Delhi District Court
Kaliram vs State Of Himanchal Pradesh, Air 1973 Sc ... on 16 December, 2022
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-
WEST), DWARKA COURTS, NEW DELHI
Presided by: Sh. NITESH GOEL .
State v Baba Lal s/o Neel Ram
FIR No.352/06 Digitally signed
Police Station: Vikas Puri NITESH by NITESH
GOEL
Under Section: 279/338 IPC.
GOEL Date: 2022.12.16
15:23:13 +0530
Date of institution : 06.07.2007
Date of reserving : 30.11.2022
Date of pronouncement : 16.12.2022
JUDGMENT
a) Serial number of the case 9598/19
b) Date of commission of offence 25-26-06.2006
c) Name of the complainant Manik Bhambri s/o Sh. Padam
Bhambri r/o B-1/46, Vishnu Gar-
den Near Sunil Dairy New Delhi.
d) Name, parentage and address of Baba Lal s/o Sh. Neel Ram r/o
the accused D 294, Peera Gari, Camp,
Paschim Vihar, Delhi.
e) Offence complained of Section 279/338 IPC.
f) Plea of the accused Pleaded not guilty
g) Final order Acquitted
h) Date of final order 16.12.2022
State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 1
BRIEF REASONS FOR THE JUDGMENT
1. Brief factual matrix is that on 25-26-06-2006 at about 12:05 am outer ring road Krishna Park Red Light near PP Tilak Vihar Delhi within the jurisdiction of PS Vikas Puri accused Baba Lal was found driving Qualis bearing no. DL 1VB 1159 in high speed and in rash or negligent manner so as to endanger life of others and thereby he hit against the motor cycle bearing no. DL4 SAU1758 and caused grievous injuries to driver Nishant Gupta and pillion rider Manik Bamdi. Therefore it is alleged that he had committed offences u/S 279/338 IPC.
2. Chargesheet was filed and copy of the same was supplied to the accused as per mandate of u/S 207 Cr.P.C. Notice under Section 251 Cr. P.C was served upon the accused for the offence under Section 279/338 IPC vide order dated 24.01.2011 to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined ninteen witnesses.
4. PW 1 Sh. Manik Bhambri has deposed that he has his own manufacturing factory at Khyala, New Delhi-18. He deposed that he do not remember the date of the incident but it took place in the month of June, 2006. On that day, he alongwith his friend namely Nishant Gupta were coming from Vikas Puri to his residence i.e. S-2/130, Old Mahavir Nagar, State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 2 New Delhi-18 on the motorcycle of his friend Nishant Gupta black colour Karizma Hero Honda. When they reached near one Red Light before the CRPF Camp Red Light. The light was green and they were crossing the road. Suddenly one Qualis which was coming from the side of Peeragarhi to District Center jumped the traffic signal for the side from which the said qualis was coming and hit the knee of his friend Nishant Gupta and due to which his head struck against into the windscreen of the said qualis. The said motorcycle was driven by his friend Nishant Gupta. Due to the ac- cused he also fell down on the service lane and received injuries in his head and right side leg. He deposed that the police beat which was situ- ated near the red light stopped the driver of the offending vehicle from the escape. He lifted his friend Nishant Gupta to the service lane. He called his friend through telephone namely Chander Mohan. His friend came at the spot within 5-6 minutes. Thereafter, they all together reached at DDU Hospital on Maruti van of his friend Chander Mohan. The family members of Nishant Gupta was called and they reached at the hospital. He was taking medical treatment in the hospital and at that time he came to know that his friend Nishant Gupta has been shifted to Ganga Ram Hospital for the treatment. The police came at the DDU Hospital and his statement was recorded at the hospital by police vide Ex. PW 1/A. He deposed that he saw the driver of the offending vehicle at the spot. The driver of the offend- ing vehicle namely Baba Lal was identified by the witness. He put his sig- natures on the arrest memo and personal memo of the accused vide memo's Ex. PW-1/B and Ex. PW-1/C respectively. Witness identify ten photographs of the offending vehicle and the said Karizama vide Ex. P-1 to P-10.
In his cross examination he deposed that he was sitting on the mo- torcycle as a pillion rider. It is stated that while on the motorcycle they were State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 3 talking with each other. It is stated that before the accident, they were con- firmed about the green signal of the traffic signal. He denied that the signal was red at that time. He further stated that it was about 11.45 PM when the accident took place. The speed of the motorcycle was 10/15 km per hour at the time of the accident. He deposed that offending vehicle struck against the motorcycle from the left side portion ( plastic cover).
5. PW 2 Dr. Ajay Sharma medical officer has proved the MLC vide Ex. PW 2/A.
6. PW3 Dr. Amit Chaudhary has proved the MLC no. 1796 dated 26.06.2006 vide Ex. PW 3/A
7. PW 4 Dr. Sonia deposed that the injuries of the patient were grievous as per radiologist opinion.
8. PW 5 Dr. Deepak Vats Sr. Medical Officer identify the signa- tures of Dr. S. K. Sugani on the discharge summary vide Ex. PW 5/A.
9. PW 6 Dr. Dinesh Varshney has identify the signature of Dr. Shanti on MLC no. 15592 dated 26.06.2006 already Ex. PW 2/A.
10. PW 7 ASI Rajpal has prove FIR and endorsement on rukka vide Ex. PW7/A and Ex. PW 7/B respectively.
State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 4
11. PW 8 Dr. Yogesh Gupta has proved the Xray report vide Ex. PW 8/A.
12. PW 9 Dr. Vikas Gupta, has proved the original discharge summery of patient Nishant Gupta which was handed over to his relatives at the time of discharge vide Ex. PW 9/A.
13. PW 10 Dr. Richa Singh has identified her signature at point A in discharge summery already Ex. PW9/A.
14. PW 11 Mohan Lal was the photographer who had clicked 9 photographs of accidental vehicle Qualis and motorcycle vide Ex. P1 (Colly.)
15. PW 12 Sh Surender Singh has proved the reply to the notice u/s 133 MV Act vide Ex. PW 12/A and release of vehicle on superdari vide Ex. PW 12/B.
16. PW 13 Anil Kumar Gupta was the superdar and has proved the superdarinama vide Ex. PW 13/A
17. PW 14 Retired ASI Tech Devender was the mechanical in- spector and has proved the inspection report of vehicles vide Ex. PW 14/A and Ex. PW 14/B respectively.
State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 5
18. PW 15 HC Naresh has deposed that on the intervening night of 25/26.06.2006, he was posted at PS Tilak Nagar. On that day he was on picket duty from 8.00 P.M. to 8.00 A.M. at Krishna Park. He deposed that at about 12.05 A.M. one Qualis car bearing registration no. DL 1 VB-1159 was coming from Peeragarhi side and going towards Vikas Puri in a very high speed and in rash and negligent manner. The Driver was driving the said Qualis Car in a zig zag manner. He further deposed that two boys who were on motorcycle bearing registration no. DL4SAU-1756 were crossing the ring road on the said motorcycle and going towards Tilak Na- gar side and suddenly they were hit by the above-mentioned Qualis car, due to which they fell down on the road along with motorcycle. The driver of the offending vehicle i.e. qualis car stopped the car on the side of the road. He rushed towards the place of accident and apprehended the driver of the said car i.e. accused. Thereafter both the injured persons were sent to DDU Hospital through private vehicle. He informed about the accident to PS Vikas Puri. Police came there. He handed over the accused to the IO. IO left him at the spot and went to DDU Hospital with accused. After some time IO came back at the spot and prepared site plan at his instance vide Ex. PW 15/A. IO also seized the offending vehicle and motorcycle vide Ex. PW 15/B and Ex. PW 15/C respectively. Witness correctly identified the accused. Witness also identified the photographs vide Ex. P1 to Ex. P10.
19. PW 16 Dr. G. Prem Kumar has proved the X Ray report vide Ex. PW 16/A.
20. PW 17 HC Ashok joined the investigation and has proved the seizure memo of driving license vide Ex. PW 17/A and seizure memo State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 6 of offending vehicle vide Ex. PW 17/B. Witness correctly identified the pho- tographs vide Ex. P1 to Ex. P10.
21. PW 18 Inspt Hari Kishan has proved the notice u/s 133 MV Act vide Ex. PW 18/A.
22. PW 19 HC Bhwanesh has proved the copy of entry in regis- ter no. 19 vide Ex. PW 19/A.
23. After the completion of prosecution evidence, PE was closed and statement of accused u/S 313 Cr. PC was recorded wherein he stated false implication and innocence. Accused opted not to lead defence evi- dence and thereafter, the matter was listed for final arguments.
24. I have heard the submissions of learned Assistant Public Prosecutor for the State and Ld. Counsel , for accused and perused the record carefully.
25. During the course of arguments, Ld. APP submitted that the prosecution has proved its case against accused beyond reasonable doubts. He submitted that the identity of accused had not been disputed to the effect that he was driving the vehicle at the relevant point of time. He further submitted that it is clear from the testimonies of all the witnesses that the accused was driving the vehicle in a rash and negligent manner and the prosecution has proved its case by examining the reliable and co- gent witnesses. Therefore, accused be convicted as per law.
State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 7
26. Ld. Defence counsel for accused has submitted that the ac- cused has not been identified in the present case. The prosecution has not led any conclusive evidence to prove that accused was driving the offend- ing vehicle and thus it is prayed that accused be acquitted.
27. It is a cardinal principle of criminal jurisprudence that prose- cution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is sup- posed to stand on its own legs and it cannot derive any benefits whatso- ever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
28. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
29. In another case titled as Mousam Singh Roy & ors. vs. State of West Bengal (2003) 12 SCC 377, it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 8
30. Let us now discuss basic legal propositions of law on penal provisions of Section 338 IPC. Section 338 IPC Says:
"Whoever causes grievous injury to any
person by doing any act so rashly or
negligently as to endanger human life or
personal safety of others. "
31. The requirements of this section are that the grievous injury of any person must have been caused by the accused by doing any rash or negligent act. In other words, there must be proof that the rash or negligent act of accused was the proximate cause of the grievous injury caused.
32. I have gone through the documents on record, evidence and submissions forwarded by counsel for the accused and Ld. APP for the State.
33. For the purpose of guilty of section 279/338 IPC the prosecution has to prove three ingredients:-
a that the accident had taken place, b that the accused was driving the vehicle. c. that the accident had taken place due to rash and negligent driving of the accused.
State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 9
34. From the testimony of PW 1 and PW 15 who are the eye witnesses to the case, it is proved that the accident had taken place at around 12:05 am at outer ring road Krishna Park Red Light, Vikas Puri. They have stated in their testimony that the accident had taken place. Nothing has been brought by the defence to prove that the accident did not take place.
35. Now we shall come to the second ingredient of Section 279/338 IPC which says that accused was driving the vehicle at the time of accident.
36. Now in order to prove that the accused was driving at the time of accident the prosecution has examined PW 1 and PW 15 who are the eye witness to the case. They have correctly identified the accused in the court. Further in the cross examination the accused has not been able to prove that the accused was not driving the vehicle at the time of accident. Therefore, the second ingredient for bringing the culpability of the accused u/s 279/338 IPC stands proved.
37. Now it has already been proved that the accused has occurred the impugned accident, now the main question arises whether the accident has been committed due to rash and negligent driving of accused Baba Lal. In order to prove whether the accused was driving the vehicle in rash and negligent manner, the prosecution has examined PW 1 and 15 wherein the PW 1 and PW 15 in their testimony have stated that the accused was driving the vehicle in a rash and negligent manner. The accused had driven the vehicle while the signal was red and had crossed State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 10 the red light and hit the knee of the injured Nishant Gupta.
38. Let us come to the meaning of Rash and negligent driving by considering the law laid down in the judgment of apex court as per Shakila Khader v. Nauser Gama reported in AIR 1975 SC 1324, it was observed that when a driver leads to an accident, the main question is whether it was rash and negligent. But in deciding this speed is not the only criterion. The width of the road, density of traffic and attempt to overtake are also criteria.
39. There is no proof on record that the accused was driving the vehicle in rash and negligent manner. PW 1 had deposed that the accused had jumped the traffic signal and no where deposed that the accused was driving the vehicle in high speed. He has further admitted in his cross- examination that the injured Nishant and PW 1 were talking to each other while driving the vehicle. This shows the contributory negligence on the part the victim as well.
40. Further, in the testimony of PW 15, he has deposed that the accused was driving the vehicle in high speed and in rash and negligent manner and has further deposed that he was driving the vehicle in zig zag manner however in his testimony he has nowhere mention the speed of the vehicle. The high speed depends upon case to case as to what kind of speed can be termed as the high speed. PW 15 in his evidence has not deposed that accused had jumped the traffic signal.
41. Further, Ex PW 15/A i.e. site plan was carefully seen, this court is not able to get the clear picture how the accident had taken place State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 11 and which red light had been jumped by the accused as has been alleged and from which way both the vehicles were coming and going.
42. Further, the third main eye witness who is the injured in the present case i.e. Nishant Gupta was dropped from the list of witnesses vide order dated 18.09.2017 due to the loss of memory.
43. From the evidence available on record, this court is not fully satisfied that the accident had taken place due to rashness and negligence of the accused. Therefore, benefit of doubt is being given to the accused on the basis of principle that " thousand culprit can escape, but one innocent should not be punished". Therefore the third essential ingredient of bringing the culpability of accused u/s 279 /338 IPC has not been satisfied.
44. In view of the above said discussion accused Baba Lal s/o Neel is acquitted for the offence u/s 279/338 IPC. Documents, if any be released to the rightful persons. Bail bonds stands discharged. Endorsement if any be cancelled.
Digitally signed by NITESH NITESH GOEL
45. File be consigned to record room.
GOEL Date:
2022.12.16
15:23:33 +0530
Announced in open Court on 16.12.2022
(Nitesh Goel)
Metropolitan Magistrate-05 (South-West)
16.12.2022.
State v Baba Lal s/o Neel Ram FIR No.352/06 PS : Vikas Puri U/s: 279/338 IPC. 12