Delhi District Court
Civil Suit For Civil Judge/228/1999 on 26 March, 2013
IN THE COURT OF NAVEEN GUPTA, MM,
TIS HAZARI COURTS, DELHI
1. FIR No. : 228/99
2. Date of Offence : 11.07.1999
3. Name of the complainant : Sh. Rajesh Kumar
4. Name, parentage and Address
of accused : Ramesh Chand
S/o Sh. Ran Singh
R/o Village Dehkora, PS Sapla,
District Rohtak, Haryana.
5. Offences complained of : Section 279/338 IPC.
6. Plea of the accused : Pleaded not guilty.
7. Date of reserving order : 02.03.2013
8. Sentence or final order : Accused is convicted.
9. Date of order : 26.03.2013.
JUDGMENT
1. The case of the prosecution is that on 11.07.1999 at about 8:00 am at T-Sohan Lal Marg, Opposite gate no. 6, Radha Swami Satsang Bhawan, Ramesh Chand (hereinafter referred as 'accused') while driving water tanker bearing no. DL-1M-0231 in rash and negligent manner hit a car bearing no. HR-51C-1512 and thereafter, hit against a pedestrian namely Balkar Singh (hereinafter referred as 'injured') who was crossing the road and caused grievous injuries to him.
2. After investigation, charge-sheet was filed against the accused. The copies of charge-sheet were supplied to the accused in compliance of FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 1/13 Section 207 Cr. P. C. Thereafter, notice was served upon accused under Section 279/338 of the Indian Penal Code (for short 'IPC') to which he pleaded not guilty and claimed trial.
3. In support of its version, prosecution examined seven witnesses. PW-1 is Dr. Tarun Grover. He deposed that on 27.07.1999, he examined X- ray report and MLC of injured; he gave opinion on the MLC as grievous hurt; he tendered MLC as Ex. PW-1/A. He further deposed that patient had fracture on ribs on left side from second to sixth. PW-2 is Rajesh Kumar Sachdeva. He submitted that on 11.07.1999, when he was going to Satsang at Pusa Road, he was about to cross gate no. 6 of the said Satsang; one truck driver was coming from Rachna Cinema and got hit Opel car; he also hit one Balkar Singh who received injuries on his body; the injured was shifted to hospital by him and other satsang people by a car. He tendered his complaint as Ex. PW-2/A. During cross-examination by Ld. APP, he stated that he had not seen the accused at the time of accident as he was busy in shifting the injured to the hospital. However, he admitted that police seized the water tank DL-1M-0231 in his presence. He further submitted that search of accused was conducted in his presence vide memo Ex. PW-2/C. PW-3 is Balkar Singh (injured). He submitted that on 11.07.1999, he was going for Radha Swami Satsang at about 7:30 am and was passing through T-Sohan Lal Marg; when he was crossing the road to go to gate no. 6, one Delhi Jal Board truck hit him and he was dragged by the truck upto 15 ft. During cross-examination by Ld. APP, he stated FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 2/13 that he had become unconscious and had not seen the driver or number of the vehicle which caused accident. PW-4 is Surender Pal Singh. He submitted that on 11.07.1999, he was standing near gate no. 6 at Radha Swami Satsang; at about 8:00-8:30 am, accused came from behind who was driving a water tanker; he dragged his car bearing no. HR 51 1512 and also caused injuries to one sewadar namely Balkar Singh; police was called at the spot. His car was seized by the police vide memo Ex. PW-4/A. He identified the accused as the person who was driving the offending water tanker. He tendered superaginama of his car vide Ex. PW-4/B. PW-5 is HC Sanjay. He submitted about the steps taken by the investigating officer (PW-6) during investigation into the present case. PW-6 is Retd. SI Balwan Singh. He deposed that on 11.07.1999, on receipt of DD No. 13A Ex. PW-6/A regarding accident, he alongwith Ct. Sanjay (PW-5) reached at the spot and found one Opel car in damaged condition and one Jal Board tanker on the spot; sewadar of satsang produced the accused before him and told that accused while driving the said tanker in rash and negligent manner, hit the said Opel car first and thereafter, hit sewadar namely Balkar Singh. They further told that injured had been taken to the hospital. Ct. Sanjay remained at the spot, but he left for the hospital. He collected the MLC of injured who was declared unfit for statement. He came at the spot and recorded the statement of the complainant (PW-2). Thereafter, he got the FIR registered through Ct. Sanjay. He prepared site plan Ex. PW-6/D at the instance of the complainant and seized the abovesaid vehicles. He arrested the accused vide his personal search memo Ex.
FIR No. 228/99PS: Prasad Nagar State v. Ramesh Chand 3/13 PW-2/C and arrest memo Ex. PW-6/E. He further deposed that he got both the vehicles mechanical inspected through applications Ex. PW-6/F and PW-6/G. PW-7 is ASI Daljeet Singh. He tendered FIR, copy of which is Ex. PW-7/A.
4. After conclusion of evidence, statement of accused was recorded;
wherein he claimed to be innocent and denied the allegations against him. He stated that he was driving the tanker bearing no. DL-1M-231 on the impugned day, time and place; he did not hit the car bearing no. HR-51C-1512; he did not hit PW-3 (Balkar Singh); he did not cause injuries to him. He further stated that he had been stopped by some police officials on the road and thereafter, he was taken to the PS and the present case was falsely implicated upon him. The accused did not lead defence evidence.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. Ld. APP has argued that from the statement of the accused recorded u/s. 313 Cr.P.C., it is undisputed that accused was driving the vehicle at the impugned day, time and place. Further, PW-4 identified the accused as the person who had hit his car and caused injuries to PW-3. Further, the accused preferred not to cross-examine PW-2 and PW-3 who had also stated about the rashness and negligence of the accused while driving the offending vehicle. Further, manner of driving of the impugned water tanker by the accused had been proved by PW-2, PW-3 and PW-4. Further, there might be minor discrepancies in the FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 4/13 testimony of prosecution witnesses while depicting the timings, but the same are not material in nature. Further, the injuries caused to PW-3 had been proved by MLC Ex. PW-1/A. Hence, the prosecution has proved its case against the accused beyond reasonable doubt.
7. Ld. Counsel for the accused has argued that PW-1 has stated that injured was conscious when he was brought to the hospital, then why statement of injured was not recorded on 11.07.1999 itself. Further, PW-1 examined the injured only on 27.07.1999; while the incident was of 11.07.1999. Further, PW-2 and PW-3 were declared hostile by the prosecution. Further, PW-3 stated that incident had occurred at 7:30 am, while the injured arrived at the hospital at 8:05 am i.e. appropriately within half an hour of the alleged accident. It is not comprehensible as to how the injured arrived at the hospital within half an hour of the accident. Further, statement of other sewadars were not recorded by the investigating officer. Further, the presence of PW-4 at the spot is doubtful since he did not sign any document prepared by the investigating officer, he did not go to the hospital with the injured and he did not call the police. Further, the photographs of the damaged car were also not available on the record. Ld. Counsel has further argued that PW-4 did not state anything about rashness and negligence on part of the accused at the time of driving the offending vehicle. Further, PW-5 stated that when he alongwith PW-6 reached on the spot from the PS, the complainant was also present on the spot. When the complainant had accompanied the injured to the hospital, then how he could have been found present at the spot on the arrival of the police officials. He has further argued that mechanical inspection report was FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 5/13 not proved. He has lastly argued that in these circumstances, the prosecution has failed to prove its case beyond reasonable doubt.
8. The legal position regarding rashness or negligence had been explained by the Apex Court in Rathnashalvan v. State of Karnataka, AIR 2007 SC 1064, that:
7."[R]ashness" 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.
9. Now, three essential points are required to be deliberated upon to decide the culpability of the accused. Firstly, whether accused had been driving the impugned offending vehicle at the relevant time. Secondly, whether accused had hit the car belonging to PW-4 and the injured (PW-3). Thirdly, if the answer of point no. 2 is in affirmative; then, whether accused was rash and negligent while driving the offending vehicle and consequently, caused injuries to the injured.
10.Now, although the accused had admitted during his statement recorded u/s. 313 Cr.P.C. that he was driving the water tanker DL-1M-231 on the impugned day, time and place; yet he disputed having hit the car and PW-3. From the above-mentioned version of the accused, it can be FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 6/13 inferred that the accused had been present on the impugned road with his tanker at or around the time of alleged accident.
11.PW-4 has categorically identified the accused as the person who had caused the alleged accident. During his lengthy cross-examination, he remained unmoved on the above-mentioned aspect. Although Ld. Defence Counsel has raised doubts on the presence of PW-4 at the spot at the relevant time. But, there can not be any doubt on the presence of PW-4 at the spot due to the following reasons. Firstly, PW-2 has categorically stated that he alongwith other satsang people took injured to the hospital. Hence, it was not necessary for PW-4 too to accompany the injured to the hospital. Further, it is not necessary for every person witnessing the accident to sign the documents prepared by the investigating officer. Further, as per the case of the prosecution, several persons had gathered at the spot of accident. In such circumstances, anybody can call the police at 100 number. Hence, if PW-4 did not call the police, that does not lead to infer that he was not present at the spot. Furthermore, his car was also got damaged in the alleged accident. Hence, he too is likely to be present at the spot. Above all, PW-4, during his cross-examination, provided details of several particulars related to an accident which could be narrated by an eye-witness only.
12.Further, PW-2 has stated that one truck driver has caused the alleged accident. PW-3 has stated that alleged accident had been caused by Delhi Jal Board truck. Although PW-2 and PW-3 had been cross- examined by Ld. APP in respect of some aspects, yet the same does FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 7/13 not wash off their testimonies due to such cross-examination. First of all, the legal position qua hostile witness has been explained by the Apex Court in Radha Mohan Singh @ Lal Saheb v. State of U.P., AIR 2006 SC 951, that:
7. [I]t is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof.
Further, PW-2 and PW-3 had not been cross-examined by the accused despite having been granted opportunity to him for the same. Hence, it can be inferred that accused does not dispute the version of PW-2 and PW-3 that 'truck driver' and 'Delhi Jal Board truck' had caused the impugned accident.
13.Further, the impugned offending vehicle was got mechanically inspected by PW-6 through his application Ex. PW-6/F. Mechanical Inspector Shyam Lal Chhabra could not be examined since he was reported to have expired. Further, the accused did not dispute mechanical inspection report Ex. PW-6/F tendered by PW-6. The report has shown fresh damage on the left side of the water tanker. The same leads to infer that the impugned water tanker had been involved in an accident.
14.Above all, the injured was taken to the hospital on 11.07.1999 at 8:05 am as per MLC Ex. PW-2/A. In the MLC, it has been mentioned that FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 8/13 at about 8:00 am, the injured was hit by Delhi Jal Board van. Further, the no. of Delhi Jal Board van is also mentioned in the MLC. In no imagination, any person can be falsely implicated in any criminal case within half an hour of the accident after having let the actual offender scot free.
15.Further, PW-5 and PW-6 had stated that sewadar of satsang produced the accused and told that he while driving the said tanker in rash and negligent manner, hit the Opel car and thereafter, hit the injured. But, accused did not challenge the above-mentioned version of PW-5 and PW-6 during their cross-examination. Considering the abovesaid observations, it is proved beyond reasonable doubt that accused had been driving Delhi Jal Board tanker no. DL-1M-231 on the impugned day at the relevant time and place.
16.Having concluded that accused was driving the impugned water tanker, it is required to examine whether accused was rash and negligent at the time of driving the said tanker. It is the case of the prosecution that the accused hit the car belonging to PW-4 firstly and thereafter, he hit the injured. PW-2 has supported the above-mentioned aspect of the prosecution and his testimony has remained unchallenged.
17.Ld. Defence Counsel has argued that PW-4 has deposed that at that time, no vehicle was coming and going through there as same had already been stopped. Now, PW-4 during his cross-examination deposed that satsang was not going on at that time and 10-15 persons passed through the same at the time when the vehicle was stopped to FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 9/13 pass the sangat. From the above-mentioned version of PW-4, it can be made out that the road was not blocked for movement of the vehicles for longer period of time rather movement of the vehicles must have been stopped for some moments so as to allow the sangat to cross the road. Moreover, even if, the aspect that movement of vehicles had been stopped on the impugned road, is taken into consideration; the rashness or negligence on part of the accused while driving the vehicle becomes grave as he did not stop his tanker so as to allow the sangat to cross the road despite the indication that movement of vehicles had been stopped. Furthermore, he firstly hit the car and then, he hit the injured. Had the accused been driving the vehicle with due care, he must have been able to stop the same, the moment he found that movement of the vehicle has been stopped for sometime to allow the sangat to cross the road. Even if, for the sake of arguments, it is accepted that the vehicles had not been stopped on the road; in those circumstances too, the accused firstly hit the car which was damaged on its right side and thereafter, he hit the injured and dragged the injured for 15 ft. From the above-mentioned observation, it is proved that the accused while driving the impugned tanker was not having full control over it and could not stop the vehicle even at the moment when he had hit the car. The aspect of hitting the car gets corroboration from the report of mechanical inspector in respect of the car vide Ex. PW-6/G wherein fresh damages on the right side of the car had been observed.
18.Ld. Defence Counsel has relied upon two precedents: Vinod Kumar v.
State, 2011[4] JCC 2786 and Balwan Singh v. State, 2012[3] JCC FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 10/13 1769. With utmost respect, the Court is of the view that the facts and circumstances of the cited cases are distinguishable from the present facts and circumstances. Considering the above-mentioned observations, in the light of legal position laid down by the Apex Court in respect of rashness and negligence, it stands proved that accused did not take due care and he drove the impugned tanker with indifference as to the consequences. Consequently, it is proved that he was grossly rash and negligent while driving the vehicle.
19.Further, as per MLC of injured Ex. PW-1/A, it has been opined that he received grievous injuries. It is pertinent to note herein that in the abovesaid MLC, initially it was observed that patient was unfit for statement at present and he (injured) was declared fit on 12.07.1999. Hence, his statement could have been recorded on 12.07.1999 by the investigating officer and the present case was registered on the statement of PW-2 who was present at the spot at the time of alleged accident. So far as the argument that how PW-2 could be present at the spot at the time of arrival of the investigating officer is concerned. No clarification was sought by the accused on this aspect from PW-2, PW-5 and PW-6. Hence, the said argument can not be taken into consideration at this stage. Moreover, it is not the case of the prosecution that after admitting the injured in the hospital, PW-2 remained there only. He could have come back at the spot for satsang. Further, injured (PW-3) and two other witnesses PW-2 and PW-4 had been joined into the investigation of the present case by the investigating officer (PW-6); hence, the Court does not find any lapse on part of PW-6 in non-joining other sewadars too who were allegedly FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 11/13 present at the spot.
20.Further, PW-1 has stated about the date on which he gave the opinion in respect of injuries to the injured on 27.07.1999. Hence, it is not the case that he had examined the injured on 27.07.1999; while the incident was of 11.07.1999. Hence, the argument of ld. defence counsel in this regard is not tenable. Further, so far as contradictions in the depiction of the timings by the prosecution witnesses are concerned. Those are not material in nature and the same are likely to happen when the testimony of witnesses are recorded after several years from the date of incident. Further, if the investigating officer did not get the damaged car belonging to PW-4 photographed, the same is not fatal to the case of prosecution as registration number of the car has been categorically mentioned by the prosecution witnesses and mechanical inspection report of that car has been available on record. Ld. Defence Counsel has argued that DD No. 13A Ex. PW-6/A did not contain the fact that accident had been caused by Delhi Jal Board water tanker. The DD entry is used to be recorded about the initial information received in respect of any alleged commission of offence and it is likely that all the particulars relating to the commission of offence might not be conveyed at that time. Moreover, it is not the case that it was initially informed to the police that any other vehicle than Delhi Jal Board water tanker had caused the impugned accident. Hence, the above-mentioned aspect does not provide any rescue to the accused.
21.Considering the above-mentioned, prosecution has proved the FIR No. 228/99 PS: Prasad Nagar State v. Ramesh Chand 12/13 ingredients of offence punishable under Section 279/338 of the IPC against the accused beyond reasonable doubt. Hence, accused is held guilty for the offence punishable under Section 279 and Section 338 of the Indian Penal Code.
Announced in open Court Naveen Gupta
(1+1 Copies) MM/Delhi/26.03.2013
FIR No. 228/99
PS: Prasad Nagar
State v. Ramesh Chand 13/13