Delhi District Court
3.Title State vs . Rakesh Uniyal on 25 August, 2012
THE COURT OF SH. SUNIL KUMAR SHARMA :
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 309/2000
2.Unique Case ID No. 02401R0258162001
3.Title State Vs. Rakesh Uniyal
3(A).Name of complainant Sh. Rajinder Kumar s/o Sh. Karam
Chand Khurana, r/o House no. WZ 90B,
Ramgarh Colony, near Basai Dara Pur,
Moti Nagar Delhi.
3(B).Name of accused Rakesh Uniyal s/o Sh. R.K. Uniyal, r/o
Plot no. 94, Durga Vihar Delhi.
4.Date of institution of challan 08.01.2001
5.Date of Reserving judgment 29.06.2012
6.Date of pronouncement 25.08.2012
7.Date of commission of offence 22.09.2001
8.Offence complained of Under Section 279/338 IPC
9.Offence charged with Under Section 279/338 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Accused is convicted for the offence
punishable u/s 279/338 IPC
12. Date of receiving of judicial file in 19.05.2011
this court
FIR NO. 309/2000 State v. Rakesh Uniyal Page No.1/30
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The case of the prosecution in a narrow compass is that on 13.06.2000 at about 8.30 AM at Najafgarh Road near Govt. School, near Basai Dara Pur within the jurisdiction of PS Moti Nagar the accused was found driving a Maruti Van no. DL3CM5284 in a rash and negligent manner so as to endanger human life and personal safety of the others and while driving the aforesaid vehicle in the aforesaid manner struck the same against a two wheeler scooter no. DL3CM4931 and caused grevious injury on the person of Mrs. Ranjana and thereby committed an offence punishable u/s 279/338 IPC.
2. Accordingly, charge sheet was filed u/sec 173 CrPC, copies were supplied to the accused in compliance of section 207 cr.p.c and on the basis of the material on record, notice u/s 279/338 IPC was framed against the accused on 22.09.2001, to which the accused pleaded not guilty and claimed trial.
3. Prosecution in order to prove its case and to nail the guilt of the accused has examined as many as eight witnesses namely :
1. PW1 Smt. Ranjana, injured.
2. PW2 Sh. Rajinder Kumar, complainant.
3. PW3 ASI Devender Kumar, Mechanical Inspector.
4. PW4 HC Rajbala, Duty Officer.
5. PW5 Dr. C.M. Bansal, now MS Bhagwan Mahavir Hospital, Rohini. FIR NO. 309/2000 State v. Rakesh Uniyal Page No.2/30
6. PW6 Const. Jogender, Investigating witness.
7. PW7 Dr. Arvind Aggarwal, Maharaja Agrasen Hospital,Punjabi Bagh.
8. PW8 ASI Rajinder Singh, Investigating Officer.
PW1 Smt. Ranjana, injured has deposed that on 13.06.2000 at about 08 to 08.30 PM a maruti van hit their scooter from behind near Govt. School, Ramesh Nagar, while she was coming back to her house along with her husband from a Gurudwara. She sustained injuries and her husband suffered the minor injuries. The registration number of the van is not known to the witness but the said van was driven at a fast speed by the accused present in the court today (correctly identified). She was taken to the hospital and underwent an operation whereby a rod was affixed in her right leg. She remained confined in a bed for about one year. The accident had taken place because of the negligent driving of the Maruti Van at a fast speed by the accused.
PW2 Sh. Rajinder Kumar, the complainant is the husband of the injured and has deposed that on 13.06.2000 at about 08 to 08.30 PM a maruti van bearing no. 5284 hit their scooter from behind near Govt. School Basai Dara Pur, while he was coming back to his house along with his wife from a Gurudwara at a speed of approximately 1020 Kmph. The maruti van being driven by the accused present in the court today (correctly identified) hit their scooter from behind at their right side due to which he sustained the minor injuries and his wife sustained the FIR NO. 309/2000 State v. Rakesh Uniyal Page No.3/30 serious injuries. The van was stopped by the accused at Ramesh Nagar Red Light which was adjacent to the place of the accident. The other persons who were going on their own vehicle had also stated that the accused was driving the maruti van at a very fast speed. The accused took them to Maharaja Agrasain Hospital. Both of them were medically examined. The police came to the hospital and recorded his statement Ex. PW2/A. The accident took place because of rash and negligent driving of the accused. His scooter was seized by the police vide memo Ex. PW2/B PW3 ASI Devender Kumar is the mechanical inspector and has proved the mechanical inspection report of the vehicle as Ex. PW3/A deposing that the mechanical inspection of maruti van bearing no. DL3CN5284 was conducted by him on 16.06.2000 at the request of HC Rajinder Singh. The vehicle was not having any fresh damage on its body and was fit for the road test.
The witness has also proved the report of mechanical inspection of the scooter bearing no. DNE4931 as Ex. PW3/B deposing that the mechanical inspection of the scooter was also conducted by him on 19.06.2000 at the request of HC Rajinder Singh. The vehicle was not having any fresh damage on its body and was fit for the road test.
PW4 HC Rajbala, Duty Officer has deposed that on 13.06.2000 she was on duty at PS Moti Nagar and registered the FIR no. 309/2000 which is Ex. PW4/A upon the production of the rukka by Const. Joginder which was sent by HC FIR NO. 309/2000 State v. Rakesh Uniyal Page No.4/30 Rajinder and the copy of the FIR was handed over to the Const. Joginder for handing over to HC Rajinder.
PW5 Sh. C.M. Bansal, Examining Doctor has deposed that on 13.06.2000 the injured Ranjana was medically examined by him vide MLC no. 2083 Ex. PW5/A. The nature of the injuries are opined as grevious by Dr. Arvind Aggarwal whose signatures exists at point B of the MLC and are identified by him as he has seen writing and signing by Dr. Arvind Aggarwal in the course of his official duties.
PW6 Const. Jogender Singh, Investigating witness has deposed that on 13.06.2000 on receipt of DD no. 6A he went to the Maharaja Agrasain Hospital along with HC Rajinder Singh and collected the MLC of the injured Ranjana. The statement of Rajinder Kumar husband of the complainant was recorded by the IO. The rukka was prepared and handed over to him with the directions to got the FIR registered. The FIR was accordingly registered and a notice u/s 133 MV Act was served on 15.06.2000 upon the registered owner Sh. Rakesh Uniyal present in the court today (correctly identified). The accused came to the PS on 16.06.2000 and handed over the offending vehicle Maruti Van DL3CM5284, admitted his guilt regarding the accident on 13.06.2000 with a scooter further stating that injured was got admitted in the hospital by him. The Maruti Van of the accused was seized vide seizure memo Ex. PW6/A and Ex. PW6/B respectively. Accused was personally FIR NO. 309/2000 State v. Rakesh Uniyal Page No.5/30 searched and arrested vide PW6/C and PW6/D respectively. The accidental scooter DNE4941 was produced on 19.06.2012 by Rajinder Kumar and seized vide seizure memo Ex. PW2/B. PW7 Dr. Arvind Aggarwal has deposed that on 13.06.2000 injured Ranjana was admitted under his care in the Orthopedic department of Maharaja Agrasain Hospital. The nature of the injuries were opined as grevious on MLC no. C5348 of the injured. The same is Ex. PW7/A. PW8 ASI Rajinder Singh, IO has deposed that on 13.06.2000 on receipt of DD no. 6A he along with Const. Jogender went to Maharaja Agrasain Hospital and collected the MLC of injured Ranjana. The complainant Rajinder Kurana husband of the injured also met in the hospital and made the complaint Ex. PW2/A. On the basis of the complaint and the MLC he prepared the rukka Ex. PW8/A and got the FIR registered through Const. Jogender. Site plan Ex. PW8/B was prepared at the instance of the complainant Rajinder Khurana. A notice u/s 133 MV Act Ex. PW8/C was served on 14.06.2000 upon the registered owner of the offending Maruti Van bearing no. DL3CM5284 to which the accused Rakesh Uniyal present in the court today (correctly identified) replied that the offending van was being driven by him at the time of the accident. The accused was arrested after his personal search on 16.06.2000 vide memo Ex. PW6/D and Ex. PW6/C respectively. The DL of the accused and Maruti Van were seized vide memo Ex. FIR NO. 309/2000 State v. Rakesh Uniyal Page No.6/30 PW6/D and Ex. PW6/A respectively. The scooter no. DNE4931 of the complainant was also seized vide Ex. PW2/B. Both the seized vehicles were mechanically examined by him vide memo Ex. PW8/C and memo PW8/D. The statement of the injured Ranjana and other witnesses were recorded by the IO.
4. No other Prosecution witness was examined. Prosecution Evidence was closed and Statement of the accused was recorded on 29.09.2011 wherein the accused preferred to lead the evidence in his defence for putting a shadow on the case of the prosecution and examined his wife Smt. Anita Uniyal as DW1 in support of his case. Ld. Counsel for the accused has submitted that the prosecution has miserably failed to prove its case against the accused as no independent public witness is examined by the prosecution and the examined witnesses are the interested witnesses and their testimonies cannot form the basis of conviction of the accused. It is also alleged by the Ld. Counsel for the defence that there are material contradiction in the statement of the complainant, the injured and the MLC of the injured. The prosecution has failed to establish the exact place of the accident. It is further argued by the Ld. Counsel for the accused that prosecution is under obligation to prove specifically the rashness of the accused as the presumption of the same cannot be drawn merely on the statement of the witnesses. The deposition of the prosecution witnesses reflect the natural conduct of the accused in helping the injured person. It is further argued that the accused voluntarily took the injured FIR NO. 309/2000 State v. Rakesh Uniyal Page No.7/30 to the hospital for treatment and is falsely implicated by the complainant only for claiming a sum of Rs. 80,000/ from the Insurance company. In fact, the accused had already paid a compensation of Rs. 3,000/ to the injured for her treatment and the accused himself provided his mobile number to the injured prior to the leaving of the hospital by him.
5. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
Here it would be appropriate to refer the case law reported as "Sadhu Singh Vs. State of Punjab" 1997 (3) Crime 55 the Punjab & Haryana High Court wherein it was observed as under: " In a criminal trial, it is for the prosecution to establish its case beyond all reasonable doubts. It is for the prosecution to travel the entire distance from 'may have' to 'must have'. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused".
6. Now, the stage has been set to appreciate the evidence on record in the light of the following essential ingredients of the offence alleged to be committed by the accused.
Essential Ingredients of Offence U/sec 279 IPC and 338 IPC are as FIR NO. 309/2000 State v. Rakesh Uniyal Page No.8/30 follows :
To establish offence Uunder Section 279 IPC, the prosecution has to satisfy the following ingredients:
a) A person drives any vehicle or rides (any human being)
b) Such driving or riding is on any public way.
c) It is done in a manner so rash or negligent:
i) as to endanger human life or,
ii) as to be likely to cause hurt or injury to any other person.
To prove the offence Under Section 338 IPC, the prosecution has to satisfy the following ingredients:
a) That injury has been caused by doing any rash or negligent act.
b) That such injuries are grievous in nature.
Thus basic ingredients of the offence is rash or negligent act /driving and grievous injury on the person of injured.
So, the requirement for the applicability of section 338 IPC are that the grievous injury to any person, must have been cause by the accused by doing any rash and negligent act. In other words it must be proved that the rash and negligent act of the accused was the proximate cause of injury. There must be direct nexus between injury to the person and rash and negligent act of the FIR NO. 309/2000 State v. Rakesh Uniyal Page No.9/30 accused.
7. Therefore, one of the most common ingredients to be proved by the prosecution for the offence under sections 279/338 IPC against the accused is "
Rash and Negligent Driving".
8. Before proceeding further, it is necessary to analysis what section 279 and 338 IPC say about rash or negligent driving. The section 338 IPC does not exactly specify what is meant by word rash and negligence.
As per Straight J. Criminal rashness " is doing a dangerous or Wanton Act with the knowledge that it is so, and that it may cause injury, but without intention to cause such injury, or with the knowledge that such injury will probably be caused". The criminality lies in running the risk or doing of such an act with recklessness or indifference as to its consequences. Criminal negligence "is the gross and culpable neglect or failure to exercise reasonable and proper care and precautions to guard against any injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the consequences has arisen, it was the imperative duty of the accused persons to have adopted".
9. These observation won the approval of the Hon'ble Supreme Court in Bala Chandra Vs. State of Maharashtra (AIR 1968SC1319). In the said case, FIR NO. 309/2000 State v. Rakesh Uniyal Page No.10/30 the Hon'ble Supreme Court has observed : "Criminal negligence is the gross and culpable neglect or failure to exercise that reasonable and proper care and precautions to guard against any injury either to the public generally or to an individual in particular, which having regard to all the circumstances out of which the consequences has arisen, it was the imperative duty of the accused person to have adopted".
10. The same was again approved by the Hon'ble Delhi High Court in Meghna Singh vs. State 2012 LE (DEL) 254 and by the Hon'ble Apex Court in Prabhakaran v. State of Kerela AIR 2007 Supreme Court 2376 "....Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted.
The distinction has been very aptly pointed out by Holloway J. in these words:
FIR NO. 309/2000 State v. Rakesh Uniyal Page No.11/30
"Culpable rashness is acting with the consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the belief that the actor has taken sufficient precautions to prevent their happening. The imputability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow, but in circumstances which show that the actor has not exercised the caution incumbent upon him and that if he had, he would have had the consciousness. The imputability arises from the negligence of the civic duty of circumspection".
11. In a case of rash or negligent driving, the test is whether the prosecution has proved that :
(i)The accused was driving the vehicle in such a manner so as to create an obvious and serious risk of causing physical injury to some other person who might happens to be using the road or of doing substantial damages to the property.
(ii) In driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it.
(iii) The rash or negligent act must be the proximate cause of injury of the injured.
FIR NO. 309/2000 State v. Rakesh Uniyal Page No.12/30
12. In the matter of Chaman Lal Vs State AIR 1954, ALL 186, it was observed that Rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. There are degrees of negligence and rashness and in order to amount to criminal rashness or criminal negligence, one must find that the rashness has been of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be occasioned thereby. The criminality lies in running the risk or doing of such an act with recklessness and indifference to its consequences.
The Criminal negligence is a gross and culpable neglect, that is to say, a failure to exercise that care and failure to take that precaution which, having regard to the circumstances, it was the imperative duty of the individual to take.
13. The question whether the accused's conduct amounted to rashness or negligence directly depends on the question whether in the given circumstances, the accused has acted prudently and reasonably and has taken the expected care and precaution in the given circumstances.
In Niranjan Singh Vs State (Delhi Administration), 1997 Cri LJ 336, it was observed that the main criteria for deciding whether the driving which lead to the accident was rash and negligent is not only speed of the offending vehicle but deliberate disregard to the obligations of its driver to drive with due care and attention and taking a risk indifferent to harmful consequences resulting from it. In FIR NO. 309/2000 State v. Rakesh Uniyal Page No.13/30 case of this nature, the test is whether the prosecution has prove that :
(i) The accused was driving the vehicle is such manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road or of doing substantial damages to the property.
(ii) In driving the vehicle in that manner the accused did so without having given any thought to the possibility of there being any such risk or, having recognized that there was some risk involved, had nonetheless gone on to take it, and,
(iii) The rash or negligent act of the accused was the proximate cause of the injury of the injured.
" To impose criminal liability under section 338, Indian Penal Code, it is necessary that the injury should have been the direct result of a rash and negligent act of the accused, and that act must be the proximate and sufficient cause without the intervention of the author's negligence. It must be the causa causans; it is not enough that it may have been the causa sine qua non".
14. In Mahammed Aynudin V. state of A. P., AIR 2000 SC 2511, It was also observed: Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution for guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of the vehicle to adopt such reasonable and proper care and precaution". FIR NO. 309/2000 State v. Rakesh Uniyal Page No.14/30
15. Now, the stage is set to apply the aforesaid legal position to the facts of present case which shows that the injured PW1 Smt. Ranjana and the complainant PW2 Sh. Rajinder Kumar had specifically deposed that the accused Rakesh Uniyal was the driver of the offending Maruti Van bearing no. DL3CM5284 and stuck their scooter from behind causing injuries to the Ranjana. Further both the material witnesses have not only identified the accused in the Court but have also deposed that the accident took place due to the rash and negligent driving of the accused. The both the witnesses are cross examined at length by the defence counsel but nothing favourable to the accused could be extracted by the defence and the accused has failed to raise any credible arguments for discrediting and impeaching the credit worthiness of the witnesses. The remaining prosecution witnesses have also deposed in corroboration to the testimony of PW1 and PW2.
16. So far as the arguments raised by Ld. Defence Counsel to the effect that both the eye witnesses i.e PW1 Ranjana and PW2 Rajinder are the interested witness and their testimonies could not be relied and believed by the Court being the injured herself and the husband (relative) of the injured, In Raja Singh Vs State of Bihar, 2001 (i) PLJR 389, it was observed that witness may be called interested witness only when he or she derives same benefit from the result of litigation, but the witness who is natural one and is the only possible eye witness in the circumstances of the case, can not be set to be an interested witness. FIR NO. 309/2000 State v. Rakesh Uniyal Page No.15/30
17. Further in Kadar Behara Vs State 1993 CriLJ 378: 1993 East Cri. C 347 (Ori), it was observed that the label of interested witness is frequently used to throw cloud on the evidence of the prosecution. The probation that when eye witnesses to the occurrences were interested persons there should be corroboration to their evidence by independent evidence can not be of the universal application. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused to wish to implicate him falsely. There can be no sweeping generalization and foundation must be laid for such a criticism that an innocent person is being unnecessarily dragged to face trial. In Nimai Samal Vs State of Ossisa, 1989 CriLJ 420 (Ori), it was further observed that interestedness by itself is no ground to discard the testimony of the witness on the other hand, the fact that the witness is relation of the deceased, it would normally be presumed that he would not falsely implicate any other person as assailant except the real assailant.
18. The Court is of the considered opinion that both the witnesses examined by the prosecution are the natural witnesses to the accident and PW1 Smt. Ranjana is in fact a victim of the accident and PW2 Rajinder Kumar is the complainant as he was accompanying his wife Smt. Ranjana at the time of the accident and can not be termed as a interested witness although he is related to the victim being her FIR NO. 309/2000 State v. Rakesh Uniyal Page No.16/30 husband and his testimony does not suffer from any impeachability.
19. It is now to be considered whether the statement of PW2 Rajinder Kumar who accompanied his wife is trustworthy or otherwise. In this case it is observed that the police recorded the statement of PW2 Rajinder Kumar immediately after the accident and thus, the same greatly diminishes the possibilities of false implication of the accused as well as that of the informant being tutored. Moreover the defence has failed to brought anything on record to discredited the testimony of PW2 Rajinder Kumar. There may be minor inconsistencies but that by itself is not a sufficient ground to impeach and discredit the evidence of this witness. The only question is to be taken into consideration is whether there is a ring of truth in the testimony of PW2. The testimony of the PW2 Rajender Kumar clearly indicates that the witness has deposed in consistent manner.
20. It has been further held by Hon'ble Allahabad High Court in judgment titled Anwar Vs. State, 2011 Crl.l.J 3715 that merely because witnesses are relatives of the deceased is no ground to reject the evidence of such witness, particularly when the statements of the witnesses were recorded immediately after incident. Therefore, evidence of eye witnesses who are relatives cannot be discredited merely because of their relations with the victim.
21. The similar view was upheld by Hon'ble Apex Courts in various FIR NO. 309/2000 State v. Rakesh Uniyal Page No.17/30 judgments including in AIR 2010 SC 2467, AIR 2008 SC 462.
22. It is further pertinent to mention here that the FIR in the present case was recorded on the statement Ex. PW2/A made by PW2 Sh. Rajinder Kumar and there is no delay in recording of the said FIR. As per the FIR Ex. PW4/A the accident took place at about 08.30 AM on 13.06.2000 and the FIR was registered on the same date at about 02.00 PM. The same is also substantiated from the MLC Ex. PW5/A of the injured which shows the date and the hour of arrival as 09.00 AM on 13.06.2000 and the date and hour of the report sent to the PS as 11.45 AM at 13.06.2000.
23. The law is well settled to the effect that the testimony of the relatives of injured could not be discredited merely because they are related to the witness/interested and particularly when there is no delay in recording of the statements of the relatives.
24. Thus in view of the aforesaid analysis, the court is of the considered opinion that the testimony of PW2 Rajinder Kumar could not be discredited merely because he is the husband of the injured PW1 Smt. Ranjana who has also deposed consistently not only regarding the factum of the accident by the accused but also regarding the rash and negligent act of the accused Rakesh Uniyal.
25. Apart from that as far as the arguments raised in respect of nonjoining of public witnesses, it is wellsettled law that the case of the prosecution cannot be FIR NO. 309/2000 State v. Rakesh Uniyal Page No.18/30 thrown away merely on the ground that public witnesses have not been joined and it is also settled that the testimonies of the other witnesses could be believed if the some have some reliability and inspires the confidence of the court particularly when the complainant has duly proved his complaint ExPW1/A against the accused and have also identified the accused in the course of his deposition in the Court. Reliance is placed upon the judgment titled Ambika Prasad & Anr Vs. State reported in 2002(2) Crimes 63 SC wherein it has been held ' Independent persons are reluctant to be a witness or to assist the investigation. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses.
26. Reliance is also placed upon judgment titled Appa Bhai Vs. State of Gujrat reported in AIR 1988 SC 696 wherein it has been held 'These days people in the vicinity where the occurrence took place avoid to come forward to give evidence and civilized persons are insensitive when crime is committed even in their presence and they withdraw both from the victim and vigilance'.
27. In view of the same the non examination of the public witnesses does not seems to be fatal for the prosecution case particularly when PW1 Smt. Ranjana, the victim and her husband PW2 Sh. Rajinder Kumar, the complainant in the present case have deposed consistently and in corroboration to each other. The FIR NO. 309/2000 State v. Rakesh Uniyal Page No.19/30 testimonies of the aforesaid examined prosecution witnesses also stands corrobated not only by the deposition of the remaining prosecution witnesses but also by the surrounding circumstances of the case.
28. In fact both the witnesses have painstakingly narrated the entire fact of the accident in a consistent manner being the victim and the husband of the victim.
29. The next line of the arguments raised by the Ld. Defence counsel is that PW1 Ranjana and PW2 Rajinder Kumar in their testimony no where deposed that the accident took place due to the rash or negligent driving of the accused and the presumption of the rashness and negligence on the part of the accused cannot be drawn in the absence of the specific deposition by the witness and surrounding circumstances.
30. Here it is observed that the law is also well settled to the effect that merely using or non using of the words "rash or negligence" in the testimony would not make any difference as it entirely depends upon the facts and circumstances of each and every case and the court has to carefully appreciate the evidence on record before adjudicated about the rashness and negligence on the part of the accused. In the instant case the victim PW1 Smt. Ranjana and the eye witness PW2 Rajinder Kumar has specifically testified that the accident took place due to the rash and negligent driving of the accused and have also negated in their cross examination the suggestion of the defence counsel that the accident had not FIR NO. 309/2000 State v. Rakesh Uniyal Page No.20/30 taken place because of the negligent driving of the accused Rakesh Uniyal.
31. As per the deposition made by the victim PW1 and eye witness PW2 the victim PW1 sustained the injuries as the accused Rakesh Uniyal struck their scooter from behind with his maruti van, by driving the same at a fast speed and the accident took place because of the rash and negligent driving of the offending vehicle by the accused Rakesh Uniyal. Both the witnesses were also subjected to cross examination by the accused but nothing favourable to him has come out from the same. Moreover the witnesses have denied the suggestion that the PW2 Sh. Rajinder Kumar was himself driving the scooter at a fast speed. The witnesses have also denied the suggestion that some other vehicle suddenly came in front of their scooter and PW2 was forced to suddenly apply the brakes. The witnesses have also denied that their scooter fell down because of the failure of PW2 in maintaining the safe distance from the other vehicles.
32. It is also well settled law that there is no scope for contributory negligence and from the testimony of PW1 and PW2 it is clear that in fact the accused Rakesh Uniyal was rash or negligent in his driving as he struck his maruti van from behind against the scooter being driven by the complainant PW2 resulting into the injuries on the body of Smt. Ranjana. The natural corollary of the same is that the accused struck against the victim by violating the traffic rule of maintaining the safe distance from the other vehicle.
FIR NO. 309/2000 State v. Rakesh Uniyal Page No.21/30
33. As far as the arguments that the accused is victimized for acting as a good smartian by helping the injured by taking her to the hospital for treatment and the payment of Rs. 3,000/ for the same by the accused is concerned the same is not supported with the MLC of the injured Ranjana as the same is silent regarding the person who brought the injured to the hospital and is contradicted by the submission of the accused in his statement u/s 281 Cr.P.C. read with section 313 Cr.P.C. recorded in the court on 29.09.2011 wherein the accused had admitted that the sum of Rs. 3,000/ was not deposited voluntarily but only under the pressure of the relatives of the injured. The Court is unable to appreciate the pressure felt by the accused for depositing the money if the alleged accident was not the result of his rash and negligent act. Apart from that the accused had not produced any documentary record/evidence showing the deposition of the aforesaid amount for the treatment of the injured in the hospital by him. The admission by the accused regarding the deposition of the aforesaid amount under the pressure of the relatives of the injured clearly goes to establish that the accident took place because of the rash and negligent driving of the offending vehicle by the accused and the alleged amount was deposited by him only for amicably settling the matter with the injured and her husband and the same also reflects the natural conduct of a person after involving in these kind of the cases.
34. It is alleged by the Ld. Counsel for the accused that the accused is FIR NO. 309/2000 State v. Rakesh Uniyal Page No.22/30 falsely implicated by the injured in connivance with the police officials only for claiming the insurance amount of Rs. 80,000/ but the applicant has failed to produce any oral or the documentary evidence in support of his submissions. Further the said defence is for the first time taken by the accused only in course of the final arguments and was not raised in his statement u/s 281/313 Cr.P.C. No suggestion regarding the same was put during the cross examination to any of the prosecution witnesses cross examined by the accused. The same falsify the plea of the accused regarding his false prosecution by the complainant in connivance with the police and clearly seems to be after thought and the result of due deliberation and tutoring.
35. It is argued that prosecution could not prove the exact place of the occurrence / accident and the alleged place of the occurrence as alleged by the witnesses PW1 Ranjana and PW2 Rajinder in their deposition is in contradiction to the place of the accident mentioned by the doctor in the MLC of the injured and the site plan Ex. PW8/B allegedly prepared by the Investigating officer at the instance of the complainant. The prosecution witness PW1 Smt. Ranjana had alleged that the accident took place near Government School Ramesh Nagar whereas the MLC Ex. PW5/A indicates that the alleged accident took place on the Najafgarh Road near Ramesh Nagar Bus Stop and the site plan Ex. PW8/B indicates that the accident took place at point "A" encircled by the IO in the site FIR NO. 309/2000 State v. Rakesh Uniyal Page No.23/30 plan Ex. PW8/B. It is argued by the Ld. Defence Counsel that if we accept the correctness of the exhibited site plan then the accident must have taken place at the encircled point A in the site plan i.e. near Government school, Basai Dara Pur but PW1 the injured Smt. Ranjana had deposed that the same took place near Government School, Ramesh Nagar. Further the Ramesh Nagar area is not adjacent to the alleged Gurudwara and the Government School, Basai Dara Pur on Najafgarh Road, from Raja Garden Chowk to Moti Nagar but the same is on a road from Moti Nagar to Raja Garden Chowk and the same shows that injured was going along with her husband on their scooter on a opposite road and in the direction which is opposite to the direction of the alleged offending vehicle of the accused i.e. from Moti Nagar to Raja Garden Chowk and are not going ahead to the alleged offending vehicle at the time of the alleged accident on the road from Raja Garden Chowk to Moti Nagar. The arguments of the Ld. Counsel has failed to inspire the Court's confidence as the oral and documentary evidence on record cannot be read in pieces but must be taken in totality and a bare perusal of a site plan Ex. PW8/B shows that the same was prepared by the IO at the instance of the complainant PW2 Rajinder Kumar and the encircled point "A" shows the accidental place on the Najafgarh Road near Government School Basai Dara Pur and Gurudwara. The complainant and the injured are admittedly husband and wife and are the resident of Ramesh Nagar. The Ramesh Nagar is shown on the FIR NO. 309/2000 State v. Rakesh Uniyal Page No.24/30 opposite side of the Gurudwara in the site plan Ex. PW8/B. Both the prosecution witnesses PW1 and PW2 have deposed that the accident took place while they were coming back to their house from the gurudwara on their scooter at a speed of approximately 1020 kms per hour and the accused struck their scooter from behind while overtaking them at a fast speed in rash manner. The site plan Ex. PW8/B also shows the existence of the traffic signal (red light) near to the gurudwara and the Government school Basai Dara Pur and the resident of Ramesh Nagar are required to take a right turn from the shown traffic signal for reaching their houses from the said gurudwara and the government school of Basai Dara Pur. Therefore the same undoubtedly establishes the existence of the gurudwara and the school in the vicinity of Ramesh Nagar and lends credence to the testimony of PW1 Smt. Ranjana and PW2 Sh. Rajinder Kumar regarding their visit on the date of the accident in the said gurudwara and also to the direction of their movement on the road with their scooter and also shows that injured and complainant were going on the same directions in which the accused was driving the offending vehicle. Further the same is admitted by DW1 Smt. Anita Uniyal, wife of the accused in her deposition stating that on 13.06.2000 she was going to Shahdra along with her husband and children in their Maruti Van bearing no. DL3CM5284 from their residence Durga Vihar, Phase I, Najafgarh Road and they were going towards Shahdra via Rajouri Garden, Ramesh Nagar. Further the accused Rakesh Uniyal FIR NO. 309/2000 State v. Rakesh Uniyal Page No.25/30 had admitted in his statement u/s 281 / 313 Cr.P.C. that he took the injured to the hospital after the accident, the same not only establishes the factum of the alleged accident but also shows that accused and injured were moving in the same directions at the time of the accident. The approximate distance between the Gurudwara and the Traffic Signal as shown in the site plan Ex. PW8/B also lends credence to the deposition of PW2 Rajinder that the scooter was being driven by him at an approximate speed of 1020 kms per hour at the time of the accident. Further the complainant PW2 Rajinder Kumar had specifically deposed in his testimony that the accident took place near Government school Basai Dara Pur. The mere fact that MLC indicate the place of the accident as Najafgarh Road near Bus Stop cannot be construed to say that the accident took place on a road opposite to Gurudwara i.e. on road from Moti Nagar to Raja Garden Chowk and not on the road from Raja Garden Chowk to Moti Nagar near Government School Basai Dara Pur as the same is clearly establish by the testimony of PW2 the complainant Sh. Rajinder Kumar.
36. It is also argued that the testimony of the prosecution witnesses suffers from the major contradiction particularly regarding the place and the manner of the accident.
37. The claim of the defence that the material contradiction exists in the testimony of the prosecution witness does not find any favour with this Court as the FIR NO. 309/2000 State v. Rakesh Uniyal Page No.26/30 contradiction pointed out by the defence counsel are amply negated in the deposition of the prosecution witnesses. Further there are bound to be some discrepancies between the narration of the different witnesses when they speak on details, and unless the contradiction are of on material dimensions the same should not be used to jettison the evidence in its entirety.
38. It is settled law that the court has to see the quality of the evidence and not quantity. Similarly when the witnesses are examined in the court after a long gap minor contradictions, omissions and discrepancies are bound to occur in the testimony of the witness. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or an exaggeration, embroideries or embellishments. Merely because in one respect it is unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects also. Reliance is placed upon Sukhdev Yadav & Others Vs. State of Bihar (2001) 8SCC 86 wherein it has been held 'Once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirely appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. When the witnesses are examined after a long gap minor contradictions omissions and discrepancies are bound to occur in the testimony of witnesses' Relying upon an earlier decision in Leela Ram Vs. State of Haryana FIR NO. 309/2000 State v. Rakesh Uniyal Page No.27/30 (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirely. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. (1999) 8 SCC 649, it was also observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross FIR NO. 309/2000 State v. Rakesh Uniyal Page No.28/30 examination. Merely because there is inconsistency in evidence it is not sufficient to impair/impeach the credit of the witness. No doubt section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the Section would indicate that mere inconsistent statements are not sufficient to impeach the credit of the witness.
39. The fact that the injured Smt. Ranjana was moving on a straight road along with her husband on their scooter and was hit from behind by the offending Maruti Van making their scooter to fall would show that the offending Maruti Van was not being driven by the accused with due care and caution, but was being driven recklessly and negligently. It was being driven in a wanton fashion without any regard to the safety of the people traveling in front of it. Though, there may not be the intention of the accused to cause an accident but the way the Maruti Van was being driven on a busy road was itself indicative of his negligence and indifference to the consequences. From the aforesaid discussion, the irresistible conclusion comes to be that the offending vehicle was being driven by the accused in a rash and negligent manner so as to endanger the human life.
40. In view of the aforesaid findings the Court is of the considered view that the injured Smt. Ranjana had suffered the injuries due to the fall on account of having fallen from the moving scooter, on it being hit by the offending vehicle Maruti Van bearing no. DL3CM5284 driven on a public way by the accused FIR NO. 309/2000 State v. Rakesh Uniyal Page No.29/30 Rakesh Uniyal in a rash and negligent manner so as to endanger human life and personal safety of the others.
41. Accordingly, the accused Rakesh Uniyal stands convicted for commission of offences punishable U/s 279/338 IPC.
42. Convict be heard separately on the quantum of sentence.
Dictated, Signed and Announced in the (Sunil Kumar Sharma)
Open Court on 25.08.2012 Metropolitan Magistrate
(West10)Delhi
Tis Hazari Court, Delhi
It is certified that this judgment contains 30 pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate (West10)Delhi Tis Hazari Court, Delhi FIR NO. 309/2000 State v. Rakesh Uniyal Page No.30/30