Delhi District Court
State vs . Mohd. Rasheed on 28 March, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No.244/2001
P.S. Defence Colony
U/s 279/337/304A IPC
STATE VS. MOHD. RASHEED
JUDGMENT :
a. Sl. No. of the case : 179/2
b. Date of Institution : 06.12.2001
c. Date of Commission of Offence : 23.04.2001
d. Name of the complainant : Ram Prasad
S/o Sohan Lal
e. Name of the accused and his : Mohd. Rasheed
parentage and address S/o Abdul Rahman
R/o Village and PS Maniyari,
DistrictMujaffarpur, Bihar
f. Offence complained of : U/s 279/337/304A IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 28.03.2013
i. Final Order : Acquitted
j. Date of such order : 28.03.2013
1. The accused in this case was sent up for trial for the Commission of offence u/s 279/337/304A IPC.
FIR NO. 244/2001 PAGE 1 OF PAGE 11 PS DEFENCE COLONY
2. The facts in brief as per the prosecution story are that on 23.04.2001, the complainant namely Ram Prasad along with his friend Chand Kishore was coming on his motorcycle bearing no. HR26K1403 from his village Chamruwa, U.P and going to AIIMS hospital. At around 1.20 p.m., when they reached Ring Road near Andrews Ganj, in the meantime accused came there while driving the offending bus bearing no. DL1PL1354 of route no. 480 in a rash and negligent manner and struck against the motorcycle of the complainant from back side due to which the complainant along with his friend fell down on the road and they both received injuries. Thereafter they both were removed to the hospital. Police recorded the statement of complainant and prepared the rukka and the present case FIR was registered in PS Defence Colony. Thereafter accused was arrested and after completing other formal investigation the challan was presented before the court for trial.
3. The accused appeared in the court and he was informed of the substance of the allegation against him, vide notice dated 26.09.2003, u/s. 279/337/304A IPC to which he did not plead guilty and claim trial.
4. To prove its case the prosecution has examined ten witnesses namely ASI Anita as PW1, Retd. SI Nand Lal Dua as PW2, Karan Singh as PW3, Ram Prasad as PW4, Ram Kishore as PW5, Dr. Sanjeev Lalwani as PW6, Sanjeet Kakkar as PW7, HC Pergesh Kumar as PW8, HC Ram Niwas as PW9 and Sh. Rajbir Singh as PW10.
FIR NO. 244/2001 PAGE 2 OF PAGE 11
PS DEFENCE COLONY
5. PW1 ASI Anita has testified that on 23.04.2001, he recorded the
present case FIR which is Ex. PW1/A.
Accused did not prefer to cross examine PW1.
6. PW2 Retd. SI Nand Lal Dua has testified that on 23.04.2001, he conducted the mechanical inspection of one Bus bearing no. DL1PA1354 and a motorcycle bearing no. HR26K1403. His detailed report to this effect is Ex. PW2/A and PW2/B respectively. Accused did not prefer to cross examine PW2 also.
7. PW3 Karan Singh has testified that on 20.04.2001, he had identified the dead body of Chand Kishore in the AIIMS hospital mortuary and IO recorded his statement which is Ex. PW3/A. Accused did not prefer to cross examine PW3 also.
8. PW4 Ram Prashad has testified that on 23.04.2001, he along with Chand Kishore was returning from his village Chamrauwa, Distt.Muradabad, U.P and on a motorcycle bearing no. HR26K1403 and he was driving the same. PW4 further testified that they were coming to AIIMS hospital and when they reached Ring Road near Andrews Ganj at 1.20 p.m., in the meantime, one bus bearing no. DL1PL1354 of route no.480 under DTC came from back side and struck against their motorcycle from back side due to which they both fell down on the road. PW4 further testified that he received the injuries on his right hand, right leg and on his head. PW4 further FIR NO. 244/2001 PAGE 3 OF PAGE 11 PS DEFENCE COLONY testified that his friend Chand Kishore received injuries on right hand shoulder, both legs and on head. PW4 further testified that the driver of the bus did not stop the bus there. The accident was caused due to the rash and negligent driving of the bus. PW4 further testified that the driver ran away from there. PW4 further testified that he could not see the driver of the bus. Someone took them to the hospital. IO met him in the hospital and recorded his statement which is Ex. PW4/A. PW4 further testified that later on, his friend Chand Kishore was declared dead in the hospital. PW4 further testified that on 25.04.2001, he received his motorcycle on superdari vide memo Ex. PW4/A. PW4 further testified that he did not know anything more about the case. PW4 was cross examined by Ld. APP as he was resiling from his previous statement. In his cross examination, PW4 has denied the suggestion to this effect that he had seen the accused at the time of accident. He has further denied the suggestion to this effect that the accused present in the court was the same persons who caused the accident or to whom he identified in the PS on 24.09.2001 Accused did not prefer to cross examine PW4.
9. PW5 Ram Kishor has testified that on 20.04.2001, he identified the dead body of his brother Chand Kishore in the AIIMS mortuary and IO recorded his statement to this effect which is Ex. PW5/A. PW5 further testified that he received the dead body of his brother vide Ex. PW5/B. Accused did not prefer to cross examine PW5.
FIR NO. 244/2001 PAGE 4 OF PAGE 11 PS DEFENCE COLONY
10. PW6 Dr. Sanjeev Lalwani has testified that on 24.04.2001, he had conducted the postmortem of the body of Chandra Kishore which is Ex. PW6/A. PW6 further testified that the cause of death was Coma due to antemortem head injuries, resulting from Trauma due to blunt force and could be seen in circumstances mentioned in the P.M. Report(RTA).
Accused did not prefer to cross examine PW6.
11. PW7 Sanjeet Kakkar has testified that he was the registered owner of bus bearing no. DL1PA1354 and he had taken the bus on superdari vide memo Ex. PW7/A. PW7 further testified that he had also received the notice u/s 133 M.V. Act from the IO and he replied the same vide Ex. PW7/B. PW7 further testified that at the time of incident i.e. on 23.04.2001, his driver namely Mohd. Rashid present in the court was driving his aforesaid bus. He had also produced the accused as well as the bus in the PS to the IO and IO had arrested the accused at his instance.
In his cross examination, PW7 has testified that they do not maintain any register as to who will drive which vehicle.
12. PW8 HC Pergesh Kumar has testified that on 23.04.2001, on receipt of DD entry no. 15A, he along with ASI Girvar reached the spot i.e Bus stand, Andrews Ganj, Ring Road where they found a motorcycle bearing no. HR26K1403 in an accidental condition. PW8 further testified that ASI Girvar inquired from some passers by and came to FIR NO. 244/2001 PAGE 5 OF PAGE 11 PS DEFENCE COLONY know that t the injured had already been taken to the AIIMS hospital. IO went to the AIIMS hospital and he remained at the spot. PW8 further testified that after sometime IO came back at the spot and handed over the rukka vide Ex. PW8/A to him for the registration of FIR and accordingly he got the FIR registered. PW8 further testified that in the meantime the owner of the vehicle namely Sanjeet Kakkar produced the driver of the offending vehicle namely Abdul Rashid who was driving the offending vehicle at the time of accident. PW8 further testified that IO served the notice u/s 133 M.V Act to the owner of the vehicle which is Ex. PW7/B. PW8 further testified that IO had arrested the accused present in the court vide memo Ex. PW8/B and conducted his personal search vide memo Ex. PW8/C. IO had also seized the motorcycle bearing no. HR26K1403 and bus bearing no. DL1PA1354 vide memo Ex. PW8/D and E respectively. IO had also seized the DL of the accused vide memo Ex. PW8/F. PW8 further testified that IO got conducted the mechanical inspection of both the vehicles and released the bus on superdari vide superdaginama Ex. PW8/G. In his cross examination, PW8 has testified that IO did not join any independent witness in the investigation.
13. PW9 HC Ram Niwas has testified that on the intervening night of 23/24.04.2001, he received the information through Ct. Wasim Ahmed AIIMS hospital regarding death of one Chander Kishore due to road traffic accident and he recorded the DD entry no. 77B in this regard.
FIR NO. 244/2001 PAGE 6 OF PAGE 11 PS DEFENCE COLONY
Ld. counsel for accused did not prefer to cross examine PW9.
14. PW10 Rajbir Singh has testified that the indoor records, medical legal cases register and casualty death records up to December 2001 had been destroyed as per the guidelines of DGHC vide letter Ex. PW10/A. Accused did not prefer to cross examine PW10.
15. After closing of prosecution evidence, statement of accused was recorded U/s 281 of Code of Criminal Procedure Code,1973 r/w 313 Cr.P.C. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. The accused further denied to lead any defence evidence.
16. I have heard the Ld. APP for the State and Ld. Counsel for the accused and also perused the record.
17. The accused has been charged with the offence u/s 279 and 337/304A of IPC. The combined reading of these sections would show that a rash or negligent act is one of the essential ingredients which is required to be proved by the prosecution to establish the charge. While section 279 IPC renders punishable an act of rash or negligent driving which is dangerous to human life or limb, the same act would attract punishment u/s 337/304A of IPC if indeed it results in injury /death to/of some person.
FIR NO. 244/2001 PAGE 7 OF PAGE 11 PS DEFENCE COLONY 18. The term negligence has been defined by the Supreme Court in
Mahadev Prasad Kaushik vs. State of UP(2009)2 SCC (Cr) 834 as the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would not do. Besides, such negligence as would justify a verdict of conviction must be culpable or of gross degree and not the negligence founded on a mere error of judgment or defect of intelligence. Rashness can be summed up as an act which is reckless or is done in a manner which is dangerous to public life. The mere fact that an accident has taken place or some persons have received injuries will not lead to any presumption of rash or negligent act on the part of the accused but will have to be established like any other fact. The injury so caused is not the determining factor. In a case under sections 337/304A and 279, of the IPC, there must be a definite finding that the driving was rash or negligent which resulted in the injury/death to/of the victim. Accused cannot be held guilty unless it is explained in what manner the accused was rash or negligent.
19. To prove its case, the prosecution has examined 10 witnesses. PW4 is alleged to be the eye witness. He has deposed regarding the occurrence of accident. As per his deposition, on the date of incident, he along with deceased was going on their motorcycle when the accused while driving the offending vehicle came from back side and hit against their motorcycle. As per the testimony of PW4, the accused FIR NO. 244/2001 PAGE 8 OF PAGE 11 PS DEFENCE COLONY after hitting the motorcycle fled away with the bus and did not stop at the spot. PW4 has categorically admitted that he could not see as to who was driving the bus however, he noted down the number of the offending vehicle on the basis of which, notice under section 133 M.V. Act was issued by the IO to PW7 who has deposed in this case that the accused was driving the bus on the day of incident however, in his cross examination, he has admitted that he was not maintaining any register to show as to who was driving the bus on the day of incident.
20. Therefore the identity of the accused has not been established beyond reasonable doubt and it cannot be said that it was the accused who was driving the bus and he caused the accident leading to the death of deceased and injury to PW4. In Shahid Khan v. State (Delhi) it has been held by the Hon'ble High Court of Delhi that in a case where the sole eye witness of the accident did not claim the accused to be driver of the offending vehicle in the accident and no other direct evidence comes forth, the accused cannot be convicted merely on the basis of the statement of the owner of the offending vehicle to the effect that he had handed over the offending vehicle to the accused on the day of accident. In the present case, the sole eye witness PW4 had testified that he could not see the driver of the offending vehicle who fled away with the same. The observation made in this judgment has direct bearing on the fact of the present case.
21. In the present case also, the eye witness PW4 has categorically stated FIR NO. 244/2001 PAGE 9 OF PAGE 11 PS DEFENCE COLONY that he could not see the person who was driving the offending vehicle and the prosecution has sought to establish the identity of the accused on the basis of testimony of PW7 who is the owner of the offending vehicle. In these circumstances, no finding can be made that the accused was driving the offending vehicle at the time of the accident. Similarly it has also been observed in Jagdish Prasad Vs. State(Govt. Of NCT of Delhi), 184(2011) DLT 285.
22. Further, PW4 is alleged to have sustained injury due to the impact of the accident. According to his testimony, he received injury on his right hand and his right leg as well as on his head. However, the prosecution has not proved the MLC prepared in respect of PW4. The prosecution has not summoned the doctor who prepared the MLC of PW4 to prove the same. Though the MLC is on record but for lack of proof, the same cannot be read in evidence.
23. Further, PW4 has not deposed about the manner in which the vehicle was being driven by the accused and which according to his judgment was rash or negligent. Mere statement on behalf of the witness that accused was driving the vehicle rashly or negligently is not sufficient to bring home the guilt of the accused.
24. In these circumstances, no definite finding can be reached that the driving was rash or negligent. It may be a mere error of judgment or defect of intelligence.
FIR NO. 244/2001 PAGE 10 OF PAGE 11 PS DEFENCE COLONY
25. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Mohd. Rashid is acquitted for the offence punishable U/s 279/337/304A IPC.
Announced in the Open Court (DEEPAK SHERAWAT)
On 28.03.2013 Metropolitan Magistrate
South East/New Delhi
FIR NO. 244/2001 PAGE 11 OF PAGE 11
PS DEFENCE COLONY
FIR No.244/2001
PS Defence Colony
u/s 279/337/304A IPC
28.03.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 279/337/304A IPC for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/ with one surety in the like amount. Bail bond furnished. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/28.03.2013
FIR NO. 244/2001 PAGE 12 OF PAGE 11
PS DEFENCE COLONY