Delhi District Court
State vs Nitin Kumar on 12 September, 2023
IN THE COURT OF SH. AASHISH GUPTA, ACMM
NORTH EAST KARKARDOOMA COURTS, DELHI
CR Case No: 3120/2022
STATE Vs. NITIN KUMAR
FIR No: 72 /2021
PS: Sonia Vihar
1. FIR No. of the case : 72/2021
2. Date of commission of offence : 29.03.2021
3. Date of institution of the case : 13.07.2022
4. Name of the complainant : Dheeraj
5. Name of accused & address : Nitin Kumar
S/o Khasitu Singh
R/o Village Tikri, Patti,
Mannuwana, Distt. Bagpat,
U.P.
6. Offence charged with : U/s 279/337/338 IPC
7. Plea of the accused : Pleaded not guilty
8. Date of final arguments : 12.09.2023
9. Final Order : Acquitted
10. Date of Judgement : 12.09.2023
JUDGEMENT:
1. Prosecution has alleged that on 29.03.2021 at 7:45 PM at Main State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 1/10 Pusta Road, Near Chauhan Patti Village, Delhi within the jurisdiction of PS Sonia Vihar, accused Nitin Kumar was found driving a vehicle Car bearing No. DL1CAA 8551 in a rash and negligent manner, so as to endanger the human life. As per prosecution, accused while driving the said vehicle in the aforesaid manner, hit against one motorcycle bearing No. UP14AR 6826 as a result of which rider/complainant Dheeraj alongwith pillion riders fell down alongwith the motorcycle and due to the said accident, complainant Dheeraj and Varsha (minor) sustained simple injuries, while Khushal and Paras (both minors) sustained grievous injuries on their person. Thus, accused, as per prosecution had committed offences U/s 279/337/338 IPC. FIR was registered by police for the said offences and accused was arrested and released on police bail. Charge-sheet was filed after investigation.
2. Accused appeared before this Court and after compliance under Section 207 Cr.P.C, charge U/s 279/337/338 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
3. To discharge its onus, prosecution examined two witnesses. A brief summary of prosecution evidence is as follows: -
Sr.No. Witness name Witness Remarks no.
1. Dheeraj PW-1 He is the complainant/victim in this case.
He inter-alia deposed about the facts of the case. He claimed that on 29.03.2021 he State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 2/10 alongwith his wife and three children were going to meet his bother in Sabhapur on motorcycle of his friend Dal chand, bearing UP registration number. He further claimed that at around 7:45 PM when he was taking turn for Sabhapur Village before Chauhan Patti, a car coming from the side of Tronica City hit his motorcycle and the said car was being driven in very rash and negligent manner at a very high speed. He claimed that due to the same impact, he and his wife and 3 children namely Paras, Khushal and Varsha fell down sustained injuries on their person. He also claimed that the driver of the offending vehicle was apprehended by the public persons when accused was trying to flee away. He identified the accused in the Court. He also identified the photographs of both the vehicles in question involved in the accident.
2. SI Krishan PW-2 IO of this case.
Pal
4. Prosecution has also relied upon the following documents:-
Sr. No. Item/documents Exhibits
1. 4 photographs of the vehicle bearing No.Ex. P1 (colly) DL1CAA 8551.
2. 4 photographs of motorcycle bearing No UP14AREx. P2(colly) 6826.
3. Rukka of the case. Ex. PW2/A
4. Seizure memo of both the vehicles. Ex. PW2/B and Ex. PW2/C State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 3/10
5. Notice U/s 133 MV Act served upon the owner of Ex. PW2/D the offending car alongwith reply.
Notice U/s 133 MV Act served upon the owner Ex. PW2/E of motorcycle in question alongwith reply.
6. Arrest memo and personal search memo of Ex. PW1/F and accused. Ex. PW1/G respectively.
Following documents were admitted by
accused U/s 294 Cr.P.C
7. Copy of FIR (without admitting the contents Ex. A1 therein)
8. GD No. 0065A dated 29.03.2021. Ex. A2
9. MLC No. 17109 of Paras. Ex. A3
10. MLC No. 17132 of Varsha. Ex. A4
11. MLC No. 17108 of Kushal. Ex. A5
12. MLC No. 17131 of Dheeraj. Ex. A6
13. 2 Xray plates and X-Ray reports of Paras and Ex. A7 (Colly) Kushal.
14. Notice U/s 133 MV Act served upon the owner Ex.A8 of car bearing No. DL1CAA 8551 alongwith reply.
15. Notice U/s 133 MV Act served upon the owner Ex. A9 of motorcycle bearing No. UP14AR 6826 alongwith reply.
16. Mechanical inspection report of vehicle No. Ex.10 DL1CAA 8551.
17. Mechanical inspection report of vehicle No. Ex. A11 State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 4/10 UP14AR6826.
18. Superdarinama of vehicle bearing No. UP14AR Ex. A12 (colly) 6827 alongwith punchnama.
19. Superdarinama of vehicle bearing No. Ex. A13 DL1CAA8551.
5. Thereafter, prosecution evidence was closed.
6. Accused was examined u/s 313 Cr.P.C and he submitted that he has been falsely implicated in the present case. He submitted that on the alleged date, time and place, he was passing by the place of accident and he stopped his vehicle to see the incident. He submitted that no accident had occurred with his vehicle. He further submitted that he has been falsely implicated in the present case by the police in connivance with the complainant. He has not led any evidence in defence.
7. I have heard final arguments and have perused the record.
8. In this case accused has faced trial under section 279/337/338 IPC. As stated above accused is alleged to have been driving his car in a rash and negligent manner and as per prosecution, had hit a motor cycle leading to simple injury to the complainant and his minor daughter and grievous injuries to minor children of the complainant. It was argued by the Ld. APP for the State that considering the testimony of the complainant PW-1 State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 5/10 wherein he has identified the accused as the person driving the offending vehicle and the manner in which the accident is narrated to have taken place, as per Ld. APP, the accused should be convicted for the alleged offences.
9. Per contra counsel for the accused argued that as per the medical evidence placed on record the complainant himself was found in drunken condition. It is his argument that neither the complainant had valid driving license nor was he wearing any helmet when the accident purportedly took place. It is also the argument of the counsel for the accused that admittedly the complainant himself was having five persons on his motorcycle (two adults and three minor children). It is the argument of the counsel for the accused that as per the evidence of PW-1, road where the accident took place was in a dilapidated condition and owing to five persons traveling on a motorbike in question, complainant possibly got disbalanced from the bike in question leading to injuries to him and his children.
10. It is the argument of the counsel for the accused that the accused herein was co-incidentally passing from the area and was falsely implicated by the complaint as the person who had caused the accident. It is argued by the Counsel for accused that considering the aforesaid fact, his client should be acquitted in this case.
11. I have gone through the entire record and have given thoughtful consideration to the arguments of both the parties before this court. As per the MLC of complainant, he had a smell of alcohol in his breath when he State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 6/10 was examined by the treating doctor on 29.03.2021 at about 6:54 PM. It means that as per record, Dheeraj/complainant was drunk when the accident took place. Again as per prosecution's own case, at least five persons (two major and five minor children) were traveling on the bike of the complainant when the accident took place.
12. Again, it has come in the cross examination of complainant that he did not have a valid driving license for driving any motor vehicle on road and was not even wearing an helmet at the time of the accident. Simply put, each and every driving rule which could have been violated by the complaint at the time of the accident, was being violated by him when purportedly the accident took place. As per record, the complainant was not only drunk, he was carrying five individuals on a motorbike and was without any valid driving license at the time of accident. This shows that the complainant himself was acting rashly and negligently while driving motor vehicle without license and that too in a drunken condition when the accident took place. The aforesaid facts have been recorded to bring on record the conduct of the complainant while driving the vehicle and his evidence shall have to be considered in that light.
13. Now if the complainant himself was drunk at the time of the accident and was driving the vehicle without having a valid driving licence, there is a possibility that he may have lost balance of his bike because of the influence of alcohol and thereafter he fell on the road leading to injury to himself and his children. Even if I overlook the aforesaid fact and go by the State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 7/10 prosecution's case that the accused had hit the bike of the complainant, it does not explain why the wife of the complainant Dheeraj who was admittedly with him when the accident took place and was neither injured nor unfit to give statement, produced before this Court as a witness or ever examined by the police. Wife of Dheeraj must have witnessed the accident when it took place and was thus, was a material and crucial witness for the prosecution. Surprisingly, she was never examined during any stage of investigation or thereafter. No reasons is forthcoming for the said omission. In my opinion, her testimony was necessary to be recorded, which would have given credence to the facts stated by the complainant. More so when the complainant himself was under the influence of alcohol and thus examining her would have corroborated the testimony of the complainant. Omission to do so is surprising and it weakens the case of the prosecution.
14. Further still, as per the first DD entry about the accident Ex.A2 bearing number 65A dated 29/3/2021, police was informed about the accident by a duty Constable at JPC hospital. It is recorded therein that the accident was caused by a white color car. Now, as per record, the color of the offending vehicle in this case is bluish Gray (see exhibit P1 colly). The color of the offending car as recorded in exhibit A2 is in complete contradiction to the color of the car as per the prosecution. There is no explanation forthcoming regarding the same.
15. Again, as per the testimony of PW1 Dheeraj the accident in question took place around 7:45 PM on 29/3/2021. The said MLCs in State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 8/10 question have time of their preparation much prior to 7:45 PM. There are four MLCs on record and three of them have their time of preparation recorded as 4:17/4:18PM, while one MLC has its time as 6:54 PM. It means that the said MLCs had already been prepared even before the accident took place at 7:45 PM ! This is impossible. If the accident took place at 7:45 PM, then the MLCs would have been prepared subsequently, that is after 7:45 PM. It is not possible that the accident in question took place at 7:45 PM and the MLCs of the victims were already prepared. It is only possible if the accident took place before 4:17 PM i.e is the earliest time recorded in MLC exhibit A3 and exhibit A4. Now if the accident took place before 7:45 PM then it is for the prosecution to explain as to why PW-1 claimed that the accident took place at 7:45 PM. No explanation was given by the prosecution in this regard. Be that as it may, it means that complainant has not been truthful about the time of the accident and it is possible that he, under the influence of alcohol, named the accused.
16. I may record herein that as per the complainant, the accused herein was apprehended at the spot itself by the public when he was trying to flee away. But this fact is contrary to the record. It is not the case of the prosecution that the accused herein was caught by the public at the spot and in fact, as per the arrest memo, accused was arrested on 02/4/2021 i.e three days after the accident. Thus not only the time of the accident is wrongly stated by the complainant, his claim that the accused was apprehended at the spot is also contrary to the record. If I consider the aforesaid contradiction in State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 9/10 the testimony of PW-1 coupled with his own conduct in driving his motorcycle without a valid driving license and also considering the first DD entry exhibit A2 wherein the color of the offending car is recorded to be white, there is every possibility that the car driven by the accused herein is not the car which caused the accident or the accused has been falsely implicated in this case.
17. In my opinion, prosecution has failed failed to show that the ac- cused herein was the driver of the offending car which caused the accident or even if it is assumed that the accused was driving the offending vehicle, he was rash and negligent in driving this same. If that be the case, this is a fit case for honorable acquittal of accused with respect to all charges, as story of the prosecution is riddled with loopholes and benefit of the same shall necessarily have to given to accused. Accordingly, accused is entitled to be acquitted of all the charges i.e under section 279/337/338 IPC. It is ordered accordingly Digitally signed by AASHISH GUPTA AASHISH Date:
GUPTA 2023.09.12
04:57:35
+0530
ANNOUNCED IN OPEN COURT AASHISH GUPTA
On 12.09.2023 ACMM (NORTH EAST)
KARKARDOOMA COURTS,
DELHI
State Vs. Nitin Kumar FIR no. 72/2021 Sonia Vihar Page no. 10/10