Delhi District Court
State vs . Rajesh Kumar on 30 September, 2013
Page 1 of 11
IN THE COURT OF MS. NAVITA KUMARI BAGHA: MM, NEW DELHI
State Vs. Rajesh Kumar
FIR No. : 107/1999
P.S. : Tilak Marg
U/Sec. : 279/304A IPC
JUDGMENT :
a) Srl. No. of the case & Date of institution : 27/2 & 15.05.1999
b) Date of commission of offence : 05.03.1999
c) Name of the complainant : State through Ct. Naresh Kumar
d) Name of the accused : Rajesh Kumar S/o Sh. Surat Singh R/o H.No.A989, Village Palam, Harijan Basti, New Delhi.
e) Nature of offence complained of : U/Sec.279/304A IPC f) Plea of the accused person : Accused pleaded not guilty g) Date reserved for order : 19.09.2013 h) Final Order : Acquitted i) Date of order : 30.09.2013
BRIEF STATEMENT OF REASONS FOR DECISION OF THE CASE:
1. In brief the accused Rajesh Kumar is facing trial for offences punishable U/Sec.279/304A IPC on the allegations that on 05.03.1999 at about 8.10 a.m. at Sikandra Road, New Delhi, within the jurisdiction of P.S. Tilalk Marg, he was driving a Bus bearing No.DL1PA0179 in rash or negligent manner so as to endanger human life and personal safety of others and while so driving, one passenger Rinku fell down from the bus and died.
State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 2 of 11
2. After completion of investigation, chargesheet was filed. After supplying the copies to the accused U/Sec.207 Cr.P.C., notice U/Sec.251 Cr.P.C. was served upon the accused on 02.03.2001 for the offences punishable U/Sec.279/304A IPC to which he pleaded not guilty and claimed trial.
3. The prosecution had cited 11 witnesses, out of which 9 witnesses were examined.
4. Statement of accused was recorded U/Sec.313 Cr.P.C. on 22.02.2013 wherein he denied the case of the prosecution and pleaded innocence. He said that he had been falsely implicated in this case. However, he opted for not leading any evidence in his defence.
5. I have heard the final arguments from Ld. APP Sh. Honey Goel and Ld. Defence Counsel Sh. Y.N. Sengar and perused the record.
6. Let us first examine the evidence led by the prosecution. The first witness of the prosecution i.e. PW1 is Ct. Naresh Kumar who deposed that on 05.03.1999 he was posted at Tilak Marg Circle and was on duty at WPoint from 7.30 a.m. to 2.00 p.m. and that when he was standing there on his duty, he saw a bus coming from ITO side in a high speed, the passengers of which were hanging on its both gates and all of a sudden one person fell down and got injured. He further deposed that the number of the bus was DL1PA0179. He further deposed that the injured was shifted to RML Hospital and message was flashed on 100 number. He further deposed that the police reached the State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 3 of 11 spot and inspected the site. But he deposed that he could not identify the accused. He was crossexamined by the Ld. APP on the point of identification of accused. But even during his crossexamination, he told that he could not identify him as 11½ year was passed and due to lapse of time he could not identify him. Though he admitted it correct that driver was present there when he had stopped the bus and had seen the driver of the bus, but he said that he could not identify him due to lapse of time. He further deposed that the accused present in the Court might be the same person who was driving the bus, but he was not sure. He admitted it correct that the accused was arrested in his presence and his personal search was conducted vide memo Ex.PW1/A.
7. During his crossexamination by the Ld. Defence Counsel PW1 deposed that there was normal traffic at the time of incident, but he could not tell as to how many vehicles were ahead of the offending vehicle. He admitted it correct that the pedestrians coming from Tilak Bridge side used to cross the Sikandra Road for going to Tilak Marg near the spot. He deposed that he had seen the bus coming from the distance of 1520 yards. He further admitted it correct that there was a joint green signal for the vehicles coming from the ITO side and going towards Sikandra Road and Tilak Marg. He further deposed that in the morning it was peak hour and crowd of pedestrians was also seen. However, he denied the suggestion that he had not seen the offending vehicle coming from the ITO side and taking turn towards Sikandra Road or that he had not seen the accident or that no police came in his presence or that no State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 4 of 11 personal search of the accused was conducted in his presence.
8. PW2 is A.S.I. Chandu Lal who deposed that on 05.03.1999 he was posted at P.S. Tilak Marg and on that day he was working as Duty Officer from 8.00 a.m. to 4.00 p.m. and at about 10.00 a.m. he had recorded the FIR No.107/99 U/Sec.279/304A IPC i.e. Ex.PW2/A, on the basis of rukka brought by Ct. Om Prakash, sent by S.I. Sugan Chand.
9. PW3 is Khairati Lal who deposed that on 05.03.1999 his son namely Rinku aged about 21 years had met with an accident and due to the said accident he got expired and he had identified the dead body of his son in the hospital and received his dead body after postmortem.
10. PW4 is Mechanical Inspector ASI Devender Kumar who deposed that on 05.03.1999 he had conducted the mechanical inspection of Bus bearing No.DL1PA0179 and given his report Ex.PW4/A.
11. PW5 is ASI Baldev Raj who deposed that on 05.03.1999 he was posted as Head Constable and his duty was at PCR V10 as Incharge and on that day at about 8.15 a.m. he had received a call from Victor1 from the Control Room regarding one person fallen from Bus bearing No.DL1PA0179 of route no.770 at WPoint towards Sikandra Road side and he reached at spot at 8.20 a.m. and removed the injured to RML Hospital. He further deposed that I.O. had recorded his statement. During his crossexamination by the Ld. Defence Counsel he deposed that his statement was recorded in the P.S. Tilak Marg State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 5 of 11 and that he could not tell the exact time when the statement was recorded. He further deposed that the injured was lying at WPoint at Mark A as shown in the site plan Ex.PW5/DA. He further deposed that he did not notice if the offending bus was parked there.
12. PW6 is Ajay who deposed that deceased Rinku was his nephew who had met with an accident and died due to the same. He further deposed that he was informed by someone about the accident and he had reached at Tilak Bridge WPoint, where Rinku was lying in injured condition and was unconscious at that time and died in the hospital on the next day. He deposed that he had identified the dead body of Rinku and his statement Ex.PW6/A was recorded by the I.O. During his crossexamination by the Ld. Defence Counsel he admitted it correct that in his statement Ex.PW6/A it was not mentioned that he had reached at Tilak Bridge, WPoint after receiving the information.
13. PW7 is Deen Dayal, Record Clerk, RML Hospital who deposed that the MLC Ex.PW7/A was prepared and signed by Dr. Shyam Gopal Nag who had left the services of the hospital and his whereabouts were not available with the hospital. However, he deposed that he could identify the handwriting and signatures of Dr. Shyam Gopal Nag on the basis of record prepared by him and seen by him during his routine official work and accordingly he identified handwriting and signatures of Dr. Shyam Gopal Nag at point A on Ex.PW7/A. During his crossexaminatin by the Ld. Defence counsel he deposed that he had never working under Dr. Shyam Gopal Nag and that the MLC was also not prepared in his presence.
State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 6 of 11
14. PW8 is S.I. (Retd.) Sugan Chand who deposed that on 05.03.1999 he was posted as SubInspector at P.S. Tilak Marg and on that day, on receipt of DD No.4 regarding accident, he alongwith Ct. Om Prakash reached at WPoint, Sikandara Road where they found one bus bearing No.DL1PA179 of Route No.770 in standing condition. He further deposed that the injured was already shifted to RML Hospital and while leaving Ct. Om Prakash at the spot, I went to RML Hospital and collected the MLC of the injured on which doctor had declared the patient unfit for statement. He further deposed that no witness was found in the hospital and he came back at the spot and on DD entry he prepared rukka Ex.PW8/A and got the case registered through Ct. Om Prakash. He further deposed that he prepared the site plan Ex.PW5/DA on the instructions of Ct. Naresh and recorded his statement. He further deposed that he seized the offending bus vide seizure memo Ex.PW8/B and arrested the driver of the offending bus vide arrest memo Ex.PW8/C and seized his driving licence vide seizure memo Ex.PW8/D. He further deposed that he got conducted the mechanical inspection of the offending bus. He further deposed that on 05.03.1999 he received the information about the death of injured and on 06.03.1999 he got conducted the postmortem on the dead body of deceased Rinku and recorded the statement of identification of body and handed over the same to his relatives. He further deposed that on 17.03.1999 he received the postmortem report Ex.PW8/E and thereafter he prepared the Challan and filed the same in the Court.
15. During his crossexamination by the Ld. Defence Counsel, PW8 deposed that State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 7 of 11 the DD No.4A was given to him by the Duty Officer which was pertaining to PCR call, but he had not made the person a prosecution witness who had informed the PCR regarding the accident. He further admitted it correct that there is a red light point at WPoint Crossing and there is turning point for the buses coming from ITO side and proceedings towards Sikandra Road, but he had not shown the point where offending bus and the driver of the offending bus were present on the Sikandra Road. Then he said voluntarily that Point A in the site plan was the place where the accident had taken place and offending bus was also parked. He denied the suggestion that at the time of accident, there was heavy traffic on the Sikandra Road being peak hours for office people. He further deposed that he could not tell at what time accident had taken place but he had reached the spot within five minutes after receiving the call. He further deposed that he did not make any public person witness in the present case. He denied the suggestion that he had conducted all the proceedings while sitting in the Police Station or that he had not visited the place of occurrence. He further denied the suggestion that he had not shown position of the offending bus as well as of the driver in site plan because he had not visited the place of occurrence. He admitted it correct that the site was not photographed by him.
16. PW9 is Mukesh Kumar, Record Clerk from Lady Harding Medical College who deposed that the postmortem report Ex.PW8/E was prepared and signed by Dr. Monika who had left the services of the hospital and her whereabouts were not available with the hospital authorities. However, he deposed that he State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 8 of 11 could identify the handwriting and signatures of Dr. Monika as he had seen her writing and signing during his official course of duties and accordingly he identified the handwriting and signatures of Dr. Monika at point A and B on Ex.PW8/E. During his crossexamination by the Ld. Defence Counsel he admitted that the postmortem report was not prepared in his presence.
17. The counsel for accused has argued that the prosecution has failed to prove its case against the accused as its socalled sole eyewitness i.e. PW1 has turned hostile and has neither identified the accused as driver of the offending vehicle nor stated that the accused was driving the vehicle rashly or negligently.
18. The accused in the present case has been booked U/Sec.279/304A IPC. In order to prove offences punishable U/Sec.279/304A IPC there must be rash or negligent driving by the accused and the death must have been caused by the rash or negligent act of the accused. Rash or negligent act referred to in Sec.304A means an act which is immediate cause of death and not an act or omission which can at best be said to be a remote cause of death. The meaning of rashness and negligence as contemplated in Sec.304A IPC has been explained by the Hon'ble Supreme Court in State of Karnataka Vs. Murlidhar, AIR 2009 AC 1621 wherein it has been held that the negligence and rashness are essential elements under Section 304A and the culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. It is further held that the rashness means doing an act with the State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 9 of 11 consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused. In order to prove offences punishable U/Sec.279/304A IPC there must be rash or negligent driving by the accused and the death must have been caused by the rash or negligent act of the accused. In the present case the prosecution was required to prove that the accused was driving the Bus bearing no.DL1PA0179 in a rash or negligent manner so as to endanger human life and personal safety of others and while so driving, one passenger Rinku fell down from the bus and died. But the prosecution has failed to do so because the sole eyewitness of this case i.e. the complainant/PW1 Ct. Naresh Kumar has not supported the case of the prosecution. PW1 had turned hostile and stated that he could not identify the accused. Though he was crossexamined by Ld. APP but even during his crossexamination he said that he could not identify him. It is also pertinent to mention here that PW1 has nowhere stated that the accused was driving rashly or negligently. He has simply stated that the offending bus was coming in high speed. But it is settled law that mere fast speed in itself is not the conclusive proof of the guilt of accused. It has been held in Tukaram Sitaram Gore Vs. State, 1971 Cri.L.J. 767 that the high speed of the motor vehicle does not by itself prove rashness or negligence of the driver. It has been State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 10 of 11 further held that there can be no presumption of negligence from the mere fact that a man is knocked down and killed by the motorist. There must be evidence of rashness or negligence. The prosecution has to prove the guilt of the accused beyond reasonable doubt. It is the prosecution which has to prove the case beyond reasonable doubt and the burden of proof cannot be shifted to the accused. There can be no burden on an accused to prove that he was not driving the vehicle in a rash or negligent manner. It is for the prosecution to establish the guilt of an accused beyond reasonable doubt and the ingredients necessary to show that a particular offence was committed, must be made out by the evidence adduced in prosecution. There is no initial burden on the accused to prove his innocence. Certainly there is no presumption that a man drove a lorry in a rash or negligent manner, merely because there was an accident. Sec.304A IPC is no exception to the general principle that the innocence of a person has to be assumed till guilt is established. The eye witness has neither identified the accused as driver of offending bus nor stated that he was driving rashly or negligently. The other witnesses examined by the prosecution are not material witnesses. None of them had witnessed the accident. Thus there is no evidence on record to prove that the accused was driving the offending vehicle rashly or negligently. Since it has not been proved that the accident had occurred due to rash or negligent driving of the accused, so, he could also not be held liable for the death of the passenger namely Rinku. Hence in the light of the abovesaid, it is clear that the prosecution has failed to prove its case beyond reasonable doubt and therefore the accused is acquitted of the offences punishable U/Sec.279/304A IPC. His Bail Bond is State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg Page 11 of 11 cancelled. His surety is discharged. Endorsement on the documents of the surety, if any, be cancelled.
19. File be consigned to Record Room.
(Announced in open
Court on 30.09.2013) (Navita Kumari)
MM, New Delhi
State Vs. Rajesh Kumar
FIR No. 107/1999
P.S. Tilak Marg
Page 12 of 11
State Vs. Rajesh Kumar
FIR No. 107/1999
U/Sec. 279/304A IPC
P.S. Tilak Marg
30.09.2013
Present : APP for state.
Accused with counsel Sh. Y.N. Sengar.
Vide separate judgment the accused is acquitted of the offences punishable U/Sec.279/304A IPC. His bail bond is cancelled. His surety is discharged. Endorsement on the documents of the surety, if any, be cancelled. Fresh Bail Bond is furnished by accused U/Sec.437A Cr.P.C. which shall be valid for six months from today.
File be consigned to Record Room.
(Navita Kumari) MM/ND/30.09.13 State Vs. Rajesh Kumar FIR No. 107/1999 P.S. Tilak Marg