Delhi District Court
State vs Mukesh on 1 November, 2023
IN THE COURT OF SH. AJAY NARWAL, MM-02, NORHT DISTRICT,
ROHINI COURTS, NEW DELHI.
State Vs. Mukesh
New No. 5283634/2016
FIR No. 75/2016
PS: S.P. Badli
U/S: 279/304A of IPC
JUDGMENT
ID number of the case : 5283634/2016
Date of commission of offence : 22.03.2010
Date of institution of the case : 22.09.011
Name of the complainant : Ct. Anil
Name of accused persons and : Mukesh Kumar s/o Sh. Satyanarayan, R/o VPO
addresses Thesil Israna, PS Mathaloda, District Panipat,
Haryana
Offence complained of or proved : 279/304A IPC
Plea of the accused : Pleaded not guilty
Final order : Acquitted
Date of judgment : 01.11.2023
BRIEF REASONS FOR DECISION:
1. This is the prosecution of the accused namely Mukesh upon a charge sheet filed by the police official of police station SP Badli under section 279/304A IPC.
2. The allegation against the accused is that on 22.03.2010 at 06.35 am at Mukarba Chowk, GTK Road, Delhi within the jurisdiction of PS SP Badli, you were found driving a bus bearing no. DL-1PB-4552 in so rash and negligent manner so as to endanger human life and personal safety of others and thereby you committed an offence of punishable U/s State Vs. Mukesh FIR No. 75/2010 Page no. 1 of 17 279 IPC. Secondly, on the aforesaid date, time and place while driving, you struck your above said vehicle against one unknown pedestrian who was crossing the road and thereby caused his death not amounting to culpable homicide and thereby you committed an offence punishable U/s 304A IPC.
Investigation
3. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [ For brevity, hereinafter referred as Cr.P.C.]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused and challan was presented in the Court.
4. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C.
Charge
5. A prima facie case under Sections 279/304A IPC, was found to be made out against the accused Mukesh, however, accused Mukesh pleaded not guilty for the offences and accordingly. Notice was served vide order dated 30.05.2012 upon the accused Mukesh.
6. Vide a separately recorded statement, the accused admitted the following documents under Section 294 Cr.PC. It is pertinent to mention that accused admitted the existence of State Vs. Mukesh FIR No. 75/2010 Page no. 2 of 17 FIR and not the truth of the contents thereof:-
Sl. Documents Proved Ex. No.
No.
1. Dr. Vinayak, CMO, BJRM Hospital with Ex. P-1
MLC of injured/deceased no. 7296/2010
2. Dr. Danish, JR, Casuality, BJRM Hospital Ex. P-2
with MLC of injured/deceased no.
7296/2010.
3. Dr. Pradeep, JR, BJRM Hospital, with MLC Ex. P-3
of deceased no. 7296/2010
4. Dr. Kulbhushan Goyal, CMO (NFSG), Ex. P-4.
BJRM Hospital with PM report of deceased
NO. 341/2010
5. Dr. R. S. Mishra, CMO, BJRM Hospital Ex. P-5
with MLC of accused/driver
In view of the admission of above documents under Section 294 Cr.PC, the evidence of following witnesses i.e. Dr. Vinayak, CMO, BJRM Hospital, Dr. Danish, JR, Casuality, BJRM Hospital, Dr. Pradeep, JR, BJRM Hospital, Dr. Kulbhushan Goyal, CMO (NFSG), BJRM Hospital and Dr. R. S. Mishra, CMO, BJRM Hospital were dispensed with.
7. In order to prove the case, the prosecution examined nine witnesses.
8. PW1 Ct. Anil deposed that on the night of 21/22.03.2010, he was on duty at the picket Mukarba Chowk. He was posted in PS S.P. Badli. On 22.03.2010 at about 06.35 am, he was standing outside the Police Booth and saw that one blue line bus which was coming from the side of Azadpur was going to Sindu Border Side at GTK Road. A little head of the police booth was red light and between the red light and the police booth, there State Vs. Mukesh FIR No. 75/2010 Page no. 3 of 17 was a cut. He saw that one person, who was crossing the road was hit by blue line bus. PCR Van was standing nearby and immediately the injured was taken to BJRM hospital. He got the bus parked on one side as it was getting traffic jam. He detained the driver of the blue line bus. When the IO/ SI Dinesh came to the spot, he narrated the entire sequence of accident to him. Thereafter, IO went to the hospital. When IO returned from the hospital, he recorded his statement i.e. Ex.PW1/A. IO prepared the site plan Ex.PW1/B at his pointing out. He handed over the driver of the blue line bus to the IO. He deposed that accused was arrested in his presence vide arrest memo Ex.PW1/C and his personal search memo also got conducted vide memo Ex.PW1/D. Bus was taken to the PS by the IO. The speed of the blue line bus was very high. It might be 40 km per hour. The speed which he was telling you on the basis of approximation. Driver of the blue line bus was correctly identified by the witness. He do not remember whether it was red light at point E or not. Accused was negligent in driving because of high speed and rash driving. Q. Whether there was zebra crossing at point A and B as shown in the site plan ?
Ans. No. Q. Whether there was pedestrian light at point A and B ? Ans. There was pedestrian light at point A and B. Q. What was the number of the blue line bus ? Ans. The number of the blue line was DL-1PB-4552.
During his examination of the vehicle is not disputed by the accused vide his statement dated 30.05.2012.
9. PW2/SI Dinesh Kumar deposed that on 22.03.2010, he was posted at PS SP Badli as State Vs. Mukesh FIR No. 75/2010 Page no. 4 of 17 SI. On that day, he was on night emergency duty from 08.00 pm to 08.00 am. On that day, after receiving DD no. 13B, copy of the same Mark X1, he went to Mukarba Chowk along with Ct. Bijender. There Ct. Anil met him along with the accused and the case property. He further stated to him that the injured has been shifted to BJRM hospital. He deposed that he went to BJRM hospital and collected the MLC of injured wherein he was declared unfit for statement. He again came back at the spot and recorded the statement of Ct. Anil i.e. Ex. PW1/A. He prepared the rukka i.e. Ex. PW2/A and handed over the same to Ct. Bijender for registration of FIR. After registration of FIR Ct. Bijender reached at the spot and handed over him the copy of FIR and original rukka. He sent Ct.Bijender for the medical examination of ccused. He prepared the site plan i.e. Ex. PW1/B. He arrested and personally searched the accused person vide memos Ex. PW1/C and Ex. PW1/D. He seized the offending vehicle i.e. Ex. DL1PB-4552. He seized the photocopy of the permit, fitness, driver badge, copy of RC, driving licence of accused, photocopy of insurance of the offending vehicle vide memo Ex. PW2/C to PW2/H. Thereafter, he went to hospital and collected the blood sample of the accused and the same was seized vide seizure memo Ex. PW2/A. The belonging of the deceased was also seized i.e. Ex. PW2/I. The mechanical inspection of the offending vehicle was got conducted on his request i.e. Ex.PW2/K. On 30.03.2010, the postmortem of the deceased was got conducted on my request I.e.Ex. PW2/L. He identified the accused during his examination. The said witness was duly cross examined by Ld. Defence counsel.
10. PW3 Sh. Jogi Ram/registered owner of the bus in question bearing no. DL1PB-4552. He got released the said bus on superdari. He said the on the day of accident, the offending State Vs. Mukesh FIR No. 75/2010 Page no. 5 of 17 vehicle was driven by the accused. He correctly identified the accused during his examination. The said witness was duly cross examined by Ld. Defence counsel.
11. PW/ASI Sushil Kumar deposed that he registered the FIR ie. Ex.PW4/A and made an endorsement on the rukka i.e. Ex. PW4/B.
12. PW5/Retd/ASI (Tech)/Devender Kumar deposed that on 23.03.2010 at the instance of IO, went to PS SP Badli and conducted the mechanical inspection of bus bearing no. DL1PB-4552 and thereafter, he prepared his report i.e. Ex. PW5/A. The said witness was duly cross examined by Ld. Defence counsel.
13. PW6/SI Bhupesh deposed that in the month of June, 2010, investigation of the present case was marked to him. He carried out further investigation and served the notice u/s 133 of M.V. Act to the owner of the offending vehicle i.e. Ex. PW6/A and same was replied by owner of the offending vehicle. He also informed CBI and Doordarshan regarding the publication of unknown body.
14. PW7 Dr. Deepak deposed that he has been deputed by M.S BJRM Hospital to depose on behalf of Dr. Danish, Dr. Pradeep and Dr. Vinayak as all the doctors have left the services. He has seen them writing and signing during the course of his official duties. He has seen the MLC No. 7296 i.e. Ex. PW7/A bears the signatures of Dr. Danish, Dr. Pradeep and Dr. Vinayak. The said witness was duly cross examined by ld. Defence counsel.
State Vs. Mukesh FIR No. 75/2010 Page no. 6 of 17
15. PW8 Sh. Love Kumar, Post Mortem Technician were examined as PW-8 and PW-9 and both the witnesses were partly examined in chief, however, during the course of trial, accused admitted PM report no. 341/2010 and MLC No. 7339 as such, their further examination was dispensed with.
16. Thereafter, prosecution evidence was closed vide order dated 10.05.2023.
17. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused did not opt to lead any evidence in his defence and the same was closed.
18. I have heard the arguments advanced at length by Ld. Counsel for the accused as well as Ld. APP for the State. On the basis of the above oral and documentary evidence on record, learned APP requested for conviction of the accused. On the other hand, learned defence counsel contended that the prosecution has miserably failed to establish the guilt of the accused beyond all reasonable shadow of doubt. Accordingly, he prayed for the acquittal of the accused.
LAW INVOLVED IN THE PRESENT CASE
19. Section 279 of the IPC provides for the offence of rash driving or riding on a public way. It reads as under:
"Whoever drives any vehicle, or rides, on any public State Vs. Mukesh FIR No. 75/2010 Page no. 7 of 17 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 which may extend to six months, or with fine which may extend to one thousand rupees, or with both."
20. On bare reading of the above provisions, it becomes clear that there are primarily three essential ingredients which constitute offence of rash driving on a public way.
a. Person must be driving or riding on a public way;
b. He must be driving in a rash or negligent manner;
c. Likely to endanger human life or cause hurt or injury to any person;
21. Section 304A IPC provides for the offence of causing death by negligence. Death must have been caused by rash or negligent act which must not amount to culpable homicide. It reads as under:
"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 dine, or with both."
22. The doing of a rash or negligent act, which causes, death is the essence of section 304A. There is a slight distinction between a rash act and a negligent act. 'Rashness' conveys the idea of recklessness or doing an act without due consideration and 'negligence' connotes want of proper care. A rash act, therefore, implies an act done by a person with recklessness or indifference to its consequences. The doer, being conscious of the mischievous or illegal consequences, does the act knowing that his act may bring State Vs. Mukesh FIR No. 75/2010 Page no. 8 of 17 some undesirable or illegal results but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.
23. A perusal of the above discussed provisions makes it very clear that an act of rashness or negligence endangering the human life or personal safety is a common ingredient in all these offences. Now a question arises as to what would constitute a rash or negligent act. At this stage, reference may be taken from the decision of the Hon'ble Supreme Court in the case of Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh, wherein the Hon'ble Apex Court has discussed in detail as to what constitute a rash or negligent act. It was inter-alia held the following:
"A rash act is primarily an over hasty act. It is opposed to 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."
24. Further, in the case of Braham Dass vs. State of Himachal Pradesh (2009) 3 SCC (Cri) 406, while discussing the legal position with respect to an offence u/s 279/304A IPC, the Hon'ble Supreme Court has interalia held the following:
"Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly in Section State Vs. Mukesh FIR No. 75/2010 Page no. 9 of 17 304 A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304 A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
25. Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial. What is important is that he has not taken due care or has done the said act with indifference to the consequences.
26. Further, it should be noted that there should be direct link between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim. The Hon'ble Delhi High Court in the case of Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562 has discussed the ingredients which need to be established by the prosecution for convicting an accused u/s 279/304 A IPC. The Hon'ble Court has inter-alia held the following:
"As 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 regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide. As observed in Badri Prasad (supra), to establish the offence either under section 279 or section 304A, the commission of a rash or negligent act has to be proved."
State Vs. Mukesh FIR No. 75/2010 Page no. 10 of 17
27. The above-mentioned judgment sufficiently enlightens us that for establishing accusations u/s 304A IPC, prosecution is not only required to establish that the accused was rash or negligent while driving the vehicle, but it is additionally incumbent on prosecution to establish that the causa causans of death of deceased/or the proximate cause of death of deceased was the act of accused.
28. In the case present case, the accused has admitted that he was driving the said offending vehicle on the alleged date, time and place. He has not disputed his presence at the spot nor that of his offending vehicle. Hence, the only question that remains to be examined by this court is whether the accused was driving the offending vehicle in a rash and negligent manner, and that whether the death of the victim was a result of his rash and negligent act.
29. At the very outset, it is pertinent to mention, that the most climacteric witnesses examined by the prosecution in the present case is PW-1 Ct. Anil, since he has been cited by the prosecution as the eye witness. PW-1, inter-alia, deposed in his examination in chief, that on the night of 21/22.03.2010, he was on duty at the picket Mukarba Chowk and about 06.35 am, he was standing outside the Police Booth and saw that one blue line bus which was coming from the side of Azadpur was going to Sindu Border Side at GTK Road. He saw that one person, who was crossing the road was hit by the said blue line bus.
PCR Van was standing nearby and immediately the injured was taken to BJRM hospital. He got the bus parked on one side as it was getting traffic jam. He detained the driver of the blue line bus. When the IO/ SI Dinesh came to the spot, he narrated the entire sequence State Vs. Mukesh FIR No. 75/2010 Page no. 11 of 17 of accident to him. Thereafter, IO went to the hospital. He further deposed that the speed of the blue line bus was very high. It might be 40 km per hour and accused was negligent in driving because of high speed and rash driving. He also deposed that there was no zebra crossing at point A and B as shown in the site plan and there was pedestrian light at point B in the site plan. He had also identified the accused during his examination in chief.
30. It is pertinent to mention that in his examination in chief, PW-1 has merely stated that the accused person was driving the offending vehicle in high speed and in rash and negligent manner, however, PW-1 has not deposed anything about the manner in which the offending bus was being driven. Merely because a person was driving a vehicle does not per se hold him liable for being rash and negligent as well. It is the unfettered burden upon the prosecution to prove beyond iota of doubt the elements of rashness and negligence on the part of the accused. Further, it was incumbent upon the prosecution to established peripheral factors like the existence of any red light at the place of the incident, was there any speed breaker, the existence of any by lane or crossing at any exact point at which the alleged victim was crossing the road and whether there was existence of any zebra crossing at the point where victim has allegedly stated to be hit by the offending vehicle. It is further pertinent to mention that in the site plan Ex. PW1/C also, Zebra crossing is not shown anywhere and PW-1 also deposed in his examination in chief that there was no Zebra crossing. PW-1 also deposed in his examination in chief that point B is the pedestrian light. It is pertinent to mention that in the site plan, point A is shown as the place where the offending vehicle has hit the deceased. Point A is happens to be a place which is in the middle of the road. Hence, it can be inferred that deceased is a jaywalker State Vs. Mukesh FIR No. 75/2010 Page no. 12 of 17 and was crossing the road from the place which is not earmarked for pedestrians to cross the road.
31. The Hon'ble Supreme Court of India in judgment of Mahadeo Hari Lokre Vs. P. Maheshvara AIR 1792 SC 221 has observed that "4.1 It must be stated that there is really no good evidence on the side of the prosecution to show how exactly the accident took place. If a person is suddenly crossing the road and the bus driver however slowly may be driving may not be in a position to save the accident. Therefore, it will not be possible to hold that the bus driver was negligent". In "Rajesh Kumar v. State" Crl Rev Pet no. 490/2008, the Hon'ble High Court of Delhi observed, "8. It is clear from the testimonies that the offending vehicle was being driven by the Petitioner at the time of incident and the offending vehicle hit the old lady. The relevant aspect to be noted is that the road on which the accident took place is a busy road. Site plan Ex.PW6/B does not indicate that the ladies were crossing the road from a place earmarked for the pedestrians to cross the road or that there was any zebra crossing. The two ladies were crossing the road with heavy vehicular traffic from the middle and thus they were negligent. This is a case of contributory negligence on part of PW2 and the deceased. PW1 has stated that the driver applied brakes and was cautious while driving the vehicle. PW2 in her testimony has stated that the driver and the lady helped them after the accident. The conduct of the driver of not running away and taking the deceased to hospital is also relevant.....For attracting the provisions of Section 304A IPC the negligent act of the accused must be culpable and gross and not merely based on an error of judgment, or the one which arises because of lack of intelligence. For holding an accused criminally liable one has to take State Vs. Mukesh FIR No. 75/2010 Page no. 13 of 17 into consideration all the attending circumstances which must also include any situation created by the negligent act of the injured person."
32. Merely, because the statement of the witnesses is to the effect that the driver was driving the vehicle with high speed does not suffice to prove the guilt of the accused. The prosecution has to prove the manner in which the vehicle was driven and how such driving was rash or negligent. Perusal of the site plan, would show that the accused was driving the vehicle on correct side of the road and even no zebra crossing was marked on the site plan. It is settled proposition of law, that burden is on the prosecution to prove as how the accused was rash or negligent in driving the offending vehicle. It cannot be presumed, that the accused must have been driving the vehicle in rash or negligent manner only because one person had met with an accident on the road while crossing it from a place, where there was no zebra crossing and which is not earmarked for pedestrians to cross the road.
33. PW-1 in his cross examination admitted that public persons and vehicle were moving through the spot. PW-2/SI Dinesh who is the IO of the case also admitted during his cross examination that public persons gathered at the spot and he requested 2-3 public persons to join the investigation but they refused to join stating that they have not seen the incident. It is admitted fact that when the accident took place, public persons were present at the spot, then it is difficult to understand as to why no public person was made a witness in the present matter. Merely stating that public witnesses refused to joined the investigation is not sufficient. The concerned police official should have given notice to State Vs. Mukesh FIR No. 75/2010 Page no. 14 of 17 the public persons to joined the investigation and their refusal should have also brought on record along with the notice. However, these aspects are missing in the present case. Failure on the part of the police officials to make sincere effort to join public witnesses for the proceedings when they may be available creates reasonable doubt in the prosecution story.
34. It is also pertinent to mention that PW-1 has been cited as the eye witness in the present case and he deposed that on the fateful day, he was on duty at the picket Mukarba Chowk and during his cross examination, he has deposed that he has made the departure entry of his picked duty on the date of incident. However, to the reasons best known to the IO, no DD entry was annexed with the chargesheet to fortify the fact that PW-1 was on picket duty on the fateful day. Failure to place on record the relevant DD entries to show the genuine presence of the PW-1 at the spot where accident took place raises doubt in the case of the prosecution.
35. No doubt wrong acquittals are undesirable and shake the confidence of the people in judicial system, much worse, however, is the wrongful conviction of the innocent man. The consequences of conviction of innocent men are far more serious and its reverberation would be felt by an innocent all his life in a civilized society, therefore, it is the duty of the court to avoid any wrongful conviction and to grant benefit of doubt where ever the need arises. If two views are possible, one favouring the accused and the other against him, the benefit of doubt must be given to the accused.
36. At this stage, court further deems it fit to state, that it is a settled principle of State Vs. Mukesh FIR No. 75/2010 Page no. 15 of 17 criminal jurisprudence, that culpability cannot be established on surmises and conjectures but it should rest on cogent, reliable and clinching evidence, dispelling every doubt and bulwarking the fact that in all possibility, the offence must have been committed by the accused. It is a settled proposition of law that 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 favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. It was observed in Partap v. State of U.P., (SC) 1976 A.I.R. (SC) 966 that while prosecution required to prove its case beyond a reasonable doubt, accused can discharge his onus by establishing a mere preponderance of probability. In Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190 it was again held that in criminal cases burden is always is on prosecution and never shifts.
37. In view of the discussion here in above, on the whole the prosecution has failed to establish beyond reasonable doubt that the accused had been driving the vehicle in a rash or negligent manner so as to endanger human life or likely to cause harm or injury to other persons. Hence, ingredients of offence U/s 279 IPC have not been proved beyond reasonable doubt. Further, it is not proved that the accused was driving the vehicle in rash and negligent manner, it also remained not proved that any rash or negligent act of the accused had caused death of deceased (not amounting to culpable homicide). To impose criminal liability to the accused for offence U/s 304 A IPC, it is necessary that the death should have been caused by the rash or negligent act of the accused but the same remains unestablished in the present case. Hence, this court is of the considered opinion, the case State Vs. Mukesh FIR No. 75/2010 Page no. 16 of 17 of the prosecution suffers from several glaring loopholes and the prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Accordingly, accused Mukesh stands acquitted from the charges U/s. 279/304A IPC.
Dictated directly into the computer (AJAY NARWAL) and announced in the open Court, MM-02, North On 1st day of November, 2023 Rohini courts/01.11.2023
This judgment consists of 17 pages and all bear my signature.
State Vs. Mukesh FIR No. 75/2010 Page no. 17 of 17