Delhi District Court
Anil Kumar vs State on 25 September, 2019
IN THE COURT OF SH. RAKESH SYAL, ASJ-03, NEW DELHI
DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
CA No. 158/2018
In re:
Anil Kumar
S/o Ram Chander Singh,
R/o 25/494, MCD Flat,
Rohini, Sector-20,
New Delhi.
....Appellant
Versus
State
....Respondent
Date of filing of Appeal : 01.11.2018
Date of arguments : 24.09.2019
Date of order : 25.09.2019
ORDER
1.1 This order shall decide Criminal Appeal filed by appellant Anil Kumar (accused before the Ld. Trial Court) against judgment dated 01.10.2018, vide which the appellant CA No. 158/2018 25.09.2019 Page 1 of 33 Anil Kumar v. State was convicted for the offences under sections 279, 337 and 304A IPC, and order on sentence dated 11.10.2018, of the Ld. Trial Court, vide which he has been sentenced as under:-
"Keeping in view the facts and circumstances of the case, the convict is hereby sentenced to undergo rigorous imprisonment for a period of 6 months and fine of Rs.1000/- (One Thousand only) for the commission of offence punishable u/s 279 IPC and in default of payment of fine he shall further undergo simple imprisonment for a period of one month.
Convict is further sentenced to undergo rigorous imprisonment for a period of 6 months and fine of Rs.500/- (Five Hundred only) for the commission of offence punishable u/s 337 IPC and in default of payment of fine he shall further undergo simple imprisonment for a period of 15 days.
Convict is further sentenced to undergo rigorous imprisonment for a period of 2 years and fine of Rs.1000/- (One thousand only) for the commission of offence punishable u/s 304A IPC and in default of payment of fine he shall further undergo simple imprisonment for a period of one month. Fine not paid.
The sentence shall run concurrently.
The period already spent by convict in the custody, if any, during the pendency of the trial shall be set off against the sentence awarded to him."
CA No. 158/2018 25.09.2019 Page 2 of 33Anil Kumar v. State 2.1 The facts leading to filing of this appeal are that on 24.09.2009, on receipt of DD no.6A, regarding an accident, ASI Raj Kumar, along with Ct. Dev Kumar, reached the site of accident at outer circle, Panchkuian Road, Connaught Place, where bus no. DL-1PB-1486, route no.500 and scooter no. DL- 4SW-9806, LML Vespa, were found in accidental condition. The sooter was struck in between front wheels of the bus. At the spot, one Kamal Mathur was found dead. It was learnt that the other injured had been taken to Dr. RML Hospital by PCR. Meanwhile, Ct. Pawan of beat staff came to the spot. Crime team was called and photographs of the dead body were taken. After leaving Ct. Dev Kumar at the spot, ASI Raj Kumar along with Ct. Praveen took the dead body to Dr. RML Hospital. MLC of injured Vimal Kumar Mathur, who was already admitted there, was obtained, on which the doctor had recorded alleged history of RTA and hit by bus. The injured was declared fit for statement. On the MLC of Kamal Mathur, the doctor recorded brought dead, alleged history of RTA and hit by bus.
2.2 It is further alleged that statement of injured Vimal Kumar Mathur was recorded, wherein he stated that he was residing at Om Vihar, Uttam Nagar and was doing the business of selling clothes at Tilak Nagar. On 24.09.2009, at about 7.30 AM, he along with his brother Kamal Mathur, had proceeded on CA No. 158/2018 25.09.2019 Page 3 of 33 Anil Kumar v. State scooter no. DL-4SW-9806, LML Vespa, for going to Gandhi Nagar. The scooter was being driven by his elder brother Kamal Mathur and he was sitting on the pillion seat. At about 8.15 AM, when they reached outer circle Connaught Place from Panchkuian Road, while taking left turn, one blue line bus, no. DL-1PB-1486, came from the side of Shivaji Stadium outer circle in a fast speed and in a rash and negligent manner and hit their scooter, due to which he and his brother fell down along with their scooter. His brother, along with the scooter, came under the bus and the bus dragged them for about 40-50 steps. His brother Kamal Mathur died at the spot. Meanwhile, PCR van came to the spot and took him to the hospital for treatment. After the accident, the bus driver stopped the bus and after seeing that they were injured, ran away from the spot. He could identify the driver.
2.3 It is further alleged that based on the above statement, a case was got registered and investigation was carried out by ASI Raj Kumar. During investigation, site plan was prepared, statements of witnesses were recorded, photographs of the spot were taken, the bus and the scooter were seized, postmortem on the body of deceased Kamal Mathur was got conducted, the dead body was handed over to the legal heirs, the accused was arrested, his driving licence as well as the permit, insurance and RC of the bus were seized.
CA No. 158/2018 25.09.2019 Page 4 of 33Anil Kumar v. State Since the offences were bailable, the accused was released on bail. The bus and the scooter were got mechanically inspected. The bus was released on superdari. Postmortem report of deceased Kamal Mathur was obtained, wherein the doctor opined the cause of death as, 'Severe cranio cerebral damage as a result of blunt force impact'. Result on the MLC of injured Vimal Kumar Mathur was also obtained wherein the doctor opined the nature of injury to be simple. On completion of the investigation, charge-sheet u/s 279/337/304 IPC.
2.4 Cognizance of the offences was taken. After supplying copies of documents u/s 207 Cr.P.C., notice u/s 251 Cr.P.C. for commission of offences punishable u/s 279/304A IPC was given to the accused, to which he pleaded not guilty and claimed trial.
2.5 In order to prove its case, prosecution has examined 15 witnesses. PW9 Vimal Mathur was the pillion rider of the scooter driven by the deceased, who also suffered injuries in the accident. PW2 Rakesh was the conductor of the offending vehicle and also eye witness of the incident. PW6 Ct. Praveen was on patrolling duty in the area of incident. PW10 Ct. Dev Kumar has joined the investigation with the IO. PW13 SI Joginder, was posted in PCR. PW1 Mrs. Suhag Pawar is the owner/superdar of the offending vehicle. PW4 Pawan Kumar is CA No. 158/2018 25.09.2019 Page 5 of 33 Anil Kumar v. State husband of PW1 Mrs. Suhag Pawar. PW3 Jagdish Mathur is the father of the deceased. PW5 Dr. Pawan Kumar, Medical officer, Dr. RML Officer has examined the deceased. PW7 Raj Kumar (also examined as PW12) is the Record Clerk, Dr. RML Hospital. PW8 ASI Devender has mechanically inspected the offending bus and the scooter. PW11 Ct. Ram Niwas is the photographer. PW15 Dr. Shrabana Kumar Naik has deposed about the post- mortem report. PW14 SI Raj Kumar is the IO of the case.
2.6 It is pertinent to mention that on 15.09.2017, accused has admitted FIR no.103/12, Ex.P-1.
2.7 Statement of the accused u/s 313 Cr.P.C. was recorded, wherein he stated that he had been falsely implicated in this case. He is innocent. No accident took place due to his negligence but it was due to the negligence of the deceased and another bus driver who tried to over take his bus.
2.8 The accused did not opt to lead evidence in his defence.
2.9 Vide judgment dated 01.10.2018, the accused was convicted for the offences punishable u/s 279/337/304A IPC and vide order on sentence dated 11.10.2018, he was sentenced as above.
CA No. 158/2018 25.09.2019 Page 6 of 33Anil Kumar v. State 3.1 The appellant/convict has assailed the judgment and order on sentence, inter alia, on the ground that most important part of investigation was to check if the traffic signal at the spot of occurrence was functional or not, at the time of accident. However, the investigating officer has failed to investigate the same. In the absence of the same, it is impossible to arrive at a conclusion as to whether the appellant was driving in a rash or negligent manner or not. The prosecution has even failed to prove with the help of other evidence that the appellant had actually jumped the traffic signal when the accident occurred. It is also submitted that the conductor of the bus i.e. PW2 Rakesh has not supported the prosecution story and has completely exonerated the appellant stating that it was the negligence of the bus that overtook the offending bus as a result of which the accident had taken place. It is further stated that statement of eye witness Ajit Rai was never recorded by the IO, nor he could be examined on account of his death. Site plan was stated to have been prepared at the instance of eye witness Ajit Rai but it does not bear his signature. This eye witness remained at the spot for hours but his statement u/s 161 Cr.P.C. was not recorded by the IO, which casts a suspicion over the veracity of the prosecution story. IO clearly mentioned that there was no eye witness at the spot, when he reached the spot but presence of this eye witness has been subsequently shown CA No. 158/2018 25.09.2019 Page 7 of 33 Anil Kumar v. State by the IO after returning from the hospital. PW10 Ct. Dev Kumar also stated that no eye witness was present at the spot. He, thus, appears to be a planted witness.
3.2 It is further submitted that site plan prepared by the IO is inconsistent with the version of prosecution regarding place of accident, location of bus and location of dead body. PW9 Vimal Mathur, brother of deceased received only simple injury as stated in his MLC, which is inconsistent with the prosecution story that the appellant was driving the bus at a very high speed. PW10 Ct. Dev Kumar mentioned that one helmet was found at the spot but the same was not produced before the court. It was also not investigated whether the deceased and the injured were wearing helmets or not at the time of incident. It is further submitted that in his testimony, PW9 Vimal Mathur has not stated that appellant was driving the offending bus in a rash and negligent manner.
3.3 It is further submitted that impugned judgment is based on surmises and conjectures. There are material contradictions in the evidence of prosecution witnesses with regard to accident. Impugned judgment fails to take into account that the guidelines given by the Hon'ble High Court of Delhi in Abdul Subhan v. State (NCT of Delhi), ILR (2006) II Delhi 882, have not been followed while conducting the CA No. 158/2018 25.09.2019 Page 8 of 33 Anil Kumar v. State investigation. There is no evidence of any eye witness despite the fact that the place of accident is a crowded place where many public witnesses were available. The impugned judgment wrongly presumed that it was the duty of the appellant to slow down at the time when he was crossing the turning point of Panchkuian Road. The guilt of appellant has been wrongly presumed merely on the ground that the accused had temporarily absconded after the accident. It is settled law that absconding from the shackles of law can also be a sign of innocence of the accused as held in Matru v. State of UP, AIR 1971 SC 1050.
4.1 Shri Uday Bedi, Ld. Counsel for appellant has generally argued on the lines of the appeal. He has contended that as per the site plan, the bus in question was going on the outer circle and was to proceed straight. However, it was deceased Kamal Mathur and PW9 Vimal Mathur, who were coming from Panchkuian Road and had to take a left turn on entering the outer circle. The deceased took a turn at high speed due to which, a long arch was made and he came in front of the bus. The deceased ought to have waited for the clear passage before entering the outer circle. It was due to negligence of the deceased himself that the accident took place. He has submitted that even as per Rules of the Road Regulations, 1989, a driver entering a main road from a side CA No. 158/2018 25.09.2019 Page 9 of 33 Anil Kumar v. State road, has to wait for the traffic on the main road to pass. Further, driver of a motor vehicle is to give way to all the traffic approaching the inter-section on his right hand. He has submitted that in the instant case, the bus was coming from the right side of the deceased and was to go straight along the outer circle, whereas the deceased was to enter the outer circle after taking a left turn. Thus, he was supposed to wait for any traffic to pass on the outer circle and take a turn after the road was clear.
4.2 Ld. counsel for the appellant has further argued that proper investigation has not been done regarding the traffic signal at the site of incident. Actually, the deceased had jumped the red light while entering the outer circle from Panchkuian Road due to which he suddenly came in front of the bus and was hit by the bus. He has submitted that during his cross- examination, PW9 Vimal Mathur stated that probably there was a traffic signal at Panchkuian Road and outer circle T-point. During his cross-examination, PW10 Baldev Kumar stated that when he reached the spot, the traffic signals were functioning. However, PW13 SI Joginder Singh, during his cross- examination, stated that he did not notice whether there was any signal point on the Panchkuian Road or not. He further stated that there was no signal point at the outer circle near the spot. PW14 SI Raj Kumar, during his cross-examination, denied CA No. 158/2018 25.09.2019 Page 10 of 33 Anil Kumar v. State that traffic signal was working at the relevant time and the scooter being driven by the deceased jumped the red signal meant for the traffic coming from Panchkuian side and all of sudden came in front of bus in question. Later, he admitted that there is a traffic signal at the T-point of Panchkuan Road and outer circle of Connaught Place. He further stated that he does not remember whether the signals at the said junction was working or not at that time. Ld. Counsel has contended that the aforesaid evidence shows that no clarity has been brought on record by the prosecution regarding the functioning of the traffic lights which was a very crucial part of investigation.
4.3 Ld. counsel for appellant has further contended that PW2 Rakesh, who is an eye witness, has not supported the prosecution case. According to him, the driver of another bus immediately over took their bus and due to his negligence, their bus struck against the scooter. Even during his cross- examination by the Ld. APP, nothing in favour of the prosecution could be elicited. He has further argued that according to PW9 Vimal Mathur, the bus hit their scooter from behind. Thus, he could not have stated about the speed of the bus. Even if it is considered that the bus was at a high speed, it does not per-se amount to rashness and negligence. It has also been argued that one of the eye witness namely, Shri Ajit Rai, cited in the list of witnesses, could not be examined and thus, CA No. 158/2018 25.09.2019 Page 11 of 33 Anil Kumar v. State the complete relevant evidence has not been brought on record by the prosecution. He has relied upon State of Karnataka v. Satish, (1998) 8 SCC 493, to contend that merely because a vehicle is being driven at high speed does not mean that it was being driven rashly or negligently. He has also referred to Abdul Subhan v. State (NCT of Delhi), ILR (2006) II Delhi 882, to contend that investigation with regard to working of traffic light at the spot was material and in the absence of the same, the accused could not have been convicted. Ld. Counsel has also argued that merely because accused went away from the spot does not mean that he was guilty. He submitted that many times the driver of a vehicle has to run away from the spot of accident, in order to escape the wrath of charged up public. He has referred to Matru v. State of U.P., 1971 (2) SCC 75, wherein it was held that mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. He has, thus, submitted that prosecution has failed to prove its case against the accused beyond a reasonable doubt.
5.1 Mr. Ravindra Kumar, Ld. APP has contended that the fact that accused was driving the bus in question and that it had hit the scooter, causing death of Kamal Matur is not disputed. PW9 Vimal Mathur has categorically stated about the bus of the accused coming from behind and hitting the scooter being driven by his brother Kamal Mathur. He submitted that CA No. 158/2018 25.09.2019 Page 12 of 33 Anil Kumar v. State the fact that scooter was found struck in between the front wheels of the bus itself shows that accident had taken place due to rashness and negligence on the part of the accused. He has, thus, submitted that the prosecution has proved its case against the accused beyond any reasonable doubt. Therefore, the appeal may be dismissed.
6.1 I have heard Shri Uday Bedi, Ld. Counsel for appellant, Shri Ravindra Kumar, Ld. APP and also perused the record.
7.1 In this case, the following points were required to be determined:-
(A) Charge u/s 279 IPC
(i) Whether or not, on 24.09.2019, at about 8.15 AM, at traffic signal on the T-point of Panchkuian Road and outer circle of Connaught Place, appellant Anil Kumar was driving bus bearing registration no. DL-PB-1486?,
(ii) If so, whether or not, appellant Anil Kumar was driving the said bus in a manner so rash or negligent as to endanger human life or likely to cause hurt or injury to any other person?CA No. 158/2018 25.09.2019 Page 13 of 33
Anil Kumar v. State (B) Charge u/s 337 IPC
(i) Whether or not, on the aforesaid date, time and place, appellant Anil Kumar has caused hurt to PW9 Vimal Mathur?,
(ii) If so, whether or not, the said hurt was caused by appellant Anil Kumar by doing an act i.e. driving bus bearing registration no. DL-PB-1486, so rashly or negligently as to endanger human life, or the personal safety of others?
(C) Charge u/s 304A IPC
(i) Whether or not, on the aforesaid date, time and place, appellant Anil Kumar has caused death of Kamal Mathur?
(ii) If so, whether or not, the said death was caused by appellant Anil Kumar by doing a rash or negligent act not amounting to culpable homicide?
7.2 In this case, it is not disputed that at the relevant time and place, the appellant was driving bus bearing no. DL-
CA No. 158/2018 25.09.2019 Page 14 of 33Anil Kumar v. State 1PB-1486 and there was an accident between the said bus and scooter bearing no. DL-4SW-9806, LML Vespa, in which Kamal Mathur died and Vimal Mathur sustained injuries. It is also not disputed that the cause of death of deceased Kamal Mathur was opined to be 'Severe cranio cerebral damage as a result of blunt force impact'.
8.1 It is pertinent to refer to the statements of PW9 Vimal Mathur, PW2 Rakesh, PW6 Ct. Praveen, PW14 SI Raj Kumar, PW1 Ct. Dev Kumar and PW13 SI Joginder Singh to see whether there was any rashness or negligence on the part of appellant. PW9 Vimal Mathur has testified that on 24.09.2009, at about 7.30 am, he along with his brother Kamal Mathur were going to Gandhi Nagar on their scooter, make LML Vespa, for purchasing garments for their business. The scooter was being driven by his brother Kamal Mathur. At about 8.05-8.10 AM, when his brother Kamal Mathur took a turn towards outer circle, Connaught Place from Panchkuain Road, one blue line bus bearing no. DL-PB-1486 came from outer circle at a very high speed and hit against their scooter from behind. Due to impact, he lost consciousness for some moment. When he regained consciousness, he found himself sitting on the road. His brother was lying ahead of scooter and the scooter was also lying on the road. The said blue line bus was also stationed ahead of his brother. He saw that driver of the bus i.e. accused CA No. 158/2018 25.09.2019 Page 15 of 33 Anil Kumar v. State got down from the bus. After some time, police arrived at the spot. When he was being taken to Dr. RML Hospital by the police, he asked them to take care of his brother, who was lying unconscious. Upon this, police told him that his brother was okay and since he has received more injuries, he was being taken to the hospital. In the hospital, he came to know that his brother has expired in the accident. Police recorded his statement, Ex.PW9/A. He further deposed that the accused was driving the bus at a very high speed and hit against their scooter at the traffic signal. His neck bone was fractured in the accident and he also received other injuries. He identified the offending bus and the place of occurrence in the photographs, Mark X1 to Mark X9.
8.2 During his cross-examination, PW9 Vimal Mathur stated that probably, there was a traffic signal at Panchkuain Road and Outer Circle T-point. No vehicle was moving adjacent to their scooter. He did not remember as to how far they had reached from the T-point when the accident occurred. Before accident, he was able to glance at the bus in the side mirror of the scooter but could not say the distance between the scooter and the bus. He did not remember as to when he saw the bus, whether it was stationed on the left side, right side or the middle of the road. He did not remember this fact as he noticed that one person was taking out purse from the pocket of pant of CA No. 158/2018 25.09.2019 Page 16 of 33 Anil Kumar v. State his brother. Police arrived at the spot within 5-10 minutes after the accident. His statement was recorded after 1-2 hours of the accident but he does not remember the exact time. There was crowd at the spot when police was shifting him to the hospital. Police met him only once for the purpose of investigation. He denied that there was red traffic signal for them when they reached T-point. He also denied that his brother jumped the red traffic signal and suddenly came in front of the bus. He further denied that bus was not moving at a high speed or that it was moving at normal speed or that he had no opportunity to see the speed of bus. He further stated that he does not remember whether other vehicles were also moving on the outer circle apart from the offending bus or not. He denied that accident occurred due to the fault of his brother since he jumped the traffic signal and came in front of the bus all of a sudden. He further denied that he was concocting a false story or that accused was not negligence while driving the bus or that he was deposing falsely.
8.3 PW2 Rakesh deposed that on 24.02.2002, he was working as conductor with bus no. DL-1PB-1486, on route no.500. The owner of the bus was Smt. Suhag Panwar and the bus was being driven by accused Anil Kumar. When the bus reached outer circle ahead of Shivaji Stadium, the driver of another bus immediately overtook their bus and due to his CA No. 158/2018 25.09.2019 Page 17 of 33 Anil Kumar v. State negligence their bus struck against the scooter and caused accident. Ld. PP requested to cross-examine the said witness, as he was resiling from his earlier statement given to the police, which was allowed. PW2 Rakesh denied that driver of the bus was driving the bus in rash and negligent manner and hit against the scooter.
8.4 PW14 SI Raj Kumar is the IO of the case, who testified that on 24.09.2009, on receipt of DD no.6A, he along with Ct. Dev Kumar went to the spot. On reaching there, he found one bus bearing no. DL-1PB-1486 and scooter bearing no. DL-4SW-9806 in accidental condition. The scooter was held between the front tyres of the bus. One dead body was lying on the spot. The name of the deceased was later revealed as Kamal Mathur. Injured Vimal Mathur was already removed to Dr. RML Hospital. Ct. Praveen also reached there. He called the crime team and got the photography done from various angles. He left Ct. Dev Kumar at the spot and took the dead body to Dr. RML Hospital along with Ct. Praveen. He recorded the statement, Ex.PW9/A of injured Vimal Mathur. He prepared tehrir, Ex.PW14/A and handed over the same to Ct. Praveen for registration of FIR. After registration of FIR, Ct. Praveen handed over to him copy of FIR and original tehrir. He prepared site plan, Ex.PW14/B at the instance of one eye witness Ajit Rai . He seized the offending bus and the scooter vide memo, Ex.PW10A CA No. 158/2018 25.09.2019 Page 18 of 33 Anil Kumar v. State and Ex.PW10/B respectively. He also seized helmet vide memo, Ex.PW10/C, permit vide memo, Ex.PW6/B, RC of the bus vide memo, Ex.PW6/D, driver badge vide memo, Ex.PW6/E and DL vide memo, Ex.PW6/F. He further deposed that post-mortem report of dead body was obtained from the hospital. The vehicle was got mechanically examined. The accused was arrested vide arrest memo and personal search memo, Ex.PW4/B and Ex.PW4/A respectively. After completion of investigation, he filed the challan.
8.5 During his cross-examination, PW14 SI Raj Kumar stated that when he reached the spot, the dead body of the deceased was lying behind the bus at the left side. Eye witness Ajit Rai met him at the spot after his return from the hospital. He did not obtain signature of the eye witness Ajit Rai on the site plan prepared by him. He admitted that there is a traffic signal on the T-point of Panchkuian Road and outer circle of Connaught Place. He could not remember if the the traffic signals were working at the relevant time. The accident had taken place just at the distance of 8-20 steps from the traffic signal just towards left turn. Two persons were riding on the scooter in question. He further stated that he remained at the spot for about one hour. During this period, no eye witness was found at the spot. There was no passenger in the bus in question. Statement of the complainant was recorded in the CA No. 158/2018 25.09.2019 Page 19 of 33 Anil Kumar v. State hospital at about 9.00-9.30 AM. He further stated that he did not call the complainant to join the investigation at any stage after recording his statement. He admitted that during investigation, he did not investigate the aspect of working or non working of the traffic signal at the time of accident. He also denied that traffic signal was working at the relevant time and the scooter in question being driven by the deceased jumped the red signal of the traffic and all of sudden came in front of the bus in question. He further denied that he deliberately did not mention the factum of working of red light signal on the day of incident and that he intentionally did not investigate this fact. He further denied that there was no negligence on the part of the accused and he has been falsely implicated or that the accident has taken place due to the negligence of the deceased who was riding the scooter without caring for the traffic signal.
8.6 P10 Ct. Dev Kumar has testified that on 24.09.2009, on receipt of DD no.6A, he along with ASI Raj Kumar reached T- point of Panchkuian and outer circle where one blue line bus bearing no. DL-1PB 1486 was found stationed. One scooter bearing no. DL-4SW 9806 was found lying between the front wheels of the bus. Dead body of one person was also lying between the tyres of the bus. They came to know that other injured person has already been shifted to Dr. RML Hospital by the PCR. ASI Raj Kumar called the crime team. Crime team CA No. 158/2018 25.09.2019 Page 20 of 33 Anil Kumar v. State officials took photographs of the spot. ASI Raj Kumar left him at the spot and took the dead body to Dr. RML Hospital along with Ct. Praveen. After some time, he came back and took into possession the bus and the scooter vide memos, Ex.PW10/A and Ex.PW10/B respectively and the helmet vide memo, Ex.PW10/C. 8.7 During his cross-examination, PW10 Ct. Dev Kumar stated that they received DD no.6A at about 8.15 AM and they reached the spot within 10-15 minutes. When they reached the spot, the traffic signals were functioning. The bus was stationed on the left side of the road at a distance about 15-20 yards from the T-point of Panchkuian Road and other circle. No eye witness met them at the spot till the time they remained at the spot. No passenger was there in the bus when the reached the spot. They finally left the spot at about 1.00 PM.
8.8 PW6 Ct. Praveen deposed that on 24.09.2009, he was on patrolling duty and at about 8.30 PM when he reached near Panchkuain Road, outer circle, Connaught Place, he saw one blue line bus bearing no. DL-1PB 1486 of route 500, and scooter bearing no. DL4SW 9806, in accidental condition. The scooter was entangled between the tyres of the bus. One person was lying dead on the road. ASI Raj Kumar and Ct. Dev Kumar were present at the spot. ASI Raj Kumar called the crime team. Crime team took photographs of the spot. He along with ASI Raj CA No. 158/2018 25.09.2019 Page 21 of 33 Anil Kumar v. State Kumar took the dead body to Dr. RML Hospital leaving Ct. Dev Kumar at the spot. Injured Vimal Kumar Mathur was also admitted in the hospital. ASI Raj Kumar recorded the statement of the injured. ASI Raj Kumar prepared rukka and handed over the same to him for registration of FIR. After registration of FIR, he handed over copy of FIR to ASI Raj Kumar. Post-mortem of dead body was conducted at Lady Hardinge Medical College. ASI Raj Kumar arrested accused vide arrest memo and personal search memo, Ex.PW4/B and Ex.PW6/A respectively. ASI Raj Kumar seized the permit of the bus vide memo, Ex.PW6/B, insurance vide memo, Ex.PW6/C, RC vide memo, Ex.PW6/D, driver badge vide memo, Ex.PW6/E and DL vide memo, Ex.PW6/F. This witness was not cross-examined.
8.9 PW 13 SI Joginder Singh, during his cross- examination, stated that he did not notice whether there was any signal point on the panchkuian Road or not. There was no signal point at the outer circle near the spot.
9.1 There is no dispute that the accident had taken place on the outer circle, Connaught Place at the point where Panchkuian Road meets the outer circle. It is also not disputed that the bus was coming from Shivaji Stadium side and was going straight on the outer circle. It was deceased Kamal Mathur, who was coming, along with PW9 Vimal Mathur from CA No. 158/2018 25.09.2019 Page 22 of 33 Anil Kumar v. State Panchkuian Road and had to enter the outer circle. As per the site plan, Ex.PW14/B, the accident has taken place on the left side of the T junction of Panchkuian Road and outer circle, Connaught Place. As per rule 8 of the Rules of the Road Regulations, 1989, the driver of a motor vehicle shall slow down when approaching a road junction, and he shall not enter any such junction until he has become aware that he may do so without endangering the safety of persons thereon. Thus, while approaching the T junction, both the appellant and the deceased were required to slow down. Further, as per rule 9 of the said Rules, the driver of a motor vehicle on entering a road inter-section/junction is required to give way to all the traffic approaching the inter-section/junction on his right hand. Thus, the deceased was required to give way to the traffic coming on the outer circle on his right hand. Further, as per rule 3 of the said Rules, the driver of a motor vehicle, when turning to the left is to drive as close as may be to the left hand side of the road, from which he is making the turn and of the road, which he is entering. This precaution was also required to be taken by the deceased while entering the outer circle, Connaught Place. It appears to be quite possible that while entering the outer circle, the deceased came in front of the bus.
9.2 Further, no clear evidence has been led by the prosecution with regard to the functioning of the signal light at CA No. 158/2018 25.09.2019 Page 23 of 33 Anil Kumar v. State the inter-section of Panchkuian Road and outer circle. Ld. APP has argued that at that point, there is simultaneously green light for both the traffic coming on the outer circle as well as for the traffic which is to enter the outer circle from Panchkuian Road. No evidence has been led by the prosecution to this effect. PW9 Vimal Mathur stated that probably there was a traffic signal at Panchkuian Road and outer circle T-point. During his cross- examination, PW10 Baldev Kumar stated that when he reached the spot, the traffic signals were functioning. PW13 SI Joginder Singh, during his cross-examination, stated that he did not notice whether there was any signal point on the Panchkuian Road or not. He further stated that there was no signal point at the outer circle near the spot. On the other hand, PW14 SI Raj Kumar, during his cross-examination, denied that traffic signal was working at relevant time and the scooter being driven by the deceased jumped the red signal meant for the traffic coming from Panchkuian side and all of sudden came in front of bus in question. Later he admitted that there is a traffic signal at the T- point of Panchkuan Road and outer circle of Connaught Place. He further stated that he does not remember whether the signal at the said junction was working or not at that time. Even if the argument of Ld. APP is believed, it was the duty of deceased to give way to the traffic approaching the inter-section on his right side and to keep his scooter as close to the left side as possible. There is also no investigation with regard to the skid marks of CA No. 158/2018 25.09.2019 Page 24 of 33 Anil Kumar v. State the bus or the scooter. The investigation with regard to traffic signal, skid mark etc. is lacking. It is well established that it is for the prosecution to establish its case beyond a reasonable doubt. In this regard, reference can be made to Abdul Subhan v. State (NCT of Delhi), ILR (2006) II Delhi 882, wherein the Hon'ble High Court of Delhi held, "7. At the outset I would like to observe that I am appalled by the investigation, or shall I say the lack of it, that was carried out in this particular case. I may also note that I am of the view that the testimony of PW 3 head constable Munim Dutt, even if taken to be entirely true only leads to the conclusion that the vehicle driven by the present petitioner was being driven at a high-speed. This in itself does not mean that the petitioner was driving the vehicle rashly or negligently. Furthermore, the testimony of PW 3 leads to ambiguities and doubts and, I am afraid, my conscience does not permit me to convict a person under Section 279/304A IPC on the nature and degree of evidence that is on record in this case. There are so many questions which remain unanswered. What is meant by high-speed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the motorcyclist who unfortunately lost his life in this incident. Was CA No. 158/2018 25.09.2019 Page 25 of 33 Anil Kumar v. State the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura road? Or, was he on Mathura Road turning towards Sher Shah road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve into the path of the petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out and the quality of investigation carried out is quite unsatisfactory. It is well known in criminal cases that it is for the prosecution to establish its case beyond reasonable doubt. Unfortunately, in the present case I find that the prosecution has failed to achieve this standard. On the other hand there are grave doubts that the petitioner is at all guilty of the offences for which he has been convicted and sentenced."
9.3 Further, PW2 Rakesh, who was also in the bus and is an eye witness, has given a different version from that of PW9 Vimal Mathur. As per him, when the bus reached ahead of Shivaji Stadium, another bus immediately overtook their bus, due to which their bus struck against the scooter. This witness was cross-examined by the APP but nothing in favour of prosecution came out. It is also pertinent to note that both PW2 Rakesh and PW9 Vimal Mathur were sitting on the bus and scooter respectively which were involved in the accident. The only other independent witness namely, Ajit Rai, cited in the list CA No. 158/2018 25.09.2019 Page 26 of 33 Anil Kumar v. State of witnesses, could not be examined, since he had expired. Thus, the complete evidence could not be brought on record.
9.4 It is also well settled that merely because a driver of a vehicle runs away from the spot, it does not mean that he is guilty. In this regard, reference can be made to Matru v. State of U.P., 1971 (2) SCC 75, wherein it was held, "The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime; such is the instinct of self-Preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of the guilt of the 'accused. In the present case the appellant was with Ram Chandra till the F.I.R. was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be CA No. 158/2018 25.09.2019 Page 27 of 33 Anil Kumar v. State necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."
9.5 It is well settled that a higher degree of negligence has always been demanded in order to establish a criminal offence, than is sufficient to create civil liability. In order to hold the existence of criminal rashness or criminal negligence, it shall have to be found out that the rashness was of such degree as to amount to taking a hazard knowing that the hazard was of such a degree that an injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing of such an act with recklessness and indifference to the consequences. Where negligence is an essential ingredient of an offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment. In Rajesh Kumar v. State, 2012 SCC OnLine Del 2608, the Hon'ble High Court of Delhi held that the negligent act of the accused must be culpable and gross and not merely based on an error on judgment or the one which arises because of lack of intelligence. In Ras Bihari Singh vs. State (NCT of Delhi), 2017 SCC OnLine Del 12290, the Hon'ble High Court of Delhi held that criminal rashness means hazarding a dangerous or wanton act with the knowledge that it may cause injury but done without any intention to cause injury. The criminality lies in such a case in CA No. 158/2018 25.09.2019 Page 28 of 33 Anil Kumar v. State running the risk of doing such an act with recklessness or indifference as to the consequences.
9.6 In Mohan Shyam Vs. The State (NCT of Delhi), 2012 SCC OnLine Del 3053, the Hon'ble High Court of Delhi held, "13. In order to prove the act of negligence and rashness, it must be shown that the act was done without proper regard to its consequences and without any precautions taken for ensuring the safety of others. But, from the material available on record, it is nowhere seen that the truck was being driven in a wanton fashion or by flouting any traffic rules or in a reckless manner. A heavy vehicle like truck or a bus cannot be as easily maneuvered or brought to a halt within fraction of seconds. Maintaining a safe distance from such vehicles and giving proper indicators is also a very important rule of driving which was unfortunately neglected in the present case. If any vehicle comes in front of such heavy vehicles without any prior warning, then it may not be possible for such driver to avoid the collision. Had the truck been driven in a wrong lane or in an unpredictable fashion, it could be presumed that the driver was negligent in its driving. But in the present case, the truck was being driven in a manner which was in confirmation with the traffic rules and its own size. Taking a CA No. 158/2018 25.09.2019 Page 29 of 33 Anil Kumar v. State sudden right turn without any warning is in fact an indication that the deceased did not take the precaution that is required for the safety of oneself as well as the fellow commuters on the road.
14. In my opinion, the reckless manner in which the deceased was riding the motorcycle has been underplayed by terming it contributory negligence, when in fact the petitioner did not do a single thing that can be presumed to be rash or negligent. It is the duty of Courts to deal with each and every case with an open mind and arrive at a conclusion after due consideration of all the facts and circumstances. Every person is bound to anticipate the dangers normally expected on the road and not challenge his own safety by driving in the dangerous fashion as evidenced in the present case. It is not that in every case of road accident, the driver of a commercial or heavy vehicle shall be presumed to be guilty of rash and negligent driving and without any iota of evidence against him' he will be deemed guilty from the start of the trial. In the absence of any material on the record, no presumption of "rashness" could be drawn by invoking the maxim "res ipsa loquitur"." (emphasis supplied) 9.7 In Rajender Singh Vs State (Govt. NCT of Delhi), 2012 SCC OnLine Del 3694, the Hon'ble High Court of Delhi held, "10. Furthermore, it may be noted that PW6 in his testimony has CA No. 158/2018 25.09.2019 Page 30 of 33 Anil Kumar v. State stated that the bus driver hit the lady while she was crossing the road and the driver ran away due to the green light. Thus there is a very strong possibility of the lady crossing the road negligently when the traffic signal was green due to which the accident occurred. Site plan Ex. PW6/B shows that there is a foot over bridge and despite the same the deceased was crossing the road and not using the bridge made for pedestrians to cross the road, while signal is green or during heavy vehicular traffic on the road. PW 6 has also deposed that he noted the bus number after the accident had taken place and that he was at about 300- 400 yards away from the bus stop when the accident took place.
11. It is not the case of prosecution that the deceased was standing at the bus stop and the Petitioner driving his bus rashly and negligently ran over a lady standing at bus stop. The place of accident is a busy road where the traffic movement is very high and the deceased was crossing the road when there was green light for the vehicles and not using the foot over bridge is an essential aspect which needs to be looked into. No doubt the driver of a heavy or any vehicle has to be very careful and diligent while driving the vehicle on roads. But in case a person crosses the road when the traffic signal is green for vehicles to move the negligence on the part of pedestrian can not make the driver/accused person wholly liable for the accident. The deceased or the injured is also liable for the negligence. In such CA No. 158/2018 25.09.2019 Page 31 of 33 Anil Kumar v. State circumstances the offence/criminal negligence under Sections 279/304A cannot be attributed to the driver of the vehicle." (emphasis supplied) 9.8 It is also well settled that the mere fact that accident had taken place and some persons have been injured or died cannot lead to the conclusion that the driver was rash or negligent. The prosecution has to establish the rash or negligent driving of the appellant like any other fact to be establish in a criminal case. In this regard reference can be made to Hira Lal vs. State of NCT of Delhi (Criminal Revision Petition No.86/2012, decided by Hon'ble High Court of Delhi on 18.05.2012) and T. Ravi vs. State of Kerala, 2015 SCC OnLine Ker 38773.
9.9 In view of the legal position, as discussed above, and from the facts and circumstances of this case, a view is possible that the deceased while taking a left turn from the T junction of Panchkuian Road and Outer Circle, Connaught Place, suddenly came in front of the bus of the accused. It is well settled that if two views are possible, the view in favour of the accused has to be accepted. In this regard, reference can be made to Harender Narain Singh vs. State of Bihar, AIR 1991 SC 1842.
10.1 In view of the aforesaid discussion, it is considered CA No. 158/2018 25.09.2019 Page 32 of 33 Anil Kumar v. State that prosecution has failed to prove its case against applicant/accused Anil Kumar beyond a reasonable doubt. Accordingly, the appeal is allowed and judgment dated 01.10.2018 and order on sentence dated 11.10.2018 are set aside. Appellant/accused Anil Kumar is acquitted of the charges framed against him.
11.1 His bail bonds are cancelled and his surety is discharged. He has already furnished bail bond in terms of section 437A Cr.P.C., which shall remain in force as per law.
12.1 A copy of the judgment, along with the trial court record, be sent to the Ld. Trial Court.
13.1 Appeal file be consigned to record room.
ANNOUNCED IN THE OPEN COURT (Rakesh Syal)
Today i.e. 25.09.2019 ASJ-03/NDD/PHC/New Delhi
25.09.2019
CA No. 158/2018 25.09.2019 Page 33 of 33
Anil Kumar v. State