Delhi District Court
Mukesh vs State (Nct Of Delhi) on 19 May, 2022
IN THE COURT OF SH. SUSHIL ANUJ TYAGI, ASJ (FTSC)
(RC) SOUTH WEST DISTRICT, DWARKA COURTS, NEW
DELHI.
CNR No.DLSW010030622020
CA No. 136/2020
Mukesh,
S/o Sh. Govind Sahai,
R/o Village Machadi,
PS Rajgarh, District Alwar,
Rajasthan. .....Appellant
VS.
State (NCT of Delhi)
Through its Secretary .....Respondent
Date of institution of appeal : 16.03.2020
Date on which judgment reserved : 28.04.2022
Date on which judgment pronounced : 19.05.2022
JUDGMENT
1. This is an appeal filed by the appellant/accused Mukesh, U/s 374 Cr.P.C. against the impugned judgment dated 17.12.2019 and impugned order on sentence dated 15.02.2020 passed by the court of Sh. Deepak KumarII, Ld. MM06, Dwarka, New Delhi in a case bearing FIR No.765/2015, U/s 279/304A IPC, PS Dwarka North tilted as "State Vs. Mukesh".
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2. Briefly stated, the facts of the case, as per the chargesheet, are that on 17.09.2015 on receipt of DD No. 39A, PS Dwarka South, regarding "accident plus serious injured Ph. 9650768012", ASI Krishan Kumar alongwith Ct. Josh Kumar reached at the spot i.e. Sector17A, Senior Secondary School (under construction), where he found one motorcycle bearing No. RZ 14KS 4563, Hero Honda CD Delux, black & red colour parked in an accidental condition at the road side. No eyewitness was found at the spot and the IO went to Bensup Hospital, where he obtained MLC of the victim whereupon the doctor has mentioned "declared brought dead at 8.05 PM". Accused was produced by ASI Ranbir Singh to the IO as the driver of the motorcycle. The IO returned to the spot with the accused but did not find any eyewitness and he accordingly got registered the FIR U/s 279/304A IPC. During investigation, IO recorded the statement of the eyewitnesses namely Arvind Kumar, Sudhir Kumar, Ranjan Kumar and Mukesh.
3. After completion of investigation, chargesheet was filed against the appellant/accused. Thereafter, cognizance was taken by the Ld. M.M. vide order dated 05.04.2016 and notice U/s 251 Cr.P.C. was served upon the appellant/accused on 05.04.2016, to which he pleaded not guilty and claimed trial.
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4. In order to prove the case, the prosecution examined total eight witnesses and after closing of prosecution evidence, the appellant/accused was examined U/s 313 Cr.P.C. r/w Section 281 Cr.P.C., wherein he took a defence that he is innocent and has been falsely implicated in the present case to extort money from him. He further stated that he was driving the offending motorcycle at the time of accident and the victim came in front of the motorcycle all of a sudden. He further submitted that he does not want to lead evidence in his defence.
5. Ld. Trial Court after hearing arguments, vide its impugned judgment dated 17.12.2019 convicted the appellant/accused U/s 279/304A IPC and vide its impugned order on sentence dated 15.02.2020, sentenced the appellant/accused to undergo simple imprisonment for a period of three months for the offence punishable U/s 279 IPC and simple imprisonment for a period of nine months for the offence punishable U/s 304A IPC and further ordered that both the sentences shall run concurrently.
6. Feeling aggrieved, appellant/accused challenged the aforesaid impugned judgment and order on sentence of the Ld. Trial Court by filing the present appeal on several grounds.
7. I have carefully perused the case record and have heard arguments advanced by ld Addl. PP for the state as well as by ld. Counsel for the appellant/accused.
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8. The appellant/accused Mukesh in the present case is charged for the offence U/s 279/304A IPC on the facts that on 17.09.2015 at 7.15 PM on road, opposite Govt. Senior Secondary School, Sector17A, Dwarka, he drove the motorcycle bearing No. RZ14 KS 4563 rashly and negligently, due to which it collided with one pedestrian namely Sunil and caused his death not amounting to culpable homicide.
9. Section 279/304A are reproduced below for reference:
"Section 279. 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 which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
Section 304A. Causing death by negligence :
304A. Causing death by negligence --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."
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10. To prove the case against the appellant/accused the prosecution was obliged to prove the following ingredients: That the accused was driving the offending motorcycle; in a rash or negligent manner;
the motorcycle collided with the pedestrian; caused death of Sunil death was direct consequence of the rash or negligent driving.
11. The Hon'ble Supreme Court has defined rashness/negligence as in Mohammed Aynuddin @ Miyan Vs State of Andhra Pradesh, 2000 AIR (SC) 2511. It has been held that: "a rash act is primarily an over hasty act. It is opposed to a 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".
12. The criminal machinery in the present case was set into motion by the PCR call, which was recorded vide DD No.39 A dated 17.09.2015, PS Dwarka North, wherein it was recorded that "Dwarka Sector17A Sarvahit DDA Flat Mukesh Vs. State CA No. 136/2020 Page 5 of 11 Accident Plus Serious Injured. Ph. No.9650768012". Interestingly, the first informer of the incident has not been examined as a witness.
13. In the testimony before the court, PW1 Mukesh Rai stated that someone called the police. Though it is stated by PW3 Arvind Kumar that he has made the call to 100 number from his mobile 9810446205, however, there is no PCR call on the record to substantiate this fact. It is not shown, who was the first informer of the accident and why he was not cited as a witness.
14. On receiving the aforesaid DD, IO had reached the spot but he could not find any eyewitness and while leaving Ct. Josh Kumar at the spot, the IO went to the hospital from where he collected the MLC and accused was produced by the PCR staff. Thereafter, he came back to the spot alongwith the accused, but still he could not find any eyewitness of the incident.
15. As per the prosecution case, the statements of eyewitnesses i.e. PW1 Mukesh Rai, PW2 Sudhir Kumar, PW3 Arvind Kumar & PW4 Ranjan Kumar were recorded on the same day of incident i.e. on 17.09.2015. However, in the testimony PW1 to PW4 had clearly admitted that they did not met the IO on the day of incident and that their statements were Mukesh Vs. State CA No. 136/2020 Page 6 of 11 recorded on the next day. This is a serious and material contradiction in the prosecution case, which creates a serious dent on the prosecution story.
16. The eyewitnesses have claimed that they were present on the place of incident, however, it has not been explained why the witnesses could not be found by the IO on the day of incident and why their statements were not recorded on the same day. In the testimony, PW4 stated that he remained at the spot even after about 40 minutes, after the PCR took the injured to the hospital. It is not explained as to why the witness could not be found by the IO when he reached the spot after receiving the PCR call at 7.40 PM.
17. In the present case, the prosecution had examined four eye witnesses PW1 to PW4 to prove the complicity of the accused in the commission of present offence. PW1 to PW3 stated that the motorcycle was driven at very high speed, while PW4 stated that motorcycle was driven at high speed and in zigzag manner. PW1 to PW3 did not state about the driving in zigzag manner. It is well settled and has been observed in plethora of judgments that driving a vehicle at high speed is not perse rash & negligent. The Hon'ble High Court of Delhi in Abdul Subhan Vs. State (NCT of Delhi) 2007 (4) JCC 3148 observed that :
Mukesh Vs. State CA No. 136/2020 Page 7 of 11 "Merely because the truck was being driven at high speed, does not be speak of either negligence or rashness by itself".
18. The vehicles are meant to be driven at a high speed. The concept of high speed is also a matter of perception. What is high speed for one person, may not be high speed for another. Thus, what may be rash & negligent for one, may not be rash & negligent for another. Speed alone cannot be the criteria for deciding rash or negligence on the part of the driver. None of the witnesses have deposed the exact manner in which the vehicle was driven, which could render the act of the accused as rash & negligent. The only coherent statement, which comes out from the testimonies of the eyewitnesses is that the accused was driving the motorcycle at a very high speed. It has not been shown that the accused was driving the motorcycle in drunken condition or in the wrong lane or flouting any rules or violating any conditions.
19. PW1 is stated to be belonging to the nearby village as of the deceased, PW2 is the real brother of the deceased, PW3 is the cousin brother of the deceased and PW4 is stated to be the friend of deceased and also a resident of the nearby village as of the deceased. Given the closeness of the deceased with the said eyewitnesses PW1 to PW4, it is not understandable if the said eyewitnesses were present at the spot of accident, Mukesh Vs. State CA No. 136/2020 Page 8 of 11 why none of them, being the real brother, cousin, friend of the deceased, accompanied with the deceased to the hospital when he was taken by the PCR from the spot of accident. It is also not understandable why none of these eyewitnesses did not met the IO at the spot or at the hospital on the day of incident. It is also interesting to note that PW1 stated that he cannot identify the accused, during his testimony in the court. If he was present at the spot, there is no reason for him to not identify the accused.
20. PW1 to PW4 are apparently interested witnesses. FIR is not recorded on the statement of any of the said eyewitnesses. Their statements were admittedly recorded on the next day of the accident. The presence of PW1 to PW4 at the spot is doubtful. No independent eyewitness has been examined by the prosecution. Even the identity of the first informer has not been disclosed and has not been cited as a witness in the present case. The testimonies of PW1 to PW4 suffers contradictions and discrepancies. The rashness or negligence on the part of accused cannot be presumed. It is the duty of the prosecution to prove it beyond reasonable doubt. Any benefit of doubt must go in favour of the accused. It is not in dispute that the deceased has lost his life due to the impugned accident by the motorcycle, which was driven by the accused but merely these facts are insufficient to convict the accused Mukesh Vs. State CA No. 136/2020 Page 9 of 11 as rashness and negligence on the part of accused in driving the motorcycle must be proved by the prosecution.
21. The Ld. Trial Court has heavily relied upon the testimonies of PW1 to PW4, who are apparently interested witnesses and whose testimonies suffers from material contradictions and discrepancies. The Ld. Trial Court has erroneously applied the legal maxim "res ipsa loquitor" i.e. the things speaks for themselves, to the facts of the present case. The aforesaid maxim can no doubt be applied to the accident cases provided that the facts are such, which points to only one conclusion i.e. the guilt of the accused and nothingelse. For example dashing a person from behind by the vehicle. In the present case, the facts are that the victim was crossing the road while he was hit by the motorcycle, in such case the applicability of res ipsa loquitor is inappropriate.
22. If a person suddenly crosses the road, it may not be possible for a driver of vehicle to save the accident even though he may be driving properly or at slow speed. Just because the accident is caused, the driver cannot be held to be rash and negligent. The Hon'ble Supreme Court of India in Mahadev Hari Lokre Vs. The State of Maharashtra, AIR 1972 SC 221 has observed:
Mukesh Vs. State CA No. 136/2020 Page 10 of 11 "If a person suddenly crosses the road, the bus driver, however, slowly, he 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".
23. For the forgoing reasons, the impugned judgment and order on sentence dated 17.12.2019 & 15.02.2020 respectively of the Ld. Trial Court are setaside. Present appeal, filed by the appellant/accused Mukesh, is accordingly allowed. The appellant/accused is acquitted of the charges punishable U/s 279/304A IPC. The appellant/accused is directed to file the bail bonds U/s 437A Cr.P.C.
Pronounced in open court on this 19th day of May, 2022 (SUSHIL ANUJ TYAGI) Additional Sessions Judge, Fast Track Special Court (RC) South West District:
Dwarka Courts:New Delhi.
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