Delhi District Court
State vs Suresh Das on 14 August, 2024
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IN THE COURT OF MS JYOTI NAIN
JUDICIAL MAGISTRATE FIRST CLASS-07: ROHINI COURTS: DELHI.
FIR No. 168/2015
U/s 279/304A IPC & 134/187 MV Act
PS: Swaroop Nagar
State vs. Suresh Dass
Date of Institution of case:-30.07.2015
Date of Judgment reserved:-30.07.2024
Date on which Judgment pronounced:-14.08.2024
JUDGMENT
CIS Number : 5283598/2016 CNR Number : DLNT020003882015 Date of Commission : 31.03.2015 of offence Name of the : Bittu Kumar s/o Baijnath Mehto complainant Name of the accused : Suresh Dass s/o Sone Lal Dass Offence complained : 279/304A IPC & 134/187 MV Act of Plea of accused : Not guilty Date of order : 14.08.2024 Final Order : Acquitted for offence u/s 279/304A IPC & 134/187 MV Act FIR No. 168/15 State Vs. Suresh Dass Jyoti Digitally signed by Jyoti Nain Nain Date: 2024.08.14 17:20:28 +0530 2 BRIEF REASONS FOR DECISION:
1. The case of the prosecution shorn of unnecessary details is that, on 31.03.2015, at about 05:00 pm, at Yamuna Purta Road, T-point, Sunder Vihar, Ibrahimpur, Delhi within the jurisdiction of Police Station Swaroop Nagar, accused was found driving vehicle Santro Car bearing No.DL-3C-AT-2178, in a manner so rash and negligent, so as to endanger human life and personal safety of others and while driving the above said vehicle in above said manner, accused hit against one boy Himanshu and caused his death (not amounting to culpable homicide). Further, accused tried to run away from the spot and accused did not take reasonable steps to secure medical attention to the injured.
According to prosecution, accused committed offences punishable under Section 279/304-A of The Indian Penal Code, 1860 & 134/187 M.V. Act. Thereafter, upon investigation, statements of witnesses were recorded. Thereafter, an FIR was registered against the accused.
Investigation
2. After registration of the case, necessary investigation was carried out by the IO concerned. Site plan was prepared. Statements of witnesses were recorded under Section 161 of the Criminal Procedure Code, 1973 [hereinafter to be referred as Cr.PC. for brevity]. The accused was arrested. Relevant record was collected. The final report under Section 173 of Cr.P.C., was prepared against the above named accused and challan was presented in the Court.
3. Copies of challan and relevant documents were supplied to the accused free of costs as envisaged under Section 207 of Cr.P.C.
FIR No. 168/15State Vs. Suresh Dass Jyoti Digitally signed
by Jyoti Nain
Date:
Nain 2024.08.14
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Charge
4. A prima facie case under Sections 279/304A IPC & 134/187 M.V. Act, was found to be made out against the accused. Notice was framed upon the accused accordingly. The accused pleaded not guilty and claimed trial.
Evidence
6. In order to prove its case, prosecution examined eleven witnesses. Their respective depositions are as under:-
7 PW1 is Sh. Bittoo S/o Sh. Vaijnath Mathur, R/o Khasra No.703, Gali No.6, Sunder Vihar, Imbrahimpur Extension, Delhi.
He deposed that he was doing job of stitching. On 31.03.2015, at about 05:00 pm, he was returning to his plot after giving order of constructing material at Ibrahimpur on his motor-cycle. Onthat day, he was coming behind the santro car bearing No.DL-4C-AT-2178. At that time, he saw car was driven at a high speed and in zig zag manner. Driver of the car was also not giving side to any other vehicle. Car driver driving in said manner reached at corner of the sunder vihar colony. There car hit a boy and boy sustained head injury and blood was oozing out from him. After hitting, car drier did not stop the car and drove the car till his house situated at Gali no.3, Sunder Vihar Colony. After stopping the car in front of his house, accused got down from the car and ran away in the field side. Thereafter, he called at no. 100 from his mobile phone. PCR came at the spot and he also returned at the spot. PCR shifted the injured boy to hospital. Some police official also came at the spot. One police FIR No. 168/15 Digitally signed State Vs. Suresh Dass Jyoti by Jyoti Nain Date:
2024.08.14 Nain 17:20:51 +0530 4 person inquired him regarding the fact of the incident. He told the above mentioned fact to him. Police recorded his statement and got his sign on that statement which is Ex.PW1/A bearing his signature at pint A. Police also prepared site plan at his instance.
He further deposed that on 03.04.2015, police again called him in the police station. In the police station asked to identify the accused driver. There, he identified the accused. After that, police arrested him and conducted his personal search vide memo Ex.PW1/B and Ex.PW1/C, bearing his signature at point A. DL of the accused also seized memo vide seizure memo Ex.PW1/D bearing his signature at point A. Document of the offending vehicle also seized vide seizure memo Ex.PW1/E, bearing his signature at point A. This witness was duly cross examined by Ld. Defence Counsel.
8. PW2 is HC Ramesh, No. 1165/NW, PS Swaroop Nagar.
He deposed, that on 31.03.2015, he was posted at PS Swaroop Nagar as HC. On that day, he was working as Duty Officer and his duty hours were 08:00 pm to 08:00 am. At about 08:30 pm, Ct. Anils handed over rukka to him, which was sent by ASI Ramesh Kumar. On the basis of which, he recorded FIR which is Ex.PW2/A (OSR). He also made endorsement on rukka is Ex.PW2/B. After registration of FIR, he handed over the copy of FIR and original rukka to Ct.Anil for handing over the same to ASI Ramesh Kumar.
9. PW3 is Sh. Lal Babu S/o Late Sh. Battu Sahani , R/o Gali No.6, Sunder Vihar Village, Ibrahimpur, Delhi.
FIR No. 168/15 Jyoti Digitally signed
by Jyoti Nain
State Vs. Suresh Dass
Date: 2024.08.14
Nain 17:20:56 +0530
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He deposed, that on 01.04.2015, he had gone to the mortuary of BJRM Hospital with the father of the deceased Himanshu and identified the dead body vide identification memo is ExPW3/A which bears his thumb impression at point A. After the postmortem the dead body of deceased Himanshu was handed over to him vide handing over memo is Ex.PW3/B which bears his signature at point A. This witness was not cross examined by Ld. Defence Counsel.
10. PW4 is Sh. Lal Mani Saini S/o Late Sh. Battu Sahani, R/o Gali No.6, Sunder Vihar Village, Ibrahimpur, Delhi.
He deposed, that on 01.04.2015, he had gone to the mortuary of BJRM Hospital with his brother and identified the dead body of son Himanshu vide identification memo is ExPW4/A which bears his thumb impression at point A. After the postmortem the dead body of deceased Himanshu was handed over to him vide handing over memo is already Ex.PW3/B which bears his signature at point B. This witness was not cross examined by Ld. Defence Counsel.
11. PW5 is HC Anil Kumar, No.16 N/W, PS Adarsh Nagar, Delhi.
He deposed, that on 31.03.2015, he was posted at PS Swaroop Nagar as HC. On that day, he was on patrolling duty in police beat in Ibrahimpur. At about 05:15 pm, he received telephone information regarding an accident at Sunder Nagar Road, Pushta, Ibrahimpur. He went there and came to know that one Santro car bearing No.DL-3C-AT-2178 had caused accident with a child FIR No. 168/15 Jyoti Digitally signed by Jyoti Nain State Vs. Suresh Dass Nain Date: 2024.08.14 17:21:00 +0530 6 aged about 02 years. The driver of the offending vehicle was not present at the spot at that time. However, the persons present there had told him that name of driver as Suresh Dass. In the meanwhile, ASI Ramesh came at the spot alongwith Ct. Raju. IO asked him to remain at the spot and he alongwith Ct.Raju went to the hospital as injured was already taken to the hospital. At about 07:30 pm, IO alongwith Ct. Raju came back at the spot and told him that the injured child has been declared brought dead. The IO recorded the statement eye witness Bitoo. IO prepared rukka and handed over the same to him for registration of FIR. He got the FIR registered through the DD and went to the spot and handed over the copy of FIR and original rukka to the IO at about 09:00 pm. IO prepared site plan at the instance of eye witness. IO seized the offending vehicle vide memo Ex.PW5/A, bearing his signature at point A. The case property was deposited in the malkhana by the IO. IO recorded his statement.
12. PW 6 is Ct. Raju, No. 2267/NW, PS Mukherjee Nagar, Delhi.
He deposed, that on 21.03.2015, he was posted at PS Swaroop Nagar as Constable. On that day, he was on emergency duty from 08:00 am to 08:00 pm. On that day, after receiving DD No.46B, he joined the investigation with the IO and went to the place of incident i.e. Sunder Vihar where eye witness Bitoo Kuar met them. He told the IO that one Santro car bearing No.DL-3C- AT-2178 had caused injuries to a child aged about 2 ½ years while driving the same at high speed and injured had taken to the hospital. Ct. Anil was also present at the spot. IO asked Ct. Anil to the spot the offending vehicle was FIR No. 168/15 State Vs. Suresh Dass Jyoti Digitally signed by Jyoti Nain Date: 2024.08.14 Nain 17:21:05 +0530 7 abandoned at Gali No.3 by the driver of the vehicle and escaped from the spot. He alongwith IO went to the BJRM Hospital where the injured was declared dead. The dead body was got preserved in the mortuary of BJRM hospital. IO asked him to take care of the dead body.
He further deposed that on 01.04.2015, IO came at the mortuary of BJRM Hospital and got the postmortem of the injured child got conducted. After postmortem dead body was given to his father. IO recorded his statement.
13. PW-7 is W/Ct. Priyanka, No. 2708/NW, PS Mukharjee Nagar, Delhi.
She deposed, that on 31.03.2015, she was posted at PS Swaroop Nagar as a constable. On that day, she was working as DD writer from 08:00 am to 08:00 pm. On that day, at about 05:05 pm, she received and information through wireless regarding an accident near Jyoti Dham Chowk, Ibrahimpu. She recorded the said information vide DD No.46Bf dated 31.03.2015, which is Ex.PW7/A, bearing her name at point A. The said DD was handed over to Ct.Raju for further handing over to ASI Ramesh for investigation.
14. PW-8 is SI Vishnu Singh, No. 1912-D, 1st Batallion, DAP, Kingsway Camp, Delhi.
He deposed, that on 02.04.2015, he was working as ASI at MACT Cell, Sub-Division, Model Town, Delhi. On that day, the present case was marked to him for further investigation. Thereafter, he received present case file and inspected. Before handing over of the said case, the first IO of the present case FIR No. 168/15 Jyoti Digitally signed by Jyoti Nain State Vs. Suresh Dass Nain Date: 2024.08.14 17:21:09 +0530 8 had served a notice u/s 133 MV Act to the owner of the offending vehicle regarding appearance before the PS Swaroop Nagar on 03.04.2015.
On 03.04.2015, he alongwith Ct. Vijay went to the PS Swaroop Nagar, where he met the accused namely Suresh Dass was already present there and accused told him that at the time of incident, he was driving the offending vehicle bearing registration No.DL-3CAT-2178. He had also taken same on the notice of Section 133 MV Act which is exhibited as Ex.PW8/A and he inquired from the accused about the incident. In the meanwhile, the eye- witness of the incident also came at the PS Swaroop Nagar, the eye-witness pointed out towards the accused Suresh Dass that he was the person who had done the accident while driving the offending vehicle. Thereafter, he arrested the accused vide arrest memo which is already exhibited as Ex.PW1/B bearing his signature at B and also conducted the personal search of the accused vide personal search memo which is already Ex.PW1/C bearing his signatures at B and I also seized the driving license of the accused vide seizure memo which is already Ex.PW1/D bearing his signature at Point B and he also seized the documents of offending vehicle vide seizure memo which is already exhibited as Ex.PW1/A bearing his signature at Point B and the accused was admitted to bail vide bail bond which is Ex.PW8/B bearing his signatures at Point A. Thereafter, he recorded the statement of eye-witness and the constable. He also conducted the mechanical inspection of the offending vehicle bearing registration No. DL-3CAT-2178 through Mechanical Expert which is already exhibited as Ex.A1 and he also recorded the statement of Mechanical Expert and he also collected the post-mortem report of deceased namely Himanshu FIR No. 168/15 State Vs. Suresh Dass Jyoti Digitally signed by Jyoti Nain Nain Date: 2024.08.14 17:21:13 +0530 9 which is Ex.PW8/C and he also recorded the statement of deceased's father namely Lalmani. He also recorded the statement of IC In-Charge namely Satish who had taken the deceased to the Hospital and on the order of the superdari by the Hon'ble Court, he released the offending vehicle vide superdarinama. He conducted the investigation on different aspects and during the investigation, he recorded the statements of witnesses. Thereafter, he prepared charge-sheet of the present case and after the completion of the same, the same was filed before the Hon'ble Court for the Judicial verdict.
This witness was duly cross examined by Ld. Defence Counsel.
15. PW9 is SI Ramesh Kumar, No. 2863/D, PIS No. 28890784 He deposed, that on 31.03.2015, he was posted at PS Swaroop Nagar as ASI. On that day, on receipt of DD no. 46-B already Ex. PW 7/A, he alongwith Ct. Raju went to the spot i.e. Sunder Vihar, Ibrahim Pur Mor, Delhi, where they met with complainant namely Bittu Kumar and informed him that injured was shifted to BJRM Hospital, Jahangir Puri, Delhi via an PCR Van. In the mean time, Ct. Anil ( beat officer ) also reached at the spot. One Santro Car bearing Reg. No. DL-3CAT-2178 was also present at a distance of 150-200 meter from the spot. After leaving Ct. Anil at the spot, he alongwith Ct. Raju went to BJRM Hospital, Jahangir Puri, Delhi. He collected the MLC of injured namely Himanshu from the concerned doctor. On the MLC, the concerned doctor declared the injured Himanshu as brought dead with the alleged history of RTA. The dead body of injured Himanshu is about 2.6 years was preserved in the mortuary of BJRM Hospital, Jahangir Puri, Delhi. Ct. Raju remained in FIR No. 168/15 State Vs. Suresh Dass Jyoti Digitally signed by Jyoti Nain Date:
Nain 2024.08.14
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the mortuary of BJRM Hospital, Jahangir Puri and he came back to the spot. He recorded statement of eye witness Bittu Kumar which is already exhibited as Ex. PW 1/A bearing his signatures at Point B. He prepared rukka which is Ex. PW 9/A bearing his signatures at Point A and handed over the same to Ct. Anil for registration of FIR. Accordingly, Ct. Anil went to the PS and got registered the present FIR. After registration of FIR, he came back to the spot and handed over the copy of FIR and original rukka to him. He prepared site plan which is Ex. PW 9/B bearing his signatures at Point A. He seized the above mentioned Santro Car vide memo already exhibited as Ex. PW 5/A bearing his signatures at Point B. He deposited the case property in the Malkhana. He tried to search out the accused person but he was not found. He deposited the case file to the MHC® as the case was referred to MACT cell for investigation.
This witness was duly cross examined by Ld. Defence Counsel.
16. PW10 is SI Satish Kumar, No. 397/C, PIS No. 28860940, Present posting District Line, Centre.
He deposed, that on 31.03.2015, he was posted as I/C on Commander 67, PCR. On that day, his duty hours were 08:00 am to 08:00 pm. On that day, Constable HC Virender was working as a PCR Driver and Ct. Nathu was also present in the PCR. At about 05:00 pm, he received a call from Police Control Room, PHQ, regarding the accident. After receiving the information / call, he alongwith the PCR Staff Members, he reached at the spot i.e. Yamuna Pusta Road, T Point, Sunder Vihar, Ibrahimpur, Swaroop Nagar, Delhi, where one FIR No. 168/15 State Vs. Suresh Dass 11 child aged about 2.5 years was lying in injured and unconscious condition. Many public persons were gathered at the spot. The uncle of the injured child also came at the spot and his name was Lalbabu. After that, we alongwith the uncle of injured took the injured child in the BJRM Hospital, Jahangir Puri, Delhi. In the hospital, the child was declared brought dead. He gave the information to the Control Room regarding the death of the child. IO recorded my statement which is marked as Mark X-1.
This witness was duly cross examined by Ld. Defence Counsel.
17. PW11 is HC Vijay Kumar, No. 2508/OND, PIS No. 28081069.
He deposed, that on 03.04.2015, he was posted as Constable at MACT Cell, North West District, Delhi. On that day, he alongwith IO ASI Vishnu Singh joined the investigation in the present case. On that day, he alongwith IO ASI Vishnu were present in the PS Swaroop Nagar, Delhi. Accused Suresh Dass came to the PS Swaroop Nagar and he gave reply of the Notice u/s 133 M.V. Act. In the notice, accused Suresh Dass admitted that he was driving offending vehicle on the day of accident. In the mean time, eye-witness of the accident namely Sh. Bittu Kumar also came to the PS to know the status of the present case. IO ASI Vishnu Singh arrested the accused Suresh Dass on the identification of Bittu Kumar vide arrest memo which is already Ex.PW1/B bearing his signatures at Point C. IO also conducted personal search of the accused vide memo already Ex.PW1/C bearing his signatures at Point C. IO seized the driving license of the accused vide memo Ex. PW 1/D bearing his signatures at Point B. IO seized the Insurance, RC of the offending vehicle Digitally signed by Jyoti Nain Jyoti Nain FIR No. 168/15 Date: 2024.08.14 17:21:23 +0530 State Vs. Suresh Dass 12 vide seizure memo which is already Ex. PW 1/B bearing his signatures at Point C. IO released the accused on Police Bail. IO recorded his statement which is marked as Mark X2.
This witness was duly cross examined by Ld. Defence Counsel.
18. Thereafter, prosecution evidence was closed vide order dated 01.12.2022.
Statement under section 313 Cr.PC
19. After completion of prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. All incriminating material brought on record were put to the accused, to which he denied the allegations made against him and claimed himself to be innocent and pleaded that he has been falsely implicated in this case. Accused did not opt to lead any evidence in his defence and the same was closed.
Arguments
20. Final arguments were lead for state by Ld. APP and for accused Ld. Counsel lead the arguments.
21. It is argued by the state that prosecution has proved its case beyond reasonable doubt. Accused was driving the vehicle in rash and negligent manner and caused death of the deceased. It is further argued that facts speak for themselves. Accident was caused by santro car hitting a two and a half year old boy and in such cases negligence will be imputed on the car driver.
FIR No. 168/1522. Allegations against the accused are for offence under section 279/304A IPC.
23. Section 279 IPC provides that 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 a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
24. Section 304 A provides that 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.
25. In a nutshell to prove the case against the accused the prosecution was under the obligation to prove the following essential ingredients of the offence punishable u/s 279/304A IPC:
a. Identity of the accused being the driver of the offending vehicle. b. That the alleged accident is the result of rash and negligent driving of the accused at a public place.
c. The rash and negligent driving of the accused resulted in the death of the deceased.
Jyoti Digitally signed by Jyoti Nain Date:
FIR No. 168/15 Nain 2024.08.14 17:21:31 +0530 State Vs. Suresh Dass 14
26. In the present case, even if it is presumed that it was the accused who was driving the offending vehicle and it was his vehicle which caused the accident, it is on the prosecution to prove that accused was driving the vehicle in rash and negligent manner and that the death was caused due to rash and negligent act of the accused.
27. It was held in Niranjan Singh vs The State (Delhi Administration) 1997 CriLJ 336 that Rashness consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand is the gross and culpable neglect or failure to exercise that reasonable or 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 circumstances out of which the charge has arisen, it was the imperative duty of the accused person to have adopted. Thus, the main criterion for deciding whether the driving which led to the accident was rash and negligent is not only the speed of the offending vehicle but deliberate disregard to the obligation of its driver to drive with due care and attention and taking a risk indifference as to the harmful consequences resulting from it. In a case of this nature, the test is whether the prosecution has proved that :-
(i) the accused was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damage to the FIR No. 168/15 State Vs. Suresh Dass Digitally signed Jyoti by Jyoti Nain Date: 2024.08.14 Nain 17:21:43 +0530 15 property;
(ii) in driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it; and
(iii) the rash or negligent act of the accused was the proximate cause of the death of the deceased.
28. In the present case the sole eye witness i.e. PW1 has deposed in his examination in chief that the accused was driving the vehicle in high speed. In his initial statement i.e. Rukka exhibit PW9/A, also, he has stated that the accused was driving the vehicle in high speed. In rukka, except for high speed, there is no mention of the manner in which the offending vehicle was being driven though later on, in his examination in chief, PW1 has improvised and stated that the vehicle was being driven in high speed and zig-zag manner. As has already been discussed that mere high speed does not by itself bespeak of rash and negligent driving, since, "high speed" is a relative term. It is for the prosecution to establish as to what is meant by "high speed" in the facts and circumstances of the case. It has not been brought on record by the prosecution as to what was the speed limit at the place of incident. Furthermore, it has been surfaced out in the cross examination of PW1 that the speed of the vehicle was around 40-50 km/hr when he stated that "it is correct that my speed as well as speed of car was almost 40-50 kmph".
Jyoti Digitally signed by Jyoti Nain Date:
FIR No. 168/15 Nain 2024.08.14 17:21:47 +0530 State Vs. Suresh Dass 16
29. Further, contradictions in the testimony of PW1 are apparent. At one place, he stated that the accused was driving the vehicle in high speed and zigzag manner and was not giving side to any other vehicle, on the other hand, he has admitted in his cross examination that his speed as well as the speed of accused's car was same. Further in his cross examination, PW1 stated that there was no traffic on the road and there was no vehicle between his motorcycle and the car of the accused. In his cross examination, PW1 denied the suggestion that he did not see the accident as he was at an invisible distance from the car but in further cross examination, he failed to tell as to which part of the car whether front or rear, had hit the deceased.
30. Admittedly, the accident took place at the turn of Sunder Vihar road where there was no divider. Children were playing on the road and unfortunately, a two and a half year old boy lost his life in the accident. The dead body of the deceased was found lying at the middle of the road. Mechanical inspection report says that no fresh damage was found on the offending vehicle. In the MLC of deceased, the only injury which is reported is small abrasion on left side forehead of deceased and as per Postmortem report, death was found to be caused due to head injury consequent upon blunt force trauma to head. That the same suggests sudden application of brakes by the driver of vehicle, once the child came in front of it. Further, contributory negligence on the part of parents who had left their two and a half year old child to play on the road where movement of vehicles is common, cannot be denied.
Digitally signed Jyoti by Jyoti Nain Date: FIR No. 168/15 2024.08.14 Nain 17:21:51 +0530 State Vs. Suresh Dass 17
31. In such circumstances, it can not be said that the accused was driving the vehicle in rash and negligent manner and death was caused due to his rash and negligent act. Prosecution has not proved its case beyond reasonable doubt. Accordingly, accused Suresh Dass is acquitted for offence under section 279/304 A IPC & 134/187 MV Act.
32. This Judgment consists of 17 pages and all pages bear my signature.
Announced and dictated directly into the computer in open court Jyoti Digitally signed by Jyoti Nain on 14th Day of August, 2024 Nain Date: 2024.08.14 17:21:55 +0530 (Jyoti Nain) JMFC-07/North District Rohini Courts, Delhi.
FIR No. 168/15