Delhi District Court
State vs . Sanjay Kumar on 21 September, 2021
IN THE COURT OF SH. ABHINAV PANDEY, MM-04,
WEST DISTRICT, TIS HAZARI COURT, DELHI
STATE VS. SANJAY KUMAR
FIR NO. 773/15
PS: KHYALA
U/S: 279/338 IPC
JUDGMENT
Case no. : 768/2018
Date of commission of offence : 11.12.2015
Date of institution of the case : 08.02.2017
Name of the complainant : Sh. Subramaniyam
Name of accused and address : Sanjay Kumar S/o Sh.
Singh Ram.
R/O: IGT Karnal Road,
Industrial Area, Delhi.
Offence complained of or proved : U/s 279/338 IPC
Plea of the accused : Pleaded not guilty
Final Order : Acquitted.
Date on which reserved for judgment : 21.09.2021
Date of announcing of judgment : 21.09.2021.
*************************************************** FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 1
1. BRIEF FACTUAL POSITION:
1.1 This is the prosecution of accused Sanjay Kumar pursuant to charge sheet filed by PS Khyala for commission of offences U/s 279/338 IPC subsequent to the investigation carried out by them in FIR No.773/2015.
1.2 As per the prosecution, on 11.12.2015 at about 07.30-07.45 PM at 830 Bus Stop near Masjid, Khyala, Delhi, accused Sanjay Kumar was driving a car bearing registration No. DL-8CR-8795 on the public way in a very rash and negligent manner. While driving so, he hit against one person/ complainant Mr. Subramaniyam and caused grievous injuries to him. Accordingly, after the investigation, police filed the present charge sheet against the accused for commission of offences punishable u/s 279/338 IPC.
1.3 Complete set of charge sheet and other documents were supplied to the accused. After hearing arguments, notice for offence punishable under section 279/338 IPC was served upon the accused to which he pleaded not guilty and claimed trial.
2. MATERIAL EVIDENCE IN BRIEF:
2.1 The prosecution in support of present case has examined 02 witnesses in total, before, upon an application on behalf o the accused, the proceedings were stopped u/s 258 Cr.P.C.
2.2 PW-1 Mr. Subhramanyam deposed that he does not remember the exact date, month and year of the accident. However, the accident had taken place 3-4 years ago. The accident had taken place at about 6.30 pm FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 2
- 7.00 pm at or nearby 830 bus stand, Khyala, Delhi. He further deposed that on the aforesaid date and at the aforesaid time when he was going towards his residence from the side of Sabzi Mandi, one car came from his front side and hit against him, due to which he suffered injuries and became unconscious. He suffered fracture on his left arm due to accident. At that time, 2-3 persons were present in the offending car and they picked him from the road and pulled down towards Ganda Nala. At that time, one of his known with whom he was working for plumber work came there and informed to his family member. His brother's son namely Vicky also came at the spot and took him to his residence where call was made at 100 number and on this, police officials came there. The police officials took him to Guru Gobind Singh Hospital where he remained under medical examination/treatment for about 15 days. The accident which had taken place on Friday was informed to the police, and on the next day, the offending vehicle was seized by the police. After returning from the hospital, he gave the statement to the police Ex. PW1/A. He could not identify the offending vehicle as he does not know that who was driving the offending car.
2.3 PW-2 Sh. Raju deposed that the accident had taken place on 11.12.2015 at around 07.45 pm nearby 830 bus stand Masjid, and that the accused was caused by car bearing no. 8795 which he can identify, if shown to him. He identified the photographs of offendings vehicle Ex. P1 & P2. He further deposed that when his brother was crossing the road neary Masjid, one above-mentioned car came from the side of Kesho Pur Mandi and hit against his brother namely Subramanium. At that time, he was standing at a distance of about 50 meters from the place of accident. He immediately rushed towards the place of accident where the driver of the offending was present who lifted his brother in his car and removed him to the hospital. He made PCR Call. He further deposed that accused had left his brother nearby Ganda Nallah situtated at a long distance from the place of accident. Thereafter PCR van came at the aforesaid place FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 3 and they removed his brother to DDU Hospital. Police examined him and recorded his statement.
Since the material and sole eye witnesses of the prosecution did not support its case, this Court did not deem it expedient to record testimonies of remaining witnesses, who were merely formal witnesses. Thus, while exercising the powers u/s 258 Cr.P.C., this Court stopped proceedings of the present case, which is already 05 years old, as continuing with prosecution evidence in this case would have resulted in wastage of judicial time and resources.
3. STATEMENT OF ACCUSED U/S 313 Cr.P.C :
3.1 Nothing incriminating has come on record against the accused and there are no circumstances appearing against him in prosecution evidence and therefore, examination of accused u/s 313 Cr.P.C. was dispensed with.
4. ARGUMENTS:
4.1 Ld. APP for state has argued that on a combined reading of prosecution witnesses testimony, offences U/s 279 and 338 IPC are proved beyond reasonable doubt.
4.2 On the other hand, Ld. counsel for accused has argued that there is no legally admissible evidence against the accused. It is argued that the negligence on the part of the accused in driving the offending vehicle could not be proved. In fact, the victim Sh. Subramanium was himself responsible for causing the accident. It is further argued that the prosecution has failed to prove the guilt of accused beyond reasonable doubt due to tainted testimony of PWs, hence accused is entitled to be FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 4 acquitted.
BRIEF STATEMENT OF THE REASONS FOR THE DECISION.
5.1 Arguments adduced by Ld. APP for State and Ld. Defence Counsel for the accused have been heard. Evidences and documents on record perused carefully.
5.2 I have bestowed my thoughtful consideration to the rival submissions made before me. Accused is indicted for the offences U/s 279/338 IPC.
(a) Section 279 IPC provides punishment for 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 338 IPC provides punishment for causing grievous injuries to any person by doing any rash or negligent act.
5.3 To bring home the guilt of the accused U/s 279 and 338 of 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 vehicle at the relevant point of time.
b). That the accused drove the same in a rash and negligent manner.
c). That by said rash and negligent driving, he endangered the safety of others and caused injuries to the victim.
While the first ingredient needs to be established beyond reasonable doubt with the aid of eye -witnesses and FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 5 circumstantial evidence, the third ingredient is self-explanatory and the fourth ingredient needs to be proved by medical evidence; it is the second ingredient which requires inter-pretation and explanation. The 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. It has been held in Bhala Chand Waman Rao Pathe Vs. State of Maharashtra SC 1964, there is a difference between a rash act and a negligent act. Criminal negligence is the gross and culpable, neglect or failure to exercise with reasonable and proper care and to guard against injury, either to the public generally, or to an individual in a particular, which having regard to all the circumstances out of which the charge has arisen, it was the imperative duty of person to have adopted. Negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. On the other hand culpable rashness is acting with the consciousness that the mischievous effect will follow, but in circumstances which show that the actor has exercised the caution incumbent upon him and if he had exercised caution, he would have had the consciousness and illegal consequences may follow, but in a vain hope that they will not, and often, with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence, on the other hand, is acting without the consciousness that illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and if he had exercised caution, he would have had the consciousness. The imputability arises from the neglect of the civic duty of FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 6 circumspection.
It has been held by Hon'ble Supreme Court of India in Ratna Shalvam Vs. State of Karnataka 2007 3 SCC 474 that Section 304 A of IPC applies to cases where there is no intention to cause death and no knowledge that the act done in all probability will cause death. This provision is directed at offences outside the range of Section 299 and 300 of IPC. The provision applies only to such acts which are rash and negligent and are the direct cause of death of another person. Negligence and rashness are essential elements U/s 304-A IPC. 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.
5.4 In the present case, the accused Sanjay Kumar has been charged for driving car bus no. DL-8CR-8795 in a rash and negligent manner so as to endanger human life and personal safety of others, and so as to hit against one person namely Mr. Subramanium, and thereby causing grievous injuries to him, at bus stop near Masjid Khyala, Delhi.
5.5. In his examination as PW-1, the complainant/ victim has not supported the prosecution story at all. In his examination -in-chief itself, he has stated that the police had obtained his thumb impressions when he was in the hospital. He further stated that he cannot identify the offending vehicle, if shown to him or the person who was driving the vehicle at the relevant point of time. Nowhere in his first statement to the police Ex. PW1/A or in his examination -in-chief in Court, has he stated that the witness Raju or Vicky were nearby, or were accompanying him, when he was going towards his residence from the side of Sabzi Mandi, and FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 7 therefore, the sudden emergence of these two witnesses, who are family members of the complainant, at the spot of occurrence, does not seem to be trustworthy. Also, in his statement to police which he has proved in the Court as EX. PW1/A, he has stated that as soon as the offending vehicle hit him, and the driver of offending vehicle helped him to get up, his brother Raju and his nephew Vicky came at the spot of occurrence, and told him about the registration number of offending vehicle. Nothing has been stated as to whether the accused remained at the spot or went away, which required the immediate noting down of registration number, and that too, in its entirety, as is written in the statement. At the same time, in his examination-in-chief, the complainant PW-1 has stated that after being hit by the vehicle, he became unconscious, and thereafter, 2-3 persons present in the offending vehicle picked him and dropped him at Ganda Nala. Till this juncture, the complainant PW-1 mates no mention of any other witness. PW-1 states that only after he had been taken to Ganda Nala, a person with whom he used to work as a plumber, came there and informed his family members. He then stated that his brother's son Vicky then come to the spot, and took him to his residence, and thereafter called the police. This is in stark contrast with the testimony of PW-2, who states that he was standing at a distance of 50 meters only from the place of accident. PW-2 has stated no occasion, reason or justification for his presence at the spot of occurrence at the relevant point of time. PW-2 has also given no justification as to when he immediately rushed towards PW- 1 after the accident, then how could the accused remove the complainant from the spot of occurrence and take him to Ganda Nala, which, as stated by him, in his examination-in-chief, is a long distance away from the spot of occurrence. He has been confronted with his statement u/s 161 Cr.P.C. in which he has not mentioned anything about the complainant being removed from the spot of occurrence, and being dropped at Ganda Nala. This version of PW-2 is further contradicted by the statement of PW-1 in his cross-examination that he had apprised to the police about the registration number of the offending vehicle as the same was told to him by a photographer running a shop near the bus stand. The said FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 8 photographer has not been produced as a witness. He further states that accused was shown to him by the police at the police booth, and only then he came to know about the identity of the driver of the offending vehicle. PW-1 has categorically denied the fact that he told to the police that immediately after the accident, Raju and Vicky came at the spot of occurrence and apprehended the accused. It is an admitted fact that neither the accused was apprehended at the spot of occurrence, no was any Test Identification Parade (TIP) conducted. Further, PW-2, in his examination in the Court, has admitted to being illiterate, and not being in a position to note down the registration details of the offending vehicle.
5.6 In these facts and circumstances, when the complainant has not at all supported the prosecution version, and the so-called eye witnesses appear to be interested and planted, the prosecution shall never be in a position to establish the fact that accused had been the driver of the offending vehicle at the relevant point of time. Further, nothing has been stated either in the admitted statement to the police, or in their testimony in the Court by the witnesses, as to how was the accused driving his vehicle which can be said to be rash or negligent. It has been held by the Hon'ble High Court of Delhi in Kishore Chand Joshi Vs. State (2018 SCC online Del 12337) that a witness can no doubt, depose as to the manner of driving or speed of the vehicle, however he cannot render an 'opinion' as to rashness and negligence. This is because rashness and negligence is an opinion which may vary from person to person, depending upon the perception of an individual. Speed alone is not the criterion for deciding the rashness or negligence or part of the driver.
Further, no skid marks or tyre marks have been obtained of the spot to indicate that the vehicle was being driven at a high speed. [Ram chander vs. State {2017} 4 SCC 2676 and Abdul Suhham Vs. State (NCT of Delhi) 133 2006 DL 562 also referred to ].
5.7 Also, in his examination-in-chief, the complainant PW-1 has admitted to giving statement Ex. PW1/A to the police, as per which FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 9 the complainant himself was intoxicated at the time of incident which is further supported by his MLC. Thus, there is no evidence at all regarding any rashness or negligence as well.
In lieu of the testimony of the aforesaid witnesses, who are the sole eye witnesses/material witnesses and in the absence of testimony of other eye witnesses during investigation, the fact that the accused Sanjay Kumar was driving the truck bearing no. DL- 8CR8795 at the relevant point of time, or the fact that the injury to PW-1 Mr. Subhramanyam was a direct result and consequence of alleged 'rash and negligent' driving of the accused, can never be proved by the prosecution, even if the remaining witnesses, who are merely formal witnesses, testify. This, in the opinion of the Court, is a fit case for exercise of powers u/s 258 Cr.P.C. to cut short the trial, which would otherwise result in the wastage of judicial time and unnecessary harassment to the accused.
5.8 Time and again, Hon'ble Supreme Court and Hon'ble Delhi High Court, have emphasized the need for speedy investigations and trial as both are mandated by the letter and spirit of the provisions of the CrPC. (In particular, Sections 197, 173, 309, 437 (6) and 468 etc.) and the constitutional protection enshrined in Article 21 of the Constitution. Inspired by the broad sweep and content of Article 21 as interpreted by a seven-Judge Bench of Hon'ble Supreme Court in Maneka Gandhi Vs. Union of India, (1978) 1 SCC 248 & Anr. & in Hussainara Khatoon & Ors. Vs. Home Secretary, State of Bihar (1980) 1 SCC 81, the Court had said that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 10 as 'reasonable, fair or just' and it would fall foul of Article 21. The Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21.
The exposition of Article 21 in Hussainara Khatoon's case (supra) was exhaustively considered afresh by the Constitution Bench of Hon'ble Supreme Court in Abdul Rehman Antulay & Ors. Vs. R.S. Nayak & Anr. (1992 1 SCC 225). Referring to a number of decisions of Hon'ble Supreme Court and the American precedents on the Sixth Amendment of their Constitution, making the right to a speedy and public trial a constitutional guarantee, the Court formulated as many as eleven propositions with a note of caution that these were not exhaustive and were meant only to serve as guidelines. For the sake of brevity, this Court does not propose to reproduce all the said propositions and it would suffice to note the gist thereof. These are:-
(i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily;
(ii) right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial;
(iii) in every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is -- who is responsible for the delay?;
(iv) while determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-- what is called, the systemic delays;
(v) each and every delay does not necessarily prejudice the accused. Some delays may indeed work to his advantage. However, inordinately long delay may be taken as presumptive proof of prejudice. In this context, the fact of incarceration of accused will also be a relevant fact. The prosecution should not be allowed to become a persecution. But FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 11 when does the prosecution become persecution, again depends upon the facts of a given case;
(vi) ultimately, the court has to balance and weigh several relevant factors--'balancing test' or 'balancing process'--and determine in each case whether the right to speedy trial has been denied;
(vii) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open and having regard to the nature of offence and other circumstances when the court feels that quashing of proceedings cannot be in the interest of justice, it is open to the court to make appropriate orders, including fixing the period for completion of trial;
(viii) it is neither advisable nor feasible to prescribe any outer time-
limit for conclusion of all criminal proceedings. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weigh all the circumstances of a given case before pronouncing upon the complaint; (ix) an objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis.
Notwithstanding elaborate enunciation of Article 21 of the Constitution in Abdul Rehman Antulay (supra), and rejection of the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal trial shall not proceed pronouncements of Hon'ble Supreme Court Court in "Common Cause" A Registered Society Vs. Union of India (UOI) & Ors. (1996) 4 SCC 33, "Common Cause", A Registered Society Vs. Union of India & Ors. (1996) 6 SCC 775, Raj Deo Sharma Vs. State of Bihar (1998) 7 SCC 507 and Raj Deo Sharma II Vs. State of Bihar (1999) 7 SCC 604 gave rise to some confusion on the question whether an outer time limit for conclusion of criminal proceedings could be FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 12 prescribed whereafter the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused.
The confusion on the issue was set at rest by a seven-Judge Bench of Hon'ble Supreme Court in P. Ramachandra Rao Vs. State of Karnataka16. (2002) 4 SCC 578. Speaking for the majority, RC Lahoti J. (as his Lordship then was) while affirming that the dictum in A.R. Antulay's case (supra) is correct and still holds the field and the propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in the said case adequately take care of right to speedy trial, it was held that guidelines laid down in the A.R. Antulay's case (supra) are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait- jacket formula. Their applicability would depend on the fact-situation of each case as it is difficult to foresee all situations and no generalization can be made. It has also been held that it is neither advisable, nor feasible, nor judicially permissible to draw or prescribe an outer limit for conclusion of all criminal proceedings. Nonetheless, the criminal courts should exercise their available powers such as those under Sections 309, 311 and 258 of CrPC to effectuate the right to speedy trial.
5.9 The Hon'ble Supreme Court has further stated in Pankaj Kumar Vs. State of Mahrashtra (2008) 16 SCC 117 and Jayendra Vishnu Thakur Vs. State of Maharashtra (2009) 7 SCC 107 that a person charged with an offence and submitted before the process of law, has also a right of speedy trial, which has been considered as a fundamental right under Article 21 of the Constitution of India.
5.10 Accordingly, in view of the testimony of all the material witnesses, and in the light of the aforesaid discussion and cited judgments, and also considering the fact that the matter is more than 05 years old, and is at the stage of prosecution evidence since the past 03 years, and that the examination of remaining witnesses who are formal witnesses, will not be of any help in altering the conclusion arrived at, this Court while protecting FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 13 the right of accused to have speedy justice, invokes the power conferred upon it by Section 258 Cr.P.C., to stop the proceedings against accused Sanjay Kumar S/o Sh. Singh Ram, R/O: IGT Karnal Road, Industrial Area, Delhi qua the offence u/s 279/338 IPC in the present summons case instituted upon a charge sheet, and hereby releases the accused under the aforementioned provisions, which shall have the effect of acquittal.
Digitally signed ABHINAV by ABHINAV
PANDEY
PANDEY Date: 2021.09.27
16:26:05 +0530
ANNOUNCED IN THE OPEN (ABHINAV PANDEY)
COURT ON 21.09.2021 MM-04 (WEST)/DELHI
Containing 14 pages all signed by the presiding officer.
Digitally signed by ABHINAV ABHINAV PANDEY PANDEY Date: 2021.09.27 16:26:15 +0530 (ABHINAV PANDEY) MM-04 (WEST)/DELHI FIR No. 773/2015, PS Khyala State Vs. Sanjay Kumar 14