Delhi District Court
State vs Rajender Kumar on 15 November, 2019
FIR No. 185/2007
PS I.P.Estate
U/s 279/338 IPC
State Vs Rajender Kumar
IN THE COURT OF SH. VIPLAV DABAS
METROPOLITAN MAGISTRATE03, CENTRAL, DELHI
CIS No. 302512/2016
FIR No. 185/2007
PS I.P.Estate
U/s 279/338 IPC
State Vs Rajender Kumar
Date of Institution of case : 30.04.2010
Date of Judgment : 15.11.2019
JUDGMENT:
a) Date of offence : 28.04.2007 b) Offence complained of : U/s 279/338 IPC c) Name of Accused, his : Rajender Kumar parentage & residence S/o Sh. Bhikari Lal R/o H.No. B154, Maha Laxmi Enclave, Karawal Nagar, PS Gokul Puri, Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Acquitted Page No. 1/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar BRIEF FACTS AND REASONS FOR DECISION: Case of the prosecution in brief is as follows:
1. On 28.04.2007, at about 9:15 p.m at Vikas Marg in front of Delhi Secretariat at carriage way from ITO to Shakarpur within the jurisdiction of PS I.P.Estate the accused Rajender Kumar was driving a blue line bus bearing no. DL1PB 0033 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 struck against scooter bearing number DL 8SH 1467 and caused grievous injury on the person of scooterist Anup Sharma. On the basis of aforesaid facts, the present FIR was registered for offence punishable under Section 279/338 IPC against the accused and after usual investigation chargesheet was filed.
2. The Court took cognizance of the abovesaid offence u/s 279/338 IPC and provisions of Section 207 Cr.P.C were complied. After hearing arguments, as a prime facie case was made out against the accused Rajender Kumar for offence punishable u/s 279 & 338 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 & 338 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 Page No. 2/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar or to be likely to cause hurt/injury to any other person.
b. Section 338 IPC: That the accused did some act, that the said act was done rashly or negligently, that the act was such as to endanger human life or personal safety or others and that grievous hurt was caused in consequence of such act.
4. To prove its case, prosecution examined nine witness in the present case.
5. PW1 Dr. Mukesh Kumar Meena proved the MLC No. 37116/07 as Ex.PW1/A. This witness was not cross examined by or on behalf of accused despite opportunity.
6. PW2 Mamta Rani deposed that on 28.04.2007, her husband was hit by a bus while he was going on a scooter due to which his right leg came under the wheel of that bus, that case was registered against the accused, that her husband was admitted in LNJP Hospital and was treated there, that he remained in the hospital, that actually his right leg was totally crushed in aforesaid incident & that treatment of her husband was continued in LNJP Hospital, that right leg of her husband got infected and his condition became deteriorated and that during his statement, he was twice admitted in LNJP Hospital and twice in GTB Hospital and at last on 22.02.2008, her husband succumbed to injuries caused to him in aforesaid incident and that he died. PW2 Mamta Rani further deposed that death of her husband Page No. 3/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar occurred due to the accident in which he was hit by the blue line bus and that on 24.03.2008, he handed over the documents relating to the treatment and death of her husband to the IO.
During cross examination the witness admitted that she was not present when the accident happened, that treatment of husband started after accident and continued till his death, that her husband started complaining of stomach ache just after the accident and that problem also continued. She denied the suggestion that accident did not happen due to the fault of the bus or that she is deposing falsely.
7. PW3 Ct. Azaz Ali deposed that on 28.04.2007, he was on emergency duty at PS I P Estate, that his duty was from 8 pm to 8 am, that he received DD No. 27A, again said, IO received the same, that he along with ASI Dharam Singh reached at the spot i.e. Ring Road, in front of secretariat and found one two wheeler scooter bearing number DL8S H 1467 in accidental condition, that he also found one blue line bus number DL1P B 0033 in a stationary position ahead of the scooter, that PCR had already been taken the injured Anoop Sharma to hospital, that he remained at the spot and ASI Dharam Singh went to the hospital and recorded the statement of complainant and sent him to police station for registration of FIR and that he left the spot at about 12.30 am and reached back at the spot at about 1:00 pm and that he handed over the original tehrir and copy of FIR to IO. He further deposed that no public person was present at the spot, that they asked public persons to join investigation but they declined, that IO got the photographs done and recorded the statement of photographer, that scooter and bus were seized vide memo Ex.PW3/A Page No. 4/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar and Ex.PW3/B respectively, that IO interrogated the driver of the bus and seized the driving licence and papers of bus vide memos Ex.PW3/C and Ex.PW3/D respectively, that the driver of the bus was arrested and his personal search was taken vide memos Ex.PW3/E and Ex.PW3/F respectively and that thereafter accused was released on bail. PW3 Ct. Azaz Ali identified the accused, present in court and photographs of the spot as well as of the vehicle, lying on the judicial file Ex.P1.
During cross examination the witness deposed that IO received the DD No. 27A regarding the accident, that they left the police station at 9.15 PM on 29.4.2007 and reached at the spot within 5 minutes, that IO recorded the statement of complainant in hospital, that he remained at the spot, that accused was arrested at the spot, that some public persons were passing through the road at the place of occurrence, that IO requested some public persons to join the proceedings but none agreed, that he does not know whether name and address of public person were recorded and IO might have recorded the same, that all the documents were prepared at the spot & not in the police station, that statement of Anup Sharma was recorded in the hospital, that supplementary statement of complainant was recorded in police station and that site plan was prepared in his presence but he did not put his signature.
PW3 Ct. Azaz Ali At further deposed that at about 12.00 night IO gave him Tehrir for registration of FIR and he returned to the spot after about 5055 minute, that IO gave the payment to the photographer, that distance between the bus and scooter near about 20 meter and that no conversation was made by injured with the Page No. 5/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar IO in his presence. The witness denied the suggestion that accused was falsely implicated in the present case as they have demanded some bribe from the accused and on his refusal he was falsely implicated in the present case or that the present accident was caused by another vehicle who was let off by them after receiving some consideration or that he is deposing falsely.
8. PW4 Retired ASI Devender Kumar proved the mechanical inspection report of both the vehicles i.e. scooter bearing number DL8S H 1467 and bus number DL1P B 0033 as Ex.PW4/A and Ex.PW4/B respectively.
During cross examination the witness deposed that damages on both the vehicles were fresh.
9. PW5 Devender Singh Bhandari proved the death certificate of Anup Sharma as Ex.C1.
This witness was not cross examined by or on behalf of accused despite opportunity.
10. PW6 Ct. Ramesh proved the photographs of the scooter and bus bearing number DL1P B 0033 Ex.P1 and negatives of the same as Ex.PW6/A. During cross examination the witness deposed that he took the photographs after 9.30 pm.
11. PW7 Dr. Arun Gupta deposed that on 16.02.2008, one patient namely Page No. 6/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar Anoop Sharma was admitted in Department of Surgery with pain abdomen of five days duration, that the said patient was diagnosed to have Septicemia and he was found to have multiple holes in the small intestine, that he was shifted to trauma, ICU and he died on 22.02.2008, that the cause of death as per his treatment record appears to be ileal perforatonos with peritonitis and septicemia and he proved the report as Ex.PW7/A. A court question was put to the witness whether the death of the above said deceased is related in any manner with the injuries mentioned in Ex.PW1/A. The witness replied that as per the record, it appears that the death of the said patient was because of perotinitis following acute ileal perforation. The disease is in his opinion was not related to the injuries, which the patient had sustained earlier.
This witness was not cross examined by or on behalf of accused despite opportunity.
12. PW8 Retired ASI Dharam Singh deposed that on the intervening night of 28/29.04.2007, he was posted as ASI at PS I.P. Estate, that on that day DD No. 27A regarding accident at Vikas Marg, Delhi Secretariat in front of carriage way from ITO to Shakarpur was marked to him at about 9.15 pm, that he along with Ct. Azaz Ali went at the aforesaid spot, that where he found one scooter number DL8S H 1467 and blue line bus number DL1P B 0033 route no. 623 in accidental condition, that at the spot, PCR officials from OSCAR21 were present and they handed over him accused Rajinder Kumar, that PCR van took the injured Anup Sharma to LNJP Hospital, that spot was photographed by the government photographer Ct. Ramesh Page No. 7/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar Kumar, that Ct. Azaz Ali was left at the spot and he went to the LNJP Hospital, that he obtained the MLC of the injured Anup Sharma on which the doctor declared him as fit for statement, that he recorded his statement and he came back to the spot, that on the basis of the statement of the injured Anup Sharma, tehrir was prepared by him on 29.04.2007 at 12.30 pm and he handed over the same to Ct. Azaz for registration of case and that complaint/statement of injured is Ex.PW8/A and tehrir is Ex.PW8/B. PW8 Retired SI Dharam Singh further deposed that after registration of FIR, Ct. Azaz returned back at the spot and handed over him copy of FIR and original tehrir, that he prepared site plan Ex.PW8/C, that accused was arrested and his personal search was conducted vide memos Ex.PW3/E and Ex.PW3/F respectively, that the offending blue line bus was seized vide memo Ex.PW3/B, that the victim's scooter was seized vide memo Ex.PW3/A, that documents of offending blue line bus were seized vide memo Ex.PW3/D, that he also seized DL of accused vide memo Ex.PW3/C and that mechanical inspection of blue line bus and scooter were conducted by ASI Devnder on 29.04.2007 on his request letter Ex.PW8/D and Ex.PW8/E, that he identifies the accused, present in court and photographs and negatives of the bus and scooter, lying on the judicial file as Ex.P1, that he recorded the statements of witnesses at the spot and that thereafter accused was released on bail.
PW8 Retired SI Dharam Singh further deposed that on 24.03.2008, wife of the victim Anup Sharma came at the police station and revealed that her husband is no more, that he recorded her statement to this effect, that she also stated that her husband was admitted in the GTB Hospital due to injury sustained in accident in Page No. 8/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar question, that he also made enquiry regarding the cause of death of victim Anup Sharma and also made application in this regard before MS GTB Hospital, carbon copy of the same is Ex.PW8/G and that report in this regard is Ex.PW7/A. During cross examination the witness deposed that he had filed chargesheet in the present case and the supplementary statement of the complainant/ injured recorded by him is true and correct to the best of his knowledge, that he had made DD No. 27A prior to leaving the police station for investigation in the present case, that he left the police station at about 9.15 p.m, that he had gone along with Ct. Azaz Ali, that it took him about 5 minutes to reach to the spot from police station, that the injured was helped by the PCR staff in sitting in the PCR, that the blood was coming from the injured leg of the injured, that it took him about one hour at the spot for investigation prior to leaving for hospital, that he was not able to remember as to how much time he took in reaching the hospital, that he went to the hospital alone, that he was not able to remember as to at what time, he recorded the statement of complainant/ injured but he volunteered that he recorded statement of complainant/ injured at hospital, that he arrested accused Rajinder at the spot, that it took him about one hour in investigation at hospital, that he reached at the spot from hospital alone, however, he was not able to remember the exact time and that the spot is a public place and he had asked some independent public persons to join investigation, however they all refused to join the same and left without disclosing their names and addresses. The witness denied the suggestion that accused has been falsely implicated in the present case in order to get the complainant the money from insurance claim or that entire paper work of the present case was done while Page No. 9/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar sitting at the police station or that signatures of accused was taken on blank paper or that he was deposing falsely.
13. PW9 Retired SI Nahar Singh proved the factum of registration of FIR Ex. PW9/A in the present case.
This witness was not cross examined by or on behalf of accused desipte opportunity.
14. On 27.09.2012 and 30.09.2019, vide a separate statement, accused admitted factum of preparation of MLC Ex. PW1/A, X ray report Ex. A1 and copy of FIR Ex. C1. In view of this statement, the prosecution witness qua the said documents were dropped.
15. Thereafter, Prosecution Evidence was closed as all the material witnesses were examined and statement of the accused u/s 281 read with Section 313 read with Section 281 Cr.P.C was recorded wherein all the incriminating circumstances appearing in evidence were put to the accused who stated that he did not commit any offence and he has been falsely implicated in the present case. The accused chose not to lead defence evidence.
16. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of relevant section are completed. In reply to this it is argued on behalf of accused that Page No. 10/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar accused did not commit any offence and he has been falsely implicated in the present case. It is further submitted that prosecution miserably failed to prove its case against the accused beyond reasonable doubts as there is no eye witness to prove the factum of commission of accident by accused while driving the offending bus and presence of rashness or negligence on the part of the accused which are necessary elements for completion of offence punishable u/s 279 /338 IPC.
17. This Court heard the arguments advanced by the Ld. APP for the State and Ld. Counsel for the accused and have perused the record of the case
18. In order to prove the guilt of the accused for offence punishable u/s 279/337 A IPC, it is necessary for the prosecution to prove beyond the reasonable doubt that accused was driving the vehicle on a public way, that the vehicle was being driven by the accused in a rash and negligent manner and that due to the said manner of driving an accident was caused due to which victim Anup Sharma suffered grievous injuries.
19. For establishing the said elements, the testimony of eye witnesses is the most important and relevant one as other witnesses are generally police / medical witnesses who have not witnessed the accident and thus their testimony is formal in nature
20. On perusal of the case file, it is revealed that in the present case, the FIR was Page No. 11/13 FIR No. 185/2007 PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar registered on the basis of statement of injured / sole eye witness Anup Sharma and he was cited as prosecution witness in the list of witness by the Investigating agency. As per the report u/s 173 Cr.P.C & the testimony of PW7 Dr. Arun Gupta, it is clear that the complainant/injured Anup Sharma expired on 22.02.2008 during treatment for ailments not related to injury sustained earlier and thereafter, dead body was cremated without postmortem. PW2 Mamta, who is the wife of injured Anup Sharma was examined by the prosecution. This witness is not the eye witness of the accident, however, she reiterated the facts mentioned in her statement u/s 161 Cr.P.C. during her deposition. The testimony of this and other witness brought by the prosecution witness is of no use to fasten criminal liability for the offence punishable u/s 279/338 IPC they were not present on the spot at the time of accident.
21. Complainant/injured Anup Sharma was the only eye witness who could have proved the identity of the offending vehicle, identity of accused and rash and negligent driving of accused but he expired before filing of chargesheet and testimony could not be recorded before the Court. There is no other eye witness of the incident or other circumstance to establish beyond reasonable doubt the identity of the offending vehicle, the identity of the accused as the driver of the offending vehicle and the element of rashness or negligence in the conduct of accused or any act / omission committed by accused which caused accident resulting in injuries to the victim which are necessary element for completion of offences u/s 279 & 338 IPC.
Page No. 12/13 FIR No. 185/2007PS I.P.Estate U/s 279/338 IPC State Vs Rajender Kumar
22. 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 & 338 IPC have not been established. Accordingly, accused Rajender Kumar, S/o Sh. Bhikari Lal, 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.
Digitally signedVIPLAV by VIPLAV DABAS DABAS 17:43:50 Date: 2019.11.18 +0530 Announced in the Open Court (VIPLAV DABAS) on 15.11.2019 MM03/CENTRAL:DELHI 15.11.2019 Page No. 13/13