Delhi District Court
State vs Kishore Kumar on 12 October, 2023
IN THE COURT OF SANKALP KAPOOR, METROPOLITAN
MAGISTRATE-06, DWARKA COURTS, NEW DELHI
DLSW020269272017
CNR No.DLSW020269272017
Cr. Case No.7546/2017
FIR No.118/2017
PS: Dwarka North
U/S:279/338/ IPC
State Vs.Kishore Kumar
JUDGMENT
A. Sl. no. of the case : 7546/2017
B. Date of institution : 10.10.2017
C. Date of offence : 02.05.2017
D. Name of the complainant : Avtar Singh Siddhu
S/o Sh. Amarjeet Singh
R/o Flat no. 2304, Aasthatkunj
Apartment, Sector-3, Dwarka,
New Delhi.
E. Name of the accused : Kishore Kumar s/o Devi Charan
R/o H.No.79A, Shrichand Park,
Dharampura Extension, Najafgarh,
New Delhi.
F. Offence complained of : U/S 279/337 IPC
G. Plea of accused : Pleaded not guilty
H. Final order : Convicted
I. Date of such order : 12.10.2023
FIR No.118 /2017 State Vs. Kishore Kumar Page no. 1 of 13
BRIEF STATEMENT OF REASONS FOR THE DECISION:-
1. Vide this judgment this court shall decide the present case u/s 279/338 Indian Penal Code, 1860 (hereinafter for brevity 'IPC').
2. The briefly stated story of the prosecution is that on 02.05.2017 at about 6.30 AM, the injured namely Avtar Singh and Jasbir Kaur were going in their car bearing registration number DL-6CK-0377 and had reached the Sector 03-04 Dwarka red light when one bus bearing registration number DL-1PD-1324 being driven in a rash and negligent manner hit their vehicle on the left side due to which their car got badly damaged and the passengers of the car suffered injuries. The driver of the bus de-boarded the vehicle and ran away from the spot. Some public person called on 100 number and PCR van took the injured persons to DDU hospital. After completing the formalities and registration of FIR under Section 279/337 IPC, investigation was carried out. The detail as to ownership of the bus was obtained from the transport authority. On basis of the same, the owner of the offending vehicle was joined in the investigation served a notice under Section 133 of MV Act and thereupon the accused was apprehended. During the course of investigation opinion of Doctor examining the injured persons was taken wherein it was opined that they had suffered grievous injuries. After the completion of investigation the charge-sheet was filed under Section 279/338 IPC.
3. Charge sheet was filed against the accused Kishore Kumar in the court. Accused was summoned and documents were supplied to the accused under Section 207 Criminal Procedure Code, 1973 (hereinafter for brevity 'CrPC'). Notice under Section 251 CrPC for offence under Section FIR No.118 /2017 State Vs. Kishore Kumar Page no. 2 of 13 279/338 IPC was put to the accused vide order dated 15.05.2018 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined four witnesses i.e., (1) Avtar Singh (2) Jasbir Kaur (3) DO/ HC Kavita and (4) IO/SI Satish yadav.
5. In light of the statement of accused under Section 294 CrPC recorded on 07.11.2022 the accused admitted the execution of certain documents i.e., FIR bearing number 118/2017 dated 02.05.2017 along-with Certificate under Section 65B of IEA, MLC number 003020 of injured Avtar Singh of DDU Hospital, MLC number 003021 of injured Jasbir Kaur of DDU Hospital, Medical opinion on the MLC of injured Jasbir and mechanical inspection reports of vehicles bearing registration number DL- 1PD-1324 and DL-6CK-0377 whereupon the prosecution witnesses namely Dr. Dinesh (CMO) DDU Hospital, Dr. Vikas Gupta Ayushman Hospital, Sh. Puran Chand were dropped from the list of witnesses.
6. PW-1 Avtar Singh who is the injured had deposed that on 02.05.2017 he along-with his wife was coming from Ayushmaan Hospital in their WagonR car bearing registration number DL-6CK-0377 and were going towards their house at about 06:30 AM when they had reached Sector 3-4 red light one white colour bus bearing registration number DL-1PD- 1324 which was being driven in a rash and negligent manner and at a high speed, hit their car on the left side, thereby causing damage to the car and injuries to the passengers of the car. It was further deposed by the witness that the impact of the accident was such that they got stuck inside the car and were not able to come out of it. PW-1 further deposed that the accused got down from the bus, saw them and thereafter ran from the spot leaving FIR No.118 /2017 State Vs. Kishore Kumar Page no. 3 of 13 the bus behind. Accused was correctly identified by the witness in the court. He further deposed that after sometime he got unconscious and someone made a call at 100 number. He further deposed that he regained consciousness when he was being shifted from DDU hospital to Ayushman hospital. The witness correctly identified the offending vehicle and his car from the photographs on record. He further deposed that the police recorded his statement at the Ayushman hospital. It was lastly deposed by the witness that on 18.07.2017 he went to the PS for inquiring about the case and at that time he identified the accused in the presence of the IO who was also present at the PS. He further deposed that he showed the spot to the police and site plan was prepared by the police.
PW-1 was not cross-examined by Ld. Counsel Ms. Kamini Kaushal for the accused despite of an opportunity being granted and thereafter an application under Section 311 CrPC moved by Ld. counsel for the accused was also dismissed by Ld. predecessor Judge on 15.03.2019.
7. PW-2 Ms. Jasbir Kaur deposed along the same lines as that of PW-1 in her examination in chief.
In her cross-examination by Ld. Counsel Mr. G.K. Sachdeva PW-2 deposed that the offending bus was coming from Raddison Blu hotel side and was in high speed. Upon being asked as to how many persons were sitting inside the bus at the time of the incident she stated that she did not know. She was further shown the site plan and asked to show from which direction their car was coming she stated that their car was coming from east side and going towards north side. She further deposed that she could not tell which side the bus was heading as it hit them at the red light itself. She denied the suggestion that her husband had jumped the red light due to FIR No.118 /2017 State Vs. Kishore Kumar Page no. 4 of 13 which the accident took place. She further deposed that she did not know as to who had informed the police as she got unconscious after getting stuck inside the car. She denied the suggestion that the accused was never seen by her as the accused had never alighted from the bus and did not run away from the spot. She further deposed that the accused was apprehended by the public persons but stated that she did not remember as to how many public persons were there at the spot. She further deposed that the police took her to the spot after her discharge from the hospital. She further deposed that she was unconscious while she was being shifted from DDU hospital to Ayushman hospital. She denied the suggestion that the offending vehicle did not hit their car.
8. PW-3 W/ ASI Kavita was the Duty officer on the date of incident and produced the roznamcha register and relevant DD entry bearing number 10A dated 02.05.2017 before the court.
She was not cross-examined despite of an opportunity being accorded to the defence.
9. PW-4/ Inspector Satish Yadav is the IO of the case and he deposed that he was marked the investigation of the case upon receipt of DD number 10A. He further deposed that upon reaching the spot he was told by local persons that the injured have been shifted to DDU hospital and thereafter he left the Constable assisting him at the spot and proceeded to the DDU hospital. He further deposed that upon reaching the Ayushman hospital he was told that the injured were unfit for statement. He further deposed that he thereafter came back at the spot and prepared the site plan as per the location of the accidental vehicles on the road. He further deposed that he also clicked the photographs of the vehicles which were FIR No.118 /2017 State Vs. Kishore Kumar Page no. 5 of 13 exhibited in the Court. He exhibited the site plan in the court and also the seizure memo of the accidental vehicles. He further deposed that he also gave a notice to the owner of the offending vehicle on 02.05.2017 whereupon the owner produced the driver of the offending vehicle on 05.05.2017. He further deposed that on 04.05.2017 he also recorded the statement of injured Avtar and on 05.05.2017 recorded the statement of other witness. He further deposed that upon being produced by the owner of the offending vehicle the accused was joined in the investigation and he was arrested and his documents procured. He further deposed that he also got the mechanical inspection of the vehicle conducted and recorded the statement of mechanical inspector. He further deposed that thereafter he collected the MLC of the injured from Ayushman Hospital wherein the Dr. had opined that the injury was grievous in nature. He further deposed regarding the recording of statements of remaining witnesses and filing of charge-sheet. PW-4 correctly identified the accused in the court and also the accidental vehicles from the photographs on record.
In his cross-examination by Ld. defence counsel PW-4 deposed that he went to the spot on his private bike and there were public persons present at the spot but nobody told him anything about the accident. He further deposed that he did not record the statement of any public persons. He further deposed that the bus was standing on the left side on the road going towards Rajapuri and the accidental car was standing on the right side of the same road. He further deposed that he received the information as to admission in DDU hospital via the DO and reached the hospital thereupon at about 08:00 PM. He further deposed that he did not inform the statement of any person who stated to him that the injured had been shifted to Ayushman hospital. He further denied the knowledge of fact as to how the FIR No.118 /2017 State Vs. Kishore Kumar Page no. 6 of 13 injured were taken to Ayushman hospital. He further deposed that he collected the MLCs of the injured persons from the DDU hospital at about 08:00 AM and reached Ayushman hospital at 08:40 AM and there he met the inured persons who were declared unfit for statement by the Dr. He further deposed that the WagonR car was being driven by inured Avtar Singh and that he did not seize the DL of the injured Avtar Singh, however he voluntarily added that he had checked the same and found it to be valid. IO however, denied the suggestion that he did not seize the DL of the injured Avtar Singh as he did not have any valid DL. He further denied the suggestion that he had not collected the documents of WagonR car as the same were not valid and not in name of the injured Avtar. He further deposed that he had not recorded the statement of any public person during the entire course of investigation other than the injured persons. He further deposed that he did not call the injured persons to the spot during the entire course of investigation. He further failed to tell the exact date on which the injured came to the PS to enquire about the status of his case and identified the accused thereupon. He further denied the suggestion that the entire investigation of the case was carried out while sitting at the PS.
10. During PE, statement of PW HC Anil was not recorded as he had merely assisted the IO during the investigation of the case. Furthermore, the superdar of the offending vehicle was also dropped from the list of witnesses as the report was received that he had expired during the pendency of the trial; after due verification of his death certificate. However, the notice under Section 133 of MV Act was exhibited in the testimony of PW-4 and the defence did not give any suggestion to the effect that no such statement was ever recorded or given by the owner of the offending vehicle or it was falsely prepared by the IO.
FIR No.118 /2017 State Vs. Kishore Kumar Page no. 7 of 13
11. Thereafter, the PE was closed. Statement of accused was recorded under Section 313 read with Section 281 CrPC, wherein he denied all the allegations and pleaded innocence. It was stated by the accused in his examination under Section 313 that when he reached the spot the car of the injured persons had already met with an accident and the complainant in hurry hit his vehicle on the driver's side. No DE was led despite opportunity. The accused had stated that he was not at fault and that the accident had occurred due to the rash and negligent driving of the third party.
12. I have heard the submissions addressed by the Mr. Rohit Grewal, Learned APP for state and Mr. G.K.Sachdeva Ld. Counsel for the accused and carefully perused the documents on record.
13. Ld. Counsel for accused has submitted that the prosecution has failed to prove its case beyond all reasonable doubts. He submits that the site plan does not bear the signature of the complainant. Also, the mechanical inspection of the vehicle i.e car no. DL8CN 7359 was conducted on 05.05.2017 while the accident had taken place on 02.05.2017. He further submits that as per the prosecution the car of the injured had met with an accident from a third party's vehicle. Hence, the damage shown in the mechanical inspection report Ex.P/A/6 cannot be read in evidence for the purpose of this case. He further submits that no judicial TIP was conducted by the IO and the manner in which the injured Avtar Singh had identified the accused at the police station is quite doubtful.
14. On the other hand, Ld. APP has submitted that the prosecution has successfully proved its case against the accused and he is liable to be convicted for the offence alleged.
FIR No.118 /2017 State Vs. Kishore Kumar Page no. 8 of 13
15. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at the relevant time.
16. Before proceeding further, let us discuss the meaning of the expressions "rash" and "negligent". These words i.e "rash" and "negligent", have not been defined in IPC. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances.
17. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the case of S.N. Hussain v. State of Andhra Pradesh, AIR 1972 SC 685 as under :
"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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............Culpable negligence lies in the failure to exercise reasonable and FIR No.118 /2017 State Vs. Kishore Kumar Page no. 9 of 13 proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
18. In the case at hand, it has been admitted by the accused that he was driving the bus bearing no. DL-1PD-1324 on the alleged date, time and place and that his bus had struck the injured due to which injury was caused to him due to the fault of the injured himself. However, the accused at no stage pointed out any registration number of the third party nor has the Ld. defence counsel in the cross-examination of the witnesses taken the stand that the accident had occurred due to the fault of third party and the complainant due to hurry hit the accused's vehicle. It needs to be appreciated that the said stand of the accused has come to light for the first time at the stage of his statement. Since the factum of accident has not been disputed by the accused nor has he disputed his identity or that of the above said vehicles, hence, the only question before the court is whether the accused was driving the car in a rash and negligent manner, and had caused grievous injuries to Avtar Singh and Jasbir Kaur or not.
19. There are photographs of the spot on record showing the presence of the vehicle of the complainant as well as the accused in a damaged condition. The court is not in agreement with the submissions of the Ld. Counsel for accused that since the mechanical inspection report was prepared after a delay of three days the same cannot be read in evidence. The admitted documents Ex. P/A/6 and Ex. P/A/7 (i.e., mechanical inspection reports) clearly enumerate the damages that the vehicle of the injured has suffered and infact the testimony of PW-1 and PW-2 is corroborated by the mechanical inspection report. Furthermore, the medical reports of the injured persons and opinion thereon clearly support the FIR No.118 /2017 State Vs. Kishore Kumar Page no. 10 of 13 prosecution case that the injured had suffered grievous injury in the accident.
20. Furthermore, the testimonial examinations of the injured persons i.e., PW-1 and PW-2 have remained intact and no discrepancy whatsoever has been found in the same. They have clearly stated about the entire incident and how the bus had come towards their car and hit it. The accused has not been able to impeach the credibility of PW-1 and PW-2 or mar the veracity of their statement.
Another aspect that needs to be considered is that the testimony of PW-1 had gone unrebutted as he was not cross-examined by Ld. defence counsel present on the date of examination and thereafter even the Section 311 CrPC application of the accused was dismissed.
21. In Namdeo vs. State of Maharashtra, Crl Appeal No.914/2006 decided on 13.03.2007, the Hon'ble Supreme Court of India relied upon its earlier judgment in Vadivelu Thevar vs State of Madras 1957 SER 981 wherein it was observed by the Hon'ble Court as under:-
a. "As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
b. Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule prudence that corroboration should be insisted upon, for FIR No.118 /2017 State Vs. Kishore Kumar Page no. 11 of 13 example in case of a child witness or an accomplice or a witness of analogue character.
c. Whether corroboration of the testimony of a single witness is or is not necessary must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depend upon the judicial discretion of the judge before whom the case comes."
22. The Hon'ble Supreme Court further observed that the testimony of a solitary witness can be made the basis of conviction. The credibility of the witness is required to be decided with reference to the quality of his evidence which must be free from blemish or suspicion and must impress the court as fact wholly truthful and so convincing that the court has no hesitation in recording a conviction solely on his uncorroborated testimony.
23. In case titled as "Shadab @ Shamshad vs State of Govt. of NCT of Delhi", Criminal Appeal 1377/2012 decided on 11.03.2014 it was held by the Hon'ble High Court of Delhi, "There is no hard and fast rule that the testimony of injured requires corroboration before conviction. However, the rule of prudence has to be kept in mind. If the testimony of injured is trustworthy, categorically free of bias, and if there is nothing on record to suggest that the injured has any motive to falsely implicate the accused and allow his real assailants go scot free, the conviction can be based on the sole testimony of injured."
24. In the case at hand, the eye witnesses / injured persons PW-1 and PW-2 have given a trustworthy and reliable account of the incident and FIR No.118 /2017 State Vs. Kishore Kumar Page no. 12 of 13 defence has not been able to impeach their credibility in the cross examination. There is no reason to disbelieve the testimony of PW-1 or PW-
2. Since their testimony has remained unimpeached, the court is of the view that no further corroboration is required.
25. In view of the above discussion, the court is of the view that the prosecution has successfully proved its case. It has been successfully proved by the prosecution that the accident was caused due to the rash and negligent driving by the accused and that the grievous injuries caused to PW-1 and PW-2 was a result of such driving. It has also been proved that the accused did not provide medical aid to the injured and ran away after leaving him on the road. Hence, the accused is held guilty of the offence punishable u/s 279 & 338 IPC. Accordingly, the accused stands convicted for offence under Section 279/338 IPC.
Digitally signedAnnounced in the open Court SANKALP
by SANKALP
KAPOOR
today i.e. on 12.10.2023. KAPOOR Date:
2023.10.12
16:27:30 +0530
(Sankalp Kapoor)
Metropolitan Magistrate-06
South West/Dwarka Court/New Delhi
FIR No.118 /2017 State Vs. Kishore Kumar Page no. 13 of 13