Delhi District Court
Moolchand vs State on 28 March, 2025
IN THE COURT OF MS. SHEETAL CHAUDHARY PRADHAN
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
Criminal Revision No. 401/2024
PS- Govindpuri
U/Sec. 279/304A IPC
In the matter of :-
Moolchand
S/o Sh. Hari Shankar
R/o Village Gautampur Banai
PO Chausad, PS- Badosa
Tehsil- Atraha, District Badau
Uttar Pradesh
.... Appellant
Versus
The State
GNCT of Delhi
.... Respondent
Date of Institution : 06.12.2024
Date of Arguments : 26.03.2025
Date of Order : 28.03.2025
Decision : Appeal Dismissed.
Order of Ld. Trial Court Upheld.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 1 of 29
JUDGMENT
1. Vide this order, I shall adjudicate the present criminal appeal filed by appellant for seeking setting aside of impugned judgment dated 19.04.2023 passed by Ld. Trial Court and order on sentence dated 07.11.2024 whereby the appellant was sentenced to undergo simple imprisonment for six months and to pay fine of Rs. 500/- for the offence punishable u/sec. 279 IPC and further directed to undergo simple imprisonment for one year and to pay fine of Rs. 1000/- for the offence punishable u/sec. 304A IPC and in default of payment of fine, convict would undergo simple imprisonment of one month.
2. Appellant herein was the accused before Ld. Trial Court. In my subsequent paragraphs, both the parties will be referred with the same nomenclature with which they were referred before Ld. Trial Court, in order to avoid confusion.
3. The brief facts based on the record of Ld. Trial Court, are as under :-
"That on 21.08.2015, SI Jitender had received a DD No. 7A, dated 08.08.2018 regarding a fatal accident caused by a dumper/truck. When he reached the spot, they found a dead, badly mutilated, body lying on the road, along with a motorcycle bearing registration number DL-3SDC-9085 in an accidental condition. Thereafter, Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 2 of 29 FIR was got registered and the investigation was enused. The offending Tata truck bearing registration number HR-55L-9074, along with accused Moolchand was apprehended at a distance from the spot of accident. After completing the investigation, charge-sheet was filed."
4. Thereafter, cognizance was taken by Ld. Trial Court vide order dated 03.02.2016 and accused was admitted to bail and compliance of Sec. 207 CrPC was made. Notice u/sec. 279/304A IPC was framed against the accused to which accused not guilty and claimed trial. Matter was then for fixed for prosecution evidence.
5. The prosecution had examined 12 witnesses.
PROSECUTION EVIDENCE
6. Prosecution has examined 12 witnesses in support of its case: -
Serial Name of the Witness Crux of deposition
Number
PW-1 Kapil Bhati, He deposed that he was the owner of truck
(registered owner of
bearing registration no. HR-55L-9074.
the offending vehicle)
PW-2 Ct. Pradeep Kumar He deposed that he was on patrolling duty on
(police official on the intervening night of 7/08.08.2015 and the patrolling duty) fact that he apprehended the accused by chasing the offending vehicle.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 3 of 29PW-3 Ct. Kapil He deposed that he received the DD entry and (police official) reached at the spot after receiving information and called crime team.
PW-4 Ct. Puneet He deposed that he had clicked the (police official photographs of the spot and proves the photographer, Mobile negatives of the said photographs. Crime Team) PW-5 ASI Ved Pal He deposed that he was posted as Head (eye witness) Constable he was the eye witness to the incident and chased the offending vehicle and apprehended the accused.
PW-6 ASI Radhey Shyam He deposed that he was a Duty Officer and had received a rukka for registration of FIR and got the FIR registered.
PW-7 Smt. Lalita She deposed that she is the mother of deceased (mother of deceased) who was his younger son.
PW-8 Ravinder Singh He deposed that he is the brother of deceased (brother of deceased) and deposed about postmortem of deceased. PW-9 Tasmuddi Siddiqui He deposed regarding his two detailed reports (Government about inspections of motorcycle of deceased Approved Surveyor and truck of accused.
& Loss Accessor) PW-10 Retired SI Jitender He deposed regarding receiving of DD No. 7B Singh and about the manner by which he reached the (Retired police spot along-with police team and registration of official) FIR.
PW-11 SI Pramod Kumar Being IO, he had conducted the investigation (Investigating in the present matter and tendered the Officer) documents pertaining to the investigation of the matter.
PW-12 Ct. Sumit Chaudhary He deposed regarding joining of investigation (police official) with the police team and identified the photographs of offending vehicle.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 4 of 297. Accused has admitted DD Entry No. 7B dated 08.08.2015 (Ex.A-3), MLC No. 10782/15 (Ex.A-1) and the postmortem report of deceased Sukhvinder Singh bearing no. 923/15 (Ex.A-2), u/sec. 294 CrPC.
8. After examining them, prosecution closed its evidence and statement of accused was recorded Section 313 Cr.P.C wherein accused claimed that he is innocent and the truck belonging to Barola, Noida had caused the alleged incident. He further deposed that after the accident, PCR officials had stopped him far away i.e. 4-5 kms. from the spot and he has been falsely implicated in this case. He preferred to lead defence evidence.
9. Accused examined one Shiv Pratap in his defence as DW1 who deposed that accused is known to him for the last 20 years. He further deposed that he did not remember the date, month and year but on some day, he was informed by a person namely Sanjay Nagar who is owner of dumer no. Hrxxx 9074 regarding the accident. He further deposed that he along-with accused used to drive the vehicles of aforesaid Sanjay Nagar. During cross-examination, he deposed that he was not the eye witness to the incident in question. Thereafter, accused closed his evidence and matter was fixed for final arguments.
10. After hearing final arguments, accused was convicted vide impugned judgment dated 19.04.2023 and thereafter, he was sentenced as per impugned order on sentence dated 07.11.2024.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 5 of 2911. Being aggrieved by aforesaid impugned judgment and order on sentence, present appeal was preferred by the accused on the following grounds :-
A) That Ld. Trial Court did not consider the fact that in the site plan Ex.PW-11/A, the exact place of accident/ impact is not mentioned anywhere in the site plan and it only shows point A, the place where the motorcycle and the body of the deceased was found, and point B is mentioned as the place where the truck was allegedly stopped by the police officials. Further, the exact place of the accident is not mentioned in the site plan which creates a serious doubt that the alleged accident was caused by accused.
B) That Ld. Trial Court did not consider the deposition of PW2- Ct.
Pradeep and PW5- ASI Ved Pal Singh properly which are full of contradictions regarding cause of the death of deceased.
C) That Ld. Trial Court did not consider there is no report that talks about any blood stains on the truck.
D) That Ld. Trial Court did not consider the examination in chief of PW5- ASI Ved Pal, properly who was allegedly the eye witness and deposed regarding the fact that the motorcycle was hit by the conductor side of the truck i.e. the left side of the truck but as per photographs of the truck it can clearly be seen that the conductor side of the said truck has no Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 6 of 29 dent/damage which again creates a serious doubt that the alleged accident was caused by the Appellant.
E) That Ld. Trial Court did not consider the fact that as per the examination-in-chief of PW5- ASI Ved Pal, he had stated that the motorcycle was hit from behind by the truck but as per the Mechanical Inspection Report of the victim's motorcycle in Column No.-8 it says in 'Point of impact and damage' it is mentioned 'Front/ Right side impact.' Which further creates a doubt that the accident took place due to the negligence of the Appellant.
F) That Ld. Trial Court did not consider cross-examination of PW-05 ASI Ved Pal and the statement of PW-02 Ct. Pradeep Kumar properly as their depositions gives a benefit of doubt in favour of the accused.
G) That Ld. Trial Court did not consider the fact that in the cross- examination of PW5- ASI Ved Pal clearly admits the fact that he cannot say about the speed of both the vehicles and also does not even remember the colour of the truck which again gains a lot of doubts that the alleged incident was caused by the truck driven by accused.
H) That Ld. Trial Court did not consider the fact that not even a single statement of any public eye-witness was recorded by the police officials which again gives a benefit of doubt to the Appellant that he has been falsely implicated in the case by the police officials.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 7 of 2912. In addition to aforesaid grounds, Ld. Counsel for accused has argued that impugned judgment and order wide which the accused was convicted and sentenced by Ld. Trial Court is against the principle of law and also against natural justice and is also beyond the probabilities and without appreciating the evidence on record and also Ld. Trial Court has held the accused guilty arbitrarily. It has also been argued that prosecution has failed to prove its case against the accused completely and in all manner failed to prove the case beyond reasonable doubt. It has also been argued that Ld. Trial Court did not appreciate the fact that the prosecution has to stand on its own legs to prove its case and cannot take the benefit from somewhere else to bring home the guilt of the accused. It has been argued that it is a settled law that the burden of defence is discharged when it is shown to the prosecution that it has not established its case beyond reasonable doubt and it is not the burden of the accused to show as to who had committed the offence. It has also been argued that the present case is based upon the testimony of the interested and inimical witnesses and they have involved the accused just to make an undue pressure upon him to extort money by way of implicating him in the present false case. It has been argued that Ld. Trial Court did not appreciate the statements of the witnesses and the cross-examination recorded in the Court. It has been prayed that impugned judgment and order on sentence be set aside and accused be acquitted from the alleged offences. Ld. Counsel for accused relied upon the judgment in the case of Narender Vs. State of NCT Delhi, Crl. No. 3/2020, Hon'ble High Court of Delhi , wherein it has been held that Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 8 of 29 "10. In view of the submissions made and the aspersions cast on the testimony of Yaduvendra Singh, which forms the basis of the prosecution case, this Court is called upon to examine the merits of the case. It has been held time and again that the High Court while dealing with a revision petition, shall only exercise its power where there is material error or defect in law or procedure, misconception or mis-reading of evidence. However, a Bench of the Bombay High Court in Kisan Pandurang Pachange v. State of Maharashtra reported as 2003 SCC OnLine Bom 1071 through B.R. Gavai, J. (as His Lordship then was) has made the following observation:-
"10. ...No doubt, that, the scope of interference by this Court in revisional jurisdiction, under Section 397 of Criminal Procedure Code, is limited. In its revisional jurisdiction, this Court, is not expected to sit as a Court of Appeal and reappreciate the evidence. However, when the findings of the Courts below, appear to have been recorded, on the basis of no evidence, or evidence which even if believed in entirety, cannot prove the guilt of the accused for the offences charged, this Court, would be justified, in exercising its jurisdiction, under Section 397 of the Code of Criminal Procedure."
11. Keeping in view the aforesaid, this Court would be justified in exercising its revisional jurisdiction under Section 397 Cr.P.C. in the present case.
12. In order to constitute an offence punishable under Section 279 IPC, the following ingredients must be made out:-
i) there must be rash or negligent driving or riding;
ii) it must be on a public way; &
iii) the driving or riding must be in a manner so rash or negligent so as to endanger human life or to be likely to cause hurt or injury to any person other than the driver.Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 9 of 29
13. Similarly, to constitute an offence punishable under Section 304A IPC, it is necessary that the element of 'rash or negligent act' is established. In addition,
i) there must be death of the person in question;
ii) the accused must have caused such death; and
iii) the act of the accused must have been rash or negligent, though not amounting to culpable homicide.
14. In Rathnashalvan v. State of Karnataka reported as (2007) 3 SCC 474, the Supreme Court has elaborated on the law surrounding cases of rash and negligent acts and distinguished between 'rashness' and 'negligence' in the following terms:-
"7. Section 304-A applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Sections 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304-A. 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. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused‟s conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 10 of 29 may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
8. As noted above, „rashness‟ consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. 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 circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
9. The distinction has been very aptly pointed out by Holloway J. in these words:
„Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness (luxuria). Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The imputability arises from the neglect of the civic duty of circumspection.‟ (See Nidamarti Nagabhushanam, In re1, Mad HCR pp. 119-20.)"
15. The nature and scope of Section 304-A IPC was also discussed in Naresh Giri v. State of M.P. reported as (2008) 1 SCC 791, wherein the Supreme Court held as follows:-
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 11 of 29"8. Section 304-A carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 or murder under Section 300. If a person wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to some person, it will not be a case of mere rash and negligent driving and the act will amount to culpable homicide. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a person's death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304-A has to make room for the graver and more serious charge of culpable homicide. The provision of this section is not limited to rash or negligent driving. Any rash or negligent act whereby death of any person is caused becomes punishable. Two elements either of which or both of which may be proved to establish the guilt of an accused are rashness/negligence; a person may cause death by a rash or negligent act which may have nothing to do with driving at all. Negligence and rashness to be punishable in terms of Section 304-A must be attributable to a state of mind wherein the criminality arises because of no error in judgment but of a deliberation in the mind risking the crime as well as the life of the person who may lose his life as a result of the crime. Section 304-A discloses that criminality may be that apart from any mens rea, there may be no motive or intention still a person may venture or practice such rashness or negligence which may cause the death of other. The death so caused is not the determining factor.
9. What constitutes negligence has been analysed in Halsbury's Laws of England (4th Edn.), Vol. 34, Para 1 (p. 3) as follows:
"1. General principles of the law of negligence.-Negligence is a specific tort and in any given circumstances is the failure to exercise that care which the circumstances demand. What amounts to negligence depends on the facts of each particular Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 12 of 29 case. It may consist in omitting to do something which ought to be done or in doing something which ought to be done either in a different manner or not at all. Where there is no duty to exercise care, negligence in the popular sense has no legal consequence. Where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be reasonably foreseen to be likely to cause physical injury to persons or property. The degree of care required in the particular case depends on the surrounding circumstances, and may vary according to the amount of the risk to be encountered and to the magnitude of the prospective injury. The duty of care is owed only to those persons who are in the area of foreseeable danger; the fact that the act of the defendant violated his duty of care to a third person does not enable the plaintiff who is also injured by the same act to claim unless he is also within the area of foreseeable danger. The same act or omission may accordingly in some circumstances involve liability as being negligent although in other circumstances it will not do so. The material considerations are the absence of care which is on the part of the defendant owed to the plaintiff in the circumstances of the case and damage suffered by the plaintiff, together with a demonstrable relation of cause and effect between the two"."
16. Considering the facts of the present case, I deem it apposite to also refer to the observations made by the Supreme Court in State of Karnataka v. Satish reported as (1998) 8 SCC 493, wherein the importance of the prosecution establishing guilt of the accused in a case of rash and negligent driving was discussed:-
"4. Merely because the truck was being driven at a „high speed‟ does not bespeak of either „negligence‟ or „rashness ‟ by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by „high speed‟. „High speed‟ is a relative term. It was for the prosecution to bring on record material to Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 13 of 29 establish as to what it meant by „high speed ‟ in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour 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 loquitur‟. ..."
(emphasis added)
17. From the exposition of law outlined hereinabove, it is apparent that to establish the offence either under Section 279 IPC or Section 304A IPC, the 'commission of a rash and negligent act' has to be proved. Further, the onus is on the prosecution to prove beyond reasonable doubt that the accused engaged himself in the commission of an act which could be called 'rash' or 'negligent'.
18. In the present case, the Trial Court as well as the Sessions Court, while noting the testimony of Yaduvendra Singh, observed that he was the only eye- witness of the incident. After analysing the evidence, it was further observed that the petitioner had not denied driving the bus in question. Insofar as the question of the bus being driven by the petitioner in a rash and negligent manner is concerned, both the Courts opined that Yaduvendra Singh, who is the eye- witness of the incident, has stated that the bus was driven by the petitioner in a rash and negligent manner on the aforesaid date and time and after having caused the accident, the petitioner was made to get down from it."
........
22. Thus, a bald assertion of Yaduvendra Singh that the bus in question was being driven in a rash and negligent manner Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 14 of 29 does not ipso facto establish rash and negligent conduct on the part of the petitioner. It needed to be proved as a fact that the accident was due to the rashness or negligence on the petitioner's part, but the prosecution has failed to discharge that burden. No 'rash and negligent act' on the part of the petitioner has been established beyond reasonable doubt, much less a direct nexus between the death of the deceased and 'rash and negligent act' on the part of the petitioner.
23. In view of the foregoing, it is discerned that there is no cogent material on record to establish the guilt of the accused/petitioner for the offences punishable under Sections 304A/279 IPC. While no attempt has been made by the prosecution to establish beyond reasonable doubt that a rash and negligent act was committed by the petitioner, learned counsel for the petitioner, by referring to the testimony of Yaduvendra Singh, has been able to show that there is reasonable doubt as to whether the alleged act of the petitioner was rash and negligent. The ingredient of 'rashness and negligence' in driving, essential for prosecution under Sections 304A/279 IPC, not having been made out against the petitioner, this Court is of the opinion that the judgments impugned suffer from perversity.
24. Accordingly, the present petition is allowed and giving benefit of doubt to the petitioner, the impugned judgment passed by the Trial Court alongwith the order on sentence, as well as the impugned judgment passed by the Sessions Court upholding the decision of the Trial Court, are set aside. The petitioner is acquitted for the offences punishable under Sections 304A/279 IPC."
13. Ld. Counsel for accused/ appellant also relied upon the judgment in the case of G. Srimivasulu Vs. State of Andhra Pradesh, Crl. (C) No. 1602/2007 in this regard.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 15 of 2914. Ld. Addl. PP for the state opposed the appeal by arguing that impugned judgment and order on sentence needs no interference and it has been passed after proper consideration of statements of witnesses and evidence on record.
15. I have heard the arguments advanced by Ld. Counsel for accused and Ld. Addl. PP for the State and have also carefully gone through the record.
16. Primarily, accused has challenged the appreciation of evidence, done by Ld. Trial Court, by way of present appeal. In this regard, I must mention relevant law governing appreciation of evidence of witnesses.
17. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed :-
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 16 of 29 taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
18. So, in the wake of above law, minor discrepancies in the testimonies of prosecution witnesses have to be avoided. Evidence has to be appreciated as a whole and it has to be concluded, as to whether said evidence after being considered as a whole, gave the impression of being true version of actual incident.
19. Apart from above mentioned law relating to appreciation of evidence, I must mention here the relevant law pertaining to "rash and negligent driving", as mentioned in Sec. 279/304A IPC.
20. To bring a case of homicide under section 304A IPC, the following conditions must exist, viz :-
(i) There must be death of the person in question;
(ii) The accused must have caused such death; and Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 17 of 29
(iii) That such act of the accused was rash and negligent and that it did not amount to culpable homicide.
21. This section applies where there is a direct nexus between the death of a person and the rash or negligent act. The act must be the causa causans, it is not enough that it may have been the causa sine qua-non.
22. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to its consequences i.e. without belief in the result of such doing. Criminal negligence, 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 a particular individual, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted; Bala Chandra v. State of Maharashtra, MANU/SC/0042/1968 : AIR 1968 SC 1319.
"A rash act is primarily an overhasty act and is opposed to a deliberate act, even if it is partly deliberate act; it is done without due thought and action. An illegal "omission" if negligent, may come under this section."Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 18 of 29
23. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do; Blyth Vs Birmingham Waterworks Company, (1856) 11 Ex Ch 781.
24. So, it is not every rashness or negligence, which is covered by Section 279/304A IPC. The rashness and negligence as mentioned in said provisions, are to be appreciated from the perspective of what a reasonable prudent person, would do or not do, in the situation in which a person had or had not done, based on facts of a particular case. The extent of criminal negligence and rashness, is to be appreciated, on the basis of facts of each case. The extent of due care and caution and the extent of recklessness are to be seen while appreciating the conduct of a person, charge-sheeted by police, for committing offences punishable u/sec. 279/304A IPC.
25. Considering above understanding of law, I am proceeding further and appreciating the facts and evidence brought on record by the prosecution.
26. PW1- Kapil Bhati (owner of offending vehicle) was the witness who deposed that he was the owner of offending truck bearing registration Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 19 of 29 no. HR55L 9074 and he had received the notice u/sec. 133 MV Act and filed the reply in this regard and had stated that on 08.08.2015, the aforesaid truck was driven by accused namely Moolchand. The reply to the Notice u/sec. 133 MV Act was Ex.PW1/A. He also deposed that accused was the only driver on the aforesaid truck in the year 2014. He also exhibited the documents pertaining to the aforesaid truck which were Ex.PW1/B and the photographs were Ex.P1 to Ex.P3.
27. The aforesaid witness proved that at the time of incident, the offending bearing no. HR55l 9074 was driving by the accused. The aforesaid fact is not denied by the accused and therefore, the testimony of aforesaid witness was reliable and credible and is accepted to be trustworthy. More so, the accused did not cross-examine the aforesaid witness despite opportunity and therefore the testimony of PW1 remained unrebutted.
28. PW2- Ct. Pradeep (eye witness) deposed that on the intervening night of 7/8.08.2015, he was posted as constable with Delhi Home Guard and was on PCR Motorcylce duty along-with HC Ved Pal. At around 2 am, while patrolling, when they reached at Okhla Estate Road in front of Shabnam Guest House, TA TKD Extension, he saw that a truck bearing no. HR55L 9074 had hit a motorcycle and dragged the same for 50-60 ft. and did not stop and in the aforesaid process, the motorcycle rider got crushed and the truck driver fled away from the spot. At that time, HC Ved Pal informed the same to the PCR and asked PW2 to chase the truck. Thereafter, since he was driving the motorcycle and the Ct. Ved Pal was a Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 20 of 29 pillion rider, theychased the truck and got the same stopped in front of Police Booth, Okhla Estate Road after chasing the same for 500-600 metres. Some public persons also gathered at the spot and apprehended the truck driver. The aforesaid witness identified the accused Moolchand in the Court. He further deposed that the accident occurred due to the mistake of truck driver as he was driving the truck in a rash and negligent manner. He identified the photographs on the motorcycle and the truck Ex.P-1 to Ex.P-13.
29. The aforesaid witness was the eye witness and star witness of the prosecution who categorically deposed the manner in which the accident occurred and also stated that the accident occurred due to rash and negligent act of the accused. The aforesaid witness also stated that the accused was apprehended from the spot with the help of public persons and that accused was apprehended after chasing the accused by this witness and accused was identified by him in the court. Therefore, the testimony of aforesaid witness was reliable and credible and is accepted to be trustworthy. More so, the accused did not cross-examine the aforesaid witness despite opportunity and therefore the testimony of PW2 remained unrebutted.
30. PW3- Ct. Kapil (accompanied the 1st IO to the spot) deposed that on 08.08.2015, upon receiving DD NO. 7B regarding an accident, he along- with SI Jitender Singh left for the spot and upon reaching at the spot, they found an unknown dead body lying in a fatal pposition and one helmat and one motorcycle make TVS bearing registration no. DL... 9085 in an Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 21 of 29 accidental conditoin. Further, 4-5 persons were present there and from them, they came to know that a truck had committed the accident and also that the truck was apprehended by the public. IO called the Crime Team and after sometime, public persons along-with some police officials and the truck driver reached at the spot. IO prepared the Tehrir and got the FIR registered through him. IO seized the offending truck vide seizure memo Ex.PW3/A and also seized the motorcycle and helmet vide seizure memo Ex.PW3/B. IO arrested the accused vide Ex.PW3/C and seized the driving licence of the accused vide Ex.PW3/D and deposited the case property in the Malkhana. The witness also identified the accused in the Court and the photographs of the offending truck, motorcycle and the place of incident Ex.P-1 to Ex.P-13.
31. During cross-examination, he deposed that he had made the departure entry and IO had enquired about the incident from the public persons. Accused was apprehended and thereafter taken to police station. He did not remember if the IO had prepared the site plan in his presence. There was street light installed at the spot and IO had collected the sample in his presence and crime team had taken the photographs of the spot.
32. The aforesaid witness corroborated the testimony of PW2 and other witnesses examined by the prosecution and there was no contradiction pointed out on behalf of the accused even after cross-examination. Further, all the suggestions put to the witness were refuted and thus, the testimony of aforesaid witness was trustworthy and reliable.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 22 of 2933. PW4- Ct. Puneet was the photographer with the mobile crime team and had taken photographs of the place of incident and of offending vehicle as well as the motorcycle and the same were Ex.P-1 to Ex.P-14.
34. The aforesaid witness proved that the accident had occurred with the photographs taken of the place of incident. Despite opportunity, accused did not cross-examined this witness to cull out any contradiction in his testimony and therefore, the testimony of PW4 was credible and trustworthy.
35. PW5- ASI Ved Pal (eye witness) deposed that on the intervening night of 7/8.08.2015, he was on patrolling duty on motorcycle along-with Ct. Pradeep. At around 2 am on 08.08.2015 when they reached near Okhla Estate Road, they found one truck/ dumper going ahead of them on high speed and while driving on the high speed, the driver of the truck hit against a motorcycle which was ahead of the truck and conductor side of the truck hit the motorcycle and due to the same, the driver of the motorcycle got stuck of the bumper of the truck and driver of the truck continued driving the same and due to the same driver of the motorcycle got stuck and the truck driver did not stop and ran away from the spot. He saw a PCR Van and instructed to take care of injured and thereafter they chased the offending truck. The truck was loaded and after a chase, they managed to stop the offending truck and in the meantime, some public persons also gathered and accused was apprehended and public persons were asked to keep the accused safe. Thereafter, he informed the same to the police station and reached the spot where the accident committed and Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 23 of 29 found that some police officials were already present there. IO recorded his statement and witness identified the accused in the Court.
36. During cross-examination, PW5 deposed that he was on patrolling duty on a PCR motorcycle and was at a distance of 10 meters on the opposite side of the road along-with driver Ct. Pradeep who was driving the PCR motorcycle. No public persons was present as it was late night. Further, he had given the information regarding the incident to his senior official and at about 2 am, he had given information to the duty officer regarding the incident. When they chased the truck, there were about 4-5 persons and he reached back to the spot after chasing the truck at around 3.15 am. The Injured was shifted to the hospital at about 3.15 am and the PCR remained at the spot. He again on his patrolling duty. IO has not prepared any document in his presence. He could not tell the exact speed of both the vehicles and did not remember the colour of the truck. His statement was recorded by the IO.
37. The aforesaid witness was again a star witness of the prosecution and being the eye-witness along-with PW2 had witnessed the accident which had taken place on the intervening night of 7/8.08.2015, when they were on patrolling and completely corroborated with the testimony of PW2. Even during cross-examination, no material contradiction was pointed out by accused and he refuted the suggestion that the accused was falsely implicated. He further deposed that the truck was being driven by accused on high speed which caused the accident in the present matter and established that the accused was driving the offending truck in a rash and Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 24 of 29 negligent manner which caused the death of deceased. The testimony of aforesaid witness was cogent and substantiated the offence against the accused and was credible and trustworthy.
38. PW6- ASI Radhey Shyam was the duty officer and exhibited DD 6A and FIR vide Ex.PW6/A and Ex.PW6/B and the certificate u/sec. 65B of Indian Evidence Act as Ex.PW6/C.
39. The aforesaid witness was trustworthy as he had registered the FIR upon information received and the same is not disputed by the accused.
40. PW7- Smt. Lalita (mother of the deceased) deposed that deceased was his son and she had given the identity proof of the son/ deceased to the police and identified the signature on the document Ex.PW7/A.
41. The aforesaid witness being the mother of deceased deposed regarding the aforesaid fact and the same was not disputed by the accused and therefore, the witness was credible.
42. PW8- Ravinder Singh (brother of the deceased) identified the dead body of deceased and the identification memo and handing over memo of the dead body was Ex.PW8/A and Ex.PW8/B.
43. The aforesaid witness being the brother of deceased deposed regarding the aforesaid fact and the same was not disputed by the accused and therefore, the witness was credible.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 25 of 2944. PW9- Tasnimuddin Siddiqui (Mechanical Inspector) conducted inspection of offending vehicle and the motorcycle and prepared his reports Ex.PW9/A and Ex.PW9/B.
45. The Mechanical Inspection Report in the present matter shows that the motorcycle of deceased had fresh damages and the same was damaged from all sides and it has been opined that the impact was from front/ right side. Further, the Mechanical Inspection Report Ex.PW9/B of the offending vehicle/ truck bearing no. HR55L 9074 also shows that there were fresh damages on the front bumper and lower guards which was dented/ pressed and had damages on the vehicle which shows that the offending vehicle had received the damages due to the aforesaid accident and it is not the case of the accused that the damages on the truck were old. Further, the aforesaid witness PW9 was not contradicted by the accused upon the reports Ex.PW9A and Ex.PW9/B and therefore the aforesaid reports were accepted to be correct and accurate to show that the offending vehicle had hit against the motorcycle which caused the death of deceased.
46. PW10- SI Jitender Singh (1st IO of the case) deposed that upon receiving information, he reached the spot along-with Ct. Kapil and found one unknown dead body lying on the spot and found that accused was apprehended by the public. He had sent the dead body to AIIMS Hospital and searched for the eye witness and called Crime Team at the spot. He prepared the rukka and got the FIR registered through Ct. Kapil.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 26 of 2947. PW11- SI Pramod Kumar (2nd IO of the case) deposed regarding the investigation conducted in the present matter and also that during the investigation, he met eye witnesses HC Ved Pal and Ct. Pradeep who informed regarding the present matter and after completion investigation, filed the charge-sheet.
48. PW12- Ct. Sumit Kumar deposed that on 27.08.2015, the documents pertaining to the offending vehicle were seized by the IO and the offending vehicle was released after preparation of panchnama Ex.PW7/A.
49. The aforesaid witnesses PW10, PW11 and PW12 were the formal witnesses who were part of the investigation and therefore their testimonies were credible and no contradictions have been pointed out by accused during their examination.
50. In the present matter, the seizure memo of the offending vehicle/ truck Ex.PW3/A and of the motorcycle Ex.PW3B both show having fresh damages which have been clearly mentioned by the IO and the same clarifies that the damages on the vehicles were due to the damages which had occurred. Prosecution witnesses therefore, were trustworthy and reliable.
51. Accused per contra, did not explain anything, regarding his implication in this case, for supporting his cause, in his statement u/sec. 313 CrPC. So, that statement did not help his cause.
Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 27 of 2952. Accused examined DW1- Shiv Pratap who deposed regarding the character of the accused. Further, the aforesaid witness admitted that he was not the eye witness to the accident and at the time of accident he was in Badarpur and therefore his testimony was of no relevance to the case of accused. I discarded his testimony being inconsequential.
53. In the grounds of appeal, appellant has referred to the facts by stating that the testimony of PW2 and PW5 was not trustworthy as the witnesses were coming from the opposite side of the road and could have not witnessed the accident. Said grounds are not tenable as they were never put to test, to any of the prosecution witnesses and especially to PW2 and PW5. I have already concluded that DW1 did not probablize his testimony based on any documentary proof. Coupled with the same, accused did not file any case against police official or complainant for implicating him in this case falsely.
54. So, prosecution witnesses and evidence is believed by me to be true and proved. Accused failed to probablize his defence.
55. The net result is that, it was proved beyond reasonable doubt that accused was driving offending truck in question and had hit the victim's motorcycle from front of the truck and due to the same, the driver of the motorcycle came under the tyre of the truck and despite the same, the accused dragged the motorcycle and the victim for about 50-60 metres and Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 28 of 29 thereafter ran away from the spot and the damages on the offending vehicle as well as the motorcycle are corroborated in the mechanical inspection report Ex.PW9A and Ex.PW9B. The front side of offending truck was also damaged as per the mechanical inspection report Ex.PW9B which is on record. The site plan Ex.PW11/A which indicated that offending truck was found on the spot at the time of incident. The application for conducting post-mortem of victim Sukhvinder Singh and identification memos of deadbody Ex.PW8/A, alongwith deadbody handing over memo Ex.PW8/B proved that said victim had died due to the accident. There was no evidence to the effect that accident in question had taken place due to negligence of victim/ complainant or that there was some third party which caused the said accident.
56. So, by driving offending truck and hitting motor cycle of the deceased in question from behind, accused had driven his vehicle in a rash and negligent manner. He was rightly convicted by Ld. Trial Court.
57. Appeal qua the judgment of conviction, stands dismissed. Announced In The Open Court Today.
Digitally signed by SHEETALSHEETAL CHAUDHARY CHAUDHARY Date:
2025.03.28 16:11:41 +0530 [Sheetal Chaudhary Pradhan] ASJ-02, South-East/Saket/Delhi 28.03.2025 Moolchand Vs. State (CA No. 401/2024) FIR No.1039/2015 PS Govindpuri Page 29 of 29