Delhi District Court
Sh. Manas vs The State on 26 March, 2018
IN THE COURT OF SURESH KUMAR GUPTA
ADDITIONAL SESSIONS JUDGE04
& SPECIAL JUDGE (NDPS) SOUTH EAST: SAKET
COURTS: NEW DELHI
CA No. 201 of 17
Sh. Manas
S/o Sh. Kuldeep Rai Basson
R/o Flat No. 48, Akanksha Apartments
Plot No. B9/12, Sector62, Noida, UP ........ Appellant
Vs.
The State .......... Respondent
(NCT of Delhi) Instituted on : 16.05.2017 Argued on : 09.03.2018 Decided on : 26.03.2018 J U D G M E N T 1 The appellant has impugned the judgment dated 29.3.2017 vide which he is convicted u/s 279/304A IPC and order on Manas v. The State - CA No. 60/17 Page No.1 of22 sentence dated 24.4.2017 vide which he is sentenced to undergo SI for 3 months u/s 279 IPC and SI for 1 year with fine of Rs. 5000/ u/s 304A IPC and in default of payment of fine to undergo SI for 3 months. Both the sentences shall run concurrently. 2 The appeal is filed on the grounds that the alleged accident has taken place on DND Fly Over. There is heavy flow of traffic on the fly over. No public person has been examined by the prosecution. The deceased was reckless, rash and negligent and died due to his own negligence. The negligence cannot be attributed to the appellant who was driving the vehicle in a safe manner. There is only a bald allegation against the appellant that he was driving the vehicle in a rash and negligent manner without explaining how he was rash or negligent. There is nothing on the record how and in which manner appellant was driving the offending vehicle. There was curve ahead where appellant was driving the vehicle so it cannot be said by any stretch of Manas v. The State - CA No. 60/17 Page No.2 of22 imagination that he was driving the vehicle in a high speed. There are material contradictions in the testimony of witnesses. The case is based upon the testimony of PW1 and 3 who are interested witnesses. There is no evidence on record to show that accident has taken place due to his rash and negligent driving. Hence, this appeal.
3 Notice of appeal is given to the state.
4 The facts of the case are like this. Ajay Kumar gave a statement to the police that he is driver of Bolero Pick up No. DL1LP2249. Arjun Singh is helper in the vehicle. On 4.3.2014 at 5.15pm he was driving the vehicle No. DL1LP2249. Arjun was sitting with him. There were going back to Greater Noida from Sarai Kale Khan. He stopped the vehicle at Public Utility situated in between Pole Divider No. 7879 on the road going towards Greater Noida side and eased himself. Arjun Singh was coming back from across the road after talking to Gurpreet Singh, Manas v. The State - CA No. 60/17 Page No.3 of22 Factory Manager. One white Scorpio car bearing No. UP80CP 0080 came from Noida side towards Delhi and reached in front of Public Utility in a high speed and in a rash and negligent manner and hit against Arjun Singh who fell down on the road. The driver of the Scorpio also stopped the vehicle at a little distance. The driver disclosed his name as Manas who was present thereafter the accident. Someone informed the police. Ambulance of DND reached on the spot. He accompanied Arjun Singh to AIIMS Trauma Centre in the ambulance. The deceased was admitted to hospital. The accident has taken place due to rash and negligent driving of the appellant. His statement was recorded by the police which led to registration of case. After usual investigation, charge sheet u/s 279/304A IPC was filed in the court of trial. 5 Notice of accusation for the offence u/s 279/304A IPC was framed against the appellant who pleaded not guilty and claimed trial.
Manas v. The State - CA No. 60/17 Page No.4 of22 6 Prosecution has examined 6 witnesses. Appellant has admitted FIR, MLC and PMR of the deceased Ex. PA1 to A3. U/s 294 CrPC. The appellant was examined u/s 313 Cr.PC wherein he has taken the defence that he was coming from Noida to Delhi. A speeding red colour WagonR car hit a person who fell on the bonnet of his car. He stopped his vehicle and came to know that Ajay is with the injured. He is actually a witness to the accident and not an accused. However, he has not led any evidence.
7 Ld. Trial court after hearing the Ld. APP, Ld. Defence Counsel and perusing the record has convicted and sentenced the appellant.
8 The prosecution has examined 6 witnesses.
9 PW1 Ajay Kumar stated that he is driver by profession. On 4.3.2014 he was driving the vehicle No. DL1LP2249. Arjun was sitting with him. They were going to Greater Noida from Manas v. The State - CA No. 60/17 Page No.5 of22 Sarai Kale Kkhan. He stopped his vehicle at 5.515 pm in front of Public Utility, Sarai Kale Khan, DND Road. He parked his vehicle on one side of the road and went to attend the call of nature. Arjun Singh went to the other side of the road to attend the call of nature. Arjun Singh was coming back after attending the call of nature towards him. One Scorpio car bearing No. UP 80CP0080 came from Noida side towards Delhi in a high speed and in a rash and negligent manner and hit against Arjun Singh near the verge of divider who fell down at a distance of 30 ft. from the vehicle and sustained multiple injuries. He went near the injured. The wind screen of the Scorpio was damaged. The appellant stopped his vehicle. He saw him on the spot. Someone informed the police. PCR van reached on the spot. Ambulance of DND also reached on the spot. He accompanied Arjun Singh to AIIMS Trauma Centre in the ambulance. The deceased was admitted to hospital and declared dead. The speed of the Manas v. The State - CA No. 60/17 Page No.6 of22 offending vehicle was 100 KMPH. On the next day the postmortem on the body of deceased was conducted on the next day. His statement Ex. PW1/A was recorded in the hospital by the IO. He came back to the spot with the IO where site plan was prepared at his instance. The Scorpio car was taken into possession vide Fard Ex. PW1/B. The appellant was arrested whose personal search and arrest memos Ex. PW1/C and D were prepared. During crossexamination he admitted that deceased has suddenly ran towards him from the other side of the road without seeing the traffic on the road. He admitted that there is a curve near the spot. IO prepared the site plan at his instance but did not show him after its preparation. The height of centre verge is 2 ft. Bushes are also on the central verge. He was standing at a distance of 100 meter from the spot. The appellant has fled from the spot. The speed of the offending vehicle was 4050 KMPH. 10 PW2 Sunil Kumar and PW4 Surgriv Singh have identified Manas v. The State - CA No. 60/17 Page No.7 of22 and received the dead body of deceased.
11 PW5 T U Sisdiqui has conducted the mechanical inspection of Scorpio and issued the report Ex. PW5/A. 12 PW3 Gurpreet Singh stated that he is Manager with Chaudhary Cheese Bazar, Greater Noida, UP. Arjun is working as helper with Mahinder Balero No. DL1LP2249. In the month of March, 2014 deceased alongwith driver of the vehicle was coming back after supplying cheese at Delhi. They reached before Toll Tax Plaza, DND Fly Over and parked their vehicle on one side of the road. He was going from Greater Noida to Delhi. He was on the other side of the road and parked his vehicle in order to talk to driver of Bolero Car. The phone of driver was busy. Deceased has talked with him. The deceased was going towards his vehicle which was parked on the other side of the road. The deceased reached at the middle driver of the road where one Scorpio came from Greater Noida side and hit against Manas v. The State - CA No. 60/17 Page No.8 of22 deceased. The ambulance of DND Fly over removed deceased alongwith Ajay to AIIMS Trauma Centre. He did not see the driver of offending vehicle. He was declared hostile and cross examined by Ld. PP for the State. During cross examination he stated that he did not tell to police that driver of Scorpio car was driving the vehilce in a rash and negligent manner, he has stopped the offending vehicle, Scorpio was taken into possession in his presence or appellant was arrested in his presence. He is confronted with portion A to C1 of his statement where it is so recorded.
13 PW ASI JawaharLal is IO of the case. He stated that on 4.3.2014 DD No.14A Ex. PW6/A was received by him upon which he alongwith Ct. Lokesh went in front of Public utility, DND Fly Over where appellant was found present. PCR van was also there. He came to know that injured has already been removed to hospital. Bolero car No. DL1LP2249was parked on Manas v. The State - CA No. 60/17 Page No.9 of22 the other side of the road. He interrogated the appellant. The photographs were taken from the official camera. He went to AIIMS Trauma Centre by leaving Ct. at the spot where injured was found admitted to hospital who was unfit for statement. The driver of Bolero car was present in the hospital. Gurpreet was also present there. He recorded statement of Ajay and came back to spot with him where he identified the spot and appellant. He prepared rukka Ex. PW6/B and sent to PS through Ct. Lokesh for registration of FIR. Ct. came back with copy of FIR and rukka. The documents and offending vehicle were taken into possession vide memos Ex. PW1/B and PW6/C. Site plan Ex. PW6/D was prepared at the instance of Ajay. The appellant was arrested whose personal search and arrest memos Ex. PW1/C and D were prepared. Appellant was admitted to bail.
14 On 5.3.2014 at 1.45pm he received a message vide DD No. 55B Ex. PW6/E that injured has expired. He alongwtih Ct. Manas v. The State - CA No. 60/17 Page No.10 of22 Pramod went to Mortuary, AIIMS where inquest report was prepared. The Postmortem was got conducted and dead body after postmortem was handed over to his relatives. Vehicle was got mechanically examined. Statements u/s 161 CrPC were recorded. He has identified the photographs Ex. P16 of the vehicle and of the spot. During crossexamination he stated that he did not take signature of Ajay on site plan. He did not take signature of Gurpreet on the arrest memo. The suggestion is denied that Gurpreet was not present on the spot. 15 Ld. Counsel for the appellant submitted that accident has taken place at DND Fly Over which is a pedestrian free fly over. He further submitted that accident has taken place at a curve where speed cannot be high. He further submitted that even otherwise high speed is no criteria to determine the rashness or negligence on the part of appellant. He further submitted that there is nothing on the record that how the appellant was rash or Manas v. The State - CA No. 60/17 Page No.11 of22 negligent. He further submitted that accident has taken place due to negligence of deceased who was crossing the road in pedestrian free zone without bothering about the traffic on road and hit against his vehicle so in such circumstances no negligence can be attributed to the appellant. He has placed reliance on Bal Kishan v. State 2008 (105) DRJ 379, Rajesh Kumarv State 2012 SCC Online, Delhi 2068. Vinod Kumar v. State, 2011 SCC Online 4347, Mahadeo Hari Lokre v. State of Maharashtra, (1972) 4 SCC 758, State of Karnataka v Satish, (1998) 8 SCC 493, Ram Chander v. State, Crl. Revision Petition No. 686/2017 decided on 16.11.2017 by our own Hon'ble High Court, Syed Akbar v. State of Karnataka, (1980) 1 SCC 30.
16 Ld. Addl. PP for the State submitted that it is the duty of the person behind the vehicles to be vigilant about the pedestrians on the road. He further submitted that appellant cannot take shelter under the fact that DND Fly Over is a pedestrian free Manas v. The State - CA No. 60/17 Page No.12 of22 zone. He further submitted that appellant was driving the offending vehicle in a high speed and in a negligent manner and hit against the deceased who fell at a distance of 30 ft from the vehicle which itself signifies his rashness. He further submitted that rash and negligent driving on the part of the appellant is discernible from the entire evidence on record. 17 Heard and perused the record.
18 Section 279 IPC says that person must be driving the vehicle in a rash or negligent manner.
19 To bring a case within the ambit of section 304A IPC, the prosecution has to show that (a) there must be death of a person in question; (b) the accused must have caused the death; (c) such act of the accused was rash or negligent and it did not amount to culpable homicide.
20 In Vinod Kumar v. State, (supra) it was held by the Lordship that prosecution has to prove that accused was rash and Manas v. The State - CA No. 60/17 Page No.13 of22 negligent while driving the vehicle in order to bring the case within the purview of section 279/304A IPC. 21 In State of Karnataka v. Satish, (supra), it was held by the Lordship that mere driving of truck in a high speed did not lead to inference of rash or negligent driving. Support is also drawn from Abdul Subhan v. State of NCT of Delhi, ILR (2006) II Delhi 882; State of Karnataka V. Satish, (supra), Rajinder Singh v. State, 2012 SCC Online, Delhi 3694; Gurcharan Singh v. State of HP, 1989 SCC Online HP 18 and Ram Chander v. State, (supra). 22 In Mahadeo Hari Lokre v. State of Maharashra, (supra) it was held by the Lordship that if a person suddenly crosses the road, the bus driver howsoever slowly he may be driving, may not be in a position to save the accident and therefore it will not be possible to hold that bus driver was negligent. 23 The submissions of the parties have to be considered in the light of the law laid down by Hon'ble Apex Court as well as Manas v. The State - CA No. 60/17 Page No.14 of22 Hon'ble High Court.
24 The prosecution has examined 6 witnesses. PW1 Ajay and PW3 Gurpreet are the eye witnesses. PW1 is also the complainant.
25 The evidence on the file shows that appellant was driving the offending vehicle. PW1 was driving the Bolero pick up No. DL1LP2249. Deceased was with PW1 as a helper. PW1 has stopped the vehicle at public utility, DND Road, Sarai Kale Khan. PW1 was present near the place of occurrence. He has accompanied the deceased to the hospital in the ambulance. MLC shows that deceased was brought in gasping condition by his relative. No question or suggestion is put to PW1 that he was not present on the spot. No question is put to PW6 that PW1 was not present on the spot. There is nothing on record to show that PW1 was not present on the spot.
26 The defence of the appellant is that one WagonR car hit the Manas v. The State - CA No. 60/17 Page No.15 of22 deceased who fell on the bonnet of his car. The defence is without any merits as no such question or suggestion is put to any of the witnesses by the appellant. The defence has not come on record meaning thereby that his defence is an after thought which does inspire confidence.
27 PW3 is an eye witness. He has not identified the appellant and did not depose about the number of offending vehicle. He was declared hostile and cross examined at length by the prosecution but prosecution has failed to shatter him to this effect. 28 His testimony shows that deceased alongwith Ajay was coming to Greater Noida from Delhi and parked their vehicle before Toll Plaza, DND Fly Over. He was going from Greater Noida to Delhi and reached on the opposite side of the road where he parked his vehicle. He tried to contact the driver of Bolero but phone was engaged. The deceased came to him after crossing the road who went back after talking to him. The Manas v. The State - CA No. 60/17 Page No.16 of22 deceased was hit by the offending vehicle in the middle of the road. To my mind, PW3 is not an eye witness. PW1 has nowhere deposed that deceased has left the car for meeting to PW3 who is standing across the road. His testimony shows that he has gone to attend the call of nature across the road whereas he has stopped the vehicle in front of public utility. Further, PW3 failed to contact PW1 as his phone was engaged. PW3 did not talk to the deceased before he allegedly came to meet him on the other side of the DND road. PW3 has failed to depose how he came to know that PW1 and deceased have started at a particular time from Delhi and stopped their vehicle in front of Public Utility on DND road at the place of accident. There is nothing in his testimony that he was well aware that PW1 and deceased have stopped their vehicle at Public Utility. There is nothing in the testimony how he happens to be at the place of occurrence and came to know about the presence of PW1 and deceased at the place i.e. at public Manas v. The State - CA No. 60/17 Page No.17 of22 utility where PW1 has parked his vehicle. To my mind, he is not an eye witness and his testimony that he has witnessed the accident does not inspire confidence.
29 The testimony of PW1 shows that he has stopped the vehicle in front of toilet, DND Road, Sarai Kale Khan. The deceased was with him who alighted from the vehicle and went to other side of road to attend the call of nature. This statement was not given by him to the police in his statement Ex. PW1/A. The statement Ex. PW1/A shows that deceased went across the road to talk to Gurpreet Singh, Factory Manager. He has introduced a new story which is not set up by the prosecution. The prosecution should have clarified this fact but this was not done for the reasons best known to the prosecution.
30 The accident has taken place on the DND road going from Noida to Delhi. The testimony of PW1 shows that offending vehicle came from Noida side to Delhi in a high speed and in a Manas v. The State - CA No. 60/17 Page No.18 of22 rash and negligent manner and hit against the deceased near verge of the divider.
31 PW1 is not clear about the speed of the offending vehicle. His examination in chief shows that the speed of the offending vehicle was 100KMPH whereas his crossexamination shows that the speed was 4050KMPH. He is not consistent about the speed of the offending vehicle. The prosecution should have re examined him about the approximate speed of the offending vehicle which was not done. The approximate speed of the offending vehicle has not come on record. Moreover, offending vehicle was running on the DND Road. The speed of even 70 80KMPH on this road is not an excessive speed. Moreover, it has been held in a catena of judgments that high speed is no criteria to determine the rashness or negligence on the part of appellant. 32 There is a bald testimony of PW1 that appellant was driving the vehicle in a rash and negligent manner. He has not clarified Manas v. The State - CA No. 60/17 Page No.19 of22 how the appellant was rash or negligent. The photograph Ex. P16 do not show the skid marks on the road. The site plan Ex. PW6/D does not show that skid marks of the tyre of the offending car were noted down on a particular spot. There is nothing in the testimony of PW1 that how the appellant was rash or negligent in driving the offending vehicle. The rashness or negligence cannot be presumed merely on the score that deceased has fallen at a distance of 30ft from the place of accident.
33 The site plan shows that accident has taken place near the divider of DND Road. The DND Road is a busy road which connects Delhi to Noida. The deceased was crossing the road. DND Fly Over is a pedestrian free zone. The crossexamination of PW1 shows that deceased has suddenly ran towards him from other side of the road without seeing the traffic on the road. The deceased himself was negligent while crossing the road. The criminality is not to be presumed merely on the basis of accident. Manas v. The State - CA No. 60/17 Page No.20 of22 There is high movement of the traffic on DND road. The deceased has crossed the road without taking care of the traffic on the road. In such circumstances, it is not possible to save the accident even if vehicle is in low speed. The appellant cannot be said to be negligent.
34 There is no other evidence on record to show the manner in which appellant was driving the vehicle to prove rashness or negligence on his part. The bald testimony of PW1 that appellant was driving the offending vehicle in a rash and negligent manner is not enough to prove the guilt of the appellant. 35 The essential ingredients to constitute the offence under section 279/304A IPC are missing. The prosecution has failed to prove its case beyond shadow of reasonable doubt. 36 Ld. Trial Court has not properly appreciated the evidence on record. I find an infirmity in the judgment dated 29.3.2017 of ld. Trial Court.
Manas v. The State - CA No. 60/17 Page No.21 of22 37 The appeal is allowed. The judgment dated is29.3.2017 convicting the appellant is set aside. The appellant is acquitted of the offence for which he is convicted.
38 TCR alongwith copy of judgment copy of the judgment be sent to the Ld. Trial Court.
39 Appeal file be consigned to record room.
announced in the
open court on
26th March, 2018 (SURESH KUMAR GUPTA)
Addl. Sessions Judge04 & Spl. Judge (NDPS)
South East, New Delhi
Manas v. The State - CA No. 60/17 Page No.22 of22