Delhi District Court
3.Title State vs . Vijay Kumar on 7 December, 2012
THE COURT OF SH. SUNIL KUMAR SHARMA :
METROPOLITAN MAGISTRATE
TIS HAZARI COURTS : DELHI
1.FIR No. 361/00
2.Unique Case ID No. 02401R0329972003
3.Title State Vs. Vijay Kumar
3(A).Name of complainant Sh. Ashok Kumar, s/o Sh. Bishi Ram, r/o
Village Madampur, PS Baldev, PO
Mahabal, Distt. Mathura, U.P.
Presently residing at WZ45D, Ratan
Park, Basai Dara Pur, Delhi.
3(B).Name of accused Vijay Kumar, s/o Sh. Kartar Singh, r/o
H.no. 35, Jaipuria Mill, Sabzi Mandi,
Delhi.
4.Date of institution of challan 11.05.2001
5.Date of Reserving judgment Pronounced on the same day
6.Date of pronouncement 07.12.2012
7.Date of commission of offence 10.07.2000
8.Offence complained of Under Section 279/337 IPC
9.Offence charged with Under Section 279/337 IPC
10.Plea of the accused Pleaded not guilty
11.Final order Accused is Convicted for the offence
punishable u/s 279/337 IPC
12. Date of receiving of judicial file in 03.11.2010
this court
FIR NO. 361/00 State v. Vijay Kumar Page No.1/23
BRIEF REASONS FOR THE DECISION OF THE CASE:
1. The criminal justice administration system was set into motion in the present case by complainant Ashok Kumar by making a complaint in PS Moti Nagar regarding the injuries inflicted on his person by the accused Vijay Kumar by driving the offending blue line bus bearing no. DL1P5992 of route no. 228 in a rash and negligent manner on a public way.
2. The matrix of the prosecution case in a narrow compass is that on 10.07.2000 at about 07.15 AM at Najafgarh Road near Bali Nagar red light within the jurisdiction of PS Moti Nagar, the accused Vijay Kumar was found driving the blue line bus bearing registration no. DL1P5992 in a rash and negligent manner on a public way so as to endanger human life and personal safety of the others and while driving the aforesaid vehicle in the aforesaid manner caused simple injuries on the person of complainant Ashok Kumar and thereby committed an offence punishable u/s 279/337 IPC.
3. 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 for the offence punishable u/s 279/337 IPC was framed against the accused on 04.03.2003, to which the accused pleaded not guilty and claimed trial.
4. Prosecution in order to substantiate, prove its case and to nail the FIR NO. 361/00 State v. Vijay Kumar Page No.2/23 guilt of the accused has examined as many as five witnesses namely :
1. PW1 HC Anita, Duty Officer.
2. PW2 Ashok Kumar, Complainant.
3. PW3 ASI Devender Kumar, Mechanical Inspector.
4. PW4 Ct. Ombir, Investigating witness.
5. PW5 Dr. Vivek Aggarwal, CMO, DDU hospital.
PW1 HC Anita is the Duty Officer, and have proved the registration of the FIR no. 361/00 Ex. PW1/A. PW2 Ashok Kumar, Complainant, has deposed that on 10.07.2000 at around 07.00 - 07.15 AM he was going towards Rajouri Garden from Najafgarh road for selling the fruits. Accused came driving one bus no. 5992 of route no. 228, from behind and hit against him due to which his rehdi got damaged and all the fruits got perished. His right hand was scratched / smeared in this accident. Blood started coming out of bone. Accused and the conductor of the bus took him to the Khetrapal Nursing Home in a rickshaw. The Doctor referred him to go to DDU Hospital. His brother Satish Kumar also reached at the spot. His hand was stitched and after giving the treatment he was discharged from the hospital. He was on the right side of the road when he was hit by the bus. The accused was at fault as there was lot of space on the road to cross his rehdi. Police recorded his statement in the DDU hospital and the same is Ex. PW2/A. Accused had not given any money for FIR NO. 361/00 State v. Vijay Kumar Page No.3/23 medical treatment.
The witness was cross examined at length by the Ld. Defence Counsel. PW3 ASI Devender Kumar is the mechanical inspe ctor and has proved the mechanical inspection report of the offending vehicle as Ex. PW3/A deposing that the mechanical inspection of bus bearing no. DL1P5992 was conducted by him on 11.07.2000 at the request of SI Rajbeer. The vehicle is fit for road test.
The witness was not cross examined.
PW4 Ct. Ombir, Investigating witness, has deposed that on 10.07.2000 on receipt of DD no. 42B he along with SI Rajbeer Singh went to Najafgarh Road near Bali Nagar red light and found one blue line bus bearing no. DL1P5992 of route no. 228 and one rehdi in the accidental condition. No eye witness was found at the spot. IO went to the hospital leaving him on the spot. IO came back with the statement of Ashok Kumar and accused Vijay Kumar, who is present in the court today, and handed over him the rukka at 11.30 AM for registration of the FIR. He accordingly got the FIR registered and came back to the spot with the copy of FIR and original rukka and presented the same to the IO. The bus and rehdi were taken into the possession vide memo Ex. PW4/A. Accused after personal search memo Ex. PW4/B was arrested vide memo Ex. PW4/C. The driving license of the accused was taken into the possession vide seizure memo Ex. FIR NO. 361/00 State v. Vijay Kumar Page No.4/23 PW4/D. The witness has correctly identified the accused.
The witness was cross examined by the Ld. Counsel for the accused. PW5 Dr. Vivek Aggarwal, CMO, DDU Hospital has deposed that on 10.07.2000 he was posted at DDU hospital as CMO and on that day injured Ashok s/o Sh. Bisiram was brought in the casualty with alleged history of RTA. Dr. Manoj had prepared the MLC after examining the injured under his supervision and the MLC is Ex. PW5/A bears his signatures at point X and also of Dr. Manoj at point A. He can identify the handwriting and signatures of Dr. Manoj as Dr. Manoj prepared the same in his presence. The patient was referred to Ortho Department for further treatment.
The witness was not cross examined by the Ld. Counsel for the accused.
5. No other Prosecution Witness was examined. The IO SI Rajbir Singh is stated to have expired on 10.06.2011 and his name was deleted from the list of the witnesses on 04.11.2011. Prosecution Evidence was closed and statement of the accused was recorded on 17.02.2012 wherein the accused stated that he has been falsely implicated and that nothing incriminating was recovered from his possession. However, accused declined to lead evidence in his defence.
6. Ld. Counsel for the accused has submitted that the prosecution has miserably failed to prove its case against the accused as no independent public FIR NO. 361/00 State v. Vijay Kumar Page No.5/23 witness is examined by the prosecution except the complainant and the same 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/injured and other prosecution witnesses 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.
7. I have heard Ld. APP for the State and Ld. Counsel for the accused. I have gone through the entire record carefully.
8. It is pertinent to observe that the accused is facing the trial in a criminal case registered against him in PS Moti Nagar and the Cardinal Principle of Criminal Law is that " 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".
9. 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.
FIR NO. 361/00 State v. Vijay Kumar Page No.6/23
Essential Ingredients of Offence U/sec 279 IPC and 337 IPC are as 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 337 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 simple in nature.
Thus basic ingredients of the offence is rash or negligent act /driving and the injury on the person of injured.
So, the requirement for the applicability of section 337 IPC are that the injury to any person, must have been caused 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 FIR NO. 361/00 State v. Vijay Kumar Page No.7/23 direct nexus between injury to the person and rash and negligent act of the accused.
10. In a nutshell to prove the case against the accused the prosecution was under the obligation to prove the following essential ingredients of the offence punishable u/s 279/337 IPC:
1. Identity of the accused being the driver of the offending vehicle.
2. That the alleged accident is the result of rash and negligent driving of the accused at a public place.
3. The rash and negligent driving of the accused resulted in the injuries on the body of the injured.
11. I shall now proceed to consider the oral and documentary evidence produced by the prosecution in support of their case to find out whether the prosecution has been successful in bringing the cogent evidence for justifying the conviction of the accused or whether the accused has been able to cast a shadow on the prosecution case for securing his acquittal in the present case.
12. I shall discuss the evidence visavis each essential ingredients of the offence alleged against the accused.
IDENTITY OF THE ACCUSED AND THE OFFENDING VEHICLE
13. The first and foremost ingredients for proving the case against the accused is the establishment of the identity of the accused by the prosecution being FIR NO. 361/00 State v. Vijay Kumar Page No.8/23 the one who caused the present accident. The accused is identified by PW2 the complainant/injured Ashok Kumar, PW4 Ct. Ombir, Investigating witness to be the one who caused the accident. The PW2 Ashok Kumar the complainant had categorically deposed in his examination that the accused came on driving the bus no. 5992 of route no. 228 and hit him from behind. The accused and the conductor of the bus took him to the Kheterpal Hospital in a rickshaw and further clarified in his cross examination that the accused had caused the accident by driving the aforesaid vehicle. The complainant have also deposed that consequent to the strike of the bus from behind blood came out of his bones and his right hand was scratched / smeared. Further the accused in his statement u/s 281/313 Cr.P.C. had also admitted the factum of the driving the aforesaid offending blue line bus at the aforesaid time and place and has also admitted the factum of the accident whereby the injured sustained the injuries but with a ridder that the accident was caused because of the negligence of the injured as the injured suddenly came in front of his bus when he was crossing the green light.
14. Apart from it the prosecution has also proved the mechanical inspection of the offending blue line bus bearing no. DL1P5992 by examining ASI Devender as PW3. The witness had proved the mechanical inspection report of the offending blue line bus as Ex. PW3/A and has deposed that the front bumper was scratched and was slightly dented. The same also goes to shows that the offending blue line FIR NO. 361/00 State v. Vijay Kumar Page No.9/23 bus being driven by the accused at the relevant point of time was involved in the accident as the accused has failed to explain the aforesaid dented body and the scratch marks on the bumper of the blue line bus.
15. The deposition of the injured coupled with the admission of accused in his statement u/s 281 Cr.P.C. r/w 313 Cr.P.C., further coupled with the mechanical inspection report Ex. PW3/A goes to establish beyond reasonable doubt the involvement of the accused and the offending blue line bus in the alleged accident and the presence of the accused on the spot and his identification on the spot by the injured.
16. Ld. Counsel for the accused had also argued that the accused was not driving the offending vehicle and the injured was not hit by his blue line bus. The aforesaid defence of the accused seems to be ill founded and an after thought as the accused in his statement u/s 281/313 Cr.P.C. has admitted the factum of the accident whereby the injured sustained the injuries but with a ridder that the accident was caused because of the negligence of the injured as the injured suddenly came in front of his bus when he was crossing the green light. Apart from it the complainant PW2 had specifically deposed in his cross examination that the accident is caused by the accused and is not caused by any other vehicle. The Hon'ble Apex Court in Bhajjan Singh @ Harbhajan Singh & others v. State of Haryana 2011 AIR (SC) 2552 have observed that the accused cannot raise an FIR NO. 361/00 State v. Vijay Kumar Page No.10/23 altogether new defence in the final arguments without cross examining the witnesses on the relevant aspect and without giving an opportunity to the witnesses to explain the same. In view of the aforesaid discussion particularly the admission of the accused in his statement u/s 313 Cr.P.C. I do not find any force in the aforesaid arguments of the Ld. Defence Counsel.
RASHNESS OR NEGLIGENCE
17. The other most essential ingredients to be proved by the prosecution for the offence under sections 279/337 IPC against the accused is "Rash and Negligent Driving".
18. Before proceeding further, it is necessary to analysis what section 279 and 337 IPC say about rash or negligent driving. The section 337 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 FIR NO. 361/00 State v. Vijay Kumar Page No.11/23 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".
19. These observation won the approval of the Hon'ble Supreme Court in Bala Chandra Vs. State of Maharashtra (AIR 1968SC1319). In the said case, 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".
20. 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 FIR NO. 361/00 State v. Vijay Kumar Page No.12/23 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:
"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".
21. 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.
FIR NO. 361/00 State v. Vijay Kumar Page No.13/23
(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.
22. 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.
23. 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.
FIR NO. 361/00 State v. Vijay Kumar Page No.14/23
24. In the case of Rathna Shalvan v. State of Maharashtra 2001 1AD (CR) (SC 433) the Hon'ble Apex Court also has approved the aforesaid definition of criminal rashness and the criminal negligence in the aforesaid terms.
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 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 337, 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 FIR NO. 361/00 State v. Vijay Kumar Page No.15/23 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".
25. 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".
Negligence is a tort as well as a crime and can be used for the purpose of fastening the defendant with the liability under a civil law and at times under the criminal law. To fasten the liability in a criminal law, the degree of the negligence has to be higher than that of negligence to fasten the liability for damages in civil law. The essential ingredients mens rea cannot be excluded from the consideration when a charge in a criminal court consist of criminal negligence. In order to hold the existence of criminal rashnesses or criminal negligence, it shall have to be found out that the hazard was of such a degree that the injury was most likely imminent. The element of criminality is introduced by the accused having run the risk of doing such an act with recklessness and indifference to the consequences.
FIR NO. 361/00 State v. Vijay Kumar Page No.16/23
26. Now, the stage is set to apply the aforesaid legal position to the facts of present case and the testimony of the complainant/injured is most relevant for proving the rashness and negligence of the accused. The complainant Ashok Kumar is examined as PW2 and has categorically deposed that on 10.07.2000 at around 07.00 - 07.15 AM he was going towards Rajouri Garden from Najafgarh road for selling the fruits. Accused came driving one bus no. 5992 of route no. 228, from behind and hit against him due to which his rehdi got damaged and all the fruits got perished. His right hand was scratched / smeared in this accident. Blood started coming out of bone. Accused and the conductor of the bus took him to the Khetrapal Nursing Home in a rickshaw. The Doctor referred him to go to DDU Hospital. His brother Satish Kumar also reached at the spot. His hand was stitched and after giving the treatment he was discharged from the hospital. He was on the right side of the road when he was hit by the bus. The accused was at fault as there was lot of space on the road to cross his rehdi. Police recorded his statement in the DDU hospital and the same is Ex. PW2/A. Accused had not given any money for medical treatment.
27. The testimony of this witness clearly shows that the accused has hit his blue line bus from behind. The presence of the blue line bus on the spot is not in dispute as the accused himself has admitted in his statement u/s 281/313 Cr.P.C. that the accident took place due to the negligence of the injured as the injured came FIR NO. 361/00 State v. Vijay Kumar Page No.17/23 in front of his bus when he was crossing his green signal. The same shows that the accident took place near the traffic signal. I have perused the deposition of PW2 complainant / injured Ashok Kumar and I find that the same is quite consistent, truthful, creditworthy and corroborated by other evidences. This witness has withstood the cross examination and there is nothing in it which can impeach his credit or discard his testimony or to doubt the veracity of the deposition. This witness has correctly deposed about the date of the incident, the manner in which the accident occurred and the presence of the witness on the spot is proved therefore, in view of the aforesaid evidence and the case law discussed above this is sufficient to arrive at a conclusion that the act of accused in hitting from behind amounts to the rash and negligent act. Therefore, there is no doubt that the accused has hit the complainant from behind. Moreover, hitting of any vehicle from behind raises a presumption of rashnesses and negligence because the stationery vehicle / person in that case do not have any contributory negligence.
28. In similar kind of the cases the Hon'ble Delhi High Court in Parasnath v. State of Delhi has uphold the conviction by observing in the similar kind of the fact that "I am not in agreement with the submissions of Ld. Counsel for the appellant merely because the witness did not use the word rashness or negligence in his testimony and instead used the word high speed, cannot be taken that the FIR NO. 361/00 State v. Vijay Kumar Page No.18/23 appellant was not driving the vehicle in a rash and negligent manner. What is important is to find out if the driver of the offending vehicle was driving in public place rashly and in negligent manner so as to endanger human life or put forward to cause hurt or death to any other person. In the case, in hand the appellant hit the scooterist from behind. It is not the case of appellant that the scooterist had applied break all of a sudden and therefore, the appellant was taken unaware which lead the appellants truck hitting the scooter from behind. Act of negligence can be clearly attributed to the petitioner in this case as he is solely responsible for causing this accident without any fault of the scooter. Rashlessness or negligence can be taken from the manner in which the accident had taken place. Even the site plan prepared by the investigator which was Ex.PW5/C speaks about the negligence attributed to the petitioner. The appellant also admitted in his statement u/s 313 Cr.PC of the Code of Criminal Procedure that accident had taken place with his truck but denied that it was due to negligent and rash driving on his part because the offending vehicle in the case cited above hit from behind, the conviction was upheld".
29. Hitting from behind raises the presumption of the rashness as no fault can be attributed to other vehicle or other person unless otherwise proved.
30. It is a common or garden principle that while driving a vehicle like the bus the driver of the vehicle should be very careful because the nature of the FIR NO. 361/00 State v. Vijay Kumar Page No.19/23 vehicle is such that if the same is not properly controlled, it can turn into a monster with huge casualties. The accused was fully aware that the injured was also using the road with his fruit rehdi and it was his duty to be careful while negotiating his way in the crossing the injured on the road. The same coupled with the aforesaid discussion proves the rash and negligent driving of the accused. Under section 279 IPC what constitute an offence is the rash and negligent driving of the vehicle or riding on a public way so as to endanger human life or to be likely to cause hurt or injury to another person.
31. Ld. Defence Counsel has argued that the deposition of the complainant/injured PW2 suffered from various contradictions and the complainant has not deposed in terms of his complaint Ex. PW2/A and had given an improved statement in the court and the same cannot be believed being an outcome of the after thought. The submission of the Ld. Counsel is devoid of any merit and the same is liable to be rejected. As the Hon'ble Apex Court in State of UP v. Naresh and others AIR 2011 SC (Criminal) 761 has observed that the evidence of the injured witness must be given the due weight age being a stamped witness, thus his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailants in order to falsely implicate some one else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained the injuries at the time and place of the FIR NO. 361/00 State v. Vijay Kumar Page No.20/23 occurrence and this lends support to his testimony that he was present during the occurrence. Thus the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailants to go unpunished merely to falsely implicate a third person for the commission of the offence. Thus the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. Therefore, the evidence of the eye witness could not be brushed aside due to minor variations. Mere contradictions on the trivial matters could not render his depositions untrustworthy. Further, it is well settled principle of law that the improvements made by the witness in his testimonies will be fatal only if the same changes the basic / fundamental character of the case. The testimony of the witness can be believed where the witness has only tried to explain something and the same does not changes the fundamental nature of the case. In the present case there seems to be no contradiction in the deposition of the complainant. In view of the aforesaid observations the submissions of the counsel does not find any favour with the court as the aforesaid deposition of the witness cannot be assumed to change the basic / fundamental nature of the case.
CAUSE OF INJURIES
32. The third most essential ingredients to be proved by the prosecution for securing the conviction of the accused for the offence punishable u/s 279/337 IPC FIR NO. 361/00 State v. Vijay Kumar Page No.21/23 is that the injuries inflicted on the person of the injured are the direct result of rash and negligent act of the accused. The prosecution had alleged that the complainant / PW2 Ashok Kumar had suffered the simple injuries on his body because of the impact of the strike of the offending scooter of the accused. The complainant Ashok Kumar is examined as PW2 and had deposed regarding the injuries inflicted on his body consequent to the alleged accident.
In the course of the deposition of the witness PW2 Ashok Kumar, the Court has also observed that the injured has an apparent injury on his right hand.
33. In support of its case the prosecution has also examined Dr. Vivek Aggarwal as PW5 who has proved the MLC as Ex. PW5/A. The MLC also shows the nature of the injuries inflicted upon the body of the complainant consequent to the road traffic accident. The witness was not at all cross examined by the counsel for the accused and the testimony of the witnesses unrebutted. The law is well settled that if a witness is not cross examined on a particular issue by the opposite party, the evidence of the witness ought to be accepted. The reliance is placed on the judgment of Sarwan Singh vs. State of Punjab (2003) 1SCC 240 wherein it was observed that "it is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross examination it must follow that the evidence tendered on that issue ought to be accepted". FIR NO. 361/00 State v. Vijay Kumar Page No.22/23
34. In view of the aforesaid findings the Court is of the considered view that the prosecution has proved beyond reasonable doubts that the accused Vijay Kumar has inflicted the injuries on the body of the injured Ashok Kumar, PW2 by driving the blue line bus bearing no. DLIP5992 in a rash and negligent manner on a public way and thereby committed the offence punishable u/s 279/337 IPC.
35. Accordingly, the accused Vijay Kumar stands Convicted for commission of offence punishable U/s 279/337 IPC.
36. Convict be heard separately on the quantum of sentence.
37. Copy of judgment be supplied to the convict free of cost.
Dictated, Signed and Announced in the (Sunil Kumar Sharma)
Open Court on 07.12.2012 Metropolitan Magistrate
(West10), Tis Hazari Court,
Delhi
It is certified that this judgment contains 23 (twenty three) pages and each page bears my signature.
(Sunil Kumar Sharma) Metropolitan Magistrate (West10),Tis Hazari Court, Delhi FIR NO. 361/00 State v. Vijay Kumar Page No.23/23