Delhi District Court
State vs Puspender on 15 January, 2024
IN THE COURT OF SH. VINOD KUMAR:
Ld. METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Pushpender & Ors.
FIR No : 180/2018
U/s : 279/304-A/468/471 IPC & 3/181 & 146/196 & 5/180 MV Act
P.S. : I.P. Estate
JUDGMENT:
1. Criminal Case No. : 6296/2019
2. Date of commission of offence : 22.07.2018
3. Date of institution of the case : 25.04.2019
4. Name of the complainant : State
5. Name of accused, parentage & : 1) Pushpender S/o Sh. Prem Chand &
2) Anil Kumar S/o Sh. Niwasi Lal Sahu
6. Offense complained or proved : U/s 279/304-A/468/471 IPC & 3/181 &
146/196 & 5/180 MV Act
9. Plea of the accused : Pleaded not guilty
10. Date on which order was reserved : 29.11.2023
11. Final order : Accused Pushpender stands convicted for
offences u/s 279/304-A IPC & 3/181 MV Act
and accused Anil Kumar Sahu stand
convicted for offence u/s 468/471 IPC &
5/180 & 146/196 MV Act .
11. Date of final order : 15.01.2024
1. The present case was registered on the basis of DD No. 6-A dated 22.07.2018,
FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 1 of 10
VINOD Digitally signed by
VINOD KUMAR
KUMAR Date: 2024.01.15
18:10:54 +0530
PS IP Estate and during investigation it was revealed that the accused Pushpender was driving the TSR bearing no.DL-1RK-8679 in rash and negligent manner so as to endanger human life and personal safety of other without having proper DL and hit against an unknown pedestrian and caused his death by an act not amounting to culpable homicide. During investigation it was revealed that registered owner of offending vehicle TSR bearing no. DL-1RK-8679 was co-accused Anil Kumar Sahu who gave it to accused Pushpender who was not having proper DL and it was not properly insured and the insurance cover note of insurance company ICICI Lombard valid from 31.03.2018 to 30.03.2019 was found fake and forged and which was used by him as genuine knowingly to be forged and fabricated. Therefore, the accused Anil Kumar Sahu was charge-sheeted to the offences u/s 468/471 IPC, 5/180/146/196 MV Act for which he was charged and he claimed trial. The accused Pushpender was charge-sheeted to the offences u/s 279/304-A IPC and 3/181 MV Act for which he claimed trial.
2. Thereafter, the cognizance of the offences was taken by the Ld. Predecessor Court and on the basis of material available on record, notice of accusation for offences u/s 279/304-A IPC & 3/181 MV Act was framed and served upon accused Pushpender and charge u/s 468/471 IPC, 5/180/146/196 MV Act was framed and served upon accused Anil Kumar Sahu to which they pleaded not guilty and claimed trial.
3. The prosecution has examined as many as five witnesses to prove its case against the accused.
3.1. PW-1 is ASI Ram Rattan who deposed that on that day, when he was on duty on PCR Van they were on road from Laxmi Nagar to ITO and he saw that an auto no. DL-1RK-8679 came in a rash and negligent manner in a fast speed and hit a pedestrian resulting of which the said TSR turned turtle and the pedestrian sustained injury and the injured was taken to LNJP Hospital and they apprehended the offending auto driver who was the accused Pushpender and police came and he handed over the accused to the police.
FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 2 of 10VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2024.01.15 During cross-examination by Ld. defence counsel for both the accused, he deposed that on that day, he alongwith his driver was present at the spot at the time of accident but no public person was present there and the auto was ahead of his vehicle. He denied the suggestion that he was not present at the spot at the time of accident or that the accused had not met him at the spot or that they stopped the accused who was coming there after the accident or that he falsely implicated the accused in the present case. He admitted that CCTV cameras were installed nearby the spot. He further deposed that he had not check the CCTV footage personally. He denied the suggestion that he intentionally pushed the offending auto resulting of which it turned turtle He denied the suggestion that he was deposing falsely.
3.2. PW-2 is ASI Manoj Tyagi who deposed that on that day, he received DD no. 6A regarding road accident and thereafter he reached at the spot and PCR official ASI Ram Lakhan along with his vehicle Oscar van met him who produced the accused Puspender and the attention of the witness pointed towards the accused person, the witness pointed out towards accused Anil Kumar Sahu and identified him as accused Puspender and he deposed that he arrested the accused Puspender and he seized the auto no. DL 1RK 8679 and he got preserved the dead body of deceased for post mortem.
At this stage, he was cross examined by Ld. APP for the State. During cross-examination by Ld. APP for the he admitted that PW-5 Ct. Vikas had accompanied him to the spot from police station or that it came to know that the injured was already taken to hospital by a private vehicle or that he prepared rukka on DD no. 6A vide his endorsement and he handed over the same to PW-5 Ct. Vikas for registration of the FIR who went to PS and got registered the case and he returned at the spot along with the copy of FIR and rukka and he handed over the same to him or that he had inspected the site and prepared site plan or that he had seized the documents of offending vehicle or that he had collected the driving license of accused or that he had recorded the statement of witnesses or that the accused Puspender was met him at the spot only for 10-15 minutes so that he could not identify him. This witness has been cross-examined by Ld. counsel for the accused persons as Nil FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 3 of 10 VINOD Digitally signed by VINOD KUMAR KUMAR 18:11:06 +0530 Date: 2024.01.15 despite grant of opportunity.
3.3. PW-3 is ASI Gurdeep Singh who was the MHC(M) and deposed that on 23.07.2018, at the request of PW-2 IO ASI Manoj Tyagi, he visited at the spot in search of CCTV cameras but no government CCTV cameras were found installed there and he submitted his report at the request of PW-2 IO ASI Manoj Tyagi. This witness has been cross-examined by Ld. counsel for the accused persons as Nil.
3.4. PW-4 is Retired SI Vijay Karan who deposed that on 23.07.2018, the case file was marked to him for further investigation and he made request to SHO, P.S. I.P. Estate for providing the CCTV footage of scene of crime of present matter and he made efforts to get identify the dead body of deceased by way of uploading necessary information on Zip net and by flashing of W.T. messages as well as by way of other necessary modes and the dead body of deceased was preserved in mortuary and the postmortem on the body of deceased was got conducted and he collected the PM report and the dead body was remained unidentified so that it was got criminated and the offending vehicle was already seized by previous IO and he got it mechanically inspected and collected the mechanical inspection report and he served notice u/s- 133 M.V. Act upon registered owner /co-accused Anil Kumar Sahu of offending TSR and he came alongwith the accused Pushpender who was driving the TSR at the time of accident on hire basis and he replied the notice u/s 133 M.V. Act and he got verified the DL of accused Pushpender which was found not valid, therefore the section 3/181 M.V.Act was added in the chargesheet and he also got the verify the documents of offending TSR and the insurance of offending TSR was not found valid being not issued from concerned insurance company. He further deposed that he added the offence u/s- 468/471 IPC, 5/180 and 146/196 M.V.Act were added in the chargesheet and he arrested the accused Anil Kumar Sahu and the parcha 12 was got verified of both accused persons and statement were recorded and after completion of investigation the both accused persons were chargesheeted requesting for their trial.
During cross-examination by Ld. counsel for both accused he deposed that the case file was received to him by way of written order of MACT Cell and he FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 4 of 10 Digitally signed VINOD by VINOD KUMAR had not placed that order in the file and he received case file for investigation the photographs were already placed on record and there was no certificate u/s- 65 B Evidence Act qua the exhibit P1 and he had recorded the statement of HC Gurdeep Singh. He denied the suggestion that he had not recorded his statement. He further deposed that he had not remembered the date of filing of chargesheet. He denied the suggestion that he had not properly investigated the case or that the accused persons had been falsely implicated in present matter or that he was deposing falsely.
3.5. PW-5 is HC Vikas who deposed that on that day, he alongwith PW-2 IO ASI Manoj Tyagi reached at the spot where one auto bearing no. DL-1RK-8679 was lying in accidental condition and it came to know that injured had been taken to the hospital and IO left him at the spot for supervision and he went to the hospital after sometime IO again came at the spot and he gave him rukka for registration of the FIR and he went to the PS and got registered the case and after registration of the FIR, he again reached at the spot where he handed over the copy of FIR, rukka and certificate u/s 65-B Evidence Act to the IO and Pushpender was there with the IO at that time and IO took the TSR in possession and IO also seized the RC, permit and fitness and insurance qua the TSR which were produced by the accused and IO arrested the accused and seized his DL and his statement was recorded.
During cross-examination by Ld. counsel for both the accused persons he deposed that he had not known whether IO filed the copy of departure entry or not and he had not remembered by which mode they reached at the spot. He admitted that nobody met them at the spot when they reached there or that the offending TSR was at the spot when they reached there. He further deposed that he had not remembered the duration for which he stayed at spot prior to take rukka or thereafter and IO had prepared rukka at the spot. He denied the suggestion that the rukka was prepared at night. He further deposed that he had not known whether IO mentioned in the rukka about the source of light at the spot. He admitted that IO had prepared the site plan at the spot. He further deposed that he had not known whether IO placed the receipt on record regarding depositing of TSR in malkhana ad he had not remembered whether IO served any notice to any public persons or not. He denied the suggestion that he FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 5 of 10 VINOD Digitally signed by VINOD KUMAR Date: 2024.01.15 18:12:14 +0530 had not joined the investigation in the present case in the manner as deposed by him or that he signed the memos at the PS at the instance of the IO or that he was deposing falsely.
4. Both the accused admitted certain documents under Section 294 Cr.PC. DD No.6A dt.22.07.2018, DD No.9B dt.22.07.2018, DD No.49-B dt.21.07.2018, DD NO.10 dt.22.07.2018, FIR No.180/2018, PS IP Estate, preparation of certificate u/s 658 Indian Evidence Act in respect of FIR, Mechanical Inspection Report of TSR No.DL-IRK-8679. MLC of deceased (unknown) dated 22.07.2018 & Postmortem of deceased (unknown) dated 30.07.2018 as Ex.A-1 to Ex.A- 9 respectively.
5. The prosecution evidence was closed. Thereafter, both the accused persons were examined under section 281 rw Section 313 Cr. P.C. The accused persons did not lead defence evidence and therefore matter was fixed for final arguments.
6. Ld. APP for State has contended that the prosecution has established the guilt of the accused persons beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, the accused persons deserve to be convicted for the alleged offences.
7. Per contra, Ld. Defence counsel has contended that accused persons have been falsely implicated in the present case at the instance of the police. It has also been argued that the testimonies of the prosecution witnesses have not established either the identity of the accused as the driver of the alleged offending vehicle nor same has proved the commission of any rash or negligent driving by the accused. It has been contended that there exists serious doubts in the prosecution story and accused persons are liable to be acquitted for the alleged offences.
8. I have heard the rival contentions advanced by the prosecution and defence and have also gone through the case record carefully. It is a settled law that Section 279 IPC punishes the act of a person driving or riding a vehicle on a public way in a manner so rash or negligent as to endanger human life or to be likely to cause hurt or FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 6 of 10 Digitally signed by VINOD VINOD KUMAR Date: 2024.01.15 injury to any other person. In the case of Abdul Subhan Vs. State (NCT of Delhi) 133(2006) DLT 562, the Hon'ble High Court of Delhi while discussing about the ingredients of section 279 has observed:-
"In Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved".
Further, what would constitute rash and negligent act has been described by the Hon'ble Supreme Court in the matter of Mohd. Aynuddin @ Miyan Vs. State of Andra Pradesh decided on 28.07.2000, in the following words:-
"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."
10. Besides this, it has also been upheld in various decisions that evidence of high speed simpliciter, is not ipso facto proof of rashness or negligence.
In the case of Rajiv Netra Panigrahi Vs. State of Orrisa decided on 20.07.1990, Hon'ble Orrisa High Court observed the following:- "It is no doubt true, as contended on behalf of the petitioner and as supported by authorities, that high speed in driving of a vehicle does not by itself amount to rash and negligent driving.
If the accused driver was driving the vehicle on the highway and had negotiated the distance safely, it could not have been said that he was driving rashly or negligently because of the high speed."
In the case of Kishore Chand Joshi Vs. State decided on 12.11.2018 Hon'ble High Court of Delhi has observed:-
FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 7 of 10 VINOD Digitally signed by
VINOD KUMAR
Date: 2024.01.15
"17. A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligence". High speed by itself may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver."
The Hon'ble High Court of Delhi in Abdul Subhan (Supra), also observed that: "The aforesaid observations of the Supreme Court make it more than clear that a mere allegation of high speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent."
Further in Abdul Subhan (Supra), the decision of State of Karnataka Vs. Satish 1998 SCC (CRI) 1508 was also discussed in which Hon'ble Supreme Court observed:-
"3. Both the trial court and the appellate court held the respondent guilty for offences under Section 337, 338 and 304A IPC after recording a finding that the respondent was driving the truck at a "high speed". No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitor to hold the respondent guilty.
4. 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 FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 8 of 10 VINOD Digitally signed by VINOD KUMAR KUMAR Date: 2024.01.15 18:12:35 +0530 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".
9. Besides, the ingredients mentioned above, the identity of the accused as driver of the vehicle must also be established separately by the prosecution in order to establish the guilt of the accused.
10. Having discussed the testimonies of the prosecution witnesses, now let us advert ourselves to the merits of the contentions advanced on behalf of the parties.
11. In this case, PW-1 ASI Ram Rattan is the sole eyewitness of the entire incident as he was on PCR duty in his PCR Van and his vehicle was just behind the offending vehicle i.e TSR on the spot. On perusal of testimony of PW-1 ASI Ram Rattan, it emerges on that day, the accused Pushpender was driving the said offending vehicle in a very fast speed and in rash and negligent manner and consequently, the accused hit the pedestrian as a result of which the said vehicle turned turtle and the pedestrian sustained grave and serious injuries and he later unfortunately expired due to these injuries. The aforesaid witness correctly identified the accused and the vehicle in Court and stood by his version during the entire trial. Nothing substantial came on record during his cross examination by the Ld. Defence counsel. He is the sole eyewitness of the entire incident and there is no reason on record discrediting his testimony.
12. It is also on record that the accused Pushpender was not having valid driving license on the date of the incident. The accused did not produce his driving license during entire trial and also did not take the plea that he was driving the said vehicle with a valid driving license at the time of accident.
13. Perusal of records reveal that the insurance policy of the said TSR was a not genuine rather a fake policy and necessary intimation in this regard was received from the concerned insurance company. It is further revealed that the said Driving FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 9 of 10 VINOD Digitally signed by VINOD KUMAR Date: 2024.01.15 License was a non-commercial one but was used for driving commercial vehicle i.e offending TSR.
14. The testimonies of other police witnesses who conducted investigation or were part of investigation also lend support to the testimony of the PW-1 ASI Ram Rattan and the entire chain of events pointing towards the guilt of the accused persons get established.
15. On perusal of post mortem report, which has been duly admitted by the accused, it emerges that the deceased died as a result of injuries sustained on his head and it has also been opined that the injuries are possible in roadside vehicular accident. The grievous and impactful nature of injuries collectively show that on the relevant time and date the accident occurred to the rash and negligent driving of the accused.
16. Besides, the ingredients mentioned above, the identity of the accused as driver of the vehicle has also been established separately by the prosecution vide testimonies of prosecution witnesses in order to establish the guilt of the accused persons.
17. In view of the discussion made above, this Court is of the considered view that the prosecution has established beyond all reasonable doubts that on the given date, time and place accused persons has committed the alleged offence, therefore, the accused Pushpender stands convicted for offences u/s 279/304-A IPC & 3/181 MV Act and accused Anil Kumar Sahu stand convicted for offence u/s 468/471 IPC & 5/180 & 146/196 MV Act.
VINOD Digitally signed by
VINOD KUMAR
Pronounced in the open court KUMAR Date: 2024.01.15
18:12:50 +0530
on 15th day of January, 2024 (VINOD KUMAR)
MM-03(Central),THC,Delhi
FIR No 180/2018 P.S. IP State State Vs. Pushpender & Ors. Page 10 of 10