Delhi District Court
1 State vs . Manish on 5 November, 2011
FIR No:918/99
1 State Vs. Manish
IN THE COURT OF Dr. JAGMINDER SINGH: METROPOLITAN
MAGISTRATE, DWARKA COURTS, NEW DELHI
FIR NO: 918/99
PS: Dabri
U/s 279/304 A IPC
State V. Manish
Date of institution of the case : 13.02.2001
Date on which Judgment was reserved : 02.11.2011.
JUDGMENT
a) S. No. of the case : 82/02
b) Date of commission of offence : 17.12.1999.
c) Name of the Complainant : Satpal Singh
S/o Sh. Udai Ram
H.No. WZ39, Palam
Gaon, New Delhi.
FIR No:918/99
2 State Vs. Manish
d) Name of accused and address : Manish Kumar
S/o Sh. Desh Raj
H. No.F1, Mahavir Enclave
Main Road, N. Delhi.
e) Offence complained of : u/s 279/304 IPC
f) Plea of accused : Pleaded not guilty
g) Final order : Acquitted
h) Date of such order : 05.11.2011
BRIEF STATEMENT OF THE REASONS FOR THE DECISION :
1. The present case is registered against the accused on the complaint of Sat Pal Singh in which he stated that on 17.12.1999, he was going towards Palam Railway Fatak along with his 13 years old son Pawan Kumar. At about 7.00 am, when they reached near Primary School, Palam, opposite Gali No. 2, Puran nagar, his son was crossing the road, meanwhile, a mini bus No. DL 1B FIR No:918/99 3 State Vs. Manish
- 1746 came at high speed in rash and negligent manner and hit his son. His son was died at the spot. The driver of the bus i.e. accused along with offending bus was overpowered with the help of public. Police came at the spot and he handed over accused with bus to the police. At his complaint, the present case was registered and after the completion of investigation, charge sheet was filed for the offence U/s 279 / 304 A IPC.
2. Accused was summoned and notice was served upon the accused for the offence u/s 279/304 A IPC to which he pleaded not guilty and claimed trial and trial started.
3. Prosecution has filed list of Seven witnesses and has examined all the witnesses.
4. PW1 Satpal Singh deposed that on the day of incident, he and his son were going towards Palam Railway site on foot. When they reached FIR No:918/99 4 State Vs. Manish at the spot, the offending bus came in very fast speed and hit against his son who crossing the road and caused his death at the spot. The driver fled away from the spot. After seeing the accident, he became unconscious and on the same day, he lodged complaint to the police which is ex. PW1/A. He also shown the place of accident to the police and the bus was seized vide memo Ex. PW1/B. He further stated that the accused was later on overpowered by the police and public persons while he was fleeing.
5. PW2 Ct. Pardeep Kumar deposed that on receiving information regarding the said accident, he along with ASI Virender Singh reached at the spot where he found one boy was lying on the road whose head was crushed. The father of the boy and driver of the bus also present at the spot. Io recorded statement of complainant and sent rukka through Ct. Pawan to PS. The bus was seized vide memo Ex. PW1/B. Accused was arrested from the spot vide memo ex. PW2/A. D/L and RC of FIR No:918/99 5 State Vs. Manish offending bus was also seized vide memo Ex. PW2/B and PW2/C.
6. PW3 Ishwar Das deposed that on 17.12.1999, he identified the dead body of his nephew Pawan in mortury of Sabzi Mandi.
7. PW4 W/ASI Santosh stated that on the day of occurrence on receiving rukka through Ct. Pawan Kumar, she recorded the FIR of the present case, copy of which is Ex. PW4/A.
8. PW5 SI Ravinder Singh stated that on 17.12.1999, in pursuance of DD No. 7, he along with Ct. Pardeep reached at the spot, where deceased Pawan was lying dead due to accident by a mini bus No. DL1V 1746. He recorded the statement of the complainant Ex. PW1/A and made his endorsement Ex. PW5/A and got case registered through Ct. Pawan Kumar. He prepared site plan Ex. PW5/B. Bus was seized vide FIR No:918/99 6 State Vs. Manish memo Ex. PW1/B. Accused was arrested vide memos Ex. PW2/A and PW5/C. D/L of the accused was seized vide memo Ex. PW2/B. He collected the Postmortem report of the deceased. He prepared Inquest Report Ex. PW5/D. The bus was released to Sh. Hitesh Bhardwaj vide superdiginama Ex. PW5/E.
9. PW6 Dr. Sarvesh Tandon stated that on 17.12.1999, he conducted the postmortem on the body of deceased Pawan Kumar and his report is Ex. PW6/A. According to him, cause of death was Cranio cerebral damage following blunt force impact possible following an accident.
10. PW7 Ct. Pawan Kumar stated that on 17.12.1999, he carried the DD No. 8 from the PP Palam to the spot and handed over the same to ASI Virender. The said ASI send him to the PS with rukka for registration FIR No:918/99 7 State Vs. Manish of FIR.
11. No other witness was examined by the prosecution and PE closed. Statement of accused recorded u/s 313 Cr.P.C. in which he denied all the allegations against him. No defence witness examined by the accused in his defence and thereafter the matter was fixed for final arguments.
12. I have heard the arguments of both the parties. Ld. APP for the State has argued that the case is totally proved against the accused and he be given maximum punishment. Ld. Counsel for the accused stated that prosecution cannot prove any ingredients of the offence against accused. Story of the prosecution is concocted one. The alleged eye witness had also given contradictory and unreliable statement. The child himself negligently hit the bus while he was crossing the road as stated by the prosecution and FIR No:918/99 8 State Vs. Manish there is no fault on the part of the accused. The superdar of the Bus was not examined. Photographs of the spot or vehicle not taken. Accused is falsely implicated in the present case and are liable to be acquitted. I have gone through the oral and documentary evidence on record and analyzed the statement of witnesses.
13. In the present case, the complainant / father of the deceased is only eye witness and whose statement is very important to stand the prosecution case. Therefore, his statement must be analyzed carefully to examine its reliability. Perusal of statement of PW1 reveals that he in his complaint Ex. PW1/A stated that he with the help of public overpowered the accused at the spot whereas in his statement before the court, he stated that the driver was fled away from the spot. Again in his statement, he stated that later on, the driver was overpowered by the police and public. But this aspect is also not believable that as per the statement of police FIR No:918/99 9 State Vs. Manish personnels, police reached at the spot after the incident occurred and driver was handed over to the police by the complainant.
14. In his statement before the court, complainant stated that after seeing the accident, he became unconscious but this thing was not stated by him in his complaint Ex. PW1/A. In his complaint, he stated that after accident, he overpowered the accused with the help of public. In this way, it a material and considerable contradiction in his statement. Further, in his cross he stated that the bus was stopped after the accident. In his cross examination, he also stated the fact that in the bus along with some children, there was one helper by the name of Azad Kumar. Neither this Azad Kumar was made a witness by the prosecution nor complainant stated this thing in his chief or in his complaint.
15. PW1 stated that in his chief that the bus was at very fast speed FIR No:918/99 10 State Vs. Manish to which he clarified in his cross examination that it was of around 6065 km/hour. But in his cross, he admitted the fact that there was some speed braker near the school. Moreover, only stating that the bus was at high speed is not sufficient to establish that the bus was driven in rash and negligent manner. It was also held by Hon'ble Orissa High Court in Madhab Bagh Vs. State of Orissa, 1992 CrLJ 116 (Ori) that speed of vehicle is not always determinative factor of rash and negligent driving.
16. It is also contented by Ld. Defence counsel that the witness himself stated that the child hit the bus or the bus hit the child(deceased) while deceased was crossing the road. It is also to be considered that it may be possible that the child was hit by the bus because of his negligency also as it is not stated by the only eye witness / complainant that the deceased was crossing the road on any Zebra Crossing or after taking a proper care and caution.
FIR No:918/99 11 State Vs. Manish
17. The other witness are procedural formal witnesses i.e. the doctor who conducted the PMR and police officials who seized the vehicle and arrested the accused and completed the investigation. Their evidence is not helpful to link the accused with the allegation that at the time of accident, he was driving the vehicle in question in rash and negligent manner.
18. It is also a settled law that there can not be any presumption that the accident was caused by accused while driving the offending bus allegedly in a rash and negligent manner. What is rash and negligent varies from case to case and has to be prove beyond reasonable doubt through direct / positive evidence. There can not be any fixed parameters for judging rashness and negligence. At the same time, there can not be any assumption / presumption of the same. Even if, the accident is proved, unless rash and negligent driving stands proved a person can FIR No:918/99 12 State Vs. Manish not be convicted U/s 279 IPC. Reliance can be placed upon. State of Rajasthan Vs. Joita 2002 Crlj 3514 and Ishwar Singh Vs. State of Haryana (P& H) 2000 (2) RCR (Crl.) 571.
19. The reading of all the material collectively disclosing that although it is stated by the only witness that the accident was caused by the offending bus and because of which deceased was died, but the fact that accused was driving the offending bus at that particular time was not corroborated by other witness / evidence. There is no evidence of the owner / superdar of the bus who states that in whose possession the bus was at that particular point of time. Moreover, to convict a person U/s 279/304 A IPC, it must be proved beyond reasonable doubts that death was the proximate cause of the vehicular accident driven by the accused in a rash and negligent manner which is a essential ingredients of the alleged offence.
FIR No:918/99 13 State Vs. Manish
20. It is also held by Hon'ble Supreme Court in Nasir Sikander Shaikh Vs. State of Maharashtra (SC) 2005 CrLJ 2621 and in Journel Singh Vs. State of Punjab (SC) 1996 (1) RCR (Crl.) 465 that it is a cardinal principle of criminal jurisprudence that an accused is presumed to be innocent and burden lies on the prosecution to prove the guilt of accused beyond reasonable doubts. Prosecution is under legal obligation to prove each and every ingredients of the offence beyond any doubt, unless otherwise so provided by the statute.
21. The above discussion reveals that the essential ingredients of the alleged offence against the accused that he was driving the offending vehicle in rash and negligent manner is missing in the present case. The prosecution case is not stated to be proved beyond reasonable doubts. Hence, the accused Manish stands acquitted in case FIR No. 918/99 for the offence U/s 279/304 IPC. Bail bonds stands cancelled and surety stands FIR No:918/99 14 State Vs. Manish discharged. File be consigned to record room after due compliance. Announced in the open court on this 05th day of November' 2011 (Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI FIR No:918/99 15 State Vs. Manish FIR NO: 918/99 PS: Dabri U/s 279/304 A IPC State V. Manish 05.11.2011 Present: APP for the State.
Accused on bail with Ld. Counsel.
Vide separate judgment of even date pronounced and dictated in the open court, accused Manish is acquitted for the offence U/s 279/304 A IPC in case FIR No. 918/99.
Bail bond stands cancelled and surety stands discharged. Document, if any, of surety be returned. Endorsement, if any, be also cancelled. File be consigned to record room after due compliance.
(Dr. JAGMINDER SINGH) METROPOLITAN MAGISTRATE DWARKA COURTS/DELHI FIR No:918/99 16 State Vs. Manish