Delhi District Court
State vs . Ramesh Chand Shukla on 20 May, 2023
IN THE COURT OF MS. PREETI PAREWA: CHIEF METROPOLITAN
MAGISTRATE, SHAHDARA, DISTRICT, KARKARDOOMA COURTS,
DELHI
JUDGMENT
STATE Vs. RAMESH CHAND SHUKLA FIR NO. : 369/2011 U/s 279/304A IPC PS : Jyoti Nagar A. CIS No. of the Case : 78866/2016 B. Date of Institution : 27.03.2012 C. Date of Commission of Offence : 07.09.2011 D. Name of the complainant : ASI Kafil Ahmed, MACT Cell North East E. Name of the Accused, his : Ramesh Chand Shukla Parentage & Addresses S/o Sh. Shyam Lal Shukla R/o E-336, East Jawahar Nagar, PS Loni, Distt. Ghaziabad, U.P. F. Offence complained of : U/s 279 & 304A IPC G. Plea of the Accused : Pleaded not guilty and claimed trial H. Order reserved on : 03.05.2023 I. Date of Order : 20.05.2023 J. Final Order : Acquitted State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 1/12 Brief Statement of Reasons for Decision of the Case:
1. The present FIR under Sections 279/304A India Penal Code (hereinafter referred to as "IPC") emanates from DD No. 30 dated 07.09.2011, PS MACT Cell/NE/Delhi regarding fatal accident at 100 ft. Road, Gali no. 2, Dugrapuri Extension, near Vijaya Bank ATM, Delhi falling within the jurisdiction of PS Jyoti Nagar, on the aforesaid date at about 08.40 PM.
2. As per the Prosecution, accused Ramesh Chand Shukla was driving a motorcycle bearing no. DL 7S AY 4598 on public place in a rash and negligent manner so as to endanger human life and personal safety of the others and thereby caused death of deceased Prem Chand S/o Suse Ram and committed offence punishable u/s 279 and 304A Indian Penal Code, 1860 (hereinafter referred to as "IPC"). The accused was charge-sheeted for offences punishable under Section 279/304A IPC.
3. FIR was registered and has been investigated by IO/ASI Kafil Ahmed, who filed the charge-sheet against the accused in the Court, upon which cognizance was taken by the Ld. Predecessor of this Court.
4. Copy of charge sheet under section 207 Cr.P.C. was supplied to accused.
5. Notice was framed vide order dated 22.01.2013 for the offence punishable under Section 279 & 304A of the IPC against accused by the Ld. Predecessor Court, to which he pleaded not guilty and claimed trial.
6. Thereafter, matter was listed for Prosecution Evidence. In Prosecution Evidence, the Prosecution has examined 10 witnesses in support of its case.
State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 2/12
7. In nutshell, the testimony of the Prosecution witnesses is as follows:-
(i) PW1 Sudama Sharma (eye witness/TSR Driver), who deposed that on 07.09.2011, he was going to GTB Enclave after taking passengers in TSR through Durgapuri Chowk and when he crossed Durgapuri Chowk, accused overtook his TSR on motorcycle bearing no. DL 7SAY 4598 in rash and negligent manner as accused overtook his TSR from wrong side and driving the motorcycle at very fast speed. PW-1 further deposed that at about 08.40-08.45 p.m he saw that one person was crossing road on 100 ft. Road, Gali no. 2, Durgapuri Extension prior to Vijay Bank ATM and accused while driving rashly and negligently hit the person crossing the road with aforesaid motorcycle due to which said person fell down on the road and sustained injuries and got unconscious. PW-1 deposed that he stopped his TSR and saw the accused motorcycle driver who had also fell down from his motorcycle and he left the spot as he had passengers in his TSR. He further deposed that on 20.10.2011, he had gone to hardware shop in order to buy nut bolt then he saw one police official inquiring about the incident then he told him that he had seen the accident and police recorded his statement. PW-1 has correctly identified the accused before the Court and offending vehicle i.e. motorcycle bearing no. DL 7SAY 4598 Ex.P1.
This witness was duly cross-examined at length by the learned defence counsel. During cross-examination, he deposed that he can not read and write English and admitted that Durgapuri Chowk is a crowded place however he voluntarily deposed that where and when the accident took place there was no traffic. This witness deposed that accident took place at about 08.30-08.45 p.m. and at the time of accident, he was on the same side. This witness admitted that there is no red light at the spot, that there was no heavy traffic runs about 06.00 to 10.00 p.m. at Durgapuri Chowk, his statement was not recorded by the police on the same day nor he had gone to PS or spot on that day or day after tomorrow, that where the incident took place so many shops were open, that he State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 3/12 had not went to police station since the date of accident till his statement was recorded. This witness deposed that his statement was recorded after one month but he was unable to tell the date and month and deposed that the same was recorded in the year 2011. This witness was also confronted with Mark X where it was not recorded that accused as well as injured had been taken to the hospital. This witness denied to the suggestions that he was not present at the spot therefore his statement was not recorded on the same day or day after tomorrow, or that he did not visit the police as he was not present at the spot at the time of accident or that he is a secret informer of police or that he is making false statement to get money from victim or deposing falsely.
(ii) PW-2 Sh. Vikas Kumar (son of deceased) , who identified the body of deceased as his father in mortuary and proved his statement in this regard as Ex. PW2/A and deadbody handing over memo as Ex.PW2/B. This witness was not cross-examined on behalf of accused despite grant of opportunity.
(iii) PW-3 HC Rajender (photographer), this witness took the photographs of the deceased person, spot of the accident and offending vehicle i.e. motorcycle bearing no DL 7S AY 4598 make Hero Honda Passion in accidental condition and proved the same as Ex. P1 to Ex. P7.
This witness was not cross-examined on behalf of accused despite grant of opportunity.
(iv) PW-4 Ct. Ram Ratan (photographer), who deposed that on 07.09.2011 on receiving of DD no. 30, he alongwith ASI Kafil Ahmed, HC Rajender and other staff went to the GTB Hospital where IO obtained the MLC of two injured persons, one of them persons name not known was brought dead. HC Devender met IO ASI Kafil Ahmed in the hospital and told that State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 4/12 offending vehicle i.e. no. DL 7SAY 4598 make Hero Honda Passion in accidental condition is sent to the PS and they came at the spot 100 futa road, Durgapuri near Vijaya Bank ATM and Ct. Rajender took the photographs of the said spot and prepared site plan at the instance of Ct. Devender and IO prepared tehrir at about 12.45 a.m. and handed over the same to him for getting the FIR registered. PW-4 get the FIR registered from PS and returned back at the spot alongwith copy of FIR and original tehrir. IO inquired about the incident from the public persons but no eye witness were found. Thereafter, they went to PS Jyoti Nagar, where photographs of accidental vehicle were taken and same was seized vide memo Ex. PW4/A and deposited in Malkhana. This witness further deposed that deadbody of deceased Prem Chand was identified by his relatives and thereafter, deadbody was sent to hospital for postmortem. On the next day, RC of offending motorcycle and DL of accused Ramesh Chand Shukla were seized vide memos Ex. PW4/B & Ex. PW4/C and disclosure statement of accused recorded as Ex. PW4/D. This witness correctly identified the photographs of case property, deceased and place of incident Ex. P1 to Ex. P7 and also correctly identified the accused before the court.
This witness was not cross-examined on behalf of accused despite grant of opportunity.
(v) PW-5 HC Ashok Mishra, who deposed that on 07.09.2011, he was posted at PS M.S. Park and he alongwith Ct. Devender were on patrolling duty and at about 08.40 p.m. when they reached at Durgapuri Ext. 100 futa road near Vijaya Bank, ATM they saw some public persons gathered there and an accident was happened there where two injured persons, one of them was in unconscious condition and one accidental motorcycle bearing no. DL 7 SAY 4598 were found. PW-5 informed control room North East regarding accident upon which PCR and ambulance came at spot and took the injured to the hospital. After that, HC Devender from PS Jyoti Nagar came at the spot and he State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 5/12 handed over the accidental motorcycle to him. On 11.10.2021, IO recorded his statement in PS M.S. Park. This witness correctly identified the photograph of motorcycle Ex. P3.
This witness was not cross-examined on behalf of accused despite grant of opportunity.
(vi) PW-6 SI Rambir, who deposed that on 07.09.2011 on receiving information regarding accident from Control Room reached at the spot and took the injured name unknown in unconscious condition to the GTB hospital where after examination Doctors declared him brought dead and on 11.10.2021, IO recorded his statement at North East Zone PCR Bhajanpura.
This witness was not cross-examined on behalf of accused despite grant of opportunity.
(vii) PW-8 HC Arun, who deposed that on 07.09.2011 at about 10.45 p.m. he received a call regarding an accident at Durgapuri Chowk from GTB hospital as deceased was declared brought dead and he made DD entry no. 30 dated 07.09.2011 regarding the said information in daily roznamcha register and proved the same as Ex.PW8/A and handed over the copy of same to ASI Khafil Ahmed.
This witness was not cross-examined on behalf of accused despite grant of opportunity.
(viii) PW-9 W/Ct. Hardeep Kaur proved the DD entry no. 74B as Ex. PW9/A recorded by her and brought the Roz Namcha Register pertaining to DD no. 74B which is in her writing as Ex. PW9/B. This witness was not cross-examined on behalf of accused despite grant of opportunity.
State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 6/12
(ix) PW-10 Retd. SI Kafil Ahmed (Investigating Officer)- who deposed that on receipt of DD no. 30 at about 10.45 p.m. he alongwith Ct. Ram Ratan, Ct. Rajender and driver went to GTB hospital where he received MLC of deceased/unknown person mentioning brought dead and injured Ramesh Chand Shukla and searched for eye witness in the hospital but none was found and then HC Devender met him who told that he sent the motorcycle make Passion bearing no. DL 7SAY 4598 to PS Jyoti Nagar. Ct. Rajender clicked the photographs of deadbody in the hospital Ex. P1 & Ex. P7 and thereafter he alongwith his staff and HC Devender reached at the spot i.e. 10 Futa Road, Gali no. 2, Durgapuri Extension near Vijaya Bank ATM, Delhi where they searched the eye witness but none was found and Ct. Rajender clicked the photographs of the spot Ex. P4 to Ex. P6 and thereafter, he prepared rukka at about 12.45 a.m. Ex. PW10/A and sent Ct. Ram Ratan to PS Jyoti Nagar for registration of FIR. IO prepared site plan Ex. PW10/B at the instance of HC Devender. Ct. Ram Ratan came back at the spot with copy of FIR and original rukka and handed over the same to him. After that IO reached at PS Jyoti Nagar where HC Devender produced offending motorcycle and IO prepared photographs of the same Ex. P2 & Ex. P3 and seized the same vide memo Ex. PW4/A and deposited the same in the malkhana. IO recorded statement of HC Devender in PS and thereafter he alongwith Ct. Ram Ratan reached at the mortuary, GTB hospital where Mr. Vikas Kumar and Prashant Kumar, identified the dead body of injured as their father namely Ramesh Kumar. After that IO made request for postmortem vide document Ex. PW10/C and recorded the body identification statement of Prashant Kumar Ex. PW10/D and Vikas Kumar Ex. PW2/A. After postmortem, the dead body was handed over to Vikas Kumar through body handing over memo Ex.PW2/B and thereafter, IO recorded the statement U/s 161 Cr.P.c. of Prashant Kumar and Vikas Kumar. After tracing the owner of abovesaid motorcycle through Traffic Control Room, IO gave notice U/s 133 Cr.P.C. to accused Ex. PW10/E and on State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 7/12 09.09.2011 accused gave written reply to the said notice that he is the owner of the said motorcycle and at the time of incident, he was driving the same. IO arrested the accused vide memo Ex. PW10/F, conducted his personal search vide Ex. PW10/G and recorded disclosure statement of accused as Ex. PW4/D. After that, accused produced DL & RC which were taken into possession vide seizure memos Ex. PW4/B & Ex. PW4/C and as the accused did not produce the insurance of the motorcycle, Section 146/196 of MV Act were added and accused was released on police bail. IO made the mechanical inspection of motorcycle Ex. PW10/H. Thereafter, IO collected the documents and postmortem report of the victim. During investigation, IO found the eye witness namely Sudama Sharma of the accident and recorded his statement. After completion of investigation, IO prepared the charge-sheet and submitted the same before the Court. PW-10 correctly identified the accused.
During cross-examination, this witness deposed that he received DD no. 30 from MACT Cell, North East, Delhi and reached at GTB hospital at about 10.55 p.m. where no public witness met him on that day and he alongwith police officials reached at the spot at about 11.15 p.m. and no public witness found at the spot. No relatives of deceased met at the spot. This witness was unable to tell the exact date on which the statement of eye-witness Sudama was recorded. No CCTV footage found at the spot and he recorded the statement of Vikas and Prashant at Mortuary GTB hospital. This witness denied to the suggestions that all the proceedings were conducted while sitting in PS, that complainant is a planted witness from the side of Investigating Agency or that accused was falsely implicated in the present case or he is deposing falsely.
(x) PW-11 Brij Pal, Assitant Ambulance Officer, on receiving information regarding accident reached at the spot i.e. Durgapuri Chowk where he found the injured Prem Chand and accidental motorcycle bearing No. DL 7SAY 4598 and then he took the injured Prem Chand to GTB hospital in his State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 8/12 ambulance on 07.09.2011 and on 20.10.2011, police recorded his statement.
This witness was not cross-examined on behalf of accused despite grant of opportunity.
8. On 16.10.2019, accused admitted the genuineness of the documents i.e DD no. 30 Ex. A1, Copy of FIR NO. 369/11 Ex. A2, MLC no. C-5210/11 and result thereon Ex. A3, MLC no. A 5210/11 Ex. A4 and PM report no. 123/11 Ex. A5. In view of the said admissions, prosecution witness qua these documents were dropped.
9. Thereafter, Prosecution Evidence was closed vide order dated 27.03.2023 and statement of accused u/s 313 Cr.P.C r/w section 281 Cr.P.C. was recorded on 21.04.2023, wherein the accused denied committing any offence and expressed no desire to lead Defence Evidence.
10. Final arguments advanced by Sh. Yogendra Singh, Ld. APP for the State and Sh. Abhishek Kumar, Ld. Legal Aid Counsel heard. Case record perused meticulously.
11. The essential ingredients which the prosecution is required to prove to establish the guilt of accused beyond reasonable doubt for offence punishable u/s 279 IPC is as under :
a) The accused was driving the offending vehicle;
b) On a public way ;
c) In a manner so rash and negligent so as to endanger
human life, or to be likely to cause hurt/injury to any other person.
12. Further for offence punishable u/s 304A, the prosecution has to establish beyond reasonable doubt that by aforesaid rash and negligent driving, the State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 9/12 accused caused death of the victim not amounting to culpable homicide.
13. In other words, to seek conviction of the accused under the charged sections, cogent evidence has to be led to establish "rashness"/"negligence" on the part of the accused.
14. "A rash act is primarily and over - hasty act and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In rashness the criminality lies in running the risk of doing an act with recklessness or in difference to consequences." (Page no. 321 Ratan Lal & Dhiraj Lal, The Indian Penal Code 28th Edition Reprint 2002). Further, a negligent act "involves blameworthy heedlessness on the part of the accused which a normal prudent man exercising reasonable care and caution ought to avoid". (Page no. 322 Ratan Lal & Dhiraj Lal, The Indian Penal Code 28 th Edition Reprint 2002). Either of these ingredients have to be proved by affirmative evidence and cannot be presumed res ipsa loquitur. Reliance is placed upon State of Karnataka Vs. Satish (1998) 8SCC 493.
15. The prosecution also has to establish beyond reasonable doubt that the direct and proximate cause of death of the victim was the rash and negligent driving by the accused.
16. The identity of the accused as the driver of the offending vehicle and the identity of the offending vehicle is not disputed in the present case by the defence.
17. In the present case, as per the testimony of IO/PW-10, he found the eye witness namely Sudama Sharma during the investigation and recorded his State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 10/12 statement. The sole eye witness i.e. PW-1 Sudama Sharma has testified that on 20.10.2011, when he had gone to a hardware shop for buying nut bolt, then he saw one police official inquiring about the incident and he told him that he had seen the accident on 07.09.2011. Thus, the fact that PW-1 was present at the spot and had witnessed the incident is rendered doubtful as the IO has not specified how he found the eye witness after lapse of more than 40 days of the incident and what were the circumstances in which he was convinced that Sh. Sudama Sharma was infact witness to the alleged incident. Further, the PW-1 in his testimony has testified that the accused over took his TSR from wrong side on motorcycle in a rash and negligent manner at Durgapuri Chowk at a very fast speed and at about 08.40-08.45 p.m, the accused hit a pedestrian while the pedestrian was crossing at 100 feet Road, Gali no. 2, Durgapuri Extension. Thus, admittedly, the accused had already overtaken the witness's TSR at a fast speed, and therefore, the probability of the witness himself witnessing the alleged accident at 100 feet Road, Gali no. 2, Durgapuri Extension becomes improbable. Furthermore, PW-1 has deposed that the place of incident is a crowded place, however at the time of accident there was no traffic. PW-5 HC Ashok Mishra has deposed that when he alongwith Ct. Devender reached at the spot, public persons were gathered at the spot whereas, IO PW-10 has deposed that when he reached GTB hospital at about 10.55 p.m. on the day of incident, no public witness met him and when at about 11.15 p.m. he reached at the spot, he neither found the public witness at the spot nor met the relative of the deceased. There is no explanation by the Investigating Agency as to why no public persons were made to join the inquiry, despite their presence/availability. Further, IO admitted there was no CCTV footage at the spot and was unable to tell the date on which he recorded the statement of the eye witness Sudama Sharma. There is also no explanation on record as to why the CCTV footage was not checked or made part of the record despite its availability. Thus, from the evidence led by the prosecution State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 11/12 the probability of presence of eye witness PW-1 at the spot is rendered highly doubtful. In absence of cogent evidence regarding commission of offence such as eye witness, CCTV footage etc., it cannot be said that the Prosecution has established beyond reasonable doubts that the proximate cause of death of victim Prem Chand was rash and negligent driving of the accused Ramesh Chand Shukla. Consequently, this Court finds that accused Ramesh Chand Shukla not guilty in the present case. Resultantly, he stands acquitted in the present case.
Announced in the open (PREETI PAREWA)
Court on 20.05.2023. CMM/SHAHDHARA/KARKARDOOMA
COURTS/DELHI
State Vs. Ramesh Chand Shukla FIR No. : 369/2011 U/S 279/304A IPC PS : Jyoti Nagar 12/12