Delhi District Court
State vs . Suresh Kumar on 21 October, 2021
1 of 26
IN THE COURT OF ANURAG THAKUR
MM-02: CENTRAL DISTRICT: TIS HAZARI COURTS: DELHI
FIR No. 420/14
PS Timarpur
U/s. 279/304A IPC
State vs. Suresh Kumar
CNR No. DLCT02-001167-2014
Date of Institution of case: 17.09.2014
Date of Judgment reserved: 11.10.2021
Date on which Judgment pronounced: 21.10.2021
JUDGMENT
Unique ID no. of the case : 289973/16
Date of commission of offence : 25.06.2014
Name of complainant : Shankar Yadav s/o Govind Singh
R/o Gali no. 4, Sangam Vihar,
In front of PP Jharoda, Delhi.
Name and address of accused : Suresh Kumar s/o Mange Ram
R/o Village Kaluwas,
Distt. Bhiwani, Haryana.
Offence complained of : 279/304A IPC
Plea of accused : Pleaded not guilty
Date of order : 21.10.2021
Final order : Acquitted
BRIEF REASONS FOR DECISION
1. The gravamen of accusation against the accused is that on 25.06.14 at about 2:40 pm, in front of Baba Gopal Dass Sahib Sindhi Baba Mandir, Outer Ring Road, near Aruna Nagar, Majnu Ka Tila, Delhi within the jurisdiction of PS Timarpur, he was found driving bus having registration no. HR 61B 7107 in Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:03:53 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 2 of 26 rash or negligent manner so as to endanger human life and personal safety of others and on that date, time and place while driving the aforesaid vehicle in the aforementioned manner, he hit against pedestrian Pradeep causing injuries which eventually lead to his death. On these allegations, the present FIR was registered at PS Timarpur u/s 279/304A The Indian Penal Code, 1860 (hereinafter referred to as IPC).
2. After investigation, final report was filed. The cognizance of offence was taken and accused was summoned to face trial. Upon appearance, copy of charge sheet was supplied to him in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, notice u/s 279/304A IPC was served upon accused on 02.01.2015 to which he pleaded not guilty and claimed trial.
3. Thereafter, prosecution was given opportunity to substantiate the allegations against the accused and 14 witnesses were examined by the State in order to bring home the guilt of the accused.
PW-1 Jage Ram deposed that on 07.07.2014 he was posted at Haryana Roadways, Bhiwani, as Traffic Inspector and on that day he got released bus bearing no. HR 61B 7107 by the order of the court. The superdarinama was exhibited as Ex.PW1/A bearing his signature at point A. He handed over the duty slip and document of the bus to the IO which were seized vide seizure memo Ex.PW1/B bearing his signature at point A. During cross-examination by ld. counsel for the accused he had admitted that fitness certificate of vehicle was valid up to 03.04.2014.
4. PW-2 Shankar Yadav deposed that on 25.06.14 he was doing denting, painting of vehicles at truck parking, Timarpur. On that day, at about 2:30 to Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:04:24 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 3 of 26 2:45 pm, he was having tea in front of Baba Gopal Dass Sahib mandir, Majnu Ka Tila. He saw one person crossing the road from the mandir side towards Majnu Ka Tila. One Haryana roadways bus No. HR 61B 7107 came from Wazirabad side at fast speed and hit the pedestrian. The said person fell down and sustained injuries. The bus was stopped when they tried to deboard the driver of the bus. Instead of coming down, he reversed the bus to flee away from the spot. In that process, the rear right tyre of the bus crushed the leg of the injured. The bus driver had stopped the bus after about 100 yds. The bus stopped due to red light. He made the PCR call at 100 number. He shifted the injured to the hospital in the PCR. (The driver of the bus was correctly identified by the witness in the court). After about 10 minutes, the local police came to the spot & called him telephonically. IO recorded his statement Ex.PW2/A bearing his signature at point A. He briefed the IO regarding the place of incident and IO prepared the site plan Ex.PW2/B bearing his signature at point A. He accompanied the IO to the PS where the said bus was already stationed. He identified the bus in the PS. The driver of the bus was arrested in the PS and his personal search was conducted an arrest memo Ex.PW2/C & personal search memo Ex.PW2/D, were signed by him at point A. He stated that he could identify the offending bus, if shown to him. At that stage four photographs of offending bus bearing registration no. HR 61B 7107 from judicial file were shown to the witness. After looking at the photographs, witness correctly identified the same. The photographs were Ex.PW2/P1 to Ex.PW2/P4. IO seized the offending bus vide seizure memo Ex.PW2/E bearing his signature at point A. During cross-examination by ld. Counsel for the accused he stated that the police had recorded his statement only once at police station at about 4 to 4.30 p.m. He had stated to the police in his statement that the bus was stopped and when they tried to deboard the driver, he instead of coming down reversed the Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:04:51 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 4 of 26 bus to flee away from the spot and in that process the rear right tyre of the bus crushed the leg of the injured. At that stage, the witness was shown his statement already exhibited Ex.PW2/A (where it was not so recorded). He had not stated to the police that the bus had stopped due to red light. He had not accompanied the injured to the hospital in the PCR. He had stated to the police that he shifted the injured to the hospital in the PCR. At that stage, the witness was shown his statement already exhibited as Ex.PW2/A (where it was not so recorded). He further deposed that he was doing the work of denting and painting and his shop was at the distance of 1 km from the spot. He denied the suggestion that his work place was at the distance of around 2 km from the spot. The police had prepared the site plan at the spot. He did not know the name of the injured. He had not stated the name of the injured as Ramesh in his statement to the police. At that stage, the witness was shown his statement already exhibited Ex.PW2/A (where it was so recorded). He stated that there was zebra-crossing at the road at the spot. The IO himself prepared the site plan after making inquiry from him. He denied the suggestion that there was no zebra crossing at the spot. He denied the suggestion that he was not present at the spot and he was planted by the IO as eye-witness later on. The speed of the bus was around 60-70 kmph. The police had not inquired from any other public person at the spot. Upon a query by the court, he deposed that for about 20 minutes he remained at the spot. He was called by the police on telephone and at that time, he was present at the spot and thereafter, he went to the police station. Further he deposed that when he reached at the police station, the accused was present and bus was already seized. The police made the inquiry from him. He made the PCR call by using his mobile. He denied the suggestion that he was not present at the spot at the time of accident and he had not seen the incident. He denied the suggestion that he had deposed falsely being a planted witness. He also denied the suggestion that he was not present at the Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:05:08 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 5 of 26 spot and that was why he had stated the speed of the bus wrongly.
During further cross-examination by ld. counsel for the accused he stated that his mobile number at that time was 8527269310. He had not accompanied PCR to the hospital. He had seen his signature on the statement recorded on 22.11.2016. His statement was recorded on that day before the Hon'ble Court. He denied that he had taken/shifted injured to the hospital in the PCR (attention of the witness was drawn towards statement dated 22.11.2016 from portion A to A where it was so recorded). The police had prepared the site plan of the place of incident in his presence. He had pointed out all the places like Gopal Das mandir and Gurudwara, Majnu Ka Tila and accordingly, the site plan was prepared. He had seen the site plan Ex.PW2/B bearing his signature at point A. He had signed the same after understanding the site plan. He admitted that Baba Gopal Das Mandir and Gurudwara Majnu Ka Tila Saheb fall on the same side of ring road when one comes from Wazirabad side and that if a person goes from Baba Gopal Das Mandir to Majnu Ka Tila Gurudwara he need not cross the road. He was born in Delhi. He was working in the area of Timarpur since 1995. The colony of Tibetan inhabitant on Ring Road was called New Aruna Nagar. He denied that the site comprising of the Tibetan population and Gurudwara as well as Mandir was called as Majnu Ka Tila. He had told the IO about the existence of zebra crossing at the place of incident. Said zebra crossing was not shown in site plan Ex.PW2/B. There was red light at the place now mark B-1 on site plan Ex.PW2/B in front of Gurudwara Majnu Ka Tila. His shop of denting-painting was just behind PS Timarpur. He admitted that there was a market just before PS Timarpur and that there were tea vendors and other vendors in front of the market where items like tea, Samosa, chhole bhature etc. were readily available. The temple of Gopal Das was about 2 KM from his place of work in Timarpur. He had seen the statement recorded on 09.08.2016 bearing his signature. The same had Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:05:27 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 6 of 26 been read over to him where he had stated that he remained at the spot of incident for about 20 minutes before he was called by police on telephone. To a court question he replied that he received a call from PS Timarpur and police men came at the spot to take him to the PS on motor bike. The offending bus was already parked at PS. He identified the offending bus and all the papers were prepared at the PS. He admitted that he was inquired by the police at PS and his statement Ex.PW2/A was recorded at PS. He denied that his shop was about 1 KM from place of incident and that his statement was recorded at the spot. Memo Ex.PW8/A was prepared in his presence. He had seen Ex.PW8/A which did not bear his signature. He had correctly stated in his statement dated 22.11.2016 that the person fell and sustained injuries and bus stopped. He admitted that the bus stopped there and then where impact took place with the deceased. In his statement dated 22.11.2016, he had correctly stated that when "we tried to deboard the driver of the bus. Instead of coming down, he reversed the bus to flee away on the spot". The driver took four or five steps in reverse gear then cut the side and ran towards the red light of Gurudwara Majnu Ka Tila. He had told the police that the driver of the bus took four or five steps in the reverse gear then cut the bus towards right and fled towards red light of Gurudwara. He voluntarily stated that while driving in the reverse gear the bus crushed the legs of the injured. He had stated in his statement Ex.PW2/A that while driving in the reverse gear the "legs" of the injured were crushed. Confronted with Ex.PW2/A where the fact that while driving in the reverse gear "legs" of the injured were crushed was not recorded. He voluntarily stated that while reversing the bus right leg of victim was crushed. He stated to the police that the right leg was crushed while bus was being driven in the reverse gear. Again confronted with Ex.PW2/A where it was not so recorded. When he helped the PCR in shifting the injured in the van, he had seen the blood stain on the road. he had pointed out to the IO the place of incident where blood was ANURAG Digitally signed by ANURAG THAKUR THAKUR 21:05:54 +05'30' Date: 2021.10.21 FIR no. 420/14 State v. Suresh Kumar PS Timarpur 7 of 26 lying. The said spot was Mark A in the site plan. Since the site plan Ex.PW2/B was prepared in his presence he could state that portion B-1 to B-2 was the central divider which had got Jaal (railing). He knew that the railing in the central divider was installed to prevent the pedestrian from crossing over the road. He voluntarily stated that there was still a gap left out for purpose of visiting the temple. He denied that he was deposing falsely with regard to keeping the gap open for crossing over the road towards temple. There was no red light at that place but a zebra crossing was there at that time. He had shown the said zebra crossing to the IO. He admitted that even the zebra crossing was not shown in the site plan and that when the police arrived at the spot, he was present at the tea shop in front of Gopal Das Temple. The police however did not come to him at the said tea shop as he was called by a telephonic message. At that point of time, the accused was neither with him at tea shop nor he was at the place of incident. Other persons were also present at the tea shop when he received the phone call from PS. He admitted that the police had not arrived at the tea shop at Baba Gopal Das Temple and had not made any inquiry from him or from other persons who were present there with regard to the incident. He had travelled the Ring Road from Wazirabad side to Gurudwara, Majnu Ka Tila. He had travelled this portion on foot and not on bike or car. There was bridge/flyover at a little distance from Baba Gopal Das Temple. He admitted that while coming down the flyover on the ring road from Wazirabad side to Gurudwara, there was heavy flow of traffic and that the heavy traffic in that portion of the road comprised of the roadway buses, DTC buses, bike, scooter, three wheeler and small transportation trucks. He further admitted that the road in front of the Tibetan colony on the ring road towards the said colony, was narrow in comparison to the road prior to the flyover. The traffic in that portion remained slow in the morning and evening but in the noon. The traffic in that portion flowed slowly due to volume of vehicles. He did not know how to ANURAG Digitally signed by ANURAG THAKUR THAKUR 21:06:13 +05'30' Date: 2021.10.21 FIR no. 420/14 State v. Suresh Kumar PS Timarpur 8 of 26 drive. At the time of accident, the bus was at the speed of 60/70 km/h. The tea vendor at temple Gopal Das shops sat while facing the ring road. The tea vendor could see any mishap on the road prior to anybody else. While taking tea at the shop he was looking towards the road. While taking tea he was fully concentrated on the road. He had noted that ahead of offending bus there were two three cars. Behind the bus, there was traffic comprising of all kind of vehicles. He voluntarily stated that after incident, the traffic had stopped. Nobody from the said traffic came down to help the injured. The offending bus was carrying passenger but nobody came down from the bus. He denied the suggestions that while negotiating the flyover towards and upto Gurudwara, the traffic flowed in that portion in a slow speed, or that the accused had stopped the bus on hearing the noise of accident but in fact no incident took place with the offending bus, or that there was no gap in front of temple in the railing on the divider nor anybody was permitted to cross over the road from that side, or that when the police arrived at the spot the bus was standing at the spot and the accused was also present there with his conductor, or that the accused had stopped the bus on hearing the noise of some accident but no accident took place with the offending bus. He denied that he was not present at the spot at the earliest time of accident and that he was a planted witness. He however admitted that accused was not with him nor he was under the custody of any body after the accident. He had not presented or produced accused to the police either at the spot or at the PS. He denied the suggestion that he had not seen the incident with the offending bus or due to rash and negligent act or driving of the accused, or that the accident was caused by some other vehicle which vanished or fled from the spot and that since the offending bus was behind it was stopped or that accused was falsely implicated in the present case, or that neither the accused drove the bus in the reverse gear nor he fled from the spot as he had already stopped the bus before the place of accident. Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:06:34 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 9 of 26
5. PW-3 Daya Nand deposed that on 25.06.2014, he was working as conductor in Haryana Roadways at Bhiwani Depot. On that day he was on duty as conductor on bus bearing No. HR 61B 7107. At 11:17 AM they started from Bhiwani to Delhi. The accused Suresh present in the court was driving the bus on that day. When they reached near Majnu Ka Tila, he was sitting on seat no. 52 i.e. assigned for conductor, the passengers told that someone had got injured. He did not hear any noise of collision or accident. On raising of voice by the passengers, the driver stopped the bus. He remained seated inside the bus. He did not see anything else. At that stage, Ld. APP sought permission to cross-examine the witness as he resiled from his previous statement. During cross-examination by ld. APP for State he denied the suggestion that the accused was driving the bus at high speed and could not control it and hit the pedestrian crossing the road. At that stage witness was confronted with his statement Mark-'A' where it was recorded at Point X to X1. He denied the suggestion that accused was driving the aforesaid bus in a rash and negligent manner and hit the pedestrian, or that he intentionally wanted to save the accused that was why he was deposing falsely being an interested witness and was won over by accused.
6. PW-4 Dr. B. K. Sharma deposed that on 02.07.2014, he was posted as CMO at Subzi Mandi Mortuary and on that day, dead body of one deceased namely Pardeep was produced by ASI Usman Ali and the same was identified by his father. He conducted the postmortem of the deceased and prepared the report Ex.PW4/A bearing his signature at point A.
7. PW-5 Retd. ASI Gurdeep Singh deposed that he was qualified grade 1 mechanic and he joined specialized courses/training from ITI and various Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:06:55 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 10 of 26 vehicle manufacturing companies and he had experience of 40 years in vehicle inspection. On 26.06.2014, he was posted as ASI Tech. at MT Workshop/North Distt, PS Civil lines, Delhi. On that day, on request of ASI Vikram Singh, he mechanically inspected bus bearing no. HR 61B 7107 and its mechanical inspection report was Ex.PW5/A bearing his signature at point A.
8. PW-6 ASI Bijender Singh deposed that on 26.06.2014 he was posted as HC at PCR I/C Sugar10 and his duty hours were from 8 a.m to 8 p.m. At about 03:02 p.m, he received one PCR call regarding accident at Majnu Ka Tila in front of Baba Gopal Dass Mandir, Outer Ring Road. At that time, their PCR van was stationed at around 400 meter away from the incident near Mother Dairy booth. He alongwith other staff of PCR van went to the spot and took the injured and shifted him to the trauma centre. Injured had sustained injuries on his legs and blood was oozing out from his mouth and nose. One bus of Haryana roadways was also stationed near the spot and, one person namely Surender met him at trauma centre and stated that he was known to the injured and disclosed name of injured as Ramesh. After some time he received other call and he left trauma centre and got busy with other call.
9. PW-7 ASI Ajay Kumar deposed that on 25.06.2014, he was posted as HC at PS. Timarpur. He was working as Duty Officer from 4 pm to 12 midnight. On that day, at about 4.30 pm, he received a rukka from Ct. Yashpal sent by ASI Vikram, on the basis of which, he registered the present FIR. He had brought the original FIR and computerized copy of the same was Ex.PW7/A bearing his signature at point A(OSR). He also made endorsement on the rukka Ex.PW7/B from point A to A1 bearing his signature at point B. The copy of FIR and original rukka were given to Ct. Yashpal to further hand over to ASI Vikram for investigation. He did not record DD number 22A as it was recorded Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:07:18 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 11 of 26 by other police official. So he could say nothing about it.
10.PW-8 HC Yashpal Singh deposed that on 25.06.14, he was posted as Ct. at PS Timarpur. He accompanied the IO of that case to the spot i.e. near by Majnu Ka Tila, Gopal Dass Mandir. There, they found one bus bearing No. HR 61B 7107 & accused driver was found present at the spot as he was produced by eye witness namely Shankar Yadav. (The accused was correctly identified by the witness in the court). Thereafter, IO recorded the statement of eye witness and prepared the rukka and handed over the same to him for registration of FIR and he took the same to PS & got FIR registered & came back at the spot alongwith copy of FIR & original rukka & same was handed over to IO. IO prepared site plan. Thereafter, IO seized the offending vehicle and prepared memo Ex.PW2/E bearing his signature at point B. IO seized the DL of accused and seizure memo Ex.PW8/A bearing his signature at point A was prepared. After interrogation, IO arrested the accused & conducted his personal search. An arrest memo and personal search memo already exhibited as Ex.PW2/C & Ex.PW2/D both bearing his signature at point B were prepared. IO deposited the case property in Mallkhana. IO recorded his statement. He stated that he could identify the case property, if shown to him. At that stage, six photographs from judicial file were shown to the witness from which four photographs were of Haryana Roadways bus bearing No. HR 61B 7107 & two photographs of road having skid marks & some blood stains. After looking at the photographs the witness correctly identified the offending vehicle and blood stains and skid marks were present on the spot. Photographs of the bus were already exhibited as P-1 to P-4 in the testimony of PW2 and two photographs of skid marks & some blood stains were Ex.P-5 & P-6.
11.PW-9 Sandeep deposed that on 25.06.2014, his brother namely Pradeep went Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:07:38 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 12 of 26 for morning walk from their house. But he did not return back. He searched for him and at last, on 26.06.2014, he lodged a complaint at PS Mukherjee Nagar regarding his missing report. Thereafter, he came to know that four dead bodies were preserved in different mortuaries and he was called to identify the dead body if the same, was of his brother. He went to Subzi Mandi Mortuary where one dead body was preserved and he identified the same as his brother Pradeep. He came to know that his brother had expired due to injuries sustained in an accident. After postmortem, the dead body was handed over to him and IO recorded his statement with regard to identification of dead body vide identification memo Ex.PW9/A bearing his signature at point A.
12.PW-10 Nafe Singh deposed that on 25.06.2014, his son namely Pradeep went out from their house at about 7:00 am. But he did not return back. They searched for him and at last, on 26.06.2014, he lodged a complaint at PS Mukherjee Nagar regarding his missing report. Thereafter, they come to know from IO that one dead body which was similar to physical description of his son was preserved in Subzi Mandi mortuary and he was called to identify the dead body if the same, was of his son. Then he alongwith his son Sandeep went to Subzi Mandi Mortuary where one dead body was preserved and he identified the same as that of his son Pradeep. Someone had told the name of the deceased wrongly which was the dead body of his son. They came to know that his son had expired due to injuries sustained in an accident. After postmortem, the dead body was handed over to them and IO recorded his statement with regard to identification of dead body vide identification memo Ex.PW10/A bearing his signature at point A.
13.PW-11 Ct. Kamal Kant deposed that on 26.06.14 he was posted as Ct. at PS Timarpur. On that day, IO ASI Vikram Singh received DD No. 10A regarding Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:08:00 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 13 of 26 death of one Ramesh s/o Unknown. Thereafter, he alongwith IO went to STC hospital. IO obtained documents related to deceased person & thereafter his dead body was shifted to Subzi Mandi Mortuary. On 02.07.14 IO alongwith father & brother of deceased came in mortuary who identified the dead body of the deceased to be of their son & brother & they told the name of deceased as Pradeep. After the postmortem of the deceased was got conducted, the dead body was handed over to aforementioned relatives. IO recorded his statement.
During cross-examination by the ld. counsel for the accused he stated that the dead body was taken to mortuary on 26.06.14. He remained on duty for guarding the dead body at Subzi Mandi Mortuary only for 12 hours. Thereafter, another Ct. might have been placed there. He was on duty with the IO on 02.07.14 when postmortem was conducted. The memo of handing over the dead body to the father & brother of the deceased was prepared. He had seen the judicial file, no such memo/receipt was on record.
14.PW-12 Anil Kumar deposed that he was posted as Record Clerk in Sushruta Trauma Center since 2000. He had been authorized by Medical Record Officer of Sushruta Trauma Center for deposing on behalf of Dr. Ashish, Medical Officer who had left the services and his whereabouts were not known to the hospital. He could identify the signatures of Dr. Ashish on the basis of record available with hospital. The MLC No. 189239 dated 25.06.2014 of patient Ramesh son of not known was brought to hospital by HC Virender with alleged history of RTA. The patient was examined by Dr. Ashish and aforesaid MLC was prepared by Dr. Ashish in his own handwriting. Same was Ex.PW12/A bearing signatures of Dr. Ashish at point A.
15.PW-13 SI Vikram Singh deposed that on 25.06.2014 he was posted at PS Timarpur as an ASI and on that day, DD No. 22A regarding accident was Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:08:19 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 14 of 26 marked to him for investigation. Thereafter, he alongwith Ct. Yashpal went to the spot i.e. in front of Gopal Dass Sahib Sindhi Baba Mandir, Outer Ring Road, Near Aruna Nagar, Majnu ka Tila, Delhi. They met eye-witness Shankar Yadav at the spot who produced accused Suresh Kumar before him. There was one Haryana Roadways Bus bearing registration no. HR. He deposed that he did not remember the complete registration number of the said bus. He again deposed that the registration number of bus was HR 61B 7107. Thereafter, he recorded statement of witness Shankar Yadav which was already exhibited as Ex.PW2/A bearing his signature at point B. He came to know that the injured was taken to hospital by the PCR vehicle. Thereafter, he left Ct. Yashpal at the spot and went to Trauma Centre Hospital. After reaching there he collected the MLC of the injured namely Ramesh. In the MLC patient unfit for statement was written. Thereafter, he returned back to the spot. He prepared the rukka which was exhibited as Ex.PW13/A bearing his signature at point A and handed over the same to Ct. Yashpal for registration of FIR. Accordingly, Ct. Yashpal left the spot and went to the PS Timarpur for registration of FIR. Thereafter, he prepared site plan at the instance of witness Shankar Yadav which was already exhibited as Ex.PW2/B bearing his signature at point B. Thereafter, he seized the bus vide seizure memo already exhibited as Ex.PW2/E bearing his signature at point C. Accused was arrested and his personal search was conducted. Arrest memo and personal search memo already Ex.PW2/C and Ex.PW2/D both bearing his signature at point C respectively were prepared. He also seized the driving licence of accused vide seizure memo already Ex.PW8/A bearing his signature at point B. Accused was released on police bail. Thereafter, the case property i.e. bus was taken to PS and deposited in the mallkhana. He recorded the statement of witnesses. On 26.06.2014 he received DD No. 10A which was exhibited as Ex.PW13/B regarding the death of injured. Thereafter, he went to the hospital and got Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:08:37 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 15 of 26 preserved dead body in the Mortuary, Sabzi Mandi, as no relative of the deceased were known. Thereafter, WT message was circulated and also entry was made zipnet. On 27.06.2014 he got condcted the mechanical inspection of above said bus. Notice was given to CRO/SCRB, CBI and newspapers for the identification of the dead body. Thereafter, he filed the report before the court. On 02.07.2014 the dead body was identified as one person namely Pradeep s/o Nabey Singh. Thereafter, the postmortem was conducted on the dead body of deceased by SI Usman Ali. The dead body of the deceased was handed over to relatives after the postmortem. On 04.07.2014 he gave notice under Section 133 M.V. Act to the Traffic Inspector of the above said bus as the vehicle was a government vehicle. Traffic Inspector produced relevant documents of the above said bus and the same were seized by him vide seizure memo already exhibited as Ex.PW11/B bearing his signature at point B. The traffic inspector also gave reply of his notice on the notice under Section 133 M V Act and his reply was Ex.PW13/C bearing signature of Traffic Inspector Jage Ram at point A. Thereafter, the case property was released on superdari by the court. He collected the postmortem report and PCR form and placed the same on record. The PCR form was marked as Mark A. He had also taken on record the log book of the PCR and the same was placed on record which was marked as Mark B. He recorded the statement of the PCR vehicle Incharge. Thereafter, further investigation of the present case was transferred to MACT cell and he handed over the file to the concerned official. (Accused was correctly identified by the witness). Four photographs of the offending vehicle were correctly identified by the witness Ex.PW2/P-1 to P-4.
During cross-examination by ld. counsel for the accused, he deposed that he could not tell on which date Diwali/Dusshera fell in the year 2019. He had come on his motorcycle on that day from his office i.e. Distt. Line, Ashok Vihar. There might have been 5-10 vehicles parked at Distt. Line, Ashok Vihar, Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:08:58 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 16 of 26 Delhi but he did not know the registration no. of any of them. He received DD no. 22A at 3.05 pm and he was present in police station at that time. He admitted that Ex.PW13/D-1 i.e. copy of DD no. 22A bear his signature at point A. His signature were to the effect that it was true copy of DD no. 22A meaning thereby that he had prepared the document Ex.PW13/D-1 by seeing/copying the DD entry from roznamcha register. He denied that portion A to A-1 mentioned in his endorsement Ex.PW13/A that on receipt of copy of DD no. 22A, he reached the spot was not correctly written. He reached at the spot on his motor bike alongwith Ct. in about 15 minutes. The place of occurrence from PS Timarpur was about 2 KM. He admitted that after starting from PS Timarpur he came on the ring road, took a left turn and then from under the flyover he took a u-turn to arrive at place of occurrence. On his arrival at spot, he met the eye-witness Shankar Yadav in front of temple Baba Gopal Dass. The accused was also standing nearby. The accused was not under custody of anybody. The distance between the temple Baba Gopal Dass and Gurudwara Majnu Ka Tila was about half a kilometer. There was a redlight at the Gurudwara. In the year 2014, the flyover on ring road near the spot had been completed. He admitted that while coming from side of chowk Mukarba there was a slip road before the starting of flyover near the spot which goes towards the Wazirabad bridge. He denied that from the point of Wazirabad bridge slip road upto redlight of Gurudwara the traffic was very slow. In his estimation the speed of traffic on that stretch of road was about 40/50 km/hr. He denied that speed of traffic there was hardly about 30 km/hr. When he arrived at the spot, he had found eye-witness and accused standing on the road. Traffic was flowing on the road and according to him it was at speed of 40 to 50 km/hr. Mark A on site plan Ex.PW2/B was the place where the accident took place. The bus was found much ahead i.e. beyond Gurudwara, maybe around one km from the place of occurrence. He had not shown the place in the Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:09:18 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 17 of 26 site plan where the bus was found and from where he had seized the bus. There was a tea shop adjacent to the temple near the spot and beyond the pavement. He had not shown said shop in the site plan Ex.PW2/B. The temple had a boundary wall. The tea shop was situated on left side, if one faced the temple. The opening of shop was towards road. He admitted that a person sitting in the shop i.e. like a shopkeeper himself would be able to see the incident on the road. He volunteered that the shopkeeper had not seen the accident because he was busy in his work and he had interrogated him. There were other persons present at the shop when he reached at the spot. They were just standing and he did not notice as to what exactly they were doing. Although he had made enquiries from them but none had seen the accident. There is no redlight near the temple. He denied the suggestion that while coming from PS Timarpur and after taking a left turn on ring road, there was a red light, he voluntarily stated that it was under the flyover. He denied the suggestion that due to redlights, the traffic coming down the flyover till crossing of Gurudwara flowed slowly due to heavy traffic. He had inspected the spot. There were no blood stains on the road/spot. The eye-witness Shankar Yadav did not tell him that as soon as the impact took place, the bus stopped there and then. He stated that eye-witness told him that the bus stopped at some distance from the spot. He had not told him that after stopping the bus initially at some distance, the driver had driven the bus again and stopped after crossing the Gurudwara. The eye-witness had not told him that when he tried to take the driver down from the bus, he reversed the bus and drove which caused the injury on the leg of injured. Eye- witness had also not disclosed that he had gone to hospital with PCR for shifting the injured. He admitted that eye-witness had not disclosed the name of injured in his statement Ex.PW2/A. At the spot, he had prepared 6-7 documents. On all those documents, the eye-witness had signed as a witness. He did not remember whether he had taken the bus into custody first or first Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:09:38 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 18 of 26 the driving licence of driver was seized. The bus was driven by the driver to the PS at about 5:00 pm. Ct. Yashpal had accompanied him. He had almost followed him. Nobody had accompanied him from the spot to PS. He admitted that eye-witness had not accompanied him to PS. The bus was deposited in mallkhana. He had not placed on record the copy of register no. 19. He denied that the eye-witness was called by him at the spot. From the spot he recorded the statement of eye-witness and went to hospital. He remained in hospital for about 25 minutes. He returned to the spot and then sent the tehrir. He did not remember if at the hospital he was handed over anything else except the MLC. He had conducted the personal search of the injured at the hospital but nothing was recovered from his person. Again said something was recovered but he did not remember what it was. Ex.PW13/D-2 was prepared by him at hospital which bear his signature at point A. According to that memo a visiting card was recovered apart from some cash amount. The visiting card must had been deposited in the mallkhana. He had made enquiry about visiting card and found that it did not belong to or relate to the injured. He did not remember to whom it belonged. He had seen the case diary and there was no recording about the enquiry relating to said visiting card. He had seen seizure memo Ex.PW8/A pertaining to seizure of Driving Licence. It did not bear the signature of eye- witness Shankar Yadav. He denied the suggestion that he had not prepared any document at the spot, or that eye-witness Shankar Yadav was a planted witness. He denied that the traffic flow near the place of accident was never very fast nor the driver of any vehicle particularly heavy vehicle could drive the vehicle in a fast or negligent manner. He denied that a false case was registered against the accused.
During further cross-examination by ld. counsel for the accused he stated that there was no zebra crossing at the place of accident. He had not called the eye witness Shankar Yadav by making a phone call. He denied that he had Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:10:00 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 19 of 26 called him at the spot through a phone call. He voluntarily stated that he had called him on his phone to exactly know as to what happened. The bus had stopped at a distance of about 100-150 yards. He had arrived at the hospital at about 3.30 to 3.45 pm. He had obtained the MLC of injured at the hospital which was Ex.PW12/A. He remained at the hospital for about 35-40 minutes. There were no skid marks at the spot. He did not recollect if a heavy vehicle/bus was already parked nearby the place of accident. He had inquired from the accused at the spot as to how the accident took place. It was incorrect that the accused had told him that on hearing some commotion, he had stopped the bus by the side of the road and found that no accident had taken place with his bus but the accident had been caused by some other vehicle. No passenger travelling in the bus met him at the spot. The conductor of the bus was also present at the spot. He denied that he had recorded the statement of the eye witness at the police station. He had not seen any blood stains on the tyre of the offending bus in question.
16.PW-14 SI Ombir Singh deposed that on 16.07.2014 he took over investigation and he verified the driving licence of the accused and documents of the bus. He concluded the investigation and filed the chargesheet. (He correctly identified the accused in the court on that day and also identified the offending vehicle by looking at its four photographs available on case file).
17.Prosecution evidence was closed on 15.01.2020. Statement of the accused u/s 313 Cr.P.C was recorded on 02.03.2021. During recording of his statement accused claimed that he was innocent and he had been falsely implicated in the case. He claimed that accident was not caused from his bus. Accused elected not to lead defence evidence. Final arguments were heard on 11.10.2021.
Digitally signed
ANURAG by ANURAG
THAKUR
THAKUR Date: 2021.10.21
21:10:22 +05'30'
FIR no. 420/14 State v. Suresh Kumar PS Timarpur
20 of 26
18.Learned APP for State adumbrated that cogent oral and documentary evidence has been tendered by the state and almost all the witnesses have fully supported the case of the prosecution. He claimed that the case against the accused has been proved beyond a shadow of doubt, so the accused be convicted for offence u/s 279/304A IPC.
19.Per-contra, ld. defence counsel submitted that Daya Nand i.e. the conductor of bus has not supported the case of prosecution and the purported eye-witness Shankar Yadav is a planted witness. He argued that the site plan lacked even basic details and the same was useless. He pointed out various inconsistencies in the oral evidence tendered by the prosecution and claimed that these inconsistencies make the case of the prosecution doubtful. He prayed that the accused be acquitted as the commission of offence by the accused has not been proved at all. He demanded that the accused be acquitted.
20.I have cogitated over the submissions made by Ld. APP for the state and Ld. counsel for the accused. Before adverting to appreciation of evidence for deciding the present case, the applicable penal provisions are reproduced in verbatim as follows:-
Section 279. Rash driving or riding on a public way- Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger, human life or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either description for term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 304A. Causing death by negligence- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine or with both.
Explaining the meaning of rash act as distinguished from negligent act, the Apex Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.21 21:10:46 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur
21 of 26 (2000) 7 SCC 72 observed as under:-
A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution. To fasten criminal liability upon the accused in the present matter, it is imperative that the death should have been direct result of a rash or negligent act of accused and that act must be proximate cause without intervention of other's negligence. The act must be causa causans and it is not enough that the act may have been causa sine qua non. My observations on the evidence adduced during trial are delineated hereinafter.
21.Firstly, there is utter confusion about production of driver of bus before the police. PW-2 stated that when he went to the PS, the driver of the bus was already present there. Contrarily, the IO testified that the driver of bus was produced before him at spot by PW-2. Even PW-8 stated that the accused was produced before the IO at spot by PW-2. Secondly, there is no clarity as to who apprehended the accused. As per PW-2, the accused fled away from the spot but the IO and PW-8 found the accused at the spot of accident and the IO further stated that the accused was not under someone's custody and was just standing at the spot. PW-2 had deposed that the accused had fled away and was apprehended at red light near Gurudwara, where he stopped the bus about 100 meters after the spot of accident. It is not known who intercepted the bus, caught hold of the accused and brought him back to the spot. Surely, after having been successful in driving away from the spot, the accused would not have voluntarily come back to the site of accident.Digitally signed
ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:11:08 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 22 of 26
22.The next issue is with regard to the place of arrest of the accused. The arrest memo shows that the accused was arrested at the spot but PW-2 in his examination in chief stated that the accused was arrested at PS. Similarly, the seizure memo of bus mentions that the same was seized from near the spot of accident but PW-2 testified that when he reached the PS, the bus was already parked there and he identified the bus in the PS as the vehicle which caused the accident. PW-2 also stated that the personal search of the accused was conducted in the PS where he also signed on the personal search memo. However, the IO claimed to have arrested the accused at the spot where he conducted his personal search and also seized the vehicle. All the three memos viz. arrest memo of accused, his personal search memo and seizure memo of vehicle do not help the prosecution as their origin is shrouded in mystery.
23.Then, there is the not so trivial issue of presence of PW-2 at the time and place of incident. The witness had a work of denting and painting at truck parking, Timarpur which is situated just behind PS Timarpur. By all accounts, this place is at about 2 km distance from the place of incident. Regarding his presence at the place of accident, the witness disclosed that he had gone there to have tea. The witness disclosed that there was a small market at the place of his work/ business where tea and snacks were available. The witness further told that he went on foot to the tea shop. It is simply not fathomable that in the sweltering afternoon of June, PW-2 went to the tea shop 2 km away on foot only to drink tea leaving behind his business, especially when tea was readily available in the vicinity of his place of work. It cannot be stated with any degree of confidence that PW-2 is a chance witness. Evidence adduced is grossly insufficient to conclusively establish the presence of PW-2 at the site at the time of occurrence of accident. Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:11:31 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 23 of 26
24.The star witness of the prosecution i.e. PW-2 Shankar Yadav gave two different accounts of how the accident occurred. As per his testimony, a pedestrian crossing the road was hit by the bus and when the driver of the bus was asked to alight from the bus, then he reversed the bus and tried to flee. While reversing the bus, the rear right tyre of the bus crushed the leg of the injured pedestrian. In the statement made to the police Ex.PW2/A, the witness had stated that a pedestrian crossing the road was hit by the bus due to which he fell down and the driver side rear wheel of the bus ran over the right foot of the pedestrian, the driver stopped the bus. The witness was confronted with his statement made to police but he could not explain the reason for variance in both versions of the incident. Both versions are markedly different qua the manner in which the injuries were caused and the conduct of driver of bus. The benefit of this unexplained inconsistency accrues to the accused.
25.PW-2 estimated the speed of bus to be 60-70 km per hour when it hit the pedestrian. The bus stopped immediately upon hitting the pedestrian as testified by PW-2. If both the preceding statements are true then the driver would have immediately applied brakes or else the pedestrian would have been mowed down. Such sudden and hard application of brakes would invariably leave tyre skid marks on road but PW-13 categorically deposed about there being no tyre skid marks on road. Even the site plan does not mention tyre skid marks. Clearly, from the material placed on record it cannot be concluded that the bus was being driven at the speed of 60-70 km per hour. Except for mentioning high speed, the witness did not state anything trustworthy about the rash or negligent manner of driving of bus.
26.Only two photographs of a portion of road have been placed on record and Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:11:55 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 24 of 26 even these have not been proved as per law. These photographs in themselves do not establish anything. Proper and detailed photographs of the place of accident and its surroundings would have aided this court in deciding the matter more effectively and efficiently. The absence of photographs of the place of incident and especially of the complete road makes the feeble case of the prosecution even less persuasive. The mechanical inspection report of the bus also does not affirm the case of the prosecution. The report seems to confirm the claim of the accused that his bus was not involved in any accident. No dent, fresh damage or blood stains were found on the front portion of bus or rear tyre of the bus but this should not have been the case, had the bus hit the pedestrian and/or crushed his legs under the rear wheel. Some blood or human tissue would surely have been trapped in the treads of the tyre of bus had it met with accident but nothing was found by the mechanical inspector.
27.The site plan also is of little help in the case. Even the elementary things like the place where the bus was parked or the place where the blood spilled have not been shown in the site plan. The site plan shows only one place i.e. 'A' where the accident reportedly occurred. There is a great degree of confusion qua the existence of zebra crossing at the place where the pedestrian was crossing the road. PW-2 affirms the presence of zebra crossing but PW-13 i.e. the IO denies that there was a zebra crossing at the spot. This fact could have also been established easily if the site plan incorporated such critical details and if photographs of the place of incident were tendered in evidence.
28.PW-3 Daya Nand was the conductor of bus bearing no. HR 61B 7107 on the date of accident. He has not supported the case of the prosecution at all and his testimony is of no use to the prosecution. Surprisingly, no passenger traveling in the bus or no other public person who would naturally be present there Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:12:18 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 25 of 26 (shopkeepers or hawkers of the locality) have been examined by the prosecution. It can not be the case that no one other than PW-2 saw the accident occur. The testimony of PW-2 is riddled with so many contradictions and inconsistencies that it would be unsafe to base the conviction of the accused solely on its basis and the same needs to be corroborated in material particulars by other evidence available on record. I am supported in my view by judgment of the Apex court in the case of Ramji Surjya and Anr. v. State of Maharashtra 1983 Cr.LJ 1105.
29.Initially, name of the injured (subsequently deceased) was mentioned as Ramesh in the statement (Ex.PW2/A) of PW-2 Shankar Yadav. PW-2 in his testimony categorically stated that he never told the name of injured to the police. PW-13 i.e. the IO also admitted that name of injured Ramesh was not told to him by PW-2. The statement Ex.PW2/A was written by IO and made by Shankar Yadav, but surprisingly neither of them could shed any light regarding the occurrence of name of injured as Ramesh in the statement Ex.PW2/A. This further shows the casual manner of investigation conducted by the IO and raises grave doubts on the prosecution story. In the case titled Abdul Subhan vs. State (NCT of Delhi) 2006 (4) LRC 472 (Del), guidelines for proper investigation have been laid down by the High Court of Delhi which are not reproduced for sake of brevity but it is sufficient to observe that the same have not been adhered to.
30.A simple case of road accident, where it should not have been difficult for the prosecution to bring home the guilt of the accused was investigated in such a manner that umpteen doubts have cropped up and the case of the prosecution has been muddled. The lack of photographs of place of incident, the perfunctory site plan, the doubt on the preparation of various memos, the Digitally signed ANURAG by ANURAG THAKUR THAKUR Date: 2021.10.21 21:12:41 +05'30' FIR no. 420/14 State v. Suresh Kumar PS Timarpur 26 of 26 inconsistent statements of prosecution witnesses, the unexplained addition in statement made to police by the complainant and other circumstances as elucidated in the former part of this judgment lead to the inevitable conclusion that the case against the accused is not proved beyond reasonable doubt and hence, the accused is acquitted of the offence u/s 279/304A IPC.
Announced in the open court today i.e. 21st day of October 2021 ANURAG Digitally signed by ANURAG THAKUR THAKUR Date: 2021.10.21 21:13:16 +05'30' (ANURAG THAKUR) METROPOLITAN MAGISTRATE -02 TIS HAZARI COURTS, DELHI This judgment consists of 26 pages and each and every page of this judgment is signed by me.
FIR no. 420/14 State v. Suresh Kumar PS Timarpur