Delhi District Court
State vs Lalji on 4 January, 2022
DLSW020162732019
IN THE COURT OF METROPOLITAN MAGISTRATE-01,
SOUTH-WEST, DWARKA COURTS, NEW DELHI
- PRESIDED BY:
PARAS DALAL, D.J.S.
FIR No. 886/2006
PS Uttam Nagar
U/S : 279/337 Indian Penal Code, 1860
State V/s Lalji
Cr.C No. : 9303/2019
CNR No. : DLSW02-016273-2019
Date of Institution : 16.01.2007
Name of complainant : Sunil Kumar
Name of accused, parentage and address : Lalji
S/o Sh. Bhullan
R/o W-100/25, D-Block,
Mayapuri, Phase-2,
Delhi-110064
Offence complained off : 279/337 IPC
Plea of accused : Not guilty
Date on which final arguments heard : 14.12.2021
Final order : Acquitted
FIR No. 886/2006, P.S. Uttam Nagar Pages 1 of 10 State v. Lalji
Date of Judgment : 04.01.2022
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Argued by: Sh. Manish Kaushik, Ld. APP for the State.
Sh. Ajay Sharma, Ld. Counsel for accused.
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JUDGMENT
1. The SHO, Police Station Uttam Nagar has presented this charge-sheet against above named accused for initiation of trial U/s 279/337 Indian Penal Code, 1860 (for short "IPC").
2. Briefly, the case of the prosecution is that on 22.09.2006 DD no.53A was received vide which it was informed that an accident has occurred near Uttam Nagar, West Metro Station and when SI Jassa Singh alongwith Ct. John reached there, where one motorcycle bearing no. DL 4SAS 8200 TVS and one tempo Ashok Layland bearing no. HR 29G 3106 were found in accidental condition. Upon inquiry, it was found that the injured was taken to Gandhi Nursing Home by the motorcycle driver and SI Jassa Singh left Ct. John to guard the spot and he went to the hospital where Yogesh Sharma @ Toni was found admitted and unfit for statement. SI Jassa Singh found eye witness Sunil Kumar and recorded his statement and the same was sent to the PS for registration of FIR. During the course of investigation, both the vehicles were seized. No driver was found at the spot and site plan was prepared. IO served notice under Section 133 Motor Vehicle Act on the owner Sh. Ram Chander who answered that on the date of incident, vehicle was driven by accused Lalji. Accused Lalji was then arrested and released on bail who was also identified by the eye witness Sunil Kumar. Later, IO recorded the statement of victim Yogesh and after FIR No. 886/2006, P.S. Uttam Nagar Pages 2 of 10 State v. Lalji completion of the entire investigation, final report was presented for trial against accused Lalji.
3. After presentation of charge-sheet, accused was summoned. Copy of the charge-sheet were supplied to accused u/S. 207 of Code of Criminal Procedure, 1973 (for short "CrPC"). Thereafter, charge u/Ss. 279/337 Indian Penal Code (for short 'IPC') was framed against the accused on 07.08.2008 to which he pleaded not guilty and opted to contest.
4. In order to prove the guilt of the accused, prosecution examined 07 prosecution witness (herein after referred to as 'PW'): PW1 Sunil Kumar deposed that at around 8:30 PM, his friend Yogesh @ Tony called him and at his request came to Sevak Park to pick him and drop him at Aggarwal Dharamshala, Prem Nagar. PW1 further deposed that when they reached in front of Dharamshala he switched the indicator/ turn signal to take left turn and at that time one tempo bearing number HR 29G 3106 came at high speed being driven in rash and negligent manner and hit them from behind. PW1 deposed that as a result of impact, he as well as Yogesh fell on the road, he sustained minor injuries and he shifted Yogesh @ Tony to hospital who had received head injuries. PW1 deposed that the tempo was driven in rash and negligent manner and his statement was recorded by IO which is Ex.PW1/A. PW1 further deposed that he showed to the place of incident and the site plan was prepared at his instance. Further PW1 deposed that accused was arrested in his presence vide memo Ex.PW1/B and seizure memo of driving license of accused was Ex.PW1/C. PW1 was cross examined as nil.
5. PW2 Sh. Lalit was the photographer who runs his shot close to the place of incident and at the askance of police, he had taken five photographs of FIR No. 886/2006, P.S. Uttam Nagar Pages 3 of 10 State v. Lalji the spot which were exhibited as Ex.PW2/A(Colly). PW2 was also cross examined as nil.
6. PW 3 SI Satyaveer Singh deposed that he was posted as MHC(m) P.S. Uttam Nagar and on 22.09.2006 he was handed over one motorcycle bearing no. DL 4SAS 8200 and tempo bearing no. HR 29G 3106. PW3 deposed that both the case property were deposited in malkhana vide entry no. 4510 in register no. 19 and the photocopy of the said entry was Ex.PW3/A. PW3 was also cross examined as nil.
7. PW4 Ram Chander deposed that he was the registered owner of HR 29G 3106 and he replied to the notice under Section 133 Motor Vehicle Act, 1988 wherein he stated to the IO that the said vehicle was driven by accused Lalji. PW4 also identified the accused in Court. PW4 exhibited the notice and reply as Ex.PW4/A. The vehicle was released by PW4 on superdari and the superdarinama was exhibited as Ex.PW4/B and the photographs of the vehicle was identified as Ex.PW4/C. PW4 was also cross examined as nil.
8. PW5 Dr. Pawan Gandhi was CMO at Gandhi Hospital, Delhi and he deposed that on 22.09.2006 a patient Yogesh was brought at about 9:25 PM and he was examined vide MLC No. 147/06 which was exhibited Ex.PW5/A and PW5 deposed that at the time of admission, patient was unconscious and under influence of alcohol. PW5 was cross examined as nil.
9. PW6 Dr. Jagdish Solanki deposed that on 23.09.2006 he was working as Consultant in Choudhary Chhaju Ram Hospital and one patient Yogesh was admitted vide admission no. 07282 with alleged history of RTA one back FIR No. 886/2006, P.S. Uttam Nagar Pages 4 of 10 State v. Lalji day. PW6 deposed about medical treatment given prior to the victim and further deposed that on 30.09.2006 the patient sought discharge against medical advice. The admission report was exhibited Ex.PW6/A. PW6 was also cross examined as nil.
10. PW7 SI Jassa Singh is the investigating officer and he deposed that when he was posted at P.S. Uttam Nagar, he alongwith Ct. John responded to DD No. 53A Ex.PW7/A regarding accident near Uttam Nagar, West Metro Station. PW7 deposed that he alongwith Ct. John reached the spot and found one tempo bearing no. HR 29G 3106 and motorcycle bearing no. DL 4SAS 8200. PW7 stated that he left Ct. John to guard the spot and left for Gandhi Nursing Home where the victim was taken and further deposed that at he moved application Ex.PW7/B for recording statement of victim Yogesh but he was declared unfit. PW7 later found eye witness Sunil and recorded his statement already Ex.PW1/A which was endorsed by PW7 as Ex.PW7/C which formed the basis of the present FIR. PW7 further deposed that seizure memo of motorcyle and tempo was Ex.PW7/E and Ex.PW7/F, respectively. Notice to the owner of the vehicle is already Ex.PW4/A and mechanical inspection reports were Ex.A1 and Ex.A2. PW7 further deposed that arrest memo of the accused Lalji is Ex.PW1/B and seizure memo of driving license of accused Lalji is Ex.PW1/C. Copy of RC as well as insurance of the tempo kis Mark X1 and Mark X2, respectively. The MLC of injured is Ex.PW5/A and case summary is Ex.PW6/A. Superdarinama of tempo is exhibited Ex.PW4/B and of motorcycle Ex.PW7/G. PW7 identified the accused as well as vehicles from the motorcycles which are Ex.P1 to Ex.P5. PW7 was also cross examined as nil.
11. Prosecution evidence was closed on the 01.02.2020.
FIR No. 886/2006, P.S. Uttam Nagar Pages 5 of 10 State v. Lalji
12. The statement of accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded on 22.02.2020, and he was put all the incriminating circumstances, appearing against him, in the prosecution evidence. He stated that he was never driving the tempo in rash and negligent manner and accident happened due to sudden application of brakes by the rider of the motorcycle.
13. Learned Assistant Public Prosecutor for the State argued that the prosecution has proved its case beyond all reasonable shadow of doubts by examining all the material witnesses who have supported the prosecution version in material aspects. Accordingly, conviction of accused was prayed.
14. On the other hand, learned counsel for the accused argued that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the case of the prosecution is full of contradictions. He further argued that victim/ injured was never examined and the medical injuries were never explained. Defence also argued that PW5 categorically deposed that injured/ victim Yogesh was under the influence of alcohol and PW6 also deposed that victim/ injured sought discharge from hospital against medical advice. The defence thus has also relied on the judgments of Suresh Kumar v. State; 74 (1998) DLT 607 to argue that non-examination of doctor who performed the post-mortem of the dead body leading to non- explanation of injuries sustained is fatal to the case of the prosecution.
15. After hearing ld. APP for the state and ld. counsel for the accused and having gone through the case file carefully and meticulously, this court is of the opinion that the point for determination in the present case is FIR No. 886/2006, P.S. Uttam Nagar Pages 6 of 10 State v. Lalji whether on 22.09.2006 accused drove the offending vehicle in a rash and negligent manner and thereby caused accident.
16. In order to bring home the guilt of the accused, the prosecution is duty bound to prove the following ingredients of the section under which accused has been charged:
i. That the accused was driving the vehicle on the public place. ii. That the driving was rash and negligent. iii. That the driving was such as to endanger human life and public safety of others and caused hurt to any person.
17. Now, as per the prosecution story it is the accused who was driving the offending vehicle at the relevant time. The factum of accident has not been disputed by the defence and even in the statement under Section 313/281 CrPC the accused admitted that the accident occurred, but stated that the same happened due to the sudden application of brakes by the rider of the vehicle.
18. Apart from the above, the records is unequivocal that injured/ victim Yogesh @ Tony was under the influence of alcohol at the time of accident. Even after the accident, the victim/ injured was unconscious and unfit for statement. The same could have been due to accidental impact or due to alcohol consumption, however the same has not been proved by medical evidence. Moreso, the victim/ injured has not even been examined by the prosecution even though he was listed as prosecution witness in the police report.
19. Having so established that the accused Lalji was indeed driving the offending vehicle, the prosecution was next to prove that the offending FIR No. 886/2006, P.S. Uttam Nagar Pages 7 of 10 State v. Lalji vehicle was being driven in rash and negligent driving. The prosecution to prove the same has relied on the testimony of eye witness/ PW1, photographer/ PW2 as well as mechanical inspector/ PW3. PW1 deposed that the offending vehicle was driven at high speed in rash and negligent manner and the same hit the motorcycle from behind. However, the said fact is not supported by the other evidences on record. Firstly, the mechanical inspection only records body scratch and glass broken. There is no severe damage from the impact and the vehicle was fit for road test. Secondly, the vehicle inspection does not record presence of rear view mirrors on the motorcycle and even the photographs exhibited shows no such rear view mirror present on the motorcycle. Thirdly, the rider PW1 Sunil Kumar is stated to have sustained minor injuries, however neither any MLC is proved nor any injury has been explained. The above three facts firstly shows that force of impact was not substantial to rule out high speed driving by the offending vehicle. Also the absence of rear view mirror, casts serious doubt on how PW1/ rider was able to observe the rash and negligent driving of the offending vehicle. Also this supports the defence of the accused Lalji that motorcycle applied brakes without the knowledge that there was offending vehicle approaching from behind.
20. Be that as it may, in a criminal trial, it is the prosecution which has to prove its case beyond reasonable doubt. Rash and negligent act is not without mens rea, it requires the prosecution to prove some overt act committed by the accused which is so reckless and has lack of regard to the danger and consequences of one's action. The prosecution has relied on sole testimony of PW1 to prove recklessness of the accused, however the accident does not explain how PW1 escaped unharmed and victim/ injured Yogesh @ Tony sustained head injuries who is proved to have been under the influence of alcohol. PW1 also has not explained how he was able to FIR No. 886/2006, P.S. Uttam Nagar Pages 8 of 10 State v. Lalji see the offending vehicle being driven in rash, negligent and high speed when there is no rear view mirror in his motorcycle. The injuries on the victim/ injured is not explained and there is every possibility that the excessive injury were due to inebriated state of the victim/ injured Yogesh.
21. In the entire trial before this Court, there is not a single independent eye witness to the sequence of events, PW1 has not even deposed that his friend/ pillion rider injured Yogesh was under the influence of alcohol at the time of accident. Considering the time of the accident, and the inebriated state of injured/ victim Yogesh, there is every possibility that the incident was regular road accident, which resulted in escalated injuries to the victim/ injured Yogesh due to his alcoholic state. Moreover, since the injuries have not been explained to attribute the injuries to the vehicle impact cannot be established. PW6 deposed that victim/ injured got discharge against medical opinion and none examination of victim/ injured Yogesh cannot possible pin the injuries sustained, if any by the victim Yogesh to the accident in question.
22. It is trite in criminal jurisprudence that the prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.
ORDER: ACQUITTED
23. In view of the aforesaid discussion, this Court is of the considered opinion that the prosecution has failed to prove its case beyond all reasonable shadow of doubts and the benefit of doubt ought to be granted to accused, FIR No. 886/2006, P.S. Uttam Nagar Pages 9 of 10 State v. Lalji who is entitled to be exonerated of the charge against him in the present case. Accordingly, accused Lalji is hereby acquitted of the offence punishable under Section 279/304A IPC.
Announced in Open Court (Paras Dalal)
on this January 04, 2022 MM -01, South West
Dwarka Court, New Delhi
FIR No. 886/2006, P.S. Uttam Nagar Pages 10 of 10 State v. Lalji