Delhi District Court
State vs . Hemant Kumar on 29 January, 2022
IN THE COURT OF SH. VINOD KUMAR MEENA
CHIEF METROPOLITAN MAGISTRATE
SOUTH WEST DISTRICT, DWARKA COURT, NEW DELHI
FIR No. 258/2009
PS Najafgarh
State Vs. Hemant Kumar
U/s 279/304A IPC
JUDGMENT
CIS No. : 428010/2016
Date of institution of the case : 07.05.2010
Date of commission of offence : 04.08.2009
Name of the complainant : Sh. Sher Singh
S/o Sh. Kapoor Singh,
R/o Village Ishapur, Near Dada Budha
Mandir, PS Jaffarpur, New Delhi.
Name of accused and address : Hemant Kumar
S/o Sh. Ram Avtar,
R/o H.No.876, Nawada Bazar,
Najafgarh, New Delhi.
Offence complained of : U/s 279/304A IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquittal
Date on which judgment reserved : 21.01.2022
Date of judgment : 29.01.2022
FIR No.258/2009, PS Najafgarh
State Vs. Hemant Kumar Page No. 1 of 13
BRIEF STATEMENT OF THE FACTS FOR DECISION:
1. Vide this judgment this court shall decide the case bearing FIR No. 258/2009 PS Najafgarh in which the accused has been chargesheeted for committing offences punishable under Section 279/304A, Indian Penal Code (45 of 1860) (hereinafter referred to as "IPC").
2. It has been alleged by the prosecution that on 04.08.2009, at about 09:45 PM, at Najafgarh-Uttam Nagar road, near Dwarka Metro Station and Metro Depot., accused while driving a motorcycle bearing registration no. DL4SAE5718 in a rash and negligent manner caused death of one pedestrian Rakesh, S/o Sh. Om Prakash. Thereafter, on the statement of complainant, the present FIR was registered.
3. After conclusion of investigation, the present chargesheet was filed against the accused u/s 279/304A IPC.
4. On receipt of chargesheet, Cognizance of offence was taken and accused was summoned to face trial. Copy of the chargesheet alongwith all annexures was supplied to the accused in terms of Section 207 Cr.P.C.
5. After giving opportunity to state as well as accused for making submissions on charge, a charge for offence u/s 279/304A IPC was framed against the accused on 11.01.2012, to which he pleaded not guilty and claimed trial.
6. Prosecution has examined ten witnesses to prove its case.
FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 2 of 13
7. Eye witness/complainant Sh. Sher Singh has been examined as PW-1. He has deposed that on 04.08.2009, he alongwith his friend Rakesh were coming from Village Issapur and his friend was going to attend his night shift duty and they both got down from the bus stand at Sai Baba Mandir, Najafgarh. They both were crossing the road, his friend Rakesh was ahead him, then one motorcycle bearing registration no. DL4SAE5718 came from Uttam Nagar side in a high speed and in rash and negligent manner and hit his friend Rakesh. Rakesh fell down on the road and motorcyclist (he correctly identified the accused before the court), were received injuries. He further deposed that due to said injuries received by Rakesh, he died at the spot. He further deposed that at that time, PCR van, which was already standing near Sri Baba Mandir, came and took both the injured persons to RTRM hospital. He further deposed that accident was caused due to the negligence of driver of motorcycle. IO recorded his statement. He correctly identified offending motorcycle shown in photographs Ex. PW1/1 and Ex. PW1/2.
8. Sh. Rajesh, brother of deceased Rakesh has been examined as PW-
2. He had identified the dead body and had received dead body after postmortem vide receipt memo Ex. PW2/1.
9. Mechanical Inspector Sh. Proran Chand has been examined as PW-
3. He deposed that on 08.08.2009, he had mechanically examined one motorcycle bearing no. DL4SAE5718 and prepared detailed report Ex. PW3/1 and Ex. PW3/2.
10. Sh. Ramavtar has been examined as PW-4. He has deposed that in FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 3 of 13 the year 2009, he was running a motorcycle repairing shop in Bijwasan and on 03.08.2009, one Sangram Singh gave his motorcycle bearing registration no. DL4SE5718 for repairing to him. He asked his son namely Hemant for giving the motorcycle to Sangram Singh in the evening at around 8:00 pm at Dwarka Mor after repairing as there was not enough parking in the shop. He further deposed that he did not have any idea regarding the accident of Hemant. He further deposed that he received a phone call from hospital regarding the accident. He averred qua the details of Ex. PW4/A. During putting leading question to PW-4 by Ld. APP for the State, he stated that he did not remember the exact date whether it was 03.08.2009 or 04.08.2009.
11. ASI Karan Singh has been examined as PW-5. He has deposed that on 04.08.2009, on receipt of DD No.75 B, he accompanied ASI Ramesh to the spot of accident. He averred qua details of seizure memo of motorcycle Ex. PW5/A.
12. Sh. Subodh Kumar Yadhuvanshi has been examined as PW-6. He has deposed that he was the registered owner of motorcycle bearing registration no. DL4SAE5718 and he had sold the said motorcycle in the year 2007 to Sh. Sangram. He averred qua the details of delivery-cash receipt Ex. PW6/A. He further deposed that he had handed over all the documents of the said motorcycle to Sh. Sangram.
13. Sh. Sangram Kesar Samai has been examined as PW-7. He has deposed that he had purchased vehicle bearing registration no. DL4SAE5718 from Subodh Kumar Yadhuvanshi in the year 2007 for a sum FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 4 of 13 of Rs. 10,000/- and had sold the same to Sh. Ram Avtar within about one month for a sum of Rs. 11,000/-. He had handed over all the documents to Sh. Ram Avtar. He asked Ram Avtar to get the vehicle transferred in his name on which he told that he has already got it transferred in his name.
14. Sh. Surender Kumar has been examined as PW-8. He has deposed that he did not remember the month and year when the accident had occurred due to lapse of time but it was 4th. He further deposed that on that day, he had gone to Chandni Chowk and while returning, he came by metro and got down at Dwarka Mor Metro Station, where he met Hemant Kumar. Accused Hemant Kumar was also resident of their locality. He took lift on the motorcycle of Hemant Kumar for going to his house. He did not remember the make and registration number of the said motorcycle. When they reached near Sai Baba Mandir, at about 08:00 pm, one truck hit the said motorcycle from behind which resulted into an accident. He did not know what happened thereafter, he regained his consciousness after one and a half month of the accident. He had received injuries on his right hand, right leg and on his head. Due to the accident, he had lost his memory.
During his cross-examination by Ld. APP for the State, he denied the suggestion that he on 04.08.2009, at about 09:15 pm, when he alongwith accused Hemant reached Najafgarh, Uttam Nagar Road, Near Metro Station Gate on his motorcycle bearing registration no. DL4SAE5718 which was being driven by accused Hemant in a high speed and in a rash and negligent manner and while driving so hit one pedestrian alongwith them sustained injuries. He further denied the suggestion that he is intentionally and deliberately deposing falsely in this regard as he had been won over by accused.
FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 5 of 13
15. Retied SI Ramesh Kumar has been examined as PW-9. He has deposed that on 04.08.2009, on receipt of DD No.75B, Ex. PW9/A, at about 09:45 pm, regarding accident, in front of Metro Depot Gate, Najafgarh Uttam Nagar Road, he alongwith Ct. Karan Singh reached at the spot where one motorcycle bearing No. DL4SAE5718 was found stationed on the side of the road. They came to know that the injured had been shifted to some unknown hospital by PCR van. In the meantime, he received information from the DO that injured has been admitted in RTRM hospital. He left Ct. Karan Singh at the spot and left for RTRM hospital where one of the injured Rakesh Kumar was reported to have been brought dead vide MLC. He further deposed that accused Hemant was also found admitted in the hospital and the doctor had declared him unfit for statement. The other injured was referred to some other hospital. He further deposed that no other witness was found at the spot. He returned back to the spot and prepared rukka Ex. PW9/B on the basis of DD No.75B and got the FIR registered through Ct. Karan. He seized motorcycle vide seizure memo Ex. PW5/A. He got conducted postmortem of dead body of deceased Rakesh from RTRM hospital. He further deposed that on 10.09.2009, the investigation was transferred to MACT Cell. He correctly identified photographs Ex. P1/1 and Ex.PW1/2.
16. ASI Tilak Ram has been examined as PW-10. He has deposed that on 22.09.2009, he joined the investigation of the present case with ASI Suraj Pal. He averred qua details of arrest memo of accused Hemant Kumar Ex. PW10/A, personal search memo of accused Ex. PW10/B and seizure memo of driving license of accused Ex. PW10/C. He correctly identified accused FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 6 of 13 before the court.
17. No other witness was examined by prosecution and hence, PE was closed vide order dated 25.01.2020.
18. Statement of accused under Section 313 Cr.P.C. was recorded on 06.04.2021 wherein the entire incriminating evidence was put to him. It was submitted by the accused that he was hit by a truck from behind and he fell unconscious and he is not aware as to what had happened and he had not hit anybody. According to him, he has been falsely implicated in the present case. Accused choose not to lead any evidence in his defence and hence the matter was put up for final arguments.
19. Final arguments were thereafter heard on behalf of State as well as the accused.
20. Ld. APP for the State argued that the prosecution has proved its case beyond reasonable doubts. It has been proved that the accused was driving the offending vehicle at the relevant date, time and place. It has also been proved that the accused was driving the vehicle at very high speed and in rash or negligent manner. The prosecution has also proved that due to such rash or negligent driving, the offending vehicle hit the victim namely Rakesh. It is also submitted by Ld. APP for the State that the accident would not have happened but for the rash or negligent driving of the accused. Hence, the prosecution has proved all the ingredients of the offences punishable under Section 279/304A, IPC and the guilt of the accused has been proved beyond reasonable doubts and it is prayed, the accused may be FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 7 of 13 convicted.
21. Ld. Defence counsel, on the other hand, argued that the prosecution has failed to prove its case against the accused beyond reasonable doubts. There are various contradictions in the testimonies of the witnesses of the prosecution. None of the prosecution witness has been able to prove that the accused was driving the offending vehicle in rash or negligent manner. The prosecution has also failed to prove that the accused was driving the vehicle at very high speed or in a rash or negligent manner. There are contradictions in the testimony of even the eye witness and the police officials who appeared as PWs. Thus, reasonable doubts have been created on the story of the prosecution. It is finally submitted by the Ld. Defence counsel that the benefit of doubts may be given to the accused and he may be acquitted.
22. I have heard the rival submissions and carefully perused the material available on record.
23. In a criminal case the burden is on the prosecution to prove its case beyond reasonable doubts before the accused is asked to put his defence. In the present case, the accused has been charged for the offences punishable under Sections 279/304A, IPC.
24. Section 279, IPC prescribes punishment for rash or negligent driving or riding on a public way. To constitute an offence under Section 279, IPC, it was incumbent upon the prosecution to prove that i. the vehicle in question was being driven by the accused; FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 8 of 13 ii. the vehicle was being driven on any public way; iii. the vehicle was being driven in a rash or negligent manner so as to
(a) endanger human life, or
(b) be likely to cause hurt or injury to any person.
25. In the present case, it is an admitted fact as reflected from the averments of PWs that accused was driving the impugned vehicle at the impugned time and the same was driven on any public way. However, the factum of manner of driving being rash and negligent in nature, has to be proved beyond reasonable doubt by the prosecution.
26. It is no more res integra that the mere fact that an accident had taken place and some person/s has lost his life due to that accident cannot lead to a conclusion of rash or negligent driving.
27. In the present case, the accused had taken defence that he was driving the impugned vehicle at the impugned time and he was hit by a truck from behind and accordingly, he got injured alongwith pillion rider and pedestrian Rakesh Kumar. The vehicle was found on the spot, however, no accused was apprehended on the spot. It is an admitted fact that police officials took all the three injured persons i.e. Rakesh, accused Hemant Kumar and Surender Kumar to hospital, where Rakesh was declared as brought dead by the hospital authority. It is stated by PW-9 Retired ASI Ramesh who was IO in this case that he alongwith Ct. Karan Singh (now ASI) went to spot after receiving the DD entry and after reaching the spot they found that only one motorcycle bearing no. DL4SAE5718 was stationed at the side of road and all the injured persons were taken to FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 9 of 13 hospital by PCR van and they found no eye witness on the spot. PW-9 categorically averred in his evidence that no witness was found at the spot. The relevant para is quoted here as under:-
"No other witness was found at the spot."
"When I reached at the spot, nobody was found at the spot. It is correct that the spot of accident is a busy running road."
28. PW-5 also averred on similar lines of IO and submitted that no public person or witness was found on the spot. The relevant para is quoted here as under:-
"It is correct that public persons had gathered at the spot. IO did not record the statement of any public person in my presence. IO tried to interrogate public persons, however, they left the spot without disclosing their names and addresses. After returning to the spot from the hospital, the IO did not interrogate any public person. No notice was served to any public person to join investigation."
29. From the averment of investigating officer and police officials, it is clear that no eye witness or public witness was found on the spot. Very strangely prosecution has produced one Sh. Sher Singh as eye witness as PW-1. PW-1 submitted that accused was driving the impugned vehicle at the impugned time at a very high speed in a very rash and negligent manner and caused the accident. PW-1 has not averred anything accept the factum of high speed to substantiate the manner of rash and negligent. Needless to say that statement of PW-1, who has been mentioned as eye witness, is in total contradiction of IO and police officials as they categorically averred that no public witness or eye witness was found on the spot.
30. PW-8 Sh. Surender Kumar has deposed that he was alongwith FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 10 of 13 accused Hemant Kumar at the impugned date and time as pillion rider and accident occurred as the motorcycle was hit from back by a truck and he alongwith motorcyclist Hemant Kumar and pedestrian Rakesh got grievous injuries.
31. From the above mentioned, there is nothing to substantiate that accused Hemant Kumar was driving the impugned vehicle at impugned time in a rash and negligent manner.
32. Though the presence of eye witness PW-1 is under clouds, yet even if his statement is taken as true, it can only be deduced that accused was driving the vehicle at a high speed. It is trite now that driving a vehicle at a high speed cannot be termed as rash and negligent driving. The manner of rash and negligent driving has to be categorically prove, which has not been done in the present case.
33. In view of the discussion herein-above, it can be deduced that the prosecution has failed to establish beyond reasonable doubts that the accused had been driving the offending vehicle at the impugned time in rash or negligent manner, so, as to endanger human life or likely to cause hurt or injury to other person. Hence, ingredients of offence punishable under Section 279, IPC are not proved beyond reasonable doubts.
34. Once it is not proved that the accused was driving the vehicle in rash or negligent manner, it also remained not proved that any rash or negligent act of the accused had caused death of victim not amounting to culpable homicide. To impose criminal liability on the accused for an FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 11 of 13 offence punishable under Section 304A, IPC, it is necessary that the death should have been the direct result of a rash and negligent act of the accused and that act must have been the proximate and efficient cause without the intervention of another negligence. It must have been the causa causans; it is not enough that it may have been the causa sine qua non.
35. It has been argued by the prosecution that the fact that vehicle had found on the spot is "res ipsa loquitor" which proves that accused was driving the vehicle in rash or negligent manner.
36. I have considered the submission. However, I find it difficult to agree with this submission. Hon'ble Supreme Court of India in Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh, AIR 2000 SC 2411 has discussed the rule of res ipsa loquitor and rash or negligent act. It has held as under:
"The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in actions relating to negligence. The said principle has application only when the nature of the accident and the attending circumstances would reasonably lead to the belief that in the absence of negligence the accident would not have occurred and that the thing which caused injury is shown to have been under the management and control of the alleged wrong doer.
"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 precaution."
FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 12 of 13
37. In the present case, however, as discussed herein-above, the prosecution has failed to establish that death was occasioned by either rash and/or negligent driving of the vehicle or any negligent act of accused. Apart from the fact that offending vehicle was found on the spot, there is nothing on record to establish that the accused had driven the vehicle rashly or negligently or did any act which would amount to a rash or negligent act so as to attract the provisions of Section 279/304A IPC. Therefore, benefit of doubts is given to the accused as per law. He is acquitted of the offences alleged.
38. Accused has already furnished the bail bond under Section 437A of Cr. PC, with one surety along with photographs and copies of address proof.
39. File be consigned to Record Room.
Pronounced in the open court through Video Conferencing on this 29th day of January, 2022 (VINOD KUMAR MEENA) Chief Metropolitan Magistrate South West District, Dwarka Courts New Delhi FIR No.258/2009, PS Najafgarh State Vs. Hemant Kumar Page No. 13 of 13