Delhi District Court
State vs Yogesh Kumar Sharma on 31 July, 2014
1
IN THE COURT OF MR. PRITAM SINGH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE/ SOUTH EAST DISTRICT/ SAKET
COURT COMPLEX, NEW DELHI.
Unique Identification no. 02403R0272762006
Case no. RBT285/I dated 17.02.2014
FIR No. 350/04
PSBadarpur
State Vs Yogesh Kumar Sharma
JUDGEMENT
S. No. of Case : RBT285/I dated 17.02.2014
Date of Commission : 19.05.2004
of offence
Name of Complainant : Sh.Abhishek Pathak
Name and address : Yogesh Kumar Sharma
of accused S/o Sh.Om Prakash Sharma,
R/o Village & Post Office Sikri Kalan,
P.S. Modi Nagar, Distt. Ghaziabad (U.P.)
Offence Complained : U/s. 279/304A IPC
Plea of accused : Not guilty
Arguments heard : 26.07.2014
Date of judgment : 31.07.2014
Final order : Acquitted
1. In brief, the case of the prosecution is that on 19.5.2004 at about 11.00 a.m. at Bus Terminal, Badarpur Road, Badarpur Border, New Delhi, the FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 1 of 10 2 accused was driving a Bus bearing registration no. DL1PB0970 and while reversing the bus rashly and negligently, he hit against a pedestrian Abhishek Rawat, who came in between the said bus and another bus and thus, the accused had caused death of Abhishek Rawat, not amounting to culpable homicide.
2. Chargesheet was filed in the court and the accused was supplied complete set of documents. Thereafter, vide order dated 1.7.2008, charge for the offences punishable u/s 279/304A IPC was framed against upon the accused, to which, he pleaded not guilty and claimed trial.
3. In order to prove charge against the accused, the prosecution has examined 7 witnesses. SI Kedar Nath, who conducted mechanical examination of the Buses in question, was examined as PW1, Sh.Abhishek Pathak, who is the complainant, was examined as PW2, Sh.Devender Singh Rawat, who identified the dead body of the deceased, was examined as PW3, HC Ramesh Chand, who took the rukka to the P.S. and got registration of the FIR, was examined as PW4, HC Om Prakash, who was the Duty Officer, was examined as PW5, Col. Ajay Singh, who also identified the dead body of deceased, was examined as PW6 and SI Hansraj Bainsla, who is the IO, was examined as PW7. During prosecution evidence, accused admitted u/s 294 Cr.P.C. the postmortem report of the deceased as Ex.A1. The following documents were also exhibited during prosecution evidence:
(i) Mechanical inspection reports of both the buses Ex.PW1/A & B
(ii) Complaint Ex.PW2/A FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 2 of 10 3
(iii) Site Plan Ex.PW2/B
(iv) Death body identification statement of Ex.PW3/A Devender Singh Rawat.
(v) Seizure memos of both the vehicles Ex.PW4/A & B
(vi) Arrest memo of accused Ex.PW4/C
(vii) Personal search memo of accused Ex.PW4/D
(viii) Seizure memo of DL of the accused Ex.PW4/E
(ix) Copy of the FIR Ex.PW5/A
(x) Endorsement on the rukka Ex.PW5/B
(xi) Death body identification statement of Ex.PW6/A
Col. Ajay Singh.
(xii) Death certificate of the deceased Ex.PW7/A
(xiii) Rukka Ex.PW7/B
(xiv) handing over memo of dead body Ex.PW7/C
4. The statement of accused u/s 313 Cr.P.C. was recorded on 29.05.2014 wherein he denied the deposition of witnesses against him being false & interested witnesses. Accused stated that the accident was not caused by him but the driver of vehicle no.DL1PA2917 when he was reversing his vehicle. He further stated that his vehicle was in stationary position. Accused further stated that since the said driver had fled away, he (accused) was caught by public and later on falsely implicated in this case. Accused did not lead any defence evidence.
5. Final arguments heard. Record perused and considered carefully. Sections 279 and 304A IPC provide as under: FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 3 of 10 4 Section 279 IPC provides :
Rash driving or riding on a public way - Whoever drivers 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 IPC provides :
Cause 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.
6. As per the prosecution story, PW2 is the eye witness and PW7 is the IO and both of them are material witnesses and therefore, their depositions are being discussed. PW2 deposed that on 19.5.2004 at about 11.00 a.m., he was returning from stationary shop after purchasing a pen at bus terminal Badarpur border with his friend Abhishek Rawat while they were crossing the road a bus no. DL1PB0970 being driven by accused Yogesh Kumar Sharma in rash and negligent manner crushed Abhishek Rawat in between standing bus no. DL1PA2917 as he was backing the bus in rash and neglient manner. PW2 further deposed that Abhishek Rawat was shifted to hospital. Accused was apprehended at the spot. Police recorded his statement Ex.PW2/A wherein he narrated the whole incident in detail. Site plan Ex.PW2/B was also prepared at his instance. PW2 correctly identified the accused in the court. PW2 deposed in his FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 4 of 10 5 crossexamination that at that time he was studying at Rai University and was residing in hostel. There was a class in the morning which they had attended and there was another class which they had to attend on that day. The stationary shop was situated across the road and was situated about 100 feet from the spot of occurrence. They had gone together and were returning. PW2 admitted the suggestion that there was a U turn near the bus terminal. He further admitted that the bus terminal was situated in a long area and that 23 buses can simultaneously pass through the road. PW2 further deposed that one bus no. DL1P2917 was already standing and there was no passenger in it as it was standing on parking side. The bus in question was standing in wrong direction. He was ahead of Abhishek Rawat. There was no passenger in this bus also. PW2 further deposed that they were crossing through the back side of bus. The university was situated just opposite the road. PW2 denied the suggestion that they chose wrong place to cross the road as there were sufficient and long bus terminal and crossing area near the alleged spot of occurrence. The buses were not removed in his presence. They shifted Abhishek Rawat in a TSR, however, he could not tell its number. His statement was recorded at PS. He did not remember as to whether the accused Yogesh was present in the PS at that time. He had identified the accused at PS on second visit after about one hour. He was standing at PS at that time. He had signed the documents at the spot itself not at PS. He did not remember as to whether he signed any document in respect of accused. He did not remember as to whether the second bus was in the police station or not. PW2 further deposed FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 5 of 10 6 that he did not remember the exact number of the documents signed by him before the IO. The documents must be around 3. He remained in the PS at about 1520 minutes. He gave his statement on the spot and remaining documents were signed by him in police station. The remaining documents were signed by him in police station in front of Apollo Hospital. PW2 denied the suggestion that the accused was taking the Uturn and another bus while reversing cause the accident. PW2 deposed that he did not know whether the students of the university pelted stones upon the stationary buses. PW2 denied the suggestion that accident was not caused by the negligence of accused. PW2 deposed that accused took reverse his bus approximately 45 feet.
7. PW7 deposed that on 19.5.2004, he was posted as P.S. Badarpur as SI. On that day, on receipt of DD No.11A, he alognwith Ct. Ramesh reached at the spot i.e. Badarpur border bus stand. Public gathered at the spot. One public person namely Achal Srivastav handed over the accused Yogesh Kumar. He saw two buses bearing no. DL1PA2917 and DL1PB0979 there is accidental condition. PW7 further deposed that he came to know that the injured already taken to Apollo Hospital. He left Ct. Ramesh at spot and went to Apollo Hospital. The injured was brought dead. He obtained the death certificate from hospital Ex.PW7/A. He recorded the statement of eye witness Abhishek Pathak Ex.PW2/A at hospital, which bore his signature at point 'X'. He came back at the spot. PW7 further deposed that he prepared rukka Ex.PW7/B on statement of Abhishek Pathak and sent it for registration of FIR through Ct. Ramesh. He prepared site FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 6 of 10 7 plan at instance of Abhishek Ex.PW2/B, which bore his signature at point 'X'. He seized both the buses vide seizure memo Ex.PW4/A and B, which bore his signature at points 'X'. PW7 further deposed that thereafter accused was formally arrested and personally searched vide memos Ex.PW4/C and D, which bore his signatures at points 'X'. He also seized driving license of the accused vide memo Ex.PW4/E, which bore his signature at point 'X'. The said buses taken and deposited at Malkhana of P.S. Badarpur. He got the vehicles mechanically inspected by retired SI Kedar Nath vide memo Ex.PW1/A and B. After dead body identification the postmortem was got conducted and thereafter dead body was handed over to relatives of deceased vide memo Ex.PW7/C, which bore his signature at point 'X'. After completion of investigation, he filed the challan in the court. PW7 correctly identified the accused in the court. PW7 deposed in his crossexamination that he did not remember whether he had made any correction in the vehicle numbers in the statement Ex.PW2/A. The DD No.11A was received at around 11.25 a.m. He had reached at the spot in about 57 minutes on his motorcycle. PW7 admitted the suggestion that student of Rai University had broken the glass of both the buses. He had not recorded statement of driver/ conductor or any other staff of other bus no. DL1PA2917. He could not tell the name of owner of the said bus. PW7 further deposed that a lot of crowd gathered at the spot when he firstly visited the spot. However, when he came back from the hospital to spot only Anchal Srivastav was there. PW7 admitted that there was a Uturn as well as bus stop near the spot. PW7 deposed that he did not remember FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 7 of 10 8 when he went to Apollo Hospital. In the Apollo Hospital, witness Abhishek Pathak met him. He had recorded his statement in the hospital on the same day. He had not taken driver alognwith him in the hospital. He had remained in the hospital for about 3045 minutes. He reached back at the spot from hospital at around 1.30 p.m. Witness Abhishek did not receive any injury. He remained at the spot till around 3.30 p.m. PW7 further deposed that he did not remember the exact time when the accused was arrested, however, it must be around 3.00 p.m. The complainant was with him when he came back at the spot from hospital. He did not take signatures of complainant on arrest memo. He did not remember whether photographs of the spot were taken. PW7 further deposed that rukka was sent at around 1.35 p.m. Rukka alongwith FIR was received back at around 2.15 p.m. Mechanical inspection was conducted on the same day. PW7 denied the suggestion that accident was caused by bus no.DL1PA2917 and not by bus no. DL1PB0970.
8. PW2 deposed that he alongwith his friend namely Abhishek Rawat (deceased) was crossing the road and in the meantime, the accused reversed his bus due to which deceased came in between the offending bus of the accused and another standing bus. PW2 deposed in his crossexamination that they were crossing the road through the back side of the bus. As PW2 and deceased were crossing the road through backside of the offending bus, therefore, a doubt is raised that the accused was driving the bus rashly or negligently at the time of the accident, particularly when PW2 has admitted in his crossexamination that there FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 8 of 10 9 was a Uturn near the bus terminal and the bus terminal was situated in a long area. PW2 deposed that he was returning from stationary shop after purchasing a pen at bus terminal, Badarpur border, whereas, PW2 deposed in his statement Ex.PW2/A that he was going alongwith his friend Abhishek Rawat and crossing the road to go to their university. PW2 nowhere stated in his statement Ex.PW2/A that he was returning from stationary shop after purchasing a pen. PW2 deposed in his crossexamination that his statement was recorded in the police station, but again he deposed that he gave his statement on the spot and remaining documents were signed by him in the police station. It shows contradiction in the deposition of PW2. PW7/IO deposed that he recorded the statement of Abhishek Pathak (PW2) in the hospital on the same day. PW2 deposed that his statement was recorded in the police station and thereafter deposed that he gave his statement on the spot. Whereas PW7 deposed that he recorded the statement of PW2 in the hospital. This contradiction in the deposition of PW2 and PW7, who are material witnesses, has further weakened the case of the prosecution.
9. PW7 deposed that one public person namely Achal Srivastava handed over accused to him. But the said public person Achal Srivatava was not made a witness. A question arises if public person Achal Srivatava was present on the spot and also handed over the accused to the IO, then, why his statement was not recorded to this effect. It is also important to mention here that accused took the defence that the accident took place by the fault of driver of other bus and not by his fault. It is admitted that other bus no. DL1PA2917 was also present/ FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 9 of 10 10 involved in the accident and taken to the police station. But the driver of said bus was not made a witness nor his name was cited in the entire charge sheet. The question arises why his statement was not recorded when he parked his bus there. It further raises doubt in the story of the prosecution.
10. In view of the above discussions, I am of the considered view that the prosecution has failed to prove its case against the accused beyond reasonable doubts and it is well settled law that benefit of doubt always goes in favour of the accused.
11. Accordingly, accused Yogesh Kumar Sharma S/o Sh.Om Prakash Sharma is acquitted from the charge of offence u/s 279/304A IPC.
Announced in Open Court (PRITAM SINGH )
Dated: 31.07.2014 Additional Chief Metropolitan Magistrate
South East District/Saket Court Complex,
New Delhi/31.07.2014
FIR No. 350/04, P.S. Badarpur State Vs Yogesh Kumar Sharma 10 of 10