Delhi District Court
State vs . Rajesh Kumar Date Of Institution ... on 28 April, 2012
IN THE COURT OF COLETTE RASHMI KUJUR:
METROPOLITAN MAGISTRATE:06 SOUTH EAST DISTRICT,
SAKET COURTS, NEW DELHI
STATE Vs. Rajesh Kumar Date of Institution 17.02.2001
FIR No. 293/2000 Judgment pronounced 28.04.2012
on
PS Sarita Vihar
Under 279/304A IPC
Section
JUDGMENT
a) Sr. No. of the case 417/03
b) Date of offence 20.08.2000
c) Name of the complainant Shyam Mukhiya s/o Sh. Rati Mukhiya
r/o village Lalgan, PS Bihra, Post
Sahrsa, Bihar also at, Swami ka
Makan, Aali Vihar, New Delhi.
d) Name & address of the accused Rajesh Kumar s/o Sh. Nageshwar
Singh r/o Vill Katihar, Mohalla
Sindhtola, PS and Distt. Katihar, also
at, Om Prakash ka quarter No.4, Aali
Vihar, New Delhi.
e) The offence complained of 279/304A IPC.
f) Plea of accused Pleaded not guilty
g) The final order Conviction
h) Date of order 28.04.12
State Vs Rajesh Kumar, FIR No. 293/00 1/7
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The accused Rajesh Kumar is alleged to have committed the offences punishable U/s 279/304 A IPC. The notice qua the above offences was served on the accused to which he pleaded not guilty and claimed trial.
2. The present case is based on FIR No. 293/2000, U/s 279/304A IPC, PS Sarita Vihar registered upon the complaint of Sh. Shyam Mukhiya.
3. It is the case of the prosecution that the accused while driving Bus no. DL-1P-6046 in a rash and negligent manner at Ali road Gaon, within the jurisdiction of Sarita Vihar at about 9:00 PM, on 20.08.2000, hit against a pedestrian namely Masterji thereby causing his death.
4. To prove its case the prosecution first examined the eye witness namely Shyam Mukhiya. According to PW1 he earns his livelihood by selling juice in a Rehri and was returning to his house along with the deceased at about 9:00pm on 20.08.2000. when they were at some distance from ali mod a bus bearing no. DL-1P- 6046 suddenly came from behind and hit Masterji. The deceased fell on the spot and lost his consciousness. He and the accused then took Masterji to the hospital where the doctor declared him brought dead. The witness was able to identify the accused correctly in the court.
5. The witness further deposed that he had informed the police of the accident who came and recorded his statement. The witness has categorically stated that , "at the time of accident accused was driving the bus at high speed and in rash and negligent matter due to that reason he hit the masterji and caused his death." The witness then pointed the site to the police who prepared the site plan. During the cross examination the witness clarified that masterji was walking behind State Vs Rajesh Kumar, FIR No. 293/00 2/7 him and the bus also came from behind. According to him he saw the bus after the accident. He stated that the accused had been blowing the horn and he saw him coming at a very fast speed. He has reiterated that the accused was driving the bus a very rash and negligent manner. The witness denied the suggestion that he was intoxicated or that he was walking in the middle of the road.
6. Other witnesses to be examined were police witnesses who have deposed as to the procedure followed by them after receiving the information of the accident.
7. PW-2 Laxman Singh has identified the dead body of the deceased Ganesh Mukhiya @ Masterji and has proved the memo of dead body Ex. PW-2/B.
8. PW-3 Vijender Singh is the registered owner of bus no. DL-1P-6046. According to him accused Rajesh Kumar was driving the bus on 20.08.2000. He had got the bus released vide superdarinam vide Ex. PW-3/A.
9. According to Ct. Hari Ram who is PW-4, he had reached the spot with SI Raj Singh where he found the bus as above mentioned in an accidental condition. When he had reached there he found out that the injured persons had already been taken to Holy Family Hospital. Ct. Jitender came at the spot with another DD regarding death of injured after which the IO went to the hospital and came back to the spot and handed over the rukka for registration of FIR. The IO seized the bus vide seizure memo Ex. PW-4/A. The accused was arrested vide Ex. PW-4/B and personal search was conducted vide Ex. PW-4/C. The driving license of the accused was also seized vide seizure memo Ex. PW-4/D. The bus State Vs Rajesh Kumar, FIR No. 293/00 3/7 was deposited in the malkhana. The witness was able to correctly identify the accused in the court. During his cross examination he could not remember as to who told the IO regarding the admission of the injured in Holy Family Hospital. He also could not remember whether any other person accompanied the IO or not.
10. According to Raj Anand PW-5 who is the AE, MCD Auto workshop, no fresh damages were found on the bus, his report was Ex. PW-5/A.
11. The next prosecution witness to be examined was Dinesh Kumar record clerk AIIMS who proved the PM report which is Ex. PW-6/A.
12. PW-7 Raj Singh has supported the statement of Ct. Hari Ram. The witness has deposed giving the entire procedure followed by him on that date. According to whom he had met the eye witness Shyam Mukhiya and the accused in the Hospital. During his cross examination, he clarified that he had recorded the statement in the hospital. He also stated that no public persons were willing to join the investigation therefore, none of the statements have been recorded. He further stated about his lack of knowledge about the number of the buses owned by the owner of the offending bus. He denied the suggestion that the offending vehicle was not driven by the accused. Thereafter prosecution evidence was closed and matter fixed for SA.
13. The accused has denied the circumstances put to him while recording his statements u/s 313 Cr.P.C. It was stated by him that the deceased was intoxicated and suddenly came in front of the bus. According to him the bus was at a normal speed, he tried to apply the brake but failed to do so. The accused had denied all the evidence and did not wish to lead any defence evidence. Thereafter final arguments were heard.
State Vs Rajesh Kumar, FIR No. 293/00 4/714. It is argued by the counsel for the accused that the accident occurred at about 9:00 pm and it was late in the night, according to the statement of PW-1 he was walking ahead of deceased therefore he did not see the accident happening. The witness has categorically stated that, "I saw the bus after the accident." As per the defence counsel both the eye witness and the deceased were in an inebriated condition and the road was crowded area. The accident occurred due to the fault of the deceased who had suddenly come in front of the bus. It is stated that despite the area being a crowded one no other person except Shyam Mukhiya has been examined. It is argued by the counsel that the prosecution case has several loopholes which point to be innocence of the accused.
15. However, the Ld. APP has stated that there are no contradictions in the statements of the witnesses. Shyam Mukhiya has been able to identify the accused and is the eye witness of the accident. Even as per PW-3 who is owner of the bus the accused had caused the accident as he was driving the bus on that date. Even according to PW-7 the accused was present along with the eye witness at the hospital which is in consonance with the version of eye witness Shyam Mukhiya.
16. It is argued that the prosecution has fully proved its case and, therefore the accused be convicted for the offence charged.
17. A complete assessment of the facts show that there is no dispute as to the fact of accident and there is sufficient evidence on record to justify reasonable conclusion regarding the occurrence of the accident and the death of the Masterji.
18. However to indict the accused in the present case, there ought to be State Vs Rajesh Kumar, FIR No. 293/00 5/7 sufficient evidence to link him to the occurrence. Which fact, has been proved by PW-1 as well as other police witnesses and the owner of the offending bus. PW 3 who is the registered owner of the bus has categorically stated that Rajesh Kumar who is present in the court today was driving the vehicle on 20.08.2000.
19. In order to constitute an offence under section 304A IPC death must have been caused by the petitioner while doing and act in a rash and negligent manner. In Girish Singh v. State of Uttaranchal [2008(3) R.C.R (criminal) 58] the supreme Court has held that rashness and negligence are essential elements in section 304-A IPC. In Lalit Kumar v. Union of India and another [1991 (1) Cur.L.J 490] Himachal Pradesh High Court held that there must be positive proof that the rash and negligent act of the accused was the proximate cause of the death of the deceased.
20. There is sufficient evidence to suggest that the accused is guilty of the offence charged against him. As per the witness Shyam Mukhiya the bus had come from behind and hit the deceased thereby causing the accident which resulted in the death of Masterji. During the cross examination the witness has furthered his deposition by stating that the accused was driving the bus in a zig zag manner and was negligent while driving the vehicle. It is also stated by him that the accused was blowing his horn and driving the bus at a high speed. It can be therefore inferred that the accused was blowing the horn of the bus but not patient or careful enough to allow the people on foot to give way. The purpose of horn is not only to warn and signal to other people on the road but also to make way. The purpose is however defeated when the driver does not allow time for pedestrians and vehicles on road to move from its way. The accused had knowledge that the deceased was in his way State Vs Rajesh Kumar, FIR No. 293/00 6/7 and that his act could cause the death of a person yet he continued to drive at high speed. The driver/ accused has pointedly been without any care towards the pedestrian /deceased in the present case.
21. The prosecution has established the identity of the accused who rashly caused the accident dated 20/08/2000 and caused death of Ganeshi @ Masterji.
22. The accused is therefore convicted of the charge framed U/s 279/304- A IPC. I now proceed to hear on the aspect of sentence.
Announced in open Court.
Delhi Dated the 28/04/12 COLETTE RASHMI KUJUR Metropolitan Magistrate -06,Saket New Delhi.
State Vs Rajesh Kumar, FIR No. 293/00 7/7