Delhi District Court
State vs . Sukhdev on 4 October, 2012
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 375/99
U/S: 279/337/304A IPC
P.S: TIMAR PUR
STATE VS. SUKHDEV
:JUDGMENT:
Sl. No. of the case 797/2
Date of commission of offence 27.07.1999
Name of the complainant Arif
S/o Sh Sakki Jan
R/o Village Suraj Pur
Lekri, PS Ourangabad,
Dist. Bulandsahar (UP).
Name, parentage and address Sukhdev
of the accused. S/o Sh Amar Singh
R/o Village Ram Basti
Harebri road, Sangroor
Punjab.
FIR No. 375/99 1/12
STATE VS. SUKHDEV
Offence complained off U/s 279/337/304A IPC
Plea of accused Pleaded not guilty
Final order Acquitted
Date of order 04.10.2012
Date of final arguments heard 04.10.2012
BRIEF FACTS AND REASONS FOR DECISION :
1. The facts of the case in brief are that on 27.07.1999 at about 12:30 pm near Gas godown, outer ring road, Chhang basti, Delhi, within the jurisdiction of Police Station Timar Pur the accused was found driving Punjab roadways bus bearing number PB11M1694 in a rash and negligent so as to endanger human life and the personal safety of others. Further, while driving the aforesaid vehicle in the aforesaid manner struck against three pedestrians namely Mohd. Arif, Naresh Kumar and Vinod, who were going on the road towards the same side. He thus caused the simple hurt upon the person of Mohd. Arif and Naresh and death of pedestrian namely Vinod (not amounting to culpable homicide). The accused Sukhdev was thereby booked for the offence punishable u/s 279/337/304A of IPC.
FIR No. 375/99 2/122. That after completion of investigation the challan against the accused was filed on 29.07.2000 and accused was summoned. The notice u/s 251 of Cr.PC under section 279/337/338 IPC was issued against accused on 10.01.2002 to which he pleaded not guilty and claimed trial. That on 05.11.2003 the notice was amended after noticing the omission in the earlier notice. The amended issued was issued for offence under section 279/337/304 A IPC.
3. That in order to prove their case the prosecution has examined nine witnesses in the present case.
4. The PW1 WHC Urmila is the duty officer. She has deposed that on 27.07.1999 she received rukka and on the basis of which, she registered FIR, which is Ex PW 1/A.
5. The PW2 SI Kali Charan is the mechanical inspector. He has deposed that on 28.07.1999 he mechanically inspected the bus bearing No. PB11M1694 and submitted his report which is Ex PW 2/A.
6. The PW3 Smt Kanta Yadav is the record clerk. She proved the MLC bearing No. 27799 of patient Naresh prepared by Dr. Deepak Singh and radiologist report of Dr. Ashish. She has also identified the signatures of both the doctors. The MLC is Ex PW 3/A.
7. The PW4 Mohd Arif is the complainant/injured in the present case. He deposed that on 27.07.1999 he alongwith his friend Naresh Kumar FIR No. 375/99 3/12 STATE VS. SUKHDEV and Vinod had come to Chhang basti, Majnu Ka Tilla. At about 12:30 pm, they all were walking on the left side of the road on the ring road towards Wazirabad and in the meantime a Punjab roadways bus came from behind and struck against all of them. As a result of which they all sustained injuries. He and Naresh Kumar were taken to hospital by the police. His friend Vinod Kumar died at the spot, immediately after sustaining injuries. He became unconscious and thus he had not seen as to who was driving the bus. Police recorded his statement Ex PW 4/A. The witness was declared hostile and was cross examined by Ld APP for the State. But in his cross examination, he failed to disclosed regarding the registration number of offending vehicle. He also failed to identify the driver of the said bus.
8. The PW5 Dr. Swaresh Tandon deposed that on 28.07.1999 he conducted the postmortem of deceased Vinod who was brought by SI Subhash Chander. The PMR No 2131 was prepared by him in his handwriting and the same is Ex PW 5/A.
9. The PW6 Ramesh Chander deposed that on 28.07.1999 he identified the dead body of his brother Vinod at Subzi Mandi Mortuary. His brother had expired in road traffic accident. He had taken the dead body vide memo Ex PW 6/A.
10.The PW7 Hardeep Singh is the superdar. He has deposed that he had taken the bus bearing No. PM11M1694 on superdari.
FIR No. 375/99 4/1211.The PW8 Dharmesh Sharma is Ld ASJ. He has deposed that on 28.07.1999, an application for conducting TIP was marked to him by the court of Sh V. K. Bansal the then Ld MM. Accused Sukhdev was produced by SI Subhash Chand in muffled face. Accused had declined to participate in TIP. He had warned him about adverse inference which may be drawn on his refusal. The TIP proceedings were recorded and same are Ex PW 8/A.
12.The PW9 Inspector Subhash Chander the IO. He deposed that on 27.07.1999, on receipt of DD No. 6A which is Mark A, he alongwith Ct. Madan Singh went to Outer Ring Road, Chhang Basti, Near Gas Godown. There they noticed one person who was already dead and found one Punjab Raodways bus No. PB11N1694. They were also informed that two injured have already been shifted to Trauma center. Thereafter, the photographer was called the dead body was photographed. Thereafter, he left for Trauma center and Ct. was directed to remain at spot. The injured namely Arif and Naresh were found to be admitted and their MLCs were collected. Thereafter, PW Arif was declared fit for statement and his statement was recorded vide a Ex.PW4/A. Thereafter, he left for spot where the Tehrir Ex.PW9/A was prepared and handed over to Ct. Madan for getting the case registered. Ct. Madan came back at the spot with copy of FIR and original Tehrir. Thereafter, the site plan was prepared Ex.PW9/B. Thereafter, the offending vehicle was seized vide memo Ex.PW9/C and deposited with Malkhana. The dead body was thereafter sent to Mortuary through Ct. On the next day i.e. FIR No. 375/99 5/12 STATE VS. SUKHDEV 28.07.1999, the dead body of the deceased was identified by Kishore and Suresh Kumar the relatives of deceased. Thereafter, request was made for postmortem to CMO, Subzi Mandi Mortuary which is Ex.PW9/D. After getting postmortem conducted the dead body was handed over to Bijender Pal vide memo Ex.PW6/A. The report u/s 174 Cr.PC was also prepared at the spot itself which is Ex.PW9/E. The identification statements of the relatives of the deceased were also recorded vide memo Ex.PW9/F and Ex.PW9/G. On 28.07.1999 itself the accused himself came at the Police Station alongwith one SI of Punjab Roadways. He produced the documents of the offending vehicle which were seized vide memo Ex.PW9/H. The accused also produced one receipt of challan vide which the driving licence was seized. The said receipt was seized vide seizure memo ExPW9/I. The accused was thereafter arrested vide arrest memo and got personally searched vide memos Ex.PW9/J and Ex.PW9/K. The TIP of the accused was also got conducted. The application for the same is Ex.PW9/L. Thereafter, the offending vehicle was got mechanically inspected vide memo Ex.PW2/A. The request in this regard is Ex.PW9/M. Thereafter, the vehicle was released on superdari. The superdarinama accepted by him in this regard is Ex.PW9/N. The postmortem report was collected which is Ex.PW5/A. The MLC of the injured Arif and Naresh were deposited qua result. The duty slip of the accused was also seized vide Ex.PW9/H. The accused was also identified by the injured/PW Arif at Police Station. The conductor of the said vehicle was also examined. The statements of the witnesses were recorded.
FIR No. 375/99 6/1213.That on 21.03.2012 the prosecution evidence was closed as the matter was pending since the year 2002 for the same and prosecution failed to secure the presence of all the material witnesses despite opportunities. That on 26.04.2012 after conclusion of prosecution evidence the statement of accused namely Sukhdev u/s 281 Cr. PC was recorded. Accused denied all the allegations which has been levelled against him. He denied that the vehicle was driven by him caused any accident. He further stated his vehicle had already broken at the spot and he had gone for calling the mechanic. The defence evidence was not led by the accused despite opportunities.
14.I have heard the Ld. APP for the State and Ld. counsel for accused and gone through the record.
15.The first charge which has been levelled against the accused is that he was found driving Punjab roadways bus bearing registration number PB11M1694 in rash and negligent manner. Further, while driving the said bus which hit against three pedestrians and caused simple hurt on the person of Mohd. Arif, Naresh and caused the death of one of the pedestrian namely Vinod.
16.That for proving their case, the prosecution was firstly required to prove that the accused was driving the bus in a rash and negligent manner. The term "rash and negligent driving" came up for consideration by Hon'ble Supreme Court in 2001 (2) MWN (Cr.) SC FIR No. 375/99 7/12 STATE VS. SUKHDEV 77 : (2000 Cri LJ 3508) (Mohammed Aynuddina alias Miyam v. State of Andhra Pradesh) An excerpt from it would run thus:
"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 exercise 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 caution".
17. The star eye witness examined by the prosecution is PW4 is the complainant/injured in the present case and upon his statement Ex PW 4/A the present FIR was registered. He was declared hostile by the prosecution. As per his testimony a Punjab Roadways bus struck against them from behind. He further stated that he could not say as to how the bus was being driven before the accident. He failed to deposed regarding the registration number of offending vehicle. He further in response to leading question of Ld APP stated that bus was FIR No. 375/99 8/12 STATE VS. SUKHDEV being driven at fast speed and negligently. Thus this part of his testimony is in contradiction to his earlier assertion that he could not see the manner of driving of bus prior to the accident. Thus not much importance can be given to his testimony with respect to the manner of driving of offending vehicle. The prosecution also failed to produced the other eye witness namely Naresh Kumar, whose whereabouts were stated to be not traceable.
18. The testimony of PW4 with respect to manner of driving of offending vehicle has also to be seen alongwith the site plan Ex PW 9/B. As per the site plan point B is the place where dead body was found. The said place is quite a distance from the pavement on the left side. It is also admitted fact that PW4 alongwith his accomplices were going on the road rather then on the pavement made for the pedestrians on the main road. Thus the negligence of pedestrians also cannot be ruled out. The PW4 has also failed to deposed regarding the manner of driving of offending vehicle. Mere utterance of words high speed and negligence to the leading question, can not prove the case of prosecution. To support view I am guided by the judgment of Delhi High Court of Abdul Subhan Vs State 2006 (3) JCC 1797. In these circumstance, it can not be presumed that mere hitting the pedestrians by a vehicle from behind on the road being the act of driver of vehicle to be that of rash and negligent.
19.The another material point requires for consideration is the identity of the offending vehicle which caused the accident. The accused in FIR No. 375/99 9/12 STATE VS. SUKHDEV his statement under section 313 CrPC specifically took a plea that no accident has been caused by his vehicle bearing No PB11M1694. He further stated that his vehicle had broken down at the spot on the day of accident. The prosecution in order to prove the identify of offending vehicle has heavily relied upon the testimony of PW4. But PW4 even in his cross examination by Ld APP failed to disclose about the identity of offending vehicle. He further in his cross examination stated that he did not see the accused, the driver of the vehicle at the spot. In the cross examination by Ld APP, PW4 further admitted that the driver of the offending vehicle after the accident ran away from the spot with vehicle. But this aspect of the PW4 is in the contradiction to the story of prosecution as narrated by the PW9 the IO. The PW9 stated that the offending vehicle was found by them at the spot. The prosecution has failed to produce any other witness through which the identify of offending vehicle could have been proved. Thus the identify of offending vehicle has remained unproved.
20.The remaining witnesses examined by the prosecution are formal witnesses. They have only participated in the investigation or conducted the medical proceedings. They are no help for proving the charge of rash and negligent driving by accused being the driver of bus bearing No. PB11M1694.
21.In view of the above stated reasons, I am of considered opinion that prosecution has failed to discharge its burden of proving its case FIR No. 375/99 10/12 STATE VS. SUKHDEV beyond reasonable doubt and benefit of doubt has to be given to accused. In view of the same, accused Sukhdev is acquitted u/s 279/337/304A of IPC. Bail bond and surety bond stands discharged. File be consigned to Record Room.
(Announced in the open court)
Dated: 04.10.2012 (GAGANDEEP SINGH)
MM01/NORTH
TIS HAZARI : DELHI
FIR No. 375/99 11/12
STATE VS. SUKHDEV
CC/FIR No. 375/99
P.S. TIMAR PUR
STATE VS. SUKHDEV
04.10.2012
Present: Ld. APP Sh. Manan Munjal for the State.
Accused in person with Ld. counsel.
Final arguments heard.
Vide my separate detailed judgment of the even date the accused Sukhdev is acquitted for the offence u/s 279/337/304A of IPC. Accused wishes to adopt bail bond and surety bond. Previous bail bond and surety bond stands adopted for the purpose of Section 437A of Cr.PC. They shall remain valid for period of six months from today. Original documents returned as per rules.
File be consigned to Record Room.
(GAGANDEEP SINGH) MM01/NORTH DELHI 04.10.2012 FIR No. 375/99 12/12 STATE VS. SUKHDEV