Delhi District Court
State vs Kishun Dev Mehto on 14 March, 2011
In the Court of Sh. Satish Kumar Arora : MM : KKD Courts : Delhi
FIR No. 488/06
U/s 279/338 IPC
PS Pandav Nagar
State Vs Kishun Dev Mehto
JUDGMENT:
A Sl. No. of the case 02402R 0262302007 B Date of institution 30/03/2007 C Date of commission of 22/09/2006 offence D Name of the complainant State
E Name of the accused & Kishun Dev Mehto s/o Sh. Ram Iqbal his parentage and Mehto r/o 4/206, Trilok Puri, Delhi.
address F Offence complained of U/s 279/338 IPC G Plea of the accused Pleaded not guilty H Order Reserved on 03/03/11 I Final order Acquitted J Date of such order 14/03/11 Brief reasons for the decision of the case.
1. In a nutshell, prosecution case is that on 22.09.06, PW3 IO SI Abhishek Kumar Singh upon receiving information of accident reached the spot at Petrol Pump, NH24, Pandav Nagar, Delhi where Tata Indica Car DL3C AJ 6949, Honda City Car DL7C F 2932 and a TSR bearing No. DL1RJ 0616 were reported to have been involved in State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 1 of 11 an accident. In the meantime, an information was received that the injured has been shifted to St. Stephen Hospital. Pursuant thereto, IO reached the hospital, collected the MLC of injured / complainant Shipra Mitra and recorded her statement Ex. PW1/A wherein complainant / PW1 Shipra Mitra informed that on 22.09.06 she boarded a TSR from Mayur Vihar, PhaseII, Delhi for Lajpat Nagar and while the TSR reached NH24 and was heading towards Nizamuddin Bridge, she received a call from her daughter and thereafter she requested the TSR Driver to return back to her home. She further informed that the TSR driver turned the TSR back towards her home from the Akshardham flyover. She further informed that one Honda City Car DL7C F 2932 which was followed by Indica Car were ahead of their TSR. She further informed that at about 33:30 pm near Petrol Pump, Pandav Nagar, the driver of Honda City Car suddenly applied breaks which resulted in the Tata Indica Car hitting the Honda City Car and their TSR hitting the Tata Indica Car from behind. She further informed that due to the said impact, her left hand hit the rod of TSR resulting in injuries on her person. She further informed that TSR was driven by accused Kishun Dev Mehto in a rash and negligent manner. On the statement so recorded, IO made the endorsement Ex.PW3/A and got the FIR Ex. C1 registered at PS Pandav Nagar. During investigation, IO seized the TSR, got conducted the mechanical inspection of all the three vehicles involved in the accident, formally arrested the accused, recorded the statement of State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 2 of 11 witnesses and finally, upon completion of necessary investigation, presented the charge sheet to the Court against the accused for trial.
2. Pursuant to appearance of the accused, copies as required u/s 207 Cr.P.C. were supplied and notice u/s 251 Cr.P.C. for the offence punishable u/s 279/338 IPC was given to the accused to which he pleaded not guilty and claimed trial. Matter was then listed for prosecution evidence.
It is pertinent to note here that summons to PW Shiv Kumar were returned unserved through the IO with the report "his present whereabouts are not traceable". Statement of IO SI Abhishek Kumar Singh was also recorded on 09.06.10. It is also pertinent to note here that vide separate proceedings of admission / denial of documents done u/s 294 r/w s. 313(1)(a) Cr.P.C., accused admitted the FIR as Ex.C1 and the MLC of complainant Shipra Mitra as Ex.C2.
3. In order to substantiate and prove its case against the accused, prosecution has examined three witnesses. PW1 Shipra Mitra is the complainant / injured. PW2 Ravinder Kumar Nagpal is the owner of Honda City Car DL7CF 2392 who got the same released on superdari by furnishing superdaginama Ex.PW2/A. PW3 SI Abhishek Kumar Singh is the IO of the case.
As is apparent, the star witness for the prosecution is the complainant / injured PW1 Shipra Mitra. In her examinationinchief, PW1 Shipra Mitra testified that on 22.09.06 she was going to Lajpat State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 3 of 11 Nagar from Mayur ViharII on a TSR via NH24, Delhi. She further testified that while she was on her way she received a call from her daughter and then she requested the TSR driver to turn back the TSR towards her home. She further testified that driver of Honda City Car DL7C F 2932, which was driven at a high speed suddenly applied the breaks and Tata Indica Car No. 6949 was also behind the Honda City Car. She further testified that the accused who was driving the TSR No. 0616 in a rash and negligent manner hit the Tata Indica Car. She further testified that her daughter took her to Virmani Hospital and then to St. Stephen Hospital as she sustained serious injury. She further testified that she made the complaint Ex.PW1/A to the police. She further testified that the accused was driving the TSR at a very high speed. In her crossexamination by ld. defence counsel, she testified that she did not give any statement as she was hurt. She further testified that no site plan of the spot was prepared either in her presence or at her instance at any stage. She further testified that the accused was driving the TSR very fast and she asked him if he does not know driving. In her further crossexamination, she testified that she was not holding any structural rod in the TSR to have the support when she received a call from her daughter. She further testified that her signatures were obtained by the police on many papers but she cannot tell the exact number. She improved upon by stating that police obtained her signatures only on one paper and she has signed the same without State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 4 of 11 reading what was written on it. She further testified that she cannot tell the distance between the Honda City Car, the Tata Indica Car and the TSR. She further testified that she cannot tell whether the Honda City Car or Indica Car were on the left side or the right side of the TSR. She further testified that she does not know whether any cow had come in front of the Honda City Car. She further testified that she did not give any statement to the police that the cow had come in front of the Honda City Car or to save that cow, the driver of Honda City Car suddenly applied breaks and resultantly the Indica Car and TSR also applied breaks and as she was carrying mobile phone in her hand and not holding any supporting rod in TSR, she sustained injuries. She further testified that TSR was standing properly and had not over turned. She further testified that there was no damage to the TSR. She further testified that no quarrel took place despite the collision of three vehicles. She further testified that traffic police had come there and took all the three vehicles inside after driving near the petrol pump. She further testified that she kept on sitting in the TSR and did not see anything as to what was happening between the drivers of Honda City Car, Tata Indica Car and the TSR driver. She testified as correct that she did not call the police by dialing number 100. When the witness was recalled for further crossexamination on 19.07.08, she refused to be subjected to crossexamination and stated that whatever was known to her she has already stated. On the submissions so made by the witness, my ld. State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 5 of 11 Predecessor vide order of the same date discharged the said witness unexamined.
Coming on to the testimony of the IO, he in his examinationinchief reiterated the prosecution case as to his reaching the spot at Petrol Pump near Akshardham Temple and then to the St. Stephen Hospital. He also reiterated as to his recording the statement of injured, making endorsement Ex.PW3/A and getting the FIR registered. He testified that he served notices Mark A to C u/s 133 M. V. Act upon all the owners of the vehicles who were involved in the accident and all the vehicles were produced by their owners in the police station and he seized all the three vehicles vide seizure memo Ex.PW3/B to D respectively. He further testified that he got conducted the mechanical inspection of all the three vehicles and collected the MI report Ex.PW3/E to G respectively. He further testified that he arrested the accused on 27.09.06 vide arrest memo Ex.PW3/J and personal search memo Ex.PW3/I respectively. In his crossexamination by ld. defence counsel, he testified that he reached the spot at about 4 pm and at that time, FIR was not registered. He further testified that he does not remember the number of the DD upon receiving of which he reached the spot. He further testified that upon reaching the spot he found all the three vehicles in an accidental condition and all the drivers present at the spot. He further testified that neither he got the spot photographed nor he obtained the photographs of the vehicles involved in the accident. State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 6 of 11 He further testified that he made inquiries from the drivers at the spot and recorded the statement of one Ravinder who was the driver of Tata Indica. The IO improved upon by stating that the driver was Shiv Kumar and not Ravinder. He further testified that the said driver informed him that the injured lady in the TSR has left claiming no action and further the matter between all the three drivers of all the three vehicles has been amicably settled. He further testified that he does not remember as to whether the driver also informed him that the accident took place when the driver of the Honda City Car applied sudden breaks in order to save the cow on the road. The IO was shown the said statement Ex.PW3/D1 which the IO admitted that the same is in his hand and is the same which has been told to him by the said driver. He further testified that the site plan Ex.PW3/D2 was prepared by him on 23.09.06 upon inspecting the spot. He testified as correct that he did not show the positioning of the vehicles or the vehicles in the site plan. He testified as correct that he has also not shown the positioning of the cow in the site plan. He testified as correct that vehicles were not seized by him on the day of incident. He further testified that no traffic police officials met him at the spot. He denied the suggestion that as the settled share of injured lady was not given to her, a false case has been registered under duress. He further denied the suggestion that he had not done any inquiry or investigation at the spot on the day of incident as it was reported to him by the parties that they have settled the matter on State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 7 of 11 their own. To the question as to how he reached the conclusion that accident was a result of rash and negligent driving of accused, the witness replied by stating that it was on the basis of statement of complainant, all the other drivers and upon making inquiry from the accused. He further testified that he also investigated as to the presence of cow on the road on the day of accident, however no material could be collected. He denied the suggestion that he had not conducted the investigation in a fair and proper manner and the accused being a TSR driver and a poor man has been falsely implicated by letting off the drivers of Honda City Car and Tata Indica Car.
4. In his statement recorded u/s 313 Cr.P.C., accused denied all the incriminating evidence against him and pleaded innocence and false implication. He also stated that he has been falsely implicated as he is poor and helpless and the big fish has been let off by the police. However, accused chose not to lead evidence in his defence.
5. Heard the ld. APP for the State and ld. defence counsel for the accused and perused the record carefully. Whereas ld. APP for the State would contend that prosecution through the testimony of complainant / PW1 Shipra Mitra has established beyond reasonable doubt that on 22.09.06 it was the accused who by driving his TSR bearing no. DL1R J 0616 in a rash and negligent manner hit the Tata Indica Car going ahead and caused injury to the complainant who was sitting in the TSR. Ld. defence counsel, on the other hand, would State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 8 of 11 contend that the defence has to be given the fullest opportunity to establish its defence either in the form of bringing its own evidence or by putting to doubt the veracity of a prosecution witness by cross examination. Ld. defence counsel would then refer to court proceedings dated 19.07.08 when PW1 Shipra Mitra appeared in the court for her further crossexamination and on her statement that she was not interested in prosecuting the matter and has nothing to depose further, was discharged unexamined by denying the opportunity to the defence to further crossexamine her, by order of Ld. Predecessor of the same date. Ld. defence counsel would also contend that even if admitting for a moment that the defence has been afforded the fullest opportunity of establishing its case, nonetheless the testimony of complainant / PW1 Shipra Mitra is in itself not sufficient to arrive at the sole conclusion of rash and negligent driving of the TSR by the accused which resulted in injury on the person of the complainant. Ld. defence counsel would then draw the attention of the Court to the crossexamination of the IO PW3 SI Abhishek Singh wherein he admitted as correct that one of the drivers available at the spot informed him that the driver of the Honda City car applied sudden breaks in order to save a cow which has come on the road. Ld. defence counsel would further draw the attention of the Court to the further crossexamination of the IO wherein he stated that he did not get the spot or the vehicles photographed on the date of incident. Ld. defence counsel would, thus, contend that prosecution has State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 9 of 11 failed to establish its case beyond reasonable doubt against the accused and the benefit thereof be accordingly given to the accused.
Having heard the respective submissions and having gone through the record, I find force in the submissions of ld. defence counsel as the witness cannot escape the crossexamination by simply stating that whatever he / she wanted to depose has already been deposed by him / her in her earlier examination / crossexamination. The defence cannot be denied the opportunity to establish its defence. Even otherwise, merely because complainant / PW1 Shipra Mitra testified that the TSR was driven at a high speed, it cannot in itself be a conclusive proof of rash and negligent driving. Prosecution through the aid of other facts and circumstances of the case has to clearly bring on record that in the given set of facts and circumstances, the high speed of the vehicle driven by accused was sufficient to arrive at the only conclusion of rash and negligent driving by the accused. It came on record through the testimony of IO PW3 Abhishek Singh that three vehicles were involved in the accident and one of the drivers namely Shiv Kumar of Tata Indica Car informed that the driver of Honda City Car applied sudden breaks in order to save a cow which has come on the road. How the vehicles were positioned on the road, what was the distance between them and what was the traffic flow at the given point of time, no clue / help is offered by any of the prosecution witnesses including the complainant. Further, it also came on record through the testimony of complainant State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 10 of 11 herself that the Tata Indica Car also hit the Honda City Car from behind. If that was the case, then why the role of the other two drivers of the other two vehicles was not looked into, testimony of none of the prosecution witnesses including the IO is offering any help. Thus, I am of the considered opinion that prosecution has failed to bring home its case beyond reasonable doubt against the accused that on 22.09.06 it was the accused who by driving his TSR in a rash and negligent manner caused injury on the person of complainant / PW1 Shipra Mitra. Thus, the prosecution case against the accused fails.
6. In view of the foregoing, I hold the accused not guilty of the offence punishable u/s 279/338 IPC. He stands acquitted of the offence. His B/B/S/B are discharged. File be consigned to record room after due compliance.
Announced in the open court on 14.03.11 (Satish Kumar Arora) Metropolitan Magistrate KKD Courts, Delhi State vs. Kishun Dev Mehto. FIR No. 448/06, PS Pandav Nagar Page No. 11 of 11