Delhi District Court
State vs . Bharat Bhushan on 7 September, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE02, DISTRICT
EAST, KARKARDOOMA COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Bharat Bhushan
FIR No. 256/04
PS. Geeta Colony
U/s. 279/304A IPC and 3/181 MV Act
JUDGMENT
1) SI No. of the case : 6552/16
2) The date of commission of offence : 22.08.2004
3) The name of the complainant : ASI Deen Mohd
4) The name & parentage of accused : Bharat Bhushan
S/o Sh. Pooran
Chand
5) Offence involved : 279/304A IPC &
Sec. 3/181 MV Act
6) The plea of accused : Pleaded not guilty
7) Final order : Acquitted for
section 279/304A
IPC
Convicted for
section u/s 3/181
MV Act
8) The date of such order : 07.09.2019
FIR No. 256/04 State Vs. Bharat Bhushan Page no. 1 of 14
Date of Institution : 15.01.2005
Judgment reserved on : 07.09.2019
Judgment announced on : 07.09.2019
THE BRIEF REASONS FOR THE JUDGMENT:
1. Briefly stated, the case of the prosecution is that on 22.08.2004 at about 10.30 PM in front of Picket, SDM Office, Geeta Colony, Delhi within the jurisdiction of PS Geeta Colony, the accused Bharat Bhushan was riding a motorcycle bearing registration no.DL7SG 3282 on a public way in a rash and negligent manner so as to endanger human life and personal safety of others and while riding the same, he caused death of one Pulkit Pradhan not amounting to culpable homicide and thus the accused has been sent to face trial for the offences punishable U/s 279/304A IPC. It has further been alleged that at time of riding the scooter the accused was not having a valid driver's license and as such he has also committed the offence punishable u/s 3/181 MV Act.
2. Upon completion of investigation, charge sheet U/s 173 Cr.P.C. was filed on behalf of the IO and the accused was consequently summoned. A formal notice of accusation for the offence punishable U/s 279/304A IPC & u/s 3/181 MV Act was served upon the accused. The accused pleaded not guilty and claimed trial.
FIR No. 256/04 State Vs. Bharat Bhushan Page no. 2 of 14
3. In order to establish its case prosecution has examined nine witnesses.
4. PW1 Sh. Nandu Kamat deposed as follows:
"On 22.08.2004 I alongwith my father were going to Shastri Nagar by foot. We were going by the side of the road. At about 11.00 PM when we reached near SDM Office, Gandhi Nagar, Pusta Road, Geeta Colony suddenly a scooter bearing registration no.DL7SG 6211 had come from behind and hit my father from behind. My father had fallen on the road and accused who was driving the scooter had fled away from the spot. I had noted down the number of scooter and called on 100 number. I had taken my father to JPN Hospital. The accused present in the court today was driving the scooter (correctly identified by the witness). After 23 days accused was arrested vide arrest memo Ex.PW1/A bearing my signature at point A. I had told the police the place where accident had taken place. I had identified dead body of my father vide identification memo Ex.PW1/B bearing my signature at point A. The accident had taken place due to rash and negligent driving of the accused as we were going aside the road and accused was driving the scooter in high speed and hit my father from behind and even after hitting fled away from the spot. I can identify the case property i.e. above said scooter, if shown to me. However, identity of the same is not disputed by the accused". This witness was crossexamined by the FIR No. 256/04 State Vs. Bharat Bhushan Page no. 3 of 14 accused in detail.
5. PW2 Sh. Shankar Kamath deposed as follows:
"On dated 22.08.2004 my father late Sh. Pulkit Kamath has got expired in the accident. On the next day I had visited JPN Hospital and identified dead body of my father".
6. PW3 ASI Satbir deposed as follows:
"On 23.08.2004 I was posted at PS Geeta Colony, Delhi as constable. On that day, I alongwith ASI Deen Mohd had gone to LNJP Hospital where ASI Deen Mohd obtained the dead body of the deceased and took the same Maulana Azad Medical College Mortuary to get the postmortem conducted on the dead body of the deceased. After reaching the Maulana Azad Medical College, ASI Deen Mohd. got the body of deceased identified through the relatives of deceased. Thereafter, the dead body of the deceased was handing over to the doctors for postmortem and after that body of deceased was handed over to its relative for last rites. IO recorded my statement u/s 161 Cr.PC".
7. PW4 HC Sulekh deposed as follows:
"On 21.08.2004, I was posted at PS Geeta Colony, Delhi as constable. On that day, IO/ASI Deen Mohd obtained DD No. 65B FIR No. 256/04 State Vs. Bharat Bhushan Page no. 4 of 14 regarding an accident at the spot i.e. Pusta Road, in front of SDM Office, Gandhi Nagar, Delhi. On this IO asked me to join the investigation and took me to the spot where we found one scooter bearing registration No. DL7SG6211 in accidental condition. On inquiry, we found that victim has been removed to JPN Hospital. I alongwith IO went to above said hospital where IO obtained the MLC No. 210197/04 of the victim whose name was later on revealed to Pulkit Pradhan. IO tried to find some eye witness of accident but all in vain. Concerned doctor had opined that the victim was not fit for statement, hence, his statement could not be recorded regarding accident. IO prepared the tehrir and handed over the same to me for lodging of FIR. I went to PS Geeta Colony, got FIR registered and came back to the spot after registration of FIR alongwith with copy of FIR and original rukka and handed over the same to the IO. IO prepared site plan which is MarkA and seized the above said scooter vide seizure memo Ex. PW 4/A, bearing my signature at point 'A'. Thereafter, we came back to PS and IO deposited the above said seized scooter with the Malkhana. IO recorded my statement under section 161 Cr. PC".
8. PW5 HC Pappu Tyagi deposed as follows:
"On 25.08.2004 I was posted at PS Geeta Colony as Constable. On that day, I alongwith ASI Deen Mohd. went to H.NO.9/23 Geeta Colony where accused Bharat Bhushan was present and he was FIR No. 256/04 State Vs. Bharat Bhushan Page no. 5 of 14 arrested by the IO vide arrest memo already Ex.PW1/A bearing my signatures at point B. Accused was personally searched vide memo Ex.PW5/A bearing my name at point A. At this stage, ld counsel for the accused states that identity of the accused is not disputed.
IO recorded my statement".
9. PW6 Retired ASI Deen Mohd deposed as follows:
"On 22.08.2004 I was posted at PS Geeta Colony as ASI. My duty hours were from 8.00 PM to 8.00 AM. At about 10.30 PM I received DD no.65B and after receiving the same I went to the spot where I found that one scooter no.DL7SG 6211 was standing in accidental condition. I came to know that injured was taken to JPN Hospital. I went to the hospital and I collected the MLC of deceased person. In the hospital I did not meet with any relative of the deceased person. I again went to the spot and I prepared the rukka and sent Ct. Subhash alongwith rukka to the PS for registration of FIR. Ct. Subhash came at the spot alongwith original rukka and copy of FIR handed over to me. I prepared the site plan which is already Mark A bearing my signatures at point A. I recorded the statement of witnesses. On 23.08.2004 I went to the JPN Hospital and conducted the postmortem of the deceased person and requested for the postmortem of the deceased person and after the postmortem I handed over the dead body of the deceased to FIR No. 256/04 State Vs. Bharat Bhushan Page no. 6 of 14 Mr. Nandu and the memo is already Ex.PW1/B. I came to the PS and sent a notice to the owner of the scooter u/s 133 MV Act. The copy of same is Mark B bearing my signatures at point A. The accused came to the PS on 25.08.2004 and informed me that I was riding the scooter at the time of the accident. Thereafter I arrested the accused vide arrest memo already Ex.PW1/A bearing my signatures at point A. I conducted the personal search of the accused vide memo already Ex.PW5/A bearing my signatures at point B. Accused is present before the court (correctly identified by the witness). Thereafter I sent the offending the vehicle for mechanical inspection and report of the mechanical inspection which is Ex.PW6/A bearing my signatures at point A. Thereafter I deposited the offending vehicle in the malkhana. I recorded the statement of witnesses. After preparation of chargesheet, the same is filed before the court".
10. PW7 Dr. Md A Rahman deposed as follows:
"On 22.08.2004 I was posted as Causality Medical Officer at Lok Nayak Hospital. On that day MLC No.210197 was prepared by then Jr. Resident Dr. Shalini. I can identity the signatures of Dr. Shalini as she was working under my supervision and direction. I am acquainted with the signatures. As per MLC it was a case of alleged history of road traffic accident as a result of hitting by scooter. Oon examination the patient was unconscious. On examination an abrasion FIR No. 256/04 State Vs. Bharat Bhushan Page no. 7 of 14 of 2 cm on left side of forehead, an abrasion on lateral canthus of left eye was found. Secondly, laceration of 3 cm over pinna (left ear) was observed. The patient was referred to Neuro Surgery Emergency for detailed evaluation, detailed observation and further management. The MLC is Ex.PW7/A. It bears signatures of Dr. Shalini at point B and my signature at point A".
11. PW8 Dr. Amandeep Kaur deposed as follows:
"I am posted at Maulana Azad Medical College and Lok Nayak Hospital since the year 2014. I have worked with Dr. Sunil since 2014 till December 2016. He is currently serving in Dr. BSA Hospital, GNCTD".
12. PW9 Dr. Sunil Naagar deposed as follows:
"On 23.08.2004 I was posted at MAMC Delhi (Lok Nayak Hospital) as SR. On that day I prepared PM report no.575/04 of deceased Pulkit Kamat. The PM report is Ex.PW9/A (running into four pages) bearing my signatures at point A, B, C and D. Final opinion is death was due to craniocerebral damage consequent upon blunt force/surface impact to head. All the injuries were ante mortem in nature, recent in duration which could be caused in a road side vehicular accident".
FIR No. 256/04 State Vs. Bharat Bhushan Page no. 8 of 14
13. It is relevant to mention that on 08.05.2019 the accused in presence of his counsel has made a statement thereby not disputing the genuineness and preparation of FIR Ex.C1 and endorsement at point B in the rukka Ex.C2.
14. Upon completion of P.E., statement of accused u/s 313 Cr.PC was then recorded. The accused denied the allegations and pleaded innocence. He has chosen not to lead defence evidence.
15. Thereafter the court has proceeded to hear the respective arguments of the Ld. APP and of the Ld. Counsel of the accused. I have heard the arguments and have also perused the record.
16. It has been argued by the Ld APP for State that in view of the testimony of PW1 Sh. Nandu Kamat who had identified the accused as the driver of the scooter in question hitting his father while driving the said scooter in a rash and negligent manner, there is no doubt that the accused has committed the offence punishable u/s 279/304A IPC. That the accused has not produced any driving license and as such he is also liable to be convicted for the offence punishable u/s 3/181 MV Act.
17. On the other hand the learned defence counsel has prayed for acquittal of the accused stating that the abovementioned PW1 FIR No. 256/04 State Vs. Bharat Bhushan Page no. 9 of 14 Nandu Kamat is a planted witness who was interested in the conviction of the accused being the son of the deceased victim. It is stated that his presence at the spot is suspicious and he has been tutored by the police to depose against the accused. It is prayed that the accused be acquitted.
18. It is the cardinal principle of criminal justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts. No matter how weak the defence of accused but, the golden rule of the criminal jurisprudence is that the case of the prosecution has to stand on its own legs.
19. The case of the prosecution hinges on the testimony of PW1 Sh. Nandu Kamat who had deposed that at about 11 PM on 22.08.2004 while he and his father were walking near SDM Office the scooter bearing no.DL7SG 6211 being driven by the accused Bharat Bhushan in a rash and negligent manner hit his father from behind. He took his father to the JPN Hospital where he subsequently succumbed to his injuries. He had correctly identified the accused and the scooter in the court. A perusal of the MLC Ex.PW7/A reveals that the deceased Sh. Pulkit Pradhan was admitted to the hospital by his son Nandu with alleged history of road traffic accident at Shastri Nagar Main Chowk, Near SDM Office. Thereafter it is recorded therein "hitting of scooter FIR No. 256/04 State Vs. Bharat Bhushan Page no. 10 of 14 by police barket (sic)" in the brief history as recorded in the postmortem examination report Ex.PW9/A dated 23.08.2004 it is recorded "alleged H/O hit by barricade while the deceased was on two wheeler on 22.08.2004 at about 10.30 PM near SDM Office, Shastri Nagar Main Chowk. He brought to LN Hospital, where he expired on 23082004 at 8.45 AM, during the course of treatment". The prosecution has not explained the said observations which have been made in one of the earliest formal record of the incident. The prosecution is silent about the barricades mentioned in these documents. As per the PW1 the victim was hit from behind by the scooter of the accused. The MLC Ex.PW7/A mentions two injuries, one along the left eye and the other left ear of the victim. There is no mention of any other injury found on the person of the victim. In the event of a hit from behind by a scooter it is natural that injuries to limbs or other portion of the body are caused but there is no such in the present case. As per the postmortem report the death is due to cranio cerebral damage consequent upon blunt force/surface impact to head. The witness PW1 nor any other witness of the prosecution has explained as to how the victim had sustained injuries only to his head after being hit by the scooter from behind. The FIR was registered on the basis of information received at the PS from Duty Constable Ram Babu at JPN Hospital at 11.20 PM. The relevant DD no.65B mentions that the victim was admitted by his son Nandu. Thereafter IO retired ASI FIR No. 256/04 State Vs. Bharat Bhushan Page no. 11 of 14 Deen Mohd reached the hospital but he denies meeting any relatives of the deceased there. This fact further creates a doubt in the case of the prosecution as PW1 in his cross examination stated that his statement was recorded at the hospital by the police on the day of incident itself.
20. The Hon'ble High Court of Delhi in the case titled Abdul Subhan Vs. State (NCT of Delhi), 2007 Cr. L.J 1089 has dealt with the case of the road accidents and the investigation to be carried out in such cases. His Lordship has observed in the said case that in most of the cases, investigation is not found to be carried out in a swift and scientific manner. It was observed that even the site plans which are produced are unsatisfactory as they do not disclose the exact point of impact as well as the tyre's skid marks and the point at which the vehicle came to rest after the collision. The length of tyres skid marks, it was observed, goes a long way in indicating the speed at which the vehicles were traveling and it could enable the court to examine the evidence in a more objective manner instead of facing vague and subjective expressions such as "high speed". It was also observed that in such cases mechanical inspection report are found superficial and cursory as they are unable to point out the extent of damage suffered by the vehicle as the result of the impact or signs of collision such as paint of one vehicle rubbing over the other. Reports should also indicate as to whether the vehicle was mechanically sound or not prior to the impact FIR No. 256/04 State Vs. Bharat Bhushan Page no. 12 of 14 so as to enable the court to arrive at any conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control. His Lordship has further observed that the photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding area in order to discern the exact topography. It was further observed that the prevalent weather conditions and the path of the movement of the vehicles must also be established in the course of the investigation and not be left open to doubt. It was also observed that driver of the vehicles involved must also be subjected to medical test to reveal whether they had consumed any intoxicant. It was concluded that a criminal court would not convict any person merely on the basis of conjectures, assumption and probability.
21. In the present case also in the light of the aforesaid observations of the Hon'ble High Court of Delhi, I am unable to form an opinion as to the guilt of the accused as no photographs have been taken during the investigation to show the topography of the area of the collision nor the skid marks. The site plan Mark A as filed is without scale and merely a rough sketch prepared by the IO. The mechanical inspection report Ex.PW6/A also is not helpful in concluding the rashness or negligence on the part of the accused leading to the accident. Furthermore, a conclusive proof of the accused driving the vehicle in a rash and negligent manner could not be ascertained from FIR No. 256/04 State Vs. Bharat Bhushan Page no. 13 of 14 the testimony of the eyewitness PW1. As a matter of fact stating a completely different version to the doctor examining the victim and to the doctor conducting the postmortem of the circumstances has created a grave suspicion in the case of the prosecution the benefit of which deserves to be given to the accused. In these circumstances this court does not find any sufficient material to convict the accused for the offence punishable u/s 279/304A IPC. The accused however, is convicted for the offence punishable u/s 3/181 MV Act as he has failed to show before the court that he was holding a valid driver's license to ride the scooter on the day of the incident.
22. In view of the aforesaid discussion, this court is of a conclusion that the prosecution has failed to prove the guilt of the accused beyond reasonable doubt qua the offence punishable u/s 279/304A IPC. Hence, accused Bharat Bhushan is acquitted for the offence punishable u/s 279/304A IPC. The accused however, is convicted for the offence punishable u/s 3/181 MV Act. Ordered accordingly. Digitally signed JITENDRA by JITENDRA PRATAP SINGH PRATAP Date:
SINGH 2019.09.07
16:19:27 +0530
Announced in open court (JITENDRA PRATAP SINGH)
on 07th day of September, 2019 MM2/East/KKD Courts
Delhi
FIR No. 256/04 State Vs. Bharat Bhushan Page no. 14 of 14