Delhi District Court
State vs . Sunil Kumar on 31 October, 2014
FIR No. 124/06
State Vs. Sunil Kumar
U/s. 279/304A IPC & 185 MV Act
PS: Keshav Puram
IN THE COURT OF SH. VIPLAV DABAS MM4(NORTH WEST) ROHINI
COURTS DELHI
FIR No. 124/06
State Vs. Sunil Kumar
U/s. 279/304A IPC & 185 MV Act
PS: Keshav Puram
Case ID No. 02404R0381922006
Date of Institution of case : 21.12.2006
Date of Judgment : 31.10.2014
JUDGMENT:
a) Date of offence : 19.02.2006 b) Offence complained of : U/s 279/304-A IPC & 185 MV Act c) Name of Accused, his : Sunil Kumar parentage & residence S/o Sh. Ved Pal Singh, R/o G-398, Gali no. 1, Shiv Mandir Road, Swaroop Nagar, Delhi. d) Plea of Accused : Pleaded not guilty e) Final order : Convicted Page No.1/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram BRIEF FACTS AND REASONS FOR DECISION:-
1. That on 19.02.2006, at about 3.00 p.m, at Road No. 37, Red Light Point near Kanhaiya Nagar Metro Station, Delhi, within the jurisdiction of PS Keshav Puram accused was found driving motorcycle bearing registration No. DL 8SAD 2753 under the influence of alcohol in a manner so rash or negligent at a public place as to endanger the human life and personal safety of others and while driving the aforesaid vehicle in aforesaid manner, accused struck it against motorcycle bearing registration no. DL-8SAE-3220 and caused the death of Hari Ram Bhima who was pillion rider on the aforesaid motorcycle and thus committed offence punishable u/s 279, 304-A IPC and under Section 185 M.V. Act respectively. After the usual investigation, the charge sheet for the offence U/Sec u/s 279, 304-A IPC and under Section 185 M.V. Act was filed by the investigating agency against the accused.
2. The aforesaid chargesheet was filed before the court on 17.04.2007, whereupon the cognizance of the offences u/s 279, 304-A IPC and under Section 185 M.V. Act was taken against the accused. Thereafter, provision of section 207 Cr.PC. was complied.
3. After hearing the arguments, notice u/s 279, 304-A IPC and under Section 185 M.V. Act was framed against the accused Sunil Kumar upon Page No.2/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram which the accused pleaded "Not Guilty" and claimed trial. Accordingly, the case was fixed for prosecution evidence.
4. In order to prove the guilt of the accused u/s 279, 304-A IPC and under Section 185 M.V. Act, the prosecution has to prove the following essential ingredients of the said Sections:-
a) Section 279: That 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 or to be likely to cause hurt/injury to any other person.
b) Section 304-A: 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.
c) Section 185 M.V. Act:- That the accused was driving the vehicle and that the accused was under the influence of alcohol with its content in the blood exceeding 30 mg per 100 ml of blood detected in a test by a breath analyzer test.
5. During the course of the trial, prosecution examined nine witnesses to substantiate the accusations levelled against the accused.
6. PW-1, Mahender Singh, S/o Sh. Lekh Ram deposed that on Page No.3/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram 19.02.2006 he alongwith his friend were going on his motorcycle and stopped at Red Light, Ashok Vihar as the signal was red, that when they started moving the vehicle towards Keshav Puram on green signal one motorcycle bearing no. DL 8SAD 2753 came from the Prem Bari Pull in a rash and negligent manner and struck against their motorcycle, that due to the impact of the collision both the motorcyclists fell down, that he alongwith his friend Hari Ram Bhima and accused Sunil Kumar were taken to Sunder Lal Jain Hospital in a private vehicle where injured Hari Ram Bhima was declared dead, that police officials recorded his statement Ex. PW-1/A and that both the motorcycles were taken into police possession vide seizure memos Ex. PW-1/B and Ex. PW-1/C respectively. PW-1, Mahender Singh further deposed that documents of his motorcycle were also taken into possession vide memo Ex. PW-1/D, that DL of the accused was taken into possession vide memo Ex. PW-1/E and that the accused was arrested and personally searched vide memos Ex. PW-1/F and Ex. PW-1/G respectively The witness was not cross examined on behalf of the accused despite opportunity and matter was proceeded further with Nil cross examination. However, later on the accused was permitted to cross examine the aforesaid witness on an application 311 Cr.P.C which was allowed by the Ld. Predecessor Court vide order dated 02.12.2013.
During the cross examination, the witness deposed that, they had gone to hospital in an Ambassador taxi from the place of the accident, that he does not remember the number of the said taxi as so much time has lapsed, that Page No.4/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram this taxi was not called but was passing from there, that he does not know the name of the driver of the taxi, that taxi driver immediately went from the hospital after dropping them there, that it is correct that in his statement given to the police he had stated that they were shifted to the hospital in a private vehicle, that on the red light, he had stopped his motorcycle on the right side of the road, that there were so many vehicles standing on the red light with him, that it is correct that when the red light turned green all the vehicles waiting for green signal started moving with him and that it is correct that he had seen the accused driving his motorcycle only after the accident had been caused and when he and deceased both fell down from motorcycle. The witness denied the suggestion that he had jumped the red light in a very fast speed and resultantly collided with the motorcycle of the accused and that the accused was driving his motorcycle in a moderate speed when red light was turned green.
The witness further deposed that it is correct that accused was driving his motorcycle with a pillion rider, that he does not remember the exact time when police officials reached the hospital and volunteered that it might be about 6:30/7:00 p.m, that his statement was recorded at about 8:00 p.m by the police official in PS Keshav Puram, that he had reached the PS Keshav Puram at about 7:45 p.m, that he informed the police about the place of occurrence when they reached at the spot while going to the police station from the hospital, that he had shown the place of accident to the police official while sitting in the vehicle in which they were going to the P.S. The Page No.5/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram witness denied the suggestion that accident took place as he was driving his motorcycle at a speed of 70/80 k.m per hour, that the accused was not drunk and that just to save myself he falsely stated to the police that the accident took place because of rash and negligent driving of the accused. The testimony of this witness shows that the offending vehicle was being driven on a public place by the accused in a manner so rash and negligent as to endanger human life, that death of the victim Hari Ram Bhima was caused because of the rash and negligent act of the accused and that the death of the victim is the direct of result of rash or negligent act on part of the accused and the said act is sufficient cause of the death of the victim without another act of negligence.
7. PW-2 Sh. Ajay, S/o Sh. Hari Ram proved the dead body identification memo Ex. PW2/B which bears his signature at point A. The testimony of this witness which corroborates the prosecution version has gone unrebutted as this witness was not cross examined despite opportunity thereby amounting to its admission by/ on behalf of accused which established the identity of the victim.
8. PW-3 Head Constable Narender Kumar, No. 1658, deposed that on 19.02.2006, on receiving the copy of DD no. 22PP, he along with Assistant Sub-Inspector Sat Narain went to Sunder Lal Jain Hospital where Assistant Sub-Inspector Sat Narain collected the copy of MLCs of accused Sunil Page No.6/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram Kumar and injured Hari Singh, that IO prepared rukka and handed over the same to him for registration of FIR, that after getting the FIR registered, he went to the spot where two motorcycles bearing registration no. DL 8SAD 2753 and DL 8SAE 3220 were parked in an accidental condition and that the same were taken into possession vide memos Ex. PW-1/B and Ex. PW-1/C respectively. PW-3 Head Constable Narender Kumar, No. 1658 further deposed that accused was arrested and personally searched vide memos Ex. PW-1/E and Ex. PW-1/F, that the documents of the vehicle were taken into possession vide memo Ex. PW-1/D, that on 20.02.2006, the dead body of the deceased was identified by his relatives vide identification statements/memos Ex. PW3/A and Ex. PW2/A respectively and that the dead body was handed over to the relatives of the deceased after post mortem vide receipt Ex. PW2/B. During cross-examination, the witness deposed that he reached at Sunder Lal Jain Hospital at about 3.20 pm and went to the spot from PS at about 8.15 pm and that no statement of any witness was recorded. The witness denied the suggestion that neither he nor IO ever went to the spot along with the complainant and accused. The testimony of this witness corroborates the prosecution version in respect of the investigation carried out by the police officials and thus substantiates the same.
9. PW-4, Assistant Sub-Inspector Mohd. Sawaley, No. 4554-D, PS:
Keshav Puram proved the registration of FIR no. 124/2006 in the present Page No.7/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram case which was recorded in his own handwriting and carbon copy of which is Ex. PW-4/A and endorsement on the rukka Ex. PW4/B. The testimony of this witness which corroborates the prosecution version has gone unrebutted as this witness was not cross examined despite opportunity thereby amounting to its admission by/ on behalf of accused.
10. PW-5 Constable Sumer Singh No. 2121, PCR/North West, proved the registration of DD no. 22 Ex. PW5/A of the present case.
The testimony of this witness which corroborates the prosecution version has gone unrebutted as this witness was not cross examined despite opportunity thereby amounting to its admission by/ on behalf of accused and proved the DD entry of the present case.
11. PW-6, Retired Assistant Sub-Inspector Devender Kumar deposed that on 20.02.2006, he conducted mechanical inspection of both the motorcycles on the request of IO/Assistant Sub-Inspector Sat Narain and he proved the inspection reports exhibited as PW-6/A and PW-6/B respectively.
During the cross-examination, the witness deposed that he found scratches on the front wheel tyre of the motorcycle bearing no. DL 8SAD-2753 which was not possible due to attempt of driver to stop the vehicle by applying sudden brakes which shows that the accused had jumped the signal at high speed as he failed to apply even the brakes and that there were only scratch marks visible on the left side of the motorcycle Page No.8/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram bearing no. DL 8SAE-3220 but there was no fresh damage on the left side.
12. PW-7 Dr. Alam, CMO Sunder Lal Jain Hospital deposed he had worked with Dr. R.S.Sharma who prepared the MLC in the present case and he identified his signature at point A on the MLC bearing no. 5462 Ex. PW7/A. During the cross-examination, the witness denied the suggestion that he has not worked with Dr. R.S. Sharma and that he has not seen him writing and signing. The defence failed to impeach the credit of this witness who proved the contents of MLC prepared in the year 2006 by Dr. R.S.Sharma as the witness was working with the hospital since 2005.
13. PW-8 Dr. Upender Kishore, Associate Professor, VMMC & Safdarjung Hospital, Delhi, deposed that on 20.02.2006, he conducted the post mortem examination on the dead body of deceased Hari Ram Bhima and proved the detailed postmortem report exhibited as PW8/A bearing his signature at point A, according to which the victim died due to carnio cerebral damage as a result of antemortem injuries to head produced by blunt force impact possible in road side accident.
During the cross-examination, the witness deposed that it was not necessary that the injury can be sustained only on the head without helmet. The firm testimony of this witness proved the postmortem report which opined that cause of death of the victim were the injuries sustained possibly Page No.9/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram in a road side accident.
14. PW-9 Sub-Inspector Sat Narain, No. 4847-D, PS Maya Puri, Delhi deposed that on 09.12.2006, on receipt of call from Sunder Lal Jain Hospital, he along with Constable Narender went to the said Hospital where he obtained the MLCs of injured persons, that he recorded the statement of injured Mahender Singh who was fit for statement and that he made endorsement Ex. PW9/A on the statement of injured Mahender Singh and prepared rukka and handed over the same to Constable Narender for registration of the case. PW-9 Sub-Inspector Sat Narain further deposed that he prepared site plan Ex. PW-9/B and seized the motorcycles as well as DL and RC of accused vide seizure memos already Ex. PW-1/B, Ex. PW-1/C and Ex. PW1/E, that he arrested and personally searched the accused vide memos Ex. PW-1/F and Ex. PW-1/G and that thereafter, he along with Constable Narender came to the Sunder Lal Hospital where the dead body of deceased Hari Ram was shifted to Mortuary. PW-9 Sub-Inspector Sat Narain further deposed that he prepared inquest papers and request for post mortem Ex. PW-9/C and Ex. PW-9/D. During the cross-examination, the witness deposed that he does not remember exactly when he reached at the spot from the Hospital, that the pillion rider did not meet him during investigation of this case and thus his statement could not be recorded, that the accused was under the influence of liquor but no blood sample of accused was taken during his medical Page No.10/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram examination for testing the quantity of alcohol in his blood and that he did not make enquiry from the accused later on about the identity of pillion rider. The witness further deposed that no eye witness of the accident except complainant met him, that no skid marks were observed by him at the spot and that no helmets were found lying at the spot. The witness denied the suggestion that accused was not under the influence of liquor that is why he did not request for his blood sample and that he did not record the statement of pillion rider as the accident was caused due to rash and negligent driving of the complainant.
It is apparent from the testimony of aforesaid witness that the defence has failed to extract any material contradiction going to the roots of the prosecution version which substantiate the case of the prosecution as deposed by the aforesaid witnesses. The aforesaid witness thus proved rukka, seizure memos of vehicles, site plan, arrest memo, personal search memo etc.
15. Vide order dated 15.07.2014, passed by this Court, prosecution evidence was closed and matter was listed for recording of the statement of accused.
16. The Statement of Accused was recorded U/Sec 281 r/w 313 Cr. P.C on 19.08.2014 and all the incriminating circumstances appearing in evidence were put to the accused to which the accused replied that no such accident Page No.11/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram has ever taken place by him nor he was driving the said vehicle in a rash and negligent manner or in a drunken condition at the relevant time. Accused fur- ther deposed that the accident had taken place due to the negligence of the complainant who was coming at a very high speed after jumping the red light. Accused chose not to lead defence evidence.
17. 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 no such accident has ever taken place by him nor the accused was driving the said vehicle in a rash and negligent manner or in a drunken condition at the relevant time. It is further argued that the accident had taken place due to the negligence of the complainant who was coming at a very high speed after jumping the red light and that prosecution miserably failed to prove its case against the accused beyond reasonable doubts, that the accused was not drunk at the time of accident and that the accused is in- nocent as he was not driving the vehicle in rash and negligent manner.
18. I have heard the Ld. APP for the state as well the defence counsel.
19. It is apparent from the aforesaid testimonies that accused was driving the bike at the time of accident on public road, that accused was apprehended by PW-1 on the spot immediately after the accident, that PW-1 Page No.12/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram had stopped his bike on the right side of the road as the signal was red and many other vehiclse were standing with him on the red light, that the PW-1 started moving his vehicle only when the signal had turned green which shows that the signal on other sides of the crossing must have been red at that time indicating that accused had jumped the red signal from his side and thus had hit the bike of the complainant who was crossing during the green signal and that it was the negligence of accused which caused the accident resulting into death of the victim.
The aforesaid testimonies duly proved the element of rashness and negligence as the accused indulged in an over hasty act by speeding while crossing traffic signal the red light without taking care of probable danger to the public persons passing by on the other vehicles at that time and the act of the accused in jumping the red signal without waiting for the same to turn green speaks volumes about the absence of due care and caution which is expected to be observed while driving on a public way by a reasonable and prudent man. It can thus be said that rashness of the accused was of such a degree as to amount to taking a hazard knowing that the hazard was of such a degree that injury was most likely eminent and there was gross negligence on the part of the accused and not the negligence merely based upon an error of judgment. It is also clear from the postmortem report and testimonies of other witnesses that the death of the victim was caused in the aforesaid accident due to the rash and negligent act of the accused which shows that there is direct nexus between the death of accused and the rash/negligent Page No.13/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram act of the accused. In view of aforesaid observations and clinching testimonies, the defence version that the accused drove his vehicle when the signal was green is of no consequence.
In respect of charge under section 185 M.V.Act, it was mandatory for the prosecution to prove that the alcohol content was exceeding 30 mg per 100 ml of the blood and that the accused was put to breath analyzer test for measuring the quantity of the alcohol present in his blood at the time of driving the vehicle under the influence of liquor as it is settled law that simple certificate of medical practitioner or report of laboratory test can not be a substitute for breath test by breath analyzer. In the present case, the only evidence regarding the drunken driving is that accused was smelling of alcohol as stated in the MLC from which the quantity of alcohol present in the blood can not be ascertained by any stretch of imagination. So, in the absence of any conclusive evidence regarding the presence of alcohol in the blood as well as that of specific content of alcohol measured by breath analyzer test, it can not be said that the accused was driving the vehicle under the influence of alcohol with content in the blood exceeding 30 mg per 100 ml of blood so as to attract the liability Under Section 185 Motor Vehicle Act. Considering the aforesaid reasons, it is held that the offence punishable u/s 185 Motor Vehicle Act is not made against the accused.
20. In the view of the above discussion, court is of the opinion that the prosecution has clearly established beyond reasonable doubt that the Page No.14/15 FIR No. 124/06 State Vs. Sunil Kumar U/s. 279/304A IPC & 185 MV Act PS: Keshav Puram Accused Sunil Kumar, S/o Sh. Ved Pal Singh was driving motorcycle bearing registration No. DL 8SAD 2753 in a manner so rash or negligent at a public way so as to endanger human life and personal safety of others and consequently he is liable for the offence U/s 279 IPC. The prosecution has further proved beyond reasonable doubt that the accident took place and deceased Hari Ram Bhima died on account of the rash and negligent act/driving of the accused and consequently he is liable for the offence U/s 304 A IPC.
21. In these facts and circumstances, the prosecution has been able to prove its case beyond reasonable doubt. I therefore hold the Accused Sunil Kumar, S/o Sh. Ved Pal Singh guilty of offences punishable under section 279 & 304-A IPC and not guilty under Section 185 Motor Vehicle Act. The accused is accordingly convicted for offences punishable under section 279 & 304 A IPC and acquitted for the offence punishable u/s 185 of Motor Vehicle Act as the same is not made out.
22. Let the convict be heard on the point of sentence.
Announced in the Open Court (VIPLAV DABAS)
on 31.10.2014 MM (N/W-04), Rohini Courts:DELHI
31.10.2014
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