Delhi District CourtState vs Sudarshan Kushwaha on 19 February, 2013­1­
             IN THE COURT OF SMT. SURYA MALIK GROVER, M.M­10,
             SOUTH DISTRICT/ SAKET COURT COMPLEX, NEW DELHI.      


Unique Identification no. 02406R0212692011
Case no. 178/2 Dated 11.05.2012
FIR No. 321/10
PS Vasant Kunj (South)
U/s. 279/304­AIPCand 146/196MV ActState  Vs  Sudarshan Kushwaha
          
JUDGEMENTS. No. Of Case              :      178/2 Dated 11.05.2012
       Date of Commission          :      10.11.2010
       of offence
       Name of Complainant         :      ASI Mahesh Singh
       Name and address                   :Sudarshan Kushwaha
       of accused                         S/o Sh. Fojdar Kushwaha
                                          R/o­ Village and Post Office­Noorpur,
                                          PS­Noonhara, District­Gajipur, Uttar 
                                          Pradesh

       Offence Complained          :      U/s.  279/304AIPC& 146/196MV ActPlea of accused             :      Not guilty
       Date of judgment            :       19.02.2013
       Final order                 :      Acquitted underS. 279/304AIPC & 
                                          Convicted underS.146/196MV Act


Brief Reasons For Such Decision:1. The brief case of the prosecution is that on 10.11.2010 at an unknown time under 

    Flyover  Rajokari   Mode,   Rajokari,  New  Delhi   falling  within  the  jurisdiction   of 

    police station Vasant Kunj South, accused was driving an uninsured motorcycle 

    bearing no. DL­11SA­0909 in a rash and negligent manner so as to endanger the 

    human life and personal safety of others and  while driving so hit against one 
FIR no. 321/10State Vs Sudarshan Kushwaha­2­

      pedestrian namely Sunita and caused her death.1.2               Charge­sheet   was   filed   in   the   court   and   the   accused   Sudarshan 

Kushwaha   was   supplied   complete   set   of   documents.   Thereafter,   vide   order   dated 

19.05.2011, charge was framed u/s 279/304­AIPCand 146/196MV Actagainst the 

accused to which he pleaded not guilty and claimed trial.2. TRIAL

2.1               In order to prove charges against the accused persons, the prosecution 

has examined four witnesses in all.   The relevant portion of the testimonies of the 

witnesses are as under :PW1 is Kalu Ram who deposed that on 10.11.2010 accident of deceased Sunita took 

place   with   motorcycle   bearing   number   DL­11­SA­0909.   He   further   deposed   that 

when he returned from his work, he found that the dead body of deceased Sunita was 

lying on the road. He had received the dead body of deceased Sunita which is Ex 

PW1/A on 12.11.2010.PW2 Raj Kumar  deposed that on 12.11.2010 he had identified the dead body of 

deceased Sunita at Jai Prakash Naryan Apex Trauma Centre which is Ex. PW2/A. He 

further deposed that on the same day, he along with Kalu Ram and other two persons 

had received the dead body of deceased Sunita from the aforesaid hospital which is 

already Ex. PW1/A.




FIR no. 321/10State Vs Sudarshan Kushwaha­3­

PW3 SI Bijender deposed that on 10.11.2010, he was on emergency duty with ASI 

Mahesh Chand from 08.00am to 08.00pm. On the same day at about 05.15pm, they 

had received a DD entry no. 30A regarding accident near Rajokari Flyover. Then, he 

along with ASI Mahesh Chand went to the spot but they did not find any eye witness 

at the spot. After some time, they received DD no. 61B from Trauma Centre that one 

victim of accident namely Sunita was admitted by PCR having injuries. Thereafter, he 

along with ASI Mahesh Chand reached at Trauma Centre and obtained MLC no. 

234887   of   the   injured   Sunita,   who   was   found   to   be   unfit   for   statement.   After 

obtaining MLC, they came back to the spot of accident. Tehrir was prepared by ASI 

Mahesh Chand and he handed over the same to him for registration of the case. After 

registration   of   the   FIR,   he   handed   over   copy   of   FIR   and   original   rukka   to   ASI 

Mahesh Chand. Site plan was prepared by ASI Mahesh Chand at the instance of IC 

PCR Van which is Ex. PW3/A. IO recorded his statementu/s 161Cr. P.C on the same 

day in the police station.PW4  is Jai Kishore   who deposed that on 10.11.2010, he was working as a labour 

near Rajokari Mode Flyover in front of toll tax along with his sister Sunita and other 

labours.  At about 05.00pm, one motorcycle was coming at a high speed from the side 

of Gurgaon. Sunita and he was crossing the road, he was at a little distance behind 

her. Sunita was carrying some fuel wood on her head. Suddenly the motorcyclist hit 

her in the front side as a consequence of which his sister fell down on the road and 

sustained   injuries   on   her   head   and   face   and   started   bleeding   very   badly.   The 

motorcyclist fled away and he could not note down the number of the vehicle. One 

slip was lying on the spot which was taken by him. Thereafter, he took his sister to 

AIIMS hospital with the help of his neighbour Nand Kishore. On the next day, he 
FIR no. 321/10State Vs Sudarshan Kushwaha­4­

went to his native place and returned back after 3­4 days. After some time he went to 

police station and deposited the abovesaid slip to police officials which was seized 

vide memo Ex. PW4/A. The said slip is Ex. P1 on 09.01.2011. He again went to PS 

for  knowing   about  the  progress  of case. where he found one person sitting there 

whom he identified as the driver of motorcycle by which the above said accident had 

taken place on the day of incident. Accused was arrested vide memo Ex. PW4/B.



                  Thereafter, Prosecution Evidence was closed as all material witnesses 

had been duly examined.2.2      Statement of accused Sudarshan Kushwaha U/s. 313CrPCwas recorded on 

19.02.2013 wherein he refuted the allegations against him in toto and stated that on 

the date of the accident, he had been stuck in traffic jam caused due to accident at 

Rajokri, and probably at that time, the installation slips handed over to him had fallen 

on the spot.2. 3   I have heard Ld. APP for state and Ld. defence counsel for accused besides 

going through the record carefully.3.       Standard of Proof

                  The prosecution was required to prove the following ingredients in order 

to bring home the guilt of the accused undersection 279/304 AIPC  and 146/196MV 

Act.I.  That the offending vehicle was being driven by the accused at the 

FIR no. 321/10State Vs Sudarshan Kushwaha­5­

                  time of the accident.II.   That   the  accused   was  driving  in  a  rash   or negligent   manner  on 

                  account of which the  accident was caused.III. That as a result of the accident, death of one Sunita was caused.

           IV. That the accused was driving an uninsured vehicle at the time of the 

                  accident.4. Decision and Legal Reasoning:­

                  On the basis of oral testimonies and documentary evidence on record, I 

am   of   the   opinion   that   the   accused   deserves   to   be   acquitted   on   account   of   the 

following reasons :There is only one eye witness Jai Kishore produced by the prosecution to 

the accident in question who is the brother of the deceased Sunita. The said witness 

turned out as a highly unreliable witness. In his examination in chief, he has stated 

that he was crossing the road and was at a little distance behind deceased Sunita when 

suddenly a motorcycle  hit her on the front side and the said motorcyclist fled away 

and he could not note down his number. However, he picked up a slip lying on the 

spot. Thereafter, it is stated that he went to his native village and returned back after 3 

or 4 days and deposited the slip picked up from the spot to the police on 09.01.2011.In   his   cross   examination   on   the   same   day,   the   witness   has   taken   a 

diametrically opposite stand and has stated that he left from the work place 10 or 15 

minutes after Sunita and when he reached at the spot, about 10 minutes had elapsed 
FIR no. 321/10State Vs Sudarshan Kushwaha­6­

since the said accident  had taken place. The said statement  dents the case of the 

prosecution beyond repair as the witness has completely denied seeing the accident in 

question.   Hence,   during   the   cross­examination,   the   eye   witness   produced   by   the 

prosecution surfaces as a heresay witness. He has again changed his stand that he saw 

a motorcyclist hitting the deceased, on which Court Question was directed to him as 

to which of the statements was true, to which he has admitted that he did not see 

anything and reached at the spot 10 minutes after the accident, and only heard from a 

crowd of people collected on the spot that a motorcycle had hit Sunita. It is settled 

law that no weight can be attached to a heresay witness and hence, the case of the 

prosecution collapses in its entirety.Moreover, the witness Jai Kishan has also stated that the police officials 

got his signature on some blank papers and he had no knowledge as to what was 

written on them.Coming to the case of the prosecution that the installation slips handed 

over to the accused were found on the spot, on the basis of whichsection 133MV Act 

notice was given to the company, who produced the accused, having possession of the 

slips, and had gone to attend to service orders on the date of the accident. At the 

outset, the slips in question were deposited in the police station on 09.01.2011 i.e two 

months after the accident. It is beyond the understanding of any reasonable person 

that if the same were found on the spot by the brother of the accused, which he 

apprehended belonged to the accused person and an important clue in the case, why 

the   said   person   did   not   give   them   to   the   police   on   the   very   same   day,   or   after 

returning from native village within 3­4 days.  The fact that the said slips were 
FIR no. 321/10State Vs Sudarshan Kushwaha­7­

deposited in the PS almost two months after the incident raises a doubt on the case of 

the prosecution.Coming to the evidentiary value of the slips picked up from the spot, to 

my mind, the mere presence of the slips on the spot of the accident does not go to 

prove anything against the accused. The accused has stated in his statement u/s 313 

Cr. P.C that he was crossing the said place and was stopped due to a traffic jam 

caused   due   to   accident   and   while   taking   out   his   mobile   phone   from   the   pocket, 

probably the slips of out bound delivery fell down by ill­luck. The explanation put 

forward by the accused appears to be probable. Even otherwise, the slips might have 

fallen at the time the accused was passing from the area at any point of time and 

accused   cannot   be   connected   with   the   crime   in   question   merely   if   certain   slips 

belonging to him are found on the spot, until and unless any person has noted the 

motorcycle number or identified the accused as the one who had hit the deceased, 

which is not so in the present case.Further the IO ASI Mahesh Singh had expired before his deposition, and 

hence could not be subjected to cross­ examination with respect to the investigation 

conducted by him, especially on the aspect of signing of blank papers by the witness 

Jai Kishore. Hence, this sounds a death­knell for the case of the prosecution.Coming to the case law on the subject, rashness and negligence in a case 

involving a death by negligent driving was explained by Hon'ble Supreme Court of 

India in  Rathnashalvan Vs. State of Karnataka, (SC) 2007 AIR 1064  wherein it 

was held that:FIR no. 321/10State Vs Sudarshan Kushwaha­8­"Section 304AIPC applies to cases where there is no intention to cause  
       death and no knowledge that the act done in all probability will cause death.  
       The provision is directed at offences outside the range ofSection 299and300IPC. The provision applies only to such acts which are rash and negligent and  
       are directly cause of death of another person. Negligence and rashness are  
       essential elements underSection 304AIPC. 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.  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. Criminal rashness means hazarding a dangerous or  
       wanton act with the knowledge that it is dangerous or wanton and the further  
       knowledge that it may cause injury but done without any intention to cause  
       injury or knowledge that it would probably be caused.As noted above, "Rashness" consists in hazarding a dangerous or  
       wanton act with the knowledge that it is so, and that it may cause injury. The  
       criminality lies in such a case in running the risk of doing such an act with  
       recklessness or indifference as to the consequences. Criminal negligence on the  
       other   hand,   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."In the case of Shakila Khader Vs. Nausher Gama, AIR 1975 SC 1324, 

it was observed by Hon'ble Supreme Court as under :"The main criterion for deciding whether the driving which led to the  
       accident was rash and negligent is not only the speed but the width of the road, 
       the density of the traffic and the attempt to overtake the  other vehicle resulting  
       in going to the wrong side of the road and being responsible for the 
FIR no. 321/10State Vs Sudarshan Kushwaha­9­
accident."Further in the case ofParas Nath Vs State of Delhi, 2004  Cri L.J.731 

at 732 (Del)., it was observed as under:"I am not in agreement with the submissions of Ld. Counsel for the appellant  
        merely because the witness did not use the word rashness or negligence in his  
        testimony   and   instead   used   the   word   high   speed,   cannot   be   taken   that   the  
        appellant was not driving the vehicle in a rash and negligent manner. What is  
        important is to find out if the driver of the offending vehicle was driving in  
        public place rashly and in negligent manner so as to endanger human life or  
        put forward to cause hurt or death to any other person. In the case, in hand the  
        appellant that the scooterist had applied brakes all of a sudden and therefore,  
        the appellant was taken unawares, which led the appellant's truck to hit the  
        scooter   from   behind.   Act   of   negligence   can   be   clearly   attributed   to   the  
        petitioner   in   this  case  as   he is solely  responsible for causing this accident  
        without any fault of the scooter. Rashness or negligence can be determined  
        from the manner in which the      accident
                                                           had   taken   place.   Even   the   site   plan  
        prepared by the investigator which was exhibited as PW5/C speaks about the  
        negligence   attributed   to   the   petitioner.   The   appellant   also   admitted   in   his  
        statementu/s 313of the Code of Criminal Procedure that accident had taken  
        place with his truck but denied that it was due to negligent and rash driving on  
        his part because the offending vehicle in the case cited above hit from behind,  
        the conviction was upheld."In the judgment ofS.L. Goswami Vs. State of M.P.reported as  1972 

CRI.L.J.511(SC), it was held by Hon'ble Supreme Court as under :".... In our view, the onus of proving all the ingredients of an offence is  
always upon the prosecution and at no stage does it shift to the accused.   It is no  
part of the prosecution duty to somehow hook the crook.  Even in cases where the  
defence  of  the accused  does  not appear to be credible or is palpably false that  
burden does not become any the less.  It is only when this burden is discharged that  
it will be for the accused  to explain or controvert the essential elements in the  
prosecution case, which would negative it.  It is not however for the accused even at  
the initial stage to prove something which has to be eliminated by the prosecution 

FIR no. 321/10State Vs Sudarshan Kushwaha­10­
to establish the ingredients of the offence with which he is charged, and even if the  
onus   shifts   upon   the   accused   and   the   accused   has   to   establish   his   plea,   the  
standard of proof is not the same as that which rests upon the prosecution. Where  
the onus shifts to the accused, and the evidence on his behalf probabilises the plea  
he will be entitled to the benefit of reasonable doubt...."The onus and  duty to prove the case against the accused is upon the 

prosecution and the prosecution must establish the charge beyond reasonable doubt. 

It is also a cardinal principle of criminal jurisprudence that if there is a reasonable 

doubt with regard to the guilt of the accused the accused is entitled to benefit of doubt 

resulting in acquittal of the accused.   Reference may also be made to the judgment 

titled asNallapati Sivaiah V. Sub Divisional   Officer, Gunturreported as VIII 

(2007) SLT 454 (SC).In the judgment,State of Karnataka Vs. Satish, it was held by Hon'ble 

Supreme Court as under:"Merely because the truck was being driven at a 'high speed' does not  
bespeak   of   either   "negligence'   or   'rashness'   by   itself.     None   of   the   witnesses  
examined by the prosecution could give any indication, even approximately, as to  
what they meant by record material to establish as to what it meant by 'high speed'  
in the facts and circumstances of the case.   Criminality is not to be presumed,  
subject   to   course   to   some   statutory   exceptions.     There   is   no   such   statutory  
exception   pleaded   in   the   present   case.    In   the   absence   of   any   material   on   the  
record, no presumption of 'rashness' or 'negligence' could be drawn by invoking  
the maxim 'res ipsa loquitur'.   There being no evidence on the record to establish  
'negligence' or 'rashness' in driving the truck on the part of the respondent, it  
cannot be said that the view taken by the High Court in acquitting the respondent  
is a perverse view.  Hence, the same calls for no interference."Prosecution   case   may   be   true   but   criminal   jurisprudence   says   that 

prosecution case must be true.There is a long distance between "may be true" and 
FIR no. 321/10State Vs Sudarshan Kushwaha­11­

must be true.It   is   cardinal   principle   of   criminal   jurisprudence   that   an   accused   is 

presumed to be innocent.   The burden lies on the prosecution to prove the guilt of 

accused beyond reasonable doubt.   The prosecution is under a legal obligation to 

prove each and every ingredient of offence beyond any doubt, unless otherwise so 

provided   by  any   statute.     This  general  burden never shifts, it always rests on the 

prosecution.    (Daya   Ram   Vs.   State   of   Haryana,   (P&H)   (DB),   1997(1)   R.C.R. 

(Criminal) 662).In a criminal trial, the burden of proving everything essential to the 

establishment of the charge against an accused always rests on the prosecution and 

there is a presumption of innocence in favour of the accused until the contrary is 

proved.   Criminality   is   not   to   be   presumed,   subject   of   course   to   some   statutory 

exceptions.  It was observed in Pratap V. State of U.P., (SC) 1976 A.I.R. (SC) 966 

that while prosecution required to prove its case beyond a reasonable doubt, accused 

can   discharge   his   onus   by   establishing   a   mere   preponderance   of   probability.     In 

Vijayee Singh v. State of U.P., (SC) 1990(3) S.C.C. 190  it was again held that in 

criminal cases burden is always on prosecution and never shifts.InNasir Sikander 

Shaikh v. State of Maharashtra, (SC) 2005 Cri.L.J. 2621  and  Jarnail Singh v. 

State of Punjab, (SC) 1996(1) R.C.R.(Criminal) 465 it was held that it is cardinal 

principle of criminal jurisprudence that an accused is presumed to be innocent and 

burden lies on prosecution to prove the guilt of accused beyond reasonable doubt. 

Prosecution   is   under   legal   obligation   to   prove   each   and   every   ingredient   of   the 

offence beyond any doubt, unless otherwise so provided by the Statute.(AIR 1962 

FIR no. 321/10State Vs Sudarshan Kushwaha­12­

SC   605   relied).     Accused   is   not  expected   to  prove  his   innocence  to the   hilt.    If 

prosecution story is doubtful, benefit of doubt must go to the accused.In light of the aforesaid discussion and case laws, I am of the opinion 

that prosecution has been unable to prove the case beyond reasonable doubt. Hence, 

accused stands acquitted underS. 279/304AIPC.Qua 146/196MV Act, while the accused has been chargesheeted on the 

basis that the accused failed to produce a valid insurance policy on the date of the 

accident, nothing has been produced by the defence to prove otherwise. The accused 

has stated that he was merely an employee of Eureka Forbes Company and had no 

knowledge that the motorcycle in question was not insured. Hence, criminal liability 

cannot   be   imposed   upon   him.   It   is   settled   law   that   even   though   the   essential 

ingredient to prove any criminal offence is a guilty mind, there are certain exceptions 

to it, which fall within the precincts of 'strict liability',Motor Vehicles Actbeing one 

of   the   statutory   exceptions.   Hence,   despite   the   defence   taken,   accused   stands 

convictedu/s 146/196MV Act for offence of driving an uninsured vehicle.5.     Conclusion:­
            In   a   nutshell,     accused   Sudarshan   Kushwaha   S/o   Fauzdar   Kushwaha 

stands acquitted u/s 279/304­AIPCand convicted underSection 146/196MV Act.Ordered accordingly.Announced in Open Court                        (S.M.Grover)
       Dated: 19.02.2013                              Metropolitan Magistrate ­10
                                                     South Distt. Saket:New Delhi.


FIR no. 321/10                                                            State Vs Sudarshan Kushwaha
 Case no. 178/2 Dated 11.05.2012FIR No. 321/10PS Vasant Kunj (South)
U/s. 279/304­AIPCand 146/196MV ActState  Vs  Sudarshan Kushwaha

19.02.2013

Present :         . Ld. APP Sh Anil Kumar for the State. 
                   Accused with Counsel 

                  SA recorded. Final Arguments heard.By virtue of separate judgment announced in the open court, accused 

Sudarshan Kushwaha S/o Fauzdar Kushwaha stands acquitted u/s 279/304­AIPCand 

convicted underSection 146/196MV Act.Arguments on sentence heard.Taking   a   lenient   view,   as   the   accused   is   stated   to   be   having   clean 

antecedents,   and   sole   bread­earner   of   a   family   of   five,   he   is   released   on   due 

admonition.Further, accused has been directed to file a bail bond of Rs 10,000 undersection 437 ACrPC, for which he has sought time. Allowed in the interest of justice.Now, put up for 26.02.13


                                                                 (SURYA MALIK GROVER )
                                             MM­10(SOUTH DISTRICT)/SAKET COURT/
                                                                  NEW DELHI /26.02.2013




FIR no. 321/10                                                                State Vs Sudarshan Kushwaha
 Case no. 178/2 Dated 11.05.2012FIR No. 321/10PS Vasant Kunj (South)
U/s. 279/304­AIPCand 146/196MV ActState  Vs  Sudarshan Kushwaha

26.02.2013Present:   Sh. Dheeraj Kumar, Ld. Substitute APP for the State.Accused with counsel.Bail   bond   under   section 437 A Cr PC  of  Rs. 10,000/­  furnished  and 

accepted.   Previous  Bail Bond stands cancelled and Surety is discharged. Original 

documents may be returned. Endorsements if any, be cancelled.   File be consigned to 

record room after due compliance               


                                                    (SURYA MALIK GROVER )
                            MM­10(SOUTH DISTRICT)/SAKET COURT/
                                                   NEW DELHI /26.02.2013




FIR no. 321/10State Vs Sudarshan Kushwaha