Delhi District Court
State vs . Kishan Kant Gaur Nitesh Digitally ... on 12 May, 2023
IN THE COURT OF METROPOLITAN MAGISTRATE-05 (SOUTH-
WEST), DWARKA COURTS, NEW DELHI
PRESIDED BY : SH. NITESH GOEL
State Vs. Kishan Kant Gaur Nitesh Digitally signed by
Nitesh Goel
FIR No. 207/2017 Goel Date: 2023.05.12
16:19:53 +0530
Police Station: Vikas Puri
Under Section: 279/338 IPC and 3/181 MV Act.
Date of institution : 23.08.2017
Date of reserving : 29.04.2023
Date of pronouncement : 12.05.2023
JUDGMENT
a) Serial number of the case 6793/2017
b) Date of commission of offence 30.04.2017
c) Name of the complainant Chandan Kumar s/o Sh.
Suresh Parshad r/o C -1/208
Madhu Vihar, Near Solanki
Market Sai Mandir, Dwarka,
Delhi.
d) Name, parentage and address Krishan Kant Gaur s/o Sh.
of the accused. Kailash Kant Gaur r/o A 162,
Gali no. 5, Om Vihar, Phase 5
Uttam Ngar, Delhi.
e) Offence complained of :Section 279/338 IPC and u/s
3/181 MV Act.
State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 1 f) Plea of the accused :Pleaded not guilty g) Final order :Acquitted for the offence u/s 279/338 IPC and convicted for the offence u/s 3/181 MV Act . h) Date of final order 12.05.2023. BRIEF REASONS FOR THE JUDGMENT
1. Briefly stated, the case of the prosecution is that on 30.04.2017 at 9:30 pm at Najafgarh Road way to Uttam Nagar near Pillar no. 614 within the jurisdiction of PS Vikas Puri, the accused Kr- ishan Kant Gaur was found driving Scooty no. DL 4SCK 7953 in a manner so rash or negligent as to endanger human life or personal safety of others and driving the same without having DL. It is alleged that in the above said manner, he struck against vehicle no. DL 8SBD 6967 and caused grievous injuries to Chandan Kumar. Thus, it is alleged that he committed offences punishable u/s 279/338 IPC and 3/181 MV Act.
2. Charge was framed against the accused Kishan Kant Gaur on 15.11.2017 for the offences under Section 279/338 IPC and 3/181 MV Act to which he pleaded not guilty and claimed trial.
State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 2
3. In support of its case, the prosecution has examined six wit- nesses.
4. PW1 Smt Sanju has deposed that she do not remember the date, month of incident. However it was year of 2017. On the date of incident, she alongwith her husband, son and daughter were coming from District Centre to her house on motorcycle. At that time she was driving her motorcycle. When she reached between Janakpuri Dis- trict Centre to Uttam Nagar, accused came on his scooty from their back side and hit her motorcycle and they fell down on road. Her husband sustained collar bone injury. Her daughter sustained injury on her leg and also sustained injury on her hand. Age of her daugh- ter is 8 years and age of her son is 4 years. Witness correctly identi- fied the accused and scooty. After hitting them , scooty driver ran away from the spot alongwith his scooty. She called at 100 number. PCR came at spot and brought her, her husband and her children to DDU hospital. Police came in the hospital and recorded her state- ment. Witness correctly identify offending photographs of vehicle no. DL-4SCK-7953 as Ex. P1 to 5. Witness also correctly identified her motorcycle from photographs of motorcycle bearing no. DL-9SBD- 6967 as Ex. P6 to P12. She further deposed that at the time of inci- dent speed of scooty was high and she and her family sustained in- juries due to the hitting by the accused.
State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 3
5. In her cross-examination by ld. APP she deposed that the inci- dent was occurred on 30.04.2017 at about 9.30 PM.
During cross-examination she deposed that she left her house at 7.00 PM alonwith her husband, son and daughter. She deposed that they were 4 occupants on the motorcycle. They went to District Center Janakpuri from their house. They had taken snacks at District Center and thereafter they proceed for their house. Her son sitting in front of her and her daughter was sitting in the lap of her husband. Again said her both children sitting in lap of her husband. She deposed that they do not remember the date of incident. She was driving the motorcycle. She denied that she was not driving the motorcycle. She denied that her husband was driving the said motorcycle. She denied that her husband was not having any valid DL. Vol. Her husband was having learner DL. Her speed was 30-35 KMPH at the time of accident. She denied that at the time of incident her husband was fully drunk and was driving the motorcycle at very high speed and hit the scooty from back side. She do not remember the number of scooty which hit their motorcycle. She denied that the accident took place because of the fault of her husband. After the accident they all fell down on the left side after hitting of accused from back side. She made a complaint to police after 3-4 days of incident. She denied that she made compliant after 3-4 days of incident as she was aware of the fact that the accident took place due to fault of her husband who was not having a valid DL at the State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 4 time of accident. She denied that she made a complaint with police to extort money from accused. She cannot say whether accused sustained any injury in the said accident or not. She denied that the scooty was at slow speed and she had hit the scooty from back side. She do not remember the exact speed of scooty. However, it was at high speed. She had signed on two papers in PS.
6. PW 2 Sh. Chandan Kumar has deposed on the lines of PW 1. He deposed that after the accident. He called at 100 number and PCR came at the spot. He deposed that on 03.05.2017, he received call from PS and he reached to PS at the evening time. Police had recorded his statement Ex PW2/A. Later on police had arrested the accused in is presence. He do not know the exact date of arrest of accused. He proved the arrest memo as Ex. PW2/B. Police had seized his motorcycle during investigation and it was released on su- perdari to his wife vide Ex. PW2/C. Witness correctly identify the photographs of his vehicle and offending vehicle.
During cross-examination he deposed that he left the house about 7.30 PM on the date of incident alongwith his wife, son and daughter. His wife was driving the motorcycle. He denied that he was driving his motorcycle. He denied that he was not having the li- cence on the date of incident. His son and daughter were sitting be- tween her wife and herself on the motorcycle. They left the district State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 5 center at about 9.00 PM. The incident took place around 2 Km. from the District Center. After leaving the District Center they stayed into mall for 15 minutes. The speed of their motorcycle was 30-35 Km per hour. He denied that the speed of his motorcycle was very high and hit to scooty of accused from back side. They fell down on their left side after the accident. He cannot say whether CCTV camera were installed nearby the spot or not. He identified the accused as he re- mained at the spot for some short time and have asked him to stop at the spot. He denied that he had hit to scooty of accused and ac- cused had sustained injury due to his fault. He had called 100 no, at his mobile. PCR had brought him in DDU hospital. He cannot tell the reason of not preparing of his MLC in DDU hospital. He volt said that it is a medical process and he cannot tell the said process. He denied that his MLC was not prepared as was not having any injury and he was not having any valid driving license. He denied that the reason of delay in FIR is that he was not having valid DL and ac- cused had sustained injury due to his fault driving. He denied that accused is falsely implicated due to connivance of IO.
7. PW 3 ASI Dushyant was the DO and has proved copy of FIR and endorsement on rukka vide Ex. PW 3/A and Ex. PW 3/B. He also proved the certificate u/s 65 B of Indian Evidence Act vide Ex. PW 13C .
State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 6 Witness was cross examined by ld.defence counsel.
8. PW4 Ram Kumar Record Clerk identify the signature of Dr. Devender vide Ex. PW 4/A Witness was cross examined by ld.defence counsel.
9. PW 5 HC Satyavir Singh has proved the report of DD no. 37A vide Ex. PW 5/A Witness was cross examined by ld.defence counsel.
10. PW 6 Ct. Jitender was the witness who joined the investigation with ASI Satender.
Witness was cross examined by ld.defence counsel.
11. PW 6 ASI Satender has deposed that on 30.04.2017 he was posted at PS Vikas Puri as ASI. On that day he was on night emer- gency duty. At about 9:25 Pm he received DD no. 37 A already Ex. PW 5/A with regard to accident at Vikas Puri Mor. He along with Ct. Jitender reached at the spot. No one met him at the spot. The of- fending vehicle was also not available at the spot. Thereafter DD was kept pending. He made efforts to caller i.e. Chandan of the said DD and he was injured of the present case, he stated that he had taken the medical treatment at DDU hospital thereafter he left for his house. No MLC was done at that day. DD was kept pending. He fur- ther deposed that on 03.05.2017 complainant / injured Chandan State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 7 reached the PS and narrated the entire incident to him. Same is al- ready Ex. PW 2/A. Thereafter he got the medical examination of the injured conducted at DDU Hospital. He collected the MLC from the concerned doctor. He prepared rukka vide Ex. PW 6/A and handed over to the DO for registration of FIR. DO handed over copy of FIR and rukka to him. Thereafter he went to spot along with complainant and prepared site plan Ex. PW 6/B. He gave notice u/s 133 MV Act to the registered owner of the vehicle, same is Ex. PW 6/C. The registered owner of the offending vehicle turned up to the PS and given written reply and informed him that he himself was driving the offending vehicle at the time of incident. In the meanwhile com- plainant also reached at the PS. He seized the offending vehicle vide memo vide Ex. PW 6/E. The motorcycle of the complainant was seized vide memo Ex. PW 6/F. He seized the documents of the of- fending vehicle vide seizure memo Ex. PW 6/G. DL of the com- plainant was seized vide Ex. PW 6/H. Photocopy of RC and insur- ance of the offending vehicle was seizure vide memo Ex. PW 6/I. Mechanical inspection of both the vehicles were conducted. Both the vehicle was released on the superdari by the order of the Hon'ble Court. Witness correctly identified the accused. He recorded the statement of witness and prepared the challan. Accused failed to produce his DL during investigation. The motorcycle was not insured by the complainant. Kalandara was prepared by him and filed it be- fore the court.
State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 8
12. Accused admitted the Mechanical inspection report of motor- cycle and scooty and Xray report u/s 294 Cr. PC as Ex. A1 to Ex A3.
13. After the completion of prosecution evidence, PE was closed and statement of accused under Section 313 Cr. PC was recorded wherein he claimed that he is innocent and he has been falsely impli- cated. Accused opted not to lead defence evidence and thereafter matter was listed for final arguments.
14. I have heard the submissions of learned Assistant Public Prosecutor for the State and ld. Counsel for accused and perused the record carefully.
15. During the course of arguments, Ld. APP submitted that the prosecution has proved its case against accused beyond reasonable doubts. He submitted that the identity of accused had not been disputed to the effect that he was driving the vehicle at the relevant point of time. He further submitted that it is clear from the testimonies of all the witnesses that the accused was driving the vehicle in a rash and negligent manner and the prosecution has proved its case by examining the reliable and cogent witnesses. Therefore, accused be State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 9 convicted as per law.
16. Ld. Defence counsel for accused submitted that prosecution has not proved its case against accused beyond reasonable doubt. He submitted that merely stating that the vehicle was being driven at a high speed cannot be regarded as rash and negligent and relied upon judgment titled as Abdul Suhan v State ( NCT of Delhi ) 207 Crl.J 1089. He also relied upon judgments titled as State of Kar- nataka v Satish (1998) 8 SCC 493, State v Lucky Bedi. He further submitted that prosecution has not proved the negligence or rash- ness on the part of the accused and that the accused has been falsely implicated in the present matter as no incriminating material has come on record against him. Therefore, accused is entitled to be acquitted.
17. I have heard submissions of ld. APP for the State and Ld. De- fence counsel for the accused and perused the record carefully.
18. It is a cardinal principle of criminal jurisprudence that prosecution has to prove its case beyond reasonable doubt by leading reliable, cogent and convincing evidence. Since, there is a strong presumption of innocence in favour of the accused and State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 10 rebuttal of the same always lies upon the prosecution. It is a settled proposition of criminal law that in order to successfully bring home the guilt of the accused, prosecution is supposed to stand on its own legs and it cannot derive any benefits whatsoever from the weakness, if any, in the defence of the accused. Accused is entitled to benefit of every reasonable doubt in the prosecution story and any such doubt in the prosecution case entitles the accused to acquittal.
19. Similar observations were made by the Hon'ble Apex Court in Kaliram vs State of Himanchal Pradesh, AIR 1973 SC 2773 and held that accused is presumed to be innocent till charges against him are proved beyond reasonable doubt.
20. In another case titled as Mousam Singh Roy & ors. vs. State of West Bengal (2003) 12 SCC 377, it was held that burden of proof in criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond reasonable doubt on the basis of acceptable evidence.
21. Hon'ble Supreme court of India in the case of State of Karnataka v Satish 1998 (8) SCC 493 further held that mere fact that accused was driving vehicle at a high speed does not mean that he was driving in a rash or negligent manner. Hon'ble Appex court State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 11 observed as follows:-
"3. Both the trial court and appellant court held the respondent guilty for offences u/s 337/338 and 304 A IPC after recording a finding that the respondent was driving the truck at a "high speed".
No specific finding has been recorded either by the trial court or by the first appellate court to the effect that the respondent was driving the truck either negligently or rashly. After holding that the respondent was driving the truck at "high speed", both the courts pressed into aid the doctrine of resipsa loquitur to hold the respondent guilty.
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".
22. Further Hon'ble High Court of Delhi in case titled as "Vinod Kumar vs State 2012 (1) RCR (Crl.) 567" has observed as followed:
" 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 State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 12 prove rashness and negligence of the petitioner. No photographs of the spot has been taken.
None of the eye witness i.e. PW-1 and PW-2 had deposed anything in regard to the accident or the 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. Moreover, 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, specially when the area was a crowded one." (Emphasis supplied)
23. In the present case the accident had occurred on 30.04.2017 however, complaint has been made on 03.05.2017, therefore, there is delay of the four days in making the complaint. Further, the MLC placed on record of the victim Chander Kumar is also of the same day i.e. 03.05.2017.
24. In the testimony of PW1 Smt Sanju, PW1 has stated that at the time of accident, she was driving the vehicle as her husband was State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 13 sitting on the back seat along with two children, one daughter and one son. She further stated that her daughter and she herself also had sustained injuries, however, there is no MLC on record to prove that fact.
25. PW1 in her testimony had stated that she had called at 100 number after the accident. Further, PW2 also in his testimony stated that he had called at 100 number. There is a contradiction in the statement of both PW 1 and PW2 regarding the fact that who had called at 100 number.
26. As per the testimony of both PW1 and PW2, when they both called at 100 number, PCR came at the spot and took the family to DDU Hospital for examination on the same day and time, however, MLC shows that the Chander has been brought for MLC to DDU Hospital on 03.05.2017. There is no mention in the MLC regarding previous OPD or MLC of Chander happened on 30.04.2017.
27. As per the testimony of PW 1 and PW 2, they were riding motorcycle and scooty driven by the accused had hit their motorcycle from the back side. PW 1 and PW2 stated that at the time of accident speed of scooty was very high. The mechanical inspection report of the motorcycle Ex. A1 shows a scratch on the vehicle on rear side State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 14 silencer. Further, perusal of the mechanical inspection report of the scooty Ex. A2 shows the scratch on the front side wheel mud guard and front side of the scooty. It shows that the impact in the accident of the motorcycle and scooty was very low because of which only scratch had been received on both the vehicles. If the scooty had been driven at high speed then damage on the vehicles would have been much high.
28. The testimony of PW1 and PW 2, states that scooty was at high speed however it has not been stated anywhere as to what was the speed of the scooty. It is settled law that high speed do not constitute rashness and negligent driving. Reliance has been placed on the judgment of Hon'ble Supreme Court of India in case titled State of Haryana Vs. Satish, wherein it has been stated that the merely because the truck was being driven at high speed do not speak either negligent or rashness by itself.
29. PW 1 and PW 2 had correctly identified the accused on the date of accident and PW 6 had also identified the accused. Further PW 6 had proved notice u/s 133 MV Act served to the accused vide Ex. PW 6/C wherein the accused had admitted that he is the owner of the vehicle and he was himself driven the vehicle. The prosecution has been able to prove the fact that accused was driving State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 15 the vehicle at the time of accident without DL. Now the onus shifts upon the accused to rebutt this fact. However, accused had not led DE in order to rebutt the fact. Therefore, he has not been able to discharge his onus. Therefore, it stands proved that accused was driving the vehicle at the time of accident without DL.
30. From the upshot above discussion it seems that the accident had happened on 03.04.2017 and accused was driving the vehicle. However it has not been proved by the prosecution to the satisfaction of the court that accused was driving the vehicle in rash and negligent manner. Considering the delay in filing the complaint, MLC inspection report, contradictions in the testimony of PW 1 and PW2 regarding the PCR call. Thus, I do not find it convinced from the testimony of PW 1 and PW 2 that the accused was driving the vehicle in rash or negligent manner. Accordingly, accused Kishan Kant Gaur stands acquitted of the offences punishable u/s Section 279/338 IPC. Further the prosecution has been able to prove that the accused was driving the vehicle without DL and therefore, he is convicted for offence u/s 3/181 MV Act.
31. Documents, if any be returned to the rightful person. Bail bond and surety bond stands discharged. Endorsement, if any, be cancelled. Superdari, if any, stands cancelled. Case property, if any, State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 16 be released to its rightful owner.
32. File be consigned to record room.
Digitally signed Announced in open Court on 12.05.2023 Nitesh by Nitesh Goel Date: Goel 2023.05.12 16:21:19 +0530 (Nitesh Goel) Metropolitan Magistrate-05 (South-West) 12.05.2023
State Vs. Kishan Kant Gaur FIR No. 207/2017 PS : Vikas Puri U/s : 279/338 IPC and 3/181 MV Act 17