IN THE COURT OF SHRI SUSHIL KUMAR, METROPOLITAN

MAGISTRATE : WEST-05, TIS HAZARI COURTS, DELHI

FIR No. : 625/2004
P.S. : Tilak Nagar
Unique Case ID No. R0101812005

State
Vs.
Shiv Kumar, S/o Sh. Gewar Chand,
R/o Gali No. 3, Sanjay Nagar, Bayawar,
District Ajmer, Rajasthan.
Date of institution of case

25.01.2005

Date of reserving the judgment

24.05.2016

Date of pronouncement of judgment :

07.06.2016

JUDGMENT
1. S. No. of the Case:

336/2/01.12.08

2. Date of Commission of Offence:

11.08.2004

3. Date of institution of the case:

25.01.2005

4. Name of the complainant:

Sh. Suraj Kumar

5. Name of the accused:

Shiv Kumar

6. Offence complained or proved:

279/304A IPC

7. Plea of Accused:

Not Guilty

8. Final Order:

Acquitted

9. Date of Final Order:

07.06.2016

BRIEF FACTS AND REASONS FOR DECISION

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1. Succinctly, the facts of the case as per prosecution are that

on

11.08.2004 at about 8.00 AM at Road Purani Market, Tilak Nagar, in

front of police station shop no. 16/25, accused was found driving a
Tempo bearing registration No. DL1LC-4741 in a manner so rash or
negligent so as to endanger human life and personal safety of others. It is
also the case of prosecution that accused, while driving the offending
vehicle, in the aforementioned manner at the aforesaid time, date and
place, hit against a cyclist namely Adesh Kumar as a result of which
cyclist Adesh Kumar sustained injuries and died. The accused was
arrested, case property was deposited in Malkhana and after completion of
investigation, charge sheet against accused was filed in the Court for the
offences punishable under sections 279/304A of Indian Penal Code
(hereinafter referred to as IPC).
2. The copies of charge sheet and relevant documents were supplied to
accused in compliance of Section 207 of Code of Criminal Procedure,
1973 (hereinafter referred to as Cr.PC).
3. Prima facie case was made out and Notice for offence U/s 279/304A
IPC was framed against the accused on 25.03.2008 to which he pleaded
not guilty and claimed trial. Thereafter, the matter was fixed up for
recording of prosecution evidence.
4. To prove its case, prosecution examined eleven witnesses in all.

PE

was closed and the same was followed by recording of statement of

accused u/s 313 Cr.PC. All the incriminating evidence was put to accused
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to which he pleaded innocence and false implication. Accused choose not

to lead DE.
5. The Court has carefully perused the case record and have heard
arguments advanced by Ld. APP for the State as well as by Ld. Defence
counsel.
6. At the onset it would be appropriate to have glance at the gist of
deposition made by prosecution witnesses :

PW-1 ASI Veena has deposed that on 11.08.2004 at around 9.45

am, she received a rukka which was brought by Const. Kailash Chand sent
by ASI Ishad Mohd. That on the basis of the same, she registered the case
FIR No. 625/2004. That carbon copy of the FIR is Ex.PW1/A. That she
made an endorsement on rukka which is Ex.PW1/B. That after registration
of FIR, she handed over copy of FIR and original rukka to Const. Kailash
for handing over the same to ASI Ishad Mohd. for further investigation.

PW-2 Sh. Madhav Rao Mishra and PW-3 Sh. Jitender have
deposed that on 11.08.04 they had gone to DDU Hospital Mortuary and
had identified the dead body of Adesh Kumar (deceased). Both of them
proved their signatures on their statements which are Ex.PW2/A and
Ex.PW3/A respectively.

PW-4 Const. Lekhraj has deposed that he had gone to the spot on
receiving a call from DO for arranging a photographer for taking
photographs of the spot. That he had taken the photographer to the spot
where he met IO, accused Shiv Kumar and Const. Kailash. PW4 narrated
on the lines of prosecution story.
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PW-5 Sh. Suraj Kumar is the only eye witness who has been
examined by the prosecution in the present matter. PW5 has narrated on
the lines of prosecution story, however, he stated in his examination in
chief that he cannot say as to whose negligence the accident had taken
place. PW5 has deposed in his examination in chief that on 11.08.2004 at
about 8.00 am, when he reached in front of his shop, he saw Avdesh
Kumar coming towards the shop on a cycle and that when Avdesh Kumar
reached in front of the shop, a tempo bearing registration No.
DL1LC-4741 struck against the cycle pulled by Avdesh Kumar. That due
to the impact of the accident, the tempo ran over the head of Avdesh
Kumar, i.e. the front tyre ran over Avdesh Kumar. That Avdesh Kumar
expired at the spot. That after causing the accident tempo driver managed
to stop the tempo and in the meantime public persons managed to
apprehend accused as accused was trying to escape. That he cannot say as
to whose negligence the accident had taken place.
Ld. APP sought permission to cross examine the witness
which was given. In his cross examination by Ld. APP, PW1 admitted the
suggestions given by Ld. APP.

PW-6 SI Ishaq Mohd. is the Investigatin Officer of the present

case. He has narrated all the steps taken by him after reaching at the spot
and during the investigation of the present matter. PW6 has testified on
the lines of prosecution story. PW6 proved on record rukka Ex.PW6/A,
site plan Ex.PW6/B, application for postmortem Ex.PW6/C, arrest memo,
personal search memo etc.

PW-7 ASI Devender Kumar / Tech. has proved on record

mechanical inspection report of offending vehicle, i.e., Mini truck Tata
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bearing registration No. DL1LC-4741 as Ex.PW7/A.

PW-8 HC Kailash Chand had gone to the spot alongwith IO SI

Ishaq Mohd. and he had assisted IO over there. PW8 had also taken the
rukka from the spot to PS for the purpose of registration of FIR. PW8 has
narrated on the lines of prosecution story. PW8 identified his signatures
on seizure memo, arrest memo, personal search memo etc.

PW-9 Sh. Sanjeev Kumar is the superdar of the offending vehicle.

He has deposed that accused was driving the offending vehicle at the time
of accident.

PW-10 Dr. Nishu Dhawan has proved post-mortem report as

Ex.PW10/A which was prepared by Dr. Zakir Hussain by identifying
handwriting and signatures of Dr. Zakir Hussain.

PW-11 Sh. Daman Wadhera is the photographer who has taken

photographs of the spot at the request of IO. PW11 has proved on record
the photographs of the accidental cycle and tempo taken at the spot at the
request of the IO as Ex.P-1 to Ex.P-10 (colly).
7. At the onset it would be appropriate to have glance at the ingredients of
the offences charged :

Section 279 IPC. Rash driving or riding on a public way

Whoever drives any vehicle, or rides, on any 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, shall be punished with imprisonment of either
description for a term which may extend to six months, or with fine which
may extend to one thousand rupees, or with both.

Section 304A IPC . Causing death by negligence

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Whoever causes the death of any person by doing any rash or negligent act
not amounting to culpable homicide, shall be punished with imprisonment
of either description for a term which may extend to two years, or with
fine, or with both.
8. To prove the case against the accused the prosecution was obliged to
prove the following ingredients:
--the accused was driving the offending vehicle;
--in a rash or negligent manner;
-- caused death of cyclist Aadesh Kumar;
-- death was direct consequence of the rash or negligent driving.
9. The Apex Court has defined rashness/negligence in Mohammed

Aynuddin @ Miyan Vs State of Andhra Pradesh, 2000 AIR (SC)

2511 wherein it has been held that 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 precaution.
10. Coming back to the facts of present case. The prosecution has
examined eleven witnesses, out of which only one is the ocular witness.
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The said eye witness is PW-5 Sh. Suraj Kumar on whose testimony the
prosecution case hinges upon. PW-5 narrated on the lines of prosecution
story in his examination-in-chief, but, he stated that he cannot say on
whose negligence the accident in question took place. As a result of
which, he was cross-examined by Ld. APP but the same is of no help to
the prosecution. Although, PW5 admitted the suggestions given to him by
Ld. APP, however, the facts stated by him in his examination in chief have
confused the mind of the Court with respect to the rashness or negligence
on the part of accused while driving the offending vehicle.
11. PW-5 is the main star witness of the prosecution. However, the
testimony of PW-5 is too scanty to prove guilt of accused. It cannot be
relied upon without any corroboration which is none in the present case.
The complicity of accused could have been proved by the ocular evidence
or circumstantial evidence. The ocular witness as well as the
circumstantial evidence is insufficient to infer the guilt of accused. It is
well settled law that to convict the accused on circumstantial evidence,
there must be complete chain of events pointing towards the guilt of
accused and nothing else.
12. The evidence apparent on record is insufficient for basing the
conviction for the accused. The benefit of doubt goes in favour of the
accused and he is entitled to be exonerated. The burden to prove the case
beyond reasonable doubt lies on the shoulder of the prosecution. Every
accused is to be presumed innocent until proved guilty. The accused
cannot be convicted on the basis of mere probabilities or presumptions.
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Suspicion howsoever grave may be, cannot take place of proof.

13. In case titled Partap v. State, AIR 1976 SC 966 it has been observed
by Hon'ble Supreme Court that The right of accused to obtain the

benefit of a reasonable doubt is the necessary outcome and counterpart of

the prosecution's undeniable duty to establish its case beyond reasonable
doubt and that this right is available to the accused even if he fails to
discharge his own duty to prove fully the exception pleaded.
14. In case tited Sharad Birdhichand Sarda v. State, AIR 1984 SC

1622 it has been observed by Hon'ble Supreme Court that Where on

the evidence two possibilities were available, one which went in the favour
of the prosecution and the other which benefited the accused, the accused
was undoubtedly entitled to the benefit of doubt. The principle had special
relevance where the guilt of accused was sought to be established by
evidence.
15. In view of above discussion, this Court is of view that the prosecution
has not been able to prove its case beyond reasonable doubt. Accordingly
accused Shiv Kumar

is acquitted for the offences punishable u/sec.

279/304A IPC and in the present case. Bail bonds u/s 437A of Cr.PC is to
be furnished which would remain valid for a period of six months.

Announced in open Court

on 07th day of June 2016

FIR No. 625/04

PS Tilak Nagar

(SUSHIL KUMAR)
Metropolitan Magistrate
West-05, Delhi
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