Delhi District Court
State vs Brijesh Sharma on 1 May, 2025
IN THE COURT OF MS. SEEMA NIRMAL
JUDICIAL MAGISTRATE FIRST CLASS -09,
SOUTH-EAST DISTRICT / SAKET COURTS, DELHI
Cr CASES 514/2019
STATE Vs. BRIJESH SHARMA
FIR NO. 44/2018
PS Lodhi Colony
JUDGMENT
a. CNR NO. DLSE020017032019
b. Name of the Chanderkesh s/o Late Shiv Lal
Complainant
c. Name of the accused & Brijesh Sharma
his parentage and s/o Late Sh. Indrajeet Sharma
address r/o 3013/11A, Street no. 17,
Ranjeet Nagar, New Delhi
d. Offence charged 279/338 IPC & Section 3/181 MV
Act
e. Date of commission of 02.05.2018
offence
f. Date of Institution 18.01.2019
g. Plea of accused Pleaded not guilty
h. Order Reserved on 09.04.2025
i. Date of Pronouncement 01.05.2025
j. Final Order Acquitted for offence punishable
u/s 279/338 IPC & u/s 3/181 MV
Act
Cr CASES 514/2019 PAGE 1 OF 17
STATE Vs. BRIJESH SHARMA
FIR NO. 44/2018
PS Lodhi Colony
SEEMA Digitally signed by
SEEMA NIRMAL
NIRMAL Date: 2025.05.01
15:48:57 +0530
Present: Sh. Jayadhitya, Ld. APP for the State.
Accused with Ld. counsel Sh. N.K. Jauli.
BRIEF FACTS AND REASONS FOR DECISION
1. Briefly, the case of the prosecution is that on 02.05.2018, at about 8.15 PM, at 3rd Avenue Road, in front of Block6, Lodhi Colony, New Delhi, within the jurisdiction of PS Lodhi Colony, accused was found driving vehicle i.e. car bearing no. DL4CAL4192 of silver colour on a public way in a rash and negligent manner so as to endanger human life and personal safety of others and while driving the same, he hit against a motorcycle bearing no. PB22B6987 and caused grievous injuries to injured Chander Kesh and thereby accused has committed offences punishable u/s 279/338 IPC r/s Section 3/181 MV Act.
2. This case was registered on the statement of injured/complainant Chander Kesh who stated that on 02.05.2018, at about 8.00 pm, he had come to Khanna Market on his motorcycle bearing no. PB22B6987 make Hero Honda to purchase medicines. However, while returning back at around 8.15 pm, one silver colour car, which was coming to 3rd Avenue Road from Jorbagh side in a rash and negligent manner and at a high speed and hit against his motorcycle due to which he fell down on the road. The driver of the offending car and public persons present there lifted him. Somebody Cr CASES 514/2019 PAGE 2 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 SEEMA Digitally signed by SEEMA NIRMAL PS Lodhi Colony NIRMAL Date: 2025.05.01 15:49:04 +0530 called PCR at 100 number. The name of the driver of offending vehicle was revealed as Brijesh Sharma . Thereafter, the PCR van took him to AIIMS trauma center where he was admitted. He gave his statement to the police in the presence of his family members. The said accident was caused due to fast speed and rash and negligent driving of driver of offending vehicle bearing no. DL4CAL4192 make Tata Indica Vista of silver colour. After completion of investigation, final report in the form of charge sheet under Section 173(2) Cr.P.C. for the offences under Sections 279/338 IPC r/w Section 3/181 MV Act & 5/180 MV Act was forwarded to the Court against the accused for trial.
3. After taking cognizance of the offences by the court, the accused was summoned. Pursuant to his appearance, in compliance of Section 207 Cr.P.C, copy of charge sheet was supplied to him. Subsequently, after perusal of the judicial file and hearing the parties, a prima facie case against the accused for commission of offences punishable under Sections 279/338 IPC & Section 3/181 MV Act as he was driving the offending car without any valid driving license was found to be made out. Accordingly, on 13.02.2020, formal notice of accusation for commission of offences under Sections 279/338 IPC & Section 3/181 MV Act, was served upon the accused, to which he pleaded not guilty and claimed trial. Thereafter, the matter was posted for Prosecution Evidence.
4. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, examined the following Cr CASES 514/2019 PAGE 3 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 PS Lodhi Colony SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:49:10 +0530 witnesses; viz.
i) PW-1 Chanderkesh (injured/complainant),
ii) PW-2 Ms. Aruna Sharma (eye witness),
iii) PW-3 T.N. Siddiqui (mechanical inspector
iv) PW-4 HC Harphool SIngh (police witness)
v) PW-5 ASI Ravi Kumar (IO).
5. The prosecution, in order to prove its case against the accused beyond all reasonable doubts, also relied upon the following documents:
1) Statement of complainant/injured as Ex. PW1/A,
2) photographs of accidental motorcycle as Ex. P1 (colly),
3) photographs of offending car as Ex. P2 (colly),
4) Reply to notice u/s 133 MV Act as Ex. PW2/A,
5) arrest memo of accused as Ex. PW2/B,
6) seizure memo of offending car as Ex. PW2/C,
7) seizure memo of documents of offending car as Ex. PW2/D,
8) mechanical inspection report of offending car and accidental motorcycle as Ex. PW3/A and Ex. PW3/B respectively,
9) seizure memo of DL of accused as Ex. PW4/B,
10) Rukka as Ex. PW5/A,
11) site plan as Ex. PW5/B,
6. In addition to the above-mentioned witnesses, the accused also admitted FIR no. 44/18, Certificate u/s 65B IE Act, DD No.30A dated 02.05.2018, MLC no. 5000094145 dated 02.05.2018 and X-Ray Cr CASES 514/2019 PAGE 4 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 SEEMA Digitally signed by SEEMA NIRMAL PS Lodhi Colony NIRMAL Date: 2025.05.01 15:49:22 +0530 report and plate no. 77823/18 dated 02.05.2018 as Ex. A-1 to A-5 respectively in terms of Section 294 Cr.P.C vide order dated 16.03.2023, hence, the said witnesses were dropped on the submissions of Ld. APP for State.
7. After prosecution evidence, statement of accused was recorded u/s 313 Cr.P.C. wherein all incriminating circumstance led against him during the trial by the prosecution witnesses were put to him, affording him an opportunity to give his explanation, if any. Accused pleaded innocence and claimed that he has been falsely implicated in the present case. However, accused preferred not to lead defence evidence and therefore, DE was closed vide order dated 27.02.2025. Thereafter, the matter was posted for final arguments.
8. I have heard the Ld. APP for the State and the Ld. counsel for the accused and gone through the case file carefully. After hearing rival contentions and after appreciation of evidence on file, I am of the considered view that prosecution has not been able to prove its case against the accused beyond reasonable doubts and the arguments advanced by the Ld. APP or the state cannot be accepted for the reasons given below.
9. First of all, the accused has been charge-sheeted for the commission of offence punishable under Section 279 of IPC. Before proceeding further, for reference Section 279 IPC is reproduced as under:-
Cr CASES 514/2019 PAGE 5 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 Digitally signed PS Lodhi Colony SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:49:28 +0530
279. Rash driving or riding on a public way.--Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both. The essential ingredients of Section 279 IPC are:
(i) driving of a vehicle or riding on a public way,
(ii) such driving or riding must be so rash or negligent as to endanger human life or to be likely to cause hurt or injury to any person.
10. To bring home the offence punishable under Section 279 IPC, first of all, the identity of the author of rash or negligent act must be fixed. Coming back to the facts of the present case, PW-1 Chandrakesh is the complainant in the present case on the basis of whose complaint the present case has been registered against the accused and he has deposed in his examination in chief on the lines of his complaint Ex.PW-1/A. He has identified the driver of the offending vehicle. Moreover, wife of the accused namely Aruna Sharma also appeared as PW-2 and she has clearly admitted the occurrence but she has deposed that it was the rider of the motorcycle i.e. the accused who was riding the same at a very high speed and in a rash and negligent manner. Further there is a categorical reply of notice sent to PW-2 Aruna Sharma vide Ex.PW2/A under section 133 MV Act, that on given day her husband Brijesh Sharma was driving the alleged offending vehicle. Thus, occurrence has been duly admitted by her and as such the identity of the accused is duly established on record.
Cr CASES 514/2019 PAGE 6 OF 17
STATE Vs. BRIJESH SHARMA
Digitally signed
FIR NO. 44/2018 SEEMA by SEEMA
NIRMAL
PS Lodhi Colony
NIRMAL Date: 2025.05.01
15:49:39 +0530
Now, the prosecution had to prove on record the rashness and negligence on the part of the accused while driving the offending vehicle. In Ravi Kapur v. State of Rajasthan (SC) 2012(4) R.C.R. (Criminal) 245, it has been held as follows:-
11. 'Negligence' means omission to do something which a reasonable and prudent person guided by the considerations which ordinarily regulate human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do. Negligence is not an absolute term but is a relative one; it is rather a comparative term. It is difficult to state with precision any mathematically exact formula by which negligence or lack of it can be infallibly measured in a given case. Whether there exists negligence per se or the course of conduct amounts to negligence will normally depend upon the attending and surrounding facts and circumstances which have to be taken into consideration by the Court. In a given case, even not doing what one was ought to do can constitute negligence.
12. The Court has to adopt another parameter, i.e., 'reasonable care' in determining the question of negligence or contributory negligence. The doctrine of reasonable care imposes an obligation or a duty upon a person (for example a driver) to care for the pedestrian on the road and this duty attains a higher degree when the pedestrian happen to be children of tender years. It is axiomatic to say that while Cr CASES 514/2019 PAGE 7 OF 17 STATE Vs. BRIJESH SHARMA Digitally signed FIR NO. 44/2018 SEEMA by SEEMA NIRMAL PS Lodhi Colony NIRMAL Date: 2025.05.01 15:49:42 +0530 driving a vehicle on a public way, there is an implicit duty cast on the drivers to see that their driving does not endanger the life of the right users of the road, may be either vehicular users or pedestrians. They are expected to take sufficient care to avoid danger to others.
13. The other principle that is pressed in aid by the courts in such cases is the doctrine of res ipsa loquitur. This doctrine serves two purposes - one that an accident may by its nature be more consistent with its being caused by negligence for which the opposite party is responsible than by any other causes and that in such a case, the mere fact of the accident is prima facie evidence of such negligence. Secondly, it is to avoid hardship in cases where the claimant is able to prove the accident but cannot prove how the accident occurred. The courts have also applied the principle of res ipsa loquitur in cases where no direct evidence was brought on record. The Act itself contains a provision which concerns with the consequences of driving dangerously alike the provision in the Indian Penal Code that the vehicle is driven in a manner dangerous to public life. Where a person does such an offence he is punished as per the provisions of Section 184 of the Act. The courts have also taken the concept of 'culpable rashness' and 'culpable negligence' into consideration in cases of road accidents. 'Culpable rashness' is acting with the consciousness that mischievous and illegal consequences may follow but with the hope that they will Cr CASES 514/2019 PAGE 8 OF 17 STATE Vs. BRIJESH SHARMA SEEMA Digitally signed by SEEMA NIRMAL FIR NO. 44/2018 NIRMAL 15:49:47 +0530 Date: 2025.05.01 PS Lodhi Colony not and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite 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 civic duty of circumspection. In such a case the mere fact of accident is prima facie evidence of such negligence. This maxim suggests that on the circumstances of a given case the res speaks and is eloquent because the facts stand unexplained, with the result that the natural and reasonable inference from the facts, not a conjectural inference, shows that the act is attributable to some person's negligent conduct. [Ref. Justice Rajesh Tandon's 'An Exhaustive Commentary on Motor Vehicles Act, 1988' (First Edition, 2010]."
11. Coming back to the facts of the present case, PW-1 complainant in his cross-examination has stated that the police officials had obtained his signatures on the statement within next month and that the statement was not written by him and police officials brought the statement which was already written by them. Meaning thereby, the contents of the statement/complaint of the complainant are not believable as the same was not written or dictated Cr CASES 514/2019 PAGE 9 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 SEEMA Digitally signed by SEEMA NIRMAL PS Lodhi Colony NIRMAL 15:49:54 +0530 Date: 2025.05.01 by him. Even the same was not read over to him before obtaining his signatures.
12. Further, in Kandhara Singh v. State of Punjab, (P&H) 2007(4) R.C.R.(Criminal) 679, it has been observed as follows:-
"6. The argument advanced by Mr. R.S. Rai, learned Senior Advocate is two fold. Firstly, he urged that though, the case is based on the testimony of the sole eye-witness i.e. Nishan Singh and no doubt, he could not be disbelieved merely for the reason of his relationship with the deceased, but his testimony, if scrutinised, does not land us anywhere and he is bound to be disbelieved as his testimony does not meet with the following required standards; (i) He does not describe the manner as to how the petitioner was rash and negligent; (ii) he has failed to establish the identity of the petitioner. Having examined the testimony of Nishan Singh (PW4), I see some substance in his arguments. Nishan Singh (PW4) has stated during his examination that the petitioner was driving the vehicle at a high speed, but he has not specifically stated anywhere if he was rash or negligent, much less he has not testified as to at what speed, he was driving the vehicle. Regarding high speed, it may be observed that the driver may be driving the vehicle at a high speed, but he cannot be said to be rash or negligent, unless it is explained as to in what manner he was rash or negligent. It is a matter of common parlance that if a person is driving the Cr CASES 514/2019 PAGE 10 OF 17 STATE Vs. BRIJESH SHARMA Digitally signed FIR NO. 44/2018 SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:49:58 +0530 PS Lodhi Colony vehicle upto 100 km per hour, then the same could not be said to be a high speed and it could be assessed as high, if he exceeded 100 km per hour. In absence of such categorical statement, the words 'high speed' without further explanation about its rate, could not be termed as a rash or negligent act in the terms of Section 304A Indian Penal Code. It is also worthwhile to mention that Nishan Singh during his examination as PW4 has been changing his stand. As per the First Information Report, the offending vehicle was a 'Maruti Van', which allegedly struck against the deceased, but in his testimony recorded in court Nishan Singh (PW4) has stated that the petitioner was driving the 'matador', therefore, this discrepancy leads me to infer that he was not witness to the occurrence. His house is allegedly situated at about 100 yards from the place of occurrence, therefore, he may have come after hearing the noise of collusion after the occurrence was over."
13. Further, in State of Karnataka v. Satish , (SC) 1998(8) SCC 493, it has been held as follows:-
"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 Cr CASES 514/2019 PAGE 11 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 PS Lodhi Colony SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:50:15 +0530 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". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The Motor Vehicle Inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the Inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case.
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. To us it appears that the view of the High Court, in the facts and circumstances of this case, is a reasonably possible view. We, therefore, do not find any reason to interfere with the Cr CASES 514/2019 PAGE 12 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 Digitally signed PS Lodhi Colony SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:50:32 +0530 order of acquittal. The appeal fails and is dismissed. The respondent is on bail. His bail bonds shall stand discharged."
14. In the present case also, the complainant has not deposed regarding the width of the road, the density of the traffic on the road, manner of driving the alleged offending vehicle and the physical condition of the road etc. in the absence of which rashness and negligence on the part of the accused cannot be ascertained. Reliance in this regard can be placed on Shakila Khader v. Nausher Gama, (SC) 1975 AIR (SC) 1324, wherein it has been held as follows:-
"6. The facts in the case speak eloquently about what should have happened. The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt, as in this case, to overtake the other vehicles resulting in going to the wrong side of the road and being responsible for the accident. Even if the accident took place in the twinkling of an eye it is not difficult for an eye witness to notice a car overtaking other vehicles and going to the wrong side of the road and hitting a vehicle travelling on that side of the road. The criterion adopted by the learned Judge for assessing the evidence of P.Ws. 3 and 4 and rejecting it is thoroughly unjustifiable. There may be cases where it is difficult to be clear or specific in giving details as to the cause of the accident but this is not one such case. The reference by the learned Judge Cr CASES 514/2019 PAGE 13 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 Digitally signed PS Lodhi Colony SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:50:38 +0530 about the slight damage to the electric post and the conclusion drawn therefrom that the car could not have been going at a high speed is not correct as we shall show later. His further observation that the fact that the car travelled another 45 feet and hit against the parapet wall and turned turtle showed that the car must have been travelling at an extremely high speed but there is a little blue paint on the pole and a faint gray stain on the parapet wall is self contradictory unless we are to infer that the learned Judge implied that the one or the other is not true. He does not so hold. There can be no doubt about the car having hit the electric post and the parapet wall. That and the fact of its overturning would establish the rash and negligent driving. A car driven normally and travelling behind a bus does not go to the opposite side of the road and hit an electric post and parapet wall and turn turtle. The car apparently stopped only because it turned turtle. It did not hit the electric post or the parapet wall full tilt; if it did it would have stopped at one of those points. We should remember that the collision with the scooter and pushing it back would have considerably reduced the speed of the car. Even so it travelled farther. The slight damage to the electric post and the parapet wall is because the car hit them sideways. Nobody has suggested that they were brought into existence for the purpose of this case. The car would probably not have stopped but for turning turtle and it should have been travelling quite fast Cr CASES 514/2019 PAGE 14 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 Digitally signed PS Lodhi Colony SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:50:43 +0530 before it could overturn as the learned Judge himself realises. There is only one conclusion possible on the facts of this case and that is that the accused came over to the wrong side of the road and was responsible for the accident and that is clearly a rash and negligent act in the condition of the road and the condition of the traffic."
15. Further, there is no other evidence brought on record by the prosecution to prove any rashness and negligence on the part of the accused as the manner of driving the offending vehicle has been mentioned in the examination in chief of the complainant but not in the complaint Ex.PW-1/A and as such it seems that the complainant has improved his version later on. Reliance in this regard can be placed on Braham Dass v. State of H.P., (SC) 2010(4) R.C.R. (Criminal) 418, wherein it has been held as follows:-
"4. Obviously the foundation in accusations under Section 279 Indian Penal Code is not negligence. Similarly in Section 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
16. Moreover, PW-2 clearly deposed in her examination in chief that it was the rider of the motorcycle i.e. the accused who was riding Cr CASES 514/2019 PAGE 15 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 Digitally signed PS Lodhi Colony SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:50:51 +0530 the same at a very high speed and in a rash and negligent manner. Thus, as per the witness of the prosecution itself it was the accused who was riding the motorcycle in a rash and negligent manner. Thus, in my considered view, rashness and negligence on the part of the accused is not proved on record by the prosecution. The complainant in his testimony has deposed that the driver of the offending vehicle was driving the car in such a manner that he was breaking sideways. But, as per mechanical report Ex.PW-3/A there is no damage on the alleged car on its sides. Only the front side of the car has been damaged and as such testimony of PW-2 inspires more confidence as she has stated that it was the complainant who directly hit his motorcycle in the front of their car. Thus, version of the wife of the accused PW-2 seems to be genuine. Accordingly, in view of the above discussion, the offence punishable under Section 279 IPC is not proved on record against the accused.
17. There is no other eye witness of the alleged occurrence and all the remaining witnesses of the prosecution are just formal witnesses whose testimony is not sufficient to prove the case of the prosecution.
18. For the purpose of proving offence under section 3/181 M.V. Act, though there is a categorical reply of notice sent to PW-2 Aruna Sharma vide Ex.PW2/A under section 133 MV Act, that on given day her husband Brijesh Sharma was driving the alleged offending vehicle, however prosecution has failed to prove that on given time accused Cr CASES 514/2019 PAGE 16 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 PS Lodhi Colony Digitally signed SEEMA by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:50:58 +0530 was not having a valid driving license. As neither witness from RTO has been examined to prove the same qua the driving license of the accused nor any document has been exhibited in evidence qua the same.
19. In the light of above discussion and reasons, this Court is of the considered view that evidence led by the prosecution is highly insufficient and is discrepant on the material aspects of this case. It is the bounden duty of the prosecution to prove its case against the accused present in the Court beyond the shadow of reasonable doubts. In the instant case prosecution has failed to prove its case and as such while extending the benefit of doubt to the accused, he is hereby acquitted of the charges under Sections 279 and 338 IPC & Section 3/181 MV Act against him by the prosecution. File be consigned to the record room after due compliance. SEEMA by Digitally signed SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:51:12 +0530 Announced in the Open (SEEMA NIRMAL) On 01.05.2025 JMFC-09/ SED/ Saket Courts, New Delhi It is certified by me that this judgment contains 17 pages and each page is digitally signed by me. SEEMA Digitally signed by SEEMA NIRMAL NIRMAL Date: 2025.05.01 15:51:17 +0530 (SEEMA NIRMAL) JMFC-09/ SED/ Saket Courts, New Delhi/01.05.2025 Cr CASES 514/2019 PAGE 17 OF 17 STATE Vs. BRIJESH SHARMA FIR NO. 44/2018 PS Lodhi Colony