Delhi District Court
State vs . Bal Kishan on 1 April, 2023
IN THE COURT OF MS. SONIKA
METROPOLITAN MAGISTRATE-04, EAST
DISTRICT KARKARDOOMA COURTS, DELHI
FIR No.385/2007
PS Shakarpur
State Vs. Bal Kishan
CNR No. DLET02-000818-2008
(a) Sr. No. of the case 11549/2016
(b) Date of offence 16.05.2007
(c) Complainant Sh. Vishesh Seekar
(d) Accused, parentage and Sh. Bal Kishan S/o Sh.
address Mange Ram, R/o H. No.
47, Gadoli, Kumar Basti
Vistar, Delhi.
(e) Offence complained of Section 279/304A IPC
(f) Plea of accused Pleaded not guilty
(g) Final Order Acquitted
(h) Date of institution 21.04.2008
(i) Date when judgment was 27.03.2023
reserved
(j) Date of judgment 01.04.2023
Digitally
signed by
SONIKA
SONIKA Date:
2023.04.01
16:22:35
+0530
FIR No.385/2007 State Vs. Bal Kishan Page no.1/17
BRIEF FACTS AND REASONS FOR DECISION OF
THE CASE
1. Present charge-sheet has been forwarded by the SHO, PS Shakarpur against the accused to face trial for the offences under Section 279/304A IPC.
2. In nutshell, the case of the prosecution is that on 16.05.2007 at 06:15 P.M., at Vikas Marg, ITO Bridge Rainybell, near Shakarpur, Delhi, the accused was found driving the vehicle/bus bearing registration No. DL-1PA- 4733, at a public place in a manner so rash and negligent so as to endanger human life and personal safety of others and thereby caused the death of one Ms. Manpreet Kaur, who had slipped on the road due to heavy rain and hence committed an offence punishable U/Sec. 279/304-A IPC. Thereafter, the criminal machinery was set into motion upon receiving a complaint regarding the accident and with the help of the complainant, injured was taken to hospital where she succumbed to injuries and died. Consequently, present FIR was registered and the accused was arrested. After completion of investigation, the final report (charge sheet) for the offences under Section 279/304-A IPC was filed against accused Bal Kishan.
3. Cognizance was taken by the Ld. Predecessor v.o.d.
21.04.2008 and after taking cognizance, copy of the charge-sheet along with documents were supplied to the accused in compliance of Section 207 Cr.P.C. and the case was listed for arguments on notice.
4. After hearing the parties, a notice was served upon Digitally signed by SONIKA SONIKA Date:
2023.04.01 16:22:47 FIR No.385/2007 State Vs. Bal Kishan Page no.2/17 +0530 accused Bal Kishan for the commission of offence under section 279 IPC and secondly under section 304 A IPC v.o.d. 28.10.2010 to which he pleaded not guilty and claimed trial.
5. Thereafter, matter was listed for Prosecution's evidence. It is pertinent to mention that accused admitted the genuineness of FIR (Ex. C-1), DD No. 70B dated 16.05.2007 (Ex. C-2), DD No. 79B dated 16.05.2007 (Ex. C-3), Mechanical Inspection report of the offending vehicle (Ex. C-4), MLC of the injured (Ex. C-5), Post Mortem Report pertaining to deceased (Ex. C-6), Statement of identification of dead body made by Sucha Singh and Avtar Singh (Ex. C-7 and C-8), Dead body handing over memo (Ex. C-9). As a result of which, the examination of the concerned witnesses was dispensed with.
6. Prosecution in support of its case examined as many as 04 witnesses.
7. PW-1 Vishesh Seekar deposed that in the month of May, 2007, he was working as Asst. Manager, Safe Express, at Punjabi Bagh, Delhi and on 16.05.2007, he went to Shakarpur Chungi Red Light, Vikas Marg, Delhi by his motorcycle bearing registration No. DL4SBB-2072. He further deposed that his friend Ms. Manpreet was also with him on that day, when he started to return back home from there and reached near Rainy Well 7 at around 6.15 PM, they noticed a person was standing with his scooter at the roadside. He further deposed that he stopped his motorcycle behind the stationed scooter, in order to close Digitally signed by SONIKA FIR No.385/2007 State Vs. Bal Kishan Page no.3/17 SONIKA Date:
2023.04.01 16:22:56 +0530 his bag containing some important things as the rain was about to start. He further deposed that after a little while, heavy rain started, his friend Ms. Manpreet Kaur, all of a sudden got slip on the road and in the meantime, a blue line bus bearing registration No. DL1PA-4733 being driven by the accused at a very high speed and in rash and negligent manner hit against his friend Ms. Manpreet. He further deposed that he did not stop the bus, however, saw behind from the driver window of the bus and as such he had seen the accused while running with the offending bus. He further deposed that he was signaling the accused to stop the bus by waiving his hand. He further deposed that somebody informed the police at 100 and he immediately hired some auto and shifted his injured friend in JPN hospital. He further deposed that after some time when the doctors were examining his injured friend, police officials visited in the hospital and inquired from him about the accident. He further deposed that he made his statement to the police with respect to the accident Ex.PW1/A. He further deposed that thereafter, he along with the police officials visited at the spot and pointed out the same. He further deposed that the police official prepared the site plan of the same at his instance. He further deposed that police took his motorcycle in its possession vide memo Ex.PW1/B. He further deposed that thereafter, they visited at the P.S in evening hours, where the owner of the offending bus had already produced the accused and the said offending bus. He further deposed that he had Digitally signed by SONIKA SONIKA Date:
FIR No.385/2007 State Vs. Bal Kishan Page no.4/17 2023.04.01 16:23:03 +0530 identified the accused and told to the IO about the incident. He further deposed that the IO had taken the offending bus in his possession vide memo Ex.PW1/C. He further deposed that thereafter IO arrested the accused in the present case vide arrest memo Ex.PW1/D and also conducted his personal search vide memo Ex.PW1/E. He further deposed that the IO had also seized the DL of the accused vide memo Ex.PW1/F. He further deposed that his friend Ms. Manpreet Kaur had expired during treatment in the hospital. He further deposed that after about 15-16 days of the incident, he got his motorcycle released from the court on executing superdginama Ex.PW1/G. He further deposed that he can identify the offending bus if shown to him. He further deposed that his statement was recorded by the IO again. PW-1 was cross-examined at length by Ld. Counsel for accused.
8. PW-2 ASI Om Dutt deposed that on 16.05.2007, he was posted as constable at PS Shakarpur and on that day on receipt of a call, he along with ASI Aizaj Ahmed reached at the spot situated before Yamuna Bridge, where one motorcycle bearing no. DL4S BB 2072 was found standing. He further deposed that no one else was found at the spot. He further deposed that IO had left him at the spot and went to JPN hospital. He further deposed that after sometime, IO alongwith one person came back at the spot and handed over a rukka to him for registration of case. He further deposed that he got registered the case in PS Shakarpur and came back at the spot. He further deposed Digitally signed by SONIKA SONIKA Date:
FIR No.385/2007 State Vs. Bal Kishan Page no.5/17 2023.04.01 16:23:11 +0530 that IO had prepared the site plan and recorded the statement of witness. He further deposed that IO had seized the above said motorcycle vide seizure memo already Ex.PW1/B. He further deposed that the driver of the offending bus alongwith bus was called and he was arrested vide arrest memo already Ex. PW1/D. He further deposed that the offending bus was also seized vide seizure memo already Ex.PW1/C. He further identified the accused and deposed that he can also identify the vehicles if shown to him. PW-2 was duly cross-examined on behalf of the accused.
9. PW-3 Taslimuddin Siddiqui deposed that he is a government approved surveyor and loss assessor and working for more than 42 years independently. He further deposed that on 17.05.2007, he had mechanically inspected a Tata CNG bus bearing no DL 1PA 4733 on the request of ASI Aijaz Ahmad of PS Shakarpur and prepared his detailed report in this regard Ex.PW3/A. He further deposed that on the same day, he had also mechanically inspected a motorcycle bearing registration no DL 4S BB 2072 make TVS Apache on the request of ASI Aijaz Ahmad of PS Shakarpur and prepared his detailed report in this regard already EX.C-4. PW-3 was duly cross- examined by Ld. Counsel for accused.
10. PW-4 Retd. ASI Aijaz Ahmad deposed that on 16.05.2007, he was posted as ASI at PS Shakarpur and on that day, he was present in PS along with Ct. Om Dutt on day emergency duty w.e.f. 08.00 am to 08.00 pm., during Digitally signed by SONIKA FIR No.385/2007 State Vs. Bal Kishan Page no.6/17 SONIKA Date:
2023.04.01 16:23:19 +0530 which he received DD No. 70B dt. 16.05.2007, PS Shakarpur already Ex.C2 regarding accident. He further deposed that therefore, he along with Ct. Om Dutt visited the spot i.e. Vikas Marg near Rainywell no.7 leading towards ITO and noticed that one motorcycle was found parked at the roadside bearing registration no. DL 4SBB 2072 in accidental condition. He further deposed that on enquiry, he came to know that the injured has already been shifted to JPN Hospital. He further deposed that he left Ct. Om Dutt at the spot for its safeguard. He further deposed that he went to JPN Hospital where one Manpreet Kaur (injured) in this case was found admitted as brought dead. He further deposed that he collected her MLC already Ex.C5. He further deposed that the companion of the deceased Manpreet Kaur was present in the hospital namely Vishesh Seeker. He further deposed that he made enquiries from him. He further deposed that Vishesh Seeker gave him his statement already Ex.PW1/A. He further deposed that thereafter, he came at the spot alongwith Vishesh Seekar and made his endorsement on his statement Ex.PW4/A and sent rukka to PS for registration of FIR through Ct. Om Dutt. He further deposed that he inspected the spot and prepared the site plan of the same Ex.PW4/B. He further deposed that after about one hour, Ct. Om Dutt alongwith original rukka and copy of FIR came back to the spot and gave the said documents to him. He further deposed that he seized motorcycle No. DL 4SBB 2072 vide seizure memo already Digitally signed by SONIKA SONIKA Date:
FIR No.385/2007 State Vs. Bal Kishan Page no.7/17 2023.04.01 16:23:30 +0530 Ex. PW1/B. He further deposed that thereafter, he alongwith his staff, Vishesh Seekar and the above-said motorcycle came to PS. He further deposed that he deposited the said motor-cycle with MHC(M). He further deposed that on the same day, the contractor of offending bus No. DL 1PA 4733 namely Dhanveer Singh alongwith accused and the bus came to him in PS and produced the offending bus and the accused before him. He further deposed that he seized the offending bus vide memo already Ex.PW1/C. He further deposed that the contractor of bus, Dhanveer Singh told him that the accused whose name subsequently came to know as Bal Kishan was driving the offending bus at the time of incident. He further deposed that he, therefore arrested the accused in the present case vide arrest memo already Ex. PW1/D and also conducted his personal search vide memo already Ex.PW1/E. He further deposed that he also seized the DL of accused in original vide memo already Ex.PW1/F. He further deposed that the accused failed to produce his surety, therefore, he was medically examined and was sent to lock-up. He further deposed that he deposited the offending bus with MHC(M). He further deposed that on the next day, some relatives of accused produced his surety and he was released on police bail. He further deposed that he collected the photocopy of DL of the accused Mark A He further deposed that on 17.05.2007, the offending bus no. DL 1PA 4733 and motorcycle no. DL 4SBB 2072 were mechanically inspected vide MI report already Ex.PW3/A Digitally signed by SONIKA SONIKA Date: 2023.04.01 16:23:39 +0530 FIR No.385/2007 State Vs. Bal Kishan Page no.8/17 and Ex.C4. He further deposed that he collected the photocopy of insurance and RC of offending bus from the contractor Mark B and C. He further deposed that he recorded supplementary statement of complainant in this regard. He further deposed that thereafter, he visited the mortuary of Maulana Azad Medical College and prepared the inquest papers i.e. request for postmortem Ex.PW4/C, summary of Case Ex.PW1/C1, Form no. 25.35(B). He further deposed that he got established the identity of the dead body of deceased through Sh. Succha Singh S/o Krishan Singh and Avatar Singh S/o Sh. Krishan Singh and recorded their statements in this regard Ex.C7 and Ex.C8. He further deposed that after postmortem, the dead body of injured was handed over to Succha Singh, Charanjeet etc. vide handing over memo already Ex.C9. He further deposed that he got conducted the PM on the dead body of deceased vide PM report No. 352/07 already Ex.C6. He further deposed that he recorded statement of relevant witnesses and on completion of his investigation in the present matter, he prepared a chargesheet against accused and filed the same in the Court for his trial. He further deposed that he can identify both the vehicles i.e. motor- cycle no. DL 4SBB 2072 and offending bus No. DL 1PA 4733, if shown to him. PW-4 was cross-examined at length on behalf of the accused.
11. Thereafter, PE was closed v.o.d. 07.01.2023.
Statement of accused U/Sec. 313 r/w Section 281 Cr.P.C was recorded on 28.02.2023 wherein accused pleaded false Digitally signed by SONIKA SONIKA Date:
2023.04.01 16:23:47 +0530 FIR No.385/2007 State Vs. Bal Kishan Page no.9/17 implication and denied all the incriminating evidence put to him stating that no such accident was caused by the bus driven by him and the police officials had stopped him and asked him to appear in the police station alongwith the bus and the same was obliged by him. Since, the accused did not opt to lead defence evidence, the matter was listed for final arguments.
12. It was argued by the Ld. APP for the State that the prosecution witnesses have successfully proved the factum of commission of offence by the accused, beyond reasonable doubt. He further stated that all the witnesses have supported the case of the prosecution and hence, the accused is liable to be convicted and punished as per law.
13. On the other hand, it was argued by Ld. Counsel for accused, the accused was falsely implicated in the case as there are several discrepancies and material contradictions in the deposition of the prosecution witnesses which create grave suspicion about the prosecution's case. He prayed that the accused deserve to be acquitted in this case.
14. I have heard the arguments addressed by Ld. APP for the State and Ld. Counsel for the accused and have carefully perused the material available on record.
15. It is a settled legal principle that the prosecution has to prove its case against the accused beyond all reasonable doubts and has to stand upon its own legs. The burden of proof in a criminal trial always rests upon the prosecution and the same never shifts on the accused.
Digitally
16. Section 279 IPC provides penalty for rash driving or signed by SONIKA SONIKA Date:
2023.04.01 16:23:54 +0530 FIR No.385/2007 State Vs. Bal Kishan Page no.10/17 riding on a public way. It provides as follows:
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 imprisonment 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.
Further, Section 304A IPC penalizes the act of causing death by doing a rash or negligent act. It provides as follows:
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.
17. Accordingly, in order to bring home the guilt of the accused and to hold him liable for the commission of offence U/Sec.279/304A IPC, the prosecution needs to prove the following facts:
(i) that the accused was driving the offending vehicle at the time of the accident i.e. the identity of the accused being the driver of the offending vehicle.
(ii) that the accident was caused due to rash & negligent act on the part of the driver of the offending vehicle i.e. bus bearing registration no. DL-1PA-4733.
(iii) that the rash and negligent driving resulted into the death of the deceased which does not amount to culpable homicide.
18. Another important ingredient to be proved by the prosecution for securing the conviction of the accused for Digitally signed by SONIKA SONIKA Date:
2023.04.01 16:24:02 +0530FIR No.385/2007 State Vs. Bal Kishan Page no.11/17 the offence punishable U/Sec. 279/304A IPC is that the death is the direct result of the rash and negligent act of the accused. In Rathnashalvan vs. State of Karnataka, (2007) 3 SCC 474, the Hon'ble Apex Court has observed as follows:
"7. ........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. Rashness means doing an act with the 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. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. 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.
8. As noted above, "rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, 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."
19. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of "S. N. Hussain V. State of Andhara, AIR 1972 SC 685" as under:
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury Digitally signed by SONIKA SONIKA Date:
2023.04.01 16:24:11 +0530 FIR No.385/2007 State Vs. Bal Kishan Page no.12/17 either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted".
It has been further observed in S. N. Hussain (Supra) as under:
"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".
20. In the case in hand, the prosecution examined 04 witnesses in support of its case. Perusal of the testimony of PW-1, especially the cross-examination, shows that the deceased was slipped from the pavement and fallen on the road. During his cross-examination, PW-1 also accepted that some other vehicles were coming from behind and there is a possibility that he might have got hit by some other vehicle. The witness had further admitted that he had told the registration number of the offending vehicle to the IO as DL 1 PA 4735. Apart from PW-1, no other eye- witness or public witness was joined in the investigation or examined as a witness to the incident by the prosecution. From the overall testimony of the witnesses, it is clear that no eye-witness apart from the complainant (PW-1) has been examined by the prosecution despite of the fact that the accident had occurred at a public spot, which casts a serious doubt as to the fairness of investigation, the benefit of which must go to the accused.
21. In Roop Chand Vs. The State of Haryana 1991 (1) CLR 69, the Hon'ble Punjab & Haryana High Court have Digitally held as under: signed by SONIKA SONIKA Date:
2023.04.01 16:24:19 +0530 FIR No.385/2007 State Vs. Bal Kishan Page no.13/17 "3. I have heard the learned counsel for the parties and gone through the evidence with their help. The recovery of illicit liquor was effected from the possession of the petitioner during noon time and it is in the evidence of the prosecution witnesses that some witnesses from the public were available and they were asked to join the investigation. The explanation furnished by the prosecution is that the independent witnesses were asked to join the investigation but they refused to do so on the ground that their joining will result into enmity between them and the petitioner.
4. It is well settled principal of the law that the investigating agency should join independent witnesses at the time of recovery of contraband articles, if they are available and their failure to do so in such a situation casts a shadow of doubt on the prosecution case. In the present case also admittedly the independent witnesses were available at the time of recovery but they refused to associate themselves in the investigation. This explanation does not inspire confidence because the police officials who are the only witnesses examined in the case have not given the names and addresses of the persons contacted to join. It is a very common excuse that the witnesses from the public refused to join the investigation. A police officer conducting investigation of a crime is entitled to ask anybody to join the investigation and on refusal by a person from the public the investigating officer can take action against such a person under the law. Had it been a fact that the witnesses from the public had refused to join the investigation, the Investigating Officer must have proceeded against them under the relevant provisions of law. The failure to do so by the police officer is suggestive of the fact that the explanation for non joining the witnesses from the public is an after thought and it is not worthy of credence. All these facts taken together make the prosecution case highly doubtful".
22. It is a cardinal principle of criminal jurisprudence that there lies heavy burden upon the prosecution to clearly establish the ingredients of rash and negligent driving by the offender in road accident cases. In the case titled "Abdul Subhan Vs State (NCT of Delhi)" 2006 (4) LRC 472 (Del), it was held by the Hon'ble High Court of Delhi Digitally signed by SONIKA SONIKA Date:
2023.04.01 16:24:26 +0530 FIR No.385/2007 State Vs. Bal Kishan Page no.14/17 as follows:
"13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by courts.
13.4 The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5 Furthermore the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.
13.6...............
13.7 Proper Investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumption, probabilities, all elements of subjectivity needs to be eliminated."
23. In the present case, no PW has deposed with regard to the relevant aspects such as width of the road, presence of any traffic signal or divider etc. which casts a shadow of doubt on the fairness of investigation done by the investigating authority.
24. Further it is also pertinent to mention that as per the prosecution, the site plan (Ex. PW4/B) was prepared before the registration of FIR. But strangely the same bears the FIR number of the present case. This is not possible unless either FIR number has been inserted later on upon site plan after registration of FIR or else this document has been prepared after registration of FIR. In both conditions, this fact throws doubt on the prosecution version and materially Digitally signed by SONIKA SONIKA Date: 2023.04.01 16:24:34 +0530 FIR No.385/2007 State Vs. Bal Kishan Page no.15/17 affects its credibility. In Mohd. Hasim Vs. State, 1999 VI AD (DELHI) 569, it has been held by Hon'ble Delhi High Court as follows:
"Documents prepared before registering the FIR bears FIR Number, meaning thereby either FIR was recorded posterior in time or that documents were prepared after the recording the FIR, and was held that in both case, prosecution case would collapse."
25. It was held by Hon'ble Apex Court in Dr. S. Goswami V. State of M. P 197 SSC (Crl.) 258 that the accused is entitled to benefit of doubt where the onus of proving the ingredients of the offence is not discharged by the prosecution.
26. Therefore, in view of the above-said discussion and from the material available on record, there is nothing on record to prove that the accident was caused by the bus bearing registration no. DL-1PA-4733 or that accused was the driver of the offending bus which was being driven in rash and negligent manner or that the accused's rash and negligent act led to the death of the victim. The witnesses have not deposed anything with regard to the manner in which the vehicle was being driven and how it had led to the occurrence of the accident. Merely making bald statements does not prove the guilt of the accused.
27. In criminal cases, the rule is that accused is entitled to benefit of doubt if the prosecution is unable to prove its case beyond reasonable doubts. If the Court is of the opinion that on the evidence two views are reasonably possible, one that the accused is guilty & the other that he is innocent, then the benefit of doubt goes in favour of the Digitally signed by SONIKA FIR No.385/2007 State Vs. Bal Kishan Page no.16/17 SONIKA Date:
2023.04.01 16:24:42 +0530 accused.
28. Therefore, in the light of above-mentioned discussion and the fact that there is no direct or circumstantial evidence available on record, the prosecution had failed to prove the charges and the essential ingredients of the alleged offences i.e. rashness and negligence on the part of accused. Consequently, accused Bal Kishan is acquitted from the offences under Section 279 and 304A IPC.
Digitally
signed by
SONIKA
SONIKA Date:
2023.04.01
16:24:52
+0530
Pronounced in the open court ( SONIKA)
on 1st Day of April 2023 MM-04/East/KKD/Delhi
It is certified that this judgment contains 17 pages Digitally signed by and each page is checked and signed by me. SONIKA SONIKA Date:
2023.04.01 16:24:59 +0530 (SONIKA) MM-04/East/KKD/Delhi 01.04.2023 FIR No.385/2007 State Vs. Bal Kishan Page no.17/17