Delhi District Court
State vs Brij Kishrore on 5 April, 2025
In the Court of Ms. Isra Zaidi: JMFC-04, North East, Karkardooma Courts, Delhi
State Vs. Brij Kishore
FIR No. 44/2005
U/sec. 304A IPC & 27 DMC Act
PS: Khajuri Khas
Date of institution of the case: 14.12.2005
Date for final arguments: 05.04.2025
Date on which judgment is delivered: 05.04.2025
CNR No. DLNE-02-000094-2005
JUDGMENT
a) Cr. No. of the case : 464069/2015
b) Date of commission of the offence : 05.12.2004
c) Name of the complainant : Sh. Sibbu
d) Name of the accused and his parentage : 1)Brij Kishore
S/o Sh. Kundan Lal
e) Offence complained of : 304A IPC & 27 Delhi
Medical Council Act, 1956
f) Offence charged of : 304A IPC & 27 Delhi
Medical Council Act, 1956
g) Plea of the accused : Pleaded not guilty
h) Final order : Acquitted
i) Date of such order : 05.04.2025
Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 16:06:44
2025.04.05
+0800
FIR No.44/2005 1/11 State Vs. Brij Kishore
Brief facts of the case
1. Succinctly stated the facts discernible from the present complaint are that complainant is a TSR driver. On 15.12.2004 the wife of the complainant had taken their ailing son to the clinic of Dr. Brij Kishore Saraswat, Mukund Vihar. The doctor gave him injection and medicine. By the time his wife came home the child was dead. Thereafter, complainant again went to the clinic and told the doctor regarding the same but he left the clinic. Thereafter, he went to GTB hospital where he was declared as brought dead. Hence, FIR against the accused Brij Kishore was registered u/s 304A IPC.
Court Proceedings
2. After completion of the investigation, charge-sheet under sections 304A IPC & 27 of Delhi Medical Council Act,1956 was filed before the court against the accused. The then Learned Magistrate took cognizance on 14.12.2005 and accused was summoned to face the trial. On his appearance in the Court, copies of documents, relied upon by the prosecution were supplied to him as per norms. Thereafter, vide order dated 31.03.2022 charges under sections 27 of Delhi Medical Council Act, 1956 and section 304A IPC were framed against the accused Brij Kishore to which he pleaded not guilty and claimed trial. Thereafter, the matter was listed for PE.
Prosecution Evidence
3. In order to prove and substantiate its case, the prosecution has examined following witnesses.
Prosecution Witnesses
S. No. Witness number Name of the witness
1. PW1 SI Suresh Kumar
2. PW2 Smt. Draupadi
3. PW3 Kali Charan Digitally
signed by
ISRA ISRA
Date:
ZAIDI
ZAIDI 2025.04.05
16:06:53
FIR No.44/2005 2/11 State Vs. Brij Kishore +0800
4. PW4 Sh. Mordhawaj Sharma
Documents relied upon by the prosecution
S. No. Ex./Mark Nature of documents
1. Ex. PW1/A Arrest memo
2. Ex. PW1/B Personal search memo
3. Mark-A Statement of Smt.Draupadi
4. Ex. P1 DD NO. 14A dt. 29.01.2005
5. Ex.P2 FIR
6. Ex.P3 DD No. 35A dt. 05.12.24
7. Ex.P4 (colly. 02 Death certificate alongwith MLC of pages) Kiranpal
8. Ex.P5 Postmortem report No. 1159/04
9. Ex.P6 Search memo of the clinic Statement of the Accused u/s 313 Cr.P.C
4. The accused u/s 313 Cr.P.C examined on 21.03.2025. The accused stated that he has been falsely implicated in the present case. He is innocent. Nothing was recovered from his clinic. He was practicing homeopathy medicines.
Evidence of the Defence
5. No defence evidence was led by the accused person despite granting him an opportunity.
Final Arguments
6. The court heard final arguments on behalf of the both the parties on 05.04.2025. Ld. Counsel for the accused submitted that the case against the accused is false and frivolous and has prayed that accused be acquitted of the offence charged.
Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:07:00 2025.04.05 FIR No.44/2005 3/11 State Vs. Brij Kishore +0800 He pointed out various discrepancies in the version of the prosecution witness. Learned APP for the state submitted that accused be convicted of the offences under the above-mentioned sections as there is sufficient evidence on record to convict the accused. I have heard the submissions of Ld. APP for the State and Ld. Counsel for the accused. The court has also diligently gone through the charge-sheet, documents, evidence recorded and the entire material on record.
Brief reasons for the just decision of the case:
7. In the instant case, in order to bring home the guilt of the accused, the prosecution had to prove the following ingredients of the offence punishable u/s 304A IPC beyond reasonable doubt:
Section 304A IPC:
"Section 304A IPC provides that "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".
8. Section 304A IPC deals with death caused by doing any rash or negligent act where such death is caused neither intentionally nor with the knowledge that the act of the offender is likely to cause death. The applicability of Section 304A IPC is limited to rash or negligent acts which cause death but fall short of culpable homicide amounting to murder or culpable homicide not amounting to murder. An essential element to attract Section 304A IPC is death caused due to rash or negligent act. The three things which are required to be proved for an offence under Section 304A IPC are: (1) death of human being; (2) the accused caused the death and (3) the death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description.
9. The provision applies only to such acts which are rash and negligent and are directly cause of death of another person. Negligence and rashness are essential elements under section 304A IPC. Culpable negligence lies in the failure to exercise Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:07:09 2025.04.05 FIR No.44/2005 4/11 State Vs. Brij Kishore +0800 reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means 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. The question whether conduct of the accused 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.
10. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
11. PW1 deposed in his examination in chief that on 29.12.2005 he along with IO went to the clinic of accused and complainant identified him. He searched the clinic but no medicine could be found. He testified in his cross-examination that he did not know whether any person was present in the clinic or not. He did not recollect if IO interrogated from any witness in his presence. IO did not click the photographs of the clinic. He also did not obtain his signatures or of any person on the site plan.
12. PW2 deposed in her examination in chief that twenty years back she took her child namely Kiran to local doctor of the area, who treated her child and gave an injection. She further deposed that when she returned back to home, she found Digitally signed by ISRA ISRA ZAIDI Date:
ZAIDI 2025.04.05 16:07:17 FIR No.44/2005 5/11 State Vs. Brij Kishore +0800 that her child was dead. Thereafter, she informed the police regarding the incident. During her examination in chief the witness turned hostile. She was cross-examined by the Ld. APP for the State. She was confronted with her statement Mark-A. She could not tell whether the name of the doctor was Brij Kishore. She denied the suggestion that her neighbour also seen the dead child. The attention of the witness was drawn to the accused, but she could not identify him due to lapse of time. She could not tell whether her husband informed the police about the incident. In her cross-examination by Ld. Defence counsel she testified that police never met her regarding the case.
13. PW3 deposed in his examination in chief that he did not know anything about the case. He was cross-examined by Ld. APP for the State as he did not support the case of the prosecution. He testified in his cross-examination that his statement was not recorded by the police. He did not identify the accused in the court.
14. PW4 deposed in his examination in chief that he did not know anything about the case. He was cross-examined by Ld. APP for the State as he did not support the case of the prosecution. He testified in his cross-examination that his statement was not recorded by the police. He did not identify the accused in the court. He also testified that he did not know anything about the matter. He denied the suggestion that when he asked Shibbu and Draupadi about the accused, they told him that he has closed his shop and ran away.
15. PW5 deposed in his examination in chief that he did not know anything about the case. He was cross-examined by Ld. APP for the State as he did not support the case of the prosecution. He testified in his cross-examination that his statement was not recorded by the police. He did not identify the accused in the court. He denied the suggestion that he knew the accused who was practicing in Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:07:26 2025.04.05 +0800 FIR No.44/2005 6/11 State Vs. Brij Kishore that area and used to take allopathic medicines from him.
16. PW Shibu, who is the complainant in this case and PW Shiv Kumar remained unserved, hence they could not be examined by the prosecution as witnesses.
17. PW6 deposed in his examination in chief that he was on emergency duty on 05.12.2004. In the evening he received a call from DO regarding death of a child. When he reached New Sabhapur, he came to know that the deceased child had already been taken to the hospital. He recorded the statement of his father Ex.PW-6/A and prepared tehrir Ex.PW-6/B. Arrested the accused vide arrest memo Ex.PW-1/A and got the postmortem of the body of the deceased conducted. He filed the charge-sheet before the court.
18. It is pertinent to note that the medicines were seized by the IO but case property i.e. medicines were not produced before the court, which is fatal to the case of the prosecution. The testimony of IO is also silent about any kind medicines seized by him during the course of investigation. No photographs of the clinic of the accused were found on record. The Registrar of Delhi Medical Council was not examined as a witness by the prosecution. The documents regarding the qualification of the accused have not been verified by the IO. The opinion regarding the cause of death of child is also not given. As per the FSL result on chemical examination of the exhibits, metallic poison, ethyl and methyl alcohol, cyanide, phasphide, alkoloids, barbiturates, tranquillizer, tetracycline, streptomycin and insecticides could not be detected in exhibits. There is nothing on record to attribute death of the child to the accused.
19. All the public witnesses have not supported the case of the prosecution. On being cross-examined by the Ld. APP for the State they even refused to identify the Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 16:07:34 2025.04.05 +0800 FIR No.44/2005 7/11 State Vs. Brij Kishore accused persons. Accused was present in the court but could not be identified by witnesses as they have not supported the case of prosecution in toto and owing to their vacillating deposition before this court, they do not appear to the court as reliable witnesses.
20. It is no longer res integra that sole testimony of complainant can be relied upon to convict an accused provided the same is reliable and credit-worthy. In the case of Lallu Manjhi and Anr. v. State of Jharkhand (2003) 2 SCC 401 the Hon'ble Supreme Court of India had classified oral testimony of witnesses into three categories wholly reliable, wholly unreliable and neither wholly reliable nor wholly unreliable.
21. At tis stage it is pertinent to note that the case of Rai Sandeep @ Deepu v. State (2012)8 SCC the Hon'ble Supreme Court of India had det attributes of a sterling witness.
"The court held to test the quality of such a witness the status of a witness would be immaterial and what would be relevant would-be truthfulness of the statement made by such a witness. What would be relevant would-be consistency of the statement right from the starting point till the end, namely at the time when witness made the initial statement and ultimately before the court. It must be natural and consistent with the case of prosecution qua the accused. There must not be any prevarication in the version of such a witness. The witness should be in a position to withstand the test of cross examination of any length howsoever strenuous it may be and under no circumstance should give any room for any doubt as to the factum of occurrence, the persons involved and the sequence of it..."
22. The main witnesses does not appear to be credible and reliable. They refused to identify the accused persons. Moreover, they denied the entire incident on being cross-examined. All the public witnesses including the prime witness have completely changed their version before the court in examination in chief. They do not appear to be reliable witnesses. Their testimonies does not appear to be credit Digitally worthy. ISRA signed by ISRA ZAIDI Date:
ZAIDI 2025.04.05
16:07:56
+0800
FIR No.44/2005 8/11 State Vs. Brij Kishore
23. The incident happened on 05.12.2004 but FIR was lodged on 29.01.2005 after a gap of almost two months. Undoubtedly, delay in lodging FIR is not necessarily fatal to the case of prosecution. The delay in lodging FIR is a relevant fact which the court must observe or take notice. The court has to see if delay is adversely affecting the case of prosecution. This is a matter of appreciation of evidence. It has been held in plethora of judgments that delay in lodging FIR can be either explained by direct evidence or there may be circumstances explaining the delay.
24. In the ultimate analysis, what is the effect of delay in lodging the report with the police is a matter of appreciation of evidence, and the court must consider the delay in the background of the facts and circumstances of each case. Different cases have different facts and it is the totality of evidence and the impact that it has on the mind of the court that is important. No strait Jacket formula can be evolved in such matters, and each case must rest on its own facts.
25. If prosecution fails to explain the delay and there is a possibility of embellishment in the prosecution version on an account of such delay, the delay would be fatal to the prosecution, however, delay is explained to the satisfaction to the court delay cannot be itself a ground for disbelieving and disregarding the entire prosecution case. Coming to the facts of the case in hand, no reasonable explanation has been put forth by the prosecution as to why there was delay of two months in lodging of the FIR.
26. Now adverting to the testimonies of the Police witnesses they were not an eye witness to the incident. PW1 & PW6 are not the eye witness to the alleged incident. IO himself testified that when he reached on the spot the injured was already taken to the hospital. Moreover, PW1 himself deposed that IO searched the clinic but no medicine was found there. Testimony of PW6 is also silent regarding any kind of Digitally signed by ISRA ISRA Date:
ZAIDI ZAIDI 2025.04.05 16:08:05 +0800 FIR No.44/2005 9/11 State Vs. Brij Kishore medicine seized by him. Mere testimony of the police witness is insufficient and cannot be made a sole basis of the conviction of the accused person.
27. It is an adage that law works on the wheels of evidence. Every criminal trial is a journey of discovering and unfolding the truth. But in the present case no sufficient evidence is there on record to warrant the conviction of the accused person. In the case of Prem Singh Yadav Vs. CBI 178 (2011) DLT 529 it was held that where it is possible to have both views one in favor of prosecution and one in favor of accused, the later one should prevail. The prosecution could not prove by the prosecution beyond reasonable doubt. In a criminal case the burden of proof is on the prosecution to prove the case against the accused beyond reasonable doubt. The burden never shifts. An accused enjoys the presumption of innocence. There is no duty on an accused person to purge himself of guilt. Where there is a lingering doubt, the accused person is given the benefit of the doubt.
28. For the reasons which this court has outlined above, this court is of the considered opinion that the prosecution has failed to discharge the heavy burden imposed on it by law of satisfying this court beyond reasonable doubt of the guilt of the accused.
29. Consequently, accused Brij Kishore is acquitted in the present case for offences u/s 304A IPC & 27 Delhi Medical Council Act, 1956.
File be consigned to record room after due compliance.
Announced in the open Court today.
This judgment contains 10 pages and each page bears my signature.
Digitally
signed by
ISRA ISRA ZAIDI
Date:
ZAIDI 2025.04.05
16:08:13
+0800
(Isra Zaidi)
JMFC-04/NE/KKD/Delhi
05.04.2025
FIR No.44/2005 10/11 State Vs. Brij Kishore
FIR No.44/2005 11/11 State Vs. Brij Kishore