Delhi District Court
State vs Kishan Kumar on 3 September, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
State Vs. Kishan Kumar
FIR No. 47/2009
U/sec. 279/338 IPC
PS: Seelampur
Date of institution of the case: 19/09/2009
Date for final arguments: 03/09/2025
Date on which judgment is delivered: 03/09/2025
CNR No.DLNE-02-000054-2009
JUDGMENT
a) Sr. No. of the case : 461198/2015
b) Date of commission of the offence : 06.02.2009
c) Name of the complainant : Mohd. Shahbuddin
d) Name of the accused and his parentage : Kishan Kumar
S/o Sh. Raghubir
e) Offence complained of : Section 279/338 IPC
f) Offence charged of : Section 279/338 IPC
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 03/09/2025
Brief facts of the case
1. Succinctly stated the facts discernible from the present complaint are that on 06/02/2009 at about 06:30 pm at DDA Park, Shastri Park, Seelampur, Delhi accused was found driving his vehicle i.e bus bearing no. DL-1PB-6265 in a rash and Digitally signed ISRA by ISRA ZAIDI Date: ZAIDI 2025.09.03 15:03:02 +0800 FIR No47/2009 1/13 State Vs. Kishan Kumar negligent manner and he hit against master Shahrukh and caused grievous injuries to him. Thereafter, an FIR against one Kishan Kumar (hereinafter, referred to as an accused) was registered under sections 279/338 IPC.
Court Proceedings
2. After completion of the investigation, charge-sheet under sections 279/338 IPC was filed before the Court against the accused. The then Learned Magistrate took cognizance on 19.09.2009 and accused was summoned to face the trial. On his appearance in the Court, copies of documents, relied upon by the prosecution were supplied to him as per norms. Thereafter, vide order dated 20.11.2012, Charge under sections 279/338 IPC was framed against the accused Kishan Kumar by the then ld. MM to which he pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses S. No. Witness number Name of the witness
1. PW1 Complainant Shahbuddin
2. PW2 Mufid Ahmad
3. PW3 Sunil Kumar
4. PW4 HC Manish Kumar
5. PW5 SI Shashi Bhushan Digitally signed ISRA by ISRA ZAIDI Date: 2025.09.03 ZAIDI 15:03:13 +0800 FIR No47/2009 2/13 State Vs. Kishan Kumar Documents relied upon by the prosecution S. No. Ex./Mark Nature of documents
1. Ex.P1 DD No.27A dated 7/2/2009 2. Ex.P2 FIR No.47/2009
3. Ex.P3 DD No.20A dated 6/2/2007
4. Ex.P4 Arrest memo
5. Ex.P5 MLC bearing no.14677
6. Ex.P6 Mechanical Inspection Report Statement of the Accused u/s 313 Cr.P.C
4. The accused u/s 313 Cr.P.C examined on 16/07/2025. The accused stated that he has been falsely implicated by the complainant. He further stated that he was the driver of the offending bus and he was called for the purpose of wedding in the family of the complainant. He further stated that they asked him to park the bus. He further stated that the injured was already present on the spot and was crying. He further stated that he went to help him and he was implicated in the present case. He further stated that all the witnesses are interested witnesses.
Evidence of the Defence
5. No defence evidence was led by the accused despite granting him an opportunity.
Final Arguments
6. The Court heard final arguments on behalf of the both the parties on 3/9/2025. Ld. Counsel for the accused submitted that the case against the accused is false and frivolous and has prayed that accused be acquitted of the offences charged. He pointed out various discrepancies in the version of the prosecution witness. Learned APP for the state submitted that accused be convicted of the offences under the above-mentioned sections as there is sufficient evidence on record to convict the Digitally signed ISRA by ISRA ZAIDI Date: ZAIDI 2025.09.03 15:03:24 +0800 FIR No47/2009 3/13 State Vs. Kishan Kumar accused. This Court has heard the submissions of Ld. APP for the State and Ld. Counsel for the accused. The Court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
Points for determination The following points arise for consideration:
(i) Whether the accused was driving the offending bus on the relevant date and time?
(ii) Whether the driving was rash and negligent on a public way?
(iii) Whether the injuries to Shahrukh were caused due to such driving?
(iv) Whether prosecution has proved its case beyond reasonable doubt?
Brief reasons for the just decision of the case:
7. In the instant case, in order to bring home the guilt of the accused, the prosecution had to prove the following ingredients of the offence punishable u/s 279/338 IPC beyond reasonable doubt:
Section 279 IPC:-
"Section 279 IPC provide that "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 bot Section 338 IPC:-
"Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend Digitally signed FIR No47/2009 4/13 ISRA by ISRA ZAIDI Date: State Vs. Kishan Kumar 2025.09.03 ZAIDI 15:03:34 +0800 to two years, or with fine which may extend to one thousand rupees, or with both.".
8. Section 279 IPC makes rash driving or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to any other person an offence. 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. The question whether conduct of the accused 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 may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
9. Relevantly, from a perusal of the aforesaid provisions it is observed that the essential ingredients to constitute an offence punishable under Section 279 IPC inter alia are that there must be,"rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person."
10. Section 279 IPC makes rash driving or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to any other person an offence. 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. The question whether conduct of the accused 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 Digitally signed FIR No47/2009 5/13 ISRA by ISRA ZAIDI Date: State Vs. Kishan Kumar ZAIDI 2025.09.03 15:03:44 +0800 rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. Relevantly, from a perusal of the aforesaid provisions it is observed that the essential ingredients to constitute an offence punishable under Section 279 IPC inter alia are that there must be,"rash and negligent driving or riding on a public way and the act must be so as to endanger human life or be likely to cause hurt or injury to any person."
11. In order to prove the ingredients of section 337 IPC, it is to be proved that accused caused hurt by doing an act in a rash and negligent manner and consequently endangered the safety of the complainant. In order to prove the ingredients of section 338 IPC, it is to be proved that accused caused grievous hurt by doing an act in a rash and negligent manner and consequently endangered the safety of the complainant.
12. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
13. PW1 deposed in his examination in chief that he did not remember the exact date, month and year but in the evening, he along with his brother, namely, Mofees and Shahrukh had gone to attend marriage ceremony of his relative at Shastri Park. He further deposed that in the meantime, he saw that one bus driver was reversing his bus in the park and crushed the leg of his brother, namely, Shahrukh. He further deposed that they had taken him to Irvin hospital. He further deposed that some one made call at 100 number, police officials came at the hospital and recorded his statement. He further deposed that the driver of the bus was taken to the PS by the police officials. As the said witness resiled from his previous statement, therefore, ld.
Digitally signedFIR No47/2009 6/13 ISRA by ISRA ZAIDI
Date:
State Vs. Kishan Kumar
ZAIDI 2025.09.03
15:03:54 +0800
APP for the State put leading questions from him wherein he deposed that the incident took place on 06/02/2009 at about 6.30 PM. He further admitted that the function was organized at DDA park, Shastri Park and bus bearing No. DL-1PB-6265 had also come there. He further admitted that accused/driver, namely, Kishan Kumar was driving his bus in rash and negligent manner due to which he caused accident with his brother Shahrukh.
14. During his cross examination by ld. counsel for the accused, he denied that there were many vehicles standing at the DDA Park. He further testified that he was standing there when accident was being taken place. He further testified that he did not know, who was the owner of the offending vehicle. He further testified that he did not know how many persons were present at the function. He further testified that he did not remember the exact time when police officials arrived at the spot. He further testified that he did not know how many documents were signed by him on that day.
15. PW2 deposed in his examination in chief that he did not remember the exact date, month and year but at about 8:30 pm, he along with his family members including his sister, brothers, namely, Dilshad Ahmed, Shahbuddin and Shahrukh had gone to attend marriage ceremony of his relative at Shastri Park. He further deposed that in the meantime, he saw that one bus driver was reversing his bus in the park and crushed the leg of his brother, namely, Mohd. Shahrukh. He further deposed that they had taken him to hospital. He further deposed that someone made call at 100 number, police officials came at the hospital and recorded his statement. He further deposed that the driver of the bus was taken to the PS by the police officials. As the said witness was resiling from his previous statement, therefore, ld. APP for the State put leading questions from him wherein he deposed that the incident took place on 06/02/2009 at about 6:30 PM. He further admitted that accused/driver was driving the bus in rash and negligent manner due to which he caused accident with his brother - Shahrukh. During his cross-examination, he testified that there were many vehicles Digitally signed FIR No47/2009 7/13 ISRA by ISRA ZAIDI Date: State Vs. Kishan Kumar ZAIDI 2025.09.03 15:04:04 +0800 standing at the DDA Park. He further testified that he did not know, who was the owner of the offending vehicle. He further testified that he did not know how many persons were present at the function. He further testified that he did not remember the exact time when police officials arrived at the spot.
16. PW1 and PW2 have stated a different time of incident. PW1 deposed that it was 6.30 pm. However, PW2 deposed that it was 8.30pm. The testimony of PW1 is silent about the rash and negligent manner in which the vehicle was being driven. It is silent about any sudden increase in speed of bus while reversing. The chances of contributory negligence on part of the victim cannot be ruled out. Even 100 no call was made by some other person even though both the witnesses claimed to have been present on the spot. PW1 and PW2 resiled from their previous statements. Their previous statements could not be corroborated in toto.
17. PW3 deposed in his examination in chief that he was the owner of bus bearing no.DL-1PB-6265 which was the case-property in the present case and he got released the same vehicle on Superdari by the order of the Court. This witness was not cross examined by ld. counsel for the accused despite having been given opportunity to him.
18. PW4 deposed in examination in chief that on 19/10/2024, he was posted at Anti Narcotic Cell (PO Cell). He further deposed that accused Kishan called him and told him that he was standing near the Wazirabad Police Station Bus Parking. He further deposed that he along with SI Iftikar, ASI Sunil Kumar and ASI Satish Kumar reached there and searched him but they did not find him. He further deposed that he called Kishan and accused Kishan told him that at that time he was at Sadar Bazaar. He further deposed that they got the location of the accused and they found that he was present at his residence. He further deposed that they reached at his house and they found him there. He further deposed that he arrested the accused and accused Digitally signed FIR No47/2009 8/13 ISRA by ISRA ZAIDI Date: State Vs. Kishan Kumar ZAIDI 2025.09.03 15:04:15 +0800 was taken to the LNJP Hospital for his medical examination. He further deposed that after the medical examination, one Kalendra was prepared vide DD entry No. 48A. He further deposed that accused was produced before the Court and he was sent to the judicial custody.
19. PW5 deposed in his examination-in-chief that on 06.02.2009, he was posted at PS Seelampur as HC and on that day he was on Emergency Duty from 8:00 AM to 8:00 PM. He further deposed that about 7:40 PM, he received one DD entry no. 20 and thereafter, he along with Ct. Birju reached at LNJP Hospital and received the MLC of injured, namely, Shahrukh. He further deposed that the brother of Shahrukh, namely, Sahabuddin was present there and he recorded his statement. He further deposed that he prepared rukka, handed over the same to Ct. Birju and told him to visit the PS for registration of FIR. He further deposed that after registration of FIR, Ct. Birju returned back and handed over copy of FIR and original rukka to him. He further deposed that the custody of accused Kishan was handed over to him by the brother of injured, namely, Shahrukh. He further deposed that he arrested accused Kishan. He further deposed that he seized the relevant documents of the offending vehicle. He further deposed that he along with Sahabuddin and Birju reached at the spot where he prepared the site plan. He further deposed that he recorded the statement of another brother of Shahrukh, namely, Mufid. He further deposed that the mechanical inspection of offending vehicle was conducted. He further deposed that he returned back to the PS and he also received the result of the MLC accordingly the section was amended. He further deposed that the photograph of the offending vehicle were also taken.
20. During his cross-examination, he testified that he recorded the statement of Sahabuddin at about 8:30 PM and at that point of time, his brother Mufid was also present there. He further testified that injured Shahrukh sustained injuries on his left leg and the statement of Shahrukh was recorded later on. He further testified that he did not remember the exact date when he recorded the statement of Shahrukh. He Digitally signed FIR No47/2009 9/13 ISRA by ISRA ZAIDI Date: State Vs. Kishan Kumar 2025.09.03 ZAIDI 15:04:24 +0800 further testified that at about 11:45 PM, Ct. Birju left the spot on his personal motorcycle and he returned back at about 2:00 AM. He further testified that at about 3:45 AM, he reached at the spot. He further testified that the statement of Mufid was recorded at the spot at about 4:30 AM. He further testified that they finally reached PS at about 5:30 AM and thereafter, he had not visited the spot with regard to the present matter.
21. PW1 deposed that the driver of the bus was taken to the PS by the police officials. PW4 deposed that he called Kishan and accused Kishan told him that at that time he was at Sadar Bazaar. He further deposed that they got the location of the accused and they found that he was present at his residence. When the driver of the bus was present on the spot, this court fails to understand as to why he was not arrested from the spot but instead from his residence as per PW4 but perusal of arrest memo reveals that accused was arrested from the hospital. No eyewitness stated that the accused was caught at the spot. This discrepancy raises doubts regarding the veracity of his involvement. Accused was not even arrested at the spot on the day of incident. No explanation has been putforth by the prosecution regarding his arrest from JPN Hospital on 7-2-2009 when the incident dates back to 6-2-2009.
22. The accused was not subjected to any TIP during the investigation. No Test Identification Parade (TIP) was conducted by the IO in the present matter which could have been relevant under section 9 of the Indian evidence Act, 1872. The accused's alleged presence at the scene is not corroborated by any public witness, nor was any direct identification made at the time.
23. Despite the incident allegedly occurring at a public park during a wedding function, any independent witness has been examined. The prosecution relied only on family members of the victim. No effort appears to have been made by the IO to identify or record statements of neutral bystanders, guests, or persons present at the scene. This omission significantly weakens the case. The lack of any independent Digitally signed FIR No47/2009 10/13 ISRA by ISRA ZAIDI Date: State Vs. Kishan Kumar ZAIDI 2025.09.03 15:04:33 +0800 witness casts serious doubt on the prosecution story, especially regarding identity of the accused. In case of Pradeep Narayan State of Maharashtra AIR 1995 SC 1930 held that failure of police to join witness from locality during search creates doubt about fairness of investigation, benefit of which has to go to the accused.
24. The injured himself was not examined as a witness during the trial. The causal link between injuries and alleged accident remains unsubstantiated. No explanation was provided by the prosecution for this serious lapse. He could have substantiated the exact series of events which took place on the day of incident. Though the injuries suffered by the victim is supported by MLCs and qualify as grievous injuries, the prosecution failed to establish a clear causal connection between those injuries and rash/negligent driving by the accused.
25. The evidentiary value of the spot map/sketch map prepared by the investigating officer is relevant under section 9 of the Indian Evidence Act, 1872 and since it is based on the actual observation of the officer at the crime scene, it is treated as direct evidence and is admissible u/s 60 of Indian Evidence Act, 1872. It is well settled that every defect in the site plan cannot be fatal to the case of the prosecution though non-mentioning of the essential features in the site plan can create a doubt on the story of the prosecution. In the case of Shingara Singh v. State of Haryana (2003)12 SCC 758 it was held that any defect in the site plan creates a doubt regarding the place of occurrence and accused is entitled to get the benefit of doubt. The site plan prepared by the IO was not even signed by the complainant. It is doubtful that the site plan was prepared at the instance of the complainant.
26. Adverting to the testimonies of the Police witnesses they were not an eye witness to the incident. None of the police witnesses witnessed the accident. The investigation has been conducted in a routine and a stereotypical manner. Mere testimonies of the police witnesses are insufficient and cannot be made a sole basis of FIR No47/2009 11/13 ISRA Digitally signed by ISRA ZAIDI Date: 2025.09.03 State Vs. Kishan Kumar ZAIDI 15:04:41 +0800 the conviction of the accused person.
27. In the judgment by Hon'ble High Court of Delhi in case titled as Vinod Kumar vs. State, (2012) 1 RLR (Cr.) 567 it was held that no evidence or any material was placed on record by the prosecution to show the manner in which the said petitioner was driving the vehicle to prove rashness and negligence of the petitioner. There is no evidence to show the speed of vehicle or the manner in which the vehicle was being driven to show his rashness or negligence. The gravamen of the offence consists in conduct of accused being rash and negligent which has not been proved by the prosecution.
28. It is an adage that law works on the wheels of evidence. Every criminal trial is a journey of discovering and unfolding the truth. But in the present case no sufficient evidence is there on record to warrant the conviction of the accused person. In the case of Prem Singh Yadav Vs. CBI 178 (2011) DLT 529 it was held that where it is possible to have both views one in favor of prosecution and one in favor of accused, the later one should prevail. The prosecution could not prove by the prosecution beyond reasonable doubt. In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt.
29. For the reasons outlined above, this Court is of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this Court beyond reasonable doubt of the guilt of the accused.
Digitally
signed by
FIR No47/2009 12/13 ISRA ISRA ZAIDI
Date: State Vs. Kishan Kumar
ZAIDI 2025.09.03
15:04:49
+0800
30. Consequently, accused Kishan Kumar is acquitted for the offences punishable u/s 279/338 IPC.
File be consigned to record room after due compliance.
Announced in the open Court today i.e 3-9-2025.
This judgment contains 13 pages and each page bears my signature.
Digitally signed ISRA by ISRA ZAIDI
Date:
2025.09.03
ZAIDI 15:04:58
+0800
(Isra Zaidi)
JMFC-04/NE/KKD/Delhi/03.09.2025
FIR No47/2009 13/13 State Vs. Kishan Kumar