Delhi District Court
State vs Md. Bin Abdullaher on 8 May, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-03, NORTH-EAST
KARKARDOOMA COURTS, DELHI
Presided by Sukhjeet Singh
State Vs. MOHD. BIN
Abdullaher
F.I.R. No. : 412/2013
Police Station: Khajuri Khas
U/S 279/304A IPC
(a) Case ID number/CR No. : 465322/2015
(b) Date of commission of the offence : 19.08.2013
(c) Challan filed on : 29.03.2014
(d) The name of the complainant : Ms. Neeta Rani W/o Sh.
Krishan Dutt, R/o E-4/5,
Dayalpur, Delhi.
(e) Name of the accused, parentage and : Mohd. Bin Abdullaher S/o
residence Abdullahera, R/o D-82, Gali
No.1, Dayalpur, Karawal
Nagar, Delhi.
(f) Offence complained of : Under Section 279/304A IPC
(g) Charge/Notice framed on : 18.03.2016
(h) The plea of the accused : Pleaded not guilty
(i) Final arguments heard on : 09.04.2024
(j) The final order : Acquitted.
(k) The date of such order : 08.05.2024
(l) State represented by : Sh. Mohit, Ld. APP for State.
(m) Accused represented by : Sh. Avtar Singh, Ld. counsel
for accused.
FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 1 of 12
JUDGMENT
FACTUAL BACKGROUND
1. Briefly put, the case of the prosecution is that on 19.08.2013 at about 1:00 PM in front of Dayalpur School, Delhi within the area of PS Khajuri Khas, Delhi, the accused was driving a vehicle bearing No. DL-13SJ-1340 in a manner so rash and negligent as to endanger human life and liberty and the said vehicle in the rash and negligent manner, hit against one Jagdish Sharma and caused fatal injuries on his person resulting in his death not amounting to culpable homicide and thereby committed offences punishable u/s 279/304A IPC.
2. After completion of investigation, charge sheet was filed against the accused under Section 279/304A IPC on 29.03.2014, cognizance of offence was taken. Accused was summoned and on his appearance, copy of charge sheet was supplied to the accused in compliance of Section 207 Cr.P.C.
PROCEEDINGS BEFORE COURT
3. After completion of scrutiny of documents, vide order dated 18.03.2016, notice u/s 251 Cr.PC for committing offence punishable u/s 279/304A IPC was served upon the accused by Ld. Predecessor to which he pleaded not guilty and claimed trial.
FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 2 of 12 DEPOSITION OF PROSECUTION'S WITNESSES:
4. In order to prove its case, the prosecution has examined 8 witnesses in total.
5. PW-1 Neeta Rani deposed that on 19.08.2013 at about 12:00-12:30 PM, she alongwith her father-in-law were going to market at Dayalpur on foot from house. She was behind her father-in-law when one motorcycle make black colour, coming from the Sherpur side, hit his father-in-law due to which he fell down on the road. Thereafter, she with the help of accused, lifted her father-in-law and took him home. Since, her father-in-law became unconscious, he was taken to St. Stephen Hospital where he was operated by the doctor as he suffered head injuries. After 2-3 days, her father-in-law expired in the hospital. The accused was correctly identified by the witness. She further deposed that on 08.09.2013, she alongwith her husband went to PS where accused was present with his father. Accused was arrested and personally searched in her presence and the offending motorcycle was also seized. Police also prepared site plan at her instance.
6. PW-2 Sh. Krishan Dutt Sharma deposed that on 22.08.2013, he identified the dead body of his father/deceased after postmortem and he received dead body of his father/deceased.
FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 3 of 12
7. PW-3 Ct. Pankaj deposed that on 08.09.2013, he had joined investigation with the IO. IO had called the accused at MACT cell office after giving him notice u/s 133 MV Act. IO took the DL/RC and insurance of the accused and seized them at the instance of complainant.
Complainant identified the accused. He arrested the accused at her instance and personally searched the accused. IO recorded his statement at MACT cell office.
8. PW-4 Ct. Subodh deposed that on 19.08.2013 on receipt of DD No.62B regarding accident, he alongwith ASI Veerpal reached at St. Stephens hospital, Delhi. On reached there after obtaining the MLC, IO prepared rukka and handed over the same to him and got the FIR registered. IO recorded his statement.
9. PW-5 SI/MT Technical Manohar Lal Dhyani deposed that on 02.09.2013, he conducted mechanical inspection of vehicle i.e. motorcycle make Hero Honda Karizma bearing No. DL-13SJ-1340 as per request of IO/ASI Om Prakash, MACT Cell and prepared his report and handed over the same to IO. IO recorded his statement.
10. PW6 Retd. ASI Veer Pal Singh deposed that on 19.08.2013, he received DD No.62B regarding accident and he alongwith Ct. Subodh went to St. Stephens Hospital where they met injured Jagdish Sharma and he received MLC of injured. He deposed that injured was not in a position to give statement. He searched any witness near the hospital but not found. He alognwith Ct. Subodh went to spot and he prepared rukka FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 4 of 12 on the basis of DD No.62B and got the FIR registered. He prepared site plan at the instance of Neeta and also recorded her statement u/s 161 Cr.PC. On 21.08.2013, he received a DD No.67B regarding the death of the injured due to accident. On 22.08.2013, he got conducted postmortem through doctors and got conducted the identification memo of death body through Krishna and Yogender. He handed over the dead body to Krishna and added section 304A IPC.
11. PW7 ASI Om Prakash deposed that on 26.08.2013, he received the present file for further investigation. On 30.08.2013, he gave notice u/s 133 MV Act to the first owner Nafees Ahmed of offending motorcycle bearing No. DL-13SJ-1340. On the same day, Mohd. Nafees came to PS and gave reply of the said notice and he replied that he had already sold the motorcycle to Mohd. Bin Abdullaher. On 08.09.2013, Mohd. Abdullaher alongwith his father came at PS and gave reply that he was driving the motorcycle on the day of incident and hit an old man who was going on foot and he shifted him to hospital. He arrested the accused and personally searched him. Accused also handed over documents of said motorcycle and seized the same. He seized the DL of accused as well as said motorcycle. On 09.09.2019, he made a request for mechanical inspection of said motorcycle and got verified the DL and documents of the motorcycle from the concerned authority and the documents were found genuine. Accused was correctly identified by the witness. He correctly identified the offending motorcycle through the photographs.
12. PW8 HC Dharampal deposed that on 19.07.2013 he received FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 5 of 12 a call from Dr. Amit, St. Stephen Hospital regarding admitting a person namely Jagdish after accident by a lady namely Nita vide MLC No.509/13 dated 19.08.2013. He reduced the information into writing vide DD No.62B. The said DD No. was assigned to IO/ASI Virpal by Duty officer.
13. Upon completion of prosecution evidence, statement of accused under Section 313 Cr.PC read with Section 281 Cr.PC was recorded. The accused denied the allegations and pleaded innocence and opted not to lead defence evidence. The court proceeded to hear the respective arguments of Ld. APP for State and Learned defence counsel for accused.
14. Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidence and documents on record have been perused carefully.
FINDINGS AND REASONS FOR DECISION
15. I have considered the arguments advanced by Ld. APP for State well as Ld. defence counsel and have perused the material available on record carefully.
16. The accused faced trial for offences under section 279/304A of IPC. The common ingredients of the said two offences is "rashness or negligence" of the act. The Hon'ble supreme Court of India in the case FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 6 of 12 'Ravi Kapur Vs. State of Rajashtan, Criminal Appeal No.1838/2009 decided on 16.08.2012' has dealt with the concept of culpable rashness and culpable negligence. Culpable rashness was considered as acting with the consciousness that 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 precaution to prevent their happening while culpable negligence is acting without 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 immutability in the former arises from acting despite consciousness while in the latter it arises from the neglect of civic duty of circumspection.
17. The relevant sections read as under:-
Sec 279 IPC:- 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.
Sec 304 A IPC:- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 7 of 12
18. To bring home the guilt of the accused, following was required to be proved by the prosecution and that too beyond any reasonable doubt:
1. That the accused was the person who was driving the vehicle at the relevant time.
2. That the accident actually took place due to rash and negligent driving.
3. That as a result of the said rash and negligent driving, victim lost his life.
19. In Rabindra Kumar Dey vs State Of Orissa 1977 AIR 170 it was held by Hon'ble Supreme Court that:-
"Three principles of criminal jurisprudence which are well settled are as under:
(i) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial the accused must be presumed to be innocent until he is proved to be guilty; and
(iii) that the onus of the prosecution never shifts."
20. In the present case, the main eye witness was the PW1 Ms. Neeta Rani who was with the deceased at the time of alleged accident.
FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 8 of 12 During her cross-examination by the Ld. Counsel for accused, she admitted that her father-in-law did not sustain any severe injury after the accident and she further admitted that at the time of incident, accused supported her father in law and took him to the nearest dispensary for primary treatment. During her examination in chief, she failed to remember the fact that whether accused was driving the vehicle in a high speed and upon leading questions asked by the Ld. APP for State, she stated that accused was driving his vehicle at a very high speed and in zig zag manner. During her statement u/s 161 Cr.PC, she stated that after the hit, her father in law fell down on the ground and his head struck with footpath but in her examination in chief dated 24.04.2019, she gave a contradictory statement. Further, during her examination in chief, she stated that she and her Nanad took her father in law to St. Stephen Hospital for treatment but the PW6 (IO) stated during his cross- examination that staff of the concerned hospital informed him that some unknown person has brought the injured to the hospital. Both the versions are contradictory to each other. Further, in the present case, the FIR was registered on the initial complaint made by the doctor vide DD No.62B and this also shows that the PW1 Ms. Neeta Rani is not telling the truth and trying to concoct a story. In view of the abovesaid discussion, this court is of the opinion that the testimony of PW1 Ms. Neeta Rani, who is a eye witness to the incident, is not trustworthy and genuine. Further, as per the death summary of deceased Jagdish Sharma given by the St. Stephen hospital deceased Jagdish Sharma had a cardiac arrest on 21.08.2013 at about 5:00 PM and C.P.R was given as per the standard protocol alongwith the Inotropes but could not be revived and declared FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 9 of 12 dead at 5:30 PM. In the present case, the prosecution has clearly failed to prove the fact that whether the accused was driving in rash and negligent manner. There is only one eye witness of the present incident but in view of the abovesaid discussion, this court is of the considered opinion that the testimony of the PW1 Ms. Neeta Rani is not genuine or trustworthy. It is a admitted fact that the accident was happened at a busy place and lot of people were present there but the prosecution has neither cited any independent witness nor they have produced any CCTV footage to prove their case. Further the prosecution has clearly failed to prove the other ingredient of the alleged offences that the death of the victim was happened due to the rashness and negligent act of the accused as it is clearly stated that deceased was aged about 66 years and he had a long medical history. Further, there is no other material produced on record which would prove that the accused was driving in a rash or negligent manner and due to rashness and negligence, the accused had caused the death of victim.
21. In State of Karnataka v. Satish (1998) 8 SCC 493, it has been held by the Hon'ble Supreme Court that ;-
"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 FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 10 of 12 presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur".
Similar was the view of Hon'ble High Court in Abdul Subhan v. State (NCT of Delhi) 133 (2006) DLT 562.
22. It has been held by Hon'ble Supreme court in Bhikari vs State Of Uttar Pradesh1965 SCR (3) 194 that:
"If upon the evidence adduced in the case whether by the prosecution or by the accused a reasonable doubt is created in the mind of the court as regards one or more of the ingredients of the offence including menses of the accused, he would be entitled to be acquitted."
23. It has been observed by the Hon'ble Punjab & Haryana High Court in a case of "Sadhu Singh Vs. State of Punjab 1997(3) Crime 55"
as under:-
"In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubt. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused."
24. A conjoint reading of the aforesaid leads the court to the conclusion that the prosecution has failed to prove beyond reasonable FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 11 of 12 doubt that the accident was caused by the accused while driving the vehicle in a rash or negligent manner.
25. Thus considering the above mentioned reasons, the court has come to the conclusion that prosecution has failed to prove its case beyond reasonable doubt. Thus, as prosecution failed to prove that the accident was caused due to rash and negligent act of accused Mohd. Bin Abdullaher, he deserves to be acquitted. Hence, accused Mohd. Bin Abdullaher is acquitted for the offences punishable u/s 279/304A IPC.
26. Ordered accordingly.
Announced in the open court on 08.05.2024 (Sukhjeet Singh) Metropolitan Magistrate-03, North-East, Karkardooma Courts, Delhi FIR No. 412/2013 State Vs. Mohd. Bin Abdullaher Page no. 12 of 12