Delhi District Court
State vs . : Abhinav Seth on 18 December, 2021
IN THE COURT OF RISHABH KAPOOR:
METROPOLITAN MAGISTRATE - 03 (CENTRAL)
TIS HAZARI COURTS: DELHI
State Vs. : Abhinav Seth
FIR No : 133/2013
U/s : 279/338/304A IPC
P.S. : I.P. Estate
JUDGMENT:
1. Criminal Case No. : 299415/2016 2. Date of commission of offence : 14.06.2013 3. Date of institution of the case : 08.11.2013 4. Name of the complainant : State 5. Name of accused, parentage & : Abhinav Seth S/o Sh. Pradeep Seth 6. Offense complained or proved : 279/338/304A IPC 7. Plea of the accused : Pleaded not guilty 8. Date on which order was reserved : 01.12.2021 9. Final order : Acquitted 10. Date of final order : 18.12.2021 1/13
1. The accused is facing trial for offences u/s 279/338/304A IPC. The genesis of the prosecution story is that on 14.06.2013, pursuant of receipt of information vide DD No. 25B, PS I.P. Estate, the team of police went to the spot of alleged occurrence at near Power House, Ring Road, Raj Ghat Depot, Delhi where the vehicle bearing no. DL 4CAQ 0330 was found parked near the road along with two accidental bicycles. It is further in the allegations that one eye witness namely Dharam Singh also met the team of police at the spot and handed over accused Abhinav Seth to them alleging that the accident was caused by the accused. It was also informed that the injured was taken to hospital, pursuant to which police reached LNJP Hospital and collected MLC of injured Ajit Kumar who was stated to be brought dead and other injured namely Sanjeev Kumar was stated to be referred to Neuro/Ortho Department for the treatment of injuries sustained by him. The MLC of injured Chand was also collected and he was also stated to be referred to Ortho Department. Thereafter, statement of complainant, Dharam Singh was recorded pursuant to which criminal law was set into motion vide registration of the present case FIR. As per the statement of complainant, the accident was caused due to rash and negligent driving of vehicle no. DL 4CAQ 0330 by accused Abhinav Seth resulting in death of victim Ajit Kumar@Kalu and injuries to Sanjeev and Chand. During the course of investigation, the alleged offending vehicle was also taken into possession by the police and after post-mortem of deceased, the PMR was collected. The final opinion regarding the injuries sustained by the injured persons was also obtained and the injuries suffered by victim, Sanjeev Kumar were opined to be grievous in nature and Section 338 IPC was added in the case FIR. After completion of investigation, the chargesheet for offences u/s 279/338/304A IPC was submitted for trial of accused.
2. Thereafter, the cognizance of the offences was taken by the Ld. Predecessor Court and on the basis of material available on record, notice of accusation for offences u/s 279/338/304A IPC was framed and served upon accused to which he pleaded not guilty and claimed trial.
3. In order to establish guilt of the accused, prosecution has examined nine 2/13 witnesses in all. The accused has admitted the documents in the nature of DD No. 25B dated 14.06.2013, FIR, certificate u/s 65B Indian Evidence Act, mechanical inspection report of alleged offending car, mechanical inspection report of alleged accidental cycles, MLC of injured Sanjeev Kumar, X-ray report of injured Sanjeev Kumar, MLC and postmortem report of deceased Ajit Kumar and the formal witnesses were accordingly dropped from list of witnesses.
4. Thereafter, the statement of accused u/s 313 Cr.P.C. was recorded wherein all the incriminating circumstances were put to accused. The accused has also led evidence in his defence. The accused examined two witnesses in his DE.
5. Ld. APP for State has contended that the prosecution has established the guilt of the accused beyond all reasonable doubts with the help of coherent testimonies of the prosecution witnesses, therefore, the accused deserves to be convicted for the alleged offences.
6. Per contra, Ld. Defence counsel has contended that accused has been falsely implicated in the present case at the instance of the police. It has also been argued that the testimonies of the prosecution witnesses have not established either the identity of the accused as the driver of the alleged offending vehicle nor same has proved the commission of any rash or negligent driving by the accused. It has been contended that there exists serious doubts in the prosecution story and accused is liable to be acquitted for the alleged offences.
7. I have heard the rival contentions advanced by the prosecution and defence and have also gone through the case record carefully.
8. Prior to delving into the merits of the contentions advanced on behalf of parties, let us briefly discuss the testimonies of the material prosecution witnesses.
PW-1 Sanjeev is one of the persons who had allegedly sustained injuries due to accident in question. He deposed that on 14.06.2014, he alongwith his deceased father Ajit Kumar was standing on Kuchha Road on highway behind Raj Ghat Power House to cross the road, then at about 09:25 am, vehicle bearing no. 0330 i20 car came at a 3/13 high speed and hit him and his father, due to which he fell down on the car and after that he fell down on the stones lying on the road. He stated that his father also fell down on the rocks and became unconscious. He stated of having gained consciousness at LNJP Hospital where he came to know that his father has passed away due to injuries sustained by him in the accident. He could not identify the person who was driving the car. He identified the alleged offending car in photograph Ex. P-1. He also identified the photographs of the accidental bicycle Mark X1. Thereafter, this witness was declared hostile and was encountered with questions in the nature of cross-examination by Ld. APP for the State. He admitted that PW Dharam Singh was traveling behind him on the relevant date. He also admitted that the driver of the car was driving the vehicle in rash and negligent manner and without blowing the horn. He further admitted that the driver did not stop the car and same struck with the grill towards Yamuna River at the corner of the road and the vehicle was being driven at such a high speed that the grill also fell down on the rocks at the riverside. He admitted that the driver of the vehicle was apprehended at the spot by the public persons and Dharam Singh. He, however, could not state if the alleged offending vehicle was being driven by the accused on the relevant date or not. In his cross examination by Ld. Defence Counsel, he stated that there was no zebra crossing on the road where the accident occurred. He admitted that he along with his father was coming from River Yamuna and was crossing the road from the place of accident. He also admitted that there is complete grill on the left side of the road leading towards ITO. He admitted that the place of accident was not an authorized way to cross the road. He could not tell about the speed of offending vehicle at the time of accident. He denied that the offending vehicle was within permissible speed limit at the time of accident. He stated that around 10-15 public persons were present near the road at the time of accident and he knows the names of some of the persons present there. He stated that he did not become unconscious immediately after the accident and he lost his consciousness only after the time when the driver of the vehicle came out.
PW-2 Dharam Singh is cited as another eyewitness to the alleged accident. He stated 4/13 that at around 09:25 am of the date of occurrence, Kallu along with his son was going on bicycle from his fields and they were crossing the road with bicycle in their hands, then one car of white color came at a fast speed from ISBT side and hit Kallu and his son due to which both of them fell on the stones lying on the roadside. Thereafter, the car was stopped by the public persons and one of the public persons made PCR call. He stated that the accused was also apprehended at the spot and was handed over to police officials. He identified the accused as the driver of the alleged offending car. He stated that the complaint dated 14.06.2013 Ex. PW-2/A was made by him to the police after which the accused was arrested vide arrest memo Ex. PW-2/C and personal search memo of accused Ex. PW-2/B was also prepared. He deposed that the offending car and damaged bicycle was also seized vide seizure memos Ex. PW-2/D and Ex. PW-2/E, respectively. He identified the offending car in photographs Mark A-1 to A-4 and damaged bicycle in photograph Mark X1. He also identified the stones on which the deceased Kallu and his son fell down as Mark X2. This witness was also offered questions in the nature of cross-examination by Ld. APP for the State and admitted that the number of offending car was DL 4CAQ 0330 which along with R/C, insurance and DL of accused was seized vide seizure memo Ex. PW-2/F. In his cross-examination by Ld. Defence Counsel, he stated that he cannot read and write Hindi and English as he is illiterate and that after recording his statement by the IO, same was not read over to him. He admitted that the accident took place when Kallu and his son were crossing the road. He stated that the number of offending car was not told by him to the police and that the car was coming at a speed of 60-70 km when it hit Kallu and his son. He admitted that the maximum permitted speed limit is 70 km/hr and also that there was no zebra crossing at the place where the Kallu and his son were crossing the road. He admitted that there is complete grill on the left side of the road going towards ITO. He also admitted that the place of accident is not the correct path to cross the road. He admitted that the vehicle was not driven in a rash and negligent manner. He admitted that after the collision, the driver of the car stopped the same and came out to see the injured and that the car was not stopped by him nor its driver was caught by him or 5/13 public persons. He also admitted that the accident took place due to negligence of Kallu and his son.
PW-3 Janardhan Prasad is cited as another eyewitness to the alleged occurrence. He stated of having reached the spot of occurrence after hearing noise of accident and at the spot, he found two bicycles and one i20 car no. DL 4CAQ 0330 in accidental condition. He stated that some public persons also gathered at the spot. He deposed that the injured persons were also seen at a distance of 10-15 meters on the corner of the road and on the slope in the stones and bushes near iron grill. The accused driver was also present in the car at the spot along with the public persons. He deposed of having made PCR call at 100 number and informed the police regarding the occurrence after which police reached the spot and injured persons were taken to hospital with the help of public persons as well as one Chand. He further stated that both the injured persons were conscious at that time and the foot thumb of Chand also got injured at the time when he along with this witness was taking injured persons out of stones and bushes. He identified the accidental bicycles and alleged offending car in photographs Mark X1 to X9 and Mark A1 to A4, respectively. He also identified the accused as the person who was handed over by public persons to the police. In his cross-examination, he admitted that the driver of the car was sitting inside the vehicle and he was not caught or surrounded by any person at the spot.
PW-4 ASI Satpal Singh deposed that on 14.06.2013, he joined the investigation along with IO/HC Pramod and went to spot of occurrence from where he came to know that the injured was already shifted to the hospital and the car no. DL 4CAQ 0330 along with the damaged cycle was lying on the road and accused Abhinav Seth was present there. The accused was handed over to the IO by the public persons after which IO left for the hospital and he remained at the spot. After about 1 pm, IO again came back at the spot and handed over rukka for registration of FIR pursuant to which he went to police station and got registered the FIR. The copy of FIR along with original rukka was handed over to IO. The IO seized alleged offending car and cycle vide seizure memo Ex. PW-2/D and Ex. PW-2/E. The accused was arrested vide arrest memo Ex.
6/13PW-2/C and personal search memo was prepared. He identified the photographs of the car and the cycle Mark X1 to Mark X9.
PW-5 ASI Rajender Singh deposed that on 14.06.2013 at around 09:25-09:30 am, he went to the spot of occurrence after receiving PCR call from where it transpired that injured persons were already shifted by the ambulance to the hospital.
PW-6 Shailendra Kumar Singh is the driver of CATS ambulance who stated to have taken injured persons to the hospital.
PW-7 ASI Pramod is the IO of the present case who deposed of having reached the spot after receiving DD no. 25B. He stated that one i20 car no. DL 4CAQ 0330 and two cycles were lying in accidental condition at the spot and one witness Dharam Singh was present there who stated that the accident was caused by the rash and negligent driving of accused. The accused was produced by witness Dharam Singh to him after which he had left the spot and went to hospital from where the MLCs of injured and deceased were collected and the statement of Dharam Singh Ex. PW-2/A was recorded after returning to the spot and on the basis of same, rukka vide endorsement Ex. PW-7/A was prepared which was handed over to Ct. Satpal, who went to PS and registered the FIR. The site was inspected and site plan Ex. PW-7/B was prepared. The car and cycles were seized vide seizure memos. The documents of car and driving license of accused were also seized and the accused was arrested. The car and cycles were also mechanically inspected vide request letters Ex. PW-7/C, Ex. PW-7/D, Ex. PW-7/E respectively. Thereafter, the investigation was transferred to MACT Cell. In his cross-examination, he stated that when he reached the spot, two persons were already present there. One was eyewitness Dharam Singh and other was accused Abhinav Seth. He denied that both the injured persons along with many other persons were present at the spot of occurrence. He could not state as to how he traveled to hospital. He denied that he was not deliberately disclosing the mode of his travel to hospital. He denied that the seizure memo was prepared in police station. He stated that the accidental cycles were taken to police station on rickshaw. He stated of having not noted down the names of rickshaw 7/13 pullers. He admitted that steel railing at Point X to X1 has been depicted in site plan Ex. PW-7/B. He also admitted that there is no zebra crossing on the spot of occurrence. He volunteered that there exists a passage from Yamuna River leading to the spot of occurrence which has been depicted at Point B to B1 in site plan Ex. PW-7/B. He could not state about the permissible speed limit of vehicle on the date of occurrence. He however stated that the present permissible speed limit is 70 km/hr. He denied of having not recorded any statement of witnesses at the spot. He denied that the accused has been falsely implicated in the present case.
PW-8 Retd. ASI Mubarak Ali stated that during the course of investigation, after postmortem of deceased Ajit Kumar, his PMR was collected by him. The documents of the offending car and driving license of accused were also verified and the final opinion regarding injury sustained by Sanjeev Kumar was obtained, which was opined as grievous, pursuant to which Section 338 was added in FIR and after completion of investigation, the charge-sheet was filed.
PW-9 Ct. Surender deposed that during the investigation, IO collected postmortem report of deceased after which the dead body of deceased was handed over to his LRs.
9. The accused admitted the DD No. 25B dated 14.06.2013, FIR No.133/13 PS I.P. Estate, certificate u/s 65B of Indian Evidence Act, mechanical inspection report of car no. DL 4CAQ0330, mechanical inspection report of both cycles, MLC, and X-ray report of injured Sanjeev Kumar, MLC and post mortem report of deceased Ajeet Kumar vide his statement u/s 294 Cr.P.C. Same are Ex.A-1 to A-10, respectively.
10. The accused also led defence evidence and examine two witnesses. DW-1 Madan Singh Adhikari is the UDC from PWD who stated of having no knowledge regarding existence or non-existence steel fencing grill at the spot of occurrence.
DW-2 K.C. Pant is the Assistant Engineer, PWD who stated that the record regarding installation of railing on road is untraceable as same is an old record.
11. This is the entire evidence on record.
8/1312. It is a settled law that Section 279 IPC punishes the act of a person driving or riding a vehicle on a 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. In the case of Abdul Subhan Vs. State (NCT of Delhi) 133(2006) DLT 562, the Hon'ble High Court of Delhi while discussing about the ingredients of section 279 has observed:-
"In Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved".
Further, what would constitute rash and negligent act has been described by the Hon'ble Superme Court in the matter of Mohd. Aynuddin @ Miyan Vs. State of Andra Pradesh decided on 28.07.2000, in the following words:-
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to ex- ercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
10. Besides this, it has also been upheld in various decisions that evidence of high speed simpliciter, is not ipso facto proof of rashness or negligence.
In the case of Rajiv Netra Panigrahi Vs. State of Orrisa decided on 20.07.1990, Hon'ble Orrisa High Court observed the following:-
"It is no doubt true, as contended on behalf of the petitioner and as supported by authorities, that high speed in driving of a vehicle does not by itself amount to rash and negligent driving. If the accused driver was driving the vehicle on the highway and had 9/13 negotiated the distance safely, it could not have been said that he was driving rashly or negligently because of the high speed."
In the case of Kishore Chand Joshi Vs. State decided on 12.11.2018 Hon'ble High Court of Delhi has observed:-
"A witness can depose as to the manner of driving or speed at which the vehicle was being driven but not render an opinion on "rash and negligence". High speed by it- self may not in each case be sufficient to hold that a driver is rash or negligent. Speed alone is not the criterion for deciding the rashness or negligence on the part of the driver."
The Hon'ble High Court of Delhi in Abdul Subhan (Supra), also observed that: "The aforesaid observations of the Supreme Court make it more than clear that a mere alle- gation of high speed would not tantamount to rashness or negligence. In the present case also, I find that apart from the allegation that the truck was being driven at a very high speed there is nothing to indicate that the petitioner acted in a manner which could be regarded as rash or negligent."
Further in Abdul Subhan (Supra), the decision of State of Karnataka Vs. Satish 1998 SCC (CRI) 1508 was also discussed in which Hon'ble Supreme Court observed:-
"Both the trial court and the appellate court held the respondent guilty for of- fences under Section 337, 338 and 304A IPC after recording a finding that the respon- dent was driving the truck at a "high speed". No specific finding has been recorded ei- ther by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at a "high speed", both the courts pressed into aid the doctrine of res ipsa loquitor to hold the respondent guilty.
4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by 10/13 "high speed". "High speed" is a relative term. It was for the prosecution to bring on record material to establish as to what is meant by "high speed" in the facts and cir- cumstances of the case. In a criminal trial, the burden of proving everything essential to the establishment of the charge against an accused always rests on the prosecution and there is a presumption of innocence in favor of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory excep- tions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitor".
13. Besides, the ingredients mentioned above, the identity of the accused as driver of the vehicle must also be established separately by the prosecution in order to establish the guilt of the accused.
14 In the present case, it is noteworthy to point out that in order to establish the lia- bility of the accused for the alleged offences, prosecution has examined three eyewit- nesses. The testimony of PW-1 Sanjeev Kumar who is also one of the injured in the present case has failed to identify the accused as the driver of the alleged offending ve- hicle. This witness was declared hostile and was encountered with the questions in the nature of cross-examination by Ld. APP for the State but nothing incriminating against the accused could be elicited from the testimony of this witness. Even though, in the testimony of PW-2 Dharam Singh, it is stated that the alleged offending vehicle was be- ing driven by accused in rash and negligent manner during the relevant time but the tes- timony of this witness is silent regarding the mode and manner in which the accused was driving the alleged offending vehicle at the relevant time. This witness even though has stated that the accused was driving the vehicle at a fast speed but during the course of his cross-examination, he himself admitted the fact that the speed of the vehicle dur- ing the relevant time was around 60-70 km and the maximum permitted speed limit was 70 km/hr. This witness also admitted the fact that from the place where deceased Kallu and his son were crossing the road was not having any zebra crossing and that there is a 11/13 complete grill on the left side of the road. He also admitted the fact that the accused was not driving the vehicle in rash and negligent manner and that neither the car of ac- cused was stopped by him nor he was caught by the public. He also admitted the fact that the accident had taken place due to negligence of Kallu and his son. Even, PW-1 Sanjeev Kumar has also admitted the fact that there was a complete grill on the left side of the road and nor there is any footpath on road neither the place of accident was an authorized way to cross the road. Similar is the version of IO/ASI Pramod examined as PW-7, who also admitted the fact that there is no zebra crossing at the spot of occur- rence and the permissible speed limit at the spot is 70 km/hr. These facts and circum- stances clearly rules out the existence of rash and negligent driving on the part of the accused as it has been admitted by injured Sanjeev as well as eyewitness Dharam Singh that the path from which deceased and his son were crossing the road was not an autho- rized way to cross the road nor there was any zebra crossing there. It is also admitted the fact that the accused was driving the vehicle within the permissible speed limit, therefore, no rash or negligent act can be imputed to accused. Besides, from the testi- mony of PW-3 Janardhan Prasad, it perceives that he was not an eyewitness to the al- leged occurrence rather he had reached the spot after hearing the noise of accident and had informed the matter to the police. It is pertinent to highlight the fact that this wit- ness confirmed that the accused was sitting in the alleged offending car at the time when he reached the spot and that he was neither caught or surrounded by anybody at the spot and also that the accused was not handed over to police by the public persons. It also perceives from the testimonies of PW-1, PW-2 and PW-3 that at the time of al- leged accident, there were several other public persons present at the spot of occurrence but surprisingly, none of the public persons were associated in the investigation of the case nor any mention of such public persons can be found in the charge-sheet. These material omissions on the part of IO have remained unexplained and cast doubts on prosecution story and the benefit of the said doubts has to be given to the accused. The other witnesses examined by the prosecution are either the formal witnesses or the offi- cial witnesses and as such their testimonies even if taken together are not sufficient in 12/13 establishing the guilt of the accused. In nutshell, from the testimonies of the alleged eye witnesses examined by the prosecution, the alleged occurrence of accident due to rash or negligent act of the accused stands not proved and as such the liability for the alleged offences cannot be fastened on the accused.
15. In view of the foregoing discussion, this Court is of the considered view that the prosecution has failed to establish beyond all reasonable doubts that on the given date, time and place, the accused driving the vehicle no. DL 4CAQ 0330 in a rash or negli- gent manner so as to endanger human life or public safety or others, therefore, accused is deserves to be acquitted for offence u/s 279 IPC. The prosecution has also failed to establish beyond all reasonable doubts that on the given, date, time and place, the ac- cused dashed his vehicle into the cycles on which injured Sanjeev and deceased Ajeet Kumar were riding, thereby causing death of victim Ajeet Kumar by doing rash or neg- ligent act not amounting to culpable homicide and grievous injuries to victim Sanjeev Kumar therefore, the accused also deserves to be acquitted for offences u/s 304A and 338 IPC. The accused is accordingly acquitted for offences u/s 279/304A/338 IPC.
16. The bail bonds, if any furnished by accused at the time of commencement of trail stands canceled. Surety, if any stands discharged. Documents, if any shall be returned to its rightful owner as per rules. Endorsement, if any stands canceled. Case property if any, shall be disposed off after expiration of period to assail this judgment and in case of appeal, as per the directions of Ld. Appellate Court.
Announced in the open court on 18th day of December, 2021 (Rishabh Kapoor) MM-03 (Central), THC, Delhi 13/13