Delhi District Court
Fir No. 80/10 State vs . Dilbahar 1 Of 26 on 27 January, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE,
WEST-05, TIS HAZARI COURTS, DELHI,
PRESIDED BY- SHUBHAM DEVADIYA
FIR No. : 80/2010
P.S. : Anand Parbat
Cr. Case No. 60205/2016
CNR No. DLWT02-000097-2011
JUDGMENT
(a) Sr. No. of the case 60205/2016
(b) Date of offence 10.10.2010
(c) Complainant Bhoj Kumar
(d) Accused persons Dilbahar,
S/o Sh. Ibrahim
R/o House No. A-873, Madipur, Delhi.
(e) Offences U/s 279/304A/471 IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquittal
(h) Date of institution 17.03.2011
(i) Date of judgment 27.01.2023
BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly put, the facts of the case as per Prosecution are that on 10.10.2010 at about 4:10 P.M. at New Rohtak Road, Opposite BSES Office, Than Singh Nagar, accused was driving the motorcycle No. SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2023.01.27 15:36:17 +0530 FIR No. 80/10 State Vs. Dilbahar 1 of 26 PS Anand Parbat UP79C-3184 on public road in a manner so rash and negligent as to endanger human life and safety or to be likely to cause hurt or injury to any other persons. That on the abovementioned date, time and place accused have caused the death of victim Kali Ram Jain by driving the above vehicle in a rash and negligent manner not amounting to culpable homicide. That on the abovesaid date, time and place accused was fraudulently using as genuine the RC of said vehicle which accused knew or had reason to believe the same to be a forged document. FIR was registered under Section 279/304A/471 IPC. After completion of investigation chargesheet was filed in the Court. The cognizance of the offence was taken and summon was issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC was supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 279/304A/471 IPC on 16.09.2011 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the Prosecution evidence.
3. In Prosecution evidence, the Prosecution has examined 18 witnesses. The death summary of deceased Kali Ram prepared by Dr. Rehmat Ali vide Ex.AD-1 and postmortem report of deceased Kali Ram prepared by Dr. G.V. Garudadhari vide Ex.AD-2 were admitted under Section 294 CrPC. The testimony of the witnesses in a nutshell are as below:
FIR No. 80/10 State Vs. Dilbahar 2 of 26
PS Anand Parbat
4. PW1 Sh. Bhoj Kumar. He deposed that he does not remember the exact date of incident but the incident took place in October 2010 and on that day, he was standing near his house and he saw a vehicular collusion had taken place and one person had been hit. He deposed that he came to know when the body of victim was lifted that he was Sh. Kali Ram Jain (deceased) whom he already knew. He deposed that he did not see the vehicular collusion and he reached at the spot after a couple of minutes when the collusion took place as he heard the noise and he saw crowd gathered at the shop of son of Sh. Kali Ram Jain and informed his son. He deposed that they took him to Jeevanmala Hospital and he was given first aid and by the time, his other relatives also reached there and the victim was shifted to Maharaja Agrasen Hospital. He deposed that he came back about 12:00 midnight and came to know on the next day that the same victim had expired. He further deposed that at the spot he had seen 02 motorcycles, one was of UP number and other was of Delhi number and one motorcycle was lying on the road and the other was parked on the road. He deposed that both the drivers of the vehicle were claiming that the other person had hit him.
During cross examination by Ld. APP for the State, he deposed that he is graduate and have done B.A. He deposed that he had seen Sh. Kali Charan Jain before the incident while he was crossing the road at about 4:00 P.M. He denied the suggestion that he had seen motorcycle coming in high speed or in negligent manner that hit the victim. He denied the suggestion that he had noted down the number of the motorcycle as UP79C-3184. He stated that he had reached the spot after the victim has already been hit. He denied the suggestion that the FIR No. 80/10 State Vs. Dilbahar 3 of 26 PS Anand Parbat driver of offending motorcycle had been apprehended by the people when he tried to flee away. He voluntarily stated that both the drivers of two motorcycles could not flee away as they were being stopped by each other and then they were apprehended by the public persons gathered at the spot. He denied the suggestion that the incident took place due to rashness or negligence of the driver of the said motorcycle. He voluntarily stated that he had never seen the incident taking place and thus cannot say as to who was at fault. He further deposed that he was made to sign some documents at the PS. He deposed that he had not read those documents but the police officials had told him what was write on them. He deposed that he informed them that he had not seen the incident. He admitted that his signatures appears on documents Mark A. He deposed that he is not aware about the contents of same as the same was written by police officials. He denied the suggestion that he is deliberately not disclosing the true facts in order to save the accused. He denied the suggestion that he had signed the documents after reading and understanding the same.
5. PW2 Sh. Rohit Negi: He deposed that on 10.10.2010 he was coming on his motorcycle bearing registration No. DL3SAY-6693 from his job and he was at New Rohtak Road when he saw one old man crossing the road and stated that upon seeing him, he stopped his motorcycle. He deposed that one person came from left side and hit the said old man. He deposed that the person was trying to flee away but he was apprehended by the public and the old man had gone unconscious and was identified by one of his known person. He deposed that the motorcycle which had hit the victim was having registration number of UP and its number was 3184 FIR No. 80/10 State Vs. Dilbahar 4 of 26 PS Anand Parbat and it was a pulsar motorcycle of black colour and stated that the motorcycle was being driven at a speed. He deposed that the PCR reached at the spot and accused was handed over to them and he narrated the incident to them. He deposed that he was taken to the PS Anand Parbat where his statement was recorded.
The said witness was duly cross-examined. The said witness during his cross examination deposed that the speed of the motorcycle of the accused might be 30-35 km/h and that there was no red light signal near the place of incident. He denied the suggestion that the incident had not taken place from the vehicle bearing registration No. UP79C-3184. He denied the suggestion that incident had not taken place due to the negligence of accused.
6. PW3 ASI Sahab Singh. He deposed that on 10.10.2010 he was posted at PS Anand Parbat as HC and on that day he was on duty at QRT as Incharge and at about 4:15 P.M., he received information through wireless regarding accident at New Rohtak Road opposite BSES Office, Than Singh Nagar, there they found one motorcycle bearing registration No. UP79C-3184 (make Pulsar). He deposed that public persons who were present there produced one person namely Dilbahar and told him that he was driving the abovesaid motorcycle. He deposed that public persons told him that the injured has already been taken to the hospital. He deposed that in the meantime, IO SI Jora Singh reached at the spot and he handed over the accused Dilbahar and the offending vehicle, i.e., motorcycle to SI Jora Singh and thereafter, IO seized the offending vehicle, i.e., motorcycle No. UP79C-3184 vide seizure memo Ex.PW3/A. FIR No. 80/10 State Vs. Dilbahar 5 of 26 PS Anand Parbat He deposed that IO also seized the relevant documents of offending vehicle vide memo Ex.PW3/B and thereafter, accused was arrested and personally searched vide memo Ex.PW3/C and Ex.PW3/D and in this regard IO recorded his statement.
The said witness was duly cross-examined by the learned defence counsel.
7. PW4 ASI Yogender Singh. He deposed that on 10.10.2010, he was posted at PS Anand Parbat as Constable and on that day, the DD No. 15A regarding accident was marked to SI Jora Singh for investigation and thereafter, he alongwith SI Jora Singh reached at the spot i.e. in front of DSIDC office, Than Singh Nagr, Anand Parbat, Delhi, there they met HC Sahab Singh and some other police officials alongwith public persons and thereafter, IO handed over the motorcycle bearing registration No. UP- 79C alongwith the accused to him. He deposed that he does not remember the entire number of the motorcycle. He deposed that after that SI Jora Singh went to the hospital and after sometime, SI Jora Singh returned back at the spot alongwith MLC of the injured and thereafter, IO prepared rukka and handed over to him for registration of FIR. He deposed that accordingly, he left the spot and went to PS Anand Parbat for registration of FIR and after getting FIR registered, he returned back to the spot and handed over the FIR to IO and thereafter, they all returned back to the PS. During cross examination by Ld. APP for the State, PW4 admitted that IO recorded his statement. He admitted that the place where accident took place is New Rohtak Road, Opposite BSES office, Than Singh Nagar. He admitted that he had stated in his statement before the FIR No. 80/10 State Vs. Dilbahar 6 of 26 PS Anand Parbat police that the registration number of the motorcycle is UP-79C-3184. He admitted that the abovesaid motorcycle was seized vide seizure memo Ex.PW3/A. He admitted that the RC of the motorcycle i.e. offending vehicle, insurance, pollution and driving license of the accused were seized vide seizure memo Ex.PW3/B. He admitted that the accused was arrested and personally search vide memos Ex.PW3/C and Ex.PW3/D. The said witness was duly cross-examined by the learned defence counsel.
8. PW5 Retd. SI Zora Singh. He deposed that on 10.10.2010 DD No. 55A regarding accident was marked to him for investigation and thereafter, he alongwith Const. Yogender Singh reached at the spot i.e. New Rohtak Road opposite BSES Office, there they met QRT Staff HC Sahab Singh and some other police officials alongwith some public persons and thereafter, HC Sahab Singh handed over accused alongwith the offending vehicle No. UP79C-3184 (black Pulsar bike) to him. He deposed that HC Sahab Singh told him that accused Dilbahar was handed over to him by the public persons present there and injured has been taken to any hospital. He deposed that they came to know at the spot that injured has been taken to Jeewan Mala Hospital for medical examination and thereafter, he handed over accused and the offending vehicle to Const. Yogender and asked him to remain at the spot and thereafter, he went to the hospital and collected the MLC of injured. He deposed that as per the MLC, injured was not fit for statement. He deposed that in the hospital, he met eye witness namely Bhoj Kumar. He deposed that he recorded his statement which is Mark A (now exhibited as Ex.PW5/A) and thereafter, FIR No. 80/10 State Vs. Dilbahar 7 of 26 PS Anand Parbat he returned back to the spot and made endorsement on the rukka and prepared tehreer Ex.PW5/B and handed over the same to Const. Yogender for registration of FIR. He deposed that Const. Yogender went to PS Anand Parbat for registration of FIR and after sometime, Const. Yogender alongwith ASI Ashok Kumar returned back to the spot. He deposed that he handed over all the relevant documents alongwith the case property and accused to ASI Ashok Kumar and thereafter, the further investigation was conducted by ASI Ashok Kumar.
During cross examination, PW5 deposed that they reached at the spot at around 4:35 P.M. HC Sahab Singh alongwith some other police personnel of QRT Staff were present at the spot. He had given tehreer to Const. Yogender at about 7:15 P.M. He remained for around 02 hours at the spot. Const. Yogender came alongwith ASI Ashok Kumar. No statement of any public persons was recorded in his presence. He left the spot immediately after ASI Ashok Kumar came. He denied the suggestion that he had not seized the motorcycle as he was not present at the spot or that he was not part of the investigation. He denied the suggestion that accused is falsely implicated in the present case or that he has deposed falsely.
9. PW6 ASI Rajender Singh. He deposed that on 10.10.2010, he was working as Duty Officer at PS Anand Parbat and on that day at about 04:30 pm, he received information through wireless operator regarding accident and thereafter, he reduced the information into writing as DD No.16A and DD NO.16A was marked to SI Jora Singh for investigation. He deposed that DD No.16A is Ex.PW6/A. He further deposed that he FIR No. 80/10 State Vs. Dilbahar 8 of 26 PS Anand Parbat received a rukka sent by SI Jora Singh through Const. Yogender and on the basis of which he got FIR No. 80/10 registered which is Ex.PW6/B (OSR) and also made endorsement on the rukka which is Ex.PW6/C. The said witness was duly cross-examined by the learned defence counsel.
10. PW7 Sh. Utsav Tiwari. He have brought the relevant record with regard to vehicle bearing registration No. UP79C-3184 and as per their record, the vehicle is Open Tractor and the same is registered in the name of four persons namely Akhilesh Kumar, Rekha Devi, Kamlesh Kumari and Arvind Kumar and the same is registered on 24.10.2008. He deposed that the abovesaid tractor was purchased from M/s Rajpoot Bandhu and the same was purchased on 21.10.2008 and copy of the documents i.e. registration certificate (Form No. 20), Form No. 34 (financer), Form No. 22 (makers form) and Form No. 21 (sale letter / purchase form) are Ex.PW7/A (Colly).
The said witness was duly cross-examined by the learned defence counsel.
11. PW8 HC Sumer Singh. He deposed that on 21.10.2010, he was posted at MACT Cell, Rajouri Garden as Constable and on that day at the request of IO, he went to RTO Office, District Auraiya, U.P. to verify the RC of the motorcycle No UP79C-3184 produced by the accused, Driving License of accused and Form No. 12 (to verify previous records). He deposed that he gave the documents to the dealing clerk for the verification alongwith the request letter from the IO. He deposed that after FIR No. 80/10 State Vs. Dilbahar 9 of 26 PS Anand Parbat verification, the dealing clerk told him that the driving license of the accused is original but the RC which was produced by accused is fake and he further told that the registration number mentioned in the RC is of a tractor registered in the name of some other persons. He deposed that the dealing clerk gave his reply on the backside of the request letter and thereafter, he went to PS Kotwali to gather information with regard to involvement of accused in any other case. He deposed that he came to know that accused is not involved in any other case at PS Kotwali and thereafter, he returned back to Delhi and handed over the request letter having the reply of dealing clerk on the backside of it alongwith the report of the PS Kotwali to IO and in this regard, IO recorded his statement.
The said witness was duly cross-examined by the learned defence counsel.
12. PW9 SI Ajit Singh. He deposed that on 11.10.2010 he got conducted the postmortem examination of deceased Kali Ram at Maulana Azad Medical College & Hospital at the request of the IO of the present case. He deposed that after the postmortem the dead body was handed over to the relatives of deceased vide handing over memo Ex.PW9/A. The said witness was duly cross-examined by the learned defence counsel.
13. PW10 Dr. Ajay Chauhan. He deposed that on 10.10.2010 patient namely Sh. Kaliranjan was brought to casualty with alleged history of RTA and he was examined by Dr. Pradeep vide MLC No. 196/10 under his FIR No. 80/10 State Vs. Dilbahar 10 of 26 PS Anand Parbat supervision. MLC is Ex.PW10/A. The said witness was duly cross-examined by the learned defence counsel.
14. PW11 SI Jai Chand. He deposed that on 11.10.2010 he was posted as Duty Officer who received an information through telephone that one person namely Kali Ram Jain was admitted in the hospital but he died during the treatment. He deposed that he reduced the same in writing vide DD No. 2A and the same was marked to ASI Ashok Kumar for investigation and the copy of DD No. 2A is Ex.PW11/A. The said witness was duly cross-examined by the learned defence counsel.
15. PW12 ASI Phool Singh. He deposed that on 10.10.2010 he was posted as MHC(M) and on that day ASI Ashok Kumar had deposited the case property i.e. motorcycle bearing registration No. UP79C-3184 in the malkhana and he made the entry of same in register No. 19 at serial No. 2002 which is Ex.PW12/A (OSR).
The said witness was duly cross-examined by the learned defence counsel.
16. PW13 Sh. Dilshad Khan. He deposed that on 03.11.2008, he had purchased a motorcycle bearing registration No. UP79C-3184 make Pulsar from Irshad Khan S/o Sh. Masiullah in the amount of Rs.42,000/-. He deposed that Irshad Khan also handed over a receipt to him and in the receipt it was mentioned that Irshad Khan would be responsible for any FIR No. 80/10 State Vs. Dilbahar 11 of 26 PS Anand Parbat happening before 03.11.2008 and he would get transferred the vehicle in his name within 15 days of the sale. He deposed that the said receipt is also signed by 02 witnesses namely Lal Singh and Raj Kumar. He deposed that Irshad Khan deals in sale and purchase of the vehicles. He deposed that he does not know how to drive. He deposed that he gave the abovesaid vehicle to his brother namely Dilbahar. He deposed that on 10.10.2010, his brother called and informed him that an old aged man had met with an accident with one car and when he got up to move, he suddenly hit with the abovesaid motorcycle which was being driven by his brother Dilbahar and after 2-3 days, he came to Delhi. He deposed that he went to PS Anand Parbat and police officials recorded his statement.
The said witness was duly cross-examined by the learned defence counsel.
17. PW14 Sh. Lal Singh Kushwaha. He deposed on the same lines of PW-13. The said witness was duly cross-examined by the learned defence counsel.
18. PW15 Sh. Raj Kumar. He deposed on the same lines of PW-13. The said witness was duly cross-examined by the learned defence counsel.
19. PW16 SI Ashok Kumar. He deposed that on 10.10.2010 further investigation of present case was marked to him. He deposed that he alongwith Const. Yogender reached at the spot. He deposed that he met SI Zora Singh and the complainant at the spot. He deposed that accused Dilbahar was also present at the spot. He deposed that he also found the FIR No. 80/10 State Vs. Dilbahar 12 of 26 PS Anand Parbat offending vehicle i.e. motorcycle bearing registration No. UP79C-3184 at the spot and SI Zora Singh handed over, accused, offending vehicle and relevant documents to him and SI Zora Singh also handed over MLC of injured to him and thereafter, he recorded statement of SI Zora Singh, who left the spot thereafter and thereafter, he prepared site plan at the instance of complainant which is Ex.PW16/A. He deposed that he recorded the statement of the complainant and other witnesses. He deposed that accused produced documents of the abovesaid motorcycle and the same were seized by him vide seizure memo Ex.PW3/B and also seized the motorcycle vide seizure memo Ex.PW3/A and thereafter, he interrogated the accused and after interrogation, accused was arrested and personally searched vide memos Ex.PW3/C and Ex.PW3/D. He deposed that accused was released on police bail and thereafter, he recorded the statement of witnesses. He deposed that case property was deposited into malkhana. He further deposed that on 11.10.2010, DD No. 2A was received with regard to the death of injured namely Kali Ram in Maharaja Agrasen Hospital, Punjabi Bagh and thereafter, he went to Maharaja Agrasen Hospital alongwith ASI Ajit Singh. He further deposed that they took the dead body and got preserved the same in the mortuary of Maulana Azad Medical College and thereafter, postmortem was got conducted and after the postmortem, dead body was handed over to the relatives and thereafter, Section 304A IPC was added. He deposed that thereafter, the file was handed over the MHC(R) by him for sending the same to MACT Cell, Central District.
He deposed on the same lines of PW-13. The said witness was duly cross-examined by the learned defence counsel. He denied the FIR No. 80/10 State Vs. Dilbahar 13 of 26 PS Anand Parbat suggestion that no accident had occurred with vehicle No. UP79C-3184. He denied the suggestion that he did not meet any complainant at the spot. He denied the suggestion that accused was falsely implicated in the present case. He denied the suggestion that all the documents were prepared by him while sitting in PS. He denied the suggestion that complainant is a planted witness.
20. PW17 Retd. SI Mubarak Ali. He deposed that on 18.10.2010, he was posted as ASI at MACT Cell, Central District and on that day, the case FIR No. 80/10 was marked to him and get the offending vehicle mechanically examined and get the documents (DL, Insurance, RC) verified from the RTO, District Oraiya. He deposed that on verification, it was found that the RC is fake which is Ex.PW7/A and thereafter, he added Section 471 in the chargesheet and thereafter, he obtained the postmortem report of the deceased from the Maulana Azad Medical College, Delhi. He deposed that thereafter, he prepared the chargesheet u/s 279/304A/471 IPC against the accused namely Dilbahar and after preparation of chargesheet, the chargesheet was filed before the Court and the accused was produced before the Court.
During cross examination, PW17 deposed that he did not personally visit the RTO office for the verification of documents (DL, RC and Insurance). He admitted that accused submitted the documents regarding purchase of the offending vehicle. He admitted that the name and address of the person who sold the vehicle is mentioned on the documents pertaining to purchase of offending vehicle. He stated that he did not make efforts to trace the person from whom the offending vehicle FIR No. 80/10 State Vs. Dilbahar 14 of 26 PS Anand Parbat is alleged to be purchased. He denied the suggestion that had not conducted any inquiry regarding the said FIR. He denied the suggestion that he have filed the FIR / chargesheet as per the instruction of first IO. He denied the suggestion that all inquiry, documents, statements were prepared by the first IO.
21. PW18 Retd. ASI / Tech. Devender Kumar. He deposed that on 18.10.2010 he mechanically inspected Pulsar Motorcycle No. UP79C- 3184 at the request of ASI Mubarak Ali from PS Aand Parbat at the premises of PS Anand Parbat. He deposed that his detailed mechanical inspection report in this regard is Ex.PW18/A and the vehicle was found fit for road test.
The said witness was duly cross-examined by the learned defence counsel.
22. After the Prosecution evidence was closed, the statement of accused under Section 313 CrPC was recorded on 02.07.2022. The accused did not opt to lead the defence evidence. Thereafter final arguments were heard. I have given thoughtful consideration to the submissions of the accused and the State. Ld. APP submitted that Prosecution has been successful in proving guilt against accused beyond reasonable doubt.
Per contra, Ld. Defence Counsel submitted that Prosecution failed to prove guilt against accused beyond reasonable doubt as the Prosecution has not been able to prove by way of clear evidence that the accused was driving the vehicle in question in a rash or negligent manner. He further argued that the accused had never hit the victim and he has FIR No. 80/10 State Vs. Dilbahar 15 of 26 PS Anand Parbat been falsely implicated in the present case. He further argued that the Prosecution has also not been able to prove the ingredients of section 471 IPC. Therefore, he argued that the accused deserves to be acquitted in the present case.
23. In the present case, the accused has been charged for the offences U/s. 279/304A/471 IPC. In order to prove the guilt of the accused, the Prosecution was required to establish the following ingredients as mentioned U/s 279/304A/471 IPC:
Section 279 IPC :
Rash driving or riding on a public way. --Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with im- prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 304A IPC:
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.
Section 471 IPC:
Using as genuine a forged 1[document or electronic record]. --Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic FIR No. 80/10 State Vs. Dilbahar 16 of 26 PS Anand Parbat record].
24. Thus, the Prosecution, by way of clear and cogent evidences, was required to prove that the accused was driving the vehicle in question in a rash and negligent manner, and owing to the act of the accused the deceased suffered injuries which caused his death not amounting to culpable homicide. The Prosecution is also required to prove that the alleged vehicle in question was being driven on a public way. However, the death of the victim Kali Ram Jain has not been disputed by both the parties. It is also not disputed that the alleged place of incident was not a public place and the same stands established.
Appreciation of Law.
25. Under the Indian criminal jurisprudence an accused is presumed to be an innocent until proven guilty. It is a settled law that the Prosecution has to stand on its own legs to substantiate the allegations as set out in the FIR. The Prosecution is also required to prove the case against the accused beyond all reasonable doubts. The charge of accusation of offence of section 304A IPC cannot be imposed upon the accused merely on the basis of an accident. The Prosecution must prove by way of clear and reliable evidences that alleged accident took place due to rash and negligent driving of the accused. Thus, the witnesses are required to expound upon the manner in which the vehicle was being driven. The element of the rashness and negligence on the part of the accused is to be proved by leading cogent evidence to that effect. A mere deposition to the FIR No. 80/10 State Vs. Dilbahar 17 of 26 PS Anand Parbat effect that the vehicle was being driven in a rash and negligent manner would not suffice.
26. Before proceeding further, it is imperative to understand as to what constitute the rash and negligent act in terms of the legally settled position. The Hon'ble Supreme Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh, (2000) 7 SCC 72 defined the term "rash and negligent driving". It was held that:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and caution"
27. The Apex Court while drawing the distinction between rash and negligent act in Bhalachandra Waman Pathe Vs. The State of Maharashtra, 1968 ACJ 38, has further held as under:
"An offence under Section 304A Indian Penal Code may be committed either by doing a rash act or a negligent act. There is a distinction between a rash act and a negligent act. In the case of a rash act as observed by straight, J. in Idu Beg's case the criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those FIR No. 80/10 State Vs. Dilbahar 18 of 26 PS Anand Parbat considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Again as explained in Nidamarti Negaghushanam's case, a culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had he would have had the consciousness. The imputability arises from the neglect of the civil duty of circumspection."
Appreciation of Facts and Evidences.
28. To prove a case u/s. 279/304A IPC against the accused, the Prosecution was required to prove the following ingredients:
a). That there must be death of a person in question;
b). That the accused was driving the vehicle i.e., Motor bike bearing registration number UP 79C 3184 in a rash and negligent manner;
b). That while driving the said vehicle in the aforesaid manner, he caused death of the deceased (not amounting to culpable homicide);
c). That the accused was found using as genuine a forged document i.e., the RC of the abovesaid vehicle.
29. The first ingredient under section 304A IPC i.e., death of a person stands proved as the same has not been disputed and is further been admitted by the accused by admitting the death summary and post-mortem FIR No. 80/10 State Vs. Dilbahar 19 of 26 PS Anand Parbat report of the deceased Kali Ram Jain Ex.AD-1 and Ex.AD-2. Thus, the first ingredient stands established. The fact of the accused driving the vehicle in question has also not been disputed by the learned defence counsel. It is to be seen now whether the Prosecution has been able to prove that the accused was driving the aforesaid vehicle in question in a rash and negligent manner and that while doing so he hit the deceased which consequently resulted in the death of the deceased. Further, the Prosecution has to prove that the accused was found fraudulently or dishonestly using the fake RC of the aforesaid vehicle as genuine.
30. The Prosecution had examined PW-1 and PW-2 who are the public witnesses and were present around the spot at the time of alleged incident. PW-1 had turned hostile during the trial and had failed to support the case of the Prosecution. He was duly cross-examined but nothing material could come out of it and he remained hostile. PW-2 though deposed on the line of the Prosecution story however, the said witness did not state anything about the manner in which the vehicle in question was being driven by the accused rather he merely states that one old man was crossing the road and upon seeing him he stopped his vehicle and in the meantime one other person came from left side and hit the old man. It is a settled law that Prosecution witnesses must depose the manner in which the vehicle in question was being driven. Moreover, in the instant case PW-2 who was the eye witness clearly deposes that the vehicle in question was being driven at a speed of 30-35 km/h and it has not been shown by FIR No. 80/10 State Vs. Dilbahar 20 of 26 PS Anand Parbat the Prosecution that whether the said speed was violative of any speed limit. Further, PW-2 had stated that there was no red light near the place of incident which shows that the victim was crossing the road from a place which was not a suitable place for crossing. It has not been shown by the Prosecution that there was any zebra crossing at the place from where the victim was crossing the road. From the perusal of the testimony of PW2 it appears that victim / deceased was negligent while crossing the road on the alleged date and his negligence raises a doubt regarding the rash and negligent driving of the accused which otherwise has also not been proved by the Prosecution as the manner in which the vehicle was being driven by the accused has not been expounded by the Prosecution witnesses and hence it cannot be presumed that the accused was driving the vehicle in a rash and negligent manner. Accordingly, it can be safely said that the Prosecution has failed to show by way of clear evidence that the accused was driving the vehicle in a rash and negligent manner. The rest of the Prosecution witnesses i.e. PW3 till PW18 are merely formal witnesses who are proving the formal part of the investigation and have deposed on the lines of IOs. Thus, it can be held that the Prosecution has failed to prove the offence of section 279, 304A IPC against the accused Dilbahar.
31. Now it is to be seen whether the Prosecution has been able to prove the ingredients of section 471 IPC as per settled law or not. In order to prove that the RC was seized from the accused vide seizure memo Ex.PW-3/B, the Prosecution examined PW-3, PW-4, and PW-16, who FIR No. 80/10 State Vs. Dilbahar 21 of 26 PS Anand Parbat deposed and proved that the seizure memo Ex.PW-3/B by which the RC in question was recovered from the accused. The Prosecution then examined PW-7, PW-8 and PW-17 who deposed and proved that the RC recovered from the accused was found to be fake. The testimony of PW-7 who was the record clerk at Registration office Transport department District Auraiya UP is material as he proves the relevant record of the vehicle bearing registration number UP79C- 3184 which is Ex.PW-7/A (colly) and deposes that the said registration number is of a tractor and same is registered in the name of four persons i.e., Akhilesh Kumar, Rekha Devi, Kamlesh Kumari and Arvind Kumar. Hence it proves that the RC found from the possession of the accused is forged and fake as the said registration number is of a tractor and is not registered in the name as reflected in document seized from the accused vide seizure memo PW3/B. The Prosecution has been clearly able to prove that the RC found vide seizure memo Ex.PW3/B from the accused is forged and fake document.
32. However, for the offence of section 471 IPC the Prosecution was required to show that apart from the seized RC being a forged document, the same was 'fraudulently or dishonestly used' by the accused and that he knew or had reason to believe that the said RC was a forged document. The verb 'use' under section 471 IPC is required to be done 'fraudulently or dishonestly'. Therefore, the term 'fraudulent or dishonest' intention is the sine-qua-non for the offence under section 471 IPC. Thus, it can be said that in order to prove the offence under section 471 IPC, the FIR No. 80/10 State Vs. Dilbahar 22 of 26 PS Anand Parbat Prosecution is required to prove either wrongful gain or wrongful loss (to prove dishonest intention) or a legal injury or risk of legal injury (to prove fraudulent intention) which in the present case and has not been proved by the Prosecution. The Hon'ble Gujarat High Court, in Balkrishan Gopiram Goenka v. State of Gujarat & Ors, 2016 GLH (2) 29, has held that when the petitioner/accused has not wrongfully gained anything and/or any wrongful loss is caused to the Department, there is no need to continue with the criminal Prosecution against the petitioner:
"16. I have considered the arguments canvassed on behalf of the learned advocates appearing for the parties. I have also gone through the documents produced on record. In the present case, the FIR came to be registered against one B.C. Macwana, the then Assistant Commissioner, Central Excise, Rajkot, M/s. Welspun Gujarat Stahl Rohren Limited and against unknown person for the offences punishable under Sections 120B, 420, 467, 468, 471 and 511 of Indian Penal Code and under Section 15 of the Prevention of Corruption Act, 1988. After the investigation, a charge-sheet came to be filed against the officers of the aforesaid company including the present petitioner. From the record, it appears that the petitioner is the Managing Director of the company. The company passed a resolution in its Board Meeting and decided to apply for getting excise benefit as per Notification dated 31.07.2001 and therefore the company submitted an application on 24.12.2005. However, from the record, it appears that before the registration of the FIR, an application seeking withdrawal of the benefit, which was sought under Notification dated 31.07.2001, was submitted by the company and therefore the company has not received any wrongful gain on the basis of its earlier application dated 24.12.2005 and therefore no pecuniary loss is caused to the Department. Thus, the ingredients of the alleged offence punishable u/s. 420 of IPC are not attracted.
24. Learned advocate for the CBI also relied on the decision rendered by the Hon'ble Supreme Court in the case of Debendra Nath Padhi (Supra). However, the said decision cannot be applied in the facts and circumstances of the present case. It is true that at the stage of framing of charge, roving and fishing inquiry is impermissible and the material relied upon by the petitioner FIR No. 80/10 State Vs. Dilbahar 23 of 26 PS Anand Parbat cannot be looked into while exercising powers under Article 226 of the Constitution of India with Section 482 of the Code. However, in view of the aforesaid discussion, when it is prima facie proved that the petitioner has not wrongfully gained anything and/or any wrongful loss is caused to the Department and the company and its officers including the petitioner have been granted immunity, in the opinion of this Court, there is no need to continue with the criminal Prosecution against the present petitioner. Moreover, neither in the FIR nor in the charge-sheet any specific allegations are levelled against the petitioner that he has forged any document. Even otherwise, looking to the impugned FIR and from the papers of charge-sheet, the ingredients of the alleged offence are prima facie not made out so far as the petitioner is concerned."
33. Thus, it can be concluded that if it is proved that the accused has not wrongfully gained anything and/or any wrongful loss is caused to any person or no legal injury is caused to any person, then the offence of use of a forged document u/s 471 IPC is not made out. In the present case, there is no use of the forged RC in a manner which can be said to have caused any wrongful loss/ wrongful gain or any legal injury. The mere recovery of a forged document from the accused will not in itself amount to fraudulent or dishonest use, the Prosecution was required to show that the accused had gained wrongfully or caused wrongful loss on account of such use, which in the present case have not been proved by the Prosecution.
34. Moreover, as per the testimony of PW-13 Dilshad khan the said motor bike bearing registration number UP79C-3184 was in fact purchased by PW-13 from some person namely Irshad and it was that FIR No. 80/10 State Vs. Dilbahar 24 of 26 PS Anand Parbat person Irshad who had sold the motor bike with the RC in question to PW- 13, however, as per the admission of IO PW-17, no efforts were made by the IO to trace the said Irshad so as to find out as to who forged the said RC. PW-14 had proved a document of receipt by way of which it is being shown that PW-13 had purchased the motor bike bearing registration number UP79C-3184 from one Irshad which is Ex.PW-14/A. Mere, possession of any forged document cannot, in the considered opinion of this Court, be held to be use of such forged document for fraudulent or dishonest purposes. Further, the degree of mens rea as required u/s 471 IPC is the knowledge or reason to believe on the part of accused, it has not been shown by the Prosecution that the accused was knowing or had reasons to believe that the RC in his possession was forge and fake. As per case material as proved by the Prosecution it appears that the accused at best may be presumed to know that the vehicle in question was purchased from one Irshad but it can not be presumed that he had reasons to believe that RC in question was forged and fake. The primary burden to prove that was upon the Prosecution and in the absence of proof of any use with dishonest or fraudulent intention, it can be said that Prosecution has been unable to prove the ingredients of offence under section 471 IPC as well.
CONCLUSION:
35. Thus, in light of the above discussed reasoning, this Court is of the opinion that the Prosecution has not been able to prove its case against the accused as per the settled legal provisions and accordingly, the accused FIR No. 80/10 State Vs. Dilbahar 25 of 26 PS Anand Parbat Dilbahar stands acquitted for the charges of the offences of Section 279, 304A ,471 IPC.
36. File be consigned to record room as per rules.
This Judgment contains 26 pages and each page has been initialled by the undersigned.
Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2023.01.27 15:36:29 +0530 Announced in open Court (SHUBHAM DEVADIYA) on 27th day of January 2023 Metropolitan Magistrate West-05, Delhi FIR No. 80/10 State Vs. Dilbahar 26 of 26 PS Anand Parbat