Delhi District Court
State vs . : Roshan Kumar on 1 June, 2012
IN THE COURT OF MS. APARNA SWAMI
METROPOLITAN MAGISTRATE02/NORTH
TIS HAZARI COURTS : DELHI
State Vs. : Roshan Kumar
FIR No. : 245/10
U/s : 279/304A IPC
PS : Kashmere Gate
JUDGEMENT
1 Unique ID No. of Case : 02401R0457492011
2 Date of commission offence : 15.12.2010 3 Date of institution of the case : 28.09.2011 4 Name of the complainant : SI Ganpati Maharaj from PS Kashmere Gate.
5 Name of accused, parentage & : Roshan Kumar S/o Sh.
Address Kichandra Chaudhary, R/o
Lakar Pur Mohalla, Prahalad
Pur, Faridabad, Haryana.
Permanent Address: V. P. O.
Khirhar District Madhubani,
Bihar.
Offence complained of : under Section 279 and 304A
6 IPC
7 Plea of the accused : Pleaded not guilty
8 Date of reserving for order : 26.05.2012
9 Final order : Acquitted
10 Date of Judgment : 01.06.2012
FIR No. 245/10 1/10
STATE VS. ROSHAN KUMAR
Briefly the case of prosecution is as under:
1. On 15.12.2010, an information through wireless operator N53 regarding an accident at Ring Road, Hanuman Mandir near Nigam Bodh Ghat, Kashmere Gate was received by HC Raj Kumar at PS Kashmere Gate. The said information was reduced into writing vide DD No. 31A and it was marked to SI Ganpati Maharaj for investigation. After the completion of investigation, present chargesheet u/s 173 Cr.PC was filed in the Court.
2. When the accused Roshan Kumar appeared in the court, he was supplied with copies of chargesheet alongwith documents in compliance of Section 207 Cr.PC. On 02.11.2011, notice for alleged commission of offence punishable under Section 279 and 304A IPC was served upon the accused, to which he pleaded not guilty and claimed trial.
3. The Prosecution Evidence commenced. In order to establish the case against the accused Roshan Kumar, prosecution has examined 5 (five) witnesses. Briefly the evidence is reproduced as under: 3.1 PW1 is Dr. B K Sharma, Casualty Medical Officer, Subzi Mandi Mortuary. On 23.12.2010, he was posted as CMO at Subzi Mandi Mortuary, at about 2.00 pm he conducted postmortem on FIR No. 245/10 2/10 STATE VS. ROSHAN KUMAR body of 'unknown' aged about 40 years brought by SI Ganpati Maharaj. On his testimony, postmortem report is Ex.PW1/A. The report finds mentions the cause of death as cranio cerebral injuries, antemortem in nature caused by blunt force impact possibly road traffic accident.
This witness was not cross examined by Ld. counsel for accused.
3.2 PW2 is Head Constable (HC) Raj Kumar. He deposed that on 15.12.2010 he was working as duty officer at PS Kashmere Gate. He received an information through wireless operator N53 regarding an accident on Ring Road, Hanuman Mandir near Nigam Bodh Ghat. The said information was reduced into writing vide DD number 31A (copy of which is Ex.PW2/A). This DD was marked to SI Ganpati Maharaj for investigation. He further deposed that Ct. Megh Raj brought Rukka being sent by SI Ganpati Maharaj and he got registered present FIR bearing number 245/10 u/s 279 and 304A IPC, the print out of which is Ex.PW2/B This witness was not cross examined by the Ld. counsel for accused.
3.3 PW3 Subhash Kumar Mishra who as per the Prosecution, was the eye witness of the incident. He deposed that on the FIR No. 245/10 3/10 STATE VS. ROSHAN KUMAR intervening night of 1516.12.2010, he left his shop at night at around 9.00 pm and went to his house. He further deposed that he did not witnesses any happening of the accident.
As this witness was resiling from his earlier statement given to police. Ld. APP for the State sought permission to cross examine him. In his cross examination by the State, he denied to have made any statement to the police. He denied that accused was driving the offending vehicle in rash and negligent manner resulting in crushing of a pedestrian who was crossing the road. He further failed to identify the accused as the driver of offending vehicle at the time of accident.
This witness was not cross examined by the Ld. counsel for the accused.
3.4 PW4 is Constable (Ct.) Megh Raj. On 15.12.2010 he was posted as Ct. at PS Kashmere Gate. HC Raj Kumar handed over him DD No. 31A, which he further handed over to SI Ganpati Maharaj for investigation. He reached at the spot with the IO of the present case SI Ganpati Maharaj for investigation, there he saw one dead body was lying on the road and a container (traulla) was standing nearby. Seeing all this, IO prepared Rukka and same handed over to this witness PW4, which he took to PS Kashmere Gate and got the FIR No. 245/10 4/10 STATE VS. ROSHAN KUMAR present case registered. The container (traulla) was taken into police possession vide seizure memo Ex.PW4/A. Documents of the offending vehicle were seized vide seizure memo Ex.PW4/B. This witness was cross examined by the Ld. counsel for accused.
3.5 PW5 is Sub Inspector (SI) Ganpati Maharaj, he is Investigating Officer of the present case. He deposed that on the intervening night of 1516.12.2010, DD number 31A was marked to him for investigation, for this purpose he reached at the spot of accident i.e. Ring Road, Hanuman Mandir, Nigam Bodh Ghat and saw one person was lying on the road in pool of blood. He also noticed I/C Sugar 19 HC Braham Jeet Singh was present there who informed that CAT ambulance has visited and its attendant declared the person dead. At about 4050 meters ahead of deceased, one container (traulla) bearing registration number HR46A6488 was standing. No eye witness was found at the spot at that time. He prepared rukka, the same was handed over to Ct. Megh Raj (PW4) who got registered the present FIR. Container (traulla) was taken into police possession, photographs of the spot as well as of the deceased were got clicked which are Ex.PW5/B/1 to Ex.PW5/B/11. The dead body was sent to mortuary for preservation. Thereafter, FIR No. 245/10 5/10 STATE VS. ROSHAN KUMAR notice u/s 133 M V Act was served upon the registered owner of offending vehicle namely Rajesh Chopra which is Ex.PW5/C and reply is Ex.PW5/D. Accused Roshan was arrested and his personal search was conducted vide memos Ex.PW4/E and Ex.PW4/F respectively. The offending vehicle was got mechanically inspected, (The report is Ex.PW5/F). Postmortem of the dead body was got conducted and it was sent to electric cremation ground. The documents of the offending vehicle were seized which are Ex.PW5/M/1 to Ex.PW5/M/8 and after completion of investigation, challan was filed in the court forwarded by SHO concerned.
Further he deposed that on 16.12.2010, he met with an eye witness of the incident namely Subhash Kumar who identified the accused as the driver of the offending vehicle namely Roshan Kumar. The statement of this witness was also got recorded by the IO/PW5 SI Ganpati Maharaj.
This witness was cross examined by the Ld. counsel for accused.
4. The statement of accused under Section 313 Cr.PC was recorded, to which he submitted that he has been falsely implicated in the present case and no accident was caused by him.
5. The final arguments are heard at length and file has been FIR No. 245/10 6/10 STATE VS. ROSHAN KUMAR perused thoroughly.
Before proceedings further it is relevant here to discuss Sec. 304 A IPC which reads as under: "Whoever caused 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".
The scope of Sec. 304 A IPC is discussed in case of Sanjeev Nanda Vs State 79 (1999) DLT 141 wherein it was observed that: "Sec. 304 A deals with homicide by negligence and carves out a specific offence wherein death is caused by doing rash and negligent act and the act does not amount to culpable homicide not amounting to murder under Sec. 299 or murder per se under Sec. 300 of IPC.
This will apply where there is no FIR No. 245/10 7/10 STATE VS. ROSHAN KUMAR intention to cause death or knowledge that the act done in all probabilities will cause death. Where there is requisite intention and knowledge in committing the act causing the death, Sec. 304 A IPC will have to make room for the graver and more serious charge".
In light of the above said scope and ambit of Sec. 304A IPC, the prosecution has to prove following ingredients: Firstly; On the date of incident i.e, 15.12.2010 the offending container (traulla) bearing registration number HR46A6488, was driven by the accused, secondly; the aforesaid bus was driven in rash and negligent manner, thirdly; it resulted in death of a 'unknown person' which is not amounting to culpable homicide.
The main witness in support of the story/version of Prosecution is PW3 Subhash Kumar Mishra. He deposed that he saw nothing on the alleged date of accident i.e.15.12.2010. As he was resiling from his earlier statement given to police u/s 161 Cr.PC. This witness was cross examined by Ld. APP for the State. In his FIR No. 245/10 8/10 STATE VS. ROSHAN KUMAR cross examination by the State, he submitted that he has not seen the accused driving the vehicle in rash and negligent manner. He further failed to identify the accused being driver of offending vehicle bearing registration number HR46A6488.
The other witnesses examined by the Prosecution are those who joined at the stage of investigation and had not witnessed the incident. Thus, their testimony can not be established in any manner the driving by accused Roshan Kumar in rash and negligent manner, resulting in death of a 'unknown person'.
Hence, by the evidence on record, the factum of the incident cannot be proved by any of the witness who were examined. So, the identity of the accused and the factum of incident cannot be proved.
Keeping in view the above said facts and the below mentioned ruling in the case of "Daya Ram vs. State of Haryana (P & H) (DB) 1997 (1) RCR (Cr;.) 662 wherein it was held that:
"Prosecution is under the legal obligation to prove each and every ingredients of the offence beyond any doubt unless otherwise so provided by the any statute. This burden never shift, it FIR No. 245/10 9/10 STATE VS. ROSHAN KUMAR always rest on the prosecution".
This court is of the opinion that the prosecution has failed to prove the happening of the incident as well as the identity of the accused and in view of the same, accused Roshan Kumar stands acquitted from the charge against him under Section 279 and 304A IPC Accused is on bail in this case. His bail bond stands canceled. Surety be discharged. Original document, if any, be returned on proper receipt and identification. Accused is admitted to bail under Sec. 437 A Cr.PC on his furnishing separate PB/SB in the sum of Rs. 10,000/ each. He seeks time for furnishing bail bond. Dictated and Announced in the open (APARNA SWAMI) court on 01.06.2012 MM02/NORTH/DELHI FIR No. 245/10 10/10 STATE VS. ROSHAN KUMAR