Delhi District Court
State vs Vishal Kumar on 29 August, 2023
IN THE COURT OF SH. AKSHAY SHARMA,
METROPOLITAN MAGISTRATE-02, SOUTH EAST,
SAKET COURTS, DELHI.
FIR No. 209/2014
PS. OIA
U/s. 279,337,338 IPC & Section 3/181 MV Act
STATE VS VISHAL KUMAR
JUDGMENT
A. SL. NO. OF THE CASE : 312/2/14 B. DATE OF INSTITUTION : 30.07.2014 C. NAME OF THE : Smt. Kavita Devi COMPLAINANT W/o Mohan Jha D. NAME OF THE : Vishal Kumar ACCUSED S/o Raj Pal E. OFFENCE COMPLAINED U/S 279,337,338 IPC OF : & Section 3/181 MV Act F. PLEA OF ACCUSED : Pleaded not guilty. G. FINAL ORDER : Acquitted for offence U/S 279,337,338 IPC & convicted for offence u/s 3/181 MV Act H. DATE OF COMMISSION OF OFFENCE : 24.03.2014 I. DATE OF FINAL ARGUMENTS : 25.07.2023 J. DATE OF SUCH ORDER : 29.08.2023 BRIEF FACTS
1. Breif facts of the instant case are that on 24.03.2014, Ms. Kavita Devi (Prosecution witness[PW]-2 / complainant) alongwith Ravi Kumar (PW7) was coming from Safdarjung Hospital and going to her home at Churriya Moholla, Tehkhand Village, Okhla, New Delhi on a bike bearing registration no. DL3SAL8310. The said bike was driven by Ravi Kumar at that time. When at around 11:00AM they reached near factory no.228, OIA-I then from the front one tempo bearing registration :2: no.HR38L7418 came at a high speed, the driver of the tempo was driving the same in a rash and negligent manner due to which the tempo struck the motorcycle and both the complainant Kavita Devi and PW7 Ravi fell down. The driver of the tempo namely, Vishal Kumar (present accused) was apprehended by the public persons and both Kavita Devi and Ravi were sent to ESI Hospital. After recording the complaint, FIR was registered and investigation was undertaken. Site-plan was prepared at the instance of injured Ravi. The offending vehicle as well as the motorcycle were seized and their mechanical inspection was conducted. Notice u/s 133 MV Act was given to the owner of the offending vehicle. Accused was arrested and all the documents of the offending vehicle were seized. The results on the MLC were obtained, as per the MLC of the injured Kavita she had sustained grievous injuries, therefore, Section 338 IPC was added. The accused did not had a valid driving license, therefore, Section 3/181 MV Act was added. Further, since the offending vehicle did not had a valid fitness and insurance, therefore, Kalandra u/s 5/180 MV Act, Section 56/192 MV Act and Section 146/196 MV Act was prepared against the owner. Thereafter, the remaining aspects of investigation were completed and the present charge-sheet was filed before this court for judicial verdict.
CHARGE
2. Upon Prima-facie satisfaction cognizance was taken and after hearing arguments on charge, charge was separately framed against accused Vishal Kumar u/s 279/337/338 IPC and Section 3/181 MV Act to :3: which accused pleaded not guilty and claimed trial. Thereafter, the case was put for prosecution evidence.
PROSECUTION EVIDENCE
3. Prosecution examined the following prosecution witnesses in its support.
3.1. PW1Ct. Ravi Kumar, he in his examination in chief deposed that on 24.03.2014, he was posted as constable at PS-OIA. He further submitted that on that day, he alongwith SI Bijender Nagar was on emergency duty. Further he submitted that on receiving of DD no.11A, they went to spot i.e. B-228, OIA Phase-I, New Delhi. There they found a tempo Mahindra Champion bearing registration no. HR-38L7418 in accidental condition. Thereafter, they came to know that the injured Kavita had already been shifted to AIIMS Trauma Center. PW1 further submitted that in the meantime, IO received a DD regarding admission of the injured in the hospital. IO left him at the spot and he himself went to the hospital. Further he submitted that IO came back at the spot and handed over him rukka for registration of FIR. After registration of FIR, he alongwith ASI Prem Pal went back at the spot and handed over the original rukka and copy of FIR to IO/ASI Prem Pal. Thereafter, IO/ASI Prem Pal seized the offending tempo vide seizure memo Ex.PW1/A bearing his signature at point 'A'. Further PW1 submitted that site plan was prepared at the instance of another injured Ravi. Thereafter, he came back to PS and IO recorded his statement in PS. :4: At that stage, witness had been shown two photographs of offending tempo bearing registration no. HR=38/L-7418. Witness correctly identified the same. The said photographs are Ex.PH1 and PH2.
3.2. PW2 Smt. Kavita Devi was examined, she in her examination in chief deposed that on 24.03.2014 at around 11:00 am she was going to her house from Safdarjung Hospital alongwith Ravi on his motorcycle. PW2 further submitted that when they reached in front of factory no.B-228, OIA Phase-I, a tempo bearing no.HR38L7418 went from their front side in fast speed in a rash and negligent manner and hit against the motorcycle. PW2 further submitted that the motorcycle was being driven by Ravi and she was the pillion rider. They fell down on the road. She and Ravi sustained injuries. Further she submitted that the offending vehicle bearing no.HR38L7418 was driven by accused Vishal who was present in the court that day and was correctly identified. Accused Vishal was apprehended at the spot by public persons. She and Ravi were taken to AIIMS Trauma Center. She gave her complaint to the police vide Ex.PW2/A bearing her signature at point 'A'. Further she submitted that accident happened due to negligent driving of the accused as he hit their motorcycle from the front side and he should had driven his tempo from the side of their motorcycle. She can identify the offending vehicle, if shown to her.
At that stage, witness had been shown six photographs of tempo bearing no.HR38L7418 and witness correctly identified the same. Those photographs are already exhibited as Ex.PH-1 and PH-2.
:5:3.3. PW3 HC Premvir Singh was examined, he in his examination in chief deposed that on 27.03.2014 he was posted as constable at PS OIA. PW3 further submitted that on that day he joined the investigation alongwith IO/ASI Prempal. Further he submitted that on that day injured namely Ravi Kumar came at PS and produced the accidental vehicle i.e. motorcycle bearing no. DL3SAL8310 to the IO and IO seized the same in his presence vide seizure memo Ex.PW3/A bearing his signatures at point A. PW3 further submitted that on 29.03.2014 owner of offending vehicle namely Kailash Chand along with accused Vishal Kumar came at PS. Thereafter, IO served a notice u/s 133 MV Act upon the owner of the offending vehicle in his presence. The owner of offending vehicle namely Kailash Chand produced a copy of NCR regarding the missing of documents i.e. RC and fitness of offending vehicle and the same was seized by the IO in his presence vide seizure memo Ex.PW3/B bearing his signatures at point A. PW3 further submitted that after interrogation IO arrested the accused Vishal in his presence vide memo Ex.PW3/C bearing his signatures at point A. accused Vishal was not present in the court that day but his identity was not disputed by the counsel for accused.
Further PW3 submitted that he can identify the accidental vehicle i.e. motorcycle bearing no. DL3SAL8310 if shown to him. The same was already released on superdari vide order dated 07.04.2014. the copy of the same is now Ex.PW3/D/.
:6:At that stage, two photographs of accidental vehicle bearing no. DL3SAL8310 were shown to witness. Witness correctly identified the same. The same is Ex.P1 (Colly).
3.4. PW4 SI Mahender was examined, he in his examination in chief deposed that on 23.02.2014, he was working as DO in PS OIA and his duty hours were from 04:00 PM to 12:00 midnight. PW4 further submitted that on that day at about 05:15 PM, Ct. Ravi Kumar brought a rukka/tehrir which was sent by SI Bijender. PW4 further submitted that he put his endorsement on the Tehrir vide Ex.PW4/A and registered the FIR and its copy is Ex. PW4/B both bearing his signatures at point A (OSR). That day, he had brought the original FIR register, containing the abovesaid FIR in original. (OSR). The certificate u/s 65-B Indian Evidence Act was issued by SHO which is Ex.PW4/C. 3.5. PW5 T.U. Siddiqui, was examined, he in his examination in chief deposed that he is a qualified engineer and conducting mechanical inspection for the last 40 years independently. He further submitted that on 28.03.2014 on the request of ASI Prempal, PS Okhla, he had inspected Bajaj Discover motorcycle bearing registration no.DL3SAL8310 and Mahindra Pickup Load Body bearing no. HR38L7418 with the fresh damages and submitted his detailed reports pertaining to the said vehicles Ex.PW5/A, and PW5/B bearing his signature at point A respectively.
3.6. PW6 Pawan Kumar was examined, he in his examination in chief deposed that on 01.10.2013 he had purchased motorcycle bearing no.DL3SAL8310 from Ravi Kumar, S/o Sh. Bindeshwari Sharma, who :7: was his neighbor. He further submitted that the copy of form 29-30, photocopy of RC Mark-A1(colly) and stamp paper regarding the same is Ex.PW6/B bearing my signature at point 'A'.
He further submitted that on 07.04.2014 he got released his vehicle on superdari vide superdarinama Ex.PW6/A bearing his signature at point 'A' respectively. At that stage, witness had been shown 02 photographs of motorcycle bearing no.DL3SAL8310 and witness correctly identified the same. Those photographs were already Ex.P1(Colly.) PW6 further submitted that in the month of March, 2014 his neighbour Ravi borrowed his vehicle for visiting Safdargung hospital and when he returned back he came to know that some one had hit his motorcycle. Thereafter, he alongwith Ravi reached at PS and deposited his accidental motorcycle.
At that stage, Ld. APP for the State sought permission to ask the leading question from the witness. In response to the leading questions, PW 6 submitted that it was correct that accident took place on 24.03.2014. He do not remember whether they had deposited his motorcycle at PS on 27.03.2014 3.7. PW7 Ravi Kumar, was examined, he in his examination in chief deposed that on 23.02.2014 at about 10-11:00 AM he was coming from Safdarjung Hospital and going to his home at Tehkhand, OIA Phase- I alongwith one Ms. Kavita on motorcycle make Discover bearing :8: no.DL3SAL8310 when they reached towards Tata Steel then a tempo Mahindra bearing no.HR38L7418 coming from the lane towards Tata Steel in rash or negligent manner and hit his motorcycle on the left side. Due to the accident they fell down. Thereafter he called at 100 number and police reached the spot within 5 minutes. Some of known of owner of offending vehicle took them to AIIMS Trauma Centre on an auto. He further submitted that he was discharged from the hospital in the evening. The driver of the offending vehicle was trying to ran away from the spot and he apprehended him there only. IO seized the offending vehicle in his presence vide memo already Ex.PW1/A bearing his signature at point 'B'. IO prepared site plan at his instance which is ExPW7/A bearing his signature at point 'A'. Further he submitted that on 27.03.2014 he produced the motorcycle at PS and same was seized by IO vide memo already Ex.PW3/A bearing his signature at point 'B'. Accused was present in the court that day and was correctly identified by the witness. He further submitted that he can identify the offending vehicle if shown to him. The same were already released on superdari. At that stage, witness had been shown 02 photographs of motorcycle bearing no.DL3SAL8310 and 2 photographs of offending vehicle bearing no.HR38L7418. Witness correctly identified the same. Those photographs were already Ex.P1(Colly) & PH1 and PH2.
At that stage, Ld. APP for the State sought permission to aske the leading question from the witness. In response to the leading questions, PW7 answered that it was correct that registration no. of :9: motorcycle is DL3SAL8310.
3.8. PW8 Rampatt, was examined, he in his examination in chief deposed that on that day, he came there on behalf of Dr. Akanksha tiwari and Dr. Akshay Upadhyay who left the hospital and their whereabouts were not known to the hospital. He further submitted that he can identify the signature of said doctors as he had seen them signing and writing during the course of his duty in the said hospital as he was working in the said hospital since 1995. As per record, MLC no.418743 of injured Ravi Kumar dt.24.03.2014 was prepared by Dr. Akanksha Tiwari. He further submitted that the said MLC is Ex.PW8 bearing signature of Dr. Akanksha Tiwari at point 'A'. Further MLC no.418741 of injured Kavita Devi dated 24.03.2014 was prepared by Dr. Akshay Upadhyay. The said MLC is Ex.PW8/B, bearing signature of Dr. Akshay Upadhyay at point 'A' respectively.
3.9. PW9 SI Bijender Singh, was examined, he in his examination in chief deposed that on 24.03.2014 he was posted as SI at PS OIA. On that day after receiving DD no. 11A Ex.PW9/A at around 11:40 AM he alongwith Ct. Ravi went to the spot i.e. B-228, OIA-I where he found one tempo bearing no.HR38L7418 was lying on the road in accidental condition and he came to know that injured was already shifted to AIIMS Trauma Centre. He further submitted that he left Ct. Ravi at the spot and went to AIIMS Trauma Centre where he collected MLC of injured persons namely Kavita and Ravi. Thereafter, he recorded statement of injured Kavita already Ex.PW2/A bearing his signature at :10: point 'A'. Thereafter he came back at the spot and prepared rukka Ex.PW9/B bearing his signature at point 'A'. Thereafter he got the FIR registered through Ct. Ravi. After registration of FIR, Ct. Ravi and IO/ASI Prempal reached at the spot as the further investigation was marked to ASI Prempal. In the meantime, injured Ravi reached at the spot and IO prepared site plan at the instance of injured Ravi already Ex.PW7/A. Thereafter IO seized the offending vehicle in his presence vide seizure memo already Ex.PW1/A bearing his signature at point 'C'. Thereafter IO recorded his statement u/s 161 CrPC and he left the spot. He can identify the offending vehicle if shown to him. The same was already released on superdari vide order dated 15.04.2014.
At that stage, witness had been shown 02 photographs of tempo bearing no.HR38L7418. Witness correctly identified the same. Same is already Ex.PH-1 and PH-2.
3.10. PW 10 ASI Prempal was examined, he in his examination in chief deposed that on 24.03.2014 he was posted as ASI at PS OIA. On that day he was handed over the investigation of this case after registration of FIR. He alongwith Ct. Ravi reached the spot i.e. in front of factory No.B-228, OIA Phase-1, commercial area where he met SI Bijender and offending vehicle was also lying there. He further submitted that after sometime injured Ravi Kumar arrived at the spot and he prepared site plan at his instance already Ex.PW7/A bearing his signature at point 'B'. Thereafter he seized the offending vehicle vide seizure memo already Ex.PW1/A bearing his signature at point 'B'. He recorded :11: statement of injured Ravi Kumar, SI Bijender at the spot. Thereafter, they reached the PS and seized vehicle was deposited at Malkhana. At the PS he recorded statement of Ct. Ravi.
He further submitted that on 27.03.2014 injured Ravi Kumar produced his accidental bike which was seized vide seizure memo already Ex.PW3/A bearing his signature at point 'C'. He recorded supplementary statement of injured Ravi Kumar.
PW10 further submitted that on 29.03.2014 the owner of offending vehicle namely Kailash Chand along with driver of offending vehicle came to PS. He served notice u/s 133MV Act upon the owner Kailash Chand which is Ex.PW10/A bearing his signature at point 'A'. On the said notice at portion-A, Kailash Chand gave his reply and as per his reply accused Vishal Kumar was driving the offending vehicle on the day of incident. Accordingly, he arrested the accused Vishal Kumar vide arrest memo already Ex.PW3/C bearing his signature at point 'B'. Further he submitted that after the arrest accused was released on bail as the offence was bailable. Owner of the offending vehicle had also produced one NCR regarding the loss of RC and fitness. Copy of NCR was seized vide seizure memo already Ex.PW3/B bearing his signature at point 'B'. He further submitted that he recorded statement to of owner of offending vehicle Kailash Chand and that of Ct. Paramveer.
PW10 further submitted that on 28.03.2014 he got conducted mechanical inspection of both accidental and offending vehicle through MVI T.U. Siddiqui and obtained his report and also recorded his :12: statement.
PW10 further submitted that on 02.04.2014 one Sh. Pawan submitted photocopy of documents pertaining to accidental motorcycle which was seized vide seizure memo Ex.PW10/B bearing his signature at point 'A'. He obtained the opinion of concerned doctor on the MLCs of Ravi Kumar and Kavita Devi. He also obtained the X-Ray plates with the X-Ray reports from hospital. He further submitted that nature of injury on the MLC of injured Kavita was grievous, Section 338 IPC was added. He got verified the documents of offending vehicle from the concerned officials and during verification it was found that the fitness certificate of the offending vehicle had expired. PW10 further submitted that the owner of the offending vehicle also failed to produce insurance certificate of offending vehicle for which a separate kalandra was prepared Ex.PW10/C bearing his signature at point 'A'. During the course of investigation, accidental vehicle was released on superdarinama.
He further submitted that he can identify the offending vehicle, if shown to him. At that stage, witness had been shown 04 photographs and witness submitted that Ex.P1 (Colly) is that of accidental motorcycle and Ex.PH1 and PH2 are that of offending vehicle.
Further he submitted that during the course of investigation, accused Vishal failed to produce valid DL, accordingly charge u/s 3/181 MV Act was added against the accused. PW10 further submitted that he also recorded statement of witnesses u/s 161 CrPC and after completion of investigation, he prepared the charge sheet and submitted before the :13: court. Accused was present in the court that day and was correctly identified by the witness.
STATEMENT OF THE ACCUSED
4. After examination of all the material prosecution witnesses, prosecution evidence was closed and statement of the accused u/s 281 CrPC r/w Section 313 CrPC was recorded in which the accused submitted that the rider of the motorcycle was coming in a very high speed and in negligent manner. When the accused was taking a left turn the rider of the bike came and hit his tempo from the front portion on the left of his tempo. Accused stated that the accident occurred due to the negligence of the driver of the motorcycle and not his negligence. Accused submitted that he wants to lead defence evidence but despite opportunities accused was not able to lead defence evidence and therefore, DE was closed on 21.03.2023. Consequently, the matter was listed for final arguments.
FINAL ARGUMENTS
5. Ld. APP for the state contended that the testimony of all the prosecution witnesses corroborate in material particulars and therefore, the case of the prosecution stands proved beyond reasonable doubt. It was also submitted by the Ld. APP for the state that the accused was driving without a valid driving license and therefore, this fact alone evidences the negligent conduct of the accused.
Per contra, Ld. LAC for the accused pointed out certain contradictions in the testimony of the prosecution witnesses and :14: submitted that the present accident was caused due to the negligent driving of injured Ravi and accused is implicated in the instant case only due to the fact that he was driving a bigger vehicle.
DISCUSSION OF LAW, EVIDENCE AND DECISION THERE ON.
6. The question to be decided in the instant case is that whether the prosecution has been able to prove beyond reasonable doubt the essential ingredients of the offences with which the accused has been charged, i.e. Section 279,337,338 Indian Penal Code 1860 and Section 3/181 Motor Vehicles Act. For proving the offence under Section 279 read with Section 337 and 338 IPC, and Section 3 r/w S.181 M.V Act the prosecution must establish that :
1.) The accused was driving the vehicle in a rash or negligent manner on a public way as to endanger human life or to cause injury or hurt to any person.
2.) Due to such driving, the accused caused grievous injuries to the complainant Kavita and simple injuries to injured Ravi (PW7).
3.) Accused did not have any valid driving license at the time of commission of offence.
7. In the matter titled as Rathnashalvan v. State of Karnataka AIR 2007 SC 1064, the Hon'ble Supreme Court of India observed that :
:15:"7. ...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.'
8. As noted above, "Rashness":16:
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.
8. Also, the Hon'ble Apex Court in the Judgment titled as Mohd. Aynuddin Miyam vs. State of A.P . [(2000)7 SCC 72] held that:
"9. A rash act is primarily an overhasty act. It is opposed to a deliberate act.
Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal :17: negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
9. Coming now to the facts of the case at hand, the culpability of the accused shall be decided on the basis of the parameters mentioned above. The court will have to find answers to certain questions which bring forth the truth of the matter i.e. whether the accused was driving the offending vehicle at the time of the commission of alleged offences, whether the accused was rash and negligent in his conduct and whether due to the rash and negligent conduct of the accused injuries were caused to other persons.
10. Regarding the identity of the accused, it is noted that PW2 Kavita Devi who is the complainant in the instant case, correctly identified the accused who was present in the court on the date of her examination in chief. Further, PW 7 injured Ravi had also correctly identified the accused in the court, and also in the reply to the notice u/s 133 MV Act, the owner of the offending vehicle Kailash Chand stated that the present accused was driving the offending vehicle at the time of accident. Moreover, the accused in his statement recorded u/s 281 r/w :18: Section 313 CrPC has not disputed the fact that he was driving the offending vehicle at the time of accident, rather the defence of the accused was that the accident occurred due to the negligence of motorcyclist i.e., PW7 Ravi. In light of the above-discussion, this court has no hesitation to hold that the identity of the accused stands established beyond reasonable doubt.
11. Secondly, with respect to causation of injuries, it is noted that MLC no.418743/14 of injured Ravi Kumar states the nature of injury as simple, and MLC no.418741/14 of injured Kavita states the nature of injury as a grievous. Both the MLC s were duly proved by PW 8 Sh. Rampath as Ex.PW8/A and PW8/B respectively. PW8 was cross- examined by the Ld. LAC, but no fact came to surface for doubting the MLCs. Thus, this court is of the opinion that the fact that grievous and simple injures were caused to the complainant and to PW7 respectively stands duly proved.
12. The last and the most vital consideration for determining the culpability of the accused is that whether at the time of accident, the accused was driving the offending vehicle in a rash or negligent manner. PW2 Kavita, the complainant and PW7 Ravi, the injured are the most crucial witnesses of the prosecution for establishing the ingredients of rashness and negligence.
13. Regarding, the ingredients of rashness or negligence, PW2 Smt. Kavita in her examination in chief stated that the tempo bearing no. HR38L7418 came from their front side in fast speed in a rash and :19: negligent manner and hit against the motorcycle. PW2 also stated that the accident happened due to negligent driving of the accused as he hit their motorcycle from the front side and the accused should have driven his tempo from the side of their motorcycle. PW2 was not cross-examined by the accused despite opportunity. PW2 at the oral request was again summoned through DCP concerned, but she remained unserved. Therefore, the cross-examination of PW2 was not conducted on behalf of the accused.
14. Further, PW7 Ravi, who was driving the motorcycle bearing no.DL3SA8310 stated in his examination in chief that on that day when they reached towards Tata Steel then the offending vehicle coming from the lane towards Tata Steel in a rash and negligent manner hit his motorcycle on the left side, due to which they fell down.
15. In the above-mentioned testimonies of the injured and the complainant there is an inherent contradiction, which is that PW 2 states that the motorcycle was hit from the front side whereas PW7 states that the motorcycle was hit on the left side. This fact of hitting on the left side was re-affirmed by PW7 in his cross-examination as well.
16. PW7 was cross-examined on behalf of the accused, PW7 Ravi admitted in his cross-examination that at the time of accident he was less than 18 years of age and did not have any valid driving license. In his cross-examination, PW 7 also admitted that the pillion rider i.e., the complainant PW2 Kavita was not wearing a helmet. Further, PW7 in his cross-examination stated that the speed of his motorcycle was 15-20 :20: kmph at the time of the accident and the speed of the offending vehicle was 30-35 kmph.
17. The above-mentioned points that has surfaced during the cross-examination require further discussion, it is to be noted that the motorcyclist i.e., PW7 himself did not have any valid driving license, moreover, PW7 was not of the legal age itself to be eligible to drive. It is also to be noted that PW2 the complainant Smt. Kavita herself did not adopted the safety measures and she herself was not wearing the helmet. One more thing which requires consideration that if PW7 was plying at the speed of 15-20 kmph then why he himself didn't apply the breaks for avoiding the accident. Moreover, as per PW7 as stated in his cross- examination the speed of the offending vehicle was also not that high, in the opinion of this court, if both the offending and the accidental vehicle were running at 30-35Kmph and 15-20 Kmph respectively, then the probability of an accident occurring is very low. There is another point which is ought to be highlighted which is that PW7 in his cross- examination has stated that his motorcycle fell down on the left side, but as per PW7 and the MLC which is Ex.PW8/A, PW7 has sustained injuries on his right leg, again the probability of sustaining injuries on the right leg when the vehicle has fell on the left side is very low.
18. PW7 in his cross-examination has stated that he left his motorcycle at the spot after the accident, however, PW9 Retd. SI Bijender Singh, PW10 ASI Prem Pal and PW1 Ct. Ravi Kumar in their examination in chief have stated that when they went to the spot only the :21: offending vehicle i.e., a tempo make Mahindra Champion bearing registration no.HR38L7418 was only found at the spot. There is no utterance in their examination in chief that the accidental vehicle of PW7 was also present at the spot. The accidental bike of the injured/PW7 Ravi Kumar was also seized on 27.03.2014 i.e., 03 days after the accident. Had the accidental vehicle been on the spot, the same would have been seized then and there as happened for the offending vehicle in the instant case.
19. In light of the contradictions and facts surfaced during the cross-examination of PW7, the testimony of PW7 cannot be relied upon in toto and cannot become the sole ground for convicting the accused.
20. Moreover, PW7 regarding the rash and negligent conduct of the accused had merely stated that "when we reached towards Tata Steel then a tempo Mahindra bearing no. HR38L7418 coming from the lane towards Tata steel in a rash or negligent manner and hit my motorcycle on the left side. Due to the accident, we fell down."
21. There is no description of the manner of driving of the offending as well as the accidental vehicle provided by PW7 and merely a bald allegation regarding the fact that the vehicle was driven in a rash and negligent manner is stated.
22. Argument raised by the Ld. APP that the accused did not have any valid driving license and thus, he is ought to be considered as negligent does not inspire confidence in the judicial mind of this court. Reliance is placed on the judgement of Suleman Rehiman Mulani & Anr Vs. State of Maharashtra AIR1968 SC829. wherein the Hon'ble :22: Apex Court held:
"There is no presumption in law that a person who possesses only a learner's licence or possesses no licence at all does not know driving. For various reasons, not excluding sheer indifference, he might not have taken a regular licence."
23. It is also to be noted that PW7 Ravi Kumar who was riding the accidental motorcycle was himself a minor and not even eligible for a driving license, further the complainant was herself not wearing a helmet at the time of accident. In the opinion of this court, the conduct of PW7 and the complainant was itself to an extent negligent and this particular aspect creates a dent of doubt in attribution of criminal liability u/s 279/337/338 IPC against the accused.
24. Qua the offence u/s 3 MV Act r/w Section 181 MV Act, 1988 this court is of the opinion that as per the above-discussion pertaining to the identity of the accused. The fact that accused was driving the offending vehicle at the time of the alleged incident stands established and the accused has not been able to dispute this established fact by presenting any cogent evidence Further, accused has not been able to prove that he was having a valid driving license at the time of offence. Rather accused chose not to lead any defence evidence. Accordingly, accused is convicted for offence u/s 3 MV Act r/w Section 181 MV Act, 1988.
25. In conclusion the net result of the above-discussion is that :23: accused Vishal Kumar is acquitted for offence u/s 279,337,338 IPC, 1860 and convicted for offence u/s Section 3 MV Act r/w Section 181 MV Act, 1988.
Pronounced in the open court on 29.08.2023 Judgment contains total 23 pages, each signed by the undersigned.
(AKSHAY SHARMA) MM-02/SE/Saket/ND 29.08.2022