Delhi District Court
State vs Sudarshan Kushwaha on 19 February, 2013
1
IN THE COURT OF SMT. SURYA MALIK GROVER, M.M10,
SOUTH DISTRICT/ SAKET COURT COMPLEX, NEW DELHI.
Unique Identification no. 02406R0212692011
Case no. 178/2 Dated 11.05.2012
FIR No. 321/10
PS Vasant Kunj (South)
U/s. 279/304A IPC and 146/196 MV Act
State Vs Sudarshan Kushwaha
JUDGEMENT
S. No. Of Case : 178/2 Dated 11.05.2012
Date of Commission : 10.11.2010
of offence
Name of Complainant : ASI Mahesh Singh
Name and address :Sudarshan Kushwaha
of accused S/o Sh. Fojdar Kushwaha
R/o Village and Post OfficeNoorpur,
PSNoonhara, DistrictGajipur, Uttar
Pradesh
Offence Complained : U/s. 279/304A IPC & 146/196 MV Act
Plea of accused : Not guilty
Date of judgment : 19.02.2013
Final order : Acquitted under S. 279/304A IPC &
Convicted under S.146/196 MV Act
Brief Reasons For Such Decision:
1. The brief case of the prosecution is that on 10.11.2010 at an unknown time under Flyover Rajokari Mode, Rajokari, New Delhi falling within the jurisdiction of police station Vasant Kunj South, accused was driving an uninsured motorcycle bearing no. DL11SA0909 in a rash and negligent manner so as to endanger the human life and personal safety of others and while driving so hit against one FIR no. 321/10 State Vs Sudarshan Kushwaha 2 pedestrian namely Sunita and caused her death.
1.2 Chargesheet was filed in the court and the accused Sudarshan Kushwaha was supplied complete set of documents. Thereafter, vide order dated 19.05.2011, charge was framed u/s 279/304A IPC and 146/196 MV Act against the accused to which he pleaded not guilty and claimed trial.
2. TRIAL 2.1 In order to prove charges against the accused persons, the prosecution has examined four witnesses in all. The relevant portion of the testimonies of the witnesses are as under :
PW1 is Kalu Ram who deposed that on 10.11.2010 accident of deceased Sunita took place with motorcycle bearing number DL11SA0909. He further deposed that when he returned from his work, he found that the dead body of deceased Sunita was lying on the road. He had received the dead body of deceased Sunita which is Ex PW1/A on 12.11.2010.
PW2 Raj Kumar deposed that on 12.11.2010 he had identified the dead body of deceased Sunita at Jai Prakash Naryan Apex Trauma Centre which is Ex. PW2/A. He further deposed that on the same day, he along with Kalu Ram and other two persons had received the dead body of deceased Sunita from the aforesaid hospital which is already Ex. PW1/A. FIR no. 321/10 State Vs Sudarshan Kushwaha 3 PW3 SI Bijender deposed that on 10.11.2010, he was on emergency duty with ASI Mahesh Chand from 08.00am to 08.00pm. On the same day at about 05.15pm, they had received a DD entry no. 30A regarding accident near Rajokari Flyover. Then, he along with ASI Mahesh Chand went to the spot but they did not find any eye witness at the spot. After some time, they received DD no. 61B from Trauma Centre that one victim of accident namely Sunita was admitted by PCR having injuries. Thereafter, he along with ASI Mahesh Chand reached at Trauma Centre and obtained MLC no. 234887 of the injured Sunita, who was found to be unfit for statement. After obtaining MLC, they came back to the spot of accident. Tehrir was prepared by ASI Mahesh Chand and he handed over the same to him for registration of the case. After registration of the FIR, he handed over copy of FIR and original rukka to ASI Mahesh Chand. Site plan was prepared by ASI Mahesh Chand at the instance of IC PCR Van which is Ex. PW3/A. IO recorded his statement u/s 161 Cr. P.C on the same day in the police station.
PW4 is Jai Kishore who deposed that on 10.11.2010, he was working as a labour near Rajokari Mode Flyover in front of toll tax along with his sister Sunita and other labours. At about 05.00pm, one motorcycle was coming at a high speed from the side of Gurgaon. Sunita and he was crossing the road, he was at a little distance behind her. Sunita was carrying some fuel wood on her head. Suddenly the motorcyclist hit her in the front side as a consequence of which his sister fell down on the road and sustained injuries on her head and face and started bleeding very badly. The motorcyclist fled away and he could not note down the number of the vehicle. One slip was lying on the spot which was taken by him. Thereafter, he took his sister to AIIMS hospital with the help of his neighbour Nand Kishore. On the next day, he FIR no. 321/10 State Vs Sudarshan Kushwaha 4 went to his native place and returned back after 34 days. After some time he went to police station and deposited the abovesaid slip to police officials which was seized vide memo Ex. PW4/A. The said slip is Ex. P1 on 09.01.2011. He again went to PS for knowing about the progress of case. where he found one person sitting there whom he identified as the driver of motorcycle by which the above said accident had taken place on the day of incident. Accused was arrested vide memo Ex. PW4/B. Thereafter, Prosecution Evidence was closed as all material witnesses had been duly examined.
2.2 Statement of accused Sudarshan Kushwaha U/s. 313 CrPC was recorded on 19.02.2013 wherein he refuted the allegations against him in toto and stated that on the date of the accident, he had been stuck in traffic jam caused due to accident at Rajokri, and probably at that time, the installation slips handed over to him had fallen on the spot.
2. 3 I have heard Ld. APP for state and Ld. defence counsel for accused besides going through the record carefully.
3. Standard of Proof The prosecution was required to prove the following ingredients in order to bring home the guilt of the accused under section 279/304 A IPC and 146/196 MV Act.
I. That the offending vehicle was being driven by the accused at the FIR no. 321/10 State Vs Sudarshan Kushwaha 5 time of the accident.
II. That the accused was driving in a rash or negligent manner on account of which the accident was caused.
III. That as a result of the accident, death of one Sunita was caused. IV. That the accused was driving an uninsured vehicle at the time of the accident.
4. Decision and Legal Reasoning: On the basis of oral testimonies and documentary evidence on record, I am of the opinion that the accused deserves to be acquitted on account of the following reasons :
There is only one eye witness Jai Kishore produced by the prosecution to the accident in question who is the brother of the deceased Sunita. The said witness turned out as a highly unreliable witness. In his examination in chief, he has stated that he was crossing the road and was at a little distance behind deceased Sunita when suddenly a motorcycle hit her on the front side and the said motorcyclist fled away and he could not note down his number. However, he picked up a slip lying on the spot. Thereafter, it is stated that he went to his native village and returned back after 3 or 4 days and deposited the slip picked up from the spot to the police on 09.01.2011.
In his cross examination on the same day, the witness has taken a diametrically opposite stand and has stated that he left from the work place 10 or 15 minutes after Sunita and when he reached at the spot, about 10 minutes had elapsed FIR no. 321/10 State Vs Sudarshan Kushwaha 6 since the said accident had taken place. The said statement dents the case of the prosecution beyond repair as the witness has completely denied seeing the accident in question. Hence, during the crossexamination, the eye witness produced by the prosecution surfaces as a heresay witness. He has again changed his stand that he saw a motorcyclist hitting the deceased, on which Court Question was directed to him as to which of the statements was true, to which he has admitted that he did not see anything and reached at the spot 10 minutes after the accident, and only heard from a crowd of people collected on the spot that a motorcycle had hit Sunita. It is settled law that no weight can be attached to a heresay witness and hence, the case of the prosecution collapses in its entirety.
Moreover, the witness Jai Kishan has also stated that the police officials got his signature on some blank papers and he had no knowledge as to what was written on them.
Coming to the case of the prosecution that the installation slips handed over to the accused were found on the spot, on the basis of which section 133 MV Act notice was given to the company, who produced the accused, having possession of the slips, and had gone to attend to service orders on the date of the accident. At the outset, the slips in question were deposited in the police station on 09.01.2011 i.e two months after the accident. It is beyond the understanding of any reasonable person that if the same were found on the spot by the brother of the accused, which he apprehended belonged to the accused person and an important clue in the case, why the said person did not give them to the police on the very same day, or after returning from native village within 34 days. The fact that the said slips were FIR no. 321/10 State Vs Sudarshan Kushwaha 7 deposited in the PS almost two months after the incident raises a doubt on the case of the prosecution.
Coming to the evidentiary value of the slips picked up from the spot, to my mind, the mere presence of the slips on the spot of the accident does not go to prove anything against the accused. The accused has stated in his statement u/s 313 Cr. P.C that he was crossing the said place and was stopped due to a traffic jam caused due to accident and while taking out his mobile phone from the pocket, probably the slips of out bound delivery fell down by illluck. The explanation put forward by the accused appears to be probable. Even otherwise, the slips might have fallen at the time the accused was passing from the area at any point of time and accused cannot be connected with the crime in question merely if certain slips belonging to him are found on the spot, until and unless any person has noted the motorcycle number or identified the accused as the one who had hit the deceased, which is not so in the present case.
Further the IO ASI Mahesh Singh had expired before his deposition, and hence could not be subjected to cross examination with respect to the investigation conducted by him, especially on the aspect of signing of blank papers by the witness Jai Kishore. Hence, this sounds a deathknell for the case of the prosecution.
Coming to the case law on the subject, rashness and negligence in a case involving a death by negligent driving was explained by Hon'ble Supreme Court of India in Rathnashalvan Vs. State of Karnataka, (SC) 2007 AIR 1064 wherein it was held that:
FIR no. 321/10 State Vs Sudarshan Kushwaha
8
"Section 304A IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. The provision is directed at offences outside the range of Section 299 and 300 IPC. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under Section 304A IPC. 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.
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."
In the case of Shakila Khader Vs. Nausher Gama, AIR 1975 SC 1324, it was observed by Hon'ble Supreme Court as under :
"The main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed but the width of the road, the density of the traffic and the attempt to overtake the other vehicle resulting in going to the wrong side of the road and being responsible for the FIR no. 321/10 State Vs Sudarshan Kushwaha 9 accident."
Further in the case of Paras Nath Vs State of Delhi, 2004 Cri L.J.731 at 732 (Del)., it was observed as under:
"I am not in agreement with the submissions of Ld. Counsel for the appellant merely because the witness did not use the word rashness or negligence in his testimony and instead used the word high speed, cannot be taken that the appellant was not driving the vehicle in a rash and negligent manner. What is important is to find out if the driver of the offending vehicle was driving in public place rashly and in negligent manner so as to endanger human life or put forward to cause hurt or death to any other person. In the case, in hand the appellant that the scooterist had applied brakes all of a sudden and therefore, the appellant was taken unawares, which led the appellant's truck to hit the scooter from behind. Act of negligence can be clearly attributed to the petitioner in this case as he is solely responsible for causing this accident without any fault of the scooter. Rashness or negligence can be determined from the manner in which the accident had taken place. Even the site plan prepared by the investigator which was exhibited as PW5/C speaks about the negligence attributed to the petitioner. The appellant also admitted in his statement u/s 313 of the Code of Criminal Procedure that accident had taken place with his truck but denied that it was due to negligent and rash driving on his part because the offending vehicle in the case cited above hit from behind, the conviction was upheld."
In the judgment of S.L. Goswami Vs. State of M.P. reported as 1972 CRI.L.J.511(SC), it was held by Hon'ble Supreme Court as under :
".... In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution FIR no. 321/10 State Vs Sudarshan Kushwaha 10 to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution. Where the onus shifts to the accused, and the evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt...."
The onus and duty to prove the case against the accused is upon the prosecution and the prosecution must establish the charge beyond reasonable doubt. It is also a cardinal principle of criminal jurisprudence that if there is a reasonable doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt resulting in acquittal of the accused. Reference may also be made to the judgment titled as Nallapati Sivaiah V. Sub Divisional Officer, Guntur reported as VIII (2007) SLT 454 (SC).
In the judgment, State of Karnataka Vs. Satish, it was held by Hon'ble Supreme Court as under:
"Merely because the truck was being driven at a 'high speed' does not bespeak of either "negligence' or 'rashness' by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by record material to establish as to what it meant by 'high speed' in the facts and circumstances of the case. Criminality is not to be presumed, subject to course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of 'rashness' or 'negligence' could be drawn by invoking the maxim 'res ipsa loquitur'. There being no evidence on the record to establish 'negligence' or 'rashness' in driving the truck on the part of the respondent, it cannot be said that the view taken by the High Court in acquitting the respondent is a perverse view. Hence, the same calls for no interference."
Prosecution case may be true but criminal jurisprudence says that prosecution case must be true. There is a long distance between "may be true" and FIR no. 321/10 State Vs Sudarshan Kushwaha 11 must be true.
It is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent. The burden lies on the prosecution to prove the guilt of accused beyond reasonable doubt. The prosecution is under a legal obligation to prove each and every ingredient of offence beyond any doubt, unless otherwise so provided by any statute. This general burden never shifts, it always rests on the prosecution. (Daya Ram Vs. State of Haryana, (P&H) (DB), 1997(1) R.C.R. (Criminal) 662).
In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Pratap V. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always on prosecution and never shifts. In Nasir Sikander Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621 and Jarnail Singh v. State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. Prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless otherwise so provided by the Statute. (AIR 1962 FIR no. 321/10 State Vs Sudarshan Kushwaha 12 SC 605 relied). Accused is not expected to prove his innocence to the hilt. If prosecution story is doubtful, benefit of doubt must go to the accused.
In light of the aforesaid discussion and case laws, I am of the opinion that prosecution has been unable to prove the case beyond reasonable doubt. Hence, accused stands acquitted under S. 279/304A IPC.
Qua 146/196 MV Act, while the accused has been chargesheeted on the basis that the accused failed to produce a valid insurance policy on the date of the accident, nothing has been produced by the defence to prove otherwise. The accused has stated that he was merely an employee of Eureka Forbes Company and had no knowledge that the motorcycle in question was not insured. Hence, criminal liability cannot be imposed upon him. It is settled law that even though the essential ingredient to prove any criminal offence is a guilty mind, there are certain exceptions to it, which fall within the precincts of 'strict liability', Motor Vehicles Act being one of the statutory exceptions. Hence, despite the defence taken, accused stands convicted u/s 146/196 MV Act for offence of driving an uninsured vehicle.
5. Conclusion: In a nutshell, accused Sudarshan Kushwaha S/o Fauzdar Kushwaha stands acquitted u/s 279/304A IPC and convicted under Section 146/196 MV Act.
Ordered accordingly.
Announced in Open Court (S.M.Grover)
Dated: 19.02.2013 Metropolitan Magistrate 10
South Distt. Saket:New Delhi.
FIR no. 321/10 State Vs Sudarshan Kushwaha
Case no. 178/2 Dated 11.05.2012
FIR No. 321/10
PS Vasant Kunj (South)
U/s. 279/304A IPC and 146/196 MV Act
State Vs Sudarshan Kushwaha
19.02.2013
Present : . Ld. APP Sh Anil Kumar for the State.
Accused with Counsel
SA recorded. Final Arguments heard.
By virtue of separate judgment announced in the open court, accused Sudarshan Kushwaha S/o Fauzdar Kushwaha stands acquitted u/s 279/304A IPC and convicted under Section 146/196 MV Act.
Arguments on sentence heard.
Taking a lenient view, as the accused is stated to be having clean antecedents, and sole breadearner of a family of five, he is released on due admonition.
Further, accused has been directed to file a bail bond of Rs 10,000 under section 437 A CrPC, for which he has sought time. Allowed in the interest of justice.
Now, put up for 26.02.13
(SURYA MALIK GROVER )
MM10(SOUTH DISTRICT)/SAKET COURT/
NEW DELHI /26.02.2013
FIR no. 321/10 State Vs Sudarshan Kushwaha
Case no. 178/2 Dated 11.05.2012
FIR No. 321/10
PS Vasant Kunj (South)
U/s. 279/304A IPC and 146/196 MV Act
State Vs Sudarshan Kushwaha
26.02.2013
Present: Sh. Dheeraj Kumar, Ld. Substitute APP for the State.
Accused with counsel.
Bail bond under section 437 A Cr PC of Rs. 10,000/ furnished and accepted. Previous Bail Bond stands cancelled and Surety is discharged. Original documents may be returned. Endorsements if any, be cancelled. File be consigned to record room after due compliance (SURYA MALIK GROVER ) MM10(SOUTH DISTRICT)/SAKET COURT/ NEW DELHI /26.02.2013 FIR no. 321/10 State Vs Sudarshan Kushwaha