Delhi District Court
Sanjeev Kumar vs State (Nct Of Delhi) on 25 September, 2014
IN THE COURT OF SH. REETESH SINGH, ASJ-02/FTC
NEW DELHI DISTRICT PATIALA HOUSE COURTS, DELHI
Crl. Appeal No. 18/2013
I.D. No 02403R0022552013
Sanjeev Kumar,
S/o Sh. Inder Narayan Jha,
R/o CN-585A, S-BLock,
Isreal Camp, Rangpuri Pahari,
Vasant Kunj, New Delhi.
.............Petitioner
Versus
State (NCT of Delhi)
......... Respondent
Date of institution of the case : 07.03.2013
Date of reservation of order : 17.09.2014
Date of announcement of order : 25.09.2014
JUDGEMENT
1. This appeal has been filed against the impugned orders dt.08.02.13 and 11.02.13 by which Ld. Trial Court convicted the appellant for the offence punishable under section 279/304A of the Indian Penal Code (herein after referred to as the IPC) and sentenced him to undergo rigorous imprisonment for three months for the offence under section 279 of the IPC and rigorous imprisonment for one year and fine of Rs.5000/- for the offence under section 304A of IPC. It was further directed that in default of payment of fine, the appellant would undergo further simple imprisonment of fifteen days.
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2. The facts giving rise to the present appeal are that as per the prosecution the appellant while rashly and negligently driving a Toyota Innova car bearing registration no.DL3CBD2733 at Nelson Mandela Marg opposite Road Transport Authority Delhi on 11.02.10 at about 10 am caused the death of Saurabh Dubey who died due to injuries suffered in the accident. Upon completion of investigation, charge sheet was filed before the Trial Court and by order dt.04.01.11, notice under sections 279/304A IPC was framed against the appellant to which he pleaded not guilty and claimed trial.
3. The prosecution examined 11 witnesses in all. PW-1 is Harinder Kumar Dubey and PW-11 is Ajay Kumar Pandey both who identified the body of the deceased. PW-2 is Dhiraj Kapoor, the registered owner of the vehicle bearing no.DL-3CBD-2733. PW-3 is Smt. Poonam Kapoor wife of PW-2 Dhiraj Kapoor. She had deposed that on 11.02.10 at about 9 a.m. her driver Ithlesh Kumar Jha had taken the said vehicle from her house on the pretext of filing air in the tyres but he did not come back and she made a complaint at PS Vasant Kunj ExPW3/A. She identified the vehicle DL-3CBD-2733 which had been taken by her driver Ithlesh Kumar as Ex.P1.
4. PW-5 is HC Sukhbir Singh who as per the prosecution was on duty at the Road Transport Authority Vasant Vihar on 11.02.10 and an eye witness to the accident. PW-6 is HC Bhona Ram who was posted in PS Vasant Vihar and after receipt of DD no.25A had reached the spot of accident. He recorded statement of Ct. M.G. Ravi PW-8, another constable on duty at the Road Transport Authority Vasant Vihar and eye witness to the accident. PW-6 had collected the MLC of Sanjeev Kumar Vs. State CA No.18/2013 Page No.2 /9 deceased Saurabh Dubey from AIIMS Trauma Center.
5. PW-7 is Mukesh Kumar Sharma who was the UDC from Transport Authority Vasant Vihar who produced despatch register of the authority in respect of the reply sent to IO and its entry made in the register. PW-9 is Sudhir Jain Inspector Transport Authority who was the test driving inspector in the authority. PW-10 is SI Ajit Pal Tomar to whom investigation was marked on 05.03.10 and remained the IO till 13.03.10. PW-4 is SI Yogender Kumar, IO of the case.
6. After considering the evidence on record, Ld. Trial Court convicted and sentenced the appellant vide impugned orders.
7. Before this Court, Ld. Counsel for the appellant has argued that the appellant had gone to the Road Transport Authority, Vasant Vihar as he had registered himself name for a test drive. He submitted that he was giving the test drive and alongside him PW-9 Sudhir Jain Test Drive Inspector as well as Ithlesh Kumar Jha were sitting in the car. He submitted that when the appellant took the u-turn as per the site plan and was going towards the Road Transport Authority Office. At that time, the deceased who was coming from the wrong side of the road on his motorcycle collided with the vehicle driven by the appellant due to which he suffered fatal injuries. He contended that this was a case where no negligence could be attributed to the appellant and rather, the negligence was that of the deceased as he was driving on the wrong side of the road. He argued that PW-9 had admitted that the appellant had been registered for giving a test drive but wrongly denied his presence besides the appellant in the car at the time of Sanjeev Kumar Vs. State CA No.18/2013 Page No.3 /9 accident.
8. Counsel for the appellant further submitted that as per PW-5 HC Sukhbir Singh, he was present at the authority on 11.02.10 along with Ct. M.G. Ravi and both were on duty at the authority on that day and that IO PW-4 had also deposed similarly, but PW-8 M.G. Ravi in his evidence admitted that he was not on duty at the Transport Authority on that day. The counsel for the appellant submitted that PW- 5 HC Sukhbir Singh in his cross examination had deposed that he could not remember as to on which side of the road the accident took place. He submitted that with presence of PW-8 HC M.G. Ravi at the spot doubtful, the prosecution has failed to prove its case beyond reasonable doubt.
9. The counsel for appellant argued that the site plan ExPW4/A did not depict the position of the witnesses to the accident i.e. of PW-5 and PW-8 and in the absence of the same, the said site plan could not be relied upon. In this regard, the counsel for the appellant has placed reliance on the judgment of Hon'ble Supreme Court in the case of Pratap Singh & Anr. Vs. State of M.P. (2005) 13 SCC 624.
10. The counsel for the appellant argued that witnesses had deposed that the appellant was driving the vehicle at a high speed but did not say anything about the actual speed of the vehicle. In this regard he relied on the judgment of Hon'ble Supreme Court in case of State of Karnataka Vs. Satish (1998) 8 SCC 493 and submitted that in the absence of the prosecution explaining as to how fast or at what speed the vehicle was driving, merely by stating that the vehicle was Sanjeev Kumar Vs. State CA No.18/2013 Page No.4 /9 driven at a high speed did not speak of any rashness and negligence on the part of the appellant.
11. He submitted that although there was a CCTV camera outside the office of the Road Transport authority which could have proved the innocence of the appellant, the footage of the same was not obtained by the prosecution. He submitted that both IO PW-4 SI Yoginder Kumar as well as PW-9 Inspector Sudhir Jain had deposed that there was CCTV available but the same was not working. No evidence was led to prove that the CCTV was actually not recording on the date of the accident.
12. Ld. APP on the other hand stated that the impugned order and sentence do not call any interference.
13. I have heard the counsel for the parties and have perused the record of the Trial Court.
14. ExPW4/A is the site plan depicting the place of accident. As per the same, the offending vehicle was coming from Olof Palme Marg and took a u-turn at Nelson Mandela Marg to go towards the Transport Authority Office Vasant Vihar at point A. PW4 SI Yoginder Kumar who is the IO deposed that on 11.2.10 investigation of the matter was assigned to him and he along with Ct. M.G. Ravi reached the spot where he found PW-5 HC Sukhbir Singh, accused Sanjeev Kumar, vehicle Toyota Innova bearing no.DL3CBD2733 and motorcycle Bajaj Pulsar bearing no.DL3SBL9905. He seized both the vehicles and prepared the site plan at the instance of PW-8 Ct. M.G. Ravi Sanjeev Kumar Vs. State CA No.18/2013 Page No.5 /9 Ex.PW4/C.
15. PW-4 IO SI Yogender Kumar had deposed that PW-5 HC Sukhbir Singh of PS Vasant Vihar was deputed at Road Transport Authority Vasant Vihar. He further deposed that on 11.2.2010 PW-5 HC Sukhbir Singh and PW-8 Ct. M.G. Ravi both were on duty at the Vasant Vihar Transport Authority. PW-5 HC Sukhbir Singh also deposed in his examination in chief that he along with PW-8 Ct. M.G. Ravi were on duty at Transport Authority Vasant Vihar. However PW-8 HC M.G. Ravi deposed that on 11.2.2010 he was posted as constable in PS Vasant Vihar and on that day he had gone to the transport authority where he met PW-5 HC Sukhbir Singh at about 10 am. In his cross examination, he deposed that he was not on duty at the Transport Authority but had gone there to obtain a form for his friend. Thus from the testimony of PW-8 HC M.G. Ravi it is clear that he was neither posted nor was on duty at the Transport Authority Vasant Vihar on the day of accident. The same is in contradiction to the version of PW-4 SI Yoginder Singh IO as well as PW-5 HC Sukhbir Singh both who deposed that he was on duty at the authority on that day. Thus the presence of Ct. M.G. Ravi at the spot is doubtful and casts a shadow on the site plan prepared by the IO at his instance.
16. As per the site plan ExPW4/C, the vehicle in question driven by the appellant took a u-turn on Nelson Mandela Marg and collided with the motorcycle of the deceased at point A which is just besides the Road Transport Authority. The spot of accident is just besides or outside the office of Road Transport Authority Vasant Vihar. However PW-5 HC Sukhbir in his cross examination deposed that he could not Sanjeev Kumar Vs. State CA No.18/2013 Page No.6 /9 remember as to on which side of the road the accident took place. This part of the deposition of PW-5 is material as the case of the prosecution was that the vehicle turned from Olof Palme Marg to Nelson Mandela Marg and took a u-turn on Nelson Mandela Marg and went towards the office of the Road Transport Authority where the accident took place. With the presence of Ct. M.G. Ravi at the spot being doubtful coupled with the fact that the other eyewitness PW-5 HC Sukhbir Singh does not remember as to on which side of the road the accident took place, there are doubts as to whether site plan was prepared accurately or not and also whether PW-5 HC Sukhbir Singh too witnessed the accident.
17. The appellant had contended that he had gone to the Road Transport Authority to give a driving test. PW-9 Sudhir Jain Inspector of the Authority deposed in his examination in chief that on 11.2.2010 he was the Test Training Inspector in the authority and as per record, the appellant Sanjeev Kumar had come there to give a driving test. He deposed that he came to know that an accident had taken place which was committed by Sanjeev Kumar. He deposed that Sanjeev Kumar had not come to him for giving the test physically. In his cross examination he deposed that the record in his office reflected that the appellant had come to the authority and had deposited fees for driving test but he came to know at 3 p.m. that he was not present for the driving test. Thus from the evidence of PW-9 it stands established that the accused Sanjeev Kumar had registered himself for giving a driving test at the Road Transport Authority Vasant Vihar on 11.2.2010 and had also deposited the fees for the same.
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18. PW-9 Sudhir Kumar deposed that there was no CCTV camera outside the office but there was a CCTV inside their office but due to a technical problem it was not working. PW-4 SI Yoginder Kumar in his cross examination had deposed that he had asked about the CCTV footage from the authority but he was informed it was not in working condition on the day of accident.
19. PW-5 HC Sukhbir Singh in his examination in chief has deposed that the vehicle was being driven by the appellant at a high speed. Even PW-8 HC M.G. Ravi had deposed similarly. Both do not describe in what manner the speed of vehicle was high. In the case of State of Karnataka Vs. Satish (Supra) the Hon'ble Supreme Court has held that merely because the truck in question was being driven at a high speed did not speak of either negligence or rashness by itself. None of the witness examined gave any indication as to what was meant by high speed. The Hon'ble Supreme Court has held that it was for the prosecution to bring on record the material to establish what was meant by high speed. In the facts and circumstances of said case, it was held that in a criminal trial burden of providing everything essential to the establishment of charge was always on the prosecution and there is presumption of innocence in favour of accused until the contrary is proved. Since there was no explanation regarding words used "high speed" it was held that there was no evidence to establish rashness or negligence on the part of truck driver.
20. In the present case as well PW-5 and PW-8 have only deposed that the appellant was driving the vehicle at a high speed but had not Sanjeev Kumar Vs. State CA No.18/2013 Page No.8 /9 disclosed as to in which manner he was rash and negligent.
21. Lastly it is also to be seen that as per site plan ExPW4/C the appellant took a u-turn at Nelson Mandela Marg to go towards the authority. The distance between the point of u-turn and Transport Authority does not seem to be such so as to enable a vehicle to gather high speed in such a short distance.
22. In the facts and circumstances of this case it appears to this Court that the evidence led was insufficient to prove the guilt of the appellant beyond reasonable doubt.
23. In view of the reasons recorded above, I am unable to sustain the impugned orders of the Ld. Trial Court. The same are hereby set aside. The appellant is acquitted for the offences for which he was charged.
24. TCR be sent back to the Ld. Trial Court alongwith copy of this judgment.
25. Appeal file be consigned to record room.
Announced in the open court (REETESH SINGH) on 25th September, 2014 ASJ-02/FTC, PHC/NDD 25.09.2014 Sanjeev Kumar Vs. State CA No.18/2013 Page No.9 /9