Delhi District Court
3.Title Of The Case: :State vs Manish Kumar Yadav on 26 June, 2018
IN THE COURT OF SH ANURAG DASS
METROPOLITAN MAGISTRATEI(SOUTH)
SAKET COURTS, DELHI
1.FIR No : 230/14
2.Unique I.D. No. : 2036032/2016
3.Title of the case: :State Vs Manish Kumar Yadav
FIR No. 230/14, PS Fatehpur Beri
4.Date of institution :23.07.2015
5.Date of reserving Judgment :25.05.2018
6.Date of pronouncement :26.06.2018
J U D G M E N T :
(a)The date of commission 25.04.2014
(b)The name of complainant Sh. Daya Ram S/o Sh. Chander
Singh, R/o 68, Sultan Pur, New Delhi
(c) The name & address accused Manish Kumar Yadav S/o Sh. Radhey
Shyam Yadav, R/o Village Mahraura,
Harakhpur, PO. Maronda PS Moama,
Distt. Allahabad, UP
(d)The offence complained of U/s 279/337/304A IPC
(e) The plea of the accused Not guilty
(f)The final order Acquitted
(g)The date of such order 26.06.2018
BRIEF FACTS AND REASONS FOR DECISION
1. Present is a case of road side accident due to drunken driving resulting into death of victim /driver. On 26.04.2014, information was received by at P.S. Fatehpur Beri vide DD No. 3A regarding death in accident in Gjitorni Red Light, M. G. Road, FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 1 /13 New Delhi and the said DD was handed over to HC Ashok Mehta for further investigation.
After receiving DD No. 3A, IO/HC Ashok Mehta alongwith Ct.Rohtash reached the spot where they found one motorcycle and one container was stationed nearby. Injured persons were already taken to unknown hospital by PCR van. Thereafter, vide DD no. 3B HC Ashok Mehta received information regarding MLC Trauma center over phone and Ct. Rohtash was left at the spot. Injured Anand admitted vide MLC No. 424454 on which doctor has declared dead during treatment and another MLC No. 424457 of injured Daya Ram on which doctor declared fit for statement. Statement of Daya Ram, friend of deceased was recorded. In his statement complainant stated that on 25.04.2014 at around 11:45 PM, he along with his friend deceased Anand were going to his home on motor cycle bearing no. DL 5 SAD 3169 from Aya Nagar. When they were about to reach near Metro Pillar No. P114, M. G. Road, then driver of the Container bearing no. HR 38M 0722 while driving in rash & negligent manner hit their motorcycle from the left side and they fell down. Complainant fell down on kachach road and his friend Anand was fell down on pakka road and driver of the container crushed his friend Anand. Driver of the container fled away from the spot. Thereafter IO Ashok Kumar got registered the FIR and preserved the dead body in AIIMS Mortuary. At the instance of complainant, site plan was prepared and case property was seized. They could not found any other eye witness except the complainant. Post mortem was got conducted and dead body was handed over to the relative of deceased. Thereafter mechanical inspection was got conducted of offending container no. HR 38M 0722 and sent notice u/s 133 MV Act to the owner of vehicle. Thereafter NBWs issued against the accused received back unexeuted, Thereafter, FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 2 /13 proceedings u/s 82/83 Cr. PC was done against the accused which was dropped by the second IO SI Parvesh Lamba as accused Manish Kumar Yadav has surrendered before the court on 22.08.2014. Driving licence of accused seized by the IO. Thereafter IO filed application for TIP to which the accused has refused to participate. After the usual investigation, the charge sheet for the offence U/Sec 279/ 337304A IPC was prepared against the accused.
2. The aforesaid chargesheet was filed before the court on 23.07.2014, whereupon the cognizance of the offence was taken against the accused.
3. After hearing the arguments, notice u/s 279/337/304A IPC was framed against the accused Manish Kumar Yadav on 02.03.2016 that on 25.04.2014 at about 11:45 pm near metro pillar no. P114 near Ghitorni red light, MG Road , New Delhi within the jurisdiction of PS FP Beri, he was driving container no. HR38M0722 in rash and negligent manner so as to endanger human life and personal safety of others and due to which he hit one motorcyclist which caused death of one Anand to which the accused pleaded "Not Guilty" and instead claimed trial and accordingly the case was fixed for prosecution evidence.
4. During the course of the trial, prosecution examined 14 witnesses to substantiate the accusations leveled against the accused.
5. PW1 Tara Chand has deposed that on 26.04.2014 he along with Satbir went to the AIIMS Mortuary where they identified the dead body of their brother deceased Anand. IO recorded their dead body identification statement which is Ex. PW 1/A. After post mortem, dead body was handed over to them vide handing over memo Ex. PW 1/B. Witness was not cross examined despite opportunity.
6. PW2 Satbir has deposed that on 26.04.2014 he along with Tara Chand went to the FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 3 /13 AIIMS Mortuary where they identified the dead body of their brother deceased Anand. IO recorded their dead body identification statement already Ex. PW 1/A. After post mortem, dead body was handed over to them vide handing over memo already Ex. PW 1/B. Witness was not cross examined despite opportunity.
7. PW3 Daya Ram has deposed that he is working as a tailor in Aya Nagar. he do not remember date, month or year. His friend Anand was coming to drop him at his house at about 11:00pm on his motorcycle (whose no. I do not remember). When they reached at Ghitorni Red Light one container (whose no. I do not remember) was coming from back side and hit their motorcycle from back side and they fell down. He fell down on kachcha road and his friend fell down on pakka road and containers front wheel roll down on the right arm of his friend. Driver of the container fled out from the spot. Public persons gathered there and with the help of public persons his friend Anand was removed beneath the tyre of the container. Someone from public person made a call at 100 no. PCR Van came and took them to the AIIMS Trauma Centre. At the time of accident, he had not seen the driver of the container but later on he came to know about the accused when he appeared in the Court. Police recorded his statement Ex. PW 3/A. Witness failed to identify the photographs of the offending vehicle.
Witness was cross examined.
8. PW4 Ct. Shyamvir has deposed that he alongwith IO went to AIIMS Trauma Center for got conducting the postmortem of deceased and after postmortem dead body was handed over to relatives of the deceased vide handing over memo Ex. PW1/B. Witness was not cross examined despite opportunity.
9. PW5 Rajender Singh Record Clerk, AIIMS Trauma Center has deposed that he has FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 4 /13 been working in AIIMS Trauma Center for last 30 years. He has seen the MLC no. 424457 of injured Daya Ram which was prepared by Dr. Ashok Bhatt and MLC no. 424454 of injured Anand which was prepared by Dr. Rupesh Kumar. He worked with them and He can identify signatures of said doctors. The said MLCs are Ex.PW5./A and Ex.PW5/B. He has also seen the postmortem report of deceased Anand bearing no. TC24214 which was prepared by Dr Pradeep Yadav, Senior Resident AIIMS. He can identify the signature of Dr Pradeep Yadav as he also worked with him. The PM Report is Ex.PW5/C. Witness was duly cross examined.
10. PW6 ASI Devender has deposed that on 26.04.2014 he was working as Duty Officer and and at about 2.35 am a rukka was received through Ct. Rohtash sent by HC Ashok Mehta. On the basis of said rukka he had registered the present FIR and handed over the same to Ct Rohtash. He had brought the FIR book. The copy of FIR is Ex.PW6/A(OSR). Further his endorsement on the original rukka is Ex.PW6/B. After registration of FIR, the investigation was marked to SI Ashok Kumar. He had also brought the original register of DD no. 3A dated 26.04.2014 and the same DD is Ex.PW6/C(OSR).
Witness was not crossexamined despite opportunity.
11. PW7 HC Ashok Mehta deposed that on 26.04.2014, he was posted as HC at PS Fatehpur Beri. On that day he received DD no. 3A regarding accident near Ghitorni Red Light. Thereafter, he alongwith Ct Rohtash went to the spot where one motorcycle no. DL5SAD3165 was standing near BSES PWD Poll 546 whose right side mirror was twisted and one container no. HR38M0722 was also standing at the corner of the road. On inquiry they got to know that injured has already taken to unknown hospital. In the meanwhile information was received vide DD no. 3B regarding admission of injured in the AIIMS Trauma Center. Thereafter, he left Ct Rohtash at the spot and went to Trauma Center FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 5 /13 where he collected the MLC no. 424454 of injured Anand on which doctors opined that he is unfit for statement. At the same time he received DD no. 4A regarding MLC no. 424457 of injured Daya Ram, who was also admitted in the AIIMS Trauma Center and on this MLC doctor opined that the patient is fit for statement. Thereafter, he recorded the statement of injured Daya Ram which is already Ex.PW3/A. Thereafter he prepared the rukka which is already Ex.PW6/B and went to the spot alongwith complainant and rukka was handed over to Ct Rohtash for registration of FIR. After registration of FIR, Ct Rohtash alongwith SI Ashok came to the spot and conducted further investigation in the present case.
Witness was duly crossexamined.
12. PW8 HC. S. B. Tiwari has deposed that on 26.04.2014, he was posted as constable at PS Fatehpur Beri. On that day Duty Officer directed him to report IO SI Ashok Kumar at Ghitorni, MG Road. Thereafter, he went to the spot and from there went to AIIMS Trauma Center alongwith SI Ashok Kumar. There Satbir and Tara Chand, brothers of deceased were present. Dead body was got identified by brother of the deceased vide dead body identification memo already Ex.PW1/A. Thereafter, postmortem of the deceased was got conducted and after postmortem, dead body was handed over to brothers of deceased namely Satbir and Tara Chand with dead certificate vide handing over memo already Ex.PW1/B. IO recorded the statement of both brothers of the deceased u/s 161 CrPC.
Witness was duly cross examined .
13. PW9 Ct. Jitender Kumar has deposed that on On 26.04.2014, he was posted as FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 6 /13 Constable at PS Fatehpur Beri. On that day he was posted as DD writer and at about 12.30 AM he received a call from Trauma Center regarding MLC no. 424454/14. In respect to this he recorded DD no. 3B which is Ex.PW9/A(OSR). On the same day at about 4.10 AM he received a call from Trauma Center regarding death of deceased, who was admitted in Trauma Center vide MLC no. 424454/14. In respect to this he recorded DD no. 6B which is Ex.PW9/B(OSR) Witness was not cross examined despite opportunity.
14. PW10 T.U. Siddique has deposed that on 04.05.2014 on the request of IO SI Ashok Kumar PS FP Beri he had inspected one Ashoka Leyland Trolla with container bearing no. HR38K0722 and also inspected Red/Black Hero Honda Glamour Motorcycle bearing no. DL5SAD3169. Thereafter he submitted the detailed report of both the vehicles with the fresh damages and same are Ex. PW10/A and Ex. PW10/B. Witness was duly crossexamined.
15. PW11Ct. Rohtash has deposed that on 26.04.2014 he was posted at PS FP Beri as Constable. At around 12:05am one HC Ashok Mehta received DD regarding accident near Ghitorni Red Light MG Road. Thereafter he along with HC Ashok Mehta reached at Ghitorni Red Light MG Road. On reaching there they saw that one dumper bearing no. HR38M0722 and one motorcycle no. DL5SAD3165 make Hero Honda Passion were standing at road side near PWD Toll no. 546. On inquiry at spot they got to know that injured has already been taken to hospital by PCR Van. In the meanwhile, HC Ashok Mehta received DD over phone call regarding MLC from AIIMS Trauma Cenre. On receiving DD regarding MLC, HC Ashok Mehta left him at spot and went to the hospital and after some time he returned at spot with MLC and statements of complainant. Then he handed over him Tehrir for registration of FIR and sent him to the FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 7 /13 police station. After getting registered the FIR, he along with SI Ashok Kumar came to the spot where they met with HC Ashok Mehta and complainant. At spot, SI Ashok Kumar prepared site plan at the instance of the complainant and recorded statement of the complainant. In the meanwhile, on receiving the call from AIIMS Trauma Centre that one injured Anand admitted in AIIMS Trauma Centre had expired. SI Ashok Kumar left him at spot and went to AIIMS Trauma Centre. After some time, SI Ashok Kumar came at the spot and seized both the aforesaid vehicles vide seizure memo Ex. PW 11/A and Ex. PW 11/B and searched for the driver of the offending vehicle and eye witness but none found at the spot and thereafter he went to the police station along with the case property and the case property was deposited in the malkhana. Photographs of the offending vehicle Ex.P11(colly) (5 in number) correctly identified by him.
Witness was duly crossexamined.
16. PW12 SI Parvesh Lamba has deposed that on 12.08.2014 he was posted at PS FP Beri as SI. On that day present case was assigned to him for further investigation. On 22.08.2014 accused Manish Kumar Yadav surrendered in the court. After obtaining the permission from Ld. court, he interrogated accused Manish Kumar Yadav in the court itself and formally arrested him vide arrest memo Ex. PW12/A and moved an application before the court for conducting TIP proceedings of the accused in muffled face but he accused refuse to participate in the TIP proceedings. Accused was released on bail by the court. While coming out from the court, complainant Daya Ram was coming inside the corut room for some work. Accused and he was going out from the court. Then complainant Daya Ram identified the accused and said that he was the person who hit him by offending vehicle. He recorded the statement u/s 161 Cr. PC FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 8 /13 itself. He submitted the file in MACT Cell, South District for further invesitgation. Witness was duly crossexamined.
17. PW13 SI Subhash Chand Yadav has deposed that on 02.09.2014, he was posted at MACT cell, South District as Sub Inspector. On that day, file of the present case was endorsed to him for conducting investigation. During investigation he collected documents pertaining to DAR from the legal heirs of the deceased to submit the same in MACT court. he got verified parcha 12 of the accused and collected FSL report of the deceased and placed the same on the file. As the investigation was completed, so he prepared the charge sheet and submitted the same in the court. Witness was not crossexamined despite opportunity.
18. PW14 SI Ashok Kumar has deposed that on 26.04.2014, he was posted at PS Fatehpur Beri as SI. On that day, present case was endorsed to him for conducting investigation. On that day at around 02.20 am, Ct. Rohtash handed over him original rukka and copy of FIR in the police station itself. Thereafter, he alongwith Ct. Rohtash went to the spot i.e. near Githorni Metro Station at MG Road. At spot, he met with HC Ashok Mehta and complainant Daya Ram, who were already present at the spot. At the spot, he prepared the site plan at the instance of complainant which is Exhibit PW 14/A. In the meantime, an information was received by him over phone vide DD no. 6B that injured namely Anand, who was admitted in the hospital had expired. Whereupon he went to the hospital after leaving Ct. Rohtash at spot. When he reached the hospital, he got to know that the dead body was already preserved in Mortuary. He searched for eye witness and accused in the hospital but none found there, so he returned to the spot. At spot, he seized offending vehicle i.e. container and the motorcycle of the injured vide seizure memo already exhibited as Ex. PW11/A and Ex.
FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 9 /13PW11/B. Thereafter, he sent Ct. Rohtash with the seizure memos and the case property to the police station to deposit the same in MHC(M). Ct. Shyam Bihari was deputed with him to assist him in the investigation and he came to the spot. After reaching of Ct. Shyam Bihari at spot, he along with him went to the Mortuary of AIIMS Trauma Center, where he got done identification of dead body from the relatives of the deceased vide identification memo already Ex. PW1/A and handed over the dead body to its relatives vide handing over memo already Ex. PW1/B. Thereafter, he along with Ct. Shyam Bihari came back to the police station. In police station, he deposited the case property with MHC(M). After examining the witnesses, he recorded their statements u/s 161 Cr.PC. On 27.04.2014, he served notice upon the owner of the offending vehicle u/s 133 of M.V. Act which is Exhibit PW14/B. On 28.04.2014, owner of the offending vehicle joined the investigation and stated that on the date of incident accused/ driver Manish Kumar Yadav was driving the offending vehicle and also informed that the driver had absconded after the incident. On the same date, owner of the offending vehicle produced the RC, insurance policy, permit and fitness certificate of the offending vehicle and photocopy of DL of the accused which he seized vide seizure memo Exhibit PW14/C, Exhibit PW14/D, Exhibit PW14/E, Exhibit PW14/F and Exhibit PW14/G. He recorded statement of Ct. Rohtash as he was along with him during investigation. On 04.05.2014, he got done mechanical inspection of both the vehicles. On 14.05.2014, he collected post mortam report and viscera with sample seal vide seizure memo Exhibit PW14/H of the deceased from AIIMS Trauma Center and deposited the same MHC(M). During investigation, he got verified seized documents of the offending vehicle and same were found to be genuine. On 20.06.2014, he got submitted the viscera and sample seal to FSL, Rohini through Ct. Rajesh. Accused FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 10 /13 was not found during investigation so he got issued NBW against him and due to non execution of the same proceedings u/s 82/ 83 Cr.PC were initiated against the accused. During investigation itself, he was transferred, so he handed over the case file to MHC(R). He identified the photographs of the case property which are already exhibited as P11 (collectively).
The witness was duly crossexamined.
19. PW Kundan Lal Chug was dropped from the list of witnesses on 01.03.2017 as he has expired during trial.
20. Accused admitted report no. 2014/C4670 dated 15.10.2014 prepared by Dr. Subhra Kumar Paul, Senior Scientific Officer (Chemistry), FSL, Rohini, as Ex. AD1, U/s 294 Cr.P.C. r/w 281 Cr.P.C.
21. Thereafter, prosecution evidence was closed on 30.01.2018 and matter was fixed for Statement of Accused.
22. The Statement of Accused u/s 313 Cr.P.C. was recorded on 09.03.2018 and all incriminating evidence were put to him. Accused submitted that he has been falsely implicated and he has not caused any accident and he does not want to lead defence evidence, therefore, DE was closed on the same date.
23. I have heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case.
24. In order to prove the offence u/s 279/304A IPC against the accused person, the prosecution was required to prove beyond reasonable doubt that the accused was driving the vehicle in rash and negligent manner on a public place because of which death of victim Anand has occurred.
Now let us examine the prosecution evidence brought on record against the accused.
FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 11 /1325. As per the prosecution case PW3 Daya Ram is the pillion rider and the sole eyewitness of the accident. The testimony of this witness proved fatal for the prosecution case. The witness deposed that he do not remember the date, month and year and that one container hit their motorcycle from back side and they fell down. He fell down on Kachcha road and his friend fell down on pakka road and the containers front wheel roll down on the right arm of his friend. The witness has further deposed that he had not seen the driver of the container at the time of the accident. The witness also failed to identify the photographs of the offending vehicle. During cross examination the witness deposed that the deceased Anand was drunk at the time of the accident.
26. There are other minor discrepancies in the testimony of other prosecution witnesses such as PW10 Sh. T.U. Siddique and PW11 Ct. Rohtash with regard to the make and number of the vehicles involved in accident.
27. The testimony of the PW12 SI Parvesh Lamba to the effect that the complainant Daya Ram identified the accused while coming inside the court room and accused was going out. The identification, however, is of no consequence being done outside the court room.
28. Furthermore, Ex. AD1 Examination report of the Senior Scientific Officer to the extent that the sample sent for examination was found to contain Ethyl Alcohol 15.2mg/100ml of blood speaks volume about negligent conduct of the victim/deceased Anand.
29. As is apparent that the deceased Anand, at the time of accident, while riding motorcycle bearing no. DL5SAD3169 make Hero Honda Passion was in an inebriated condition resulting into accident. The deceased/victim has thus taken a calculated risk not of his own life but also of the pillion rider.
FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 12 /1330.The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer, Guntur reported as VIII (2007) SLT 454 (SC).
31. In the light of the above said discussion the prosecution has not been able to prove it's case against the accused beyond reasonable doubts, hence, the accused is acquitted from the charges framed against him.
32. The incidents of drunken driving are on rise and in many cases prove fatal as such it is incumbent upon the traffic police to discourage the vice. This court is of the view that awareness about the menace of drunken driving has to be given at a much wider platform. Let copy of this judgment be placed before worthy Special Commissioner, Traffic Police for taking necessary steps for providing information about the vice and the punishment prescribed in every traffic challan issued by the traffic police.
Announced in the court (ANURAG DASS)
on 26.06.2018 MM1/SOUTH/SAKET COURT
NEW DELHI
Digitally
signed by
ANURAG
ANURAG DASS
DASS Date:
2018.06.26
16:47:35
+0530
FIR No. 230/14, PS FP Beri State v. Manish Kumar Yadav Page 13 /13