Delhi District Court
Shri Manish Kumar vs The State on 5 September, 2019
IN THE COURT OF SHRI CHANDRA BOSE ADDL. SESSIONS JUDGE-
03 NORTH DISTRICT, ROHINI COURTS, ROHINI: DELHI.
Crl. Appeal No: 61/2019
CNR No. : DLNT01-002072-2019
Shri Manish Kumar
S/o Shri Durga Prasad
R/o K-1604, Jahangirpuri,
Delhi.
................Appellant
Vs.
The State
Govt. of NCT of Delhi
................
Respondent
Date of filing of Appeal : 11-03-2019
Date of reserved for Order : 27-05-2019
Date of Order : 05-09-2019
ORDER :
1) Vide this order I shall dispose-off criminal appeal petition under Section 374 Cr.P.C vide which impugned judgment dated 14-11- 2018 and order on sentence dated 12-12-2018 passed by Ms. Kadambari Awasthi, Ld. MM, Rohini Courts, Delhi have been challenged only on the ground that appellant/convict was not driving scooter bearing No. DL8SD-2478 in rash and negligent manner and hit against the motor cycle bearing No. HR-51E-1742 and cause simple injuries on the person Crl. Rev. No.: 61/19 Page No. 1 of 9 Manish Kumar Vs State of Aarti and death of Rishi Pal.
2) I have heard the arguments of Ld. Addl. PP for state and Ld. Counsel for appellant/ convict.
3) It is submitted by the ld. Counsel for the appellant/ convict that PW-1 Aarti has stated that scooter bearing No. DL8SD-2478 was coming from wrong side and hit against motor cycle due to which we fell down on the road and she and her father both sustained injuries but she has not stated as to how the appellant/convict had come from wrong side. It is further submitted that she has not stated as to how appellant/convict was driving his scooter in rash and negligent manner. It is further submitted that PW-3 Ishwar Singh has stated that on 25-01- 2003, he saw one scooter make Bajaj having registration number of Delhi which was being driven by one man and hit one motor cycle having registration number of Haryana and further stated that the motor cycle was going towards Japanese Park while the scooter was coming from opposite side. It is further submitted that this witness was cross- examined by the ld. Addl. PP for the State and he has only stated that it is correct that appellant/ convict was driving his scooter in rash and Crl. Rev. No.: 61/19 Page No. 2 of 9 Manish Kumar Vs State negligent manner but has not stated that how the appellant/convict was driving his scooter in rash and negligent manner. It is further submitted that from the testimonies of PW-1 and PW-3, the prosecution has failed to prove that appellant was driving his scooter in rash and negligent manner and hit the motor cycle. It is further submitted that Ld. Trial Court has opined in respect of rash and negligent driving of the appellant/convict. PW-1 and PW-3 deposed that appellant/convict was driving his scooter on wrong side and in rash and negligent manner and at high speed but Ld. Trial Court has not given any reason on the basis of which it was concluded that convict was driving his scooter on wrong side and how and in what manner he was rash and negligent. Ld. counsel for the appellant/convict has relied upon case-laws namely Abdul Subhan Vs State (NCT of Delhi) reported as 2007 CriLJ 1089, 133 (2006) DLT 562 and Virender Singh, appellant Vs State of Himachal Pradesh, respondent reported as MANU/HP/1568/2018 in support of his arguments that it is not sufficient to hold on the basis of statement of witnesses that appellant/convict was driving his vehicle in rash and negligent manner and the prosecution has to establish by the testimonies of the witnesses that appellant/ convict was driving his vehicle in rash and negligent manner.
Crl. Rev. No.: 61/19 Page No. 3 of 9
4) In case-law Abdul Subhan Vs State (NCT of Delhi) (supra), it has been held that :
"driving at high speed by itself does not imply negligence and rashness. Negligence and rashness would have to be established as a fact".
5) In case-law Virender Singh Vs State of Himachal Pradesh (supra), it has been held that :
"it is well settled that rashness and negligence can not be presumed rather, same need to be proved by leading cogent and convincing evidence. In the instant case, this Court was unable to lay its hand to specific evidence, if any, led on record by the prosecution suggestive of the fact that vehicle at that relevant time was being driven rashly and negligently. In this regard, reliance is placed on judgment rendered by the Hon'ble Apex Court in Braham Dass V. State of Himachal Pradesh, MANU/SC/0922/2009: (2009) 3 SCC (Cri) 406, which read as under :-
"6. In support of the appeal, learned counsel for the appellant submitted that there was no evidence on record to show any negligence. It has not been brought on record as to how the convict-appellant was negligent in any way. On the contrary what has been stated is that one person had gone to the roof top and driver started the vehicle while he was there.
There was no evidence to show that the driver had knowledge that any passenger Crl. Rev. No.: 61/19 Page No. 4 of 9 Manish Kumar Vs State was on the roof top of the bus. Learned counsel for the respondent on the other hand submitted that PW-1 had stated that the conductor had told the driver that one passenger was still on the roof of the bus and the driver started the bus.
8. Section 279 deals with rash driving or riding on a public way. A bare reading of the provision makes it clear that it must be established that the convict was driving any vehicle on a public way in a manner which endangered human life or was likely to cause hurt or injury to any other person. Obviously, the foundation in accusations under Section 279 IPC is not negligence. Similarly, in Section 304-A, the stress is on causing death by negligence or rashness.
Therefore, for bringing in application of either Section 279 or 304-A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
6) In the case in hand, PW-1 Ms. Arti has stated that on 25-01- 2003, she alongwith her father late Shri Rishi Pal was going by motorcycle bearing no. HR-51E-1742 from their house to Sector 7, Rohini and at about 9:30 p.m. when they reached in front of Dahiya Property, Sector-11, Rohini, Delhi, one scooter bearing No. DL-8SD- 2478 was coming from wrong side and hit against our motorcycle due to which we fell down on the road. It is clear that PW-1 Ms. Aarti has only Crl. Rev. No.: 61/19 Page No. 5 of 9 Manish Kumar Vs State stated that appellant/ convict was coming from wrong side and hit against their motorcycle. She has not stated as to how the appellant/convict was coming from wrong side. I am of the view that in view of ratio of case-law Abdul Subhan Vs State (NCT of Delhi) (supra), prosecution has to prove as to how the appellant/ convict was coming from wrong side and hit motorcycle bearing No. HR-51E-1742.
7) PW-3 Ishwar Singh has stated that on 25-01-2003 he was going from Sector 11 towards Japanese Park to board a bus to reach his home and at about 9:30 p.m. when he reached in front of shop of a property dealer, he saw one scooter make Bajaj having registration number of Delhi which was being driven by one man and one lady and one child were sitting on back seat and hit one motorcycle having registration number of Haryana. He further stated that the motorcycle was going towards Japanese Park while the scooter was coming from opposite side. He has also stated that appellant/convict was driving his scooter in rash and negligent manner but he has not stated as to how he was rash and negligent. PW-3 Ishwar Singh has not categorically stated as to how the appellant/ convict was driving his scooter in rash and negligent manner. In view of ratio of case-law Virender Singh Vs State Crl. Rev. No.: 61/19 Page No. 6 of 9 Manish Kumar Vs State of Himachal Pradesh (supra), rash and negligence can not be presumed rather, the same need to be proved by leading cogent and convincing evidence.
8) It is not in dispute that scooter bearing No. DL-8SD-2478 was being driven by the appellant /convict on the fateful day and collision took place between scooter of appellant/ convict and motorcycle of the deceased.
9) PW-6 Virender Kumar has stated that on 25-01-2003, he was posted as Ct. at PP Sector 16, PS Prashant Vihar and on that day upon receipt of DD no. 40 by the IO ASI Sher Pal, he alongwith IO reached at the spot of incident i.e. in front of Dahiya Properties, C-1 Block, Sec. 11, Rohini, Delhi where they found two vehicles in accidental conditions and there were blood spots on the road and broken glass pieces was lying on the road. PW-8 SI Sher Pal who was IO of the case has stated that on 25-01-2003 he alongwith Ct. Virender reached at the spot of incident i.e. in front of Dahiya Properties where they found two vehicles in accidental conditions and out of those, one was motorcycle bearing No. HR-51E-1742 and the other was scooter No. DL-8SD-2478 and there Crl. Rev. No.: 61/19 Page No. 7 of 9 Manish Kumar Vs State were blood spots on the road and broken glass pieces was lying on the road and no eye witness was found at the spot. He has further stated that he prepared the site-plan Ex. PW-8/C. As per site-plan Ex. PW- 8/C, place of accident has been shown near house No. B-2/5 and not near Dahiya Properties which is situated in C-1 Block, Sector-11, Rohini, Delhi. As per prosecution case, PW-2 Ms. Arti and his deceased father were going on motorcycle bearing No. HR-51E-1742 from Sector-11 towards Japanese Park and appellant/ convict was coming from opposite side. Therefore, I am of the view that the driver of the motorcycle should have driven the motorcycle on his left but he was driving the motorcycle on his right side near house No. B-2/5. Therefore, I am of the view that deceased was on the side of appellant/ convict and that is why deceased was on the wrong side and not the appellant/ convict because while coming from Japanese Park to Sector-11, Rohini, appellant/ convict should have been driven his scooter on his left side which he was driving. If the deceased would have been driving his motorcycle on his left side and the appellant/ convict would have come driving his scooter on his right side and would have caused the collision and then the place of accident would have been on the left side of the deceased and in that case appellant/ convict would have been negligent. Crl. Rev. No.: 61/19 Page No. 8 of 9
Manish Kumar Vs State 10) In view of the above discussions and reasons therein, it is
held that appellant/ convict was not driving his scooter in rash and negligent manner and it was the deceased who was driving his motorcycle in rash and negligent manner. There is no evidence on record that appellant/ convict was driving the scooter without any valid license and it has not been put to him during his statement under Section 313 Cr.P.C. that he was driving his scooter without any valid license so that he could have explained or could have led defence evidence that he was driving the vehicle with valid license. Therefore, the appeal is allowed and judgment dated 14-11-2018 and order on sentence dated 12-12-2018 are set-aside and appellant/ convict is acquitted from all offences.
5) Trial court record be sent back along with copy of order and thereafter, appeal file be consigned to Record Room.
Digitally signed by CHANDRA CHANDRA BOSE BOSE Date: 2019.09.06 17:13:44 +0530 Pronounced in open court CHANDRA BOSE on 5th day of September 2019 ASJ-03/North District Rohini Courts/New Delhi. Crl. Rev. No.: 61/19 Page No. 9 of 9 Manish Kumar Vs State