Delhi District Court
State vs . Karan Sharma on 9 March, 2022
IN THE COURT OF SH. GAJENDER SINGH NAGAR, CMM,
CENTRAL DISTRICT, TIS HAZARI COURT,DELHI
STATE VS. KARAN SHARMA
FIR NO. 209/2015
PS: DBG ROAD
U/S: 279/304-A IPC
CNR No. DLCT02-008295-2015
New Case ID No. : 298925/2016
Date of commission of offence : 27.03.2015
Date of institution of the case : 05.06.2015
Name of the complainant : SI Shiv Prakash, No. D-
4648, PS DBG Road, Delhi.
Name of accused and address : Karan Sharma
S/o Sh. Ranjan Sharma
R/o H. No. 154/9B, X Block,
Gali No. 8, Brahmpuri
Ghonda, Delhi.
Offence complained of or proved : U/s 279/304-A IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date on which reserved for judgment: 23.02.2022
Date of judgment : 09.03.2022
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BRIEF STATEMENT OF THE REASON FOR DECISION:
THE FACTS :
1. Brief facts of the case are that vide DD No. 12A, PS DBG Road on 27.03.2015 at about 10.40 AM, Police Station was informed that victim Sh. Ved Pal Arya has been admitted in Jeewan Mala Hospital due to road accident. The DD entry was made at information given by Ct.FIR No. 209/2015, PS DBG Road Page 1/13
Pawan of PCR. On this DD entry SI Shiv Prakash and Ct. Surender reached the hospital, collected the MLC of the victim. The patient was unfit for statement. Since SI Shiv Prakash found the matter to be of an offence u/s 279/337 IPC, he prepared the rukka and get the FIR registered. Thereafter, FIR was registered and SI Shiv Prakash himself investigated the matter. Thereafter, he found eye witness of the incident namely Sh. Chander Bhan. It is stated by the eye witness Sh. Chander Bhan that he is security guard in Jeewan Mala Hospital. On 27.03.2015, at about 9.00 AM, he was present at the gate of the hospital. He saw that a motorcycle came at a fast speed from Anand Parbat side, going towards Rani Jhansi Road. The motorcycle bearing registration number DL-1SV-4300 over took a DTC bus moving on the right side of the motorcycle. The motorcycle hit the victim who was going on the road, due to which victim fell down on the road. The motorcycle driver also fell down with the motorcycle which was dragged on the road to a distance. Due to this the DTC bus coming from behind had to apply sudden breaks. It is stated that blood was oozing from the head of the victim. It is stated that this witness shifted the victim to the emergency of Jeewan Mala Hospital with the help of other guard Sh. Akhilesh Yadav. It is also stated that after the incident, the motorcycle rider came in the hospital and apprise the doctor about his name and other particulars. In some time, family of the offender also came there and he alongwith his family left the spot. During investigation, the victim died due to injuries received by him. Accordingly, after the investigation, police filed the present charge sheet against the accused.
2. Complete set of copies were supplied to the accused. After hearing arguments, notice U/s 251 Cr.P.C. was served upon the accused for trial of offence U/s 279/304-A IPC, to which he pleaded not guilty and claimed trial.
MATERIAL EVIDENCE IN BRIEF:
3. To support its case the Prosecution examined following witnesses.
FIR No. 209/2015, PS DBG Road Page 2/134. PW1 Sh. Vaibhav Tomar deposed that he is the registered owner of the motorcycle bearing No. DL-1SV-4300 (Splendor Pro). He had produced documents of his abovesaid motorcycle which were taken into possession vide seizure memo Ex. PW1/A. His motorcycle was also taken into possession vide seizure memo Ex. PW1/B. Police officer had given him notice u/s 133 M V Act. He had given his reply upon the same to the effect that his abovesaid motorcycle was driven by the accused (correctly identified) at the time of accident on 27.03.2015. The notice u/s 133 M V Act is Ex. PW1/C. He had also produced accused Karan Sharma before the police official. Accused was arrested and information of arrest was given to the relative of accused Sh. Daya Shankar. Accused was released on police bail on surety of Daya Shankar. Police official recorded his statement in this regard. He had obtained the vehicle on superdari after executing superdarinama. He could not produce his motorcycle as the same had been stolen on 23.09.2016 from in front of Vinayak Restaurant, Loni Road, and e-FIR No. 028143/2016 was registered in this regard. Copy of the said FIR is Mark 1A (same is taken on record). (identity of the abovesaid motorcycle is not disputed by the accused).
5. PW2 Sh. Akhilesh Yadav deposed that on 27.03.2015, at about 10.00 AM, one motorcycle bearing registration number DL-1SV-4300 was coming from Anand Parbat and going towards Jhandewalan on New Rohtak Road. The incident took place in front of Jeewan Mala Hospital. He alongwith Chander Bhan (who works at Shree Jeewan Hospital) took the injured to the Jeewan Mala Hospital and got him admitted in the Emergency Ward. Accused was correctly identified by PW-2. This witness was cross-examined on behalf of the State. In his cross examination he admitted that the motorcycle was being driven at high speed and in rash and negligent manner. The motorcycle driver hit the injured who was on foot from the back, by overtaking the DTC bus at DCM side corner. It is admitted by him that due to the incident, the blood start oozing out from the head of the injured and the injured FIR No. 209/2015, PS DBG Road Page 3/13 became unconscious. It is admitted that after some time relative of the injured came to the hospital. In his cross examination on behalf of accused, it is deposed by this witness that there was no zebra crossing at the spot for crossing the road. It is deposed that there used to be heavy traffic on the road in question, the vehicle ply slowly on that road. It is further stated that as soon as traffic signal turned green, vehicle start at fast speed, however, in some time the traffic again became slow. It is stated that the offending vehicle hit the DTC bus from conductor side of the DTC bus.
6. PW3 Sh. Chander Bhan deposed that on 27.03.2015, at about 10.00 AM, one motorcycle bearing registration number DL-1SV-4300 was coming from Anand Parbat and going towards Jhandewalan on New Rohtak Road at high speed and in rash and negligent manner. The incident took place in front of Jeewan Mala Hospital. He alongwith Akhilesh Yadav took the injured to the Jeewan Mala Hospital and got him admitted in the Emergency Ward. Accused was correctly identified by PW-2. The site plan was prepared on his instance which is Ex. PW3/A. In his cross-examination on behalf of accused, it is admitted by him that that the spot was a busy road and there used to be heavy traffic. There used to be heavy traffic on the road in question, the vehicle ply slowly.
7. PW4 Sh. Om Prakash deposed that on 30.03.2015, he had identified dead body of his father Late Sh. Ved Pal Arya at MAMC Mortuary. His statement was recorded vide memo Ex. PW4/A. The body was given to him after postmortem. Similarly deposed by PW-5.
8. PW-6 HC Ashok Kumar deposed that on 02.04.2015, he joined the investigation of the present case. On that day, the owner of the vehicle Vaibhav Tomar had produced the motorcycle bearing registration No. DL-1SV-4300 alongwith the RC and insurance paper of the motorcycle and the same were taken into possession vide seizure memo Ex. PW1/A. One notice u/s 133 M V Act was served upon the owner of the vehicle Vaibhav Tomar for the production of the driver of the vehicle. He FIR No. 209/2015, PS DBG Road Page 4/13 replied on the notice that on the date of incident i.e. 27.03.2015, the motorcycle was being driven by accused Karan Sharma. He also produced the driver/accused Karan Sharma in the Court (correctly identified). Accused was arrested vide arrest memo Ex. PW6/A and his personal search was conduced vide memo Ex.PW6/B. Accused was released on bail. Identity of the vehicle was not disputed by the accused.
9. PW7 Sh. Arvinder Singh deposed that at the request of IO of this case, he had conducted mechanical inspection of vehicle i.e. motorcycle No. DL-1SV-4300. He gave report Ex. PW7/A. Fresh damages noted thereupon were mentioned in point 22. In his cross examination it is stated by him that no paint marks were observed on the body of the inspected vehicle. It is denied by him that damages observed by him were old and not fresh.
10. PW8 HC Surender Kumar deposed that on 27.03.2015, on obtaining DD No. 12A, he alongwith IO reached at Jeewan Mala Hospital where he obtained the MLC of injured Sh. Ved Pal. IO prepared the rukka and handed over to him for registration of FIR. Accordingly, the FIR was got registered. Thereafter, he came back to the hospital and handed over the copy of FIR and original rukka to IO. Thereafter, they went to the spot alongwith witness Chander Bhan where IO prepared the site plan. IO recorded his statement.
11. PW9 SI Shiv Prakash deposed that on 27.03.2015, on obtaining DD No. 12A, he alongwith Ct. Surender reached at Jeewan Mala Hospital. He collected the MLC of injured Ved Pal in which he was unfit for statement. He tried to search for eye witness however nobody was present over there. He prepared the rukka Ex. PW9/A. Rukka was handed over to Ct. Surender for registration of FIR. Accordingly, FIR was got registered. Thereafter, eye witness Sh. Chander Bhan met him at Shree Jeewan Hospital. He went to the spot alongwith Chander Bhan and prepared the site plan Ex. PW3/A. He recorded his statement and statement of Ct. Surender. On the next day, he again inquired about the FIR No. 209/2015, PS DBG Road Page 5/13 health of injured but he was still unfit for statement. Thereafter, he went on the leave and case file was handed over to MHC(R). Further investigation was conducted by SI Nafe Singh.
12. PW10 Inspector Nafe Singh deposed that on 30.03.2015, further investigation of the present case was handed over to him. On that day, he came to know that injured had died in the hospital. He went over there and postmortem was got conducted vide report Ex. PW10/A. Dead body was handed over to the relatives after identification memos Ex. PW5/A and Ex. PW4/A. Handing over memo of dead body is Ex. PW10/B. He seized the motorcycle bearing registration number DL- 1SV-4300 vide seizure memo Ex. PW1/B. He also seized documents i.e. RC and Insurance vide seizure memo Ex. PW1/A. He also seized DL vide seizure memo Ex. PW10/C. He served notice u/s 133 M V Act to the owner of the offending vehicle Ex. PW1/C. Accused was arrested vide arrest memo Ex. PW6/A and his personal search was conducted vide memo Ex. PW6/B. Accused refused for his TIP proceedings. He also seized blood gauze of deceased vide seizure memo Ex. PW10/D. He also collected PCR form. Mechanical inspection of the offending vehicle was got conducted and its report is Ex. PW7/A. He recorded statement of witnesses. He also filed victim impact report alongwith the chargesheet.
13. During trial accused admitted the genuineness of FIR Ex. D1, DD No. 12A Ex. D2, Postmortem Report Ex. D3, Death summary Ex. D4 and TIP proceedings Ex. D5.
14. No other witness was left to be examined. Hence, PE was closed.
THE DEFENCE :
15. Statement of accused was recorded U/s 313 Cr.P.C, wherein he pleaded innocence and stated that he has been falsely implicated in the present case. He denied the entire case of the prosecution. It is stated by him that he is innocent and no accident was caused by him. Accused opted not to lead any defence evidence.
FIR No. 209/2015, PS DBG Road Page 6/13THE ARGUMENTS:
16. Ld. APP for State has argued that the eye witnesses have supported the prosecution and their testimonies have remained unrebutted. That on a combined reading of testimonies of prosecution witnesses, offences U/s 279 and 304-A IPC are proved beyond reasonable doubt. It is contended by the Ld. APP for the State that accused has hit the victim who was a pedestrian going on the road from behind. This fact clearly shows that the accused was driving in rash and negligent manner.
17. On the other hand, Ld. Legal Aid Counsel Shri Abhishek Bhardwaj appearing for accused has stated that the offences u/s 279 and 304-A IPC not made out in the present matter. It is contended that rashness and negligence is a sine qua to prove the offence u/s 279/304-A IPC. It is contended that the rashness and negligence have not been proved in the present matter. It is contended that in VIR filed with the chargesheet, it is mentioned by the IO that there was no skid marks at the place of incident. Further, no skid marks have been shown in the site plan. No photographs of any skid marks on the road have been filed on record. Ld. Counsel for the accused has also relied upon judgment titled State of Karnataka vs. Satish dod 13 th March, 1996 (1998) 8 SCC 493 decided by the Hon'ble Supreme Court of India wherein it was held that high speed of vehicle cannot be equated with negligence or rashness by itself.
THE FINDINGS:
Offence U/s 279 and 304-A IPC:
18. Arguments adduced by Ld. APP and Defence Counsel have been heard and evidence and documents on record are carefully perused.
19. The prosecution in this case had to prove the following :
1. Firstly, the identity of the accused as driver of the offending vehicle; AND
2. Secondly, the accident has taken place due to rash and FIR No. 209/2015, PS DBG Road Page 7/13 negligent driving by the accused, causing death of the victim namely Sh. Ved Pal Arya.
20. In present case, identity of the accused as driver of the alleged offending vehicle i.e. motorcycle bearing No. DL-1SV-4300 is not disputed as no question on this aspect being put to PW-1, owner of the vehicle who stated that accused was driving the vehicle in question. Similarly, no such question was put to PW-2 and PW-3 who were allegedly eye witnesses of the incident in question and claimed that the accused was driving the vehicle in question. It is also to be noted that in the MLC of the victim, it is mentioned that Karan having mobile No. 9582016687, resident of Brahampuri i.e. the present accused brought the victim to the hospital. Thus, the presence of the accused at the spot and the fact that he was driving the offending vehicle stands proved. Further the factum of death of the victim due to injuries received in the accident in question are duly proved by his postmortem report which is Ex. D3, death summary which is Ex. D4, the genuineness of the same has been admitted by the accused. Thus, it is very much clear that death of the victim was caused due to accident in question.
21. Thus the only fact required to be proved in the present case is whether the accused was driving the offending vehicle in rash and negligent manner.
22. In the present case, there are two eye witnesses of the incident i.e. PW2 Akhilesh Yadav and PW3 Sh. Chander Bhan, both of them were security guards in Jeewan Mala Hospital, the accident had occurred outside the Jeewan Mala Hospital. PW2 & PW3 have simply stated that accused was driving the motorcycle at a fast speed and in a rash and negligent manner, thereby hit the victim who was a pedestrian from the back side. However the testimony of these two witnesses cannot be accepted as gospel truth due to following reasons:-
i) It is stated by PW-9 SI Shiv Parkash the first IO of the case that when he reached the hospital he tried to search for the eye witness, however nobody was present over there due to which he FIR No. 209/2015, PS DBG Road Page 8/13 prepared the rukka on the DD entry. In the present case, incident had taken place at 10.00 AM and rukka was prepared at 2.00 PM i.e. after four hours. It is strange that for four hours IO did not meet the security guards of the hospital when he went to see the victim in the same hospital, while the security guards themselves were eye witnesses. It is nowhere stated that after the incident the security guards went to their home, thus could not meet the IO when he reached the hospital. This discrepancy makes it probable that there was no eye witness of the incident. Since the accident had taken place outside Jeewan Mala Hospital, the security guards of Jeewan Mala Hospital were planted as witnesses in the matter.
ii) It is claimed by both the eye witnesses i.e. PW-2 & PW-3 that they took the victim to the Emergency Ward of the hospital.
However, from the MLC of victim available on record though not exhibited by anyone but filed by prosecution, hence can be used against prosecution, it is clear that it was the accused Karan who brought the victim in the Emergency Ward of the hospital. Thus the story of PW-2 & 3 that they shifted the victim to the hospital also seems to be untrue.
iii) It is to be noted that both the eye witnesses i.e. PW-2 & PW- 3 have simply stated that they shifted the victim to the Emergency Ward of the hospital. None of them has said anything about presence, conduct or the act of the accused immediately after the alleged accident. Silence of the eye witnesses on this aspect raises doubt if they had actually witnessed the incident or not.
iv) In his examination in chief eye witness PW-2 did not say about fast speed of the vehicle or the alleged rash or negligent manner wherein the vehicle was being driven by the accused. However, in his cross examination on behalf of State he admitted each and every suggestion put to him by the State. Interestingly, the other eye witness PW-3 Shri Chander Bhan who was examined after PW-2 on the same day deposed everything in his FIR No. 209/2015, PS DBG Road Page 9/13 chief as suggested to the other eye witness in the cross examination by ld. APP for State. Apart from this fact, there are other inconsistency in the testimony of PW-2 as it is stated by him in his cross examination on behalf of the accused that the offending vehicle hit a DTC bus from the conductor side of the bus. This fact was not there in examination in chief or statement U/s 161 Cr. P.C of the witness.
v) It is admitted by both the eye witnesses i.e. PW-2 & PW-3 that the place of incident used to have heavy traffic and vehicles ply slowly on the road. It is to be noted that the incident in question had taken place at 10.00 AM on a working day i.e. Friday and the traffic must have been heavy on the road. Though it is claimed by both the eye witnesses that the offending vehicle was at fast speed. However, as per site plan filed by the police there were no skid marks on the road. It is also to be noted that in the VIR filed by the IO it is mentioned that there were no skid marks on the road. It is also mentioned in the VIR that offending vehicle was not crossing the speed limit. Further there is no photograph of the spot showing any skid marks to suggest that the offending vehicle was being driven at a fast speed.
vi) The eye witnesses have not deposed anything in regard to the accident or manner in which the motorcycle was being driven by the accused except the above stated bald statement that motorcycle was being driven at a fast speed and in a rash and negligent manner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the accused especially when the area was a main road and the accident had taken place when there was heavy flow of traffic on the road.
vii) It was observed by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows, FIR No. 209/2015, PS DBG Road Page 10/13 "No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW-10, the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
viii) In case titled as "Abdul Subhan vs State, NCT of Delhi"
2007 Cr.L.J 1089, Hon'ble High Court of Delhi had observed that, "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 favor of the accused until the contrary is proved. Criminality is not to be presumed, subject of 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 loquitor".
23. The mere statement that the vehicle was in fast speed is not sufficient to hold that the vehicle in question i.e. the motorcycle was in fast speed. There is no evidence on record to show that the accused was driving the offending vehicle at a very high speed or in a rash and negligent manner. There are no photographs or skid marks to show that the motorcycle was being driven at a high speed. Further mere fact that FIR No. 209/2015, PS DBG Road Page 11/13 the accused was driving the vehicle at high speed may not attract the provision of this Section and prosecution has to prove something more.
24. The prosecution in the present case has failed to prove how the act of the accused was rash or negligent to bring the same under the purview of Sections 279/338 Indian Penal Code.
25. It is a settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. In order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the weaknesses, if any, of the defence of the accused. The burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts on to the accused. Also it is a settled proposition of criminal law that accused is entitled to the benefit of reasonable doubt in the prosecution story and such reasonable doubt entitles the accused to be acquitted.
26. In the case in hand, it is probable that the alleged eye witneses i.e. PW-2 & PW-3 are the planted witnesses, there are no photographs of the spot where the accident had taken place. The site plan prepared by the IO is merely a perfunctory one. The witnesses have made only a bald statement that the accused was driving at a fast speed in a rash and negligent manner, however, there is no evidence on record to prove that accused was driving at a fast speed as no skid marks have been shown in the site plan and no photographs of such skid marks were taken. The bald statements made by PW2 & PW-3 in itself are not sufficient to prove the rashness and negligence on part of the accused, more so in a situation where the fact that PW-2 & PW-3 had witnessed the incident is itself doubtful.
27. Thus, in the considered view of this Court, the prosecution could not prove beyond reasonable doubt that the accident in question had taken place due to rash or negligent driving by the accused. The evidence coming on record entitles the accused for the benefit of doubt.
FIR No. 209/2015, PS DBG Road Page 12/13Therefore, the accused Karan Sharma is hereby acquitted from all the charges levelled against him in the present case.
28. Formalities of section 437-A Cr.P.C have been complied with. File be consigned to Record Room after due compliance.
ANNOUNCED IN THE OPEN (GAJENDER SINGH NAGAR) COURT ON 09.03.2022 CMM (CENTRAL)/DELHI
Containing 13 pages all signed by the presiding officer.
(GAJENDER SINGH NAGAR) CMM (CENTRAL)/DELHI FIR No. 209/2015, PS DBG Road Page 13/13