Delhi District Court
State vs . Shailender @ Sheelu on 6 October, 2022
IN THE COURT OF MS. MEENA CHAUHAN
METROPOLITAN MAGISTRATE -08 (CENTRAL)
TIS HAZARI COURTS : DELHI
JUDGMENT
FIR No. 90/10 PS : Kamla Market U/s 279/304A IPC State vs. Shailender @ Sheelu Date of Institution of case: 03.12.2010 Date when Judgment reserved: 15.09.2022 Date on which Judgment pronounced:06.10.2022 A. Case No. : 288184/16 B. Date of Institution of Case : 03.12.2010 C. Date of Commission of Offence : 27.07.2010 D. Name of the complainant : Baiju Jha E. Name of the Accused & his : Shailender @ Sheelu S/o Rambir Singh R/o Village Ghotala, Tehsil Bhogaon, PS Bebal, District Mainpuri, UP.
F. Offence complained of : U/s 279/304A IPC G. Plea of the Accused : Pleaded not guilty H. Final order : Acquittal I. Date of such order : 06.10.2022 Brief statement of reasons for decision of the case: State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 1/29
1. The case of prosecution in brief is that on 27.07.2010 at about 08.15 pm, in front of Shop No.225, at Road Kamla Market, Delhi, you were found driving TATA Turbo bearing registration No. DL-1LE-2986, in a rash and negligent manner so as to endanger human life and safety and hit against a pedestrian namely Sarvesh Kumar as a result caused death of pedestrian and thereby committing an offence punishable u/s 279/304A of Indian Penal Code, 1860 (hereinafter called as IPC).
2. Upon conclusion of investigation, a final report was filed before the court on 03.12.2010 against the accused. Cognizance of offence punishable u/s 279/304A IPC was taken. Upon summoning, the accused appeared and copies of charge sheet were supplied to the accused in compliance of Section 207 of The Code of Criminal Procedure, 1973 (hereinafter called as Cr.P.C). Thereafter, notice for offence punishable u/s 279/304A IPC was framed against the accused on 06.09.2011 to which he pleaded not guilty and opted for trial.
3. Thereafter, the prosecution was given the opportunity to substantiate the allegations against the accused persons. The prosecution examined 11(eleven) witnesses in support of its case:
PW-1 Baiju Jha is the complainant as well as the only eyewitness in the present case. PW-1 deposed in his examination-in-chief that on the day of incident, at about 8.15-8.30 pm, after his duty hours, he was going to his office and when he reached outside shop no.35, Kamla Market and he was waiting for his friend, one TATA Turbo no. DL-1LE-2986 was found stationed and articles were loaded on the same. PW-1 correctly identified the accused. He deposed that the accused started TATA Turbo and drove the same in a fast speed and in a rash and negligent manner State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 2/29 towards Asaf Ali Road and struck against one pedestrian who was having a milk container due to which the pedestrian fell down near a tree and received injuries on his head and chest. He further deposed that the accused tried to flee away, however, he apprehended the accused at the spot and informed the police at 100 number, on which police reached the spot and the injured was taken to hospital. He handed over the accused to police, his statement which is Ex.PW1/A was recorded and police prepared a site plan which is Ex.PW1/B. He further deposed that the offending vehicle TATA Turbo was taken into police possession vide seizure memo which is Ex.PW1/C and the accused was arrested and personally searched vide memos which are Ex.PW1/D and Ex.PW1/E respectively. Four photographs of the spot kept on judicial record were shown to the witness, which he correctly identified as Mark A (colly). He has correctly identified the photographs of offending vehicle Ex.P-2.
During cross-examination of the witness by Ld. Counsel for the accused, PW-1 stated that police had recorded his statement and he had not made any written complaint. He stated that someone had called the police and after half an hour police reached the spot and had recorded his statement at the spot. He does not remember whether the police recorded the statement of any other person or not. He admitted that some public persons gathered at the spot. However, he does not remember whether police had made any witness among them or not. He remained at the spot for about 30 to 45 minutes. Voluntarily, he stated that thereafter, he left for PS. He remained at PS for about one hour. He further stated that the deceased was not his relative and not known to him prior to the incident. He denied the State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 3/29 suggestion that the accused was not present at the spot and was not driving the offending vehicle at the relevant time. Police had not told him that the real driver of the above said offending vehicle was Anishu Rehman. Police had made inquiries at the spot as well as at the police station. He does not know whether police had recorded any statement of any statement of any witness at the police station but his supplementary statement was recorded at the PS. He denied the suggestion that the accused was trying to flee away along with other public persons and he had apprehended the accused. Voluntarily, he stated that he had apprehended the accused from the driver side of the above said offending vehicle. He denied the suggestion that he apprehended the accused from the driver side of the above said offending vehicle. He stated that he does not remember whether police had sent any documents which were prepared at the spot to PS or not and whether some documents were handed over by any police official to the IO at the spot or not. Police had recorded his statement at the spot but he does not remember how many documents were prepared at the spot. Police had not called him at PS after this incident. His friend had not come at the spot. He does not know whether police had made the owner of shop no.35 a witness or not. He denied the suggestion that the accused was driving the offending vehicle in a rash and negligent manner. He further denied the suggestion that the accused was falsely implicated in the present case by him. He had seen the key installed in the offending vehicle. He does not remember whether police had taken into possession the above-mentioned key or not. He denied the suggestion that there was no key installed in the offending vehicle. He further denied the suggestion that the offending vehicle was being driven by some Anishu Rehman and he was having the key of the said offending State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 4/29 vehicle and that he is deposing falsely.
4. PW-2 Nazakat Ali has deposed in his examination-in-chief that he was registered owner of the offending vehicle bearing no. DL-1LE-2986. During investigation, notice u/s 133 MV Act Ex.PW2/A was served upon him by the IO and he gave reply Ex.PW2/B of the same. He came to know that the accused had caused the accident and the accused was apprehended at the spot. PW-2 correctly identified the accused. He deposed that he had deputed Anis-Ul-Rehman as driver on the above said TATA 709. He received the said vehicle on superdari vide superdarinama Ex.PW2/C. He has correctly identified the offending truck Ex.P-1 and the photographs of offending vehicle Ex.P-2.PW-2 Nazakat Ali has deposed that he was registered owner of the offending vehicle bearing no. DL-1LE-2986. During investigation, notice u/s 133 MV Act Ex.PW2/A was served upon him by the IO and he gave reply Ex.PW2/B of the same. He came to know that the accused had caused the accident and the accused was apprehended at the spot. He had deputed Anis-Ul-Rehman as driver on the above said TATA 709. He received the said vehicle on superdari vide superdarinama Ex.PW2/C. PW-2 correctly identified the offending truck Ex.P-1 and the photographs of offending vehicle Ex.P-2.
During cross-examination of the witness by Ld. Counsel for the accused, PW-2 admitted that Anishul Rehman was his driver. He further admitted that he had moved an application under order 1 rule 10 CPC thereby, praying for the impleading of Anishul Rehman in the array of the defendant in Ld. MACT Court. He denied the suggestion that in his above said application he had submitted before State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 5/29 the court that Anishul Rehman had caused an accident while driving the offending vehicle. He admitted that Shailender was working as a builty clerk at Shriram Transport at the time of the incident. He denied the suggestion that accused Shailender was not driving the vehicle at the time of incident or that he is deposing falsely to save his driver Anishul Rehman.
During re-examination of the witness by Ld. APP for the state, PW-2 stated that Anishul Rehman was the driver of the offending vehicle, however, he came to know that at the time of accident accused Shailender took the offending vehicle and caused the accident.
5. PW-3 Devender Kumar has deposed in his examination-in-chief that on 28.07.2010, he mechanically inspected vehicle TATA 709 tempo bearing No. DL- 1LE-2986 on the request of IO and during inspection, he found that it was fit for a road test. He gave his report which is Ex.PW3/A. During cross-examination of the witness by Ld. Counsel for the accused, PW-3 stated that IO had recorded his statement and he had not told the IO about his experience and grade. He has inspected the above said offending vehicle at the PS. He had not taken any photographs of the said vehicle. He denied the suggestion that he had made a present inspection report falsely and fabricated at the instance of IO.
6. PW-4 Anis-Ul-Rahman has deposed in his examination-in-chief that on 27.07.2010, he was having a truck TATA Turbo 709 bearing registration no. DL- 1LE-2986 which belongs to Nazakat Ali. At about 8.00 pm, he came to shop State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 6/29 no.226 for the purpose of loading goods and parked the same in front of Shop no.226. He left the keys in his car and told the transporter that he is going for dinner and will be back within a few minutes. He came back after having dinner within 30-45 minutes and found that his truck met with an accident and on enquiry, it was found that the accused took the truck without his consent and committed the accident, due to which, a death was caused. He has correctly identified the accused. PW-4 correctly identified the photographs of the place of incident Mark A(colly) and the photographs of the truck.
During cross-examination by Ld. APP for the state after seeking due permission from the court, PW-4 admitted that he stated to the police official that accused Shailender was working at shop no.226. He denied the suggestion that he stated to the police officials that he told accused Shailender that he left the keys of the said truck in the truck itself and he can move the truck in case need arises (Confronted with statement u/s 161 Cr.P.C dated 27.07.2010 Mark X, wherein it is so recorded from point A to A1).
During cross-examination of the witness by Ld. Counsel for the accused, PW-4 was the driver of the vehicle of Nazakat Ali. He denied the suggestion that he moved an application before Ld. MACT court stating that the accident took place due to his negligence. He admitted that Mark A1 bears his signature at point A. He denied the suggestion that the accident was caused due to his negligence and to evade his liability he named Shailender @Sheelu falsely in the present case and he is deposing falsely.
State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 7/29
7. PW-5 HC Ravi has deposed in his examination-in-chief that on 27.07.2010, on receiving DD no.28A, he along with SI Ajay Singh went to Shop No.225, Cooler Market, Kamla Market where they met complainant who informed them about an accident and complainant handed over the accused to them stating that the accused had caused an accident with his TATA Turbo bearing no. DL-1E-2986. PW-5 correctly identified the accused. The said TATA Turbo was already there on the spot. SI Ajay Singh was sent to JLN Hospital, leaving him behind at the spot along with the complainant and accused. After sometime, SI Ajay Singh came back to the spot along with MLC of the injured and recorded the statement of the complainant. He handed over rukka to him for registration of FIR. He left the spot at about 10.30 pm for registration of FIR and registered the present case. He came back to the spot and handed over the original rukka and printed a copy of FIR to SI Ajay. Thereafter, SI Ajay seized the said TATA Turbo truck and the documents vide memo Ex.PW1/C and Ex.PW5/A respectively. Accused was arrested and personally searched vide memos Ex.PW1/D and Ex.PW1/E respectively. SI Ajay Singh asked the accused to produce DL of accused but the accused stated that he is not possessing any DL nor ever get it prepared. He correctly identified the photographs of the place of incident Mark A having coolers and some blood spatter lying on the floor and the photographs Ex.P-2 of the truck.
During cross-examination of the witness by Ld. Counsel for the accused, PW-5 stated that the call was of 08.35 pm. I do not remember the time at which they reached the spot. At the spot we met one Baiju. Public persons were also present at the spot. He remained at the spot for quite a time, at least three hours. Rukka was State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 8/29 sent at about 10.30 pm. The spot was at a distance of about 200-300 meters from the police station. He deposed that he did not remember whether IO had made any other witness from the spot and the time at which he returned to the spot. He would have come after half an hour or 45 minutes. He did not remember how much time remained at the spot after returning therein. Documents were prepared by the IO after his return, he prepared arrest memo etc. of the accused and seizure memo etc. of the vehicle. Said documents were prepared in his presence. He did not remember the time at which he finally left the spot. He stated that he must have remained for at least one hour at the spot. He stated that he cannot comment on the suggestion that Baiju has falsely implicated the accused in the present case and that accused was merely an employee at a premises near the spot and was merely worked as marker on the goods and accused was merely running from the spot as other people were also running and that Baiju implicate the accused just on the basis of his presence near the spot. He denied the suggestion that IO did not join any other independent public witness deliberately and that the accused has been falsely implicated in the present at the instance of Baiju. The IO recorded his statement u/s 161 Cr.P.C. but he did not remember the place where it was recorded. IO left for JLN hospital in his presence but do not remember the time. He returned from the hospital to the spot but do not remember the time after which he returned. He denied the suggestion that he is unable to tell the FIR No. 90/10 said facts because all the proceedings were done in the police station only and no investigation was conducted at the spot. He further denied that he himself and IO did not conduct the property investigation and that he is deposing falsely.
State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 9/29
8. PW-6 SI Mahender Singh has deposed in his examination-in-chief that on 27.07.2010, a PCR call was received that an accident in front of shop no.225, Kamla Market and a truck ran over a man on footpath. The said information was reduced by him in writing in daily diary register vide DD no. 28A Ex.PW6/A. The copy of said DD entry was handed over to SI Ajay Singh who departed to spot alongwith Ct. Ravi. He has further deposed that on the same day, at about 10.40 pm, he received a rukka through Ct. Ravi sent by PSI Ajay Singh. After that he made an endorsement on the rukka Ex.PW6/B. He registered the present FIR and after registration of the same, he handed over the printout of FIR and original rukka to Ct. Ravi for handing over to PSI Ajay Singh. The same is Ex.PW6/C. He had issued the certificate u/s 65B Evidence Act Ex.PW6/D regarding the registration of FIR through computer. Cross-examination of the witness is NIL despite an opportunity being given to the accused.
9. PW-7 Dr. Sanjay Kumar has deposed in his examination-in-chief that 27.07.2010, injured Sarvesh s/o Sita Ram Mandal brought with the history of road accident injury and he was medically examined vide MLC No. 10692 dated 27.07.2010. The MLC Ex.PW7/A was prepared by Dr. Kumar Nishant who was working as Junior Resident under his supervision. He also signed the MLC at point A.Cross-examination of the witness is NIL despite an opportunity being given to the accused.
10. PW-8 Dr. C. Behera has deposed in his examination-in-chief that on 28.07.2010, at about 2.45 pm, the postmortem was conducted on the body of deceased Sarvesh Kumar by Dr. Garudadhri G. V. under his supervision. Dr. Garudadhri G. V. has prepared the postmortem report Ex.PW8/A which is in his State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 10/29 handwriting and bears the signature at point A. He had also signed the postmortem report bearing his signature at point B. He identified the handwriting and signature of Dr. Garudadhri G. V. on a postmortem report as he had worked with him. The injuries were found on the body of the deceased as mentioned in column no.9. The cause of death was hemorrhagic shock consequent to multiple injuries mentioned in the postmortem report caused by blunt force which are possible in vehicular accidents. Cross-examination of the witness is NIL despite an opportunity being given to the accused.
11. PW-9 SI Shri Kishan has deposed in his examination-in-chief that on 28.07.2010, the case file was marked to him for further investigation. He has further deposed that on 28.07.2010, he got mechanically inspected the offending vehicle bearing no. DL-1LE-2986 vide request Ex.PW9/A. He collected the mechanical inspection report Ex.PW3/A. He also served notice u/s 133 MV Act Ex.PW/B upon the registered owner namely Nazakat Ali of the aforesaid offending vehicle. Nazakat Ali replied Ex.PW2/B to the notice u/s 133 MV Act and disclosed that he had handed over the aforesaid vehicle to one Sh. Anis-Ur-Rahman who had parked the aforesaid vehicle in the market near PS Kamla Market and he went to take a meal. Sh. Nazakat Ali also disclosed that the accused had driven the aforesaid vehicle without his permission as well as without the permission of Anis- Ur-Rahman. He also served notice u/s 160 and 175 CrPC Ex.PW9/C to Anish-Ur- Rahman. Sh. Anish-Ur-Rahman replied to his notice Mark PW9/A. Sh. Anish-Ur- Rahman had said that he had parked the aforesaid vehicle near Green Transport, Kamla Market and he went to take a meal. Sh. Anish-Ur-Rahman also said that when he came back, he found that Shailender caused the accident by the aforesaid State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 11/29 vehicle as he had been driving the said vehicle in his absence. During investigation, it was found that the accused was not having any DL at the time of alleged accident. The documents of the aforementioned offending vehicle were verified.
During cross-examination of the witness by Ld. Counsel for the accused, PW-9 stated that he had given the notice u/s. 133 M.V.Act to its owner on 27.07.10. The mechanical inspection of the vehicle was carried out at PS Kamla Market. The owner of the vehicle had replied to the notice u/s. 133 M.V.Act that Anis ul Rehman was the driver of the vehicle on the day of incident. Thereafter, he had given the notice u/s. 160/175 Cr.PC to Anish Ur Rehman and he replied that at the time of incident he was having dinner at Hotel at Kamla Market after parking the tempo. He did not inquire with the owner of the Hotel regarding the fact that Anis Ur Rehman was taking dinner at his Hotel. The key of the vehicle was not lying in the vehicle at the time of mechanical inspection. He did not measure the height of Anis Ur Rehman. He denied the suggestion that a false mechanical inspection report was prepared at his instance and he had not properly investigated the case.
12. PW-10 Shri Vipin Kumar has deposed in his examination-in-chief that the deceased Sarvesh Kumar was his elder brother, who died in a road accident. He further deposed that on 28.07.2010 he had identified the dead body of deceased Sarvesh Kumar at the mortuary and he received the dead body. He further deposed that his statement to the police in this regard which is Ex. PW10/A, bearing his signature at point A. The receipt of the dead body is Ex. PW10/B, bearing his signature at point A. Cross-examination of the witness is NIL despite an State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 12/29 opportunity being given to the accused.
13. PW-11(inadvertently mentioned as PW-10, however as per record witness is examined as PW-11) SI Ajay Singh has deposed in his examination-in- chief that on 27.07.2010, on receiving DD no.28A Ex.PW6/A regarding the accident in front of Shop No.225, Cooler Market, Kamla Market, thereafter, he along with Ct. Ravi reached at the spot and found one person namely Baiju Jha who made the call at 100 number met him and he produced the accused as driver of the offending vehicle i.e. TATA Turbo bearing no. DL-1LE-2986 which was lying at the spot in accidental condition. PW-11 correctly identified the accused. He informed him that the injured had been taken to the JLN Hospital by PCR Van. He left Ct. Ravi at the spot and proceeded to the hospital. He collected the MLC of the injured and he was declared unfit for making the statement. No other eyewitnesses were present in the hospital. Thereafter, he came to the spot. He recorded the statement of Baiju Jha Ex.PW1/A. He prepared rukka Ex.PW10/A and handed over the same to Ct. Ravi for registration of FIR. He went to the PS. After registration of FIR, he came back at the spot and handed over the rukka and copy of FIR to him. He prepared site plan Ex.PW1/B at the instance of the complainant. He had taken the photographs of the vehicles at the spot of his own mobile phone. Thereafter, he seized the said TATA Turbo truck and the documents which were lying in the tempo vide memo Ex.PW1/C and Ex.PW5/A respectively. One person namely Mohd. Anesh came to the spot and he disclosed himself as the driver of the tempo and he stated that he left the tempo in front of shop no.225 and asked you to see the tempo. The accused was arrested and personally searched vide memos Ex.PW1/D and Ex.PW1/E respectively. Thereafter, in the night, he received DD no.3A State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 13/29 regarding the death of injured at the hospital. Thereafter, he alongwith Ct. Ravi reached LNJP Hospital and the dead body was sent to the mortuary of MAMC for postmortem. The relatives of the deceased came in the mortuary and they identified the dead body vide their identification statement Ex.PW10/A. After the postmortem, the dead body handed over to the relatives vide handing over memo Ex.PW10/B. PW-11 identified the photographs of vehicle Ex.P-2 as the same was taken into possession from the spot.
During cross-examination of the witness by Ld. Counsel for the accused, PW-11 stated that the distance between the PS and spot is about 200-300 meters. He went to the spot on foot and reached the spot at about 8.40 PM. 10-15 persons were collected at the spot. He asked those persons to join the proceedings but they refused. No written notice was given to those persons. During the enquiry, complainant Baiju told him that he made a call on the number 100. He went to LNJP Hospital on TSR. He stated that he did not mention in my report that went to Hospital in TSR. He reached the hospital at about 9.15 PM. Anish Ur Rehman came to the spot at about 11.45 PM and remained at the hospital for 15 minutes. Firstly, he recorded the statement of the complainant and prepared the rukka. remained at the spot till midnight. He did not measure the height of Anis Ul Rehman. He clicked the photographs from his mobile phone but he did not remember the make of my mobile phone. Presently, he has not saved the photographs in his mobile phone. No certificate of 65-B Evidence Act regarding this placed on file. He did not remember whether the key of the vehicle was lying in the vehicle or not. He denied the suggestion that the investigation was not State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 14/29 conducted properly or that the actual driver, who drove the vehicle was Anish Ul Rehman and the accused Shailender was caught at the spot due to the misconception and confusion of height and falsely implicated in the present case and that he is deposing falsely.
14. The prosecution evidence was closed on 25.03.2019 and the statement of the accused was recorded under Section 313 read with section 281 of Cr.P.C on 22.10.2019, wherein he pleaded his innocence and stated to have been falsely implicated. The accused has opted to lead defence evidence. Accused has examined two witnesses in his defence.
15. DW-1 Shailender @ Sheelu(accused himself after seeking permission u/s 315 Cr.P.C) has deposed that he was working as a builty clerk in those days. On the day of incident i.e. 27.07.2010 at about 08:15 pm he along with his Sr. Builty Clerk Pawan Yadav was having dinner. He heard loud screams coming from the road. Thereafter, he went to the spot and saw one vehicle TATA 407 in an accidental position and one person lying down on the road in blooded condition. Thereafter, the mob apprehended him. People were saying that he is the culprit. He pleaded to the mob that he is not a driver and he does not even know how to drive. Thereafter, police came at the spot and took him to the PS. During cross-examination by Ld. APP for the state, DW-1 stated that he was having my dinner at Shop No. 226, Kamla Market, Delhi. He was working as a Builty Clerk at Shree Ram Transport Company. He did not have any ID card of said company. Anish ul Rehman used to sit with me on a regular evening at Shree Ram Transport Company but on the day of the incident he was not having dinner State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 15/29 with him. Anis-ur-Rehman worked as a Driver for the said company. He had not made any complaint regarding false implication in the present case to any authority. He denide the suggestion that he had not made a complaint because the accident was committed by him. He admitted that he was apprehended by Baiju Jha. he denied the suggestion that BaijuJha informed the police on 100 no. Voluntarily, he stated that he is not aware who made the call. He denied the suggestion that Anis-ul-Rehman left the keys of the offending vehicle inside the vehicle and he started the offending vehicle without the consent of Anis-ur- Rehman and caused the accident in which one pedestrian died, that is why Baiju Jha caught hold of him. He further denied the suggestion that the said accident was caused due to his negligence and fast speed of the vehicle. Voluntarily, he stated he did not know how to drive and he did not have any DL. He denied the suggestion that because He did not know how to drive that is why he could not control the offending vehicle and caused the accident. Voluntarily, he stated he was not driving the vehicle at that time. He denied the suggestion that he is deposing falsely to save himself from the punishment.
16. DW-2 Pawan Yadav has deposed that he is working as Transport Incharge in Mount Litera School situated at Etawah and also working as a part time journalist in Jai Jawan Kissan news portal, News 24. He worked as Sr. Builty Incharge at Shop No 226, Kamla Market, in Shriram Transport from 2007 to 2011. On the day of the incident, he along-with the accused was having dinner at Dhaba in front of shop no 226. Thereafter, he heard some loud noise and hearing the same, the accused rushed towards the place of incident and the mob caught hold of State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 16/29 the accused. Thereafter, police came at the spot and took the accused with them.
During cross-examination by Ld. APP for the state, DW-2 stated that the distance between the place of incident and the dhaba where he was sitting is approx 20-25 feets. He admitted that after hearing the loud noise he was sitting at the same dhaba and he had not left my position. After 2 to 3 minutes he went to the spot and saw that the accused was caught hold by the mob. He stated that he never visited the PS and did not give any statement to police. He came to court today on the instruction of the accused. Ld. APP has pointed towards the hand of the witness. On the hand with blue ink following his written "Anis-ur-Rehman". It was put to him why he wrote this name on his hand, to which he answered that he was confused with the name of Anis-ur-Rehman. He denied the suggestion that he had written the name of Anis-ur-Rehman as he wanted to falsely implicate him as an accused. He further denied that he had taken this name at the instance of the accused or that he knew him prior to the incident being his colleague. He has not seen the accident taking place. Witness is asked many times whether he had seen the accident with his own eyes or not, to which the witness replied some time yes and some time no. It was put to the witness who caused this accident, to which he answered that Anis-ur- Rehman caused this accident. It was put to the witness who told him that Anis-ur- Rehman caused the accident, to which he answered that Public persons told him however, he did not know the name of public persons. He stated that he mentioned to the Police that Anis-ur-Rehman caused this accident. Perhaps the Police had also recorded his statement to this fact. He did not have any copy of that statement. He denied the suggestion that he never visited the PS and disclosed the name of Anis-
State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 17/29 ur-Rehman as he caused the accident. He further denied that he is giving this statement to save the accused from the punishment and that he is deposing falsely.
17. Final arguments were heard at length. I have heard the submissions made by the Learned APP for state and Learned Counsel for accused and carefully perused the evidence and the documents on record. At the time of final arguments it is submitted by Ld. APP for the State that prosecution has proved its case beyond reasonable doubts and all the ingredients of the relevant section are completed. Learned counsel for the accused has submitted that the accused has been falsely implicated in the present case. He submitted that the accused was a mere spectator and was not driving the offending vehicle in the question. He further submitted that the accused has been implicated in the present case due to collusion of the owner and actual driver of the said vehicle in question to save the real culprit. He also submitted that the accused was implicated in the present case due to misunderstanding of appearance by the people at the spot who caught the accused instead of the actual driver.
18. I have cogitated over the submissions made by ld. APP for the state and Ld. Counsel for the accused. At this juncture, it is prudent to discuss the penal provisions involved in the case for arriving at just a decision. The penal provisions are reproduced in verbatim:-.
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 term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 18/29 Section 304-A 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.
19. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
a). That the accused was the person driving the offending vehicle at the relevant point of time.
b). That the accused drove the same in a rash and negligent manner.
c). That death of the victim (in case of Section 304-A of IPC) was the direct and proximate cause of the injuries suffered by way of rash and negligent driving of the accused. (Death of the victim/ deceased is an admitted fact in the present case).
20. While the first ingredient needs to be established beyond reasonable doubt with the aid of eye-witnesses and circumstantial evidence, and the third ingredient needs to be proved by medical evidence; it is the second ingredient which requires interpretation and explanation. This second requirement for proving the guilt of the accused is that the death or grievous hurt had been caused as the accused was driving the vehicle in a rash and negligent manner. Before proceeding further, let us discuss the meaning of the expressions 'rash' and 'negligent'. These words i.e 'rash' and 'negligent', have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 19/29
21. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstance out of which the charge has arisen it was the imperative duty of the accused person to have Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case."
22. It has been held in Bhala Chand Waman Rao Pathe Vs. State of Maharashtra (SC 1964), that there is a difference between a rash act and a negligent act. Criminal negligence is the gross and culpable, neglect or failure to exercise reasonable and proper care and to guard against injury, either to the public generally, or to an individual in a particular, which, having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The imputability arises from the 'neglect of the civic duty of circumspection'. On the other hand, culpable rashness is acting with the consciousness that the mischievous effects will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him, and if he had exercised caution, he would have had the consciousness that illegal consequences may follow, but continues with the act in a vain hope that they will State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 20/29 not, and often, with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from 'acting despite the consciousness'.
23. It has been held by Hon'ble Supreme Court of India in Ratna Shalvam Vs. State of Karnataka (2007 3 SCC 474) that Section 304 A of IPC applies to cases where there is no intention to cause death, and no knowledge that the act done, in all probability, will cause death. This provision is directed at offences outside the range of Section 299 and 300 of IPC. The provision applies only to such acts which are rash and negligent, and are the direct cause of death of another person. Negligence and rashness are essential elements U/s 304-A IPC. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider to be sufficient, considering all the circumstances of the case.
24. In the present case, the accused Shailender @ Sheelu has been charged for driving a vehicle TATA Turbo bearing registration No. DL-1LE-2986 in a rash and negligent manner so as to endanger human life and personal safety of others, and so as to strike against one person Sh. Sarvesh Kumar (deceased) and to have caused his death on 28.07.2010, at about 12:40 AM at Lok Nayak Hospital, JLN Marg, Delhi.
25. For avoiding the repetition of evidence and overburdening of the court records, all points of determination are being analyzed and determined simultaneously. As per section 101 IEA, the onus of proving the points is on the prosecution. It is the cardinal principle of criminal jurisprudence i.e. presumption State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 21/29 of innocence, the prosecution has to prove the guilt of the accused beyond reasonable doubt.
26. As far as the identity of the accused as driver of the offending vehicle is concerned, the testimony of PW-1 who is the sole eye-witness has to be analyzed. The prosecution version is that the PW-4 Anis Ur Rehman was the actual driver of the offending vehicle and when he left after parking the offending vehicle in question, the accused drove the vehicle and caused this accident without the consent of the actual driver who is PW-4. PW-1, PW-2 and PW-4 supported this version of prosecution in their deposition before the court. However, there are serious contradictions, inconsistencies and contradictions in the testimonies of witnesses obfuscating the case of the prosecution rather than clarifying it.
27. Firstly, as per the contents of first complaint i.e. Ex. PW-1/A of PW-1, when the actual driver of the offending vehicle left the vehicle on the road, the accused started the said vehicle, drove it at high speed and in a rash and negligent manner and hit one pedestrian and he apprehended the accused who tried to flee away from the spot. Supporting this story he deposed as PW-1 that thereafter he called the police at 100 number. However, during his cross-examination he stated that someone had called the police, and he further made contradictory statements at one point by saying that he had not apprehended the accused while he was trying to run away and in another statement that he caught the accused from the driver side of the vehicle.
28. Secondly, PW-1 stated during his cross-examination that he had seen the keys of the cars were being installed in the following vehicle. However, he doesn't remember whether it was being seized by the police. Confusion further escalated State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 22/29 when testimony of PW-4/ actual driver is perused, as he deposed in his examination-in-chief that he left the keys in the offending vehicle at around 08.00 pm and when he came back he saw the vehicle in accidental condition. He further denied the suggestion during his cross-examination by Ld. APP for the state u/s 154 IEA that he himself told the accused to move the vehicle as and when need arises. However, he was contradicted with his statements recorded u/s 161 Cr.P.C wherein he stated that he himself has left the keys in the vehicle and told the accused to move the vehicle in case the need arose. Perusal of the complete judicial record apprised that there is no seizure memo of the keys of the offending vehicle in question. PW-10/ SI Ajay who is the investigating officer in the present case stated during his cross-examination that he is not aware whether any keys were installed in the offending vehicle. This is beyond the comprehension of this court that how the vehicle has been moved without keys and if keys were kept in the vehicle as testified by the complainant, why the IO has not made efforts to seize the same or to take that into record in seizure memo of the offending vehicle. This somehow raises the serious doubt in the story of the prosecution that whether it was the accused only who was driving the vehicle in question at a relevant point of the time.
29. Thirdly, the presence of actual driver i.e. Anish-Ul-Rehman at the spot after the accident has not been noted in the rukka or tehrir which is Ex. PW-1/A and Ex. PW-6/B respectively. Further, PW-1 the complainant has not wisherred a word about the presence of the actual driver at the spot soon after the accident as per the story of prosecution in his deposition before the court. Similar version was reflected in the testimony of PW-5/HC Ravi who reached at the spot along-with the State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 23/29 IO soon after the incident. In a complete contrast to this, PW-10/IO has deposed that the actual driver came to the spot soon after the incident and declosed his identity. Hence, in the light of these contradictory testimonies of the prosecution witnesses, it can be said with certitude that whether the actual driver has ever been present at the spot which raises a serious loophole in the version of the prosecution.
30. Foruthly, there is no proper photography or videography of the spot of the alleged incident. PW-10/IO has deposed in his examination that he has taken photographs of the spot from his own mobile phone. To utter shock to the court, he has not even exhibited those photographs in his deposition. On the other hand, PW- 1 and PW-4 have exhibited these photographs of the spot which are Mark A(colly). Hence, the maker of these photographs who has clicked it has not exhibited it or proved it as per procedural rules. Be that as it may be, a careful perusal of these photographs of the spot in the record reflects that there are no photographs of the accidental vehicle, no signs of any accidental part/ affected area. The photographs are mere/simple photos of scene, not even a single photograph of road or nearby places and they are not even annexed with any certificate u/s 65-B of Indian Evidence Act. Further, PW-10/IO stated during his cross-examination that he took the photographs from his own mobile phone, however he doesn't have the originals saved in his phone. This is the classic case of the shobby quality of investigation being done by the investigating officer specifically in accidental cases. Suffice it to say that if proper photographs have been placed on record, it would have helped this court in finding out the prevailing weather at that time, the topography of the area, the tyre skid marks, the trajectory of the vehicle and blood stains etc. enabling this court to appreciate the case of the prosecution more effectively. The standard State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 24/29 of investigation expected in a road accident case is lucidly described in the judgment of Abdul Subhan vs. State (NCT of Delhi), 2006 (4) LRC 472 (Del). Suffice to say, in the present case the quality of investigation fell well short of what was required to inculcate the accused.
31. Fifthly, the facts that no departure and arrival entries have been proved by PW-5 an PW-10, no serological examination of tyres of offending vehicle has been conducted, and no concerned entries for taking the vehicle out from the Malkhana for mechanical inspection, and depositing the same back have been recorded, further point towards serious gaps in the prosecution version of events.
32. Sixthly, the site plan prepared by the IO is nothing but a sign of shoddy investigation. In the case titled Abdul Subhan vs. State (NCT of Delhi), 2006 (4) LRC 472 (Del), the High Court of Delhi made following observations regarding the importance of site plan:
"13.1. In most cases I find that the site plans are not produced. Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the courts to examine the evidence in a much more objective manner and the courts would not be faced with vague and subjective expressions such as "high-speed."
33. In the present case, a site plan is rudimentary at best and the same does not even show the presence of street lights on the road. Even in the site plan which is State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 25/29 Ex.PW1/B, only the place where the accident had taken place has been shown. The IO has not pointed out the place where the vehicle and the rider had fallen down or the place where the deceased had fallen down, nor has he pointed out the place where the vehicle was found after the accident, which further creates doubts in the story of the prosecution.
34. Seventhly, in the case at hand, the star witness of the prosecution is PW-1 who was the sole eye witness. This witness has only made a bald statement that the accused was driving in a rash and negligent manner and at a high speed. He has not specified the manner in which the accused was driving. It was observed by the Hon'ble High court of Delhi in the case titled as "Vinod Kumar v. State" 2012(1) RCR (criminal) 567 as follows:
"No evidence or any other material was placed on record by the prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW1 the alleged eye-witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
35. In the case titled as Abdul Subhan vs State (NCT of Delhi) (supra), it was held by the Hon'ble High Court of Delhi as below, "7. .....What is meant by high speed? Were the traffic lights working or not? Why was the investigating officer not examined? Why were photographs not taken? Why is there no evidence with regard to tyre skid marks? Why was the site plan not exhibited? There are questions which remain unanswered pertaining to the State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 26/29 motorcyclist who unfortunately lost his life in this accident. Was the motorcyclist on Mathura Road? What was his direction of movement? Was he coming from Sher Shah Road and turning towards Mathura Road? Or was he on Mathura Road turning towards Sher Shah Road? What was the speed of the motorcyclist? Did the motorcyclist suddenly curve State v. Bhagwat Prasad U/s 279/304A IPC 10/13 FIR No. 976/05 PS Paschim Vihar into the path of the petitioner's truck? A host of other questions remain unanswered purely because the degree of investigation carried out is quite unsatisfactory."
36. The Hon'ble court further observed that:
"13.3 As a rule, photographs ought to be taken not only of the vehicle involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerened by courts.13.4 The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5 Furthermore the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.
13.6 ...
13. 7 Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because no criminal court would and ought not convict any person merely on the basis of conjectures, assumptions, probabilities, all elements of subjectivity need to be eliminated."
37. Further, it is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubts by leading reliable, cogent and convincing evidence. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 27/29 any, in the defence of the accused. Accused is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal. Reference may also be made to the judgment titled as Nallapati Sivaiah v. Sub Divisional Officer Guntur reported as VIII(2007) SLT 454(SC). Unless and until, the prosecution discharges this primary burden of proof, the burden never shifts upon the accused.
38. Regarding the onus of proving the ingredients of an offence, in the judgment titled as S.L.Goswami v. State of M.P reported as 1972 CRI.L.J.511(SC) the Hon'ble Supreme Court held:-
"...... In our view, the onus to proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is palpably false that burden does not become any the less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution..........................."
39. In the case at hand, the prosecution has succeeded in establishing that the vehicle bearing registration no. DL-1LE-2986 was the offending vehicle but the witnesses on which the prosecution is relying qua the identity of the driver has not supported the prosecution story. On the close reading of the testimonies of the witnesses, there is still some doubt as to the accused being the driver of the vehicle on the day of the incident. Further, there is no evidence on record to prove that the State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 28/29 accused was driving in a rash and negligent manner, except the bald statement made by PW-1. There are no photographs of the spot. The site plan is also vague and a mere formality.
40. In view of the above discussion and in light of settled legal position as per above-mentioned case laws in my opinion, the prosecution has failed to prove its case against the accused. Therefore, I would not like to delve into the analysis of defence evidence. The prosecution has failed to prove that the accused was the driver of the offending vehicle at the time of accident and he was driving in a rash and negligent manner or that the death of the pedestrian Sarvesh Kumar was caused due to the rash and negligent manner act of the accused. Thus, he is entitled to be acquitted. Accordingly, accused Shailender @ Sheelu S/o Rambir Singh is acquitted under Section 279/304-A Indian Penal Code.
41. Bail bonds u/s 437A of Cr.PC are to be furnished which would remain valid for a period of six months.
File be consigned to record room after due compliance.
Announced in the open court Digitally signed today i.e. 06th day of October 2022 MEENA by MEENA CHAUHAN CHAUHAN Date: 2022.10.06 17:49:01 +0530 (MEENA CHAUHAN) Metropolitan Magistrate-08 Central District, Tis Hazari Courts/Delhi
[This judgment contains 29 pages and each page bears the initials of undersigned and the last page bears the complete sign of undersigned.] State Vs. Shailender @ Sheelu FIR NO. 90/10 PS Kamla Market 29/29