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Delhi District Court

State vs Sanjay Rai on 16 September, 2019

                                          FIR No. 766/2015
                                          PS I.P.Estate
                                          U/s 279/304A IPC
                                          State Vs Sanjay Rai

              IN THE COURT OF SH. VIPLAV DABAS
         METROPOLITAN MAGISTRATE­03, CENTRAL, DELHI

CIS No. 288109/2016
FIR No. 766/2015
PS I.P.Estate
U/s 279/304A IPC
State Vs Sanjay Rai

Date of Institution of case   :      14.03.2016
Date of Judgment              :      16.09.2019

JUDGMENT:

a)    Date of offence         :      09.12.2015

b)    Offence complained of   :      U/s 279/304 A IPC

c)    Name of Accused, his    :      Sanjay Rai
      parentage & residence          S/o Sh. Sunil Rai
                                     R/o C­76, C Block,
                                     Gazipur Village, Delhi.

                                     Permanent address:­
                                     Village Ganipur Bheja
                                     District Mujjaffarpur, Bihar.

d)    Plea of Accused         :      Pleaded not guilty

e)    Final order             :      Acquitted




                              1/16
                                                           FIR No. 766/2015
                                                          PS I.P.Estate
                                                          U/s 279/304A IPC
                                                          State Vs Sanjay Rai

BRIEF FACTS AND REASONS FOR DECISION:­

       Case of the prosecution in brief is as follows:­

1. On 09.12.2015, at about 6 p.m, at DDU Marg, Near Traffic Booth, ITO Aggarwal Chowk, Delhi within the jurisdiction of PS I.P.Estate the accused was driving one motorcycle bearing no. DL 7SBZ 9483 in a manner so rashly or negligently as to endanger human life and personal safety of others and while driving the said vehicle in aforesaid manner the accused caused death of one Jyoti not amounting to culpable homicide. On the basis of aforesaid facts, the present FIR was registered for offence punishable under Section 279/304 A IPC against the accused and after usual investigation chargesheet was filed.

2. The Court took cognizance of the above­said offence u/s 279/304 A IPC and provisions of Section 207 Cr.P.C complied. After hearing arguments, as a prime facie case was made out against the accused Sanjay Rai for offence punishable u/s 279 & 304 A IPC, notice was accordingly framed against him to which accused pleaded not guilty and claimed trail.

3. In order to prove the guilt of the accused u/s 279 & 304­A IPC, the prosecution has to prove the following essential ingredients of the said Sections:­ a. Section 279 IPC: The accused was driving the vehicle in a public place and that he was driving in a manner so rash or negligent as to endanger human life 2/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai or to be likely to cause hurt/injury to any other person.

b. Section 304 A IPC : The death of a person is caused by rash or negligent act of accused, that the death of the victim was a direct result of rash or negligent act of accused which must be sufficient cause of death without the intervention of another act and that the act causing death does not amount to culpable homicide.

4. To prove its case, prosecution examined six witnesses in the present case.

5. PW­1 Ct. Ramkhilari deposed that on 09.12.2015, after receiving DD NO. 30, he along with IO SI Bijender reached at the LNJP Hospital where they came to know that the injured girl was taken for CT scan. They went to the spot i.e. DDU Road, ITO Red Light where they found one motorcycle DL7S BZ 9483 in accidental condition and IO went to hospital and he remained at the spot. After some time, IO returned to the spot and searched the public witnesses/eye witnesses of the incident but could not find anyone. IO prepared the tehrir and handed over the same to him for the registration of the FIR. He went to the PS and got the FIR registered. After sometime, he returned to the spot and handed over the copy of the FIR and original rukka to the IO. In the meantime, traffic Ct. Krishan Kumar, an eye witness of the incident came at the spot and gave his statement to IO. IO seized the motorcycle vide seizure memo Ex.PW1/A. IO took the motorcycle to the police and deposited in the malkhanna. On 11.12.2015, accused was arrested vide memo Ex.PW1/B. Ct. Krishan Kumar had identified the accused at the time of his arrest. The driving licence of accused was seized vide memo Ex.PW1/C. IO recorded his 3/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai statement.

During cross examination the witness deposed that they reached in the hospital at about 7.10 pm. They remained in the hospital for 15­20 minutes and thereafter, they went to the spot. IO did not obtain any material paper which suggest that injured was sent for CT Scan. They reached at the spot at about 7.25 pm and again remained for 10 minutes. Ct. Krishan reached at the spot after half an hour of their reaching at the spot. He did not inquire from public persons about the incident. IO tried to inquire about the accident but no eye witness was found. There was no shop near the spot at red light. The spot was at a distance of 15­20 meters from the red light and again said, the distance was 5­10 meters. He had gone to the red light along with the IO at the time of investigation. Ct.Krishan Kumar was present at the red light. Statement of Ct. Krishan was recorded at red light.

6. PW­2 Ct. Krishan Singh deposed that on 09.12.2015, he was posted at Darya Ganj circle as a traffic constable. On that day, he was performing his duty at ITO Point and that his duty hours were from 3.00 p.m. at 11.00 p.m. At about 6.30 p.m. he was regulating the traffic at his point. He saw that one bike (whose registration number he does not remember) was coming from the side of Tilak Bridge and going towards DDU side at high speed. On said bike one lady was pillion rider. The said bike struck against the middle divider of the verge of the road, due to which, driver and pillion rider fell down on the road. After hitting the divider the bike jumped on other side of the road. The pillion rider/ lady as well as driver of the motorcycle sustained injuries. Both were shifted to G.B. Pant hospital 4/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai by TSR. Thereafter, he went back to his duty at his point to regularize the traffic. IO had arrested accused vide arrest memo Ex.PW1/B. During cross examination the witness deposed that the distance between his point and spot was about 20­25 meter and again said 15­20 meters. After accident, he reached at the spot at about 6.30 p.m. When he reached at the spot he was having his mobile phone. He admitted that he did not make any call to the local police or PCR through his mobile after seeing the accident. He had not noted down the registration number of the TSR by which the injured persons were shifted to the hospital. He had not asked the name of the driver of the TSR. He had not visited the hospital on the day of the incident or thereafter. He had instructed the driver of the TSR to take the injured to G.B. Pant Hospital. He further deposed that he could not say whether driver of the TSR got admitted the injured persons in the G. B. Pant hospital or in any other hospital. He remained at the spot for about 10 minutes. Thereafter, he resumed his duty at his point i.e. ITO point. He had not intimated the police till 11.00 p.m. After 3/4 days of the said accident, he visited G. B. Pant hospital for his personal work. He went to PP LNJP and met police officials. His statement was recorded at PP LNJP, however, he does not remember the time. He visited PP LNJP on his own. He had signed on some documents. He firstly met with the local police/IO regarding the accident on the very day of the accident at about 7.00p.m and his statement was recorded at 7.00 p.m. He deposed that he could not say whether his statement was recorded by the IO or any other police official. However he had signed his statement. Local police remained at the spot along with him for about 15 ­20 minutes. The photographs of the motorcycle were 5/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai not taken in his presence. He had not touched the motorcycle or got it parked on the side of the road. IO had not prepared the site plan in his presence. Again said, he does not remember the same. He does not remember whether the motorcycle was seized in his presence and volunteered that it was removed by the local police from the spot. He does not remember the time when the motorcycle was removed from the spot. The photographs Ex. P1 (colly) are not pertaining to the spot. He had shown the place where he was posted on duty and had seen the accident to the local police. He denied the suggest that neither he was performing his duty as alleged nor he had seen any accident as alleged, that accused was not arrested in his presence, that accused was not driving the vehicle in high speed as alleged by him, that he has been planted as eye witness by the IO and that he was deposing falsely at the instance of IO.

7. PW­3 Achhey Lal deposed that deceased Jyoti was his daughter who expired in a road accident. He identified the dead body of his daughter in mortuary of MAMC vide dead body identification memo Ex. PW­3/A. This witness was not cross examined by or on behalf of accused despite opportunity.

8. PW­4 Urmila Devi deposed that deceased Jyoti was her daughter who expired in a road accident. She identified the dead body of her daughter in mortuary of MAMC vide dead body identification memo Ex. PW­4/A. This witness was not cross examined by or on behalf of accused despite 6/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai opportunity.

9. PW­5 Retired SI Bijender Singh deposed that on 09.12.2015, he received DD No. 30, PPJPN, dated 09.12.2015, which is Ex. PW­5/A, regarding the admission of injured Jyoti in LNJP hospital. He along with Ct. Ramkhilari, reached at LNJP hospital and he collected the MLC of injured Jyoti, who was referred to Neuro ward. Thereafter, he reached at the spot i.e. near red light, DDU Marg, Delhi where one motorcycle bearing no. DL­7SBZ­9483, was found lying at the spot and no eye witness met them at the spot. He left Ct. Ramkhilari at the spot and himself again reached at the hospital. The injured was declared unfit for statement. No eye witness was found in the hospital as well as at the spot. He prepared the rukka vide endorsement Ex. PW­5/B and handed it over to the Ct. Ramkhilari for the registration of FIR, who went to PS and got FIR registered. He inspected the site and prepared site plan, which is Ex. PW­5/C. He seized the motorcycle vide seizure memo Ex.PW­1/A. Ct. Krishan had arrived at the spot, who told that he had seen the accident and he is the eye witness. He recorded the statement of Ct. Krishan. On 11.12.2015, the accused Sanjay Rai, had come in police post on his own to inquire about his motorcycle. In the meantime, Ct. Krishan also arrived there and he identified the accused Sanjay Rai as the driver of motorcycle, who was driving the same at the time of accident. He recorded the statement of Ct. Krishan. The accused Sanjay Rai was arrested vide arrest memo Ex.PW­1/B and his driving licence was seized vide seizure memo already Ex.PW­1/C. Thereafter, statement of witnesses were recorded.

7/16 FIR No. 766/2015

PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai PW­5 Retired SI Bijender Singh further deposed that on 13.12.2015, the injured Jyoti died during treatment and section 304A IPC was added. Information was given to MACT Cell. He handed the case file to MHC(R).

During cross­examination, he deposed that he along with Ct. Ramkhilari, reached at the LNJP hospital at about 7:30 pm on feet. He did not request the doctor in writing to record the statement of injured. Injured was declared unfit for statement at about 9:50 pm as endorsed on the MLC. He remained in the hospital till 10:00 pm. From hospital they went to chowki and thereafter, they came at the spot on two wheeler. The police post was situated in the premises of hospital. The said scooter belongs to him. They reached at the spot at about 10:05 p.m and stayed there till 11:30 pm­11:45 pm. Thereafter, he did not visit hospital again on that day. They reached at police post at about 11:50 p.m, on his scooter. The motorcycle was sent to PS through Ct. Ramkhilari at about 11:15 pm. He was present at the spot at that time. He had seized the motorcycle at about 11:00 pm. He had recorded the statement of Ct. Krishan at the spot i.e. near Red Light, in traffic booth, at about 10:45 pm/ 11:00 pm. He did not obtain the signatures of Ct. Krishan Kumar on his statement u/s 161 Cr. PC recorded by him. The site plan was prepared at the instance of Ct. Krishan. He denied the suggestion that he did not found any eye witness of the accident during his investigation or that he has falsely cited Ct. Krishan as eye witness in present case, that he did not properly investigate the case, that he prepared all above said documents while sitting in police station, that accused was not arrested at the pointing out of Ct. Krishan Kumar, that Ct. Ramkhilari had not accompanied him during the investigation and that he was 8/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai deposing falsely.

10. PW­6 SI Raj Kumar deposed that on 14.12.2015, he was posted at MACT Cell central as ASI. The further investigation of this case was marked to him. He perused the case file. In the present case the dead body of deceased Jyoti was already preserved in MAMC mortuary. The postmortem on the body of deceased was conducted. He collected the postmortem report Ex.PW­6/A. The dead body was identified by parents and thereafter, it was handed over to LRs. Statement of witnesses were recorded. On 17.12.2015, the offending vehicle i.e. motorcycle no. DL­7SBZ­9483, was got mechanically inspected vide respect Ex. PW­6/B, bearing his signatures at point A. He collected mechanical inspection report, which is Ex.PW­6/C. PW­6 SI Raj Kumar further deposed that on 16.01.2016, he served notice u/s 133 M.V Act to the registered owner of aforesaid vehicle, who is accused. Copy of said notice is Ex. PW­6/D. The accused/ registered owner of the offending vehicle replied this notice from point X to X1 on Ex.PW­6/D that at the time of accident he was driving the aforesaid vehicle. He got verified the all documents of offending vehicle and DL of accused. He prepared detailed victim impact report. Statement of witnesses were recorded. After completion of investigation, charge sheet was filed.

During cross­examination, PW­6 denied the suggestion that he did not properly investigate the case, that he prepared all above said documents while sitting in PS, that he has not correctly recorded the statement of witnesses and that he was deposing falsely.

9/16 FIR No. 766/2015

PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai

11. On 06.06.2019, vide a separate statement, accused admitted the factum of registration of FIR bearing no. 766/15, which Ex.A­1, certificate u/s 65B of Indian Evidence Act, Ex.A­2, DD No. 30PP JPN, dated 09.12.2015, which Ex.A­3, DD No. 9P, dated 13.12.2015, which is Ex.A­4, mechanical inspection report of motorcycle, which Ex.PW­6/C & Postmortem report Ex.PW­6/A, without admitting its contents. In view of this statement, the prosecution witnesses qua the said documents were dropped.

12. The Statement of Accused was recorded U/Sec 281 r/w 313 Cr.P.C on 07.06.2019 and all the incriminating circumstances appearing in evidence were put to the accused who replied that he was not driving the said motorcycle on that day. Accused did not chose to lead evidence in his defence.

13. Final arguments heard on behalf of State and defence. Record perused.

14. In order to bring home the guilt of the accused for the offences punishable U/s 279 & 304 A IPC, prosecution was required to prove the fact that the accused was driving the offending vehicle in rash and negligent manner on a public road and that the victim succumbed to injuries as a result of the accident caused due to rashness/negligence of the accused. Perusal of the record reveals that the prosecution brought various witnesses to prove its case out of which the testimonies of PW­2 Ct. Krishan Singh, the eye­witness is the most important and relevant for 10/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai establishing the aforesaid ingredients as he is the only witness in whose presence the incident had occurred and all the other witnesses are either police witnesses or medical witnesses who can not establish the fact that the accident had taken place due to rashness and negligence of the accused. It is reflected from the record and the testimony of PW­6 who had issued notice u/s 133 M.V.Act to the registered owner of the offending vehicle who is the accused himself, that the accused had admitted that he was driving the offending vehicle at the time of accident. It is also not in dispute that the alleged accident had taken place at a public place.

15. PW­1 Ct. Krishan Singh deposed in his examination in chief that he was deputed at Darya Ganj Circle as traffic constable on the day of the accident and saw one bike whose registration number he does not remember, was coming from the side of Tilak Bridge and going towards DDU Marg struck against the middle divider of the verge of the road due to which the driver and pillion rider fell down on the road, that both rider and pillion rider sustained injuries and they were shifted to G.P.Pant Hospital by TSR, that he went back to his duty at his point to regularize the traffic and IO had arrested accused vide arrest memo Ex.PW1/B.

16. In the cross examination of PW­2 Ct. Krishan deposed that when he reached at the spot he was having his mobile phone, that he did not make any call to the local police from his mobile after seeing the accident, that he had not noted down the registration number of the TSR by which injured person was shifted to the hospital and he has not asked the name of the driver of the TSR. He further stated in 11/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai his cross examination that he had not removed the motorcycle cycle or had parked on the side of the road. It is the version of the prosecution that PW­2 was a traffic police constable who was present on the spot as he was performing his official duty at that time. The casual approach of the PW­2 as is clear from the aforesaid testimony by not calling the police immediately after the accident or not noting down the registration number of the TSR or asking the name of the driver of the TSR and not removing the motorcycle from the road creates grave doubt upon his presence on the spot as it is highly unreasonable on the part of police constable to not to inform the police immediately after seeing the accident and remove the accidental vehicle from the road side for avoiding the traffic­snarls. It is further evident from the record that the defence has challenged the very presence of the PW­2 on the spot as a traffic constable at the time of the accident. Record shows that neither any DD entry / duty slip nor any other document suggesting the presence of PW­2 on the spot performing traffic constable's duty has been proved or brought on record. It is also material omission which creates doubt upon the presence of PW­2 on the spot at the time of accident which substantiates the defence that PW­2 was not present at the spot at the time of accident and that he is a planted witness.

17. The testimony of PW­2 further reveals that he deposed that after the accident he reached at the spot at about 6:30 p.m, that he remained at the spot for about 10 minutes and that he first met with the local police or IO regarding the accident at the very date of the accident at about 7:00 p.m and his statement was recorded at 7:00 12/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai p.m. He further deposed that local police remained at the spot alongwith him for about 15­20 minutes and he can not say whether his statement was recorded by the IO or any other police official. This testimony shows that PW­2 participated in the investigation proceedings between 6:30 p.m to 7:00 p.m approximately on the day of the incident.

18. Perusal of the testimony of PW­1 Ct. Ram Khiladi who accompanied with the IO/ PW­5 to the spot shows that he alongwith IO reached at the spot at about 7:25 p.m and remained there for about 10 minutes and Ct. Krishan PW­2 reached at the spot after half an hour of their reaching at the spot.

Record shows that IO / PW­5 Retired SI Bijender deposed in his cross examination that they reached at the spot about 10:05 p.m and stayed there till 11:30 p.m to 11:45 p.m & that he had recorded the statement of PW­2 Ct. Krishan at the spot near red light traffic booth at about 10:45 ­11:00 p.m. The joint perusal of the aforesaid testimony of PW­1, PW­2 and PW­5 shows that there are grave contradictions regarding the time at which PW­1 and PW­5 reached at the spot and recorded the statement of PW­2 Krishan at the spot. These unexplained contradictions further create grave doubts upon the very factum of visit made by PW­1 and PW­5 at the spot for investigation as well as the factum of presence of PW­2 on the spot at the time of happening of the accident and the visit made by the PW­1 and PW­5. It indicates that PW­2 is a planted witness and the investigation carried out at the spot was manipulated.

13/16 FIR No. 766/2015

PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai

19. The bare perusal of the testimony of PW­2 further reveals that he deposed that the bike was being driven at very high speed and the bike struck against the middle divider of the verge of the road due to which the pillion rider and the driver fell down on the road. It is evident that PW­2 did not say anything about the rashness and negligence of the accused in his evidence. PW­2 did not even state the approximate speed at which the vehicle was being driven.

It is settled law that merely driving at high speed does not amount to rashness or negligence as the speed is a relative concept consequence of which depends upon certain other parameters like the level of congestion at the place where the accident took place or as to whether there was some traffic violation. So, mere allegation that accused was rash or negligent without explaining the manner as to how rashness or negligence is being imputed to the conduct of the offending driver can by no stretch of imagination be considered sufficient to fasten criminal liability upon the accused as the phrase rashness or negligence unless explained is nothing more than a mere adjective. So prosecution has failed to explain the manner in which the accused was rash and negligent while driving the vehicle and thus the benefit of the same must go to the accused.

20. Furthermore, it is apparent that the accident had taken place at public place at such time when other public persons must also be present but no efforts were made to trace their whereabouts to join them in the investigation. These material omission indicates that no proceedings were conducted at the spot and that accused has been 14/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai falsely implicated by planting false witness.

21. It is pertinent to mention that alleged accident had taken place on 09.12.2015 and the offending vehicle i.e bike was also found lying at the spot from the which particulars of the offending driver could have been traced and the accused could have been arrested but no such steps were taken by the investigating agency and the accused was arrested on 11.12.2015 at the instance of PW­2 Ct. Krishan Kumar who surprisingly happened to visit the police chowki at the same time when the accused had gone to the police post to inquire about his motorcycle. It is hard to believe that it is merely a coincidence that the traffic police constable visited the police chowki on 11.12.2015 without being called by the police official and at the same time the accused was also present at the police chowki after which he was arrested at instance of PW­2 Ct. Krishan. The unexplained delay of the investigating agency in not tracing the driver for three days and the aforesaid dramatic manner in which PW­2 Ct. Krishan got the accused arrested, indicate that chances of false implications of accused can not be ruled out. It further shows that the entire version of the prosecution is false and concocted as no explanation for the said dubious manner of arrest of accused was given.

22. It thus emerges from the aforesaid discussion and perusal of testimonies of PWs as well as record that there is neither any reliable eyewitness of the incident nor any other circumstance to prove the presence of rashness or negligence on the part of accused while driving the offending vehicle which is an essential element for 15/16 FIR No. 766/2015 PS I.P.Estate U/s 279/304A IPC State Vs Sanjay Rai completion of offences punishable u/s 279 & 304 A IPC.

23. Considering the afore­discussed testimonies, this Court is of the view that arguments advanced by the Ld. APP for the State that the prosecution has proved all the ingredients necessary for completion of the alleged offences do not have any force whereas the arguments made on behalf of defence that the accused has been falsely implicated are found to be justified.

24. In view of the aforesaid discussion and analysis of testimonies, it is clear that prosecution has not been able to prove its case against the accused as the essential ingredients of the offences punishable u/s 279 & 304 A IPC have not been established. Accordingly, accused Sanjay Rai S/o Sh. Sunil Rai is acquitted of the charge leveled against him. Bail bond stands cancelled and Surety be discharged, if any. Documents, if any, be returned to the rightful person against receiving and after cancellation of endorsement, if any. Superdarinama if any be cancelled.

Fresh bail bond and surety bond in compliance of Section 437 (A) Cr.P.C filed on behalf of accused is furnished and accepted.

File be consigned to the Record Room after due compliance.

                                                    VIPLAV       Digitally signed
                                                                 by VIPLAV DABAS
                                                                 Date: 2019.09.17
                                                    DABAS        17:47:42 +0530

Announced in the Open Court                          (VIPLAV DABAS)
on 16.09.2019                                      MM­03/CENTRAL:DELHI
                                                       16.09.2019




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