
iii. such driving is likely to endanger human life or cause hurt/injury to any other person;
iv. An accident took place;
v. as a result of such driving, death of any person
has been caused, which does not amount to
culpable homicide.
19. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond a reasonable doubt. The presumption of innocence of the Accused has to be rebutted by the prosecution by reducing cogent evidence that points towards the guilt of the Accused.
The evidence in the present case is to be weighed keeping in view the above legal standards.
Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 16 of 2420. The first ingredient of the offence is that the accused was driving the offending vehicle. The complainant i.e., PW-1 has correctly identified the witness in court on 17.08.2016, who was also the eye witness in the present case. PW-2 has also stated that the accused was the person who was driving the offending vehicle at the time of incident.
Further, PW-5, who is the supervisor of M. V. Logistics, i.e., the superdar of the offending vehicle, has also deposed that on 12.06.2013 at 11:35 pm, i.e., at the time of the accident, the offending vehicle was in the possession of his driver, namely Mohd. Akil, i.e., the accused in the present case. The reply to the notice u/s 133 M.V. Act, Ex. PW5/B dated 13.06.2013, also notes the fact that the offending vehicle was being driven on 12.06.2013 at 11:35 pm by the accused. In the TIP proceedings conducted on 27.06.2013, in which TIP was refused by the accused, it is specifically noted that the accused stated that he did not want to participate in TIP because complainant and witnesses had seen him on the spot and could easily identify him. However, during trial, the accused has stated that he was not driving the said vehicle and he has been framed by M. V. Logistics. In support of his defence, he has examined one Mohd. Abid as DW-1 who deposed that the accused was not driving the offending vehicle on 12.06.2013 and in the summer time of 2013, the supervisor of M. V. Transport had come to their room and taken the accused with him to get the vehicle released. In his cross-examination by Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 17 of 24 Ld. APP for the State, he has stated that he does not know that who was driving the offending vehicle on 12.06.2013. He further stated that he did not tell the police official that accused was not the driver of the offending vehicle, despite having accompanied the accused and the supervisor to the PS. He stated that the day on which they have visited the PS i.e., 12.06.2013, the offending vehicle was released. He was confronted with the copy of the Superdarinama of the offending vehicle which recorded the date of Superdarinama as 17.06.2013. It is also correct that as per the arrest memo, the accused has been arrested on 13.06.2013 and thereby, released on police bail on 13.06.2013. Thus, the testimony of DW-1 does not help the accused as while DW-1 has stated that they had visited the PS on the day on which the vehicle was released, which means 17.06.2013 as per the Superdarinama, but the accused was produced by the Supervisor and arrested on 13.06.2013 itself. Further, in his statement in the TIP refusal also, he has acknowledged that the complainant and the witnesses have seen him at the spot. No reason has been given by the accused for his false implication by either the complainant or by M.V. Logistics. Hence, on the basis of the testimony of PW-1, PW-2 and PW-
5, the fact that the accused was driving the offending vehicle at the time of the accident is proved.
Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 18 of 2421. The existence/occurrence of the accident between the offending vehicle and the victim's motorcycle is clearly borne out from the testimony of PW-1 (eye witness), PW-2 (eye witness) and PW-4 (IO).
PW-4 has deposed that when he reached the spot, he saw that the offending vehicle was standing and a motorcycle, i.e. the victim's motorcycle was attached to the same. This condition is also borne out from the photographs Ex. PW1 (colly.).
22. The fact that the deceased expired due to the injuries incurred by accident is borne out from the post mortem report bearing no. TC364/2013, i.e. Ex. A16, which clearly notes that the death occurred 12 hours prior to the autopsy (autopsy was started at 12:16 pm on 13.06.2013) and the cause of death was head injury, caused by blunt impact/force, which is possible due to road traffic accident. Further, the eye witnesses i.e. PW-1 and PW-2 have consistently deposed that the deceased was driving his motorcycle and was perfectly normal till he was hit by the offending vehicle. Hence, the fact that the death of deceased took place due to the accident, is also proved.
23. The only point left for determination now is whether the accused was driving the offending vehicle in a rash and negligent manner. PW-1 and PW-2 both have deposed that the offending vehicle came from the backside and hit against the motorcycle of the victim and Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 19 of 24 it was being driven at a high speed. Further, the vehicle dragged the motorcycle of the deceased to a distance of 100 yds. and his body was crushed under the wheels of the said offending vehicle, but the same was not stopped by the accused, despite the accident. In the cross-
examination of PW-1, he has been unable to tell the speed of the offending vehicle, but he volunteered to say that it was high speed. He has also stated that many other vehicles were also plying on the road.
However, PW-2 has stated that there were not many vehicles on the road.
It is settled law that rashness and negligence is not a matter of opinion but that of investigation. In the present case, what is disclosed from the established fact is that when the victim's motorcycle came in front of Splendor Forum Mall, the offending vehicle came at a high speed and thereafter, hit the victim's vehicle from the backside, the victim's vehicle thereafter came under the offending vehicle and was dragged for a good distance, before the offending vehicle came to a stop. The helmet of the witness also came off and was found at point B of the site plan i.e. Ex.
PW1/D1. The photograph no. 77 in Ex. P1 (colly.) shows skid marks of a considerable length, which also shows that despite application of brake, the offending vehicle came to a stop after considerable distance, also indicating high speed of the offending vehicle. Photographs 71, 73, 74 and 75 of Ex. P1 (colly.) also show how the victim's motorcycle came under the offending vehicle. Photographs 55 of Ex. P1 (colly.) also Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 20 of 24 shows that the pants of the victim were torn on the knees, thereby, again indicating that the body was dragged by the offending vehicle in the accident. The offending vehicle was a commercial goods carrier which as per the record appears to have been plying at a fast speed, particularly, near an intersection, where the traffic was also merging from the flyover and in doing so, it hit against a motorcycle which came under the said offending vehicle and was stuck, but the driver of offending vehicle did not stop the vehicle and did not apply brakes in time and thereafter, due to high speed of the offending vehicle, the same stopped only after dragging the victim's motorcycle and the victim for a considerable distance. The force of the accident also appears to be such that the helmet of the victim came off. The accused is also stated to run away from the spot after stopping the vehicle. As per the mechanical inspection report Ex. PW7/A, the brakes of the offending vehicle were okay and in working condition, but the vehicle was off road at the time of inspection. The mechanical inspection report Ex. PW7/A and Ex.
PW7/B also corroborate the version of the prosecution witnesses.
24. Ld. Counsel for the accused has stated that the testimony of PW1 and PW2 be discarded as they are relatives of the deceased, however, in light of the fact that PCR call was made by PW-1 and the official witnesses have also deposed that when they reached the spot, Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 21 of 24 PW-1 was found. His complaint is also of the same date and similar time.
The statement of Narayan Singh has also been recorded on 13.06.2013, where he has corroborated the complaint. The fact that in the MLC, the name of PW-1 and PW-2 were not mentioned as the relative name, but name of one Surjit Kumar has been mentioned, also does not appear to be lethal to the case of the prosecution as PW8/Ct. Sujit Kumar had taken the injured to the hospital, along with PW-1 and it is possible that his name was recorded at the said time. Hence, while the brakes of a large commercial container were working properly, yet the accused, who was driving the offending vehicle at a high speed, near the intersection, after hitting the victim's motorcycle, did not apply brakes immediately and dragged the body and the motorcycle for a considerable distance before stopping. He ran away from the spot without caring for the deceased/injured. The skid marks visible in the photograph also imply that the offending vehicle was being driven at a high speed.
25. It is incumbent upon a professional driver of a heavy vehicle to adopt extra care and caution so that the safety of other persons on the road is not jeopardized. Further, the Accused did not apply the brakes in time. There was no mechanical failure in the brakes, as per the mechanical inspection report, Ex. PW7/B. The Accused did not bother to slow down the speed and failed to apply the brakes in time resulting in Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 22 of 24 the collision and thereafter, running over the victim. This act of the Accused was manifestly and indubitably fraught with rashness and negligence. Apart from the mishap which took place, the Accused was clearly driving the trauller on a public way in a manner so rash and negligent so as to endanger human life and personal safety of others.
Secondly, it was not a case of a head on collision of two vehicles coming from opposite directions on an undivided road. Rashness and negligence is writ large and can unmistakably be inferred from the very fact that the Accused rammed the offending vehicle into a much smaller vehicle, i.e., a motorcycle and also applied brakes only after the collision. His loss of control over the vehicle is evident which is clearly attributable to his rash and negligent driving.
26. In these circumstances, it can be said that the driver i.e. the accused was driving the offending vehicle in a rash and negligent manner.
27. In the view of the above discussion, court is of the opinion that the prosecution has clearly established beyond reasonable doubt that the Accused was driving the offending truck, in a rash and negligent manner on public way so as to endanger human life and personal safety of others and consequently he is liable for the offence U/s 279 IPC. The prosecution has further proved beyond reasonable doubt that the accident Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 23 of 24 took place and deceased Kundan Singh expired on account of the rash and negligent act/driving of the Accused Md. Akil and consequently he is liable for an offence U/s 304A IPC.
28. In these facts and circumstances, the prosecution has been able to prove its case beyond reasonable doubt. I therefore hold the Accused Md. Akil S/o Arif Ali guilty of offences punishable under section 279/304A IPC and he is accordingly convicted for the same.
29. File be consigned to record room after due compliance.
Announced in open court on 26.07.2023 in the presence of the accused.
The judgment contains 24 pages and each page have been signed by the undersigned.
(TWINKLE CHAWLA) MM-05, South East District, Saket Courts, New Delhi 26/07/2023 Cr. Case No. 93278/2016 State vs. Mohd. Akil Page 24 of 24