Delhi District Court
State vs Rishi Kumar on 18 January, 2025
IN THE COURT OF SH. VIRENDER KUMAR KHARTA,
ADDITIONAL SESSIONS JUDGE (FTC)-02, CENTRAL
DISTRICT, TIS HAZARI COURTS, DELHI
In the matter of:-
(Sessions case no. 28345/2016)
FIR No. 310/2014
Police Station Kashmere Gate
Charge-sheet filed under Sections 304/308 IPC & 185 M.V.
Act.
Charges framed against accused. 304/308 IPC & 185 M.V.
Act.
State Versus Rishi Kumar,
S/o Sh. Harish Chander,
R/o H. No. BB-8,
West Vinod Nagar, Delhi.
...Accused.
Date of Institution of case 30.05.2015
Date of Arguments 14.01.2025 & previous dates.
Judgment reserved on 14.01.2025
Judgment pronounced on 18.01.2025
Decision Convicted
JUDGMENT
1. Accused Rishi Kumar is facing trial for the offences
punishable under Sec. 304/308 IPC & 185 Motor Vehicle Act,
1988. The story of the prosecution is that on 17.08.2014 at about
10:00 pm at Ring Road, near Nigam Bodh Ghat, Kashmere Gate,
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 1 of 46
Delhi, accused Rishi Kumar while driving car make ‘Mahindra
Quanto’ bearing registration no. DL-7CM-1368 rammed the
same on the footpath/pavement on which the homeless people
were sleeping at that time and by hitting/crushing the said
persons he caused death of one Sh. Ekraz and another unknown
person with the knowledge that by such act he was likely to
cause death of the said persons. Further on the aforesaid date,
time and place while driving the aforesaid vehicle in aforesaid
manner with the knowledge that by such act he was likely to
cause death of the persons sleeping on the pavement/footpath, he
caused simple/grievous injuries on the persons of Bansi, S/o Sh.
Bandan, Anil, S/o Sh. Suren, Prithvi Raj, S/o Sh. Ujagar, Gautam
S/o Sh. Daulat, Vipul, S/o Sh. Vidya Rana, Vishnu S/o Sh. Durga
and Vinod S/o Sh. Shyama Ram and simple injuries to Naresh,
S/o Sh. Laxman, Ranjit S/o Sh. Manoj and Santosh S/o Sh. Ram
Prakash by hitting/crushing them with the aforesaid vehicle.
Further on the aforesaid date, time and place while driving the
aforesaid vehicle in the aforesaid manner, accused was found
under the influence of liquor to the extent of 116.0 mg per100 ml
in his blood.
2. The brief facts which are borne out from the record of the
case are that on 17.08.2014 on receiving DD No. 42A, Ex.
PW-17/A, regarding accident near Nigam Bodh Ghat, Ring Road,
Delhi, PW-17 Retd. SI Shakti Raj alongwith PW-15 Ct. Praveen
Kumar went to the spot of incident where one vehicle bearing
registration no. DL-7CM-1368 make Mahindra Quanto was
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 2 of 46
found turned turtle. They also found that blood and footwears
were scattered at the spot and many persons had gathered there.
During inquiry, it was revealed that injured persons had been
taken to different hospitals by PCR and Ambulances. In the
meantime, PW-6 HC Jitender produced accused Rishi Kumar as
driver of the Mahindra Quanto. Thereafter, PW-17 SI Shakti
Singh left accused Rishi Kumar in custody of Ct. Jitender (now
HC) and he along with Ct. Praveen went to the hospital as injured
persons were admitted at Trauma Centre, Civil Lines, Hindu Rao
Hospital, Aruna Asaf Ali Hospital and LNJP hospital. Thereafter
PW-17 SI Shakti Singh met with one injured namely Santosh
Kumar who was under treatment at Aruna Asaf Ali Hospital and
was found fit for statement. Thereafter IO/SI PW-17 Shakti Singh
recorded statement of injured Sh. Santosh Kumar, Ex. PW-17/B.
During investigation, accused was got medically examined vide
MLC, Ex. PW-17/C at Aruna Asaf Ali Hospital and he was found
under influence of liquor. Thereafter, PW-17 SI Shakti Singh
returned to the spot of incident and on the basis of complaint, Ex.
PW-17/B, he prepared rukka, Ex. PW-17/E and got the present
FIR registered under Sec. 279/337/338 IPC & 185 M. V. Act at
PS Kashmere Gate.
3. During investigation, IO/PW-17 SI Shakti Singh got
inspected the spot of incident through Mobile Crime Team,
prepared site plan, seized the offending vehicle and also seized
the belongings of injured persons from the spot. Thereafter IO
arrested accused Rishi Kumar in the present case, conducted his
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 3 of 46
personal search and thereafter accused was released on bail as he
was arrested under bailable sections of law. During investigation,
IO received information regarding death of one of the injured
namely Ekraj at Trauma Centre by Duty Officer and thereafter IO
went to the hospital, collected dead body, got preserved the same
in Motruary, Subzi Mandi and added Sec. 304A IPC in the
charge-sheet. During investigation and from medical examination
of accused, it was revealed that accused was drunk at the time of
incident and hence Sec. 308/304 IPC were added in the case
diary by IO. Thereafter, IO again arrested accused in the present
case and conducted his personal search. During investigation, IO
got mechanical inspection of offending vehicle bearing
registration no. DL-7CM-1368, seized the RC, insurance
documents and driving license of accused. During investigation,
one more injured whose name and particulars could not be
known, also expired in the hospital. Thereafter IO preserved both
the dead bodies and efforts were made to trace the relatives of
both the deceased but they could not be found hence after
postmortem of both the dead bodies, these were cremated.
During investigation, IO sent the blood sample of accused to
FSL, recorded supplementary statement of complainant Sh.
Santosh Kumar and statements of injured persons namely
Gautam, Vipul, Bansi and Naresh Kumar. IO also made efforts to
trace other injured persons but they could not be contacted after
their discharge from hospital since they were vagabonds and their
whereabouts could not be known and during their admission in
the hospital, their statements could not recorded as they were not
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 4 of 46
fit for statement. IO also collected opinions regarding nature of
injuries on the MLCs of injured persons, sent the exhibits to FSL.
On completion of investigation, charge-sheet was filed by the IO
before the Court through the SHO.
4. Vide order dated 2 0 . 0 5 . 2 0 1 5 copy of the charge-sheet
under Section 207 Cr.P.C was supplied to the accused and
v i d e o r d e r d a t e d 2 8 . 0 5 . 2 0 1 5 , the case was committed
to the Court of Sessions under Sec. 209 Cr.P.C.
5. Vide order dated 08.07.2015 the Ld. Predecessor Court
was pleased to frame charges under Sec. 304/308 IPC & 185 M.
V. Act against accused, to which he pleaded not guilty and claimed
trial.
6. To prove its case, prosecution has examined total 20
witnesses. The testimonies of presecution witnesses along with
its nature has been discussed briefly in the following paragraphs:-
7. PW-1 Dr. V. Jagadeesh, Sr. Resident (Orthopedic), Hindu
Rao Hospital deposed about his opinion regarding nature of
injuries on the MLCs of injured Anil, S/o Sh. Suresh and injured
Prathavi Raj S/o Sh. Ujjagar, as ‘greivous’ on the basis of
examination of x-ray plates, vide his opinion Ex. PW-1/A & Ex.
PW-1/B. In his cross-examination, he deposed that he did not
personally examine the injured persons. He denied the suggestion
that his view was hypothetical and was not based on personal
examination of injured persons.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 5 of 46
8. PW-2 Sh. K. V. Singh, Medical Record Clerk, Hindu Rao
Hospital has proved MLC No. 5713/14 of injured Naresh,
prepared by Dr. Sayed as Ex. PW-2/A. He also deposed that as
per record, the patient was referred to EMO (Ortho) and EMO
(Surgery) for further management. In his cross-examination, he
deposed that he had no personal knowledge of the case.
9. PW-3 Sh. Gautam, is one of the injured in the present case.
He deposed that on 17.08.2014 at about 09:00-09:30 pm, he
along with many other labourers was sitting on the footpath
situated in front of Rain Basera situated near Nigam Bodh Ghat.
He further deposed that one car came at a very fast speed from
the side of ISBT and climbed on the footpath where he was
present. He further deposed that the tyre of the car had passed
over his body and injured the other persons sitting with him. He
further deposed that when the persons present at the footpath
raised alarm and asked the driver to stop the car, he did not spot
it. He further deposed that the tyre of the car got burst and the
crowd gathered at the spot overtuned the said car to take out the
injured persons who were crushed by the said car. He further
deposed that he had seen the person driving the said car. He
further deposed that accused was driving the car at very fast
speed and he did not stop the car even after causing the accident
of number of persons and continued to drive till the tyre burst.
This witness correctly identified the accused in the court. In his
cross-examination, he deposed that the height of footpath was
about 2 foot from the road. He also deposed that he had seen the
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 6 of 46
accused driving the car and he could not say if any other person
was sitting in the said car beside the accused. He also deposed
that there were around 60 persons sitting on the footpath. He
denied the suggestion that it was not possible for the vehicle to
climb the footpath since it was 2 feet in height. He also denied
the suggestion that vehicle in question could not have moved
further if some persons were underneath the same. He also
denied the suggestion that the vehicle in question had lost its
control due to mechanical fault and that is how it caused the
accident.
10. PW-4 Dr. Priya Ranjan, Medical Officer, Aruna Asaf Ali
Hospital has proved the MLCs of four injured persons namely
Ranjeet S/o Sh. Manoj, Santosh S/o Sh. Ram Prasad, Gautam S/o
Sh. Daulat and Vipul S/o Sh. Vidya Rana as Ex. PW-4/A to Ex.
PW-4/D. This witness was not cross-examined on behalf of
accused despite opportunity given to him.
11. PW-5 Sh. Prithvi Raj, is one of injured in the present case.
He deposed that on 17.08.2014 at around 09:30/10:00 pm he was
lying on the pavement on the road of U-turn from Hanuman
Mandir to Nigam Bodh Ghat. He further deposed that he was on
the middle of pavement on the road and he was lying on the
pavement for sleeping and other persons namely Gautam,
Vishnu, Santosh and Vipul were also on the same pavement and
they were either sleeping or lying. He further deposed that
suddenly one vehicle came and climbed up on the pavement
where they were sleeping. He also deposed that he came under
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State Vs. Rishi Kumar. Page No. 7 of 46
the vehilce and received injury on several parts of his body and
he became unconscious. He also deposed that he regained
consciousness and found himself in one Hospital at Farukhabad,
UP where he came to know that he was admitted in Hindu Rao
Hospital and LNJPN Hospital in Delhi from where he was
shifted to Farukhabad, UP by his family members. He further
deposed that he could not see the face of the driver of the said
vehicle. In his cross-examination, he denied the suggestion that it
was not possible for the vehicle to climb the footpath since it was
two feet height. He also denied the suggestion that the vehicle in
question had lost its control due to mechanical fault and this is
how it caused the incident. He admitted that he knew that he was
sleeping on the pavement and that was dangerous due to the
movement of heavy vehicles in the area besides
footpath/pavement.
12. PW-6 HC Jitender Kumar, deposed that on 17.08.2014 at
about 10:00 pm, he was present at Police Booth, Ring Road, near
Nigam Bodh Ghat. He further deposed that he heard the hue and
cry that ‘gadi chadha di’ and thereafter he went to the spot i.e.
near U-turn from ISBT side to Nigam Bodh Ghat where he saw
that some public persons were present there. He further deposed
that he also noticed that one car make Mahindra Quanto bearing
registration no. DL-7CA-1368 was on the pavement of the right
side and some persons were under the said car. He further
deposed that accused had been caught by the public persons
present there and he along with the help of public persons
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 8 of 46
upturned the vehicle and took out the injured persons who were
lying under vehicle before upturning it. He further deposed that
he took the accused in his custody. He further deposed that after
sometime, PCR Vans and CAT ambulances arrived at the spot
and injured persons were shifted to hospital. He narrated about
proceedings conducted by IO/ASI Shakti Singh at the spot i.e.
inspection of spot of incident by Mobile Crime Team, seizure of
exhibits by the IO from the spot, preparation of rukka and
registration of FIR through Ct. Praveen by the IO. He also
narrated about medical examination of accused, seizure of blood
sample and MLC of accused by IO. In his cross-examination he
deposed that when he reached at the spot, 10-12 injured persons
were there and some others had collected in order to help the
injured persons. He also deposed that on that day, he was on
picket duty from 06:00 pm to 05:00 am and the distance between
the spot in question and his duty place was around 100 meters.
He denied the suggestion that he did not participate in the initial
investigation carried out by the IO or he had deposed falsely
under the instruction of main IO.
13. PW-7 Sh. Vishnu, is also one of the injured in the present
case. He deposed that on 17.08.2014 at around 10:00 pm, he
came to the middle footpath in front of Nigam Bodh Ghat after
taking dinner for rest. He further deposed that at around 10:30
pm, one vehicle make Mahindra big car came at a very fast speed
from the side of ISBT and going towards Hanuman Mandir side
and driver of the said vehicle climbed the said car upon the
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 9 of 46
middle foothpath where he was taking rest along with other
persons. He further deposed that due to that he came under the
said vehicle and 10-12 other persons also came under this vehicle
and out of them two persons died and other ten persons including
himself received several injuries. He further deposed that first of
all, the driver of the said car crushed his hip and thigh and
thereafter he reversed the said Mahindra car then he received
injury on his chest as well as his shoulder. He correctly identified
accused in the court who was driving the said car. He further
deposed that after the said incident, accused tried to flee away
but their screaming, other public persons present near the spot
apprehended the accused. He also deposed that accused was
under the influence of alcohol at that time and one lady was also
with him and she was also under the influence of alcohol. In his
cross-examination, he deposed that the pavement on which he
was sitting along with his fellow brothers was situated at height
of around 3 feet from the surface/road. He also deposed that the
said pavement was in triangular shape. He also deposed that
some of the other fellows were either sleeping or gossiping or
eating. He also deposed that the heavy traffic plies on the road
besides the pavement. He denied the suggestion that due to the
height of pavement, it was quite impossible for the vehicle to
climb the pavement. He deposed that he did not know if the local
law prohibited the sitting or sleeping over the said pavement. He
denied the suggestion that the vehicle could not have moved
further had there been ten persons beneath it. He also denied the
suggestion that due to height of 3 feet, the vehicle could not have
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 10 of 46
moved over it at a high speed. He also denied the suggestion that
vehicle had developed some mechanical defect and due to the
same only the said accident occurred. He also denied the
suggestion that the accused had no intention to move the vehicle
further after noticing the accident which had occurred due to
mechanical fault alone.
14. PW-8 Dr. Rakesh Solanki, CMO, Hindu Rao Hospital has
proved MLC No. 5694 of injured Anil, Ex. PW-1/A on behalf of
Dr. Simple. He deposed that as per record, the injured was
brought in the hospital with the alleged history by the Incharge
CATS N-15 and there was abrassion and swelling on right side
leg. He further deposed that there was also abrasion on both the
knees. He also proved MLC No. 5713 of injured Naresh, Ex.
PW-2/A on behalf of Dr. Sayeed Abid. He deposed that as per
record, the injured was brought in the hospital with the alleged
history by the Incharge CATS N-15 and there was abrasion over
lower abdomen near umblicus. In his cross-examination, he
deposed that the nature of injury as written in the MLC was not
opined by the writer of MLC, however, it was sent to the
concerned department for further treatment and opinion. He
denied the suggestion that the signature of Dr. Simple as
appearing on the MLC was not suggestive or her initials. He
denied the suggestion that he had recognized the scribe of Dr.
Simple and Dr. Sayeed Abid as he had been directed by his
superior to do so.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 11 of 46
15. PW-9 Dr. Girish Chandra Prabhat, Sr. Medical Officer,
Directorate of Health Services, Karkardooma, Delhi deposed that
on 17.08.2014 he was working as Casulty Medical Officer in
Sushruta Trauma Centre, Civil Lines. He proved MLCs of
injured persons namely Vishnu, Vinod and one unknown person
as Ex. PW-9/A to Ex. PW-9/C. This witness was not cross-
examined on behalf of accused despite opportunity given to him.
16. PW-10 Dr. Adesh Kumar, Sr. Scientific Officer
(Chemistry), FSL, Rohini has proved his detailed report
regarding examination of blood sample of accused as Ex.
PW-10/A. He also deposed that on chemical examination and
GC-HS examination, Ex. 1 was found contain Ethyl Alcohol
116.0 mg per 100 ml of blood. This witness was not cross-
examined on behalf of accused despite opportunity given to him.
17. PW-11 Dr. Rahul Kumar Meena has proved his detailed
postmortem report of unknown deceased as Ex. PW-11/A. He
also deposed that cause of death was ‘due to cerebral damage
consequent upon blunt force trauma to the head’. This witness
was not cross-examined on behalf of accused despite opportunity
given to him.
18. PW-12 Dr. Akash Jhanjee, has proved detailed postmortem
report of deceased Ikraj S/o Sh. Basant Raj as Ex. PW-12/A. He
deposed that cause of death was ‘carnocerebral damage as a
result of blunt force/surface impact on head’. This witness was
also not cross-examined on behalf of accused despite opportunity
given to him.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 12 of 46
19. PW-13 Dr. Ankit Kataria, Sr. Resident (Orthopedics), Lok
Nayak Hospital has proved the opinion regarding nature of
injuries on MLC No. EBH015691, Ex. PW-13/A as ‘grievous’ in
nature on behalf of Dr. Yugal. This witness was also not cross-
examined on behalf of accused despite opportunity given to him.
20. PW-14 SI Devender Kumar, was the Duty Officer who
proved copy present FIR, Ex. PW-14/A, his endorsement on
rukka, Ex. PW-14/B and certificate under Sec. 65B of The
Evidence Act, Ex. PW-14/C. In his cross-examination, he denied
the suggestion that the aforesaid FIR was false and fabricated
document.
21. PW-15 Ct. Praveen, deposed that on 17.08.2014 at about
10:15 pm, on receiving call regarding accident near Nigam Bodh
Ghat, Ring Road, he along with ASI Shakti Singh reached at the
spot of incident, where so many public persons and ambulances
of CATS and PCR Vans were already present. He further deposed
that one Mahindra vehicle, which registration number he did not
remember, was also lying upside down. He further deposed that
blood was scattered near the spot and there were sleepers/shoes
and clothes were also scattered there. He also deposed that one
Ct. Jitender was also present there who produced accused Rishi
Kumar as the driver of the Mahindra vehicle. He further deposed
that IO recorded statement of one injured namely Santosh Kumar
at Aruna Asaf Ali Hospital, prepared tehrir and handed over the
same to him for registration of FIR. He further deposed that after
registration of FIR, he came to the spot and handed over the copy
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 13 of 46
of FIR and original tehrir to IO/ASI Shakti Singh. He narrated
about proceedings conducted by the IO at the spot of incident and
proved seizure memo of slippers, clothes and shoes as Ex.
PW-15/A, seizure memo of offending vehicle bearing registration
no. DL-7CM-1368 as Ex. PW-15/B, arrest memo of accused
Rishi Kumar as Ex. PW-15/C, seizure memo of RC of aforesaid
vehicle as Ex. PW-15/D and seizure memo of photocopy of
insurance paper of said vehicle as Ex. PW-15/E. In his cross-
examination, he deposed that when they reached at the spot
firstly, there were no injured persons and eyewitness at the spot.
He also deposed that he did not verify as to how the vehicle in
question was turned turtle. He denied the suggestion that no
proceedings were done at the spot.
22. PW-16 Sh. Sanjay Kumar, was the registered owner of
offending vehicle bearing registration no. DL-7CM-1368. He
deposed that he was the registered owner of the aforesaid vehicle
and he had not brought the said vehicle in the court. During his
examination-in-chief, Ld. Defence counsel had deposed that the
identity of the vehicle was not in dispute and he had no objection
about the identity and production of said vehicle in the court.
This witness was not cross-examined on behalf of the accused
despite opportunity given to him.
23. PW-17 Retd. SI Shakti Raj is the Investigating Officer of
the present case. He deposed that in the year 2014, on receipt of
DD No. 42A, Ex. PW-17/A regarding accident near Nigam Bodh
Ghat, he along with Ct. Praveen Kumar went to the spot of
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 14 of 46
incident where one vehicle make Mahindra Quanto bearing
registration no. DL-7CM-1368, was found turned turtle. He
further deposed that many public person had gathered there and
blood was also scattered on the spot. He further deposed that it
was revealed that injured persons had been removed to different
hospitals by PCR and Ambulance. He also deposed that Ct.
Jitender Kumar also met him at the spot who produced accused
Rishi Kumar before him, who had rescued accused from the
public as public had manhandled him. He further deposed that
accused was left in the custody of Ct. Jitender and he along with
Ct. Praveen proceeded to the hospital and went to Trauma
Centre, Civil Lines, Hindu Rao Hospital, Aruna Asaf Ali Hospital
and LNJP hospital since many persons got injured in the incident.
He further deposed that one injured namely Santosh Kumar was
found under treatment in Aruna Asaf Ali Hospital and he was fit
for statement and hence he recorded his statement, Ex. PW-17/B.
He further deposed that he also got conducted medical
examination of accused vide MLC Ex. PW-17/C and seized
blood sample of accused vide seizure memo Ex. PW-17/D. He
further deposed that he returned to the spot, prepared rukka, Ex.
PW-17/E and got the case registered under Sec. 279/337/338 IPC
& 185 M. V. Act at PS Kashmere Gate through Ct. Praveen. He
narrated about the proceedings conducted by him at the spot of
incident and proved photographs of the spot taken by Mobile
Crime Team as Ex. PW-17/F-1, Report of Mobile Crime Team as
Ex. PW-17/F and site plan at instance of complainant Santosh as
Ex. PW-17/G. He also proved the seizure memo of belongings of
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 15 of 46
injured persons as Ex. PW-15/A, seizure memo of offending
vehicle as Ex. PW-15/B, arrest memo of accused Rishi Kumar as
Ex. PW-15/C and personal search of accused as Ex. PW-17/H.
He further deposed that in wee hours of 18.08.2014, he received
information from Duty Officer regarding death of one injured
namely Ikraj in Trauma Centre, Civil Lines and accordingly he
went to the hospital, collected the dead body of deceased Ikraj
and got it preserved at Mortuary, Subzi Mandi vide application,
Ex. PW-17/I. He also deposed that he added Sec. 304A IPC in the
case diary. He further deposed that from the medical examination
of accused, it was revealed that he was drunk at the time of
incident hence Sections 308/304 IPC were also added and
accused was again arrested vide arrest memo Ex. PW-17/J and
conducted his personal search vide memo Ex. PW-17/J-1. He
also deposed that offending vehicle was got examined through
FSL expert and he collected report Ex. PX-1 in this regard. He
also deposed that during investigation, one more injured got
expired and he got preserved the dead body vide application Ex.
PW-17/K. He also proved seizure memo of driving license of
accused Ex. PW-17/L, copy of insurance paper of vehicle,
PW-15/D, copy of RC, Ex. PW-15/E, supplementary statement of
complainant Santosh Kumar, Ex. PW-17/M, statement of injured
Gautam, Ex. PW-17/M-1, statement of injured Vipul, Ex.
PW-17/M-2, statement of injured Bansi, Ex. PW-17/M-3,
statement of injured Naresh, Ex. PW-17/M-4 and statement of
injured Vishnu as Ex. PW-17/M-5. He also obtained the opinion
about nature of injuries on the MLCs of injured persons. In his
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 16 of 46
cross-examination, he deposed that he had not taken CCTV
footage of spot as there was no camera covering the spot of
incident. He admitted that lot of vagabonds used to stay there by
laying. He also deposed that he did not know whether they were
drug addicts or not.
24. PW-18 Ex-SI Mohit Kumar, has proved the detailed
Mobile Crime Team Report, Ex. PW-17/F. This witness was not
cross-examined on behalf of accused despite opportunity given to
him.
25. PW-19 Sh. Arvinder Singh, had conducted the mechanical
inspection of the offending vehicle bearing registration no.
DL-7CM-1368. He proved his detailed report in this regard as
Ex. PW-19/A. He also deposed that mechanical systems i.e.
break system, headlight, horn were found ok and vehicle was not
fit for road test due to front left tyre damage. This witness was
not cross-examined on behalf of accused despite opportunity
given to him.
26. PW-20 HC Devender Kumar, was the MHC(M) in the PS
Kashmere Gate. He proved entries in register no. 19 regarding
deposit of case properties as Ex. PW-20/A to Ex. PW-20/C. This
witness was not cross-examined on behalf of accused despite
opportunity given to him.
27. During proceedings, accused admitted the genuineness of
FSL report no. FSL-2014/SOC-153/PHY-71/2014 dated
30.09.2014, under Sec. 294 Cr.PC prepared by Dr. S. S. Badwal
as Ex. PX-1.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 17 of 46
28. After closing of Prosecution Evidence, statement of
accused was recorded under Sec. 313 Cr.PC, wherein he denied
all the charges against him. He stated that the present case is false
one. He stated that he was not driving the vehicle in a rash or
negligent or at a high speed. He further claimed that injured and
victims were sitting and sleeping on the road under the influence
of psychotropics substance, thus, rendering their own life in
danger. He further claimed that place was not meant for sleeping
or sitting by the public but even as of now, the vagabonds do
sleep and sit there under the influence of psychotropics
substance.
29. After recording of statement of accused under Sec. 313
Cr.P.C, accused has examined himself on oath as defence witness
under Sec. 315 Cr.PC. The testimony of accused in his defence
has been discussed in brief as under:-
30. DW-1 Accused Rishi Kumar deposed that on 17.08.2014
he was returning from a family gathering and at that time he was
driving his vehicle i.e. Mahindra Quanto. He further deposed that
he was coming from the side of ISBT Kashmere Gate and there
was a U-turn where he was supposed to take right turn. He
further deposed that at around 10:00 pm, near U-turn when he
saw some of the people sitting and lying on the road, he blew
horn and slowed down his vehicle. He further deposed that the
U-turn (blind turn), some of the people/vagabonds were present
there and he could not notice and by the time his vehicle could
come to a complete halt, 2-3 persons came under his vehicle. He
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 18 of 46
further deposed that he got scared and in order to save them, he
got off from his vehicle and with the help of other persons
gathered there got the entangled persons from under the vehicle.
He further deposed that he saw the persons sitting and lying on
the road/turn so he tried his level best to apply break so as to
avoid any untoward accident and before applying break he also
blew horn but that horn went unnoticed. He further deposed that
he applied conscious break but being a steep turn he could not
avoid the accident. He further deposed that he was innocent and
the place where the accident occurred is not meant for sitting or
lying. In his cross-examination by Ld. Addl. PP for the State he
admitted that he was drunk. He denied the suggestion that he
blew horn or it was a steep turn at the spot. He also denied the
suggestion that he was driving the vehicle in swerved manner or
he did not try to apply break.
31. Final arguments were advanced by Sh. Pankaj Kumar
Ranga, Ld. Addl. PP for the State and Sh. M. Shankar & Sh.
Abhishek Sharma, Ld. Counsels for accused. Written arguments
were also filed on behalf of accused.
32. Ld. Addl. PP for the State argued that the prosecution has
proved its case beyond reasonable doubt and all the prosecution
witnesses have supported the prosecution story and have
corroborated each other’s version. To substantiate his
submissions, he argued that injured eyewitnesses namely PW-3
Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu have
completely supported the prosecution story. He also argued that
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 19 of 46
PW-3 Sh. Gautam and PW-7 Sh. Vishnu have correctly identified
the accused. He also argued that accused was intoxicated at the
time to incident and he has admitted this fact on oath during his
examination as defence witness no. 1. He further argued that
voluntary intoxication is not a defence under IPC or any other
law. He also argued that PW-10 Dr. Adesh Kumar has proved his
FSL report in which he has given the finding that ethyl alcohol
116.0 mg per 100 ml blood was found from the blood sample of
accused. He also argued that the deceased persons as well as the
injured persons were lying/sitting on the pavement and the
accused drove his vehicle with the knowledge of their presence at
the pavement and hit/crushed them. He also argued that PW-19
Sh. Arvinder Singh has proved mechanical inspection report of
offending vehicle bearing registration no. DL-7CM-1368 and as
per the mechanical inspection report, the mechanical systems i.e.
break system, head light and horn were found to be ok. He also
argued that the accused was apprehended from the spot of
incident itself. He also argued that the all the proceedings have
been duly proved by the police witnesses and all the prosecution
witnesses are of the sterling quality and hence accused should be
convicted under all the Sections of law under which charges have
been framed against him.
33. Per Contra Ld. Defence Counsels for accused argued that
the prosecution has miserably failed to prove its case beyond
reasonable doubt. To substantiate their point, they argued that
they are not disputing the alleged incident and driving of
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 20 of 46
offending vehicle by the accused but at most the accused has
committed the offence punishable under Sec. 304A IPC by
driving the vehicle in a rash and negligent manner. They further
argued that the deceased and injured persons were present on the
road and not on the footpath/pavement and the alleged incident
had taken place only on the road. They also argued that victims
were drug addicts and they were intoxicated at the time of
incident. They further argued that knowledge of presence of
victims at the spot and the anticipation that the act of accused
may cause injury/death of persons cannot be attributed to the
accused. They also argued that there was mechanical fault in the
offending vehicle. They also argued that PW-5 Sh. Prithvi Raj
had not seen the face of accused. They also argued that PW-5 Sh.
Prithvi Raj himself admitted that sleeping on footpath was
dangerous and hence the injured/deceased persons were not
supposed to sleep on the pavement/footpath. They further argued
that accused has not committed the offence intentionally as he
had no personal enmity with any of the victims or the persons
sitting or lying at the spot of incident. They further argued that
since the prosecution has failed to prove its case against accused
beyond reasonable doubts, accused should be acquitted under all
sections of law under which charges has been framed against
him.
34. In the present case, charges under Sec. 304/308 IPC & 185
M. V. Act have been framed against the accused. These Sections
have been elaborated as under:-
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 21 of 46
304. Punishment for culpable homicide not amounting to
murder:-
Whoever commits culpable homicide not amounting to
murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine, if the
act by which the death is caused is done with the intention
of causing death, or of causing such bodily injury as is
likely to cause death,or with imprisonment of either
description for a term which may extend to ten years, or
with fine, or with both, if the act is done with the
knowledge that it is likely to cause death, but without any
intention to cause death, or to cause such bodily injury as
is likely to cause death.
308. Attempt to commit culpable homicide:-
Whoever does any act with such intention or knowledge
and under such circumstances that, if he by that act
caused death, he would be guilty of culpable homicide not
amounting to murder, shall be punished with
imprisonment of either description for a term which may
extend to three years, or with fine, or with both; and, if
hurt is caused to any person by such act, shall be
punished with imprisonment of either description for a
term which may extend to seven years, or with fine, or
with both.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 22 of 46
185 M. V. Act:- Driving by a drunken person or by a person
under the influence of drugs. – Whoever, while driving, or
attempting to drive, a motor vehicle:-
[(a) has, in his blood, alcohol exceeding 30 mg. per 100
ml. of blood detected in a test by a breath analyser, [or in
any other test including a laboratory test,] or](b)is under the influence of a drug to such an extent as to
be incapable of exercising proper control over the vehicle,
shall be punishable for the first offence with imprisonment
for a term which may extend to six months, or with fine [of
ten thousand rupees], or with both; and for a second or
subsequent offence, [***], with imprisonment for a term
which may extend to two years, or with fine [of fifteen
thousand rupees], or with both.
35. I have thoughtfully considered the arguments advanced,
perused the material available on record, scrutinized the evidence
led by the prosecution and gone through the relevant provisions
of law. I have also considered the written arguments as well as
judgments relied upon by the Ld. Addl. PP for the State as well as
Ld. Counsel for accused.
36. As per ther record, total 12 homeless people who were
present at the footpath/pavement were hit/crushed by the
offending vehicle i.e. Mahindra Quanto Car bearing registration
no. DL-7CM-1368. Two persons i.e. Ekraj and one unknown
person whose particulars could not be known, expired in the
hospital during treatment while other sustained simple/grievous
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 23 of 46
injuries on their persons. Since all the victims were homeless
people and were vagabonds, most of them including complainant
Sh. Santosh Kumar could not be traced for their examination as
PWs during the trial and only three injured eyewitnesses i.e.
PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu
could be examined as PWs by the prosecution.
37. PW-3 injured/Sh. Gautam deposed that on 17.08.2014 at
about 09:00-09:30 pm, he was sitting on the footpath situated in
front of Rain Basera and at that time one car came at very fast
speed from side of ISBT and climed on the footpath where he
was present. Similarly, injured/PW-5 Sh. Prithvi Raj deposed that
on 17.08.2014 at about 09:30-10:00 pm, he was lying on the
pavement for sleeping along with other persons namely Gautam,
Vishnu, Santosh and Vipul on the road of U-trun from Hanuman
Mandir to Nigam Bodh Ghat and suddenly, one vehicle came and
climbed up on the pavement where they were sleeping. PW-7/
injured Sh. Vishnu has also deposed on the lines of PW-3 Sh.
Gautam and PW-5 Sh. Prithvi Raj. He deposed that on
17.08.2014 at about 10:00 pm, he came on the middle footpath in
front to Nigam Bodh Ghat for rest after taking dinner and at
about 10:30 pm, one vehicle make Mahindra big car came at a
very fast speed from the side of ISBT and the driver of the said
vehicle rammed the said vehicle upon the middle footpath where
he was taking rest along with other persons. Thus, there is
complete consistency in the testimonies of PW-3 Sh. Gautam,
PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu with respect to the
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 24 of 46
fact that the offending vehicle i.e. Mahindra Quanto car came
from side of ISBT and same climed upon the footpath where
several persons were present. Accused in his statement recorded
on oath under Sec. 315 Cr.PC has taken the defence that the
persons were sitting and lying on the road. However contrary to
his statement under Sec. 315 Cr.PC, accused in answer to
question no. 33 put to him under Sec. 313 Cr.PC has specifically
stated that injured were sleeping on the road and pavement. Thus,
the accused in answer to question no. 33 put to him under Sec.
313 Cr.PC has admitted that the victims were lying on the
pavement. Moreover, the accused has not brought anything on
record either in the cross-examinations of PW-3 Sh. Gautam,
PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu or through any
independent evidence that the said persons were lying on the
road and not on the footpath. PW-18 SI Mohit, Crime Team
proved his spot inspection report, Ex. PW-17/F and deposed that
car bearing registration no. DL-7CM-1368, Mahindra Quanto
was found in accidental condition. He also deposed that blood
and blood stained clothes were also found scattered on the
footpath and the spot of incident was photographed. In the
photographs collectively exhibited as Ex. PW-17/F-1, it can be
seen clearly that the corner of the footpath has been damaged and
the blood, clothes, slippers, carry bags and blankets of the
victims are lying scattered at the footpath. Thus, the prosecution
has successfully proved that the victims were persent on the
pavement/footpath and the vehicle had hit them on the
pavement/footpath and not on the road and the defence taken by
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 25 of 46
accused in this regard is without any substance. There is some
inconsistency in testimonies of PW-3 Sh. Gautam, PW-5 Sh.
Prithvi Raj and PW-7 Sh. Vishnu with respect to the timing of
incident but same is not material as accused himself in his
examination under Sec. 315 Cr.PC has deposed that the alleged
incident took place at 10:00 pm. Moreover, PW-6 HC Jitender
has also deposed that the incident took place about 10:00 pm.
Thus, the prosecution has proved that the alleged incident took
place at about 10:00 pm.
38. PW-3 Sh. Gautam deposed that the tyre of the car had
passed over his body and it injured other persons sitting with
him. Similarly, PW-5 Sh. Prithvi Raj deposed that he came under
the vehicle and received injuries on several parts of his body and
he became unconscious. Similarly, PW-7 Sh. Vishnu also
deposed that he came under the said vehicle and 10-12 persons
also came under the said vehicle. Thus, there is complete
consistency in the testimonies of PW-3 Sh. Gautam, PW-5 Sh.
Prithvi Raj and PW-7 Sh. Vishnu with respect to the fact that the
vehicle hit/crushed them and other persons present on the
footpath/pavement due to which they sustained injuries. The
testimonies of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7
Sh. Vishnu with respect to injuries sustained by them and other
persons present at the pavement/footpath has been corroborated
by medical evidence on record through the testimonies of PW-4
Dr. Priya Ranjan who prepared the MLCs of injured persons
namely Ranjeet, Santosh, Gautam and Vipul, exhibited as Ex.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 26 of 46
PW-4/A to Ex. PW-4/D, by PW-8 Dr. Rakesh Solanki who
prepared the MLCs of injured persons namely Anil and Naresh
exhibited as PW-1/A & Ex. PW-2/A and by PW-9 Dr. Girish
Chandra Prabhat who prepared MLCs of injured Vishnu, Vinod
and one unknown person exhibited as Ex. PW-9/A to Ex.
PW-9/C. Accused has failed to put any dent on the veracity of
PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh. Vishnu
and PW-4 Dr. Priya Ranjan, PW-8 Dr. Rakesh Solanki and PW-9
Dr. Girish Chandra Prabhat with respect to the fact of hitting of
injured persons by the offending vehicle and the injuries
sustained by them.
39. PW-6 HC Jitender Kumar deposed that on 17.08.2014 at
about 10:00 pm, he was present at Police Booth, Ring Road, near
Nigam Bodh Ghat and he heard the hue and cry that ‘gadi chadha
di’. He further deposed that he went to the spot i.e. near U-turn
from ISBT side to Nigam Bodh Ghat where he noticed that one
car make Mahindra Punto bearing registration no. DL-7CA-1368
(DL-7CM-1368) was on the pavement of right side and some
persons were under the said car and accused had been caught by
public persons. He also deposed that he along with the help of
public persons upturned the vehicle and took out the injured
persons who were lying under the vehicle before upturning it. He
also deposed that he took the accused in his custody. Vide DD
No. 41B which on record, Ct. Jitender (now HC) had left the PS
on 17.08.2014 at 06:18 pm for his duty at Nigam Bodh Ghat. The
testimony of PW-6 HC Jitender is relevant under Sec. 6 of The
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 27 of 46
Indian Evidence Act, 1872 as res gestae as he reached at the spot
of incident while the injured persons were still under the
offending vehicle. Thus, PW-6 HC Jitender has corroborated the
testimonies of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and
PW-7 Sh. Vishnu with respect to the alleged incident.
40. As per the case of prosecution, the victims were
hit/crushed by offending vehicle i.e. Mahindra Quanto car
bearing registration no. DL-7CM-1368 and same was being
driven by accused Rishi Kumar. PW-3 Sh. Gautam, PW-5 Sh.
Prithvi Raj and PW-7 Sh. Vishnu have not deposed about the
registation number of offending vehicle, though, PW-7 Sh.
Vishnu has deposed that it was big Mahindra car. However, PW-6
HC Jitender deposed that he noticed one car make Mahindra
bearing registration no. DL-7CM-1368 was on pavement on the
right side and some persons were under the said car. PW-3 Sh.
Gautam and PW-7 Sh. Vishnu have correctly identified the
accused in the court during trial by stating that he was driving the
offending vehicle at the time of incident. Accused has not
disputed the identity of the offending vehicle. In an answer to
question no. 1 put to the accused under Sec. 313 Cr.PC, accused
replied that on 17.08.2014 at about 10:00 pm at Ring Road, near
Nigam Bodh Ghat, he was driving the Mahindra Quanto car
bearing registration no. DL-7CM-1368. In his statement recorded
on oath under Sec. 315 Cr.PC, DW-1 accused Rishi Kumar
deposed that on 17.08.2014, he was returning from family
gathering and was driving his abovesaid Mahindra Quanto car.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 28 of 46
Moreover, the abovesaid Mahindra Quanto car bearing
registration no. DL-7CM-1368 is also visible in accidental
condition at the spot of incident in the photographs collectely
exhibited as PW-17/F-1. Thus, the prosecution has successfully
proved the fact that at the time of incident, the offending vehicle
i.e. Mahindra Quanto car bearing registration no. DL-7CM-1368
had hit/crushed the victims at the spot of incident and the same
was being driven by accused Rishi Kumar.
41. In the cross-examination of eyewitnesses/injured persons
namely PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj and PW-7 Sh.
Vishnu accused has taken the defence that the offending vehicle
had lost its control due to mechanical fault due to which the said
accident had occurred. Accused has examined himself on oath
under Sec. 315 Cr.PC as defence witness no. 1 and surprisingly
he has not taken the said defence in his statement recorded under
Sec. 315 Cr.PC as well as Sec. 313 Cr.PC. PW-19 Sh. Arvinder
Singh, Automobile expert proved his mechanical inspection
report of offending vehicle i.e. Mahindra Quanto Car bearing
registration no. DL-7CM-1368 exhibited as Ex. PW-19/A. He
specifically deposed that the mechanical systems i.e. break
system, head light and horn were found ok. Thus, as per the
mechanical/automobile expert opinion, there was no mechanical
fault in the offending vehicle bearing registration no.
DL-7CM-1368. Thus, the defence taken by the accused in the
cross-examination of PW-3 Sh. Gautam, PW-5 Sh. Prithvi Raj
and PW-7 Sh. Vishnu is vague and false. Accused has also failed
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 29 of 46
to bring anything on record that the victims/deceased were under
the influence of psychotropic substances as no such observation
has been made by any of the doctor in any of the MLCs of
deceased/injured persons. A false defence is always an additional
evidence against the accused.
42. Accused has admitted FSL Report/Crime Scene Report Ex.
PX-1, prepared by Sh. S. S. Badwal, Sr. Scientific Officer
(Physics), FSL, Delhi, under Sec. 294 Cr.PC. As per the report,
the offending vehicle i.e Mahindra Quanto was having dent
marks in front left portion of metalic guard and air of front tyre
was found leaked. The report further states that no relevant skid
marks were found present. The report further states that through
examination of above vehicle indicated that the vehicle had came
in contact of some hard surface due to which scratch and dent
marks were caused on the front portion. Accused in his statement
under Sec. 313 Cr.PC as well as in his statement under Sec. 315
Cr.PC has taken the defence that he tried his level best to apply
breaks so as to avoid untoward incident. He also deposed that he
applied conscious break but being a steep turn he could not avoid
the accident. Whenever, emergency breaks are applied to stop the
running vehicle immediately, skid marks are bound to take place
on the road/surface. PW-3 Sh. Gautam has specifically deposed
that accused was driving the car at very fast speed and he did not
stop the car even after causing of accident of number of persons
and continued driving till the tyre burst. As per the FSL
report/Crime Scene Report, Ex. PX-1, the air of front tyre was
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 30 of 46
found leaked and there were no skid marks at the spot of
incident. Thus, the defence taken by the accused that he had
applied conscious breaks is without any substance.
43. PW-17 IO/Retd. SI Shakti Raj deposed that he prepared
site plan Ex. PW-17/G at instance of complainant Santosh
Kumar. The analysis of site plan, Ex. PW-17/G is necessary to
understand the movement of offending vehicle from road to
pavement/footpath. As per the site plan, Ex. PW-17/G the
offending vehicle came from the side of ISBT Kashmere Gate
and rammed over the pavement after leaving the road at point ‘A’
while the u-turn of the road was at the end of the pavement at
point ‘B’ where the vehicle was found in accidental condition.
The IO has shown the position of people lying/sitting on the
pavement and thus the said persons came under the offending
vehicle. As per the site plan, there is a proper u-turn at end of
pavement and enough space has been provided for the movement
of vehicles. Thus, the defence taken by accused in his statement
under Sec. 313 Cr.PC as well as Sec. 315 Cr.PC. that there was a
steep/blind u-turn at the spot and the incident took place due to
that steep/blind turn is false.
44. PW-11 Dr. Rahul Kumar Meena has proved the
postmortem report no. 857/2014, Ex. PW-11/A of unknown male
person aged about 30 years. As per the report, the death in this
case occurred due to cerebral damage consequent upon blunt
force trauma to the head and all injuries were ante-mortem in
nature which were caused by blunt force possible in road traffic
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 31 of 46
accident. PW-12 Dr. Akash Jhanjee has proved the postmortem
report no. 1604/2014, Ex. PW-12/A of deceased Ekraj on behalf
of Dr. J. P. Singh who had conducted the postmortem on the body
of deceased Ekraj. As per the report, cause of death was
craniocerebal damage as a result of blunt force/surface impact to
the head. Similarly, PW-4 Dr. Priya Ranjan who prepared the
MLCs of injured persons namely Ranjeet, Santosh, Gautam and
Vipul, exhibited as Ex. PW-4/A to Ex. PW-4/D, PW-8 Dr. Rakesh
Solanki who prepared the MLCs of injured persons namely Anil
and Naresh exhibited as PW-1/A & Ex. PW-2/A and PW-9 Dr.
Girish Chandra Prabhat who prepared MLCs of injured Vishnu,
Vinod and one unknown person exhibited as Ex. PW-9/A to Ex.
PW-9/C have proved the MLCs of injured persons. PW-13 Dr.
Ankit Kataria has proved the opinion regarding nature of injury
on MLC of injured Banshi as grievous in nature which was given
by Dr. Yugal. It is pertinent to mention that the doctors i.e. PW-4
Dr. Priya Ranjan, PW-9 Dr. Girish Chandra Prabhat, PW-11 Dr.
Rahul Kumar Meena, PW-12 Dr. Akash Jhanjee and PW-13 Dr.
Ankit Kataria have not been cross-examined by the accused
despite opportunity given to him which means that accused has
admitted the cause of death of two persons and the injuries
sustained by the remaining injured persons mentioned in their
respective medical documents.
45. As per the prosecution story, accused was drunk at the time
of incident. PW-7 Sh. Vishnu has specifically deposed that
accused was under the influence of alcohol at the time of
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 32 of 46
incident. PW-17 IO/Retd. SI Shakti Raj deposed that accused was
taken to hospital for his medical examination where his MLC Ex.
PW-17/C was prepared. In the MLC of accused, Ex. PW-17/C it
has been specifically mentioned by the doctor that there was
smell of alcohol from accused and accused had admitted the
intake of alcohol. He also deposed that blood sample of accused
were obtained in sealed condition which was seized by him vide
seizure memo Ex. PW-17/D. He also deposed that the blood
sample of accused were sent to FSL. PW-10 Dr. Adesh Kumar,
Senior Scientific Officer (Chemistry), FSL Rohini has proved his
report, Ex. PW-10/A. He deposed that on chemical examination
and GC-HS examination, Ex. 1 was found contain Ethyl Alcohol
116.0 mg per 100 ml of blood. This witness was not cross-
examined on behalf of accused. Since alcohol was found in the
blood of accused as per the examination, the accused was drunk
at the time of incident. Accused in his cross-examination in
capacity of DW-1 has specifically admitted that he was drunk at
the time of incident. Thus, through the testimony of PWs, FSL
report, Ex. PW-10/A and admission of accused, the prosecution
has successfully proved that accused was drunk at the time of
incident and the quantity of ethyl alcohol was 116 mg per 100 ml
of his blood.
46. An offence committed by a person who is uncapable of
judgment by reason of intoxication caused against his will is a
defence under Sec. 85 of IPC. Thus, only involuntary
intoxication is a defence and voluntary intoxication is not a
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 33 of 46
defence. Accused in his statement recorded on oath under Sec.
315 Cr.PC has specifically deposed that he was drunk at the time
of incident and he had taken a glass of beer. Thus, the
intoxication of accused was voluntary in nature and the present
case does not fall within the purview of Sec. 85 of IPC.
47. From the foregoing discussions, it has come on record that
accused was driving the car Mahindra Quanto bearing
registration no. DL-7CM-1368 in a drunken state and he left the
road and rammed over the pavement where several persons were
hit/crushed under his vehicle and he had not applied any breaks.
The accused in his written submissions/arguments as well as oral
arguments has submitted that atmost causing of death by rash and
negligent driving can be attributing to him but he has not
committed an offence of culpable homicide not amounting to
murder as the knowledge that death of some persons may take
place cannot be attributed to him. In short, the accused has
submitted that his case falls within the purview of Sec. 304A IPC
and does not fall within the purview of Sec. 304 IPC.
48. Section 299 IPC deals with culpable homicide while Sec.
304A IPC deals with causing death by negligence. These
Sections have been denfined as follows:-
299. Culpable homicide:-
Whoever causes death by doing an act with the
intention of causing death, or with the intention of
causing such bodily injury as is likely to cause death,FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 34 of 46
or with the knowledge that he is likely by such act to
cause death, commits the offence of culpable
homicide.
304A. Causing death by negligence:-
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.
Thus, in view of the evidence adduced by the prosecution,
defence taken by the accused and arguments advanced on behalf
of State as well as on behalf of accused, this court has to decide
whether the present case falls within the purview of Sec. 304 IPC
or 304A IPC.
49. Hon’ble Supreme Court of India in judgment titled as
‘Alister Anthony Pareira Vs. State of Maharashtra, cited as
MANU/SC/0015/2012′ has observed as under:-
“45……….each case obviously has to be decided on its
own merits. In a case where negligence or rashness is
the cause of death and nothing more, Sec. 304A may
be attracted but where the rash or negligent act is
preceeded with the knowledge that such act is likely to
cause death, Sec. 304 Part-II Indian Penal Code may
be attracted and if such rash and negligent act is
preceeded by real intention on the part of wrong doerFIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 35 of 46
to cause death, offence punishable under Sec. 302
Indian Penal Code.”
50. As per the FSL Report, Ex. PW-10/A proved by PW-10 Sh.
Dr. Adesh Kumar, Senior Scientific Officer, FSL, Rohini, there
was ethyl alcohol 116.0 mg per 100 ml of blood of accused.
Thus, the accused was drunk at the time of incident. Under Sec.
185 of The Motor Vehicle Act, if the quantity of alcohol
exceeding 30 mg per 100 ml of blood is found in blood of any
person, the same is punishable under Sec. 185 of The Motor
Vehicle Act, 1988. Thus, the prosecution has duly proved all the
igredients of offence punishable under Sec. 185 of The Motor
Vehicle Act, 1988.
51. Hon’ble Supreme Court of India in judgment titled as
‘State through PS Lodhi Colony New Delhi Vs. Sanjeev Nanda,
cited as MANU/SC/621/2012′ has observed as under:-
“78. Drunken driving has became a menace to our
society. Everyday drunken driving results in accident
and several human life are lost, pedesterian in many
of our cities are not safe. Late night parties among
urban elite have now became a way of life followed by
drunken driving. Alcohol consumption imparis
conciousness and vision and it became impossible to
judge accurately how far away the objects are. When
death perception deteriorates, eye muscles loose their
precision causing inability to focus on the objects.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 36 of 46
Further, in more unfavourable conditions like fog,
mist, rain etc., whether it is night or day, it can reduce
the visibility of an object to the point of being below
the limit of discernibility. In short alcohol leads to
loss of coordination, poor judgment, slowing down of
reflexes and distortion of vision.”
52. Under Sec. 185 of The Motor Vehicle Act, 1988, the
offence has been made punishable, if the alcohol content
exceeding 30 mg is found in per 100 ml blood of a person driving
a vehicle. In the present case the quantity of alcohol has been
found to be 116.0 mg per 100 ml of blood of accused which is
almost four times of the quantity of alcohol which has been made
punishable. Thus, the accused was heavily drunk at the time of
incident. It has been scientifically proved that the alcohol causes
staggering, emotional swings, slurred speech and judgment
impairment and hence the person in such a condition cannot be
fit to drive any motor vehicle. Accused had consumed the alcohol
on his own and he is presumed to have the knowledge that he
may not drive the vehicle properly in such a condition. Thus, in
such a condition, it cannot be said that the accused had no
knowledge that the driving of vehicle by him may not likely to
cause death of any person.
53. At the time of incident, accused was driving Mahindra
Quanto car bearing registration no. DL-7CM-1368. As per the
RC of abovesaid vehicle Marked P-1, the unladen weight of said
vehicle was 1090 kg and since accused was also sitting in the
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 37 of 46
said vehicle the weight of said vehicle has exceeded 1100 kg.
The cubic capacity of the said vehicle was 1493 CC and the
sitting capacity of the said vehicle was seven, as per the RC,
which shows that the accused had the knowledge that he was
driving a large vehicle with heavy weight and powerful engine.
Since accused was driving the vehicle in drunken condition, it is
clear that he had the knowledge that if such a vehicle will hit
someone, it was likely to cause death of such person.
54. Accused in the cross-examination of injured/eyewitness
PW-7 Sh. Vishnu has specifically given the suggestion ‘it is
correct that during the period of accident and date due to exteme
hot season, some people would sleep over pavement for the
whole night and others would go to their respective places’ which
has been accepted by the witness. Similarly, in his examination
on oath under Sec. 315 Cr.PC, accused has specifically deposed
that he used to pass through the area during day hours and he
could see that some of the persons usually sit there. Accused in
his statement recorded under Sec. 315 Cr.PC has stated that the
place where the accident occurred was not meant for sitting or
lying. The offending vehicle had hit/crushed the persons
sitting/lying on the footpath/pavement. The footpath/pavement
are meant for the pedesterians for their proper movement. It is
true that the pavement/footpaths are not meant for sleeping but
same are meant for the movement of people only and their
presence at the footpath/pavement is natural and the
pavements/footpath are not meant for driving the motor vehicles.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 38 of 46
Thus, from the abovesaid admissions by the accused, it is clear
that accused was aware about the spot of incident and the fact
that persons used to sit there on the pavement. Thus, the accused
had complete knowledge that the persons used to remain present
at the spot of incident i.e. the pavement/footpath.
55. Hon’ble Supreme Court of India in judgment titled as
‘Naresh Giri Vs. State of Madhya Pradesh, cited as
MANU/SC/4297/2007′ has held that:-
“Sec. 304A 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. The
provision is directed at offences outside the range of
Sections 299 & 300 IPC. Sec. 304A applies only to
such act which are rash and negliget and are directly
the cause of death of another person. Negligence and
rashness are essential elements under Sec. 304A.”
56. On the basis of foregoing discussions, this court is of
considered opinion that accused had the knowledge that he was
heavily drunk and in such a state driving of a four-wheeler
vehicle by him may hit someone which could likely to cause
death of someone. Hon’ble Supreme Court of India in judgment
titled as ‘Jagriti Devi Vs. State of Himachal Pradesh, cited as
MANU/SC/1117/2009′ has observed as under:-
“22……it is trite law that Sec. 304 Part-II
comes into play when the death is caused by doing an
act with the knowledge that it is likely to cause death
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 39 of 46
but there is no intention on the part of accused either
to cause to death or to cause such bodily injury as it
likely to cause death.”
57. Similarly, Hon’ble Supreme Court of India in ‘Alister
Antony Pareira (Supra)’ has observed as under:-
“41. A person, responsible for rackless or rash or
negligent act that causes death which he had
knowledge as a responsible man that such act was
dangerous enough to lead some untoward thing and
the death was likely to be caused may be attributed
with the knowledge of consequence and may be fasten
with the culpability of homicide not amounting to
murder and punishable under Sec. 304 Part-II Indian
Penal Code.”
58. The judgments relied upon by the accused are not
applicable in the present case. The judgment titled as ‘State Vs.
Santanam, 1998 J. 3045 (Hon’ble High Court of Karnataka)’ is
not applicable as the postmortem report of the deceased and the
fact that accused was drunk at the time of accident was not
proved by the prosecution. Similarly, judgment titled as ‘Mann
Prakash Vs. State of Haryana, 2 (1996) ACC 519 (Hon’ble High
court of Punjab & Haryana)’ ‘S. N. Hussain Vs. State of Andra
Pradesh, AIR 1972 SC 685’, ‘Francis Xavier Rodrigues Vs.
State, 1997 Cr. L.J 1374′ & ‘Balwant Singh Vs. State of Punjab,
SCC (CRI) 844′ are not applicable in the present case as all the
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 40 of 46
these cases do not pertain to drunken driving and are
distinguishable on basis of facts and evidence adduced by the
prosecution.
59. Thus, applying the law laid down by Hon’ble Supreme
Court of India in ‘Sanjeev Nanda (Supra), Alister Antony Pareira
(Supra)’, ‘Jagriti Devi (Supra) and ‘Naresh Giri (Supra), this
court is of considered opinion that the accused had the
knowledge that driving of vehicle by him in drunken state was
likely to cause death of someone and while driving the offending
vehicle Mahindra Quanto bearing registration no. DL-7CM-1368
he rammed the abovesaid vehicle on the pavement/footpath
where several homeless people were sitting/lying were
hit/crushed by him due to which two person were killed while
about ten persons were injured. The accused had knowledge that
his act could have also caused the death of remaining persons
who were hit/crushed by his vehicle and who sustained
simple/grievous injuries on their persons. The prosecution has
successfully proved the ingredients of offence punishable under
Sec. 304 Part-II/308 IPC & 185 of The Motor Vehicle Act.
60. The police wintesses i.e. PW-6 HC Jitender Kumar, PW-14
SI Devender Kumar, PW-15 Ct. Praveen, PW-17 IO/Retd. Shakti
Raj, PW-18 SI Mohit Kumar and PW-20 HC Devender Kumar
have duly proved the proceedings conducted by them during
investigation and accused has failed to put any dent on the
investigation conducted as well as veracity of these witnesses.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 41 of 46
61. To prove the prosecution case, the testimony of the
prosecution witnesses must be reliable. It is not the quantity but
the quality of the testimony of the witness that helps a court in
arriving at a conclusion in any case. The test in this regard is that
the evidence adduced by the parties must have a ring of truth. In
a criminal trial, the prosecution has to prove the case beyond
reasonable doubt and it is possible only when the testimony of
prosecution witnesses is cogent, trustworthy and credible. To
secure a conviction of accused, the testimony of the prosecution
witness must be of sterling quality.
62. In case titled as ‘Rai Sandeep @ Deepu Vs. State (NCT
of Delhi), (2012) 8 SCC 21′, it is held that :
“22. In our considered opinion, the
“sterling witness” should be of a very high
quality and caliber whose version should,
therefore, be unassailable. The court
considering the version of such witness
should be in a position to accept it for its face
value without any hesitation. To test the
quality of such a witness, the status of the
witness would be immaterial and what would
be relevant is the truthfulness of the statement
made by such a witness. What would be more
relevant would be the consistency of the
statement right from the starting point till the
end, namely, at the time when the witnessFIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 42 of 46
makes the initial statement and ultimately
before the court. It should be natural and
consistent with the case of the prosecution
qua the accused. There should not be any
prevarication in the version of such a witness.
The witness should be in a position to
withstand the cross-examination of any length
and howsoever strenuous it may be and under
no circumstances should given room for any
doubt as to the factum of the occurrence, the
persons involved, as well as the sequence of
it. Such a version should have corelation with
each and every one of other supporting
material such as the recoveries made, the
weapons used, the manner of offence
committed, the scientific evidence and the
expert opinion. The said version should
consistently match with the version of very
other witness. It can even be stated that it
should be akin to the test applied in the case
of circumstantial evidence where there should
not be any missing link in the chain of
circumstances to hold the accused guilty of
the offence alleged against him. Only, if the
version of such a witness qualifies the above
test as well as all other such similar tests toFIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 43 of 46
be applied, can it be held that such a witness
can be called as a “sterling witness’ whose
version can be accepted by the court without
any corroboration and based on which the
guilty can be punished. To be more precise,
the version of the said witness on the core
spectrum of the crime should remain intact
while all other attendant materials, namely,
oral, documentary and material objects
should match the said version in material
particulars in order to enable the court trying
the offence to rely on the core version to sieve
the other supporting materials for holding the
offender guilty of the charge alleged.”
63. Similarly, in case of Ramdas Vs. State of Maharashtra,
(2007) SCC 170, it is held that :
“23. It is no doubt true that the conviction in a
case of rape can be based solely on the testimony
of the prosecutrix, but that can be done in a case
where the court is convinced about the truthfulness
of the prosecutrix and there exist no circumstances
with cast of shadow of doubt over her veracity. It
the evidence of the prosecutrix is of such quality
that may be sufficient to sustain an order of
conviction solely on the basis of her testimony. InFIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 44 of 46
the instant case we do not fine her evidence to be
of such quality.”
64. Thus, from the above said judgments, it is clear that the
version of the witness should be natural one and it must
corroborate the prosecution case. Such version must match with
the testimony of other prosecution witnesses. It should be of such
a quality that there should not be any shadow of doubt upon it.
65. Applying the law laid down by the Hon’ble Apex Court in
Rai Sandeep (supra) and Ramdas (Supra), this court is of the
considered opinion that injured PW-3 Sh. Gautam, PW-5 Sh.
Prithvi Raj and PW-7 Sh. Vishnu are witnesses of sterling quality
as their versions are natural and they have also withstood the test
of cross examination. This court is of the considered opinion that
the testimonies of injured persons i.e. PW-3 Sh. Gautam, PW-5
Sh. Prithvi Raj and PW-7 Sh. Vishnu are clear, cogent, credible,
trustworthy and consistent and have been corroborated by the
other prosecution witnesses, medical evidence, scientific
evidence on record and the circumstances.
66. The ingredients of offence punishable under section 304
Part-II/308 IPC & 185 Motor Vehicle Act, 1988 for the
commission of offence to commit culpable homicide not
amounting to murder, attempt of commit culpable homicide &
driving the vehicle in a drunken state by the accused have been
duly proved beyond reasonable doubt by the prosecution against
the accused Rishi Kumar.
FIR No. 310/2014, PS: Kashmere Gate,
State Vs. Rishi Kumar. Page No. 45 of 46
67. Accordingly, accused Rishi Kumar is hereby convicted for
the offences punishable under section 304 Part-II/308 IPC & 185
Motor Vehicle Act, 1988.
Digitally signed VIRENDER by VIRENDER KUMAR KUMAR KHARTA KHARTA Date: 2025.01.18 Announced in the open court 15:10:14 +0530 on 18th day of January, 2025 (Virender Kumar Kharta) ASJ/FTC-02(CENTRAL) TIS HAZARI COURTS:DELHI/18.01.2025 FIR No. 310/2014, PS: Kashmere Gate, State Vs. Rishi Kumar. Page No. 46 of 46