Delhi District Court
State vs . Anil Kumar on 31 July, 2018
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IN THE COURT OF MS. NEETI SURI MISHRA: METROPOLITAN MAGISTRATE02
(CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Anil Kumar
FIR No. 408/07
U/s: 279/304A IPC & 66(1)/192A Motor Vehicles Act
P.S. Timar Pur
J U D G M E N T
Unique Identification No. : 299919/16
Date of Institution : 21.08.2008
Date on which case reserved for
judgment : 27.07.2018
Date of judgment : 31.07.2018
Name of the complainant : Sanjay
Date of the commission of
offence : 21.07.2007
Name of accused : Anil Kumar S/o Sh. Amar Singh
R/o 746, Village Burari, Delhi84
Offence complained of : U/s 279/304A IPC & Section
66(1)/192A Motor Vehicles Act.
Offence charged of : U/s 279/304A IPC & Section
66(1)/192A Motor Vehicles Act.
Plea of the accused : Pleaded not guilty.
Final order : Acquitted
FIR No .408/07, State vs. Anil Kumar
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1.The brief facts of the case are that on 21.07.2007, at about 2 pm, at Jamuna Pushta, Pradhan Enclave, Burari within the jurisdiction of PS. Timar Pur, it is alleged that the accused was driving one RTV (School Bus) bearing no. DL 1VA 2667 in a rash or negligent manner and in the process of driving the vehicle in the abovementioned manner, he caused the death not amounting to culpable homicide of one child namely Dheeraj Khandari who allegedly fell down from the RTV. It is further alleged that the vehicle did not have the necessary permit required by the bus for carrying school children. Therefore, the allegations against accused are that he violated the provisions of Section 279/304A IPC & Section 66(1)/192A Motor Vehicles Act.
2. On receipt of DD no. 19 recording the accident, the IO prepared rukka on the basis of the statement of the eye witness and on that basis FIR in the present case was registered. Investigation as per the FIR was thereafter conducted by the police officials.
3. On conclusion of the investigation, chargesheet was filed in terms of Section 173 Cr.P.C. for the offences under Section 279/304A IPC & 66(1)/192A Motor Vehicles Act against the present accused and u/s 66(1)/192A Motor Vehicles Act against the owner of the RTV. The court took cognizance of the offences and the copy of the challan was supplied to the accused in compliance with the provision under Section 207 Cr.P.C. The owner of the bus namely Smt. Mona Kaushal pleaded guilty to the offence alleged against her and she was duly penalized by the court, during the course of trial.
4. On the basis of the contents of the chargesheet and after hearing both the parties, notice u/s 251 Cr.P.C. was served upon the accused for the commission of offences under Section 279/304A IPC & Section 66(1)/192A Motor Vehicles Act.
FIR No .408/07, State vs. Anil Kumar 3 The accused did not plead guilty and claimed to be tried.
5. To establish the guilt of the accused, the prosecution examined a total of 14 witnesses. The gist of their testimonies is as under:
PW1 ASI Bahadur Singh deposed that on 21.07.2007, he was working as Duty officer. When he received rukka at 5.30 pm in this case, on the basis of which he registered the present FIR. The computer generated copy of the FIR is EX.PW1/A and the endorsement on the rukka is EX.PW1/B. PW2 Sanjay deposed that in the year 2007, he was studying in Class IX in Mother Teressa Senior Secondary School at Baba Colony, Burari. Witness stated that he does not remember the exact date and month of the incident but on that day, when he was going from school to his house in the school bus, at about 2.30 pm, when the bus reached near Jamuna Pushta, Burari, he was sitting on the backside of the bus and was sleeping. He stated that when the accident occurred, he woke up and found out that one person namely Dheeraj Khandari had met with an accident. Witness stated that Dheeraj Khandari was a fellow student. Witness failed to recollect the number and the colour of the bus. He also failed to recollect the name of the driver of the bus. He also failed to identify the accused as the driver of the bus in the court. He however, admitted that the injured was taken to HRH hospital by him and the driver. He stated that the IO recorded his statement as EX.PW2/A. The Ld. APP for State then sought permission to crossexamine the witness. Witness denied remembering the date of incident to be 21.07.2007. He admitted as correct that about 40 children had boarded the bus. On that day, however, denied that the number of the bus was DL 1VA 2667. He admitted as correct that the conductor of bus was not present. He denied that the name of the bus driver was Anil Kumar. He also denied that the accused was driving the bus in a rash and negligent manner and FIR No .408/07, State vs. Anil Kumar 4 forced the students to get down from the bus hastily. Witness correctly admitted that the injured Dheeraj Khandari used to get down alongwith him at his bus stop. He denied that the accused driver forced them to get down on the stop. He denied that the injured Dheeraj Khandari told the accused driver to drop him at near his house at Burari but the accused driver did not pay any heed to him. He denied that injured Dheeraj Khandari was alighted from the bus and while he was doing so, the accused quickly accelerated the bus, as a result of which Dheeraj Khandari received severe injuries. Witness stated that Dheeraj Khandari was shifted to HRH hospital but denied that IO prepared site plan at his instance. He also denied being won over by the accused due to fear or favour. He did not identify the accused as driver of the offending vehicle.
PW3 Rajesh Kumar deposed that in the year 2007, an accident had happened with one child who used to go along with his children in the school bus. Witness stated that he does not remember who had met with the accident in the school bus. He also stated that he does not know who was the driver of the bus. On being cross examined by Ld. APP for the State the witness failed to identify the accused and further in his cross examination, he stated that he has no personal knowledge with respect to the case.
PW4 Suresh Singh deposed that on 21.07.2007, his son had met with an accident. He identified the dead body of his son vide memo EX.PW4/A and also proved the handing over memo of the dead body as EX.PW4/B. PW5 Kewal Krishan record clerk from Hindu Rao Hospital proved the MLC no. 7368/07 as per which injured Dheeraj Khandari was medically examined on 21.07.2007 at 2.30 pm by Dr. Deepa Negi. Witness stated that he had worked with Dr. Deepa Negi and had seen her writing and signing the documents. So is capable FIR No .408/07, State vs. Anil Kumar 5 of proving the MLC as EX.PW5/A. PW6 Retired ASI(Tech.) Devender Kumar proved the mechanical inspection report of RTV bearing no. DL 1VA 2667 as EX.PW6/A. PW7 Virender Singh proved the dead body identification memo of the deceased as EX.PW7/A. PW8 Ct. Anil stated that on 21.07.2007, on receiving DD no. 19, the witness accompanied the IO ASI Ramphal to Hindu Rao Hospital. IO collected the MLC of the injured on which he was declared brought dead. IO prepared the rukka and handed it over to the witness for registration of FIR and he took the same to the Police Station. He got the FIR registered. He stated that the driver of the offending vehicle was present in the hospital. Vehicle was further seized by the IO vide memo EX.PW7/A. IO arrested the accused and conducted his personal search vide memos EX.PW7/B and EX.PW7/C and seized the DL of the accused vide memo EX.PW7/D. The witness on the next day accompanied the IO for postmortem of the deceased and after postmortem, the dead body was handed over to the relatives. Witness identified the accused in court.
PW9 SI Yuvraj Prasad deposed that on 17.06.2008, investigation of the present case was marked to him. He prepared the kallandra of this case against the owner of the RTV and gave notice u/s 133 M V Act to the principal of Mother Teressa Public School and after completion of investigation, he filed the challan.
PW10 Retired SI Ramphal deposed that on 21.07.2007, on receiving DD entry no. 19, he went to Hindu Rao Hospital with Ct. Anil and collected the MLC of deceased. He met one eye witness namely Sanjay whose statement was recorded by FIR No .408/07, State vs. Anil Kumar 6 witness as EX.PW2/A. He prepared the rukka EX.PW10/A and handed it over to Ct. Anil for registration of FIR. He got the dead body of the deceased shifted to the mortuary. Witness identified the accused in court and stated that he was also present in the hospital along with offending vehicle i.e. RTV bearing no. DL 1VA 2667. Then he along with the accused and complainant Sanjay went to the spot and prepared the site plan EX.PW10/B. In the meantime, Ct. Anil came back and handed over the copy of FIR. Thereafter, the witness arrested the accused and conducted his personal search vide memos EX.PW7/B and EX.PW7/C. He seized the offending vehicle and DL of the accused . He got the mechanical inspection done of the vehicle and after postmortem of the dead body handed it over to the relatives of the deceased. Witness stated that thereafter, he got transferred and he handed over the case file to the MHCR.
PW11 Shiv Shankar Kaushik deposed that he was posted as principal at Mother Teressa Public School from 20062010. In the year 2007, one student namely Dheeraj Khandari used to come to the school by bus bearing no. DL 1VA 2667 and the owner of the abovesaid bus was Mona Kaushik.
PW12 Dr. Neelesh Dangi proved the report of the postmortem conducted on the dead body of the deceased as EX.PW12/A. PW13 ASI Girish Kumar stated that on 21.07.2007, he received information through telephone from the Hindu Rao Hospital to the effect that one injured namely Dheeraj Khandari was admitted in the hospital after accident and was brought dead and one person who was driving the RTV no. DL 1VA 2667 which was offending vehicle had shifted him to the hospital. Witness proved the original DD entry as EX.PW13/A(OSR).
FIR No .408/07, State vs. Anil Kumar 7 PW14 ASI Hukum Singh stated that during investigation the offending vehicle RTV bearing no. DL 1A 2667 was released on superdari for an amount of Rs.4,00,000/. After seizure of RC , witness prepared seizure memo EX.PW14/B and then he recorded the statement of the owner of the vehicle and he stated that accused Anil Kumar was driving the offending vehicle on the day of the incident. Witness also stated that Anil Kumar was working as her driver.
6. On completion of prosecution evidence, all the incriminating facts and evidence were put to the accused, as per the mandate of Section 313 r/w Section 281 Cr.P.C. and his statement was recorded without oath. Accused refused to lead defence evidence.
7. Thereafter, matter was fixed for final arguments. Final arguments were heard and the record of the case was perused thoroughly. The case of the prosecution is that on 21.07.2007, at about 2 pm, at Jamuna Pushta, Pradhan Enclave, Burari within the jurisdiction of PS. Timar Pur, the accused was driving one RTV (School Bus) bearing no. DL 1VA 2667 in a rash or negligent manner and in the process of driving the vehicle in the abovementioned manner, he caused the death not amounting to culpable homicide of one child namely Dheeraj Khandari who allegedly fell down from the RTV. It is further alleged that the vehicle did not have the necessary permit required by the bus for carrying school children.
8. In order to prove the abovementioned allegations, the prosecution was required to prove:
(i) That the accused was driving/ riding the vehicle at the relevant time of the accident/ incident;
(ii) That it was a public way on which he was driving or riding, and;
(iii) That he was driving or riding in a rash or negligent manner.
FIR No .408/07, State vs. Anil Kumar 8
9. With regard to the identity of the accused as the driver of the offending vehicle, it is pertinent to note that the accused in his statement recorded u/s 313 r/w Section 281 Cr.P.C has admitted that he was driving the RTV bearing no. DL 1VA 2667. The identity of the accused remaining undisputed, the first ingredient gets fully satisfied.
10. As regards the second requirement, since it is admitted that the offending vehicle was being driven at Yamuna Pushta, Pradhan Enclave i.e. a public way, the second requirement stands satisfied as well.
11. Thirdly, with regard to the allegations that offending vehicle was being driven in a rash or negligent manner and that the accident was caused by the accused, the most important witness of the prosecution is PW2 Sanjay. In his testimony PW2 Sanjay has completely denied that the accused was driving the vehicle in a rash or negligent manner and that he used to force the students to get down from the bus hastily. Besides this, PW2 has also stated that he does not know how and with which vehicle did the accident of deceased Dheeraj Khandari, occur. He has clearly stated that he got to know about the accident only after its occurrence as he had been sitting on the back seat of the bus and was sleeping and he woke up only when the accident had occurred. Further, the IO seems to have very conveniently implicated the accused simply because the accused took the injured to the hospital, there is absolutely no description of the manner in which the accident occurred. If it had been caused by the tyres of the vehicle of the accused, then there ought to be some blood on the tyres of the vehicles, so the case of the prosecution is vague against the accused. Therefore, having marshalled the testimony of PW2 and the other witnesses of the prosecution, I have come to the conclusion that not even a single witness of the prosecution has deposed that the accused was driving the vehicle in FIR No .408/07, State vs. Anil Kumar 9 rash or negligent manner or that the accident had occurred because of his fault.
PW2 the prime witness does not seem to have supported the case of prosecution inspite of a lengthy cross examination conducted by Ld. APP for the State. More so, he has also stated in his crossexamination that he is not aware of the contents of his complaints as his signatures were taken on blank papers by the police. Hence, there is no evidence against the accused to substantiate the allegations of the prosecution in respect of Section 279/304A IPC.
12. Besides the abovementioned allegations, it was also contended that the RTV for the purpose of ferrying school children, was being driven by the accused without the necessary permit and therefore, notice u/s 66(1)/192A Motor Vehicles Act was also framed against the accused. But admittedly, no witness was summoned by the prosecution to prove the abovementioned allegations.
13. In light of the fact that none of the prosecution witnesses have supported the prosecution side of story, the accused Anil Kumar is acquitted of the charges punishable u/s 279/304A IPC and Section 66(1)/192A Motor Vehicles Act.
14. Bail bond in compliance of Section 437 A Cr.P.C was directed to be furnished. The same was duly furnished and accepted and the said bond shall remain in force for a period of six months. NEETI Digitally signed by NEETI SURI SURI MISHRA Date: 2018.08.06 MISHRA 21:15:12 +0530 Pronounced in open court (NEETI SURI MISHRA) on 31.07.2018 MM02 (Central): Tis Hazari Courts Courts:Delhi:/31.07.2018 (This Judgment contains 9 pages and all pages are signed by me) FIR No .408/07, State vs. Anil Kumar