Delhi District Court
State vs . Suresh Kumar Mishra on 12 December, 2011
IN THE COURT OF SH. DEEPAK SHERAWAT
METROPOLITAN MAGISTRATE, SOUTH DISTRICT
SAKET COURTS, NEW DELHI
FIR NO. 125/1997
P.S. Malviya Nagar
U/s 279/338/304 A IPC
STATE VS. SURESH KUMAR MISHRA
JUDGMENT :
a. Sl. No. of the case : 1004/2
b. Date of Institution : 06.11.1997
c. Date of Commission of Offence : 02.02.1997
d. Name of the complainant : ASI Sava Vraksha
e. Name of the accused and his : Suresh Kumar Mishra
parentage and address S/o Sh. Yogendra Nath
R/o Village and P.O.
Fatehpur Beri,
Mehrauli, New Delhi
f. Offence complained of : U/s 279/338/304A IPC
g. Plea of the accused : Pleaded not guilty
h. Order reserved : 12.12.2011
i. Final Order : Acquitted
j. Date of such order : 12.12.2011
1. The accused was put on trial for the facts that on02.02.1997,
at about 8.30 p.m., at Press Enclave Road, Vocational College, accused was found driving his truck bearing no. DIG-1433 in a rash and negligent manner and caused grievous injury to Aditya Kumar and death of Ram Kumar. Thereafter investigation was carried out and during the investigation site plan FIR NO.125/97 PAGE 1 OF PAGE 8 PS MALVIYA NAGAR was prepared, vehicles were seized, statement of witnesses were recorded. Notice U/s. 133 M.V. Act was served upon the owner of offending vehicle, accused was arrested, the offending vehicle was got mechanically inspected and a chargesheet was filed against the accused under section 279/338/304 A IPC in the court.
2. The accused appeared in the court and he was informed of the substance of the allegation against him, vide notice dated 22.05.1999 under section 279/338/304 A IPC to which accused pleaded not guilty and claimed trial.
3. To prove its case the prosecution has examined seven witnesses namely Ravinder Singh as PW1, N.L. Dua as PW2, Harish as PW2(a), ASI Mustafa Khan as PW3, Satish Kumar as PW4, HC Rajender Lal as PW5, and Ct. Hem Pal as PW6.
4. PW1 Ravinder Singh has testified that on 03.02.1997, he identified the dead body of his son Ram Kumar in AIIMS mortuary and his statement to this effect was recorded which is Ex. PW1/A. On that day, he also received the dead body of his son vide receipt Ex. PW1/B. Ld. Counsel for accused did not prefer to cross examine PW1.
5. PW2 N.L. Dua has testified that on 03.02.1997, he conducted the mechanical inspection of Truck bearing no. DIG-1433 and motorcycle bearing no. DL-3SJ-5404 and his detailed report to this effect is Ex. PW1/A and PW1/B. Accused did not prefer to cross examine PW2 also.
FIR NO.125/97 PAGE 2 OF PAGE 8 PS MALVIYA NAGAR 6. PW2(a) Harish has testified that in the year 1997, when he was walking towards the side of Vocational College on Press Enclave Road, a truck driven by the driver in a very rash and negligent manner came
and hit against the motorcyclist as a result of which the motorcyclist and pillion rider fell down and after causing the accident, the driver of the truck tried to fled away towards Chirag Delhi. He further testified that the he took the lift from one motorcyclist and chased the truck and apprehended the driver and he disclosed his name as Suresh Kumar and took the accused present in the court to the PCR official which were standing at the police picket situated nearby the side and handed over the accused to them. Thereafter he alongwith assistance of one person, shifter the injured to the AIIMS Hospital. The number of truck was DIG-1433. PW2(a) further testified that thereafter he was interrogated by the police at the site and his statement was also recorded.
Ld. Counsel for accused did not prefer to cross examine PW2(a).
7. PW3 ASI Mustafa Khan has testified that on 02.02.1997, on receipt of rukka through Ct. Hempal, he recorded the present case FIR No. 125/97 which is Ex. PW3/A. His endorsement on rukka is Ex. PW3/B. Ld. Counsel for accused did not prefer to cross examine PW3.
8. PW4 Satish Kumar brought the record pertaining to vehicle Truck no. DIG-1433. He testified that in February,1997, the vehicle was in the name of Suresh Kumar and later on, the vehicle was transferred in the name of one Shyam Singh.
Ld. Counsel for accused did not prefer to cross examine PW4 also.
FIR NO.125/97 PAGE 3 OF PAGE 8 PS MALVIYA NAGAR 9. PW5 HC Rajender Lal has testified that on 02.02.1997, at about 8.14 p.m., he received a message from Ct. Neelam that on the road coming from Pushp Vihar towards Sheikh Sarai, near Modi Hospital, an accident had taken place. Thereafter he recorded the DD entry which is Ex. PW5/A and thereafter the investigation was handed over to ASI Sada
Prakash who alongwith Ct. Hem Pal went to the spot. He further testified that the record containing the said DD has been destroyed vide order no. 3527-76 dated 01.05.07 and the same is Mark X. Accused did not prefer to cross examine PW5 also.
10. PW6 Ct. Hem Pal has testified that on 02.02.1997, on receipt of DD No. 19, he alongwith ASI Sada Vriksh reached the place of incident where the accident tool place at Press Enclave Road, near Vocational College where he found motorcycle no. DL-3SJ-5404 make of Hero Honda black in colour, was lying on the road in an accidental condition and the injured persons had already removed to the AIIMS Hospital by the PCR. He further testified that ASI Sada Vriksh had left him on the spot and left for the AIIMS Hospital and after coming from the hospital, ASI Sada Vriksh prepared the tehrir and sent him to PS Malviya Nagar for registration of FIR. After registration of FIR, the seizure memo of motorcycle no. DL-3SJ-5404, Truck bearing no. DIG-1433 and RC of the truck were prepared vide memos Ex. PW6/A, PW6/B and PW6/C and Mark A respectively. Thereafter the personal search memo of accused Suresh Kumar present in the court was prepared vide Ex. PW6/D and the licence was also seized vide memo Ex. PW6/E. Accused did not prefer to cross examine PW6 also.
11. Thereafter, several opportunities were afforded to the FIR NO.125/97 PAGE 4 OF PAGE 8 PS MALVIYA NAGAR prosecution to adduce the evidence requisite to prove the case against the accused. It is pertinent to note that the matter is subjudice since the year 1997 and the notice upon the accused was served on 22.05.1999 for the offence punishable under section 279/338/304-AIPC. Thereafter despite several opportunities having been provided to the prosecution for leading the evidence, the prosecution has not been able to produce his entire witnesses. After giving sufficient opportunities for leading evidence, the right of the prosecution to lead further evidence was closed on 24.08.2011.
12. After closing of prosecution evidence, statement of accused was recorded U/s 313 r/w. 281 of Code of Criminal Procedure Code,1973. In his statement, accused denied to have committed the offence and claimed to have been falsely implicated in this case.
13. In order to constitute an offence under section 304 A of IPC, death must have been caused by the accused while doing any rash or negligence act which does not amount to culpable homicide. There must be positive proof that the rash or negligent act of the accused was the approximate cause which resulted in the death of the deceased. In other words, there must be a direct nexus between the death of the deceased and the rash and negligent act of the accused. Further in a case under section 279/338 IPC, it must be proved that the accident which resulted in the injury to the injured Aditya Kumar was the outcome of the rash or negligent act, i.e driving of the accused.
14. Thus the rash and negligent act must be the immediate cause of death/injury and not an act or omission which can at best be said to be remote cause of death/injury. The term negligence has been defined by the FIR NO.125/97 PAGE 5 OF PAGE 8 PS MALVIYA NAGAR Supreme Court in Mahadev Prasad Kaushik Vs. State of UP (2009) 2 SCC (Cr) 834 as the omission to do something which a reasonable and prudent man would not do. Besides, such negligence as would justify a verdict of conviction must be culpable or of gross degree and not the negligence founded on a mere error of judgment or defect of intelligence. Rashness can be summed up as an act which is reckless or is done in a manner which is dangerous to public life. The mere fact that an accident has taken place or that some lives have been lost or some persons have received injuries or caused death will not lead to any presumption of rash or negligent act on the part of the accused but will have to be established like any other fact. The death/injury so caused is not the determining factor. In a case under sections 338/304A and 279, of the IPC, there must be a definite finding that the driving was rash or negligent which resulted in the death/injury of the victim. Accused cannot be held guilty unless it is explained in what manner the accused was rash and negligent.
15. The sifting of evidence in the present case as brought on record by the prosecution shows that a material link in the chain of evidence is missing. As discussed above, the legal position is that the act which results into the injury/death must be rash or negligent. There must be positive evidence to establish the ingredient of rash or negligence character of the act. The injury/death caused is not a determining factor. The positive proof can be expected from a persons who has seen the accident occurring. In the case in hand all the witnesses produced by the prosecution are those which reached the scene of crime only after the accident had taken place except for PW2 who is the son of the deceased and was accompanying her at the time of the accident.
16. The reading of the evidence of PW2 would show that he has FIR NO.125/97 PAGE 6 OF PAGE 8 PS MALVIYA NAGAR not explained the manner as to how the driving of the accused was rash or negligent. Mere stating that the driving was rash or negligent is not sufficient to render the act as rash or negligent. There must be further elaboration as what were the factors which made the act rash or negligent. PW2 has just mechanically repeated the terms rash and negligence to satisfy the ingredients of offence under section 338/304A IPC. He has not specified the factors on the basis of which he came to the conclusion that the driving was rash or negligent, for instance the accused was driving the vehicle in an uncontrollable speed or in a zig zag manner.
17. Further the injured Aditya Kumar has not been examined by the prosecution whose evidence was material and essential to prove the case of prosecution against the accused since he was in the best position to explain whether injuries were caused to him as a result of accident or death of deceased Ram Kumar was caused as a result of accident and was as such critical to the outcome of the trial. The evidence of the rest of the witnesses is not in the least sufficient to bring home the guilt of the accused.
18. 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.
19. An analysis of the entire evidence, thus, reveals that the nexus between the accused and act of rash and negligent driving causing grievous injury to the injured and also causing the death of the deceased has not been established. Thus, it is needless to say that the prosecution has miserably failed to prove that accused was driving the offending vehicle in a rash and negligent manner at the time of accident which caused grievous injury to FIR NO.125/97 PAGE 7 OF PAGE 8 PS MALVIYA NAGAR injured Aditya Kumar and also caused the death of deceased Ram Kumar.
20. 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 Suresh Kumar Mishra is acquitted for the offence punishable U/s 279/338/304 A IPC for which he stands charged.
Announced in the Open Court (DEEPAK SHERAWAT)
On 12.12.2011 Metropolitan Magistrate
South District/New Delhi
FIR NO.125/97 PAGE 8 OF PAGE 8
PS MALVIYA NAGAR
FIR No. 125/97
PS Malviya Nagar
u/s 279/338/304A IPC
12.12.2011
Present: Ld. APP for the State.
Accused on bail with counsel.
Vide my separate judgment dictated and announced in the open court accused is acquitted for the offence punishable U/s 279/338/304A IPC for which he stands charged.
Accused is re-admitted 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 437-A 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.
File be consigned to Record Room.
(Deepak Sherawat)
MM/South Delhi/ 12.12.2011
FIR NO.125/97 PAGE 9 OF PAGE 8
PS MALVIYA NAGAR