Delhi District Court
State vs . Salender Mishra on 24 February, 2010
1
IN THE COURT OF SH. PRITAM SINGH
METROPOLITAN MAGISTRATE/ NEW DELHI.
State Vs. Salender Mishra
FIR No: 68/96
U/s: : 279/337 IPC
P.S. :CHANKAYA PURI
JUDGEMENT
1. Sl. No. of the case : 428/2
2. Date of commission of offence :31.03.1996
3. Name of the complainant :Swaminath S/o Sh.
Maharajdeen R/o House No. 547, Ghadoli Diary Farm, New Delhi -96
4. Name of accused :Salender Mishra S/o Sh.
Sharda Prasad Mishra R/o Village Jaipura, Thana Jansha, District Varanasi, UP.
Present Address:Taxi Stand Gol Market, New Delhi
5. Offence complained off: :U/s 279/337 IPC
6. Plea of the accused :pleaded not guilty
7. Final Arguments heard on :22.02.2010
8. Final Order :Acquitted
9. Date of such order :24.02.2010 2 BRIEF REASONS FOR SUCH DECISION OF THE CASE:-
1. The brief facts of the case are that on 31.03.1996 at about 5 PM at SP Marg, Panchsheel red light, the accused was driving a car bearing no. DLT 616 in a rash or negligent manner on a public way so as to endanger human life and public safety of others and while driving so hit against Bhola and two camel riders and caused simple injuries to Bhola & Ibe Hasan and Bittoo and thereby committed offences U/s 279/337 IPC.
2. After the completion of investigation, challan U/s 279/337 IPC was filed. Accused was summoned and notice U/s 251 Cr. PC was given to accused on 04.11.1996 to which he pleaded not guilty and claimed trial.
3. The prosecution examined 10 witnesses. Ct. Narender Singh was examined as PW 1, Swaminathan who is the complainant in the present case was examined as PW 2, SI Kedar Nath (Retired) was examined as PW 3, ASI Bankey Bihari was examined as PW 4, Sh. Eblay Hassan who is one of the injured was examined as PW 5, Sh. Bittoo who is also one of the injured was examined as PW 6, Sh. N.C. Vishwas, Record Clerk, RML Hospital was examined as PW 7, Sh. Bhola, who is also one of the injured was examined as PW 8, SI Jaipal Singh was examined as PW 9 and Retired ASI Laxmi Chand was examined as PW 10. Thereafter, PE was closed.
4. Documents were exhibited as under:
(i) The statement of injured Swami Nathan was recorded vide memo Ex. PW 2/A.
(ii) The mechanical inspection report of taxi car bearing no. DLT 3 616 was exhibited as Ex. PW 3/A.
(iii) Copy of FIR was exhibited as Ex. PW 4/A.
(iv) The handwriting and signatures of Doctor Anoop on the MLC was identified by Sh. N.C. Vishwas was exhibited as Ex. PW 7/A.
(v) The rukka was prepared vide memo Ex. PW 9/A.
(vi) Site plan was prepared vide memo Ex. PW 9/B.
(vii) Accidental vehicle was taken into possession and seized vide memo Ex. PW 1/A.
(viii) The vehicle was released on superdari to accused after furnishing superdarinama vide memo Ex. PW 9/C.
5. The statement of the accused U/s 313 Cr. PC was recorded wherein accused stated that he was driving the vehicle but the accident was not taken place due to his fault and infact 2-3 camels were going on the road and they were out of control and first of all, they hit his vehicle after that his vehicle was out of control and all the facts are incorrect and he was not on the fault on the day and this accident occurred due to his fault and he was driving his vehicle in a rash and negligent manner.
Accused stated that he wants to lead defence evidence but later on, on 11.07.2009, he denied to lead defence evidence and DE was closed.
6. The accused is charged for the offences U/s 279 IPC and 337 IPC. Before appreciation of evidence of witnesses, it is necessary to know the ingredients of Section 279 and 337 of IPC.
Section 279 of Indian Penal Code provides:
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 a term 4 which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Ingredients of Section 279 is driving or riding any vehicle on a public way rashly or negligently.
Section 337 of Indian Penal Code provides:
Causing hurt by an act endangering life or personal safety of others- Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to five hundred rupees, or with both.
7. Counsel for accused relied upon the following rulings:
(i) Ishwar Singh Vs State of Haryana 2000 (3) Crimes 13 Punjab & Haryana High Court
(ii) Suleman Rahiman Mulani & Others Vs State of Mahrashtra 1988 Cri. L. J. 1013 AIR 1968 Supreme Court 829
(iii) State Vs Hari Singh 1969 Cri. L.J. 445 AIR 1969 Rajasthan 86
8. It is well settled law that rashness and negligence cannot be presumed against driver. The prosecution must prove rash and negligent driving of the accused. Direct nexus between death of person and rash and negligent act of accused is essential for holding the driver guilty for the offences U/s 279 IPC, 337 IPC and 304 A IPC.
59. As per the prosecution story, there were three eye witnesses of the accident in question. One Swaminathan who was examined as PW 2, Sh. Eblay Hassan who was examined as PW 5 and Sh. Bhola who was examined as PW 8. None of the said three eye witnesses fully supported the prosecution case. All the said three witnesses resiled from their statements given earlier to the police and they were cross examined by APP for State but nothing material came in their examinations for the benefit of prosecution.
10. PW 2 deposed in his cross examination that two camels were going ahead of them and the riders of the camel fell down on the car of the accused. PW 2 further deposed that it is correct that camel was not in a control of its rider. The above said deposition of PW 2 destroyed the case of the prosecution that the accused was driving his car rashly or negligently.
11. PW 5 deposed in his cross examination that he was never interrogated by any police person nor his statement was ever recorded by IO. PW 5 denied that the statement Mark A to B dated 31.03.1996 was under his dictation.
12. PW 8 did not support the case of the prosecution and stated in his cross examination that it is correct that he did not see the accident. PW 8 further deposed that he was unable to recall whether Sh. Eblay Hassan was injured or not.
613. In view of the above discussions, I am of the considered view that Prosecution has not proved its case against accused beyond reasonable doubt for the offence U/s 279/337 IPC and therefore, he is acquitted for the offences U/s 279/337 IPC. Bonds are discharged.
File be consigned to Record Room.
Announced in the open court PRITAM SINGH
Metropolitan Magistrate Delhi
24.02.2010