Delhi District Court
State vs . Jitender Singh on 27 June, 2013
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No.110/1999
P.S. Defence Colony
U/s 279/304A IPC
STATE VS. JITENDER SINGH
JUDGMENT :
a. Sl. No. of the case : 190/02
b. Date of Institution : 15.10.1999
c. Date of Commission of Offence : 28.01.1999
d. Name of the complainant : Ct. Dinesh Kumar
PS Defence Colony
e. Name of the accused and his : Jitender Singh
parentage and address S/o Bundhi Singh Bhatia
R/o Village Sakipur, POTilpatta,
PS Surajpur, Distt. Gautam Budh
Nagar, U.P.
f. Offence complained of : U/s 279/304A IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 27.06.2013
i. Final Order : Acquitted
j. Date of such order : 27.06.2013
1. The accused in this case was sent up for trial for the commission of
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PS DEFENCE COLONY
offence u/s 279/304A IPC.
2. The facts in brief as per the prosecution story are that on 28.01.1999, the complainant namely Ct. Dinesh Kumar was on patrolling duty at Yusuf Sarai red light, TPoint. At about 10.00 p.m., accused came in a bus bearing no. DL1PA2726 from the side of AIIMS hospital while driving the same at a very high speed and in a rash and negligent manner and hit against a scooter bearing no. DL9SO4479 and caused the death of scooterist namely Vijay. In the meantime, somebody called the police. PCR van also reached the spot and took the injured to the hospital where he was declared brought dead by the doctor concerned. Police reached the spot and recorded the statement of Ct. Dinesh Kumar. During investigation, accused was arrested and after completing other formal investigation the challan was presented before the court for trial.
3. The accused appeared in the court and he was informed of the substance of the allegation against him, vide notice dated 11.05.2000, u/s. 279/304A IPC to which he did not plead guilty and claim trial.
4. To prove its case, the prosecution has examined nine witnesses i.e. Avtar Singh as PW1, HC Kartar Singh as PW2, Retd. SI Nand Lal Dua as PW3, Ct. Mahabir as PW4, Ct. Jagbir Singh as PW5, Ct.
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Satpal as PW6, HC Rohtas Singh as PW7, HC Ravinder Singh as PW8 and Prem Kumar as PW8(a).
5. PW1 Avtar Singh has testified that on 30.01.1999, he received the dead body of his brother/deceased Vijay from hospital after postmortem and his statement to this effect was recorded vide Ex. PW1/A. Accused did not prefer to cross examine PW1.
6. PW2 HC Kartar Singh has testified that on 29.01.1999, on receipt of rukka, he recorded the present case FIR which is Ex. PW2/A. Accused did not prefer to cross examine PW2 also.
7. PW3 Retd. SI Nand Lal Dua has testified that on 30.01.1999, he had conducted the mechanical inspection of scooter no. DL9SO4479 and bus bearing no. DL1PA2726 vide reports Ex. PW3/A and PW3/B respectively.
Accused did not prefer to cross examine PW3 also.
8. PW4 Ct. Mahabir has testified that on 28.01.1999, he along with Ct. Dinesh Kumar was on duty on Omni motorcycle in the area of Yusuf Sarai. At about 10.00 p.m., one bus bearing no. DL1PA2726 being driven by the accused present in the court, in a rash and negligent manner, came from the side of AIIMS hospital and hit FIR NO. 110/99 PAGE 3 OF PAGE 10 PS DEFENCE COLONY against a scooter bearing no. DL9SO4479 at the red light Yusuf Sarai TPoint which was in a stationary condition and dragged the scooterist for a distance of 1520 metres towards Mahindra Hospital. Thereafter he along with Ct. Dinesh reached there and accused present in the court was overpowered who was under the influence of some intoxication at that time. PW1 further testified that some of the public persons informed the PCR who reached there and shifted the scooterist in AIIMS hospital and who was unconscious. PW1 further testified that ASI Champa Lal came at the spot along with Ct. Jagbir and recorded the statement of Ct. Dinesh and got the case registered through Ct. Satpal. PW1 further testified that IO took into possession the bus and scooter vide memos Ex. PW4/A and 4/B. Accused was arrested and his personal search was conducted vide memos Ex. PW4/C and 4/C1. DL of accused was also seized vide memo Ex. PW4/D. Accused did not prefer to cross examine PW4 also.
9. PW5 Ct. Jagbir has testified that on 28.01.1999, on receipt of DD no. 31, he along with ASI Champa Lal reached the spot i.e. at Yusuf Sarai Red Light where they found that one bus bearing no. DL1PA2627 and a scooter bearing no. DL9SO44 were lying in an accidental condition. PW5 further testified that Ct. Dinesh and Mahabir alsomet at the spot along with driver of the offending bus namely Jitender Kumar present in the court. In the meantime, Ct.
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Satpal also came there and handed over DD no.33. IO recorded the statement of Ct. Dinesh and prepared rukka. He took the same to PS and after the registration of case, he came back at the spot and handed over the copy of FIR and original rukka to the IO. PW5 further testified that IO seized the offending bus vide memo Ex. PW4/A and the scooter vide memo Ex. PW4/B. IO arrested the accused vide memo Ex. PW4/C1 and conducted his personal search vide memo Ex. PW4/C. IO seized the DL of accused vide memo Ex. W4/D.
10. PW6 Ct. Satpal has testified that on 28.01.1999, Ct. Ravinder had handed over to him DD no.33 to give the same to ASI Champa lal at the spot at Yusuf Sarai Market, TPoint red light. He reached there and handed over the same to the IO. IO recorded his statement.
11. PW7 Rohtas Singh has testified that he is the Superdar of the vehicle bearing no. DL1PA2726 and he got the same released on superdari vide superdarinama Ex. PW7/A. PW7 further testified that he had replied the notice u/s 133 M.V. Act which is Ex. PW7/B. PW7 further testified that the driver of the said bus was Jitender Singh present in the court.
Accused did not prefer to cross examine PW7.
12. PW8 HC Ravinder Singh has testified that on 28.01.1999, at around FIR NO. 110/99 PAGE 5 OF PAGE 10 PS DEFENCE COLONY 10.20 p.m., on receipt of call regarding an accident, he reduced the said call into DD no. 31 and handed over the same to IO/ASI Champa Lal who along with Ct. Jagbir went to the spot. PW8 further testified that at around 11.00 p.m., again a call was received regarding an accident which was already intimated vide the said DD. The said call was reduced into DD no.33 and the same was sent through Ct. Satpal to ASI Champa Lal at the spot. The copy of the said two DD entries are Mark Y and Mark Y1.
Accused did not prefer to cross examine PW8 also.
13. PW8(a) Prem Kumar brought the copy of the PM report which was prepared by Dr. B. Swain and the said PM report is Ex. PW8/A. Accused did not prefer to cross examine PW(8a) also.
14. After closing of prosecution evidence, statement of accused was recorded U/s 281 r/w section 313 Cr.P.C. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case. Accused has further denied to lead any evidence in his defence.
15. I have heard the Ld. APP for the State and Ld. Counsel for the accused and also perused the record.
16. The accused has been charged with the offence u/s 279 and 304A of FIR NO. 110/99 PAGE 6 OF PAGE 10 PS DEFENCE COLONY IPC. The combined reading of these sections would show that a rash or negligent act is one of the essential ingredients which is required to be proved by the prosecution to establish the charge. While section 279 IPC renders punishable an act of rash or negligent driving which is dangerous to human life or limb, the same act would attract punishment u/s 304A IPC if indeed it results into death of some person.
17. The case was registered on the basis of the statement of Constable Dinesh Kumar who had witnessed the occurrence of the accident. Nonetheless, the prosecution has not examined the said witness. Prosecution has examined PW4 Const. Mahabir as an eye witness. In his testimony, PW4 has unequivocally stated that the Investigating Officer of the case recorded the statement of Const. Dinesh. He has not stated anything about the recording of his statement by the IO. Even in the charge sheet, there is no mention about the fact if IO ever recorded the statement of PW4 during investigation. The prosecutor has cross examined PW4 to elicit complete facts of the case, but even he has not questioned him about the recording of his statement by IO during investigation. It follows that IO did not record the statement of PW4 during investigation. PW5, who was associated with the IO in the investigation, has also testified that IO recorded the statement of Constable Dinesh. He has also deposed about recording of his own FIR NO. 110/99 PAGE 7 OF PAGE 10 PS DEFENCE COLONY statement by the IO. But he, too, has said nothing about the recording of the statement of PW4 by the IO. This renders the veracity of the testimony of PW4 very doubtful, especially when the Investigating Officer of the case has not been examined as a witness to clear the position.
18. In any case, PW4 is the witness on whose evidence depended the prosecution case. Having seen the accident taking place, he was in a position to describe as to how the act of the accused was rash or negligent. The Supreme Court in Mohammad Aynuddin vs. State (AIR 2000 SC 2511) has defined a rash act as an overhasty act done without due care and caution. The criminality of a rash act lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Again, in Balchandra vs State (AIR 1968 SC 1319), negligence has been held to be the 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 man would not do. PW4, in his testimony in this case has stated that the offending vehicle, being driven by the accused in a rash or negligent manner, hit against the scooter of the deceased which was standing at the red light and dragged it to a distance of 15 to 20 meters. He has also deposed that the accused appeared to be under the influence of liquor at the time of accident.
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19. However, merely mentioning that the driving was rash or negligent is not sufficient to establish the element of negligence or rashness, unless the witness further describes as to how the driving was rash or negligent. The manner in which the vehicle was being driven must be narrated by the witness. There is nothing in the evidence of PW4 to indicate that accused was overhasty or he did not act with due care and caution. Seriousness of an accident cannot be an instrument to measure the grossness of rashness or negligence. It is for the prosecution to bring on record the material to establish as to what it meant by 'rash or negligence' in the facts and circumstances of the case. None of the witnesses examined by the prosecution in this case including PW4 could give any hint, even approximately, as to how the driving of accused was rash or negligent.
20. PW4 has testified that at the time of accident the accused was intoxicated. But there is no other evidence to prove this fact. No breath analysis test was conducted on the accused by the police. Even the medical report with regard to accused does not indicate as to what was the level of intoxication. There is no evidence to establish the quantity or level of alcohol which was consumed by the accused. The MLC merely states that there was smell of alcohol in the breath of accused. This cannot be said to be a sufficient proof of the intoxication.
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21. Thus the prosecution evidence at the most establishes that the accused caused an accident due to which the deceased died, but there is no evidence to show that the accused was rash or negligent in driving his vehicle.
22. In these circumstances, no definite finding can be reached that the driving was rash or negligent. It may be a mere error of judgment or defect of intelligence.
23. In the result, I find that Prosecution has failed to prove its case against the accused beyond reasonable doubt and he is given the benefit of doubt and therefore accused Jitender Singh is acquitted for the offence punishable 279/304A IPC.
Announced in the Open Court
On 27.06.2013 (DEEPAK SHERAWAT)
Metropolitan Magistrate
South East/New Delhi
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PS DEFENCE COLONY
FIR No.110/99
PS Defence Colony
u/s 279/304A IPC
27.06.2013
Present: Ld. APP for the State.
Accused on bail with counsel.
Final arguments heard.
Vide my separate judgment dictated and announced in the open court, accused is acquitted for the offence punishable U/s 279/304A IPC for which he stands charged.
Accused is readmitted to bail on furnishing fresh bail bond in the sum of Rs. 10,000/ with one surety in the like amount. Bail bond furnished. As per section 437A of the Cr.P.C, as amended vide the Amendment Act, which came into force on 31.12.2009, the accused as well as the surety shall remain bound by the personal and the surety bond respectively for a period of six months from today.
Documents if any, be released to accused as well as surety after cancellation of endorsement.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South East/27.06.2013
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