Delhi District Court
State vs Vinod Kumar on 16 February, 2024
IN THE COURT OF MS. HIMANSHI TYAGI, METROPOLITAN
MAGISTRATE-03, EAST KARKARDOOMA COURTS : DELHI
DLET020032152016
FIR No. 564/2015
Unique Case ID No. 13869/2016
CNR No. DLET02-0032152016
Police Station Ghazipur
Title State Vs. Vinod Kumar
Name of complainant ASI Yashpal
Name of accused Vinod Kumar
S/o Sh. Dev Nath
R/o 253, Pratap Khand,
Vishwakarma Nagar, Vivek Vihar,
Delhi.
Permanent address: 125, Govind
Khand, Vishwakarma Nagar, Vivek
Vihar, Delhi.
Date of institution of challan 31.03.2016
Date of Final arguments 29.01.2024
Date of pronouncement 16.02.2024
Offence complained of U/s. 279/304-A IPC & U/s. 146/196
Motor Vehicles Act (MV Act)
Offence charged with U/s. 279/304-A IPC & U/s. 196
Motor Vehicles Act
Plea of the accused Pleaded not guilty
Final order Acquitted Under Section 279/304-A
IPC and convicted Under Section196
Motor Vehicles Act
Digitally
FIR No. 564/2015 State Vs. Vinod Kumar page 1 of 23 signed by
HIMANSHI
HIMANSHI TYAGI
TYAGI Date:
2024.02.16
16:00:29 -0800
JUDGMENT
BRIEF REASONS FOR THE DECISION OF THE CASE:-
Vide this judgment, I shall decide the case of the prosecution against accused Vinod Kumar for offences under section 279/304-A IPC and 146/196 Motor Vehicle Act.
02. Succinctly stated, the prosecution case arises out of DD No. 26-A dated 14.06.2015 regarding an accident near EDM Mall, Road No. 56. As per the facts of the prosecution case, the said DD was marked to ASI Yashpal, on which, he alongwith Ct. Parmanand and Ct. Pushpender reached at the spot, where no injured was found and after enquiry, he went to LBS hospital, where he collected the MLC of injured person and sent the rukka for registration of the FIR. Upon receipt of DD No. 8-A, the case was then transferred CMVAI Cella nd the case was marked to IO/SI Ram Dev, who completed the formailities of the investigation and examined the witnesses. Accordingly, after the investigation, police filed the present charge sheet in FIR No. 564/2015 against the accused for commission of offences punishable under section 279/304-A IPC and 146/196 Mother Vehicle Act. It is, thus, the case of the prosecution that accused while driving auto bearing no. DL-1RL-3105 at high speed and in a rash or negligent manner, toppled the auto, thereby causing injury to the Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
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FIR No. 564/2015 State Vs. Vinod Kumar page 2 of 23 0800 passenger Deepak, which ultimately resulted into his death.
03. Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, notice for offences punishable under section 279/304-A IPC and 196 of Motor Vehicle Act on 30.11.2016 by the Ld. Predecessor of the Court was served upon the accused, to which he pleaded not guilty and claimed trial.
04. The prosecution had cited total 20 witnesses in the present matter and the prosecution in support of present case has examined 15 witnesses as PW Dr. Mahadev and Dr. Priyal Jain were dropped on the basis of admission of the accused u/s. 294 Cr.PC.
05. The eye witness Madhusudhan Banerjee and public witness PW Amrit Tarabdar were summoned in the present case as a prosecution witnesses. However, the witnesses remained unserved despite several efforts. Even the summons issued to PW Madhusudhan Banerjee and public witness PW Amrit Tarabdar were received unserved through the DCP concerned. The State was given last opportunity to produce and examine the witnesses on 10.04.2023. However despite opportunity, both these witnesses could not be produced and examined as a witnesses by the prosecution. Considering all these circumstances and the fact that sufficient efforts had been made to procure the presence of the witness Madhusudhan Digitally signed by HIMANSHI HIMANSHI TYAGI FIR No. 564/2015 State Vs. Vinod Kumar page 3 of 23 TYAGI Date:
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Banerjee and public witness PW Amrit Tarabdar, they were dropped from the list of witnesses vide order dated 26.04.2023. Thereafter, after examination of the remaining witnesses, vide order dated 02.09.2023, PE was closed.
EVIDENCE OF THE PROSECUTION:-
06. PW1 is Sh. Gautam, who went to the hospital alongwith the other relatives and identified the dead body of the deceased Deepak and proved document Ex. PW1/A and the dead body handing over memo Ex. PW1/B. The witness was cross-examined by the defence Counsel.
07. PW2 is ASI Birpal Singh, who was the Duty Officer on 14.06.2015 from 8.00 a.m. to 4.00 p.m., who proved the DD entry no. 26-A Ex. PW2/A. The witness was not cross-examined by the defence Counsel despite opportunity.
08. PW3 is HC Vivek Kumar, who was the Duty Officer on 14.06.2015 from 4.00 p.m. to 12.00 mid night. He has proved the registration of FIR Ex. PW3/A and endorsement on rukka Ex. PW3/B. The witness was not cross-examined by the defence Counsel despite opportunity.
09. PW4 is T.U. Siddiqi, who had conducted the mechanical Digitally signed by HIMANSHI FIR No. 564/2015 State Vs. Vinod Kumar page 4 of 23 HIMANSHI TYAGI TYAGI Date:
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inspection of the Bajaj TSR bearing No. DL-1RL-3105 and has proved his report Ex. PW4/A. The witness was cross-examined by the defence Counsel.
10. PW5 and PW6 are Ct. Parmanand and HC Pushpender, who were accompanied PW12 IO/ASI Yashpal on the day of the incident and have deposed on the same lines as deposed by IO/ASI Yashpal. These witnesses were cross-examined by the defence Counsel.
11. PW7 is Sh. Dharmender Yadav, who had taken the TSR bearing No. DL-1RL-3105 on superdari vide superdarinama Ex. PW7/A. He also proved the reply Ex. PW7/B to the notice served upon him by the IO and also produced accused driver as well as the documents of TSR before the IO and identified his signatures on seizure memos Ex. PW7/C to Ex. PW7/E regarding these documents. He had also produced the documents regarding the purchase of TSR such as delivery receipt, form No. 29 and 30 etc in photocopy, which were seized by the IO vide seizure memo Ex. PW7/F. The witness was cross-examined by the defence Counsel.
12. PW8 is HC Kailash Chand, who was accompanied HC PW15 IO/ASI Ram Dev and deposed on the same lines as deposed by IO/ASI Ram Dev in his deposition. The witness was cross-examined Digitally signed by HIMANSHI HIMANSHI TYAGI FIR No. 564/2015 State Vs. Vinod Kumar page 5 of 23 TYAGI Date:
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by the defence Counsel.
13. PW9 is ASI Pradeep Kumar, who deposed that on 124.06.2015, at about 3.35 p.m., he received a call regarding an auto turned turtle near road No. 56 EDM Mall, Delhi and thereafter, he reached at the spot where, he saw that an auto was turned turtle and one injured was lying on the spot. He deposed that he lifted the injured and took him to LBS hospital and the injured revealed his name as Deepak. The witness was cross-examined by the defence Counsel.
14. PW10 is Ct. Ashok Kumar, who deposed that on 15.06.2015, he was posted at CMVAI Cell as Constable and on that day he alongwith IO/ASI Ramdev went to GTB hospital for the postmortem of Deepak, where IO got identified the dead body of Deepak to the family member and after postmortem dead body was handed over to the family members of the deceased on the statement of Sh. Gautam vide Ex PW1/A and Sh. Amrit Taqdar Ex. PW10/A. The witness was cross-examined by the defence Counsel.
15. PW11 is Virender Giri, who deposed that Dharmender Yadav is his neighbour and Dharmender Yadav had brought a TSR bearing No. DL-1RL-3105 from Umesh Mehto and he had signed fard, punchnama, superdari vahan Vide Ex. PW11/A. The witness Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
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was not cross-examined by the defence Counsel despite opportunity.
16. PW12 is SI Yashpal Singh, who deposed that on 14.06.2015, on receiving DD No. 26-A Ex. PW2/A, he alongwith Ct. Parmanand and Pushpender went near EDM Mall, Road No. 56, Ghazipur, Delhi, where they saw a TSR bearing no. DL-1RL-3105 in an accidental condition. He deposed that after enquiry, no eye witness was found thate at the spot, thereafer, he alongwith Ct. Pushpender went to LBS hospital and directed Ct. Parmanand to remain present there. He further deposed that he collected the MLC of the injured Deepak Vishwas and the injured was not in the conscious. He deposed that he prepared the rukka Ex. PW2/A on the basis of the DD entry. He further deposed that during investigation, he prepared the site plan Ex. PW12/A, seized the TSR vide seizure memo Ex. PW5/A, recorded the statement of the witnesses. He further deposed that during investigation, he received DD No. 8-A and as per the said DD entry, the injured had expired during his treatment and thereafter, he informed the said information to CMVAI Cell. The witness was cross- examined by the defence Counsel.
17. PW13 is Rajiv Gupta, who is the PCR caller of the incident. He deposed that on 14.06.2015, he was going towards EDM Mall and when he reached EDM Mall, he found crowd there and saw that one Auto was in a diagonal conditon near the spot. He deposed Digitally signed by HIMANSHI FIR No. 564/2015 State Vs. Vinod Kumar page 7 of 23 HIMANSHI TYAGI TYAGI Date:
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that he made call to the police, later, PCR official came to the spot and asked about the caller, on which, he replied that he called the PCR. He deposed that police officials had noted down his number and thereafter, he left the spot. He further deposed that he does not know who had taken the injured person to the hospital. He deposed that one person was found lying on the road near the said auto. He deposed that he cannot identify the said auto as there was heavy crowd near the said place. The witness was not cross-examined by the defence Counsel despite opportunity.
18. PW14 is Dr. Gunjan, who prepared the MLC No. 008770 dated 14.06.2015 Ex. PW14/A. The witness was not cross-examined by the defence Counsel despite opportunity.
19. PW15 is Retd. SI/Ram Dev, who deposed that on 15.06.2015, he was posted as ASI at CMVAI Cell, East District and on that day, the investigation of present case was marked to him and he had received the file of the present case from previous IO/ASI Yashpal Singh. He further deposed that on the same day, he alongwith Ct. Ashok went to GTB Hospital, Mortury where he had got conducted in post-mortem of deceased Deepak, after preparing the inquest papers, recorded the statement of Gautam and Amrit Taravdar i.e. Ex.PW-1/A and PW-10/A regarding the identification dead body of deceased and after post-mortem of the deceased Deepak, his dead body was handed Digitally signed by FIR No. 564/2015 State Vs. Vinod Kumar page 8 of 23 HIMANSHI HIMANSHI TYAGI TYAGI Date:
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to his family members vide handing over memo Ex.PW-1/B. He deposed that after got conducting the post-mortem of deceased Deepak, he alongwith Ct. Ashok reached at the spot i.e. infront of EDM Mall, Ghazipur, UP where he was inquring from betal shopkeeper where one person namely Banarjee met him and told him that he had seen the accident in question and told him that when he was going to Noida in auto after dropping his daughter at Anand Vihar Bus stand, one auto/TSR bearing registeration no. DL1RL3105 was plying ahead of his auto in a very high speed while driving the said TSR in a rash and negligent manner and the said TSR turtled and passenger inside the TSR came under the TSR. He deposed that thereafter, he had recorded the statement of Madhusudan Banarjee u/s 161 Cr.P.C. He further deposed that he had made the investigation from the concerned transport authority regarding the ownership of the abovesaid TSR and the name of the abovesaid TSR owner was revealed as Umesh Mahto, thereafter, he had given the notice u/s 133 M.V. Act Ex.PW-15/A to Umesh Mahto and on interrogation Umesh Mahto disclosed that he had sold the abovesaid TSR to one person namely Dharmender Yadav. He, thereafter, interrogated Virender Kumar Giri and Dharmender Yadav and obtained reply of Virender Kumar Giri Mark 15B. He further deposed that thereafter, he had served the notice u/s 133 M.V. Act to Dharmender Yadav through constable and thereafter, Dharmender Yadav came to PS and replied Digitally signed by HIMANSHI FIR No. 564/2015 State Vs. Vinod Kumar page 9 of 23 HIMANSHI TYAGI TYAGI Date:
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the said notice vide Ex.PW-7/B stating that he is owner of the abovesaid TSR and on 14.06.2015 and the abovesaid TSR was being driven by the Vinod Kumar Mahto. He further deposed that Dharmender Yadav had provided three receipts Mark 15A (colly) regarding the purchase of abovesaid TSR to him and also produced copy of form no. 29 & 30 which was notarized by the notary public and he had seized both the forms vides vide seizure memo Ex.PW-7/F. He further deposed that Dharmender Yadav had also produced the accused Vinod Kumar in PS, he had interrogated him and in the meantime, eye witness namely Madhusudan Banarjee also came to office of CMVAI Cell to know about the status of present case and he had correctly identified the witness Vinod Kumar as accused, who had caused the accident on 14.06.2015 in front of EDM Mall. He further deposed that thereafter, he had arrested and personally searched the accused Vinod Kumar vide memos Ex.PW-8/B and Ex.PW-8/C. He further deposed that on the same day, accused Vinod Kumar had also produced his original DL and his badge no. P13150030 and the same were seized vide seizure memos Ex.PW-8/A and Ex.PW-8/D. He further deposed that Dharmender Yadav had also produced RC, permit and fitness certificate of offending vehicle i.e. abovesaid TSR, which were seized by the IO vide seizure memo Ex.PW-7/C, Ex.PW-7/D & Ex.PW-7/E. He further deposed that he got conducted mechanical inspection of the said TSR from mechanical inspection and recorded Digitally signed by HIMANSHI FIR No. 564/2015 State Vs. Vinod Kumar page 10 of 23 HIMANSHI TYAGI TYAGI Date:
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the statement of the mechanical inspector. He further deposed that during investigation, the offending vehicle was not found insured and therefore, a separate kalandara was filed against the owner of TSR namely Dharmender Yadav u/s 146/196 of M.V. Act. He further deposed that he had collected the PM report of the deceased Deepak from the GTB Hospital. He further deposed that he had recorded the statement of witnesses and after completion of investigation, he filed the charge sheet of the present case before the Court. The witness was cross-examined by the defence Counsel.
STATEMENT OF ACCUSED PERSON:-
20. Thereafter, before the start of defence evidence, in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded without oath under section 281 read with section 313 Cr.PC. In reply, the accused person stated that he has been falsely implicated in the present case, he was driving the auto bearing No. DL-1RL-3105 on 14.06.2015 at about 3.36 p.m. in the area of Anand Vihar, one person was hired his auto from Anand Vihar Railway Station to Old Delhi Railway Station, when he reached near EDM Mall, a gray colour Santro car which was ahead of his auto had hit a pedestrian who was crossing the road and the said car ran way from the spot. He tried to save his auto after this hit due to which his Digitally FIR No. 564/2015 State Vs. Vinod Kumar page 11 of 23 signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
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auto turned over to the road and people nearby started to blame him for the said accident, the owner of the vehicle took him to the PS on the next date and he had not done accident and he is an innocent. However, he did not lead evidence in his defence despite opportunity.
ARGUMENTS
21. I have heard Sh. Satish Shukla, Ld. APP for the state and Sh. Mohit Bhardwaj, Ld. Counsel for the accused. I have also given my thoughtful consideration to the material appearing on record.
22. It is argued by the Ld. APP for the state that evidence of the witnesses examined prove the case beyond reasonable doubts and thus, accused be convicted for offences u/s. 279/304-A IPC and 196 Motor Vehicle Act. Per contra, the Ld. Counsel for the accused has argued that the state has failed to establish its case beyond reasonable doubt.
FINDINGS AND REASONS THERE OF:
23. I have bestowed my thoughtful consideration to the rival submissions made before me. I shall first deal with the allegations against the accused for offences under section 279/304-A IPC. Both these provisions are reproduced below:-
(a) Section 279 IPC provides punishment for Digitally signed by HIMANSHI HIMANSHI TYAGI FIR No. 564/2015 State Vs. Vinod Kumar page 12 of 23 TYAGI Date:
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offence of driving a vehicle 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.
(b) Section 304-A IPC provides punishment for causing death to any person by doing any rash or negligent act, not amounting to culpable homicide.
24. To bring home the guilt of the accused under section 279/304-A IPC in road accident cases resulting in death of a person, following ingredients are required to be proved:-
a) That the accused was the person driving the offending vehicle at the relevant point of time.
b) That the accused drove the same in a rash and negligent manner.
c) That death of the victim (in case of Section 304-A of IPC) was the direct and proximate cause of the injuries suffered by way of rash and negligent driving of the accused. (Death of the victim/deceased is an admitted fact in the present case).
25. While the first ingredient needs to be established beyond reasonable doubt with the aid of eye -witnesses and circumstantial evidence, and the third ingredient needs to be proved by medical Digitally signed by FIR No. 564/2015 State Vs. Vinod Kumar page 13 of 23 HIMANSHI HIMANSHI TYAGI TYAGI Date:
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evidence; it is the second ingredient which requires interpretation and explanation. This second requirement for proving the guilt of the accused is that the death or grievous hurt had been caused as the accused was driving the vehicle in a rash and negligent manner. Therefore, the primary ingredient or the sine qua non of both the offences is "rash" or "negligent" act. The term "rash" and "negligence" has not been defined in the code and both the words are not synonymous. If a person does an act with utter indifference of the consequence of which he may be conscious, which he hoped may not take place, he is said to be rash. Negligence is failure to take that precaution, which a reasonable and prudent person is expected to take. Even if an act is found to be negligent, it may not be construed to mean as rash in a given case.
26. The Hon'ble Apex Court in the case of Bhalchandra Vs. State of Maharashtra, reported in AIR 1968 SC1319, held that criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and 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. Similarly, the Hon'ble Supreme Court in Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
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FIR No. 564/2015 State Vs. Vinod Kumar page 14 of 23 observed :
" 7. ...Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors."
27. Rashness and negligence in driving a vehicle are subjective concept and no straight jacket formula can be put to use to ascertain the rashness or negligence while driving the vehicle and rashness and negligence have to be proved like a 'relevant fact' during the course of trial and this onus lies upon the prosecution. There cannot be any reason including the unfortunate death of a person involved in the incident/accident which may compel the Court to presume rashness or negligence in driving the offending vehicle. Thus, a question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. At this stage, reference may be taken from the decision of the Hon'ble Supreme Court in the case of Mohammed Digitally signed by HIMANSHI HIMANSHI FIR No. 564/2015 State Vs. Vinod Kumar page 15 of 23 TYAGI TYAGI Date:
2024.02.16 16:02:11 -0800 Aynuddin @ Miyan Vs. State of A.P. (2000) 7 SCC 7 , wherein the Hon'ble Apex Court has discussed in detail as to what constitute a rash or negligent act. It interalia held the following:
"A rash act is primarily an over hasty act. It is opposed to deliberate act. Still a rash act can be a deliberate act in the sens 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 precaution." It was further held that "... It is a wrong proposition that for any motor accident negligence of the driver should be presumed. An accident of such a nature as would prima facie show that it cannot be accounted to anything other than the negligence of the driver of the vehicle may create a presumption and in such a case, the driver has to explain how the accident happened w/o negligence on his part..."
28. Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial. What is important is that he has not taken due care or has done the said act Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
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with indifference to the consequences. Further, it should be noted that there should be direct link between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim.
29. In every criminal trial, the identity of the malefactor must be established by proof beyond reasonable doubt. Indeed, the duty of the prosecution is to prove the crime, to prove the identity of the offender. If the commission of the crime can be established, there can be no conviction without proof of identity of the offender beyond reasonable doubt. Onus is, thus, on the prosecution to prove beyond reasonable doubt that the person facing the trial is, in fact, the same person who committed the offence.
30. The most important ingredients which need to be, thus, established by the prosecution in order to bring home the conviction of an accused u/s 279/304 A IPC are that the accused was driving the offending vehicle at the time of the accident and the 'act of rash and negligent driving by the accused'. Perusal of the statement of the accused recorded u/s. 313 Cr.PC shows that it is not in dispute that the accused was driving the offending vehicle i.e. auto bearing No. DL-1RL-3105.
Digitally
31. The prosecution has cited only one eye witness i.e. signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
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FIR No. 564/2015 State Vs. Vinod Kumar page 17 of 23 Madhusudan Baneerjee. However, the presence of the eye witness could not be procured despite efforts through the DCP concerned. Perusal of the file shows that several efforts were made to procure his appearance before this Court, however, this witness did not appear. Thus, the prosecution could not bring its best evidence on record. Another public witness Amrit Tarabdar, who identified the dead body of the deceased, also did not appear before the court despite efforts through DCP concerned. As would be discussed in the following paragraphs, the other public and police witness examined by the prosecution, could not prove the alleged offence of rash and negligent driving which ultimately resulted into the death of the victim. The prosecution has primarily relied upon the testimony of PW7, PW9, PW13 and testimonies of IOs.
32. PW7 is the purchaser/owner of the offending TSR. Perusal of his testimony clearly shows that he was not the eye witness to the incident. He was not present at the spot. His testimony only proves that the accused was driving the vehicle at the time of the alleged accident. The accused being the driver of the offending vehicle is not in dispute in the case.
33. PW 9 is ASI Pradeep, the police officer of Romio team who was the first responder at the spot and took the injured to the hospital. Perusal of his testimony also shows that he reached the spot Digitally signed by HIMANSHI FIR No. 564/2015 State Vs. Vinod Kumar page 18 of 23 HIMANSHI TYAGI TYAGI Date:
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after the accident and did not see the driver of the offending TSR or the accident in question.
34. PW 13 Rajiv is the PCR caller in the present case. Perusal of his testimony shows that he reached the spot after the accident. This witness could neither tell the registration number of the offending TSR nor did he see the driver of the TSR. He categorically deposed that he cannot identify the offending vehicle i.e, the auto. His testimony only proves the fact of the TSR lying in accidental condition at the spot and does not prove the manner of the accident or the negligence of the driver.
35. Another witnesses who has been examined by prosecution are PW5 Ct Parmanand and PW 6 Ct Pushpendra who are the police witness and had assisted the first IO/PW12. It should be noted that PW5, PW6 and PW12 are not an eye witness in the present case. They reached at the spot only after the occurrence of accident. They supported the prosecution's story to the extent that an accident had occurred in the present case and corroborated the factum of registration of FIR and seizure of vehicles. However, their testimony could not prove the act of rashness of negligence on part of the accused driver as they did not see the accident.
36. Further, the prosecution has relied upon the testimony of Digitally signed by HIMANSHI HIMANSHI TYAGI FIR No. 564/2015 State Vs. Vinod Kumar page 19 of 23 TYAGI Date:
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PW15, the second IO of the present case in order to prove the guilt of the accused. During his examination in chief, PW15 has given a detailed account of the investigation carried out by him in the present case. However, perusal of the testimony of PW15 also makes it very clear that like PW5, PW6 and PW12, he was also not the eye witness of the accident. He reached at the spot only after the accident took place. While he conducted the investigation in the present case, he could not explain in detail the act of rashness and negligence on the part of the accused driver. Although he has got conducted the mechanical inspection of the vehicle which shows that the vehicles were involved in the accident, however, the same is not enough to prove the act of rash or negligent driving of the accused. Therefore, even the testimony of PW15 is not sufficient enough to prove the guilt of the accused in the present case beyond reasonable doubt.
37. Further, it should be noted that mechanical inspection reports of the TSR show damages and scratches on the vehicle. However, it should be noted that it is an undisputed fact that the offending vehicle had turtled up at the spot. The accused had admitted the same in his examination u/s 313 Cr.PC. The question here is as to whether the accused was driving the offending vehicle in a rash or negligent manner due to which the victim suffered the injuries. The mechanical inspection report of the vehicle does not prove the factum Digitally signed by FIR No. 564/2015 State Vs. Vinod Kumar page 20 of 23 HIMANSHI HIMANSHI TYAGI TYAGI Date:
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of rashness or negligence on the part of accused driver.
38. Also, the site plan Ex. PW12/A which has been prepared by IO/PW12 is not sufficient enough to prove the act of rashness or negligence on the part of the accused. While it shows the location of the accident (which is an undisputed fact), it could not be inferred that the offending vehicle was either being driven at a speed high or the accident occurred due to the rash or negligent act of the accused. It is no more res integra that the mere fact that an accident had taken place and some person had been injured cannot lead to a conclusion of rash or negligent driving. The fact of rash or negligent driving has to be proved by prosecution by independent evidence.
39. In a criminal case, the initial burden is on the prosecution to prove the guilt of the accused beyond all reasonable doubts before the accused is asked to prove his defence. However, in view of the above discussion, I am of the considered view that the prosecution has miserably failed to establish the act of rashness of negligence on the part of accused in the present case, and, thereby, miserably failed to prove the guilt of the accused for offences u/s. 279/304-A IPC beyond reasonable doubt. Eyewitness Madhusudan Baneerjee and public witness Amit Tarabdar could not be examined by the prosecution. Testimonies of rest of the witnesses are not sufficient enough to prove the guilt of accused. The witnesses were not able to winch forth the Digitally FIR No. 564/2015 State Vs. Vinod Kumar page 21 of 23 signed by HIMANSHI HIMANSHI TYAGI TYAGI Date:
2024.02.16 16:02:44 -0800 fact as to how the occurrence took place. They could not prove that the accused was rash and negligent and that he has caused injuries to the victim which later resulted in the death of the victims. Hence, benefit of doubt has to be given to the accused for the offences u/s. 279/304-A IPC.
40. Now coming to the offence made punishable u/s 196 M.V. Act. It has come on record in the testimony of PW15 that the offfending vehicle bearing No. DL-1RL-3105 was not insured. The owner of the vehicle had already pleaded guilty and had been convicted for offence u/s. 146/196 Motor Vehicle Act. Thus, as per prosecution evidence, the vehicle in question i.e. vehicle bearing No. DL-1RL-3105 was found without insurance. As per record, the accused was driving the said vehicle at the time of the accident. Accused does not dispute this fact and in fact, in his statement u/s 313 Cr.PC, he claims to have been driving the said vehicle at the time of the accident.
41. Thus, prosecution has been able to show that the accused driving vehicle bearing No. DL-1RL-3105 at the time of accident. It has also come on record the said vehicle was being driven without insurance by the accused. This is in violation of offence made punishable u/s 196 MV Act. All the ingredient necessary for the said offence stands proved against the accused beyond reasonable doubt.
Digitally
signed by
HIMANSHI
FIR No. 564/2015 State Vs. Vinod Kumar page 22 of 23 HIMANSHI TYAGI
TYAGI Date:
2024.02.16
16:02:49 -
0800
Neither in the cross examination nor otherwise, there is any dispute qua the driving of the motor vehicle in question, without insurance by the accused. Accordingly, he is convicted for offence made punishable u/s 196 MV Act.
42. In view of the above facts and circumstances, accused Vinod Kumar is acquitted of the offences i.e. 279/304 A IPC and convicted u/s 196 M.V. Act. Accused to furnish bail bonds in compliance of Section 437-A Cr.PC.
Pronounced in open Court on 16.02.2024.
The Judgement contains 23 pages and each page has been signed by the undersigned.
Digitally signed by HIMANSHI HIMANSHI TYAGI TYAGI Date: 2024.02.16 16:02:55 -0800 (Himanshi Tyagi) Metropolitan Magistrate-03 (East), Karkardooma Courts, Delhi FIR No. 564/2015 State Vs. Vinod Kumar page 23 of 23