Delhi District Court
State vs . Kamal Saini on 28 August, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-
WEST), DWARKA COURTS, NEW DELHI
PRESIDED BY : SH. DEEPAK VATS
State Vs. Kamal Saini
FIR No. 451/2014
Police Station: Vikas Puri
Under Section: 279/338 IPC
Date of institution : 22.05.2017
Date of reserving : 28.08.2019
Date of pronouncement : 28.08.2019
JUDGMENT
a) Serial number of the case 3869/2017
b) Date of commission of offence 23.06.2014
c) Name of the complainant Akash s/o Sh. Rajbir Singh r/o
H. no. 209, Double Storey,
Tilak Vihar Harijan Colony,
Delhi.
d) Name, parentage and address Kamal Saini, s/o Sh. Jai
of the accused. Parkash Saini, r/o RZ A 25
Mahabir Vihar Palam, New
Delhi
e) Offence complained of Section 279/338 IPC
f) Plea of the accused Pleaded not guilty
State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 1
g) Final order Acquitted
h) Date of final order 28.08.2019.
BRIEF REASONS FOR THE JUDGMENT
1. Briefly stated, the case of the prosecution is that on 23.06.2014 at 11 :00 pm near Kangra Niketan Outer Ring Road, New Delhi within the jurisdiction of PS Vikas Puri, the accused Ka- mal Saini was found driving car bearing registration no. DL 4CAQ 9012 in a manner so rash or negligent as to endanger human life or personal safety of others. It is alleged that in the above said manner, he struck against motorcycle bearing no. DL 8SAU 4564 and caused simple injuries to Akash and Manpreet Singh. Thus, it is alleged that he committed offences punishable u/s 279/338 IPC.
2. Charge was framed against the accused Kamal Saini on 23.06.2017 for the offences under Section 279/338 IPC to which he pleaded not guilty and claimed trial.
3. In support of its case, the prosecution has examined eight wit- nesses.
State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 2
4. PW1 Sh Akash is the complainant who has proved the state- ment Ex. PW 1/A. He also proved site plan vide Ex. PW 1/B. Wit- ness correctly identified the photographs of car and motorcycle vide Ex. PW 1/C and Ex. PW 1/D. PW 1 Akash /complainant / injured was the main witness of the prosecution. He alleged that on 23.06.2014 at about 10:30 pm when he along with Manpreet Singh reached at Outer Ring Road near Church, a car bearing no. 9012 make Verna was coming from the side of Janak Puri and going towards Vikas Puri in a very high speed and the driver of the car was driving the car in a rash and negligent manner and struck against their motorcycle from behind due to which he along with Manpreet fell down on the road. He received fracture on his right leg. He stated that the ac- cused stopped the car at the spot. Accused was correctly identified by the prosecution witness.
5. In his cross examination he admitted that at the time of driving motorcycle he was looking at the front side.
6. PW2 Sh. Manpreet is the pillion rider with the complainant and also an eye witness. He stated that the accused was consum- ing liquor in his car and started pelting stones on PW 1 Akash. Thereafter he and complainant left the spot but the accused chased them on his car and struck against their motorcycle from rear side State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 3 four times and eventually both of them fell down and received in- juries. He stated that he could not see the face of driver. He failed to identify the accused. He stated that he could recognize the voice of accused however, when the accused was directed to speak in the court, PW 2 also failed to identify his voice. He could not state the registration number of the offending vehicle either.
7. PW3 Ct. Sunil Kumar is the DD writer who proved Rojnamcha at serial no. 7 B vide Ex. PW 3/B.
8. PW 4 Sh. Neeraj Saini, is the registered owner of the car and has proved the notice and its reply vide Ex. PW 4/A and Ex. PW 4/B. Witness also proved the seizure memo of insurance vide Ex. PW 4/C. He also proved arrest memo vide Ex. PW 4/D. Witness released the car on superdari vide memo Ex. PW 4/E and panchnama vide Ex. PW 4/F.
9. PW 5 Retired ASI Technician Devender Kumar has proved the mechanical inspection report of offending car and motorcycle vide Ex. PW 5/A and Ex. PW 5/B. State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 4
10. PW 6 Ct. Ravinder has proved the site plan prepared by the IO vide Ex. PW 6/A, seizure memo of motorcycle bearing no. DL8SAU 4564 vide memo Ex. PW 6/B and seizure memo offending car bear- ing no. DL4CAQ 9012 vide Ex. PW 6/C. He also proved the copy of Insurance of offending vehicle vide memo Ex. PW 6/D, RC of offend- ing vehicle vide Ex. PW 6/E, seizure memo of DL vide Ex. PW 6/F.
11. PW 7 Dr Vimal Sharma has proved the MLC no. 6501/14 vide Ex. PW 7/A and MLC no. 6454/14 vide Ex. PW 7/B.
12. PW 8 SI Dhanraj is the IO of the present case. He deposed re- garding the investigation conducted by him in the present case and proved rukka vide Ex. PW 8/A.
13. Accused admitted the Superdarinama dated 24.06.2014 vide Ex. P/A/1, Xray report of Akash Ex. P/A/2, Xray report of Manpreet Ex. P/A/3 and FIR no. 451/14 Ex. P/A/4 u/s 294 Cr. PC. .
14. After the completion of prosecution evidence, PE was closed and statement of accused under Section 313 Cr. PC was recorded wherein he claimed that he is innocent and he has been falsely impli- cated. He stated that he stopped his car only on seeing the injured State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 5 persons and he was not driving the offending vehicle. Accused opted not to lead defence evidence and thereafter matter was listed for fi- nal arguments.
15. I have heard the submissions of Dr Yadvendra Singh, learned Assistant Public Prosecutor for the State and Sh. Ajay Sinha, for accused and perused the record carefully.
16. 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 cogent witnesses. Therefore, accused be convicted as per law.
17. Sh. Ajay Sinha, Ld. Defence counsel for accused submitted that prosecution has not proved its case against accused beyond reasonable doubt. He submitted that merely stating that the vehicle was being driven at a high speed cannot be regarded as rash and negligent and relied upon judgment titled as Abdul Suhan v State State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 6 ( NCT of Delhi ) 207 Crl.J 1089. He also relied upon judgments ti- tled as State of Karnataka v Satish (1998) 8 SCC 493, State v Lucky Bedi. He further submitted that prosecution has not proved the negligence or rashness on the part of the accused and that the accused has been falsely implicated in the present matter as no in- criminating material has come on record against him. Therefore, ac- cused is entitled to be acquitted.
18. I have heard submissions of ld. APP for the State and Sh. Ajay Sinha, Ld. Defence counsel for the accused and perused the record carefully.
19. It is a cardinal principle of criminal jurisprudence that prosecution 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 supposed to stand on its own legs and it cannot derive any benefits whatsoever 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.
State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 7
20. 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.
21. 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.
22. In the present matter, accused has been charged for the offences punishable u/s 279/338 IPC and thus the prosecution has to prove the following points to bring home the guilt of accused Kamal Saini.
1. That the accused was driving the vehicle bearing no. DL4CAQ 9012 at the time of accident i.e. identity of accused.
2. That he was driving the said vehicle in rash or negligent manner and hit the motorcycle of Akash and Manpreet Singh and caused grievous injuries to them.
23. Before proceedings further, it is necessary to discuss the State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 8 meaning of expression "rash and negligent".
24. In S. N. Hussain case, criminal negligence has been defined as:
"The gross and culpable neglect or failure to exercise reasonable and proper care to guard against injury either to public generally or individual in particular. Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of each case".
Criminal rashness as defined in State of H.P vs Piar Chand's case and Ram Avtar's case is that:
"The criminal rashness is doing a dangerous or wanton act within knowledge that it is so and may cause injury without intention to cause injury and without knowledge that injury would probably be caused. Therefore, to incur criminal liability, the act must be done with rashness or in difference as to the consequences.
Criminal negligence is the gross and culpable neglect or failure to exercise reasonable care and proper precaution imperative to be adopted by a person to avoid causing injury to the public or a person State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 9 or an individual."
25. Hon'ble Supreme court of India in the case of State of Karnataka v Satish 1998 (8) SCC 493 further held that mere fact that accused was driving vehicle at a high speed does not mean that he was driving in a rash or negligent manner. Hon'ble Appex court observed as follows:-
"3. Both the trial court and appellant court held the respondent guilty for offences u/s 337/338 and 304 A IPC after recording a finding that the respondent was driving the truck at a "high speed".
No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at "high speed", both the courts pressed into aid the doctrine of resipsa loquitur to hold the respondent guilty.
4. Merely, because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the prosecution could give any indication, even approximately, as to what they meant by "high speed".
26. Further Hon'ble High Court of Delhi in case titled as State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 10 "Vinod Kumar vs State 2012 (1) RCR (Crl.) 567" has observed as followed:
" No evidence or any other material was placed on record by the prosecution to show the manner in which the petitioner was driving the said vehicle to prove rashness and negligence of the petitioner. No photographs of the spot has been taken.
None of the eye witness i.e. PW-1 and PW-2 had deposed anything in regard to the accident or the manner in which the vehicle was being driven by the petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the petitioner. Moreover, there is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the petitioner, specially when the area was a crowded one." (Emphasis supplied)
27. The above precedents make it clear that the prosecution has to clearly show that the accused was driving the offending vehicle and that the accused was driving the offending vehicle in a rash and negligent manner and mere bald averment that he was driving the State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 11 offending vehicle at a high speed in a rash and negligent manner will not suffice.
28. The most important witnesses of the prosecution are PW 1 and PW 2 both of whom were eye witnesses to the alleged incident. PW 2 Manpreet Singh, who was riding pillion on the motorcycle bearing no. DL8S AU 4564 did not support the case of prosecution. He narrated a completely different story then the asal Tehrir Ex. PW 1/A. He stated that accused was consuming alcohol and pelted stones on him and PW 1 and when both the injured persons left the spot, the accused chased them and caused the alleged accident. All these details do not find any mention in the statement Ex. PW 1/A. Most importantly, PW 2 has failed to identify the accused. He stated that he could not see the face of driver of the offending vehicle on the spot. When he was cross examined by the Ld. APP, he still failed to identify the accused. He stated that he could identify the voice of accused but he failed to identify the same when the accused was directed to speak in the court, thus, PW 2 has not identified the accused.
29. PW 1 stated in his examination in chief that he had seen the face of accused when he got down from the car at the spot and he identified the accused correctly in the court. Looking at the testimony of PW 1, it may be said that there is some credence in the State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 12 prosecution case that accused was the driver of the offending vehicle as PW 1 has identified the accused. Thus, the court finds that the accused was driving the offending vehicle.
30. Another fact that the prosecution needs to prove beyond reasonable doubt is that the accused was driving the offending vehicle rashly and negligently. As earlier stated there were two eye witnesses PW 1 and PW 2 of the alleged incident. Testimony of PW 2 is immaterial and may be discarded as he failed to identify the accused and has given the version which completely at variance from the story of the prosecution. Thus, the testimony of PW 1 is to be scrutinized throughly to find whether the accused was driving the offending vehicle rashly and negligently.
31. PW1 stated that the accused was driving the car in a high speed and in a rash and negligent manner and struck against the motorcycle of PW 1. No other detail as to how the accused was driving the offending vehicle in a rash and negligent manner has been given by PW 1. It is apropos to note that during cross- examination PW 1 has categorically admitted that at the time of driving the motorcycle, he was looking at the front side. In the opinion of the court it was incumbent upon PW 1 to explain as to how when he was looking at the front side while driving the motorcycle, he came to know that the accused was driving the State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 13 offending vehicle in a rash and negligent manner while making the aforesaid admission. No such clarification was offered by PW 1. As such, the bald statement of PW 1 that accused was driving offending vehicle in rash and negligent manner while admitting that he was looking at the front side appears to be insufficient to hold that accused was driving the offending vehicle in a rash and negligent manner keeping in mind the ratio of "Vinod Kumar vs State 2012 (1) RCR (Crl.) 567" (Supra).
32. Another fact which supports the hypothesis of innocence of accused is that in the mechanical inspection report of motorcycle bearing no. DL 8SAU 4564 there is no damage on the rear side of the motorcycle which suggests that the offending vehicle might not have hit the motorcycle from the back side.
33. In the light of above discussion, the court is of the considered opinion that the evidence available on record is grossly insufficient to meet the proof-beyond-all-reasonable-doubts standard. Accordingly, court has no option but to acquit the accused. Accused Kamal Saini stands acquitted of the offences punishable u/s 279/338 IPC.
34. Documents, if any be returned to the rightful person. Bail bond and surety bond stands discharged. Endorsement, if any, be State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 14 cancelled. Superdari, if any, stands cancelled. Case property, if any, be released to its rightful owner.
35. Bail bond u/s 437 A Cr PC is on record.
36. File be consigned to record room.
Announced in open Court on 28.08.2019.
(DEEPAK VATS)
Metropolitan Magistrate-05 (South-West)
28.08.2019
DEEPAK Digitally signed by DEEPAK
VATS
VATS Date: 2019.08.29 16:39:44
+0530
State Vs. Kamal Saini FIR No. 451/2014 PS : Vikas Puri U/S 279/338 IPC 15