Delhi District Court
State vs Sarafat Khan on 3 May, 2025
IN THE COURT OF MS. DEEPAK KUMAR-I
CHIEF JUDICIAL MAGISTRATE,
EAST KARKARDOOMA COURTS: DELHI
DLET020002412012
FIR No. 400/2011
Unique Case ID No. 1761/2016
Title State Vs. Sharafat Khan
Name of complainant Sh. Ram Kishan
Name of accused Sharafat Khan
S/o Sh. Liyakat Khan
R/o E-672, Gali No. 10, West
Vinod Nagar, Delhi.
Date of institution of challan 02.04.2012
Date of final arguments 26.04.2025
Date of pronouncement 03.05.2025
Date of commission of offence 19.11.2011
Offence complained of U/s. 279/304-A IPC
Offence charged with U/s. 279/304-A IPC
Plea of the accused Pleaded not guilty
Final order Acquitted
JUDGMENT
BRIEF REASONS FOR THE DECISION OF THE CASE:-
01. Briefly stated, the case of the prosecution is that on 19.11.2011 at 03.10 p.m. at main gate, Shyama Prasad Mukherji FIR No. 400/2011 State Vs. Sharafat Khan Page 1 of 19 Hospital, Patparganj, Delhi, accused Sharafat Khan was driving a car bearing No. DL3C-BC-4741 in a manner so rash or negligent and while driving in such a manner, accused had hit against one Harender, who was the son of the complainant, due to which, he died during the medical aid. Thereafter, FIR was registered and after completion of investigation, charge sheet was filed in the court.
02. Charge U/s. 279/304-A IPC was framed against the accused on 19.10.2012, to which he pleaded not guilty and claimed trial.
03. The prosecution examined nine witnesses in total to prove its case.
04. PW1, Ram Kishan, Ram Kishan, testified that on 19.11.2011, at about 3:00 p.m., he was on his way to have his mobile repaired and had reached the mobile shop in front of his house. He further stated that, at that moment, he saw a WagonR car, the number of which he could not recall, come and hit a boy. He testified that the driver of the car was driving at a very high speed. When he reached the scene, he saw that the incident involved his son, Harinder, who was lying beneath the car. He testified that the accident occurred due to the rash and negligent driving of the driver, and after the incident, the driver fled the scene. Ram Kishan further testified that he called the emergency number (100), and the PCR arrived and took him and his son to LBS Hospital. He stated that his FIR No. 400/2011 State Vs. Sharafat Khan Page 2 of 19 statement, Exhibit PW1/A, was recorded by the police. He also stated that he showed the spot of the incident to the police. He further testified that his son succumbed to his injuries two days after the incident. He clarified that his son had been standing near the gate of the hospital at the time. He further deposed that postmortem of his son was conducted and thereafter, the dead body of his son was handed over to him on identification Ex. PW1/B and handing over memo Ex. PWI/C. He deposed that his statement was recorded by the police.
05. PW2, Sh. Suresh, testified that on 21.11.2011, he had identified and received the dead body of deceased Harender at the mortuary of LBS hospital vide memos Ex. PW2/A and Ex. PW1/C.
06. PW3, Sh. Riyasat, who was the registered owner of the Wagon R Car bearing No. DL3C-BC-4741, testified that in the year 2011, he had received a notice u/s. 133 MV Act, on which, he alongwith his brother Sarafat (accused) reached at DCP office, Vishwas Nagar and gave reply Ex. PW3/A to the said notice. He deposed that said WagonR car was seized by the police vide seizure memo Ex. PW3/B. He further deposed that his brother (accused) was arrested and personally searched by the police and thereafter, his brother (accused) was released on bail. He deposed that he had handed over the documents i.e. RC and insurance of the said car, which were seized by the police vide seizure memo Ex. PW3/C. He further deposed that he got released the said car on superdari vide FIR No. 400/2011 State Vs. Sharafat Khan Page 3 of 19 superdarinama Ex. PW3/D. During cross-examination by Ld. APP for the State, the witness admitted that on the day of accident i.e. 19.11.2011, his brother Sharaft Khan (accused) was driving the said vehicle.
07. PW4, HC Vimal Kumar, testified that on 19.11.2011, he was working as Duty Officer in PS Pandav nagar. He proved the factum of registration of FIR Ex. PW4/A and endorsement on rukka Ex. PW4/B.
08. PW5, Dr. O.S. Tomar, testified that on 19.11.2011, at about 03.50 p.m., one patient namely Harender brought by HC Madan in the hospital with alleged history of road traffic accident. He deposed that Dr. Paresh, Jr. Resident, medically examined the patient vide MLC No. 17828/11, which is Ex. PW5/A.
09. PW6, HC Dharmender, testified that on 22.11.2011, accused Sharafat Khan was arrested and his personal search was conducted in his office vide memo Ex. PW6/A and Ex. PW6/B. He further deposed that one WagonR car bearing No. DL3C-BC-4741 was seized by the IO vide seizure memo Ex. PW3/B, photocopy of RC, insurance were seized by the IO vide seizure memo Ex. PW3/C and photocopy of the DL of accused was seized vide seizure memo Ex. PW6/C.
10. PW7, Retired HC Prem Pal, who was working as Duty FIR No. 400/2011 State Vs. Sharafat Khan Page 4 of 19 Officer in CMVAI Cell, East, testified that on 21.11.2011, at about 9.10 a.m., a telephonic information from PS Pandav Nagar was received regarding the demise of one injured admitted in LBS hospital vide MLC no. 17828/2011 in an accident case. He deposed that he reduced the information into writing vide DD No. 5 dated 21.11.2011, which is Ex. PW7/A and the said DD was marked to SI Mandan Lal for further investigation.
11. PW8, Retired ASI Madan Lal, testified that on 21.11.2011, he received DD No. 5 Ex. PW7/A regarding injured Harender, who had expired at LBS Hospital. He deposed that SI Radhey Shyam of PS Pandav Nagar handed over complete case file to him, thereafter, he alongwith Ct. Dharmender went to LBS Hospital, mortuary, where he met father of deceased Harender and his relative Suresh, who identified the body of deceased vide Identification Memo Ex. PW1/B and Ex. PW2/A. He further deposed that postmortem of deceased was got conducted vide Postmortem Examination Report Ex. PW8/A and dead Body was handed over to the father of deceased vide Handing Over Memo Ex. PW1/C and he recorded statement of father of deceased and Suresh. He deposed that thereafter, he came at office and gave notice u/Sec. 133 MV Act Ex. PW8/B to the owner of offending vehicle i.e. WagnorR car bearing registration No. DL-3CBC-4741 namely Riyasat Khan . He deposed that on 22.11.2011, the said owner came at the office alongwith offending vehicle and accused Sharafat Khan and informed him that accused Sharafat Khan was driving the said FIR No. 400/2011 State Vs. Sharafat Khan Page 5 of 19 vehicle at the time of incident. He further deposed that he gave written reply Ex.PW3/A on the above said notice. He deposed that he seized the offending vehicle and documents vide seizure memos Ex. PW3/B, Ex. PW6/C, Ex. PW3/C and Ex. X-1(colly.). He deposed that accused was arrested vide arrest memo Ex. PW6/A and accused was personally searched vide memo Ex. PW6/B. He further deposed that mechanical inspection of said vehicle was got conducted vide memo Ex. PW8/C. He deposed that he had recorded the statement of witnesses and case property was deposited at malkhana.
12. PW9, Inspt. Radhy Shyam, testified that on 19.11.2011, he had received DD No.13-A Ex.PW4/D regarding accident, on which, he alongwith Ct. Subhash went to the gate of Shyama Prasad Mukherjee Hospital, where the gate was broken and he came to know that the injured was shifted to LBS Hospital. He deposed that after leaving Ct. Subhash at the spot, he went to the LBS Hospital, where he received MLC of the injured Harender, who was not fit for the statement. He further deposed that the father of the injured namely Ram Kishan was also present there and he was eyewitness of the incident. He deposed that he had recorded the statement of the Ram Kishan which is Ex. PW1/A and thereafter, he alongwith complainant returned back to the spot, where he prepared rukka Ex. PW9/A and handed over the same to Ct. Subhash for registration of FIR. He further deposed that he prepared the site plan at the instance of complainant Ex. PW9/B and in the FIR No. 400/2011 State Vs. Sharafat Khan Page 6 of 19 meanwhile, Ct. Subhash came back at the spot and handed over the original rukka and copy of the FIR to him. He deposed that he put the FIR number on the site plan. He further deposed to have searched other eyewitnesses, but could not find them. That, he recorded the supplementary statement of complainant and then left the spot. He also recorded the statement of Ct. Subhash at Police Station. That he again visited the hospital and recorded the statement of the injured Harender. He deposed that on 21.11.2011, he received DD No. 21-B Ex.PW9/C regarding the demise of the injured and thereafter, he went to the hospital. He deposed that IO/ ASI Madan Lal came at the hospital and further investigation was marked to ASI Madan Lal and he handed over all the relevant documents of the present matter to the IO and IO relieved him.
13. Statement of accused u/s. 294 Cr.PC was recorded on 25.07.2017 and 01.11.2022, in which, accused has admitted the postmortem report, TIP proceeding, Mechanical inspection report and DD No. 21-B and accordingly, Dr. B.N. Acharya, T.U. Siddiqi, Ld. MM Sh. S.P.S Laler and L/Ct. Krishna were dropped from the list of witnesses.
14. Thereafter, PE was closed vide order dated 17.12.2024 Statement of accused was recorded under section 313 Cr.PC. Thereafter, accused had led evidence in his defence.
15. DW1, Sharaft Khan, the accused deposed that on the FIR No. 400/2011 State Vs. Sharafat Khan Page 7 of 19 day of incident, he had to attend dispensary. He further deposed that the child was hanging/playing on the iron gate of dispensary and as soon as, he arrived near the gate of dispensary, the child fell and iron gate also fell upon him as the same was broken, he ran towards the child in order to save him. He deposed that other persons including his brother in law (jija ji) and one subzi wala rushed towards the child and child was taken out of the fallen gate, the child went away from there and the matter ended here. He deposed that thereafter, he returned back to his home after seeing his sister, who was admitted there. He deposed that he does not know anything else. He deposed that the alleged incident for which, he is being prosecuted never happened in his presence. He deposed that he never made any accident of any child from his vehicle.
16. DW2, Sh. Riyazuddin, deposed on the same lines as deposed by the accused.
17. Thereafter, on the statement of accused, defence evidence was closed. Final arguments were heard from both the sides.
18. The Ld. APP for the State sought the conviction of the accused, asserting that the prosecution has proven its case beyond reasonable doubt through the credible testimony of PW-1, the alleged eye-witness, and the corroborating statements of other prosecution witnesses. Conversely, the Ld. Counsel for the accused FIR No. 400/2011 State Vs. Sharafat Khan Page 8 of 19 argued for acquittal, highlighting contradictions in the testimonies of key witnesses and the insufficiency of evidence presented by the prosecution. Ld. Counsel for accused had relied upon following judgments in support of his submissions:-
1. State of Karnataka Vs. Satish (1998)8SCC493
2. Rathnashalvan Vs. State of Karnataka AIR 2007 Supreme Court 1064.
3. Syad Akbar Vs. State of Karnataka, 1979 AIR 1848.
4. Kali Ram Vs. state of Himachal Pradesh, 1973 AIR 2773.
Sharad Birdhi Chand Sarda Vs. State of Maharashtra, 194 AIR 1622.
19. As the present matter pertains to an offence u/s. 279/304-A IPC, what needs to be seen in the present matter is whether the ingredients of the above offences have been made out by the prosecution in the present case. For an offence u/s. 279 IPC, what needs to be seen in whether the driver of the vehicle was riding it on a public way in a manner so rash or negligent as to endanger human life or likely to cause hurt and injury to any other person. The ingredients of Section 304-A IPC is that:
a. There must be death of a person.
b. The accused must have caused such death. c. Such act of the accused was rash and negligent and it did not amount to culpable homicide.
20. Now, I will try to examine whether the prosecution has been able to prove the first ingredient of the offence u/s. 304-A IPC i.e. whether death of any person has been caused. As per the evidence on record, PW1,PW2,PW7,PW8 and PW9 have FIR No. 400/2011 State Vs. Sharafat Khan Page 9 of 19 consistently testified regarding the occurrence of accident on the date of incident. PW1, who is stated to eye-witness of the incident, has testified to have witnessed the accident. The prosecution has relied upon the postmortem report of the deceased, which is Ex. XX. The said report has been duly admitted by the accused u/s 294 Cr.P.C. The admission of postmortem report by the accused, the testimony of the prosecution witnesses and the mechanical inspection report of the offending vehicle clearly establish the occurrence of the alleged accident on the date of incident and the consequent death of the deceased person in the said accident. In the statement u/s. 313 Cr.PC, accused merely alleged that he has been falsely implicated in the present matter and he was not at fault in the alleged accident. Therefore, the factum of the death of a person due to the alleged accident stands conclusively proved by the prosecution.
21. The next ingredient is whether accused is the person who was driving the offending vehicle that has caused the accident subsequently leading to the death of the deceased. The most crucial witness in this regard examined by the prosecution is PW1 Ram Kishan, who has identified the accused as the driver of the offending vehicle. He further identified the offending vehicle through photographs i.e. Mark A to D in his examination-in-chief by stating that this is the same vehicle by which accident has taken place. It is further pertinent to note that in his evidence, PW3 has admitted that to have replied to the notice u/s 133 MV Act i.e. Ex. PW3/A, FIR No. 400/2011 State Vs. Sharafat Khan Page 10 of 19 wherein he stated that on the day of accident, his brother/accused was driving the offending vehicle. This witness was not cross- examined by the Ld. Counsel for accused. As such, his testimony remained unrebutted. In the light of the evidence on record, the burden under section 102 Indian Evidence Act has shifted upon the accused to prove that the prosecution witnesses were either tutored or had some motive to implicate the accused in the present case. The accused made no efforts to impeach the credibility of PW3 who has categorically testified that the accused was the driver of the offending vehicle on the date of accident. He did not make any effort to lead any defence evidence to prove if not him, who was actually driving the offending vehicle on the date of incident. In the light of the above discussion it stands conclusively proved that the accused indeed was the driver of the offending vehicle that has caused the accident and subsequently, the death of the deceased.
22. The last and the remaining ingredient is whether the accused was driving rashly and negligently in the public way which if proved, would satisfy all the ingredients of both the offences u/s. 279/304-A IPC. The Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 while dealing with a case u/s 304A IPC observed :
7. ...Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means FIR No. 400/2011 State Vs. Sharafat Khan Page 11 of 19 doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors.
A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.
Rashness and negligence in driving a vehicle are subjective concept and no straight jacket formula can be put to use to ascertain the rashness or negligence while driving the vehicle and rashness and negligence have to be proved like a 'relevant fact' during the course of trial and this onus lies upon the prosecution. There cannot be any reason including the unfortunate death of a person involved in the incident/accident which may compel the Court to presume rashness or negligence in driving the offending vehicle. The Hon'ble Apex court in Judgment titled Miyam Vs. State of A.P. (2000) 7 SCC 72 held:
"...It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would FIR No. 400/2011 State Vs. Sharafat Khan Page 12 of 19 prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case, the driver has to explain how the accident happened w/o negligence on his part..."
23. What needs to be seen here is whether the accused in the present matter was driving his vehicle in a rash and negligent manner. The prosecution's case primarily relies on the testimony of eye-witness PW1, Ram Kishan, who claims to have witnessed the alleged accident.
24. The fundamental rule in criminal jurisprudence is that the prosecution must prove its case beyond reasonable doubt. Where there exists inconsistency in the version of an eyewitness, especially regarding the manner of occurrence or the role of the accused, the benefit of doubt must accrue to the accused.
25. In this context, a crucial contradiction emerges between the initial statement (Ex.PW1/A) made by the complainant to the police and his deposition before the court. In Ex.PW1/A, the complainant Ram Kishan had categorically stated that while he was at the mobile repairing shop, he heard a noise and upon turning around, he saw that a driver had hit a boy by driving the vehicle negligently. Importantly, this narration indicates that the complainant did not actually witness the accident in the course of its FIR No. 400/2011 State Vs. Sharafat Khan Page 13 of 19 happening -- his knowledge was derivative, based on hearing a noise and then seeing the aftermath.
26. However, in stark contrast, while deposing in court as PW1, Ram Kishan asserted that he had seen the accused driving the WagonR car at a high speed and hitting his son Harender. This material improvement from his initial version is not a minor embellishment but a substantive contradiction that affects the very core of the prosecution's case -- namely, whether there was direct, reliable eyewitness testimony against the accused regarding the manner of driving. It is a settled principle of law that when a witness makes a material improvement in his testimony, casting serious doubt on the veracity of his evidence, the benefit of doubt must be extended to the accused. It is trite to mention that improvements which materially affect the prosecution case and introduce new facts which were not mentioned at the earliest opportunity seriously impair the credibility of a witness.
27. The fact that in Ex. PW1/A, the complainant had only inferred negligence and did not claim direct perception of the act of hitting, while in court he projected himself as an eyewitness to the entire occurrence, substantially dents the reliability of his testimony. It is important to note that the prosecution did not examine any independent witness who actually witnessed the occurrence, despite the alleged accident taking place in a public area near a hospital, a place presumably frequented by many people. Moreover, no FIR No. 400/2011 State Vs. Sharafat Khan Page 14 of 19 scientific or forensic evidence, such as skid marks, mechanical faults, or CCTV footage, was produced to corroborate rashness or negligence.
28. Further, in Abdul Subhan vs State (Nct Of Delhi) on 27 September, 2006 133 (2006) DLT 562 , Hon'ble Delhi High Court,while holing that it is for the prosecution to bring on record sufficient material to establish what is meant by 'high speed', has held as follows:-
"Merely because the truck was being driven at a "high-speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high-speed".
"High-speed" is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "high-speed" in the facts and circumstances of the case. 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". There is evidence to show that immediately before the truck turned turtle, there was a big jerk. It is not explained as to whether the jerk was because of the uneven road or mechanical failure. The motor vehicle inspector who inspected the vehicle had submitted his report. That report is not forthcoming from the record and the inspector was not examined for reasons best known to the prosecution. This is a serious infirmity and lacuna in the prosecution case."FIR No. 400/2011 State Vs. Sharafat Khan Page 15 of 19
29. It is well established that rashness and negligence are subjective concepts which must be proved beyond reasonable doubt, not inferred merely because an accident resulted in death. In Abdul Subhan v. State (NCT of Delhi) 133 (2006) DLT 562, the Hon'ble Delhi High Court observed that merely alleging high speed or accident does not suffice; specific facts indicating rash and negligent driving must be proved. In the present case, no such specific facts -- for example, the speed of the vehicle, traffic conditions, visibility, road condition, status of traffic signals, etc. -- have been proved by the prosecution. No photographs were furnished on record regarding the position of the offending vehicle qua the road i.e. whether it was found lying on the left, middle or right side of the road. No photographs were furnished of the road or deceased to show the impact of the accident.
30. The prosecution further failed to examine any other public witness, though, PW1 had testified that the public witnesses were present at the spot, who helped the deceased in the aftermath of the accident. The prosecution also failed to comply with the guidelines issued by Hon'ble High Court of Delhi in the Judgment dated 27.09.2006 i.e. Abdul Subhan Vs. State (NCT of Delhi) (2007 CRLJ 1089), wherein it has been laid down in detail that it is the responsibility of the investigating officer to prove the exact point of impact as well as tyre skid marks and the point at which the vehicles came to rest after the collision. It was further held that the observations of the IO with regard to the length of the tyre skid FIR No. 400/2011 State Vs. Sharafat Khan Page 16 of 19 mark of the vehicle involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. The mechanical inspection reports should also indicate whether the vehicles were mechanically sound prior to the accident to enable the Court to arrive at a conclusion as to whether the collision took place due to human rashness or mechanical failure beyond human control. It was further held that the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity or doubt. The driver of the vehicle should also be subjected to tests to reveal whether he had consumed any intoxicant or not. In the present case, the IO has failed to state the approximate speed of offending vehicle at the time of the accident, speed limit of the road, or the manner in which the traffic was moving and about the status of traffic signal etc. The prosecution further failed to prove the distance at which the offending vehicle was being driven and the direction or the manner in which it had hit the deceased. It also further failed to establish whether or not there were any other vehicle lying on the road at the time of the accident or even its photographs to support its case.
31. It is already a settled law that there must be a direct nexus between the death of a person and the rash or negligent act of the accused, a remote nexus is not enough. To impose criminal liability u/s. 304-A IPC, it is necessary that the death should have been the direct result of the rash and negligent act of the accused and that act must be proximate and efficient cause without the FIR No. 400/2011 State Vs. Sharafat Khan Page 17 of 19 intervention of another's negligence and it must be causa causans and not causa sine qua non. It is no more res integra that the mere fact that an accident had taken place and some person had been injured cannot lead to a conclusion of rash or negligent driving. The fact of rash or negligent driving has to be proved by prosecution by independent evidence.
32. In a criminal case, the initial burden is on the prosecution to prove the guilt of the accused beyond all reasonable doubts before the accused is asked to prove his defence. It is also settled proposition of law that whenever there are two views possible, the view which favours the innocence of the accused is to be accepted by the Court and that the defence of the accused is to be weighed on the scale of preponderance of probabilities only.
33. In view of the discussions, as held above, the rash or negligent driving on the part of the accused, a crucial and important ingredient remains unproved to prove the offences both u/s. 279 and u/s. 304-A IPC. The burden was on the prosecution to prove all the ingredients of both the above offences independently, which it failed to do. In a criminal case, there is no room left for any doubt or presumption and it is for the prosecution to establish its case beyond all reasonable doubts as the same could not be done by the prosecution in the present case, the accused is entitled to benefit of doubt and he is therefore, acquitted of both the abovesaid offences.
FIR No. 400/2011 State Vs. Sharafat Khan Page 18 of 1934. In such circumstances i.e in the absence of incriminating evidence on record, I hold that the prosecution has failed to discharge the onus of proving guilt of the accused beyond all reasonable doubts. There is no material on record sufficient to substantiate the guilt of the accused.
35. Accordingly, accused namely Sharafat Khan stands acquitted of the offences charged i.e. U/s. 279/304-A IPC. Accused to furnish bail bond and surety bond to the tune of Rs. 20,000/- for the purpose of Section 481 BNSS.
Dictated directly into the computer and announced in the open Court, on 3rd May , 2025.
(Deepak Kumar-I) Chief Judicial Magistrate(East), Karkardooma Courts, Delhi FIR No. 400/2011 State Vs. Sharafat Khan Page 19 of 19