Delhi District Court
Reference Is Also Made To The Case Titled ... vs . State" on 9 November, 2022
IN THE COURT OF SHRI SHUBHAM DEVADIYA,
METROPOLITAN MAGISTRATE: WEST-05
TIS HAZARI COURTS, DELHI
FIR No.: 303/2016
P.S.: Anand Parbat
Cr. Case No. 3936/2019
CNR No. DLWT02-013468-2016
State
v.
Arvind Kumar Mishra,
S/o Sh. Surya Pratap Mishra,
R/o House No. L-22/67, Gali No. 9, L Block,
Jai Prakash Nagar, Delhi.
Date of institution of case : 08.09.2016
Date of pronouncement of judgment : 09.11.2022
JUDGMENT
1. S. No. of the Case: 3936/2019 2. Date of Commission of Offence: 23.06.2016 3. Date of institution of the case: 08.09.2016 4. Name of the Informant: Mr. Paltan Prasad 5. Name of the accused : Arvind Kr. Mishra 6.Offence : 279/337/338 IPC 7. Plea of Accused: "Not Guilty" 8. Final Order: Acquittal. 9. Date of Final Order: 09.11.2022 Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:49:51 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 1 of 19 PS Anand Parbat BRIEF FACTS AND REASONS FOR DECISION
1. Succinctly put, the facts of the case as per Prosecution are that on 23.06.2016 at about 2:20 PM on the Zakhira Pul within the jurisdiction of PS Anand Parbat accused was found driving a Tempo bearing No. DL1LA-8536 in rash and negligent manner so as to endanger human life and public safety of others. That on the above-mentioned date, time and place accused had hit in the rickshaw which was being pulled by Paltan Prasad, Jagdamba and Mohd. Naim due to which the persons namely Paltan Prasad and Jagdamba received grievous injuries and Mohd. Naim received simple injury. FIR was registered under Section 279/337/338 IPC. After completion of investigation chargesheet was filed in the Court. The cognizance of the offence was taken and summon was issued to the accused. The copy of the charge-sheet and the documents in compliance of Section 207 CrPC was supplied to the accused.
2. The charge was framed against the accused for offence punishable under Section 279/337/338 IPC on 07.04.2018 to which he pleaded not guilty and claimed trial. Thereafter, the matter was fixed for the Prosecution evidence.
3. In Prosecution evidence, the Prosecution has examined 06 witnesses. The MLC No. 58300, 58301 and 58302 prepared by Dr. Manan Layak vide Ex.AD-1 to Ex.AD-3, x-ray report of abovesaid MLC numbers prepared by Dr. Mani Jain vide Ex.AD-4 to Ex.AD-6 and result Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:49:58 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 2 of 19 PS Anand Parbat on above said MLCs given by Dr. B.K. Reddy, Dr. Ravinder Chawla and Dr. Kanika vide Ex.AD-7 to Ex.AD-9 were admitted under Section 294 CrPC. The testimony of the witnesses in a nutshell are as below:
PW1 ASI Kulavtar Singh. He deposed that on 23.06.2016 he was posted at PS Anand Parbat as Duty Officer. He proved the FIR No. 303/16 PS Anand Parbat as Ex.PW1/A (OSR). He further deposed that he handed over the copy of FIR to HC Shri Krishan and made an endorsement Ex.PW1/B on the tehreer to this effect. He also prepared certificate u/s 65B of the Evidence Act which is Ex.PW1/C. PW2 W/Const. Sangeeta: She deposed that on 23.06.2016 she was posted at PS Anand Parbat as Const. and on that day, she was working as DD writer and her duty hours were from 8:00 A.M. to 4:00 P.M. At around 2:30 P.M., she received a call through wireless operator regarding accident on Zakhira Flyover and she reduced the same into writing as DD No. 54B dated 23.06.2016 which is Ex.PW2/A (OSR).
Thereafter, the same was marked to HC Shri Krishan for investigation. She further deposed that on the same day, at around 4:10 P.M. she received a call from Duty Const. Harender from Lady Hardinge Hospital Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:50:04 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 3 of 19 PS Anand Parbat regarding admission of 03 injured persons namely Paltan Prasad, Jagdamba and Mohd. Naim. She reduced the information into writing as DD No. 63B which is Ex.PW2/B (OSR). Thereafter, the same was marked to HC Shri Krishan for investigation.
During cross examination she deposed that she was not informed as who had committed the accident.
PW3 Sh. Arvinder Singh. He deposed that on 26.06.2016 he had mechanically inspected the vehicles i.e. loading rickshaw and Tata ACE bearing No. DL1LK-8536 at the request of HC Shri Krishan PS Anand Parbat. His inspection report about the vehicles are Ex.PW3/A and Ex.PW3/B. During cross examination, he deposed that there might be possibility that the tire of rickshaw may be bend due to overloading.
PW4 Sh. Paltan Prasad is the complainant and one of the victim and he deposed that on 23.06.2016 at about 2-2:15 P.M., he alongwith Jagdamba and Mohd. Naim were going towards Tri Nagar side alongwith the loaded rickshaw. He deposed that he was driving the rickshaw, and Jagdamba and Mohd. Naim were Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:50:11 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 4 of 19 PS Anand Parbat pushing the rickshaw from behind and when they reached at Zakhira Flyover, one Tata Champion bearing No. DL1LK-8536 had hit their rickshaw from the front side. He further deposed that they were going on the wrong side when the abovesaid vehicle had hit his rickshaw and the articles which were in the rickshaw scattered here and there. He deposed that they sustained injuries and public persons had gathered at the spot. He further deposed that somebody had called at number 100 and Police officials took them to Lady Hardinge Hospital for medical examination and thereafter Police officials came at the hospital and recorded his statement which is Ex.PW4/A. He deposed that he had not seen the person who was driving the offending vehicle at the time of accident.
During cross examination by Ld. APP for the State, Ld. APP pointed out towards the accused and asked the witness whether the accused is the same person who was driving the offending vehicle at the time of accident upon which the witness submitted that he cannot say whether he is the same person who was driving as he did not pay any attention to the driver of the vehicle as he was driving his rickshaw while his head was facing downwards and he was not looking in the front. He deposed that he does not remember as to Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:50:17 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 5 of 19 PS Anand Parbat how the vehicle was being driven by the driver of the vehicle. He voluntarily stated that it was the summer month and there was scorching heat and he could not pay proper attention to the details of the manner in which the vehicle was being driven. He denied the suggestion that the accused had hit their rickshaw from behind. He denied the suggestion that accused was driving the abovesaid vehicle in rash and negligent manner. He denied the suggestion that he is deliberately and intentionally not identifying the accused. He denied the suggestion he has been won over by accused.
During cross examination by Ld. Counsel for accused, he deposed that he was coming from the side of Anand Parbat and that he was carrying iron tikki in his rickshaw and there were around 600 kg of iron tikki in his rickshaw. He admitted that he cannot drive the rickshaw alone as there was heavy weight in the rickshaw. He admitted that he was going towards wrong side on the road. He admitted that abovesaid vehicle was coming from the right direction. He deposed that he had not signed any blank paper. He admitted that he chose wrong direction as the distance was short through the wrong side. He admitted that when anybody drives on the wrong side, the vehicle SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA 16:50:23 +0530 Date: 2022.11.09 FIR No. 303/16 State v. Arvind Kr. Mishra 6 of 19 PS Anand Parbat which was coming from the right direction decreases their speed. He denied the suggestion that he is deposing falsely in order to take money from the accused. He admitted that he had written the registration number of the vehicle on his left hand. He admitted that he had stated the number of offending vehicle after seeing the same from his hand.
PW5 Const. Vijender Chhillar. He deposed that on 23.06.2016, he was posted at PS Anand Parbat as Const. and on that day he was on emergency duty alongwith IO HC Shri Krishan. Duty Officer informed HC Shri Krishan regarding the accident at Zakhira Flyover, Rohtak Road, Anand Parbat, Delhi. Thereafter, he alongwith HC Shri Krishan reached at the spot, there they came to know that the injured has been taken to hospital in the PCR. He deposed that they found one TATA Ace bearing No. DL1LK-8536 and rickshaw (loading rickshaw) in an accidental condition and thereafter, HC Shri Krishan took photographs of the spot from different angles and HC Shri Krishan prepared site plan and left him at the spot and went to the hospital. He deposed that after sometime, HC Shri Krishan returned back at the spot and thereafter, both the vehicles i.e. TATA Ace bearing SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:50:34 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 7 of 19 PS Anand Parbat No. DL1LK-8536 and rickshaw were seized vide seizure memo Ex.PW5/A and Ex.PW5/B and the case property was deposited in malkhana, accused was arrested vide arrest memo Ex.PW5/C and his disclosure statement was recorded. He deposed that IO had also seized Driving License of accused alongwith some other documents which is Ex.PW5/D. During cross examination, he admitted that accident had not happened in his presence. He denied the suggestion that offending vehicle i.e. TATA ACE bearing No. DL1LK-8536 was not found at the spot when he reached there. He admitted that when he reached at the spot, he did not meet the accused. He admitted that he had seen the driver later. He denied the suggestion that accused had not committed any accident.
PW6 HC Shri Krishan. He deposed that on 23.06.2016, he was posted at PS Anand Parbat as HC and on that day, DD No. 54B regarding accident was marked to him for investigation. He deposed that he alongwith Const. Vijender reached at the spot i.e. on the Zakhira Flyover where they found Tata ACE bearing No. 8536 and one rickshaw in accidental condition and they came to know that the injured has Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:50:42 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 8 of 19 PS Anand Parbat been taken to hospital in the PCR and thereafter, he took photographs of the spot including the vehicles found present at the spot and they inquired from public persons gathered there about the accident but nobody had seen the accident. He deposed that he had received a call from the Duty Officer regarding the MLC of injured and thereafter, he left Const. Vijender at the spot and went to Lady Hardinge Medical College and collected the MLC of injured persons namely Paltan Prasad, Jagdamba and Mohd. Naim. He deposed that he inquired about the accident from injured persons. Thereafter, he recorded the statement of Paltan Prasad which is Ex.PW4/A and also found the driver of offending vehicle i.e. accused at the hospital. He deposed that he came to know from injured persons that accused had accompanied them to hospital in the PCR. Thereafter, he prepared rukka Ex.PW6/A and handed over the same to Duty Officer in the PS and after getting FIR registered, he collected the copy of FIR and original tehreer from Duty Officer. Thereafter, he reached at the spot again and prepared site plan Ex.PW6/B at the spot and seized the alleged rickshaw and the offending vehicle No. DL1LK-8536 vide seizure memo Ex.PW5/B and Ex.PW5/B. He deposed that accused also reached at the spot and that he seized Digitally signed SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:50:51 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 9 of 19 PS Anand Parbat the driving license and other documents of offending vehicle which is Ex.PW5/D and thereafter, accused was brought to PS and he was served notice u/s 133 M.V. Act which is Ex.PW6/C and the reply of the same was received from the accused which is Ex.PW6/D. Thereafter, accused Arvind Kumar Mishra was arrested vide arrest memo Ex.PW5/C and was released on police bail as the offence was bailable. He deposed that he also recorded disclosure statement of accused which is Ex.PW6/E. Thereafter, the case property was deposited in malkhana and he got mechanical inspection conducted of the offending vehicle and the rickshaw on 26.06.2016. He deposed that during investigation, MLC was deposited for further opinion and the documents of the offending vehicle was got verified by him and later on, he collected the MLC and as per the MLC the nature of injury was also found grievous of one of the injured persons and thereafter, he added Section 338 IPC and concluded the investigation and submitted the chargesheet before the Court.
During cross examination, he admitted that he had not seen the accident and that he was not aware as to who had committed the accident at the time when he reached at the spot. He deposed that he received a Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:50:57 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 10 of 19 PS Anand Parbat PCR call for investigation with regard to accident. He deposed that he had inquired from public persons present there about the accident but they did not give any plausible reply. He denied the suggestion that the rickshaw puller was going in a wrong direction and the accident had occurred due to their fault. He deposed that there were some iron pieces lying in that rickshaw, however, he cannot tell the weight of those iron pieces. He denied the suggestion that he had prepared site plan while sitting in PS. He admitted that accused had accompanied the injured persons to hospital. He denied the suggestion that he had falsely implicated the accused in order to solve the case. He denied the suggestion that accused had not committed the accident. He denied the suggestion that injured persons were on wrong side of the road and they suffered injuries due to breakdown of his rickshaw.
4. After the Prosecution evidence was closed, the statement of accused under Section 313 CrPC was recorded on 25.08.2022. The accused did not opt to lead the defence evidence. Thereafter, final arguments were heard. I have given thoughtful consideration to the submissions of the accused and the State.
5. Ld. APP has argued that the Prosecution witnesses have been Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:51:05 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 11 of 19 PS Anand Parbat successful in establishing a case of rash and negligent act against the accused and they have correctly established the identity of the accused and accordingly, the Ld. APP argued that the Prosecution has been successful in proving guilt against accused beyond reasonable doubts. Per contra, Ld. Defence Counsel submitted that Prosecution has failed to prove the guilt of the accused beyond reasonable doubts as the Prosecution has not been able to establish the ingredients of the offence with which the accused has been charged and moreover, the perusal of the testimony of the victim / complainant reveals that the complainant and the other injured persons were themselves coming from the wrong side when the alleged vehicle had hit their rickshaw and since the complainant PW-4 has specifically stated that he had not seen the person who was driving the offending vehicle at the time of the alleged incident, therefore, it cannot be said that the identity of the accused at the alleged incident has been established by the Prosecution. Therefore, Ld. Defence Counsel argued that Prosecution has been miserable in proving the case against the accused and accordingly the accused deserves to be acquitted in the present case.
6. In order to prove the guilt of the accused, the Prosecution was required to establish the following ingredients as mentioned U/s 279/337/338 IPC.
(i) The accused was driving his offending vehicle on a public way;
(ii) He was driving the same in rash or negligent manner;
SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA 16:51:14 +0530 Date: 2022.11.09 FIR No. 303/16 State v. Arvind Kr. Mishra 12 of 19 PS Anand Parbat
(iii) The said act/driving has endangered human life or personal safety of others; and
(iv) He caused simple injuries to victim namely Md. Naeem and grievous injuries to the victims namely Jagdamba and Paltan Prasad, While driving the said vehicle in the aforesaid rash or negligent act/driving, Appreciation of evidences
7. It is a settled law that the Prosecution has to stand on its own legs to substantiate the allegations as set out in the FIR. No liability can be imposed upon the accused merely on the basis of an accident. The Prosecution has to prove by way of clear and cogent evidences that alleged accident took place due to the rash and negligent driving of the accused. Thus, the witnesses are required to expound upon the manner in which the vehicle was being driven so as to prove the rashness and negligent on the part of the accused. Further, the element of the rashness and negligence on the part of the accused is to be proved by leading cogent evidence to that effect. A mere deposition to the effect that the vehicle was being driven in a rash and negligent manner would not suffice.
8. In order to establish that the accused was driving the alleged offending vehicle at the alleged and time, the Prosecution had examined PW-4 who is the victim as well as the complainant in the present case and the said witness has specifically deposed that he had not seen the person who was driving the offending vehicle at the time of the accident. During the cross-examination by the Ld. APP, the said witness, when pointed towards the accused and asked to identify him, had specifically stated that Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:51:20 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 13 of 19 PS Anand Parbat he cannot say whether the accused is the same person who was driving the offending vehicle as it did not pay any attention to the driver of the vehicle as he was driving his rickshaw while his head was facing downwards and he was not looking in the front. PW-4 is the natural and eyewitness in the present case and there are no other material witnesses who could have established the fact of the accused driving the offending vehicle in question. From the perusal of the testimony of PW-4 it can be noticed that he has clearly not been able to depose that it was the accused who was driving the alleged offending vehicle in question in a rash and negligent manner. The said witness had identified the offending vehicle in question and same was exhibited as Ex.P-1(colly). Further, even the remaining Proscution witnesses, who are formal witnesses, have not been able to prove that they had seen the accused driving the alleged offending vehicle. In view of the same, it cannot be said that the Prosecution has been able to establish the fact that it was only and only the accused Arvind Kumar Mishra himself who was driving the alleged vehicle in question and it was the accused only who had caused the alleged accident at the alleged date and time.
9. The Prosecution was then required to prove that the alleged vehicle in question was being driven on a public way and the same was being driven in a rash and negligent manner. It is not disputed that the alleged place of incident was not a public way and accordingly, same stands established. In order to prove that the vehicle in question was being driven in a rash and negligent manner the Prosecution had examined PW-4 and Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:51:28 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 14 of 19 PS Anand Parbat the said witness, during his cross-examination by Ld APP, had specifically stated that he does not remember as to how the vehicle in question was being driven by the driver of the vehicle. Accordingly, the element of rashness and negligent driving could also not be proved by the Prosecution as proper evidence to prove the same has not been brought on record by the Prosecution. Moreover, it is settled law that merely driving in fast speed is in itself is not a proof of rash and negligent driving and the manneer of driving the offending vehicle has to be shown by way of clear evidence so that it can be concluded that the vehicle in question was being driven in a manner which is rash and negligent. The Hon'ble Supreme Court in Mohammed Aynuddin @ Miyam v. State of Andhra Pradesh, (2000) 7 SCC 72 defined the term "rash and negligent driving". It was held that:
"A rash act is primarily an over hasty act. It is opposed to a deliberate act. Still, a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:51:35 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 15 of 19 PS Anand Parbat imperative duty of the driver of a vehicle to adopt such reasonable and proper care and caution".
Reference is also made to the case titled as "Vinod kumar vs. State"
2012 (1) RCR (Criminal) 567, wherein the Hon'ble High Court of Delhi held as under:
"No evidence or any other material was placed on record by the Prosecution to show the manner in which the Petitioner was driving the said vehicle to prove the rashness and negligence of the Petitioner. No photographs of the spot or the bus have been taken. PW10 the alleged eye witness to the incident has also not deposed anything in regard to the accident or manner in which the vehicle was being driven by the Petitioner, except making a bald statement that the driver of the bus was driving the bus in a rash and negligent manner which does not prove the guilt of the Petitioner. There is no evidence placed on record to show the speed of the vehicle or the manner in which it was being driven to show rashness and negligence on the part of the Petitioner, especially when the area was a crowded one."
In the case of "State of Karnataka v. Satish" (1998) 8 SCC 493, the Hon'ble Supreme Court has held that, Digitally signed by SHUBHAM SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:51:43 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 16 of 19 PS Anand Parbat "4. Merely because the truck was being driven at a "high speed" does not bespeak of either "negligence" or "rashness" by itself. None of the witnesses examined by the Prosecution could give any indication, even approximately, as to what they meant by "high speed". "High speed" is a relative term. It was for the Prosecution to bring on record material to establish as to what it meant by "high speed" in the facts and circumstances of the case. In a criminal trial, the burden of providing everything essential to the establishment of the charge against an accused always rests on the Prosecution and there is a presumption of innocence in favour of the accused until the contrary is proved. Criminality is not to be presumed, subject of course to some statutory exceptions. There is no such statutory exception pleaded in the present case. In the absence of any material on the record, no presumption of "rashness" or "negligence" could be drawn by invoking the maxim "res ipsa loquitur"
Thus, the Prosecution has not been able to brought on record any evidence to even remotely suggest the speed at which the offending vehicle was travelling at the relevant point of time. In a scenario, where neither the alleged rashness and negligence was brought forth in the evidence, nor the SHUBHAM Digitally signed by SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:51:49 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 17 of 19 PS Anand Parbat speed of the offending vehicle is clearly deducible, it would not be justifiable to inculpate the accused on the basis of such feeble evidence. Be that as it may, it is imperative to note that high speed by itself cannot be accepted as an incidence of rashness and negligence.
10. Although, the fact of injury to the victims in the present case has been proved by way of MLC which are Ex.AD-1 to Ex.AD-9 as the accused had admitted them under the section 294 Cr.P.C. However, since it has been established that the Prosecution has not been able to prove that it was the accused who was driving the alleged offending vehicle at the alleged date and time, therefore, the establishment of the injuries in itself cannot be said to have been caused by the accused only. Accordingly, the Prosecution has again failed to prove that the injuries caused to the victims in the present case was a result of the rash and negligent driving of the accused.
CONCLUSION
11. It is trite in criminal jurisprudence that the Prosecution is under an obligation to prove its case against the accused beyond reasonable doubt. The standard of proof to be adopted in criminal cases is not merely of preponderance of probabilities but proof beyond reasonable doubt, that too on the basis of cogent, convincing and reliable evidence. It is also well settled that in case of doubt, the benefit must necessarily be allowed to the accused.Digitally signed
SHUBHAM by SHUBHAM DEVADIYA DEVADIYA Date: 2022.11.09 16:51:56 +0530 FIR No. 303/16 State v. Arvind Kr. Mishra 18 of 19 PS Anand Parbat
12. In light of the above discussion, it can be safely said that Prosecution has remained unsuccessful in establishing the case under section 279/337/338 IPC against the accused as the ingredients of the said section has not been established on record by the Prosecution by way of cogent evidences. Therefore, accused Arvind Kumar Mishra stands excluded of the charges under section 279/337/338 IPC.
13. File be consigned to Record Room, as per rules.Digitally signed by
SHUBHAM SHUBHAM
DEVADIYA
DEVADIYA Date: 2022.11.09
16:52:03 +0530
Announced in open Court (SHUBHAM DEVADIYA)
on 09th day of November 2022 Metropolitan Magistrate
West-05, Delhi
FIR No. 303/16 State v. Arvind Kr. Mishra 19 of 19
PS Anand Parbat