Delhi District Court
State vs . Lokender on 18 March, 2013
IN THE COURT OF HARJYOT SINGH BHALLA :
M.M.07(SOUTH WEST), DWARKA, NEW DELHI
STATE VS. LOKENDER
FIR NO.: 34/10
P.S. : DWARKA NORTH
U.S. : 279/338 IPC
J U D G M E N T
a. Sl. No. of the case and : 02405R0594202010
date of its institution 03.08.2010
b. Name of the complainant : Sh. Vivek
c. Date of commission of offence : 23.01.2010
d. Name of the accused, : Lokender
Parentage and residence S/o Sh. Shishupal
R/o Village & PO Sultanpur,
PS Sidhpura, Dist Kanshiram
Nagar, (Eta).
e. Offence complained of : U/s 279/338 IPC
f. Plea of accused : Pleaded not guilty
g. Date when judgment reserved :18.03.2013
h. Date when judgment pronounced :18.03.2013
i. Final order : Acquitted of the offence under
Section 279/338 IPC
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Briefly stated it is the case of the prosecution that on 23.01.2010 at around 6.15 pm at Rajapuri Red Light Chowk, Dwarka, New Delhi, and within the jurisdiction of PS Dwarka North, accused was driving Innova car bearing no.HR 55 FT 9763 in a rash and negligent manner so as to endanger human life and personal safety of others and while so driving the vehilce the accused had hit a cyclist Vivek. As a result of the impact, complainant/ injured Vivek received grevious injuries on his person. State Vs. Lokender Singh 1/8 FIR no.34/10
2. After filling of the challan, accused was summoned, copies were supplied to him and notice for commission of offence punishable U/sec. 279/338 IPC was served upon and explained to the accused to which he pleaded not guilty and claimed trial. The accused was tried for the offence punishable U/s 279/338 IPC.
3. While the prosecution evidence was being recorded, the present matter was transferred to this court. The Accused was called upon to carry out admission and denial of documents under Section 294 of Cr.P.C. and documents collected by the IO during the investigation were put to him. The accused fairly and voluntarily admitted the following documents vide his statement dated 23.11.2012:
1. FIR No. 34/10, Ex.P2.
2. DD entry no. 31 A and 35 A dated 23.01.2010, Ex.P3.
3. MLC No.1212 dated 23.01.10 of DDU Hospital, report of Dr. Manoj Kumar Jha, Ex.P4.
4. Seizure memo of Cycle, Ex.P5.
5. Seizure memo of Innova Car bearing no. HR 55 FT 9763, Ex.P6.
6. Seizure memo of DL no. 1543/08 of the accused, Ex.P7.
7. Seizure memo of RC and Insurance and Permit of vehicle bearing no. HR 55 FT 9763, Ex.P8.
8. Mechanical Inspection report of the vehicle bearing No. HR 55 FT 9763 dated 26.01.2010, Ex.P9.
4. In that view of the matter, the existence of the FIR, DD Entry no.31A and 35A, injury received by the accused, the seizure memo of cycle as well as Innova car, seizure memo of the documents of the said vehicle and the mechanical inspection report of the Innova car stood proved as admitted.
State Vs. Lokender Singh 2/8FIR no.34/10
5. The main questions that need to be answered in this case are:
a) Whether there was an accident between Innova car bearing no.HR 55FT 9763 and cycle? If so;
b) Whether any injury was caused to the complainant who was on the cycle? If so, what was the nature of injuries?
c) Whether at the time of impact the accused was driving the vehicle? If so, was he driving in a manner so rash and negligent so as to endanger human life and personal safety of others? If so, what offence he had committed?
6. Prosecution examined PW1 to prove the MLC; PW2 as the injured/Complainant; PW3 as the Superdar of the bicycle; PW4 the owner of the Innova car; PW6 as the eye witness from Traffic Police; PW7 and PW8 as members of the investigation team.
7. As far as the first question is concerned i.e. a) Whether there was an accident between Innova car bearing no.HR 55FT 9763 and cycle; The same has to be answered in affirmative. When the statement of the accused was recorded under Section 313 of Cr.P.C., he admitted that accident had taken place but he was not driving rashly and negligently. He also stated that it was the victim who had suddenly jumped in front of his car and he had to apply sudden brakes and skid marks had been produced. He had stated that he was only driving the vehicle at the speed of 2030 kmph and he was crossing pursuant to green signal for traffic on his side. He also admitted that the number plate of Innova car had fallen apart due to the impact. In any event, since the DD Entry stood proved and the seizure State Vs. Lokender Singh 3/8 FIR no.34/10 memos stood proved, there is no doubt that there was an accident between the Innova car and the bicycle which resulted in injury to the PW2 Vivek. Further, there was no cross examination of PW2 and PW6 on the deposition that the Innova had in fact hit the bicycle.
8. As far as second question is concerned i.e., b) Whether any injury was caused to the complainant who was on the cycle? If so, what was the nature of injuries? PW1 had proved the MLC, PW2 had deposed that he was admitted to the DDU Hospital as he had sustained injuries due to the accident. Accused had, in any event, admitted the MLC in his statement recorded under Section 294 of Cr.P.C and the description and nature of injury therefore stood admitted. It is a settled proposition of law that where a document is admitted under Section 294 of Cr.P.C., the contents are also deemed to have been admitted to be correct. Therefore, the injured had received grevious injury/hurt.
9. As far as the third question is concerned i.e. c) Whether at the time of impact the accused was driving the vehicle? If so, was he driving in a manner so rash and negligent so as to endanger human life and personal safety of others? If so, what offence he had committed; The same shall be answered in parts.
10. As far as the first part is concerned, there is no doubt that the accused was driving the offending vehicle i.e. the Innova car. PW4, the owner of the Innova car had proved his reply to the notice under Section 133 of M.V. Act whereby he had stated that the accused was the driver of State Vs. Lokender Singh 4/8 FIR no.34/10 the vehicle. He also deposed that accused had called him and informed him that vehicle had gotten involved in the accident and had been seized by the police. The said fact is relevant being res gestae. The accused was also identified by PW2 as the driver of the vehicle in the court and no suggestion was put to either of the witnesses i.e. PW4 and PW2 that accused was not driving the vehicle. The testimony of these witnesses has not been probed nor rebutted on these aspects. Reference may be made to the decision in Sarwar Singh vs. State of Punjab AIR 2003 SC 3652. In that view of the matter, first part of this question is answered in affirmative that accused was driving the Innova car bearing no.HR 55FT 9763.
11. That leaves me with only the second part of the question unanswered i.e., whether the accused was driving the vehicle rashly and negligently and caused the accident.
12. Now PW2 had deposed in his examination in chief that he was crossing the road using the Zebra Crossing when the Innova Car had hit him. During his cross examination, he denied the suggestion that Innova Car was proceeding as the traffic signal was green for the traffic coming from the side of the said vehicle. He in fact volunteered that traffic signal was red. He deposed that he had informed the police that accused had jumped the red light. He also admitted that the Asal Tehrir Ex.PW2/A had been read over by the IO to him when it was reduced in writing. However, when he was confronted with the Asal Tehrir where nothing has been mentioned about traffic signal, he conveniently replied that he did not State Vs. Lokender Singh 5/8 FIR no.34/10 remember what he had stated.
13. He also admitted that he did not even understand what was the meaning of Zebra Crossing and when the Court questioned him, he admitted that he was never taught about the rules of crossing a road or the basic traffic rules. He also admitted that he did not see any sign on the basis of which he assumed that the spot, from where he was crossing the road, was meant to be a pedestrian crossing. Judicial notice is taken of the fact that incident was of the month of January and at about 6 pm and during winter it usually gets dark by 6 pm. In case a person just tries to cross a road from a spot other than Zebra Crossing, it may not be very easy to spot the person from a distance. In case the traffic signal was green then there would be no occasion for the accused to expect that the complainant would try to cross the road through moving traffic.
14. That leaves me with the testimony of the eye witness PW6 HC Mahesh Kumar. Now PW6 has deposed that at about 6.15 pm, the traffic was moving smoothly when he heard a loud skid sound of sudden braking. He immediately looked towards the side from where the sound came and saw an Innova car hit a cyclist. Now this witness when cross examined, admitted that he could not tell whether the traffic signal was green or red for the accused when the accident took place. He denied the suggestion that there was no Zebra Crossing on the spot of incident, however, he admitted that he had not informed the IO about Zebra Crossing and therefore the same does not form a part of his statement under Section 161 of Cr.P.C. He also admitted that he had only seen the accident and nothing before that. He State Vs. Lokender Singh 6/8 FIR no.34/10 had also deposed that the accident occurred at peak hour.
15. As far as IO is concerned i.e. PW7 ASI Vijay Pal, he admitted that he had prepared the site plan and denied that thee was no Zebra Crossing at the spot of accident. However, the photographs which have been placed on record do not show any Zebra Crossing. As per the site plan, point D, the spot where the HC Mahesh Kumar was standing is very close to the spot of accident and clearly he would have been in a position to tell whether signal was green or red on the basis of traffic flow and the presence of other vehicles immediately ahead or behind the vehicle of the accused. This witness had admitted in cross examination that accident had occurred in the peak hour for traffic movement at the spot. In my view, it has not been established that accused had jumped the red light and it is probable that he was crossing the signal when it was green.
16. The IO had admitted in the cross examination that he had not changed the position of the vehicles and had taken the photographs in the same position in which he found the vehicles. As per PW8, the companion of the IO, the place of accident was the spot where the Innova car was parked at the left side of the road and the bicycle and Innova were only 45 ft apart. He denied the suggestion that photographs had been taken by the IO after moving the Innova from the spot of accident. He deposed that Zebra Crossing was 10 ft away from the place where the bicycle was lying. Interestingly, in the site plan, bicycle is lying very close to the Zebra Crossing but in none of the photograph the Zebra Crossing is visible. From the photograph PW7/B, the distance between both the vehicles seems to be State Vs. Lokender Singh 7/8 FIR no.34/10 more that 20 to 30 ft. No photograph of the skid marks is on record, although, as per the site plan they were 44 ft long. This fact was not deposed to in the examination in chief by the IO. To my mind, the presence of Zebra Crossing, victim tried to cross the road from Zebra Crossing and accused jumping the red light have not been established by the prosecution. It is quite possible to believe from the evidence on record that accused was proceeding when the signal was green and the victim suddenly came in front of the vehicle on a bicycle and received the injury. In that eventuality, the rashness and negligence on part of the accused are not established. Even otherwise, there is no evidence on record to show that accused was driving rashly and negligently and merely because an accident has occurred, accused cannot be held guilty. Accordingly, accused has to be given benefit of doubt and his rashness and negligence is not established. Accordingly, accused is acquitted.
Announced & dictated in (Harjyot Singh Bhalla)
the open Court on 18.03.2013 Metropolitan Magistrate
Dwarka Courts: New Delhi
State Vs. Lokender Singh 8/8
FIR no.34/10