Delhi District Court
State vs Rama Shankar on 20 March, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SHAHDARA, KARKARDOOMA COURTS,
NEW DELHI
Presided over by- Sh. Dev Chaudhary, DJS
Cr. Case No. -: 570/2016
Unique Case ID No. -: DLSH020028762016
FIR No. -: 417/2015
Police Station -: Harsh Vihar
Section(s) -: 279/338 IPC
In the matter of -
STATE
VS.
RAMA SHANKAR
S/o Guru Charan
R/o Village Bhikhipur, PO Gouri Ganj,
PS Jamu, Dist. Sultanpur, UP,
Present Add.: NS Transporter service,
64 Garib Basti, Rama Road,
near 71/6 Rama Road, New Delhi.
.... Accused
1. Name of Complainant : Jairam
2. Name of Accused persons : Rama Shankar
Offence complained of or
3. : 279/338 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 19.08.2015
offence
6. Date of Filing of case : 25.04.2016
7. Date of Reserving Order : 06.03.2024
8. Date of Pronouncement : 20.03.2024
Convicted of offence under
9. Final Order :
Section 279/337 IPC
Argued by -: Sh. Nadeem, Ld. APP for the State.
Ms. Asha Singh, Ld. counsel for accused.
CR No. 570/2016 State Vs. Rama Shankar Page No. 1 of 16 Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2024.03.20
10:48:47 +0530
BRIEF STATEMENT OF REASONS FOR THE DECISION:
INDEX -
HEADING PARA No.
1. Factual Matrix 1-3
2. Evidence 4-8
3. Argument 9-11
4. Analysis and Findings 12-25
6. Conclusion 26-27
FACTUAL MATRIX -
1. Briefly stated, the allegations of the prosecution are that at about 09:00 am on 19.08.2015, the complainant Jai Ram left his house to go to his workplace. It is alleged that while he was on his way, a truck bearing registration number HR 55F 4238 (hereinafter, "offending vehicle") came in a high speed, while being driven in a rash and negligent manner. It is alleged that the offending vehicle took a sudden turn towards the right and hit the complainant, who fell down and sustained injuries on his neck and shoulder area. The driver of the offending vehicle as well as the other public persons rushed to him. He then called his son Anil, who took him to a nearby Hospital for treatment. The injuries sustained by the complainant were opined to be grievous after treatment. It is alleged that the offending vehicle was being driven by the accused Rama Shankar on the date of incident. As such, it is alleged that the accused has committed the offences punishable under Section 279/338 of Indian Penal Code, 1860 (hereinafter, "IPC") for which FIR No. 417/2015 was registered at the Harsh Vihar Police Station, New Delhi.
CR No. 570/2016 State Vs. Rama Shankar Page No. 2 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:48:57 +0530
2. After registration of the FIR, the Investigating Officer (hereinafter, "IO") undertook investigation and on culmination of the same, charge-sheet against the accused was filed. After taking cognizance of the offence, the accused was summoned to face trial.
3. On his appearance, a copy of charge-sheet was supplied to him in terms of Section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie case against the accused, notice of accusation under Sections 279/338 IPC was served upon the accused. The accused pleaded not guilty and claimed trial.
EVIDENCE -
4. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt-:
ORAL EVIDENCE PW 1 : Jai Ram (complainant) PW 2 : ASI Satish Pal (duty officer) PW 3 : HC Jitender (accompanied IO) PW 4 : HC Sanjeev (verified documents) PW 5 : U.P. Singh (doctor) PW 6 : Dr. Pawan Sharma (doctor) SI Manohar Lal Dhyani (mechanical PW 7 :
inspector) PW 8 : Lilu Singh (public witness) PW 9 : SI Suphal Ram (IO) PW 10 : HC Satender (accompanied IO) DOCUMENTARY EVIDENCE Ex. PW1/A : Complaint Ex. PW2/A : FIR Ex. PW2/B : Endorsement on rukka CR No. 570/2016 State Vs. Rama Shankar Page No. 3 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20
10:49:04 +0530
Ex. PW3/A : Arrest memo
Ex. PW3/B : Personal search memo
Ex. PW3/C : Disclosure statement of accused
Ex. PW3/D : Seizure memo
Ex PWD/A : Seizure memo
Ex. PW5/A : MLC
Ex. PW5/B : Reference of patient
Mark A : X-ray report
Ex. PW8/A : Rukka
Ex. PW8/B : Site plan
Ex. PW8/C : Reply to notice
Ex. PW8/D : Request letter for mechanical inspection
ADMITTED DOCUMENTS (S.294 CrPC)
Ex. A1 : FIR No. 417/2015
Ex. A2 : Certificate under Section 65B IEA
Ex. A3 : DD No. 50B
Ex. A4 : Notice under Section 133 MV Act
Ex. A5 : Superdari order
Ex. A6 : Panchnama
5. Jai Ram (PW1) is the complainant, who deposed that on 19th of August in the year which he could not remember, he was going for his duty at about 09:00 am. When he reached at Krishna Restaurant, a truck came from the side of Mandoli Chungi and the driver was driving the truck in a rash and negligent manner. He deposed that the driver did not give any horn or other signal and hit him, due to which he fell down on the road. He deposed that public persons lifted him and he was taken to a nearby Hospital. He identified the accused from the dock as the driver of the offending vehicle. He also identified the photographs of the truck. However, he could not recall the year of the incident or the complete registration number of the truck.
CR No. 570/2016 State Vs. Rama Shankar Page No. 4 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2024.03.20 10:49:09 +0530 5.1. In his cross-examination, Jai Ram (PW1) stated that he did not know the public persons who lifted him after the incident. He deposed that the site plan does not bear his signatures and stated that his statement was recorded in the Hospital by the police. He did not know who called the police.
6. SI Suphal Ram (PW8) is the IO, who deposed on oath regarding the receipt of information regarding the accident. He stated that he went to the Hospital, where the injured refused to give statement due to pain. He then deposed that on the next day, he went to the Hospital, where the statement was recorded and the case was then registered. He deposed about issuance of notice to the owner of the offending vehicle, seizure of the vehicle, its mechanical inspection, arrest of the accused etc. He identified the accused and the offending vehicle from the dock. He deposed about completing the investigation in this case.
6.1. In his cross-examination, SI Suphal Ram (PW8) stated that he collected the MLC from the receptionist of the Hospital. He deposed that the injured told him that they had settlement talks with the owner of the vehicle but it did not fructify into a settlement. He stated that he did not record this fact. Further, he stated that he had collected photocopy of the MLC and did not collect the original MLC. He stated that he had written the details of the FIR on the site plan later on. He admitted that shops were located on the spot and deposed that he did not enquire from any public person. He admitted not taking any certificate under Section 65B IEA from the son of the complainant, who had clicked photographs. He admitted not taking photographs of the offending vehicle when it was produced before him.
CR No. 570/2016 State Vs. Rama Shankar Page No. 5 of 16 Digitally signed
by DEV
DEV CHAUDHARY
CHAUDHARY Date:
2024.03.20
10:49:15 +0530
7. Rest of the prosecution witnesses supported the case of the prosecution and proved the documents mentioned in the Table above.
8. Thereafter, before the start of defence evidence, in order to allow the accused to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused was recorded without oath under Section 313 read with Section 281 CrPC. In reply, the accused stated that the allegations against him are incorrect. He stated that he has been falsely implicated in this case. Pursuant thereto, he that he does not wish to lead any evidence in his defence.
ARGUMENTS -
9. I have heard the learned APP for the State and the learned counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
10. It is argued by the learned APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that the victim has categorically deposed about the rash and negligent manner in which the accused was driving the offending vehicle. The factum of incident is proved. Further, the other evidence on record has corroborated the version of the witness. He contends that the prosecution has proved the offences beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
11. It is argued by the learned counsel for the accused that the prosecution has failed to discharge the burden upon it. It is argued that there are inconsistencies in the version of the CR No. 570/2016 State Vs. Rama Shankar Page No. 6 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:49:21 +0530 complainant, and there is no corroboration to his version, despite the assertion of the complainant that there were public persons at the spot. She has further argued that the evidence of the complainant does not disclose about the vehicle number or year of accident. It is further argued that the evidence qua the invocation of offence under Section 338 IPC is also not reliable and is not proved as per law. As such, it is prayed that the accused be acquitted of the said offences.
ANALYSIS AND FINDINGS -
12. The accused has been charged for the offences of rash driving on public way (S. 279 IPC) and causing grievous hurt by a rash or negligent act (S. 338 IPC) in the present case. Whereas under Section 279 IPC, the factum of rash or negligent driving likely to endanger human life or cause hurt etc. is in itself the offence, under Section 338 IPC, grievous hurt should be caused to the victim in pursuance of such rash or negligent act of the accused. In order to bring home the guilt of the accused, the prosecution has to prove that the accused was driving the offending in a rash or negligent manner, and due to such driving of the accused, the victim suffered injuries.
13. Thus, the gravamen of the offences under Section 279/338 IPC is the act of the accused, done with "rashness" or "negligence". The IPC does not define either of these terms. However, the ambit of these terms has now been settled by judicial pronouncements of superior Courts. In Empress of India vs. Idu Beg ILR (1881) 3 All 776 the term "rashness" was interpreted to mean commission of an act with indifference or recklessness towards the consequences of such act. The Hon'ble Apex Court in CR No. 570/2016 State Vs. Rama Shankar Page No. 7 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:49:27 +0530 the case of Rathnashalvan vs. State of Karnataka (2007) 3 SCC 474 has observed, inter alia, as under-:
"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" 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."
Similar observations were made by the Hon'ble Supreme Court in the case of Sushil Ansal vs. CBI (2014) 6 SCC 173. The standard of negligence was discussed in the said case, by observing, inter alia, as under-:
"58. In the case of "negligence" the courts have favoured a meaning which implies a 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 which having regard to all the circumstances out of which the charge arises, it may be the imperative duty of the accused to have adopted. Negligence has been understood to be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable person would not do. Unlike rashness, where the imputability arises from acting despite CR No. 570/2016 State Vs. Rama Shankar Page No. 8 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:49:33 +0530 the consciousness, negligence implies acting without such consciousness, but in circumstances which show that the actor has not exercised the caution incumbent upon him. The imputability in the case of negligence arises from the neglect of the civil duty of circumspection."
Thus, rashness implies doing an act despite the consciousness that it might result in injuries. Negligence, on the other hand, means lack of reasonable care that a person placed is the fact situation ought to take, in order to avoid injuries.
14. Needless to mention, in criminal law, the burden of proof on the prosecution is that of beyond reasonable doubt. The presumption of innocence of the accused has to be rebutted by the prosecution by adducing cogent evidence that points towards the guilt of the accused. The evidence in the present case is to be weighed keeping in view the above legal standards.
15. The star witness of the prosecution in the matter is the complainant PW1, whose testimony is of prime importance in the present case. He has stepped into the witness box and deposed about the incident in detail. He has deposed that on the date of incident, when he was going to join his duty at about 9 AM, a truck came from the side of Mandoli Chungi and the driver of the truck was driving the truck in a rash manner. He has deposed that the driver of the truck did not give any horn or any other signal and hit him, due to which he fell on the road and sustained injuries. On the overall appreciation of the evidence of the complainant, this Court is satisfied that the same has not been impeached by the defence in any manner.
16. The complainant has identified the offending vehicle from the photographs of the vehicle. He has identified the accused CR No. 570/2016 State Vs. Rama Shankar Page No. 9 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:49:40 +0530 from the dock as the person who was driving the offending vehicle on the date of the incident and he has also deposed about the manner in which the offending vehicle was being driven. Mere fact that the complainant could not depose about the complete registration number of the offending vehicle is inconsequential as he has already identified the offending vehicle from the photographs on record. This Court cannot lose sight of the fact the complainant was examined in the year 2019 i.e. more than five years after the incident took place. When questioned, he deposed that the registration number of the truck started from HR 55. However, he could not depose about the complete registration number. Since the defence has not challenged the fact that the photographs on record are not of the offending vehicle, there is nothing to disbelieve the testimony of the complainant. In the cross examination as well, the complainant has been questioned about the persons who lifted him after the accident, and he admitted that he did not know their names. He also did not know the name of the person who took him to the Hospital. In this regard, after the accident, the complainant was rushed to the Hospital and in such a situation where a person has been freshly injured and is looking to get immediate treatment, it is not expected that the person would enquire about the names and addresses of the persons who come to his immediate aid, as it cannot be expected, that a man would be looking to secure evidence at that time, which may be helpful to him in a future trial. Thus, the evidence of the complainant has cover the following -
(i) the identity of the offending vehicle,
(ii) the manner in which the offending vehicle was being driven,
(iii) the factum of accident; and CR No. 570/2016 State Vs. Rama Shankar Page No. 10 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:49:49 +0530
(iv) the identity of the accused as the driver of the offending vehicle.
17. Learned counsel for the accused has argued that there are inconsistencies in the version of the complainant as in the initial statement forming basis of the FIR, he has stated that he had called his son Anil to the spot, who had then come to the spot and had taken him to the Hospital. However, in his deposition before the Court, he has not deposed about his son taking him to the Hospital. In this regard, as already noted above, the complainant has been examined after a passage of more than half a decade, and mere fact that he has not deposed as to who had taken him to the Hospital cannot be a ground to disbelieve his testimony.
18. Moving forward, apart from the complainant, there is one other public witness in the matter. PW7 is the witness Lilu Singh, who is the owner of the shop situated at Mandoli Extension. He has deposed that on the date of incident, the offending vehicle was standing outside his shop in order to deliver the goods being supplied to him. He deposed that the driver of the offending vehicle told him that an accident has taken place from the vehicle and a person was injured on account of the accident. The witness stated that the owner of the offending vehicle had come to the spot and they were having talks with each other. The witness has identified the offending vehicle from the dock and the identity of the accused was not disputed by the learned counsel for the accused. Accordingly, on the appreciation of the evidence of the witness, it is clear that all he may not be an eye witness to the incident, but his deposition before the Court gives general corroboration to the case of the prosecution. In fact, the evidence of the said witness is in nature of extra judicial confession of the accused and given the fact CR No. 570/2016 State Vs. Rama Shankar Page No. 11 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:49:54 +0530 that the accused was delivering goods to the said witness, it cannot be said that the extra judicial confession made by the accused to the witness right after the incident, is anything out of the ordinary. The witness was cross examined regarding the presence of other workers in the shop, but he gave a cogent explanation that the workers were busy in their own work. Accordingly, the evidence of this witness also corroborative the case of the prosecution.
19. The next issue is regarding delay in the registration of FIR. The incident took place on the morning of 19.08.2015. However, the FIR in question has been registered on the next day i.e. 20th August 2015 at about 7:30 PM. However, on the basis of material record, there is sufficient explanation regarding the delay in registration of the FIR. The complainant has stated in his initial complaint forming basis of the FIR, Ex. PW1/A, that at the Hospital, the owner of the truck had come to meet him regarding a settlement. However, the settlement could not fructify, and as such, the FIR was registered. Therefore, there is sufficient justification regarding the delay in registration of the FIR and the reason for the delay appears to be plausible in this case.
20. Moving forward, learned counsel for the accused has laid great stress on the fact that the medical record has not been proved beyond reasonable doubt in the present matter. In this regard, the prosecution has examined PW5 and PW6 (on two occasions) in order to prove the medical record. PW5 has deposed that he had given treatment to the complainant on the date of incident. There are no details about the injuries and the treatment given by him. In his cross examination, he admitted that the MLC register being produced by him did not bear any stamp or any identification in CR No. 570/2016 State Vs. Rama Shankar Page No. 12 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:50:01 +0530 order to a certain as to whether it pertains to the Aakar Multispecialty Hospital. He admitted that the name of the patient is different from the original and admitted that that details of the patient are not part of the carbon copy.
21. In this regard, it is seen that in the MLC Ex. PW5/A, while all the other particulars are mentioned, by way for carbon copy, the name of the patient has been mentioned with a different ink, and in original. The signatures of the complainant also are in original. The testimony of PW6, however, is not of much use to the prosecution as the witness appears to have no personal knowledge about the matter. The witness has produced an x-ray report, which is the basis of invoking the offence under Section 338 IPC against the accused, as the nature of injury was opined to be grievous on the basis of the said x-ray report. The x-ray report is Mark A. A question was put to the witness as to why the original report has not been produced. The witness stated at the same is handed over to the patient. In this regard, no original report has been produced on record by the complainant and even otherwise, the complainant has not deposed that the x-ray report was handed to him in original. In absence of the same, since the photocopy on record has not been proved to be the copy of the original, in terms of Section 63 of the Indian Evidence Act, 1872, the same cannot be said to be proved as per the Indian Evidence Act, 1872.
22. Accordingly, in absence of the proof of x-ray report, and no deposition of the complainant that he had fractured his vertebra etc, it cannot be said that the prosecution has proved the fact that the injury was grievous in nature, beyond any reasonable doubt. However, the complainant has deposed that he had sustained CR No. 570/2016 State Vs. Rama Shankar Page No. 13 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:50:07 +0530 injuries on his neck and upper back. The other evidence on record generally corroborates the version of the complainant and even otherwise, the MLC is not the sine qua non in order to prove any injury. The evidence of the complainant suffers from no shortcomings and it can be relied to say that the complainant suffered simple injuries on account of the incident.
23. A major contention of the defence in the matter is that the IO has not investigated the matter fairly. In this regard, learned counsel for the accused has navigated the attention of the Court towards the cross examination of the IO to submit that the IO did not collect the original MLC of the injured and did not make efforts to investigate the matter fairly. In this regard, the IO/PW8 has been cross examined by the defence at length and he stated that he did not collect the original MLC, but had collected only the photo copy of the same. He admitted that there were shops located at the spot but he did not enquire from any public person regarding the incident. However, he has also given a justification that the shops used to be open at about 10 AM, so they may not know about the accident, which had taken place prior to their opening. The witness admitted that the photograph have been taken by the son of the injured and he did not take any certificate under the Section 65B of the Indian Evidence Act, 1872 from the son of the injured.
24. However, in the opinion of this Court, the accused cannot be acquitted only on basis of the deficient investigation. In so far as the lapses of the IO are concerned, it is settled law that defective investigation is not a ground for acquittal as this would tantamount to playing into the hands of the investigator. Reliance is placed on Karnel Singh vs. State of M.P. 1995 (5) SCC 518 in this CR No. 570/2016 State Vs. Rama Shankar Page No. 14 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date: 2024.03.20 10:50:13 +0530 regard. As noted above, regardless of this defective investigation, there is sufficient material to prove the offences as the evidence of the complainant is reliable. There is no justification as to why the injured would spare the actual culprit and identify the accused as the real offender in the matter. The law accords more value to an injured witness. The defence has not pointed out as to whether there was any motive or prior enmity, which would lead to the false implication of the accused. Accordingly, the ground of false implication of the accused cannot be accepted by the Court. The fact that the mechanical inspection report Ex. PW8/D does not reflect any damages on the offending vehicle, can be explained by the fact that the truck had hit the complainant, who was a pedestrian and there was no other vehicle involved. Given the type of body of a full-sized truck, it can be said that there may have been no damages to the iron body of the vehicle, due to the accident. The minor contradictions, if any, are to be ignored as they do not go to the root of the matter.
25. As such, from the evidence on record, it is sufficient to prove beyond reasonable doubt that on the date of incident, the accused was driving the offending vehicle in a rash and negligent manner. On account of his driving, the offending vehicle hit the complainant, who was a pedestrian on the road, and as a result, he suffered simple injuries.
CONCLUSION -
26. To recapitulate the above discussion, to bring home the guilt of the accused, the prosecution was required to prove the offences charged against the accused, beyond reasonable doubt. The CR No. 570/2016 State Vs. Rama Shankar Page No. 15 of 16 Digitally signed by DEV DEV CHAUDHARY CHAUDHARY Date:
2024.03.20 10:50:19 +0530 evidence of the complainant has proved beyond reasonable doubt that the accused was driving the offending vehicle in a rash and negligent manner on the fateful day. His manner of driving led to the collision with the victim, who sustained injuries. The defence has failed to punch a hole in the consistent testimony of the prosecution witnesses. This Court has no hesitation to hold that the prosecution has proved all the ingredients of the offences beyond reasonable doubt. However, the prosecution has failed to prove the offence under Section 338 IPC beyond reasonable doubt.
27. Resultantly, the accused RAMA SHANKAR son of Gurucharam is hereby found guilty for offences under Sections 279/337 of the Indian Penal Code, 1860 and is convicted accordingly. However, he is acquitted of the offence under Section 338 IPC. Let the convict be heard separately on sentencing. Copy of the judgment be given free of cost to the convict.
Digitally signed by DEV DEV CHAUDHARY
CHAUDHARY Date: 2024.03.20
10:50:25 +0530
Announced in Open (DEV CHAUDHARY)
Court in presence of
accused. Metropolitan Magistrate - 07
Shahdara District, KKD
This judgment contains
16 signed pages.
New Delhi, 20.03.2024
CR No. 570/2016 State Vs. Rama Shankar Page No. 16 of 16