Delhi District Court
State vs Rishi Kumar on 18 January, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28345/2016)
FIR No. 310/2014
Police Station Kashmere Gate
Charge-sheet filed under Sections 304/308 IPC & 185 M.V.
Act.
Charges framed against accused. 304/308 IPC & 185 M.V.
Act.
State Versus Rishi Kumar,
S/o Sh. Harish Chander,
R/o H. No. BB-8,
West Vinod Nagar, Delhi.
...Accused.
Date of Institution of case 30.05.2015
Date of Arguments 14.01.2025 & previous dates.
Judgment reserved on 14.01.2025
Judgment pronounced on 18.01.2025
Decision Convicted
JUDGMENT
1. Accused Rishi Kumar is facing trial for the offences punishable under Sec. 304/308 IPC & 185 Motor Vehicle Act, 1988. The story of the prosecution is that on 17.08.2014 at about 10:00 pm at Ring Road, near Nigam Bodh Ghat, Kashmere Gate, FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 1 of 46 Delhi, accused Rishi Kumar while driving car make 'Mahindra Quanto' bearing registration no. DL-7CM-1368 rammed the same on the footpath/pavement on which the homeless people were sleeping at that time and by hitting/crushing the said persons he caused death of one Sh. Ekraz and another unknown person with the knowledge that by such act he was likely to cause death of the said persons. Further on the aforesaid date, time and place while driving the aforesaid vehicle in aforesaid manner with the knowledge that by such act he was likely to cause death of the persons sleeping on the pavement/footpath, he caused simple/grievous injuries on the persons of Bansi, S/o Sh. Bandan, Anil, S/o Sh. Suren, Prithvi Raj, S/o Sh. Ujagar, Gautam S/o Sh. Daulat, Vipul, S/o Sh. Vidya Rana, Vishnu S/o Sh. Durga and Vinod S/o Sh. Shyama Ram and simple injuries to Naresh, S/o Sh. Laxman, Ranjit S/o Sh. Manoj and Santosh S/o Sh. Ram Prakash by hitting/crushing them with the aforesaid vehicle. Further on the aforesaid date, time and place while driving the aforesaid vehicle in the aforesaid manner, accused was found under the influence of liquor to the extent of 116.0 mg per100 ml in his blood.
2. The brief facts which are borne out from the record of the case are that on 17.08.2014 on receiving DD No. 42A, Ex. PW-17/A, regarding accident near Nigam Bodh Ghat, Ring Road, Delhi, PW-17 Retd. SI Shakti Raj alongwith PW-15 Ct. Praveen Kumar went to the spot of incident where one vehicle bearing registration no. DL-7CM-1368 make Mahindra Quanto was FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 2 of 46 found turned turtle. They also found that blood and footwears were scattered at the spot and many persons had gathered there. During inquiry, it was revealed that injured persons had been taken to different hospitals by PCR and Ambulances. In the meantime, PW-6 HC Jitender produced accused Rishi Kumar as driver of the Mahindra Quanto. Thereafter, PW-17 SI Shakti Singh left accused Rishi Kumar in custody of Ct. Jitender (now HC) and he along with Ct. Praveen went to the hospital as injured persons were admitted at Trauma Centre, Civil Lines, Hindu Rao Hospital, Aruna Asaf Ali Hospital and LNJP hospital. Thereafter PW-17 SI Shakti Singh met with one injured namely Santosh Kumar who was under treatment at Aruna Asaf Ali Hospital and was found fit for statement. Thereafter IO/SI PW-17 Shakti Singh recorded statement of injured Sh. Santosh Kumar, Ex. PW-17/B. During investigation, accused was got medically examined vide MLC, Ex. PW-17/C at Aruna Asaf Ali Hospital and he was found under influence of liquor. Thereafter, PW-17 SI Shakti Singh returned to the spot of incident and on the basis of complaint, Ex. PW-17/B, he prepared rukka, Ex. PW-17/E and got the present FIR registered under Sec. 279/337/338 IPC & 185 M. V. Act at PS Kashmere Gate.
3. During investigation, IO/PW-17 SI Shakti Singh got inspected the spot of incident through Mobile Crime Team, prepared site plan, seized the offending vehicle and also seized the belongings of injured persons from the spot. Thereafter IO arrested accused Rishi Kumar in the present case, conducted his FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 3 of 46 personal search and thereafter accused was released on bail as he was arrested under bailable sections of law. During investigation, IO received information regarding death of one of the injured namely Ekraj at Trauma Centre by Duty Officer and thereafter IO went to the hospital, collected dead body, got preserved the same in Motruary, Subzi Mandi and added Sec. 304A IPC in the charge-sheet. During investigation and from medical examination of accused, it was revealed that accused was drunk at the time of incident and hence Sec. 308/304 IPC were added in the case diary by IO. Thereafter, IO again arrested accused in the present case and conducted his personal search. During investigation, IO got mechanical inspection of offending vehicle bearing registration no. DL-7CM-1368, seized the RC, insurance documents and driving license of accused. During investigation, one more injured whose name and particulars could not be known, also expired in the hospital. Thereafter IO preserved both the dead bodies and efforts were made to trace the relatives of both the deceased but they could not be found hence after postmortem of both the dead bodies, these were cremated. During investigation, IO sent the blood sample of accused to FSL, recorded supplementary statement of complainant Sh. Santosh Kumar and statements of injured persons namely Gautam, Vipul, Bansi and Naresh Kumar. IO also made efforts to trace other injured persons but they could not be contacted after their discharge from hospital since they were vagabonds and their whereabouts could not be known and during their admission in the hospital, their statements could not recorded as they were not FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 4 of 46 fit for statement. IO also collected opinions regarding nature of injuries on the MLCs of injured persons, sent the exhibits to FSL. On completion of investigation, charge-sheet was filed by the IO before the Court through the SHO.
4. Vide order dated 2 0 . 0 5 . 2 0 1 5 copy of the charge-sheet under Section 207 Cr.P.C was supplied to the accused and v i d e o r d e r d a t e d 2 8 . 0 5 . 2 0 1 5 , the case was committed to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 08.07.2015 the Ld. Predecessor Court was pleased to frame charges under Sec. 304/308 IPC & 185 M. V. Act against accused, to which he pleaded not guilty and claimed trial.
6. To prove its case, prosecution has examined total 20 witnesses. The testimonies of presecution witnesses along with its nature has been discussed briefly in the following paragraphs:-
7. PW-1 Dr. V. Jagadeesh, Sr. Resident (Orthopedic), Hindu Rao Hospital deposed about his opinion regarding nature of injuries on the MLCs of injured Anil, S/o Sh. Suresh and injured Prathavi Raj S/o Sh. Ujjagar, as 'greivous' on the basis of examination of x-ray plates, vide his opinion Ex. PW-1/A & Ex. PW-1/B. In his cross-examination, he deposed that he did not personally examine the injured persons. He denied the suggestion that his view was hypothetical and was not based on personal examination of injured persons.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 5 of 46
8. PW-2 Sh. K. V. Singh, Medical Record Clerk, Hindu Rao Hospital has proved MLC No. 5713/14 of injured Naresh, prepared by Dr. Sayed as Ex. PW-2/A. He also deposed that as per record, the patient was referred to EMO (Ortho) and EMO (Surgery) for further management. In his cross-examination, he deposed that he had no personal knowledge of the case.
9. PW-3 Sh. Gautam, is one of the injured in the present case. He deposed that on 17.08.2014 at about 09:00-09:30 pm, he along with many other labourers was sitting on the footpath situated in front of Rain Basera situated near Nigam Bodh Ghat. He further deposed that one car came at a very fast speed from the side of ISBT and climbed on the footpath where he was present. He further deposed that the tyre of the car had passed over his body and injured the other persons sitting with him. He further deposed that when the persons present at the footpath raised alarm and asked the driver to stop the car, he did not spot it. He further deposed that the tyre of the car got burst and the crowd gathered at the spot overtuned the said car to take out the injured persons who were crushed by the said car. He further deposed that he had seen the person driving the said car. He further deposed that accused was driving the car at very fast speed and he did not stop the car even after causing the accident of number of persons and continued to drive till the tyre burst. This witness correctly identified the accused in the court. In his cross-examination, he deposed that the height of footpath was about 2 foot from the road. He also deposed that he had seen the FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 6 of 46 accused driving the car and he could not say if any other person was sitting in the said car beside the accused. He also deposed that there were around 60 persons sitting on the footpath. He denied the suggestion that it was not possible for the vehicle to climb the footpath since it was 2 feet in height. He also denied the suggestion that vehicle in question could not have moved further if some persons were underneath the same. He also denied the suggestion that the vehicle in question had lost its control due to mechanical fault and that is how it caused the accident.
10. PW-4 Dr. Priya Ranjan, Medical Officer, Aruna Asaf Ali Hospital has proved the MLCs of four injured persons namely Ranjeet S/o Sh. Manoj, Santosh S/o Sh. Ram Prasad, Gautam S/o Sh. Daulat and Vipul S/o Sh. Vidya Rana as Ex. PW-4/A to Ex. PW-4/D. This witness was not cross-examined on behalf of accused despite opportunity given to him.
11. PW-5 Sh. Prithvi Raj, is one of injured in the present case. He deposed that on 17.08.2014 at around 09:30/10:00 pm he was lying on the pavement on the road of U-turn from Hanuman Mandir to Nigam Bodh Ghat. He further deposed that he was on the middle of pavement on the road and he was lying on the pavement for sleeping and other persons namely Gautam, Vishnu, Santosh and Vipul were also on the same pavement and they were either sleeping or lying. He further deposed that suddenly one vehicle came and climbed up on the pavement where they were sleeping. He also deposed that he came under FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 7 of 46 the vehilce and received injury on several parts of his body and he became unconscious. He also deposed that he regained consciousness and found himself in one Hospital at Farukhabad, UP where he came to know that he was admitted in Hindu Rao Hospital and LNJPN Hospital in Delhi from where he was shifted to Farukhabad, UP by his family members. He further deposed that he could not see the face of the driver of the said vehicle. In his cross-examination, he denied the suggestion that it was not possible for the vehicle to climb the footpath since it was two feet height. He also denied the suggestion that the vehicle in question had lost its control due to mechanical fault and this is how it caused the incident. He admitted that he knew that he was sleeping on the pavement and that was dangerous due to the movement of heavy vehicles in the area besides footpath/pavement.
12. PW-6 HC Jitender Kumar, deposed that on 17.08.2014 at about 10:00 pm, he was present at Police Booth, Ring Road, near Nigam Bodh Ghat. He further deposed that he heard the hue and cry that 'gadi chadha di' and thereafter he went to the spot i.e. near U-turn from ISBT side to Nigam Bodh Ghat where he saw that some public persons were present there. He further deposed that he also noticed that one car make Mahindra Quanto bearing registration no. DL-7CA-1368 was on the pavement of the right side and some persons were under the said car. He further deposed that accused had been caught by the public persons present there and he along with the help of public persons FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 8 of 46 upturned the vehicle and took out the injured persons who were lying under vehicle before upturning it. He further deposed that he took the accused in his custody. He further deposed that after sometime, PCR Vans and CAT ambulances arrived at the spot and injured persons were shifted to hospital. He narrated about proceedings conducted by IO/ASI Shakti Singh at the spot i.e. inspection of spot of incident by Mobile Crime Team, seizure of exhibits by the IO from the spot, preparation of rukka and registration of FIR through Ct. Praveen by the IO. He also narrated about medical examination of accused, seizure of blood sample and MLC of accused by IO. In his cross-examination he deposed that when he reached at the spot, 10-12 injured persons were there and some others had collected in order to help the injured persons. He also deposed that on that day, he was on picket duty from 06:00 pm to 05:00 am and the distance between the spot in question and his duty place was around 100 meters. He denied the suggestion that he did not participate in the initial investigation carried out by the IO or he had deposed falsely under the instruction of main IO.
13. PW-7 Sh. Vishnu, is also one of the injured in the present case. He deposed that on 17.08.2014 at around 10:00 pm, he came to the middle footpath in front of Nigam Bodh Ghat after taking dinner for rest. He further deposed that at around 10:30 pm, one vehicle make Mahindra big car came at a very fast speed from the side of ISBT and going towards Hanuman Mandir side and driver of the said vehicle climbed the said car upon the FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 9 of 46 middle foothpath where he was taking rest along with other persons. He further deposed that due to that he came under the said vehicle and 10-12 other persons also came under this vehicle and out of them two persons died and other ten persons including himself received several injuries. He further deposed that first of all, the driver of the said car crushed his hip and thigh and thereafter he reversed the said Mahindra car then he received injury on his chest as well as his shoulder. He correctly identified accused in the court who was driving the said car. He further deposed that after the said incident, accused tried to flee away but their screaming, other public persons present near the spot apprehended the accused. He also deposed that accused was under the influence of alcohol at that time and one lady was also with him and she was also under the influence of alcohol. In his cross-examination, he deposed that the pavement on which he was sitting along with his fellow brothers was situated at height of around 3 feet from the surface/road. He also deposed that the said pavement was in triangular shape. He also deposed that some of the other fellows were either sleeping or gossiping or eating. He also deposed that the heavy traffic plies on the road besides the pavement. He denied the suggestion that due to the height of pavement, it was quite impossible for the vehicle to climb the pavement. He deposed that he did not know if the local law prohibited the sitting or sleeping over the said pavement. He denied the suggestion that the vehicle could not have moved further had there been ten persons beneath it. He also denied the suggestion that due to height of 3 feet, the vehicle could not have FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 10 of 46 moved over it at a high speed. He also denied the suggestion that vehicle had developed some mechanical defect and due to the same only the said accident occurred. He also denied the suggestion that the accused had no intention to move the vehicle further after noticing the accident which had occurred due to mechanical fault alone.
14. PW-8 Dr. Rakesh Solanki, CMO, Hindu Rao Hospital has proved MLC No. 5694 of injured Anil, Ex. PW-1/A on behalf of Dr. Simple. He deposed that as per record, the injured was brought in the hospital with the alleged history by the Incharge CATS N-15 and there was abrassion and swelling on right side leg. He further deposed that there was also abrasion on both the knees. He also proved MLC No. 5713 of injured Naresh, Ex. PW-2/A on behalf of Dr. Sayeed Abid. He deposed that as per record, the injured was brought in the hospital with the alleged history by the Incharge CATS N-15 and there was abrasion over lower abdomen near umblicus. In his cross-examination, he deposed that the nature of injury as written in the MLC was not opined by the writer of MLC, however, it was sent to the concerned department for further treatment and opinion. He denied the suggestion that the signature of Dr. Simple as appearing on the MLC was not suggestive or her initials. He denied the suggestion that he had recognized the scribe of Dr. Simple and Dr. Sayeed Abid as he had been directed by his superior to do so.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 11 of 46
15. PW-9 Dr. Girish Chandra Prabhat, Sr. Medical Officer, Directorate of Health Services, Karkardooma, Delhi deposed that on 17.08.2014 he was working as Casulty Medical Officer in Sushruta Trauma Centre, Civil Lines. He proved MLCs of injured persons namely Vishnu, Vinod and one unknown person as Ex. PW-9/A to Ex. PW-9/C. This witness was not cross- examined on behalf of accused despite opportunity given to him.
16. PW-10 Dr. Adesh Kumar, Sr. Scientific Officer (Chemistry), FSL, Rohini has proved his detailed report regarding examination of blood sample of accused as Ex. PW-10/A. He also deposed that on chemical examination and GC-HS examination, Ex. 1 was found contain Ethyl Alcohol 116.0 mg per 100 ml of blood. This witness was not cross- examined on behalf of accused despite opportunity given to him.
17. PW-11 Dr. Rahul Kumar Meena has proved his detailed postmortem report of unknown deceased as Ex. PW-11/A. He also deposed that cause of death was 'due to cerebral damage consequent upon blunt force trauma to the head'. This witness was not cross-examined on behalf of accused despite opportunity given to him.
18. PW-12 Dr. Akash Jhanjee, has proved detailed postmortem report of deceased Ikraj S/o Sh. Basant Raj as Ex. PW-12/A. He deposed that cause of death was 'carnocerebral damage as a result of blunt force/surface impact on head'. This witness was also not cross-examined on behalf of accused despite opportunity given to him.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 12 of 46
19. PW-13 Dr. Ankit Kataria, Sr. Resident (Orthopedics), Lok Nayak Hospital has proved the opinion regarding nature of injuries on MLC No. EBH015691, Ex. PW-13/A as 'grievous' in nature on behalf of Dr. Yugal. This witness was also not cross- examined on behalf of accused despite opportunity given to him.
20. PW-14 SI Devender Kumar, was the Duty Officer who proved copy present FIR, Ex. PW-14/A, his endorsement on rukka, Ex. PW-14/B and certificate under Sec. 65B of The Evidence Act, Ex. PW-14/C. In his cross-examination, he denied the suggestion that the aforesaid FIR was false and fabricated document.
21. PW-15 Ct. Praveen, deposed that on 17.08.2014 at about 10:15 pm, on receiving call regarding accident near Nigam Bodh Ghat, Ring Road, he along with ASI Shakti Singh reached at the spot of incident, where so many public persons and ambulances of CATS and PCR Vans were already present. He further deposed that one Mahindra vehicle, which registration number he did not remember, was also lying upside down. He further deposed that blood was scattered near the spot and there were sleepers/shoes and clothes were also scattered there. He also deposed that one Ct. Jitender was also present there who produced accused Rishi Kumar as the driver of the Mahindra vehicle. He further deposed that IO recorded statement of one injured namely Santosh Kumar at Aruna Asaf Ali Hospital, prepared tehrir and handed over the same to him for registration of FIR. He further deposed that after registration of FIR, he came to the spot and handed over the copy FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 13 of 46 of FIR and original tehrir to IO/ASI Shakti Singh. He narrated about proceedings conducted by the IO at the spot of incident and proved seizure memo of slippers, clothes and shoes as Ex. PW-15/A, seizure memo of offending vehicle bearing registration no. DL-7CM-1368 as Ex. PW-15/B, arrest memo of accused Rishi Kumar as Ex. PW-15/C, seizure memo of RC of aforesaid vehicle as Ex. PW-15/D and seizure memo of photocopy of insurance paper of said vehicle as Ex. PW-15/E. In his cross- examination, he deposed that when they reached at the spot firstly, there were no injured persons and eyewitness at the spot. He also deposed that he did not verify as to how the vehicle in question was turned turtle. He denied the suggestion that no proceedings were done at the spot.
22. PW-16 Sh. Sanjay Kumar, was the registered owner of offending vehicle bearing registration no. DL-7CM-1368. He deposed that he was the registered owner of the aforesaid vehicle and he had not brought the said vehicle in the court. During his examination-in-chief, Ld. Defence counsel had deposed that the identity of the vehicle was not in dispute and he had no objection about the identity and production of said vehicle in the court. This witness was not cross-examined on behalf of the accused despite opportunity given to him.
23. PW-17 Retd. SI Shakti Raj is the Investigating Officer of the present case. He deposed that in the year 2014, on receipt of DD No. 42A, Ex. PW-17/A regarding accident near Nigam Bodh Ghat, he along with Ct. Praveen Kumar went to the spot of FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 14 of 46 incident where one vehicle make Mahindra Quanto bearing registration no. DL-7CM-1368, was found turned turtle. He further deposed that many public person had gathered there and blood was also scattered on the spot. He further deposed that it was revealed that injured persons had been removed to different hospitals by PCR and Ambulance. He also deposed that Ct. Jitender Kumar also met him at the spot who produced accused Rishi Kumar before him, who had rescued accused from the public as public had manhandled him. He further deposed that accused was left in the custody of Ct. Jitender and he along with Ct. Praveen proceeded to the hospital and went to Trauma Centre, Civil Lines, Hindu Rao Hospital, Aruna Asaf Ali Hospital and LNJP hospital since many persons got injured in the incident. He further deposed that one injured namely Santosh Kumar was found under treatment in Aruna Asaf Ali Hospital and he was fit for statement and hence he recorded his statement, Ex. PW-17/B. He further deposed that he also got conducted medical examination of accused vide MLC Ex. PW-17/C and seized blood sample of accused vide seizure memo Ex. PW-17/D. He further deposed that he returned to the spot, prepared rukka, Ex. PW-17/E and got the case registered under Sec. 279/337/338 IPC & 185 M. V. Act at PS Kashmere Gate through Ct. Praveen. He narrated about the proceedings conducted by him at the spot of incident and proved photographs of the spot taken by Mobile Crime Team as Ex. PW-17/F-1, Report of Mobile Crime Team as Ex. PW-17/F and site plan at instance of complainant Santosh as Ex. PW-17/G. He also proved the seizure memo of belongings of FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 15 of 46 injured persons as Ex. PW-15/A, seizure memo of offending vehicle as Ex. PW-15/B, arrest memo of accused Rishi Kumar as Ex. PW-15/C and personal search of accused as Ex. PW-17/H. He further deposed that in wee hours of 18.08.2014, he received information from Duty Officer regarding death of one injured namely Ikraj in Trauma Centre, Civil Lines and accordingly he went to the hospital, collected the dead body of deceased Ikraj and got it preserved at Mortuary, Subzi Mandi vide application, Ex. PW-17/I. He also deposed that he added Sec. 304A IPC in the case diary. He further deposed that from the medical examination of accused, it was revealed that he was drunk at the time of incident hence Sections 308/304 IPC were also added and accused was again arrested vide arrest memo Ex. PW-17/J and conducted his personal search vide memo Ex. PW-17/J-1. He also deposed that offending vehicle was got examined through FSL expert and he collected report Ex. PX-1 in this regard. He also deposed that during investigation, one more injured got expired and he got preserved the dead body vide application Ex. PW-17/K. He also proved seizure memo of driving license of accused Ex. PW-17/L, copy of insurance paper of vehicle, PW-15/D, copy of RC, Ex. PW-15/E, supplementary statement of complainant Santosh Kumar, Ex. PW-17/M, statement of injured Gautam, Ex. PW-17/M-1, statement of injured Vipul, Ex. PW-17/M-2, statement of injured Bansi, Ex. PW-17/M-3, statement of injured Naresh, Ex. PW-17/M-4 and statement of injured Vishnu as Ex. PW-17/M-5. He also obtained the opinion about nature of injuries on the MLCs of injured persons. In his FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 16 of 46 cross-examination, he deposed that he had not taken CCTV footage of spot as there was no camera covering the spot of incident. He admitted that lot of vagabonds used to stay there by laying. He also deposed that he did not know whether they were drug addicts or not.
24. PW-18 Ex-SI Mohit Kumar, has proved the detailed Mobile Crime Team Report, Ex. PW-17/F. This witness was not cross-examined on behalf of accused despite opportunity given to him.
25. PW-19 Sh. Arvinder Singh, had conducted the mechanical inspection of the offending vehicle bearing registration no. DL-7CM-1368. He proved his detailed report in this regard as Ex. PW-19/A. He also deposed that mechanical systems i.e. break system, headlight, horn were found ok and vehicle was not fit for road test due to front left tyre damage. This witness was not cross-examined on behalf of accused despite opportunity given to him.
26. PW-20 HC Devender Kumar, was the MHC(M) in the PS Kashmere Gate. He proved entries in register no. 19 regarding deposit of case properties as Ex. PW-20/A to Ex. PW-20/C. This witness was not cross-examined on behalf of accused despite opportunity given to him.
27. During proceedings, accused admitted the genuineness of FSL report no. FSL-2014/SOC-153/PHY-71/2014 dated 30.09.2014, under Sec. 294 Cr.PC prepared by Dr. S. S. Badwal as Ex. PX-1.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 17 of 46
28. After closing of Prosecution Evidence, statement of accused was recorded under Sec. 313 Cr.PC, wherein he denied all the charges against him. He stated that the present case is false one. He stated that he was not driving the vehicle in a rash or negligent or at a high speed. He further claimed that injured and victims were sitting and sleeping on the road under the influence of psychotropics substance, thus, rendering their own life in danger. He further claimed that place was not meant for sleeping or sitting by the public but even as of now, the vagabonds do sleep and sit there under the influence of psychotropics substance.
29. After recording of statement of accused under Sec. 313 Cr.P.C, accused has examined himself on oath as defence witness under Sec. 315 Cr.PC. The testimony of accused in his defence has been discussed in brief as under:-
30. DW-1 Accused Rishi Kumar deposed that on 17.08.2014 he was returning from a family gathering and at that time he was driving his vehicle i.e. Mahindra Quanto. He further deposed that he was coming from the side of ISBT Kashmere Gate and there was a U-turn where he was supposed to take right turn. He further deposed that at around 10:00 pm, near U-turn when he saw some of the people sitting and lying on the road, he blew horn and slowed down his vehicle. He further deposed that the U-turn (blind turn), some of the people/vagabonds were present there and he could not notice and by the time his vehicle could come to a complete halt, 2-3 persons came under his vehicle. He FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 18 of 46 further deposed that he got scared and in order to save them, he got off from his vehicle and with the help of other persons gathered there got the entangled persons from under the vehicle. He further deposed that he saw the persons sitting and lying on the road/turn so he tried his level best to apply break so as to avoid any untoward accident and before applying break he also blew horn but that horn went unnoticed. He further deposed that he applied conscious break but being a steep turn he could not avoid the accident. He further deposed that he was innocent and the place where the accident occurred is not meant for sitting or lying. In his cross-examination by Ld. Addl. PP for the State he admitted that he was drunk. He denied the suggestion that he blew horn or it was a steep turn at the spot. He also denied the suggestion that he was driving the vehicle in swerved manner or he did not try to apply break.
31. Final arguments were advanced by Sh. Pankaj Kumar Ranga, Ld. Addl. PP for the State and Sh. M. Shankar & Sh. Abhishek Sharma, Ld. Counsels for accused. Written arguments were also filed on behalf of accused.
32. Ld. Addl. PP for the State argued that the prosecution has proved its case beyond reasonable doubt and all the prosecution witnesses have supported the prosecution story and have corroborated each other's version. To substantiate his submissions, he argued that injured eyewitnesses namely PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu have completely supported the prosecution story. He also argued that FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 19 of 46 PW-3 Sh. Gautam and PW-7 Sh. Vishnu have correctly identified the accused. He also argued that accused was intoxicated at the time to incident and he has admitted this fact on oath during his examination as defence witness no. 1. He further argued that voluntary intoxication is not a defence under IPC or any other law. He also argued that PW-10 Dr. Adesh Kumar has proved his FSL report in which he has given the finding that ethyl alcohol 116.0 mg per 100 ml blood was found from the blood sample of accused. He also argued that the deceased persons as well as the injured persons were lying/sitting on the pavement and the accused drove his vehicle with the knowledge of their presence at the pavement and hit/crushed them. He also argued that PW-19 Sh. Arvinder Singh has proved mechanical inspection report of offending vehicle bearing registration no. DL-7CM-1368 and as per the mechanical inspection report, the mechanical systems i.e. break system, head light and horn were found to be ok. He also argued that the accused was apprehended from the spot of incident itself. He also argued that the all the proceedings have been duly proved by the police witnesses and all the prosecution witnesses are of the sterling quality and hence accused should be convicted under all the Sections of law under which charges have been framed against him.
33. Per Contra Ld. Defence Counsels for accused argued that the prosecution has miserably failed to prove its case beyond reasonable doubt. To substantiate their point, they argued that they are not disputing the alleged incident and driving of FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 20 of 46 offending vehicle by the accused but at most the accused has committed the offence punishable under Sec. 304A IPC by driving the vehicle in a rash and negligent manner. They further argued that the deceased and injured persons were present on the road and not on the footpath/pavement and the alleged incident had taken place only on the road. They also argued that victims were drug addicts and they were intoxicated at the time of incident. They further argued that knowledge of presence of victims at the spot and the anticipation that the act of accused may cause injury/death of persons cannot be attributed to the accused. They also argued that there was mechanical fault in the offending vehicle. They also argued that PW-5 Sh. Prithvi Raj had not seen the face of accused. They also argued that PW-5 Sh. Prithvi Raj himself admitted that sleeping on footpath was dangerous and hence the injured/deceased persons were not supposed to sleep on the pavement/footpath. They further argued that accused has not committed the offence intentionally as he had no personal enmity with any of the victims or the persons sitting or lying at the spot of incident. They further argued that since the prosecution has failed to prove its case against accused beyond reasonable doubts, accused should be acquitted under all sections of law under which charges has been framed against him.
34. In the present case, charges under Sec. 304/308 IPC & 185 M. V. Act have been framed against the accused. These Sections have been elaborated as under:-
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 21 of 46
304. Punishment for culpable homicide not amounting to murder:-
Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death,or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.
308. Attempt to commit culpable homicide:-
Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 22 of 46 185 M. V. Act:- Driving by a drunken person or by a person under the influence of drugs. - Whoever, while driving, or attempting to drive, a motor vehicle:-
[(a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, [or in any other test including a laboratory test,] or ](b)is under the influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine [of ten thousand rupees], or with both; and for a second or subsequent offence, [***], with imprisonment for a term which may extend to two years, or with fine [of fifteen thousand rupees], or with both.
35. I have thoughtfully considered the arguments advanced, perused the material available on record, scrutinized the evidence led by the prosecution and gone through the relevant provisions of law. I have also considered the written arguments as well as judgments relied upon by the Ld. Addl. PP for the State as well as Ld. Counsel for accused.
36. As per ther record, total 12 homeless people who were present at the footpath/pavement were hit/crushed by the offending vehicle i.e. Mahindra Quanto Car bearing registration no. DL-7CM-1368. Two persons i.e. Ekraj and one unknown person whose particulars could not be known, expired in the hospital during treatment while other sustained simple/grievous FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 23 of 46 injuries on their persons. Since all the victims were homeless people and were vagabonds, most of them including complainant Sh. Santosh Kumar could not be traced for their examination as PWs during the trial and only three injured eyewitnesses i.e. PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu could be examined as PWs by the prosecution.
37. PW-3 injured/Sh. Gautam deposed that on 17.08.2014 at about 09:00-09:30 pm, he was sitting on the footpath situated in front of Rain Basera and at that time one car came at very fast speed from side of ISBT and climed on the footpath where he was present. Similarly, injured/PW-5 Sh. Prithvi Raj deposed that on 17.08.2014 at about 09:30-10:00 pm, he was lying on the pavement for sleeping along with other persons namely Gautam, Vishnu, Santosh and Vipul on the road of U-trun from Hanuman Mandir to Nigam Bodh Ghat and suddenly, one vehicle came and climbed up on the pavement where they were sleeping. PW-7/ injured Sh. Vishnu has also deposed on the lines of PW-3 Sh. Gautam and PW-5 Sh. Prithvi Raj. He deposed that on 17.08.2014 at about 10:00 pm, he came on the middle footpath in front to Nigam Bodh Ghat for rest after taking dinner and at about 10:30 pm, one vehicle make Mahindra big car came at a very fast speed from the side of ISBT and the driver of the said vehicle rammed the said vehicle upon the middle footpath where he was taking rest along with other persons. Thus, there is complete consistency in the testimonies of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu with respect to the FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 24 of 46 fact that the offending vehicle i.e. Mahindra Quanto car came from side of ISBT and same climed upon the footpath where several persons were present. Accused in his statement recorded on oath under Sec. 315 Cr.PC has taken the defence that the persons were sitting and lying on the road. However contrary to his statement under Sec. 315 Cr.PC, accused in answer to question no. 33 put to him under Sec. 313 Cr.PC has specifically stated that injured were sleeping on the road and pavement. Thus, the accused in answer to question no. 33 put to him under Sec. 313 Cr.PC has admitted that the victims were lying on the pavement. Moreover, the accused has not brought anything on record either in the cross-examinations of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu or through any independent evidence that the said persons were lying on the road and not on the footpath. PW-18 SI Mohit, Crime Team proved his spot inspection report, Ex. PW-17/F and deposed that car bearing registration no. DL-7CM-1368, Mahindra Quanto was found in accidental condition. He also deposed that blood and blood stained clothes were also found scattered on the footpath and the spot of incident was photographed. In the photographs collectively exhibited as Ex. PW-17/F-1, it can be seen clearly that the corner of the footpath has been damaged and the blood, clothes, slippers, carry bags and blankets of the victims are lying scattered at the footpath. Thus, the prosecution has successfully proved that the victims were persent on the pavement/footpath and the vehicle had hit them on the pavement/footpath and not on the road and the defence taken by FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 25 of 46 accused in this regard is without any substance. There is some inconsistency in testimonies of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu with respect to the timing of incident but same is not material as accused himself in his examination under Sec. 315 Cr.PC has deposed that the alleged incident took place at 10:00 pm. Moreover, PW-6 HC Jitender has also deposed that the incident took place about 10:00 pm. Thus, the prosecution has proved that the alleged incident took place at about 10:00 pm.
38. PW-3 Sh. Gautam deposed that the tyre of the car had passed over his body and it injured other persons sitting with him. Similarly, PW-5 Sh. Prithvi Raj deposed that he came under the vehicle and received injuries on several parts of his body and he became unconscious. Similarly, PW-7 Sh. Vishnu also deposed that he came under the said vehicle and 10-12 persons also came under the said vehicle. Thus, there is complete consistency in the testimonies of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu with respect to the fact that the vehicle hit/crushed them and other persons present on the footpath/pavement due to which they sustained injuries. The testimonies of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu with respect to injuries sustained by them and other persons present at the pavement/footpath has been corroborated by medical evidence on record through the testimonies of PW-4 Dr. Priya Ranjan who prepared the MLCs of injured persons namely Ranjeet, Santosh, Gautam and Vipul, exhibited as Ex.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 26 of 46 PW-4/A to Ex. PW-4/D, by PW-8 Dr. Rakesh Solanki who prepared the MLCs of injured persons namely Anil and Naresh exhibited as PW-1/A & Ex. PW-2/A and by PW-9 Dr. Girish Chandra Prabhat who prepared MLCs of injured Vishnu, Vinod and one unknown person exhibited as Ex. PW-9/A to Ex. PW-9/C. Accused has failed to put any dent on the veracity of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu and PW-4 Dr. Priya Ranjan, PW-8 Dr. Rakesh Solanki and PW-9 Dr. Girish Chandra Prabhat with respect to the fact of hitting of injured persons by the offending vehicle and the injuries sustained by them.
39. PW-6 HC Jitender Kumar deposed that on 17.08.2014 at about 10:00 pm, he was present at Police Booth, Ring Road, near Nigam Bodh Ghat and he heard the hue and cry that 'gadi chadha di'. He further deposed that he went to the spot i.e. near U-turn from ISBT side to Nigam Bodh Ghat where he noticed that one car make Mahindra Punto bearing registration no. DL-7CA-1368 (DL-7CM-1368) was on the pavement of right side and some persons were under the said car and accused had been caught by public persons. He also deposed that he along with the help of public persons upturned the vehicle and took out the injured persons who were lying under the vehicle before upturning it. He also deposed that he took the accused in his custody. Vide DD No. 41B which on record, Ct. Jitender (now HC) had left the PS on 17.08.2014 at 06:18 pm for his duty at Nigam Bodh Ghat. The testimony of PW-6 HC Jitender is relevant under Sec. 6 of The FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 27 of 46 Indian Evidence Act, 1872 as res gestae as he reached at the spot of incident while the injured persons were still under the offending vehicle. Thus, PW-6 HC Jitender has corroborated the testimonies of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu with respect to the alleged incident.
40. As per the case of prosecution, the victims were hit/crushed by offending vehicle i.e. Mahindra Quanto car bearing registration no. DL-7CM-1368 and same was being driven by accused Rishi Kumar. PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu have not deposed about the registation number of offending vehicle, though, PW-7 Sh. Vishnu has deposed that it was big Mahindra car. However, PW-6 HC Jitender deposed that he noticed one car make Mahindra bearing registration no. DL-7CM-1368 was on pavement on the right side and some persons were under the said car. PW-3 Sh. Gautam and PW-7 Sh. Vishnu have correctly identified the accused in the court during trial by stating that he was driving the offending vehicle at the time of incident. Accused has not disputed the identity of the offending vehicle. In an answer to question no. 1 put to the accused under Sec. 313 Cr.PC, accused replied that on 17.08.2014 at about 10:00 pm at Ring Road, near Nigam Bodh Ghat, he was driving the Mahindra Quanto car bearing registration no. DL-7CM-1368. In his statement recorded on oath under Sec. 315 Cr.PC, DW-1 accused Rishi Kumar deposed that on 17.08.2014, he was returning from family gathering and was driving his abovesaid Mahindra Quanto car.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 28 of 46 Moreover, the abovesaid Mahindra Quanto car bearing registration no. DL-7CM-1368 is also visible in accidental condition at the spot of incident in the photographs collectely exhibited as PW-17/F-1. Thus, the prosecution has successfully proved the fact that at the time of incident, the offending vehicle i.e. Mahindra Quanto car bearing registration no. DL-7CM-1368 had hit/crushed the victims at the spot of incident and the same was being driven by accused Rishi Kumar.
41. In the cross-examination of eyewitnesses/injured persons namely PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu accused has taken the defence that the offending vehicle had lost its control due to mechanical fault due to which the said accident had occurred. Accused has examined himself on oath under Sec. 315 Cr.PC as defence witness no. 1 and surprisingly he has not taken the said defence in his statement recorded under Sec. 315 Cr.PC as well as Sec. 313 Cr.PC. PW-19 Sh. Arvinder Singh, Automobile expert proved his mechanical inspection report of offending vehicle i.e. Mahindra Quanto Car bearing registration no. DL-7CM-1368 exhibited as Ex. PW-19/A. He specifically deposed that the mechanical systems i.e. break system, head light and horn were found ok. Thus, as per the mechanical/automobile expert opinion, there was no mechanical fault in the offending vehicle bearing registration no. DL-7CM-1368. Thus, the defence taken by the accused in the cross-examination of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu is vague and false. Accused has also failed FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 29 of 46 to bring anything on record that the victims/deceased were under the influence of psychotropic substances as no such observation has been made by any of the doctor in any of the MLCs of deceased/injured persons. A false defence is always an additional evidence against the accused.
42. Accused has admitted FSL Report/Crime Scene Report Ex. PX-1, prepared by Sh. S. S. Badwal, Sr. Scientific Officer (Physics), FSL, Delhi, under Sec. 294 Cr.PC. As per the report, the offending vehicle i.e Mahindra Quanto was having dent marks in front left portion of metalic guard and air of front tyre was found leaked. The report further states that no relevant skid marks were found present. The report further states that through examination of above vehicle indicated that the vehicle had came in contact of some hard surface due to which scratch and dent marks were caused on the front portion. Accused in his statement under Sec. 313 Cr.PC as well as in his statement under Sec. 315 Cr.PC has taken the defence that he tried his level best to apply breaks so as to avoid untoward incident. He also deposed that he applied conscious break but being a steep turn he could not avoid the accident. Whenever, emergency breaks are applied to stop the running vehicle immediately, skid marks are bound to take place on the road/surface. PW-3 Sh. Gautam has specifically deposed that accused was driving the car at very fast speed and he did not stop the car even after causing of accident of number of persons and continued driving till the tyre burst. As per the FSL report/Crime Scene Report, Ex. PX-1, the air of front tyre was FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 30 of 46 found leaked and there were no skid marks at the spot of incident. Thus, the defence taken by the accused that he had applied conscious breaks is without any substance.
43. PW-17 IO/Retd. SI Shakti Raj deposed that he prepared site plan Ex. PW-17/G at instance of complainant Santosh Kumar. The analysis of site plan, Ex. PW-17/G is necessary to understand the movement of offending vehicle from road to pavement/footpath. As per the site plan, Ex. PW-17/G the offending vehicle came from the side of ISBT Kashmere Gate and rammed over the pavement after leaving the road at point 'A' while the u-turn of the road was at the end of the pavement at point 'B' where the vehicle was found in accidental condition. The IO has shown the position of people lying/sitting on the pavement and thus the said persons came under the offending vehicle. As per the site plan, there is a proper u-turn at end of pavement and enough space has been provided for the movement of vehicles. Thus, the defence taken by accused in his statement under Sec. 313 Cr.PC as well as Sec. 315 Cr.PC. that there was a steep/blind u-turn at the spot and the incident took place due to that steep/blind turn is false.
44. PW-11 Dr. Rahul Kumar Meena has proved the postmortem report no. 857/2014, Ex. PW-11/A of unknown male person aged about 30 years. As per the report, the death in this case occurred due to cerebral damage consequent upon blunt force trauma to the head and all injuries were ante-mortem in nature which were caused by blunt force possible in road traffic FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 31 of 46 accident. PW-12 Dr. Akash Jhanjee has proved the postmortem report no. 1604/2014, Ex. PW-12/A of deceased Ekraj on behalf of Dr. J. P. Singh who had conducted the postmortem on the body of deceased Ekraj. As per the report, cause of death was craniocerebal damage as a result of blunt force/surface impact to the head. Similarly, PW-4 Dr. Priya Ranjan who prepared the MLCs of injured persons namely Ranjeet, Santosh, Gautam and Vipul, exhibited as Ex. PW-4/A to Ex. PW-4/D, PW-8 Dr. Rakesh Solanki who prepared the MLCs of injured persons namely Anil and Naresh exhibited as PW-1/A & Ex. PW-2/A and PW-9 Dr. Girish Chandra Prabhat who prepared MLCs of injured Vishnu, Vinod and one unknown person exhibited as Ex. PW-9/A to Ex. PW-9/C have proved the MLCs of injured persons. PW-13 Dr. Ankit Kataria has proved the opinion regarding nature of injury on MLC of injured Banshi as grievous in nature which was given by Dr. Yugal. It is pertinent to mention that the doctors i.e. PW-4 Dr. Priya Ranjan, PW-9 Dr. Girish Chandra Prabhat, PW-11 Dr. Rahul Kumar Meena, PW-12 Dr. Akash Jhanjee and PW-13 Dr. Ankit Kataria have not been cross-examined by the accused despite opportunity given to him which means that accused has admitted the cause of death of two persons and the injuries sustained by the remaining injured persons mentioned in their respective medical documents.
45. As per the prosecution story, accused was drunk at the time of incident. PW-7 Sh. Vishnu has specifically deposed that accused was under the influence of alcohol at the time of FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 32 of 46 incident. PW-17 IO/Retd. SI Shakti Raj deposed that accused was taken to hospital for his medical examination where his MLC Ex. PW-17/C was prepared. In the MLC of accused, Ex. PW-17/C it has been specifically mentioned by the doctor that there was smell of alcohol from accused and accused had admitted the intake of alcohol. He also deposed that blood sample of accused were obtained in sealed condition which was seized by him vide seizure memo Ex. PW-17/D. He also deposed that the blood sample of accused were sent to FSL. PW-10 Dr. Adesh Kumar, Senior Scientific Officer (Chemistry), FSL Rohini has proved his report, Ex. PW-10/A. He deposed that on chemical examination and GC-HS examination, Ex. 1 was found contain Ethyl Alcohol 116.0 mg per 100 ml of blood. This witness was not cross- examined on behalf of accused. Since alcohol was found in the blood of accused as per the examination, the accused was drunk at the time of incident. Accused in his cross-examination in capacity of DW-1 has specifically admitted that he was drunk at the time of incident. Thus, through the testimony of PWs, FSL report, Ex. PW-10/A and admission of accused, the prosecution has successfully proved that accused was drunk at the time of incident and the quantity of ethyl alcohol was 116 mg per 100 ml of his blood.
46. An offence committed by a person who is uncapable of judgment by reason of intoxication caused against his will is a defence under Sec. 85 of IPC. Thus, only involuntary intoxication is a defence and voluntary intoxication is not a FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 33 of 46 defence. Accused in his statement recorded on oath under Sec. 315 Cr.PC has specifically deposed that he was drunk at the time of incident and he had taken a glass of beer. Thus, the intoxication of accused was voluntary in nature and the present case does not fall within the purview of Sec. 85 of IPC.
47. From the foregoing discussions, it has come on record that accused was driving the car Mahindra Quanto bearing registration no. DL-7CM-1368 in a drunken state and he left the road and rammed over the pavement where several persons were hit/crushed under his vehicle and he had not applied any breaks. The accused in his written submissions/arguments as well as oral arguments has submitted that atmost causing of death by rash and negligent driving can be attributing to him but he has not committed an offence of culpable homicide not amounting to murder as the knowledge that death of some persons may take place cannot be attributed to him. In short, the accused has submitted that his case falls within the purview of Sec. 304A IPC and does not fall within the purview of Sec. 304 IPC.
48. Section 299 IPC deals with culpable homicide while Sec. 304A IPC deals with causing death by negligence. These Sections have been denfined as follows:-
299. Culpable homicide:-
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 34 of 46 or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
304A. Causing death by negligence:-
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.
Thus, in view of the evidence adduced by the prosecution, defence taken by the accused and arguments advanced on behalf of State as well as on behalf of accused, this court has to decide whether the present case falls within the purview of Sec. 304 IPC or 304A IPC.
49. Hon'ble Supreme Court of India in judgment titled as 'Alister Anthony Pareira Vs. State of Maharashtra, cited as MANU/SC/0015/2012' has observed as under:-
"45..........each case obviously has to be decided on its own merits. In a case where negligence or rashness is the cause of death and nothing more, Sec. 304A may be attracted but where the rash or negligent act is preceeded with the knowledge that such act is likely to cause death, Sec. 304 Part-II Indian Penal Code may be attracted and if such rash and negligent act is preceeded by real intention on the part of wrong doer FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 35 of 46 to cause death, offence punishable under Sec. 302 Indian Penal Code."
50. As per the FSL Report, Ex. PW-10/A proved by PW-10 Sh. Dr. Adesh Kumar, Senior Scientific Officer, FSL, Rohini, there was ethyl alcohol 116.0 mg per 100 ml of blood of accused. Thus, the accused was drunk at the time of incident. Under Sec. 185 of The Motor Vehicle Act, if the quantity of alcohol exceeding 30 mg per 100 ml of blood is found in blood of any person, the same is punishable under Sec. 185 of The Motor Vehicle Act, 1988. Thus, the prosecution has duly proved all the igredients of offence punishable under Sec. 185 of The Motor Vehicle Act, 1988.
51. Hon'ble Supreme Court of India in judgment titled as 'State through PS Lodhi Colony New Delhi Vs. Sanjeev Nanda, cited as MANU/SC/621/2012' has observed as under:-
"78. Drunken driving has became a menace to our society. Everyday drunken driving results in accident and several human life are lost, pedesterian in many of our cities are not safe. Late night parties among urban elite have now became a way of life followed by drunken driving. Alcohol consumption imparis conciousness and vision and it became impossible to judge accurately how far away the objects are. When death perception deteriorates, eye muscles loose their precision causing inability to focus on the objects.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 36 of 46 Further, in more unfavourable conditions like fog, mist, rain etc., whether it is night or day, it can reduce the visibility of an object to the point of being below the limit of discernibility. In short alcohol leads to loss of coordination, poor judgment, slowing down of reflexes and distortion of vision."
52. Under Sec. 185 of The Motor Vehicle Act, 1988, the offence has been made punishable, if the alcohol content exceeding 30 mg is found in per 100 ml blood of a person driving a vehicle. In the present case the quantity of alcohol has been found to be 116.0 mg per 100 ml of blood of accused which is almost four times of the quantity of alcohol which has been made punishable. Thus, the accused was heavily drunk at the time of incident. It has been scientifically proved that the alcohol causes staggering, emotional swings, slurred speech and judgment impairment and hence the person in such a condition cannot be fit to drive any motor vehicle. Accused had consumed the alcohol on his own and he is presumed to have the knowledge that he may not drive the vehicle properly in such a condition. Thus, in such a condition, it cannot be said that the accused had no knowledge that the driving of vehicle by him may not likely to cause death of any person.
53. At the time of incident, accused was driving Mahindra Quanto car bearing registration no. DL-7CM-1368. As per the RC of abovesaid vehicle Marked P-1, the unladen weight of said vehicle was 1090 kg and since accused was also sitting in the FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 37 of 46 said vehicle the weight of said vehicle has exceeded 1100 kg. The cubic capacity of the said vehicle was 1493 CC and the sitting capacity of the said vehicle was seven, as per the RC, which shows that the accused had the knowledge that he was driving a large vehicle with heavy weight and powerful engine. Since accused was driving the vehicle in drunken condition, it is clear that he had the knowledge that if such a vehicle will hit someone, it was likely to cause death of such person.
54. Accused in the cross-examination of injured/eyewitness PW-7 Sh. Vishnu has specifically given the suggestion 'it is correct that during the period of accident and date due to exteme hot season, some people would sleep over pavement for the whole night and others would go to their respective places' which has been accepted by the witness. Similarly, in his examination on oath under Sec. 315 Cr.PC, accused has specifically deposed that he used to pass through the area during day hours and he could see that some of the persons usually sit there. Accused in his statement recorded under Sec. 315 Cr.PC has stated that the place where the accident occurred was not meant for sitting or lying. The offending vehicle had hit/crushed the persons sitting/lying on the footpath/pavement. The footpath/pavement are meant for the pedesterians for their proper movement. It is true that the pavement/footpaths are not meant for sleeping but same are meant for the movement of people only and their presence at the footpath/pavement is natural and the pavements/footpath are not meant for driving the motor vehicles.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 38 of 46 Thus, from the abovesaid admissions by the accused, it is clear that accused was aware about the spot of incident and the fact that persons used to sit there on the pavement. Thus, the accused had complete knowledge that the persons used to remain present at the spot of incident i.e. the pavement/footpath.
55. Hon'ble Supreme Court of India in judgment titled as 'Naresh Giri Vs. State of Madhya Pradesh, cited as MANU/SC/4297/2007' has held that:-
"Sec. 304A IPC 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 & 300 IPC. Sec. 304A applies only to such act which are rash and negliget and are directly the cause of death of another person. Negligence and rashness are essential elements under Sec. 304A."
56. On the basis of foregoing discussions, this court is of considered opinion that accused had the knowledge that he was heavily drunk and in such a state driving of a four-wheeler vehicle by him may hit someone which could likely to cause death of someone. Hon'ble Supreme Court of India in judgment titled as 'Jagriti Devi Vs. State of Himachal Pradesh, cited as MANU/SC/1117/2009' has observed as under:-
"22......it is trite law that Sec. 304 Part-II comes into play when the death is caused by doing an act with the knowledge that it is likely to cause death FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 39 of 46 but there is no intention on the part of accused either to cause to death or to cause such bodily injury as it likely to cause death."
57. Similarly, Hon'ble Supreme Court of India in 'Alister Antony Pareira (Supra)' has observed as under:-
"41. A person, responsible for rackless or rash or negligent act that causes death which he had knowledge as a responsible man that such act was dangerous enough to lead some untoward thing and the death was likely to be caused may be attributed with the knowledge of consequence and may be fasten with the culpability of homicide not amounting to murder and punishable under Sec. 304 Part-II Indian Penal Code."
58. The judgments relied upon by the accused are not applicable in the present case. The judgment titled as 'State Vs. Santanam, 1998 J. 3045 (Hon'ble High Court of Karnataka)' is not applicable as the postmortem report of the deceased and the fact that accused was drunk at the time of accident was not proved by the prosecution. Similarly, judgment titled as 'Mann Prakash Vs. State of Haryana, 2 (1996) ACC 519 (Hon'ble High court of Punjab & Haryana)' 'S. N. Hussain Vs. State of Andra Pradesh, AIR 1972 SC 685', 'Francis Xavier Rodrigues Vs. State, 1997 Cr. L.J 1374' & 'Balwant Singh Vs. State of Punjab, SCC (CRI) 844' are not applicable in the present case as all the FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 40 of 46 these cases do not pertain to drunken driving and are distinguishable on basis of facts and evidence adduced by the prosecution.
59. Thus, applying the law laid down by Hon'ble Supreme Court of India in 'Sanjeev Nanda (Supra), Alister Antony Pareira (Supra)', 'Jagriti Devi (Supra) and 'Naresh Giri (Supra), this court is of considered opinion that the accused had the knowledge that driving of vehicle by him in drunken state was likely to cause death of someone and while driving the offending vehicle Mahindra Quanto bearing registration no. DL-7CM-1368 he rammed the abovesaid vehicle on the pavement/footpath where several homeless people were sitting/lying were hit/crushed by him due to which two person were killed while about ten persons were injured. The accused had knowledge that his act could have also caused the death of remaining persons who were hit/crushed by his vehicle and who sustained simple/grievous injuries on their persons. The prosecution has successfully proved the ingredients of offence punishable under Sec. 304 Part-II/308 IPC & 185 of The Motor Vehicle Act.
60. The police wintesses i.e. PW-6 HC Jitender Kumar, PW-14 SI Devender Kumar, PW-15 Ct. Praveen, PW-17 IO/Retd. Shakti Raj, PW-18 SI Mohit Kumar and PW-20 HC Devender Kumar have duly proved the proceedings conducted by them during investigation and accused has failed to put any dent on the investigation conducted as well as veracity of these witnesses.
FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 41 of 46
61. To prove the prosecution case, the testimony of the prosecution witnesses must be reliable. It is not the quantity but the quality of the testimony of the witness that helps a court in arriving at a conclusion in any case. The test in this regard is that the evidence adduced by the parties must have a ring of truth. In a criminal trial, the prosecution has to prove the case beyond reasonable doubt and it is possible only when the testimony of prosecution witnesses is cogent, trustworthy and credible. To secure a conviction of accused, the testimony of the prosecution witness must be of sterling quality.
62. In case titled as 'Rai Sandeep @ Deepu Vs. State (NCT of Delhi), (2012) 8 SCC 21', it is held that :
"22. In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 42 of 46 makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstances should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have corelation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of very other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only, if the version of such a witness qualifies the above test as well as all other such similar tests to FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 43 of 46 be applied, can it be held that such a witness can be called as a "sterling witness' whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
63. Similarly, in case of Ramdas Vs. State of Maharashtra, (2007) SCC 170, it is held that :
"23. It is no doubt true that the conviction in a case of rape can be based solely on the testimony of the prosecutrix, but that can be done in a case where the court is convinced about the truthfulness of the prosecutrix and there exist no circumstances with cast of shadow of doubt over her veracity. It the evidence of the prosecutrix is of such quality that may be sufficient to sustain an order of conviction solely on the basis of her testimony. In FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 44 of 46 the instant case we do not fine her evidence to be of such quality."
64. Thus, from the above said judgments, it is clear that the version of the witness should be natural one and it must corroborate the prosecution case. Such version must match with the testimony of other prosecution witnesses. It should be of such a quality that there should not be any shadow of doubt upon it.
65. Applying the law laid down by the Hon'ble Apex Court in Rai Sandeep (supra) and Ramdas (Supra), this court is of the considered opinion that injured PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu are witnesses of sterling quality as their versions are natural and they have also withstood the test of cross examination. This court is of the considered opinion that the testimonies of injured persons i.e. PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu are clear, cogent, credible, trustworthy and consistent and have been corroborated by the other prosecution witnesses, medical evidence, scientific evidence on record and the circumstances.
66. The ingredients of offence punishable under section 304 Part-II/308 IPC & 185 Motor Vehicle Act, 1988 for the commission of offence to commit culpable homicide not amounting to murder, attempt of commit culpable homicide & driving the vehicle in a drunken state by the accused have been duly proved beyond reasonable doubt by the prosecution against the accused Rishi Kumar.
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67. Accordingly, accused Rishi Kumar is hereby convicted for the offences punishable under section 304 Part-II/308 IPC & 185 Motor Vehicle Act, 1988.
Digitally signed VIRENDER by VIRENDER KUMAR KUMAR KHARTA KHARTA Date: 2025.01.18 Announced in the open court 15:10:14 +0530 on 18th day of January, 2025 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI/18.01.2025 FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 46 of 46