Delhi District Court
State vs Avinash on 16 September, 2023
IN THE COURT OF SH. ABHINAV AHLAWAT
METROPOLITAN MAGISTRATE-09 (SOUTH-WEST)
DWARKA COURTS: DELHI
State Vs. : Avinash
FIR No : 271/2015
U/s : 279/337/417/468/471 IPC
P.S. : Jafarpur Kalan
1. CNR No. of the Case : DLSW020332472020
2. Date of commission of offence : 22.12.2015
3. Date of institution of the case : 18.11.2020
4. Name of the complainant : Satyawan
5. Name of accused, parentage & : Avinash
address S/o Manpal
R/o Village Sheetalpur,
PO Harwas, District
Etah, U. P.
6. Offence complained of : 279/337/417/468/471
IPC
7. Plea of the accused : Pleaded not guilty
: Acquitted for offence
u/s 279/337/417/468,
8. Final order and convicted u/s 471
IPC
9. Date of final order : 16.09.2023
Argued by:- Mr. Pankaj Gulia, Ld. APP for the State
Mr. Rambir Singh, Ld. Counsel for accused.
FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 1 of 27 Digitally signed
by Abhinav
Abhinav Ahlawat
Ahlawat Date:
2023.09.16
15:49:48 +0530
JUDGMENT
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-
1. Briefly stated, the case of the prosecution is that on 22.12.2015 at about 04.00 AM, at Main Najafgarh to Dhana Road, Near Shani Mandir, Electricity Pole no.250, Delhi, accused was driving Dumper no.1109 bearing registration no.HR-55N-5766 (hereinafter called as, "offending vehicle") in a rash and negligent manner so as to endanger human life and personal safety of others and thereby hit against one tractor bearing registration no.HR-77-8142 (hereinafter called as, "damaged vehicle"), thereby causing simple injuries to Satyawan. Further, accused used the forged driving licence no.26256/E/05 as genuine knowing or having reason to believe that the same was forged document and he was found driving the said vehicle without having valid driving licence and thereby committed the offences punishable under Sections 279/337/417/468/471 of IPC for which FIR no.271/15 was registered at the police station Jafarpur Kalan, New Delhi.
INVESTIGATION AND APPEARANCE OF ACCUSED
2. After registration of the FIR, the Investigating Officer (hereinafter called as, "IO") undertook investigation and on culmination of the same, the chargesheet against the accused person was filed. The Ld. Predecessor of this court took the cognizance against the accused person and summons were issued to the accused. On his appearance, a copy of the chargesheet was supplied to the accused in terms of section 207 of the Code of Criminal Procedure, 1973 (hereinafter, "CrPC"). On finding a prima facie FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 2 of 27 Digitally signed Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.09.16 15:49:58 +0530 case against the accused person, charge under Sections 279/337/417/468/471 of IPC was framed against the accused on 26.10.2021. The accused pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE
3. During the trial, prosecution led the following oral and documentary evidence against the accused to prove its case beyond reasonable doubt:-
ORAL EVIDENCE PW-1 Satyawan PW-2 SI Ramesh PW-3 HC Mukesh PW-4 Udaykant Jha PW-5 Dr. Rakesh Kumar PW-6 SI Leela Ram PW-7 Shri Bhagwan PW-8 Mohan Lal Batra DOCUMENTARY EVIDENCE Ex.PW1/A Complaint Ex.PW1/B Seizure memo qua offending vehicle Ex.PW1/C Seizure memo qua documents of offending vehicle Ex.PW1/D Arrest memo Ex.PW1/E Personal search memo Ex.P1 Photographs of offending vehicle Ex.PW3/A Seizure memo qua Tata tempo Ex.PW3/B Seizure memo qua driving licence of accused Ex.PW4/A Authority letter Ex.PW4/B Record pertaining to DL Ex.PW4/C Record register regarding DL bearing no.
36256
Ex.PW4/D Certified copy of record of 2005 showing DL
bearing no.87242
Ex.PW5/A MLC
Ex.PW6/A Tehrir
Ex.PW6/B Site plan
Ex.PW6/C Notice u/S 133 MV Act
FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 3 of 27 Digitally signed
Abhinav by Abhinav
Ahlawat
Ahlawat Date: 2023.09.16
15:50:06 +0530
Ex.PW6/D Letter to licensing Authority Etha U. P.
Ex.PW6/E Panchnama of damaged vehicle
Ex.PW6/F Panchnama of offending vehicle
Ex.PW7/A Entry in register no.19 qua entry no.1326
Ex.PW8/A Superdiginama
Ex.PW8/B Reply to notice u/S 133 MV Act
Ex.A1 FIR alongwith certificate under Section 65B
IEA
Ex.A2 DD no.8A
Ex.A3 DD no.4A
ADMITTED DOCUMENTS
Ex.A4 Mechanical Inspection report
Ex.A5 Mechanical Inspection report
To prove its case, prosecution examined the following witnesses, the same are as follows:
4. PW1 Satyawan deposed that the incident pertains to year 2015 but he did not remember the date and month. The incident was of about 04:00 am, he was carrying food for animals in his tractor trolley no.HR-77-8142 to Najafgarh. When he reached near Shani Dev Mandir, Mundhela Road one TATA 1109 came from behind being driven in rash and negligent manner and hit his tractor trolley from the side and then hit on the tyre and tractor ran over the divider. He received injuries as well as tractor got damaged. The accused ran away from the spot. He apprehended him by taking lift on motorcycle. He called at 100 number from his phone. Police came at the spot. He was taken to the hospital for treatment and he gave complaint Ex.PW1/A. IO prepared site plan at his instance and seized the offending vehicle vide seizure memo Ex.PW1/B, seized the documents of the offending vehicle Ex.PW1/C, arrested the accused vide arrest memo now Ex.
Digitally signed by AbhinavAbhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 4 of 27 Ahlawat Date:
2023.09.16 15:50:20 +0530 PW1/D and conducted his personal search vide memo Ex.PW1/E. The witness correctly identified the accused present in the court and both the vehicles through photographs Ex.P1 (colly). As PW1 did not support the case of prosecution on material facts, the Ld. APP was granted permission to put him questions in the nature of cross-examination, wherein he admitted that the incident occurred on 22.12.2015. In the cross-
examination by accused, he stated that only a motorcyclist came to the spot when the incident occurred no public person came to the spot. He did not know the name of the motorcyclist or the registration number of the motorcycle. He stated that the tractor was not fitted with speed governor and it was at a speed of 15 km per hour at the time of incident. There were skid marks on the spot but he did not inform the IO about skid marks. He stated that no fitness certificate of trolley with respect to its dimensions was obtained. He stated that the tyre in the trolley were second hand taken out from trucks and the trolley does not have any brake or master cylinder or booster.
5. PW2 SI Ramesh deposed that on 22.12.2015, he alongwith SI Leela Ram and Ct. Mukcsh went to Dhansa Road near Shani Mandir, Electric Pole no.250, where he saw a tractor in accidental condition bearing registration no.HR-77-8142 farmtrack 60 and at a little distance a vehicle was also standing in accidental condition bearing registration no.HR-55N-5766 and the driver of tractor was present there. He took him to the RTRM hospital and he was got medically examined. After medical examination, he came back along with tractor driver Satyawan at the said place. Thereafter, he left the place of occurrence. In the cross-examination, he stated that his statement was recorded on Digitally signed FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 5 of 27 by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:50:28 +0530 the same day but he did not remember the time. The DD no.4A was received at about 04:30 am which was not written by him. He did not remember by which vehicle they reached at the spot whether it was government vehicle or private. He did not remember as to how long they remained at the spot. He did not remember whether any photographs or videography of the spot or of the skid marks were taken by the IO. He did not remember at how much distance the tempo was parked from the place where the tractor was standing. The weight or measurement of the tractor trolley was not measured in his presence. He did not remember as to how much the trolley was enlarged for keeping fodder. He did not remember by which vehicle he had taken the driver of tractor to the hospital.
6. PW3 HC Mukesh deposed on the lines of PW2 ASI Ramesh. He further stated that IO ASI Leela Ram prepared the tehrir upon the statement of complainant Satyawan and got the present FIR registered through him. After the registration of FIR, IO ASI Leela Ram seized both the vehicles vide separate seizure memo Ex.PW3/A and Ex.PW1/B and driving license of the accused vide seizure memo Ex.PW3/B. IO also seized the RC, Permit, fitness, insurance of the offending vehicle. The IO arrested the accused, personally searched him and later, released him on police bail. In the cross-examination, he stated that he reached the police station along with rukka at about 10:15am and came back to the spot of incident after registration of FIR at about 10:50am. He stated that the tractor was found rammed into the divider when they reached at the spot and the trolley carrying the fodder was overloaded by the said fodder at that time. He stated that there was no reflectors or back lights present on the back Digitally signed FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 6 of 27 by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:50:35 +0530 side of the trolley. He stated that no independent witness was joined at the time of arrest of accused or at the time of personal searched or at the time of recovery of the driving license of the accused.
7. PW4 Udaykant Jha, Senior Assistant, Licensing Authority, Motor Vehicle Department, Etah, U. P., proved he authority letter dated 13.12.2022 as Ex.PW4/A and brought the requisite record pertaining to driving license no.UP82-19980036256, its previous DL number being 36256/ETAH/1998 which was issued to Pankaj Dubey S/o Satya Dev Dubey and he proved certified copy of the same as Ex.PW4/B. He had also proved the record register regarding driving license bearing No. 36256 issued to Sh. Pankaj Dubey S/o Sh. Satya Dev Dubey as Ex.PW4/C. He also proved certified copy of the record of 2005 showing the driving license no.87242 as Ex.PW4/D (colly). In the cross-examination, he stated that he did not have any personal knowledge about the present matter and that he was only deposing on the basis of the record maintained by Licensing Authority, MV Department, Etah, U.P.
8. PW5 Dr. Rakesh Kumar proved MLC bearing no.7209 dated 22.12.2015 as Ex.PW5/A. In the cross-examination, he stated that it is possible that the nature of injuries sustained by the injured could be possible from being hit by any object such as divider of the road.
9. PW6 SI Leela Ram deposed as regards the investigation conducted by him in present case. He tendered the tehrir as Ex.PW6/A, site plan as Ex.PW6/B, notice under Section 133 of MV Act as Ex.PW6/C, letter to Licencing Authority Etha U. P. as Digitally signed FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 7 of 27 by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:50:43 +0530 Ex.PW6/D and panchnamas of both the vehicles as Ex.PW6/E and Ex.PW6/F. He stated that the driving licence of accused was found to be fake. He also recorded the statements of witnesses. Offences of Section 420/468/471 IPC were added in the present case. Thereafter, he prepared the charge-sheet and filed before the court. In the cross-examination, he stated that the statement of complainant was recorded twice by him. First statement of complainant was recorded on the date of incident at the spot at about 04:30 pm. It took about half an hour in doing the writing work and the writing work was done while sitting on the motorcycle. He did not weigh the trolley of the tractor which was filled with fodder and the fodder was filled in the trolley approximately two feet from all the sides and directions of the trolley. He stated that the said trolley was overloaded and the tractor was not fitted with the speed governor. He stated that it came to his knowledge during investigation that the complainant had gone to chase the truck while sitting on a motorcycle of some public person. He did not interrogate the said motorcycle owner or the driver of the same. He stated that the tractor and trolley were climbed on the footpath due to overload of fodder and constable went to police station for registration of FIR on foot. He does not remember as to how much time took in registration of FIR and at what time he came back at the spot. The accused was arrested in the police station and hence, no independent witness joined at the time of arrest, personal search or at the time of alleged disclosure statement. He stated that no photography or videography of the place of accident was done. No photographs of the scratches or skid marks were taken from the spot. He did not find any skid marks and scratches at the place of alleged incident.Digitally signed by Abhinav
FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 8 of 27 Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:51:00 +0530
10. PW7 HC Shri Bhagwan, MHC (M) proved entry no.1326 in register no.19 as Ex.PW7/A (OSR) vide which both the vehicles were released on superdari.
11. PW8 Mohan Lal Batra deposed that he got the vehicle i.e truck bearing no. HR-55N-5766 released on superdari vide superdiginama Ex.PW8/A. He received notice U/s 133 MV Act and gave reply thereto Ex.PW8/B. In the cross-examination, he stated that he did not have any personal knowledge regarding the facts of present case. He stated that it came to his knowledge that the above said truck had not caused any accident and some tractor had struck against the divider due to overloading of fodder. He had orally told the IO that the vehicle was being driven by the accused.
12. On account of admission of accused u/s 294 Cr.P.C, remaining witnesses in the prosecution list were dropped and the formal proof of the documents sought to be proved by them was dispensed with. No other PW was left to be examined, hence, PE was closed.
STATEMENT OF THE ACCUSED AND DEFENCE
EVIDENCE
13. Thereafter, before the start of defence evidence in order to allow the accused person to personally explain the incriminating circumstances appearing in evidence against him, the statement of the accused person was recorded on 15.04.2023 without oath under section 281 r/w 313 CrPC, wherein he has stated that he is innocent and has falsely been implicated in the present case. He further stated that he did not want to lead defence evidence.
Digitally signedFIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 9 of 27 Abhinav by Abhinav Ahlawat Ahlawat Date: 2023.09.16 15:51:10 +0530 FINAL ARGUMENTS
14. I have heard the Ld. APP for the State and Ld. Counsel for the accused at length. I have also given my thoughtful consideration to the material appearing on record.
15. It is argued by the Ld. APP for the State that all the ingredients of the offence are fulfilled in the present case. He has argued that prosecution witnesses have categorically deposed about the commission of offence and there is no ground to disbelieve their testimony. He further contends that the documentary evidence has proved the offence beyond reasonable doubt. As such, it is prayed that the accused be punished for the said offences.
16. Per contra, the Ld. Counsel for the accused has argued that the State has failed to establish its case beyond reasonable doubt. The Ld. Counsel further argued that the entire case of the prosecution is false and fabricated and the same is evident from the material inconsistencies and contradictions borne out from the material on record. It is argued that the prosecution has failed to discharge the burden cast upon it. As such, it is prayed that the accused be acquitted for the said offence.
INGREDIENTS OF THE OFFENCE
17. The allegations levelled against the accused are segregated into two parts, firstly pertaining to offence related to section 279/337 IPC and second pertaining to section 417/468/471 IPC.
18. The first set of allegations revolves around commission of offences u/s 279/338 IPC. Section 279 IPC proscribes the driving of vehicle on a public way in such a rash or negligent FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 10 of 27 Digitally signed by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:51:19 +0530 manner so as to endanger human life or likely to cause hurt or injury to any person. Secondly, the provision of Section 337 IPC prescribes punishment for causing simple hurt to any person by such rash or negligent act.
19. The allegations pertaining to these offences are that on the given date, time and place, the accused was driving the offending vehicle in a rash and negligent manner so as to endanger human life and personal safety of others and due to his rash and negligent driving, the accident was caused by him in which the aforesaid tractor-trolley was damaged and injuries were caused to the driver Satyawan of the Tractor/damaged vehicle.
20. The position of law with respect to offence u/s 279 IPC is discussed in the case of case of Abdul Subhan Vs. State (NCT of Delhi) 133(2006) DLT 562, wherein it was held that:
"In Badri Prasad (supra) the essential ingredients of Section 279 IPC are that there must be rash and negligent driving or riding on a public way and the act must be such so as to endanger human life or be likely to cause hurt or injury to any person. As observed in Badri Prasad (supra), to establish the offence either under Section 279 or Section 304A, the commission of a rash and negligent act has to be proved".
21. Further, what would constitute rash and negligent act has been described by the Hon'ble Supreme Court in the matter of Mohd. Aynuddin @ Miyan Vs. State of Andhra Pradesh decided on 28.07.2000, in the following words:-
"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 reckless- ness and with indifference as to the consequences.
Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against Digitally signed by Abhinav FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 11 of 27 Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:51:28 +0530 injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
Besides, the ingredients mentioned above, the identity of the accused as driver of the vehicle must also be established separately by the prosecution in order to establish the guilt of the accused.
22. It is trite law that the burden always lies upon the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence and that the law does not permit the court to punish the accused on the basis of moral conviction or on account of suspicion alone. Also, it is well settled that accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles him to acquittal.
APPRECIATION OF EVIDENCE RE: IDENTITY OF THE ACCUSED
23. PW1 complainant stated that he was driving the damaged vehicle and carrying animal fodder in his tractor trolley to Najafgarh. When he reached near Shanidev Mandir, Mundhela Road, offending vehicle came from back side and hit his tractor trolley from side and then hit on its tyre and due to the same impact, the tractor ran over the divider and he sustained injuries and the tractor got damaged. He apprehended the accused by taking lift on a motorcycle passing by. Although, PW1 could not tell the date of incident but upon being cross examined by the Ld APP he stated that the incident occurred on 22.12.2015.
Digitally signed by AbhinavAbhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 12 of 27 Ahlawat Date:
2023.09.16 15:51:37 +0530
24. It may be noted at every outset that the entire case of prosecution for establishing the offence of section 279/337 IPC hinges upon the testimony of PW1, being the driver of the damaged vehicle. The fact that the offending vehicle hit the damaged vehicle from the side and hit on the tyre and the tractor ran over the divider is the main alleged cause of the incident. From the testimony of complainant PW1 who stated that he apprehended the driver of the offending truck by taking lift from a motor cyclist passing by and thereby he apprehended the accused person. IO PW6 stated that complainant produced the accused and the same fact was stated in the testimony of PW3 HC Mukesh. Also, PW2 SI Ramesh, PW3 stated that they saw the offending vehicle was parked at some distance from where the damaged vehicle was found in the accidental condition with the tractor being found rammed into the divider. It is the specific point of the complainant that after taking lift on the motorcycle from the passerby he apprehended the offending vehicle and the accused. In his cross-examination, PW1 complainant stated that no other public persons were present and only the said motorcyclist came on the spot from whom he took help. PW1 further admitted the factum that tyres on the trolley were second hand and the trolley attached with the tractor did not have any independent break system. PW1 further admitted that he had no fitness certificate of the tractor and the same was also not fitted with speed governor.
25. Upon careful perusal of testimony of PW1 what has come out of his testimony is that he had apprehended the driver of offending vehicle after taking lift from the passerby on his motorcycle. However, PW1 failed to mention the name or registration number of the said motorcycle and neither the said motorcyclist ever Digitally signed by Abhinav Abhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 13 of 27 Ahlawat Date:
2023.09.16 15:51:45 +0530 joined the investigation. The fact that offending vehicle was apprehended and stopped by the complainant and the accused was produced by the complainant is corroborated with the testimony of PW2 SI Ramesh who stated that when he reached at the spot, he saw the tractor in accidental condition and at a little distance the offending vehicle was standing. PW2 further stated in his cross-examination that tractor was standing on divider at the spot. Further, PW3 HC Mukesh also stated the same in his testimony wherein he mentioned that driver of the tractor i.e. complainant was present at the spot who produced the driver of the offending tempo. PW3 also reiterated the fact that trolley attached with the tractor was carrying fodder which was over loaded by the said item and distance between the tractor and truck was about 500 meters.
26. Careful perusal of the testimonies reveals that complainant along with the first responder police officials who reached at the spot stated that the tractor was found in an accidental condition on the divider and the offending vehicle was found stopped at some distance from the accidental tractor. Accused has not disputed his identity on the spot and the only suggestion which has come from the accused side is that it was because of over loading of the tractor that that the complainant's tractor and trolley dis-balanced and the tractor met with the said accident by ramming into the divider. Despite the fact that no independent public persons were joined or even the said motorcyclist was not examined, the presence of the accused is prima facie established being present at the spot. Now, the following points needs to be examined:
(i) whether the said accident was caused by the accused?Digitally signed by Abhinav
FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 14 of 27 Abhinav Ahlawat Date:
Ahlawat 2023.09.16 15:51:55 +0530
(ii) whether the said accident was caused by the rash and negligent act attributed to the accused by virtue of his being the driver of the offending vehicle at the relevant time.
RE: ACCUSED DRIVING OFFENDING VECHICLE AND THAT TO RASHLY & NEGLIGENTLY;
Although accused was apprehended by the complainant PW1 himself, after he took lift from a motorcyclist passing by and stopped the offending vehicle at some distance from where the incident happened. Later on, complainant himself produced the accused before the police officials. At this stage it is relevant to peruse the site plan Ex.PW6/B which shows that mark A being the place where the damaged tractor was found in accidental condition and mark B the place where the offending truck was found parked. The site plan also does not disclose the actual state of affairs as there is no measurement done to highlight the distance between the two vehicles. IO has prepared the site plan in a very perfunctory manner without following the guidelines of the case of Abdul Subhan Vs. State NCT Delhi 133 (2006) DLT 562 which laid down guidelines with regard to the investigation to be conducted in the offence of accident, which are as follows;
13.1. In most cases I find that the site plans are not produced.
Even the site plan that is produced is of a very unsatisfactory nature. It is, therefore, imperative that the investigating officer should be provided with maps of the roads drawn to scale so that accurate site plans can be produced in evidence for the appreciation of Courts. The exact point of impact as well as tyre skid marks and the point at which the vehicles come to rest after the collision should be demarcated clearly. The observations with regard to the length of the tyre skid marks of the vehicles involved in the impact go a long way in indicating the speeds at which the vehicles were traveling. This would enable the Courts to examine the evidence in a much Digitally signed FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 15 of 27 by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:53:00 +0530 more objective manner and the Courts would not be faced with vague and subjective expressions such as "high speed".
13.2. The mechanical inspection reports that are prepared are also, I find, in a majority of cases, of a very superficial and cursory nature. The inspection ought to be carried out by qualified personnel who are able to indicate in their reports the exact physical conditions of the vehicles. They should be able to point out with exactitude the damage suffered by the vehicles as a result of the impact. The mechanical inspection report should indicate all the tell-
tale signs of the collision such as the paint of one vehicle rubbing off on the other. It should also indicate as to whether the vehicles were mechanically sound or not prior to the impact so as to enable the Court to arrive at a conclusion as to whether the collision took place due to human rashness or negligence or mechanical failure beyond human control.
13.3. As a rule, photographs ought to be taken not only of the vehicles involved in the collision but also of the site and surrounding areas so that the exact topography can be easily discerned by Courts.
13.4. The prevalent weather conditions must be noted by the investigating officer. This would go to establish as to whether the road was slippery due to rain; whether there was poor visibility due to fog or mist etc. 13.5. Furthermore, the path of movement of the vehicles must be sought to be established in the course of investigation and not be left open to ambiguity and doubt as in the present case.
13.6. The drivers of the vehicle involved must also be subjected to tests to reveal whether they had consumed any intoxicants.
13.7. Proper investigation of such accidents would go a long way in aiding the criminal justice system in convicting those who are guilty and acquitting those who are innocent. A shoddy investigation will only point in one direction and that is in the acquittal of all whether they are guilty or whether they are innocent. Because, no criminal Court would (and ought not to) convict any person merely on the basis of conjectures, assumptions, probabilities. All elements of subjectivity need to be eliminated and the investigation should be such that, when a charge sheet is filed, the Court is presented with a case which when taken Digitally signed by Abhinav FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 16 of 27 Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:53:09 +0530 objectively would lead to the inescapable conclusion that a conviction is maintainable.
27. Therefore, it is clear that the site plan is not prepared as per the guidelines and it is nowhere highlighting the correct state of affairs of the accident in question. It is clear that the site plan has not been prepared as per the standard procedure and as admitted by IO PW6 who stated in his cross examination that he prepared the site plan and the same was not got signed by the complainant.
IO further stated that no photographs of the scratches or skid marks were taken from the spot as he did no find any skid marks at the spot.
28. At this stage, it is relevant to peruse the mechanical report to access the damages sustained by both the vehicles. Both the mechanical report of the offending as well as the damaged vehicle were prepared by the mechanical expert namely, Puran chand. Perusal of the case file reveals that the said PW puran chand was never examined as evident from the order sheet dated 04.02.2023 whereby it was recorded that summons issued to him were received back with the report that he had expired and accordingly, the said witness was dropped from the prosecution witness list. However, accused admitted both the mechanical reports as prepared by the mechanical expert i.e., Ex. A4 and Ex. A5 on 02.09.2023 at the time of final arguments.
As per mechanical inspection report Ex. A4 of damaged vehicle that is the tractor and trolley, bearing no. HR-77-8142 following fresh damages were found upon the said damaged vehicle that is front excel right rod being recently damaged, front left side body near head light damaged, rear mudguard being Digitally signed by Abhinav Abhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 17 of 27 Ahlawat Date:
2023.09.16 15:53:18 +0530 recently damaged, right side body near tyre being recently damaged and battery being recently broken and battery cover being recently damaged. The tractor was not in working condition. Whereas, as per the mechanical inspection of the offending vehicle Ex.A5, right side rear mudguard being recently damaged and fresh scratches marks were there.
29. Now seen from the damages sustained by both the vehicles, if the offending vehicle had made contact with the damaged vehicle with its rear wheel, the damages on the offending vehicle should be corresponding with the damages on the damaged vehicle. Or if damaged were caused to the damaged vehicle as the offending vehicle had hit the rear tyre of the damaged vehicle or the trolley carrying the animal fodder, corresponding damages must be reflected on the trolley of the tractor. However, the mechanical inspection report of the tractor Ex.A4 is silent on the said point.
Also, the photographs of both the vehicle that is Ex. P1colly shows the trolley of the tractor was over filled with the animal fodder and the same was filled which was beyond the body of the trolley. One cannot lose sight of the fact that trolley of the tractor was over filled and there were chances of the tractor being disbalanced due to the same. There is no material evidence to show that both vehicles made contact with each other. Therefore, it can be stated that the mechanical reports are not corroborating the version put forth by the complainant that offending vehicle hit the tractor trolley from the side and then its tyre which made tractor to run over the divider of the road.
Therefore, at this stage owing to the testimony of the injured complainant present in the damaged vehicle it cannot be conclusively stated that the accident in question had occurred Digitally signed by Abhinav FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 18 of 27 Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:53:26 +0530 by the offending vehicle and the driver of damaged vehicle sustained injuries owing to the said accident.
30. To further add to the weakness in the prosecution case, IO failed to join any other public in the present case. The accident in question evidently appears to have occurred at a public place and it can be culled out from the testimony of PW6 that public persons had gathered around the spot after the collision. This court is conscious of the legal position that non-joining of independent witnesses cannot be the sole ground to discard or doubt the prosecution case, as has been held in Appabhai and another v. State of Gujarat, AIR 1988 SC 696. However, evidence in every case is to be sifted through in light of the varied facts and circumstances of each individual case. As observed above, material discrepancies have surfaced in the testimonies of prime eye/injured witnesses. In such a situation, evidence of an independent witness would have rendered the much-needed corroborative value, to the otherwise uncompelling case of the prosecution, as discussed above. The absence of independent witness of the accident in question further raises suspicion about the genuineness of the allegations and the actual manner of occurrence of the accident due to the rash and negligent act of the accused.
31. From the above discussion, and the surrounding circumstances in which the accident took place, as adduced on record, the identity of the accused is not established remotely or conclusively to be the person who had caused the incident inquestion. Further, it cannot be gainsaid that despite identity of the driver of offending vehicle not proved, rashness and negligence to be proved by the prosecution must be of nature culpable or gross and not Digitally signed by Abhinav FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 19 of 27 Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:53:35 +0530 something merely based upon an error of judgment. In the present case, the identity of the driver of the offending vehicle is not established. Prosecution has the bounden duty to discharge the initial onus before it can shift on to the other party. Several reasonable doubts have emerged in the narrative put forth by prosecution as analyzed hereinabove. The basic ingredient of Section 279/337 IPC has not been proved and the inescapable conclusion is that the accused is entitled to benefit of doubt.
32. The second set of allegations levelled against accused relates to offences u/s 417/468/471 IPC. The allegations against the accused are to the extent that on 22.12.2015, accused submitted his driving license to the IO purported to be a genuine document as issued from Licensing Authority and that he prepared the said forged DL for the purpose of cheating and used the DL as a genuine document fraudulently and dishonestly knowing the same as forged document. The relevant provision of law attracted are as follows:
417. Punishment for cheating. --Whoever cheats shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
33. According to Section 415 of the IPC, cheating is defined as deceiving an individual fraudulently or dishonestly in order to persuade that person to deliver or consent to keep the property.
That when a person fraudulently, dishonestly, or knowingly encourages another person to do or omit something that he would not have done if he hadn't been misled, and the act causes damage to that person's body, mind, reputation, or property, that individual is said to cheat. Literal meaning of the word cheating is that it is done in order to gain profit or an advantage from Digitally signed by Abhinav Abhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 20 of 27 Ahlawat Date:
2023.09.16 15:53:51 +0530 another person by using some deceitful means. The person who deceives another knows for the fact that it would place the other person in an unfair situation.
The section is divided into two distinct clauses. Under the first clause, the person deceived must have been fraudulently or dishonestly induced to deliver property. The second clause does not require the inducement to be fraudulent or dishonest. But it requires that by reason of the intentional inducement, damage or harm in body and mind, reputation or property was caused to the person deceived. Thus, cheating may be committed in either of the two ways. Cheating is punishable under section 417 IPC.
34. For the purpose of the proving the offence of 417 IPC, prosecution was mandated to prove that accused deceived the Motor Vehicle Department fraudulently or dishonestly into issuing the driving license (hereinafter called as DL) in question in his favour. It is a matter of common knowledge that the truck drivers are mostly illiterate and they get prepared their licenses through some brokers or middlemen working in the concerned Authority. Investigation in the present case is completely silent qua as to how the accused got prepared the DL or how the DL was issued in favour of the accused. No application for issuance of the DL or any other document to show that accused had dishonestly applied it in the department, was procured by the investigating agency. No steps were undertaken by the investigating agency to investigate on the said point. There is no material to show that Licensing authority have been fraudulently or dishonestly induced by the accused to deliver the DL in question. In the absence of evidence to show that accused had acted fraudulently or dishonestly with the Licensing Authority in Digitally signed FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 21 of 27 by Abhinav Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:54:00 +0530 issuance of the DL, prosecution has failed to bring home the guilt of accused for the offence punishable under section 417 IPC.
Whether the accused person has committed the offence punishable under section 468/471 IPC?
Provisions for which accused is prosecuted are as reproduced as under:
468. Forgery for purpose of cheating. --Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
471. Using as genuine a forged- 1[document or electronic record]. --Whoever fraudulently or dishonestly uses as genuine any 1[document or electronic record] which he knows or has reason to believe to be a forged 1[document or electronic record], shall be punished in the same manner as if he had forged such 1[document or electronic record].
The making of false documents by a person is defined u/s 464 IPC. As far Section 465 IPC is concerned, this provision lays down the punishment for offence of forgery. The offence of forgery has been defined u/s 463 IPC as making of any false documents or electronic record or part thereof with an intent to cause damage or injury to public or any person, or to support any claim or title or to cause any person to part with the property or to enter into any express or implied contract or with the in-tent to commit fraud or that fraud may be committed.
The basic elements of forgery are:
(a) The making of a false document or part of it and;
(b) Such making should be with such intention as is specified in section, viz.,
(i) To cause damage or infringe to the public or any person.
(ii) To support any claim or title.Digitally signed by Abhinav
Abhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 22 of 27 Ahlawat Date:
2023.09.16 15:54:08 +0530
(iii) To cause any person to part with any property.
(iv) To cause any person to enter into expressed or implied contract or;
(v) To commit fraud or that fraud may be committed.
35. The prosecution is relying on the testimonies of PW-4 Udaykant Jha to establish the allegations qua offence us 468/471 IPC. As per the prosecution, during investigation, the documents of accused were verified and accused was found using fake Driving License (DL) as the same was not found registered in the Licensing Authority, Etah, UP. During evidence, prosecution examined PW4, who was authorised by ARTO, Motor Vehicle Department, Etah, UP to appear for deposing on behalf of the department vide authority letter dated 13.12.2022 Ex. PW4/A, who brought the record pertaining the driving license no. UP82- 19980036256, its previous DL number being 36256/ETAH/1998 which was issued to one Pankaj Dubey S/o Satya Dev Dubey and PW4 proved certified copy of the same as Ex.PW4/B. He had also proved the record register regarding driving license bearing No. 36256 issued to Sh. Pankaj Dubey S/o Sh. Satya Dev Dubey as Ex.PW4/C. He also proved certified copy of the record of 2005 showing the driving license no.87242 as Ex.PW4/D.
36. Perusal of the record brought by PW4 from the Motor Vehicle Department reveals that the DL in question 36256/E/1998 was issued in favour of one Pankaj Dubey as proved by the certified copy Ex. PW4/B, meaning thereby the same was never issued in the name of the accused. Further, PW4 also placed on record the certified copy of the record Ex.PW4/D showcasing that driving license number had reached at the serial number of 87242 in the year 2005 thereby the DL no. 36256 could not have been issued in the year 2005. Nothing substantial was revealed in the cross Digitally signed by Abhinav Abhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 23 of 27 Ahlawat Date:
2023.09.16 15:54:17 +0530 examination of PW4 and PW4 reiterated that driving license are not issued without driver qualifying the driving test.
Furthermore, careful perusal of case record suggests that no evidence has been adduced by the prosecution so as to establish the fact that the alleged fabricated driving license no. 36256/E/05 was purportedly issued from Licensing Authority Etah, U.P. or was made or got executed by the accused. It is imperative from record that the specimen signatures/ handwriting of accused were never taken by the investigating agency for their comparison with the handwriting/signatures on impugned driving license and in absence of same, the prosecution can never hope to bring home the guilt of accused for offence of forgery punishable u/s 465 IPC. Accordingly, the accused deserves to be acquitted for offence under section 468 IPC.
37. From the above discussion, it is evidently clear that the DL in question was never issued in favour of the accused from said licensing authority and thereby establishing the fact that the driving license was a fake or forged document. However, it does not exonerate the prosecution to prove that same was used by the accused despite knowing or having reasons to believe that the DL was a forged/fabricated document. To bring home an offence under section 471 of IPC the prosecution is to prove that the document concerned was forged and that accused used such document and that he knew or had reason to believe that the same was forged and he nevertheless used the same as genuine one fraudulently or dishonestly.
38. Even though, the perusal of seizure memo of the driving license Ex.PW3/B would reflect that same was allegedly seized by the Digitally signed by Abhinav Abhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 24 of 27 Ahlawat Date:
2023.09.16 15:54:25 +0530 IO PW6 from the accused in presence of PW3 HC Mukesh but in his cross-examination IO PW6, who submitted that no public person was joined at the time of recovery of driving license from the accused. Nevertheless, the alleged forged driving license was seized from the possession of the accused. The submission of the counsel for accused that recovery of the Driving license from the accused in the absence of public witness makes the recovery doubtful is without any merit. As held in Gian Chand Vs. State of Haryana Criminal Appeal no 2302 of 2010 dated 23/07/2013, Hon'ble Supreme Court held that, 'mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution, if there seems to be no reason on record to falsely implicate the appellants'.
39. As far as offence u/s 471 IPC is concerned. The allegations against accused are that he had fraudulently or dishonestly used the forged driving license no. 36256/E/05 purportedly issued by licensing authority Etah, UP as genuine despite having the knowledge or reason to believe that it was a forged document and had produced the same to the investigating officer during the course of investigation of the present case.
It a settled proposition that a person who uses a forged document as genuine must have knowledge or reason to believe that the document was forged. Also, mere possession of a forged document is not enough. An offence under section 471 IPC is established whenever a document is used as genuine with the intention that some person thereby should be deceived. Knowledge is a state of mind that cannot be proved by way of direct evidence. Knowledge is to be gathered from attending Digitally signed by Abhinav Abhinav Ahlawat FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 25 of 27 Date:
Ahlawat 2023.09.16 15:54:33 +0530 circumstances proved on record. As already discussed above, prosecution has proved that DL of the accused was forged. PW4 categorically deposed to this effect through the record Ex.PW4/B and Ex.PW4/C. In the present case, for examining the mens rea of knowledge of the accused regarding the forged/ fake DL, actions of the accused are to be examined which can be ascertained from the fact that accused himself submitted his DL to IO at the time of investigation. The license bears the photograph of the accused and thereby it is clear that accused was using the same as his DL and when the same was asked for by the IO during the investigation, he never desisted from using the DL neither chose not to submit the same with the IO. Nature of user is not material and it is sufficient that forged document is used in order of business or any transaction. Accused submitted his DL to IO during the course of investigation thereby he was very much using the same, as he had the knowledge and reason to believe that the same can be used as a Genuine license.
Therefore, in view of the foregoing discussion, this Court is of the considered view that the prosecution has been able to establish the commission of offence u/s 471 IPC and accordingly, accused stands convicted for the offence punishable under section 471 IPC.
CONCLUSION
40. The Upshot of the discussion, and the surrounding circumstances in which the accident took place, as adduced on record, the identity of the accused is not established remotely or conclusively. Further, it cannot be gainsaid that despite identity of the driver of offending vehicle not proved, rashness and Digitally signed by Abhinav FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 26 of 27 Abhinav Ahlawat Ahlawat Date:
2023.09.16 15:54:44 +0530 negligence to be proved by the prosecution must be of nature culpable or gross and not something merely based upon an error of judgment. In the present case, the identity of the driver of the offending vehicle is not established. Prosecution has the bounden duty to discharge the initial onus before it can shift on to the other party. Several reasonable doubts have emerged in the narrative put forth by prosecution as analyzed hereinabove. The basic ingredient of Section 279/337 IPC has not been proved and the inescapable conclusion is that the accused is entitled to benefit of doubt.
41. Accordingly, this court hereby accords the benefit of doubt to the accused for the offence u/s 279/338 and holds the accused not guilty of commission of the said offence. Accused Avinash s/o Manpal is thus, acquitted of the offence u/s 279/337/338 IPC. However, prosecution has been able to establish beyond doubts all the ingredients of Section 471 IPC and accordingly, accused Avinash s/o Manpal is hereby Convicted of the offence punishable under section 471 IPC.
Let the convict be heard separately on the quantum of sentence. Copy of this judgment be given free of cost to the convict.
Announced in the open court
Digitally signed
on 16.09.2023 in the presence Abhinav by Abhinav
Ahlawat
of the accused. Ahlawat 15:54:51
Date: 2023.09.16
+0530
(Abhinav Ahlawat)
Metropolitan Magistrate-09,
Dwarka, Delhi/16.09.2023
Note:- This judgment contains 27 pages and each page has been signed by me.
Abhinav Digitally signed by Abhinav Ahlawat Ahlawat 15:54:58 +0530 Date: 2023.09.16 (Abhinav Ahlawat) Metropolitan Magistrate-09, Dwarka, Delhi/16.09.2023 FIR No.271/2015, PS Jafarpur Kalan State vs. Avinash Page 27 of 27