Delhi District Court
State vs . Jagdish on 26 May, 2022
IN THE COURT OF MS. NEETIKA KAPOOR, MM-11, SOUTH WEST
DISTRICT, DWARKA COURTS, DELHI.
FIR Number : 125/15
P.S. : Janakpuri
U/s : 279/337 IPC
STATE VS. JAGDISH
a) Cr. no. of the Case : 1533/19
b) Name & address of the Complainant :ASI Joginder Singh
No. 2021/D, PS Janakpuri
c) Name & address of accused :Jagdish
S/o Shri Niwas
R/o H. No. 55, Grounf Floor,
Sawan Park Extn., Ashok Vihar,
Pase III, New Delhi.
d) Date of Commission of offfence : 30.01.2015
e) Offence complained of : 279/337 IPC
f) Plea of the accused : Pleaded not guilty
g) Final Order : Acquittal
Date of registration of FIR : 30.01.2015
Final arguments heard on : 02.05.2022 & 07.05.2022
Judgment Pronounced on : 26.05.2022
FIR No. 125/15 State vs. Jagdish 1 / 15
JUDGMENT
1. The accused Jagdish S/o Shri Niwas is facing trial for the commission of offences punishable under Sections 279 and 337 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) in connection with the case FIR No. 125/15 registered at P.S. Janak Puri.
2. Briefly stated, the case of the prosecution is that on 30.01.2015, at around 7.20 PM, at Pankha Road near A-2/101, Janakpuri, New Delhi , accused Jagdish was driving a vehicle (car) bearing registration no. DL 8CR 7721 in a rash and negligent manner at high speed and hit a pedestrian namely Mohd. Siraj who sustained injuries by rash and negligent act of the accused and was shifted to DDU hospital for treatment and thereafter, present FIR u/s 279/337 IPC was registered against accused u/s 279/337 IPC and IO ASI Joginder Singh was appointed as the Investigating Officer of the case.
3. During investigation, IO inspected the site of the incident and having inspected it, prepared a site plan thereof. During investigation, IO formally impounded the vehicle of the accused bearing registration No. DL 8CR 7721 along with documents and got the vehicle mechanically examined by the motor mechanic and obtained necessary report in this regard. The injured was subjected to medical legal opinion (MLC) and report no. 752/15 (Ex.A-1) was obtained wherein the injuries sustained by the injured were opined to be simple in nature. During investigation, the photographs of the spot and the afore- mentioned vehicle were taken and the statements of the witnesses were recorded and based on the material collected, accused Jagdish was found responsible for the commission of offences punishable under Sections 279 and 337 of the IPC.
FIR No. 125/15 State vs. Jagdish 2 / 15 After completion of the investigation, case file was handed over by the IO to SHO of Police Station Janak Puri who after following the codal formalities, prepared and filed the instant challan against the accused.
4. On finding sufficient material on record against accused Jagdish he was summoned before this court and on his appearance, copies of the challan and other documents were supplied to him in compliance of Section 207 of Code of Criminal procedure, 1973 (herein referred to as Cr.P.C).
5. On finding a prima-facie case against the accused under Sections 279 and 337 of I.P.C., notice of accusation was put to him, to which he pleaded not guilty and claimed to have a defense to make.
6. Thereafter, prosecution was called upon to adduce its evidence. The prosecution in order to prove its case examined as many as 4 witnesses. PW-1 Mohd. Siraj is the complainant and the sole eye witness to the case. PW-2 HC Maan Singh proved the rukka and the present FIR alongwith certificate u/s 65 B of Indian Evidence Act which are Ex. PW2/A, Ex. PW2/B and Ex. PW2/C, all bearing his signature at point A. PW-3 Ct. Rajesh accompanied the IO to the spot of investigation and PW-4 retired SI Joginder Singh is the investigating officer of the case.
7. Thereafter, Statement of accused u/s 294 Cr.PC r/w Section 313 Cr.PC was recorded wherein he admitted following documents relied upon by the prosecution i.e.-
1. MLC dated 30.01.2015 of injured Ex. A1
2. Mechanical inspection report dated 10.03.2015 Ex. A2 FIR No. 125/15 State vs. Jagdish 3 / 15
8. On the completion of the prosecution evidence, statement of accused u/s 313 Cr.PC was recorded wherein the accused denied the case of the prosecution and claimed to have been falsely implicated in the present case. He further stated that his vehicle was never present in Janakpuri area and that on 31.01.2015, he was called by the IO to the PS where the complainant had failed to identify him and his vehicle but was forced by the IO to identify the vehicle. The accused preferred not to lead any defence evidence.
9. I have heard Ms. Rajesh Kumari, Ld. APP for State and Sh. B. R. Kaushik, Ld. Defence Counsel and have gone through the records carefully.
10. On the basis of evidence on record, the following points arise for determination in the present case:
1. Whether the prosecution has proved its case beyond reasonable doubt that on on 30.01.2015, at around 7.20 PM, at Pankha Road near A-2/101, Jankpuri, New Delhi , accused Jagdish was driving a vehicle (car) bearing registration no. DL 8CR 7721 in a rash and negligent manner at high speed and hit a pedestrian namely Mohd. Siraj who sustained injuries by rash and negligent act of the accused as alleged?
2. Final order.
11. For the reasons to be recorded hereinafter while discussing the reasons for my findings, my findings on the aforesaid points are as under:
Point No. 1: No FIR No. 125/15 State vs. Jagdish 4 / 15 Final order: The accused Jagdish is acquitted as per the operative part of the judgment.
REASONS FOR FINDINGS POINT NO. 1
12. To bring home the culpability of accused under Section 279 and 337 IPC, it is pertinent that relevant provisions of law are first read. Section 279 IPC is reproduced herein below:
Section 279. Rash driving or riding on a public way:
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with imprisonment of either de- scription for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
13. From bare reading of this provision, the three essential ingre-
dients which constitute the offence of rash driving on a public way are as fol- lows:
1. Person must be driving or riding on a public way.
2. He must be driving in a rash and negligent manner.
3. He must be driving in a manner likely to endanger human life or personal safety of any person.
FIR No. 125/15 State vs. Jagdish 5 / 15 Section 337 IPC is reproduced herein below: Whoever causes hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with impris-
onment of either description for a term which may ex-
tend to six months, or with fine which may extend to five hundred rupees, or with both.
14. Perusal of these provisions makes it clear that offence under section 279 and 337 IPC will be made out when hurt is a direct consequence of a rash or negligent act. Rashness conveys the idea of recklessness or doing an act without due consideration whereas negligence connotes want of proper care. A rash act implies an act done by a person with recklessness or with indifference to its consequences, the doer being conscious of the mischievous or illegal consequences does the act knowing that his act may bring some undesirable or illegal results but without hoping or intending them to occur. A negligent act, on the other hand, refers to an act done by a person without taking sufficient precautions or reasonable precautions to avoid its probable mischievous or illegal consequences.
15. Reference may be taken from the decision of the Hon'ble Supreme Court of India in the case titled "Mohammed Aynuddin @ Miyan vs. State of Andhra Pradesh (decided on 28.07.2000)", wherein the Hon'ble Apex Court discussed in detail the constituents of a "rash or negligent act" and observed:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution.
FIR No. 125/15 State vs. Jagdish 6 / 15 Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
16. Further, in the case of "Braham Dass vs. State of Himachal Pradesh (2009) 3 SCC (Cri) 406", while discussing the legal position with respect to an offence u/s 279/304A, the Hon'ble Supreme Court of India, interalia observed the following:
"Obviously the foundation in accusations under Section 279 IPC is not negligence. Similarly, in Section 304A the stress is on causing death by negligence or rashness. Therefore, for bringing in application of either Section 279 or 304A it must be established that there was an element of rashness or negligence. Even if the prosecution version is accepted in toto, there was no evidence led to show that any negligence was involved."
17. Therefore, indifference to the consequences of one's act or absence of reasonable care and precaution is the most important ingredient constituting rashness or negligence. It should be noted that intention of the person acting rash or negligent act is immaterial and what is important is that he has not taken due care or has done the said act with indifference to the consequences. Further, it should be noted that there should be direct nexus FIR No. 125/15 State vs. Jagdish 7 / 15 between the act or rashness or negligence and hurt/grievous hurt/death, as the case may be, suffered by the victim.
18. The Hon'ble Delhi High Court in the case of "Abdul Subhan vs. State (NCT of Delhi) 133 (2006) DLT 562" discussed the ingredients which need to be established by the prosecution for convicting an accused u/s 279/304-A IPC and held the following:
"...the essential ingredients of section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As regards the offence punishable under section 304A IPC, it was observed that the point to be established is that the act of the accused was responsible for the death and that such act of the accused must have been rash and negligent although it did not amount to culpable homicide."
19. In order to prove the offence under section 279 IPC, the prosecution must establish at first, the identity of the accused that is, the fact that accused was driving the aforementioned vehicle at the time of accident. Secondly, the rashness or negligence on the part of accused in driving the said vehicle. Lastly, in order to prove an offence under Section 337 of IPC, over and above the aforementioned facts, the injuries sustained by the injured must also be proved to have been caused in the manner suggested by the prosecution.
20. In order to prove its case, the prosecution has examined, FIR No. 125/15 State vs. Jagdish 8 / 15 PW1 Mohd. Siraj who being the complainant and the sole eyewitness is material witness in the present case.
21. PW-1 Mohd. Siraj stepped into the witness box and deposed that on 30.01.2015 at about 6.30 or 7.00 PM, he was going to some place for collecting some embroidery material from his friend and the accident took place near a bazaar at Janakpuri. He further deposed to be walking on the left side of the road when an Alto (golden colour) bearing registration no. DL 8CR 7721 came from behind and hit him. The driver of the offending vehicle ran from the spot after hitting the injured. Public persons called the PCR on no. 100 from the mobile of the injured. He deposed to be in semi-conscious state at that time. PCR came to the spot and took the witness to DDU Hospital. He further deposed that on his way to the hospital, he called his brother but later stated to have called an acquaintance belonging to his village whom he called a brother who came to the hospital. He further deposed that police recorded his statement Ex. PW1/A bearing his signature at point A at DDU hospital. He categorically deposed to have not seen the accused at the time of the accident but to have been called at PS Janakpuri, the next day and to have identified the offending vehicle. He further deposed that he was informed by the police officials that accused was the person driving the offending vehicle at the time of the accident. He further deposed that arrest memo Ex. PW1/B bears his signature at point A but the accused was not arrested in his presence. The witness correctly identified the photographs of the offending vehicle which are Ex. P-1 and P-2 and correctly identified the accused in the court.
21.1 At this stage, Ld. APP cross examined the witness as he failed to disclose the complete facts of the case. He denied the suggestion that FIR No. 125/15 State vs. Jagdish 9 / 15 he had seen the accused at the time of accident and further denied that accused was arrested in his presence. He denied that he was deliberately not disclosing that the accused was arrested in his presence at PS Janakpuri.
21.2 In his cross-examination by Ld. Counsel for accused, he failed to state the width of the road on which the accident took place but stated it to have a divider. He admitted that at the time of accident, 2-4 people were using the road but there was no traffic on the road. On being recalled for further cross- examination, he stated that at the time of incident, he was residing at A-34, Hastsal Road, JJ Colony, Uttam Nagar, Delhi. He further deposed that on the date of the incident, he had left his friend's home at about 7.10 PM and after crossing two red lights the incident had taken place. He further deposed that he was going towards his house at Uttam Nagar and the accident had taken place on the left side of the road. He deposed having seen the colour and the number of the offending vehicle after the accident as the car had slowed down after the accident but also deposed that vehicle had left the spot in about 10-15 seconds. He deposed that he had fallen on the road and asked for help from the passersby.
22. The perusal of the testimony of this witness shows inconsistencies and contradiction in his version. PW1 in his testimony, has failed to identify the accused and clearly stated to have not seen the accused at the time of the accident. The witness has merely stated that the offending vehicle came from behind and hit him.
23. It is clear that an inference of act of rashness or negligence cannot be drawn from a simple testimony of the PW that the vehicle was being driven in a rash and negligent manner. Specific evidence has to be led by the FIR No. 125/15 State vs. Jagdish 10 / 15 prosecution in order to prove the same.
24. In order to corroborate the testimony of PW-1, the prosecution has examined PW-3 Ct. Rajesh who stepped into the witness box and deposed that in the month of January 2015 vide DD No. 35A, information regarding the alleged accident was received at PS Janakpuri and he alongwith the IO ASI Joginder Singh reached the spot but found no vehicle in an accidental condition. He further deposed that on inquiry, they learnt that the injured had been shifted to DDU Hospital and he alongwith IO went to the hospital where injured Mohd. Siraj was admitted. Tehrir was prepared by the IO and the witness took the same to PS for registration of FIR. Witness returned to the spot with original rukka and copy of FIR and found the complainant present at the spot. His statement was recorded by the IO at Police Station.
24.1 In his cross-examination, he deposed that IO did not take statement of any public witnesses. He voluntarily deposed that public persons had merely informed about the admission of the injured in DDU hospital. He failed to state the time of reaching DDU hospital but deposed that it took 20 minutes to reach. On reaching the hospital, IO recorded statement of the complainant and he went to the PS with the tehrir at about 10.30 AM. He further deposed that IO did not record the statement of any witnesses on the record nor any investigation was done by IO in his presence. He deposed that injured left the spot and did not accompany them to PS. He denied the suggestion that entire investigation was done by the IO while sitting at police station.
FIR No. 125/15 State vs. Jagdish 11 / 15
25. The testimony of this witness also does not prove the fact that accused was driving the offending vehicle in a rash or negligent manner. As such, his testimony as to the rashness or negligence on the part of the accused cannot be relied upon as he has clearly stated to have reached the spot after the alleged accident had taken place.
26. Further the prosecution relied upon the testimony of PW-4 Retired SI Joginder Singh who stepped into the witness box and supported the case of the prosecution and deposed about the investigation conducted by him. He deposed to have received information about the alleged accident vide DD No. 35A and to have reached the spot alongwith Ct. Rajesh and to have found no clue about the accident at the spot. He further deposed that on inquiry from the public, he learnt that injured had been shifted to DDU hospital and thereafter he alongwith PW-3 Ct. Rajesh went to DDU hospital where injured Mohd. Siraj was admitted and MLC No. 752/15 Ex. A-1 was obtained. Statement of injured Ex. PW1/A was recorded. Rukka Ex. PW4/A was prepared bearing the signature of IO at point A. Same was handed over to PW3 who left the hospital and reached the spot with copy of FIR and original rukka. Complainant had also accompanied the witness to the spot. Site plan was prepared at the instance of the complainant. The offending vehicle was not found at the spot. Complainant stated the registration no. of the offending vehicle on the basis of which notice u/s 133 MV Act was served upon the registered owner Shri Niwas which is Ex. PW4/C. The owner Shri Niwas alongwith accused and one relative reached police station where the injured identified the offending vehicle as well as the accused. Supplementary statement of the complainant was recorded. He further deposed that the accused as well as the owner of the vehicle had informed him that they had been falsely implicated in the present case as their vehicle was not present at the spot at the time of alleged incident. He further deposed that FIR No. 125/15 State vs. Jagdish 12 / 15 accused failed to provide any documentary proof in his defence. The offending vehicle bearing registration no. DL 8CR 7721 was seized vide seizure memo Ex. PW4/D bearing signature of witness at point A. Before seizure of offending vehicle in the present FIR, it was also seized in some other matter bearing no. 45/15 during investigation and the documents of offending vehicle were already seized in the said FIR. Copy of the seizure memo of FIR No. 45/15 is Mark-X. Accused was arrested vide arrest memo Ex. PW1/B. Mechanical inspection of the vehicle was conducted. The witness identified the photographs of the offending vehicle which are Ex. P-1 (colly).
26.1 In his cross-examination, he deposed to have received telephonic information vide DD No. 35A regarding the incident at about 7.30 PM. He deposed to be on patrolling duty at that time and was telephonically informed that the said DD No. 35A was marked to him. He failed to state the distance between the spot of the alleged incident and his place of patrolling duty but stated to have reached the spot in around 10-15 minutes. He voluntarily stated that neither eye witnesses nor public persons nor the accused was found at the spot. He admitted that complainant had stated the registration no. of the offending vehicle and stated that he could identify the offending vehicle. The witness was confronted with his tehrir wherein he admitted that the fact that complainant can identify the offending vehicle was not stated. He failed to tell the time when he reached the spot but stated to have remained there for around 40-45 minutes. He failed to state whether he had taken the signature of the injured on the site plan. He deposed to have called the injured to PS on 30.01.2015. The accused and the registered owner of the vehicle were also called to the PS on 30.01.2015. He deposed that the offending vehicle was seized after around two months and mechanical inspection of the offending vehicle was not done on 31.01.2015. He denied the suggestion that he had never FIR No. 125/15 State vs. Jagdish 13 / 15 visited the spot and the entire investigation was done by him in the PS.
27. However, perusal of the testimony reveals that he was also not the eye witness to the accident. The witness had lodged the FIR only after the accident had taken place and he could not explain in detail the act of rashness and negligent on the part of the accused. He did not even state the accused to be driving his vehicle in a rash and negligent manner. Therefore, even the testimony of PW3 and PW4 is not sufficient to prove the guilt of the accused in the present case beyond reasonable doubt. Mechanical inspection of the offending vehicle was done on 10.03.2015 whereas, no fresh damage was found on the vehicle. Moreover, reply of the registered owner to notice u/s 133 MV Act reveals that owner has categorically denied that his vehicle was present in Janakpuri area on the date of alleged incident. Moreover, site plan prepared by the IO is not sufficient to prove the act of rashness or negligence on the part of the accused. While it shows the location of the accident which is undisputed, it could not be inferred that accident occurred due to rash and negligent act of the accused.
28. There is no other witness to establish the guilt of the accused. As such, the prosecution has failed to establish the act of rashness or negligence on the part of the accused in the present case and, therefore, failed to prove beyond reasonable doubt the fact that accused Jagdish was driving the offending vehicle bearing no. DL 8CR 7721 in a rash or negligent manner at the time of accident and had hit pedestrian Mohd. Siraj causing simple injuries. Testimony of eyewitnesses does not completely support the prosecution story and testimonies of the rest of the witnesses are not sufficient enough to prove the FIR No. 125/15 State vs. Jagdish 14 / 15 guilt of the accused. Hence, benefit of doubt must be given to the accused. Thus, this point is answered in the negative and is decided against the prosecution.
FINAL ORDER:
29. Accordingly, in view of the above discussion, since the prosecution could not prove the guilt of the accused for commission of offences punishable under sections 279 and 337 of IPC, beyond reasonable doubt, accused Jagdish is acquitted of the offences punishable under Sections 279 and 337 of IPC.
30. Personal bonds/surety bonds stands cancelled. Endorsement, if any is also cancelled. Sureties stand discharged. Superdarinama, if any stands cancelled. Original documents, if any be returned to the rightful claimant against proper receipt as per rules.
31. The accused has already furnished personal and surety bonds as per the mandate of section 437-A of the Code of Criminal Procedure, wherein he has undertaken that he shall put in his appearance before the appellate court within the prescribed period in case an appeal is filed and admitted for hearing. File after due completion be consigned to the Record Room.
Announced and signed in the open court on 26th day of May, 2022.
(Neetika Kapoor) MM-11/DWARKA/DELHI 26.05.2022 It is certified that this judgment contains 15 pages, and each page bears my signature.
FIR No. 125/15 State vs. Jagdish 15 / 15