Delhi District Court
Kishan Kumar vs State on 28 September, 2022
IN THE COURT OF MANOJ JAIN,
PRINCIPAL DISTRICT & SESSIONS JUDGE
SOUTH-WEST, DWARKA COURTS NEW DELHI
CA No. 202/2022
CNR No. DLSW01-006371-2022
Kishan Kumar .....Appellant
S/o Sh. Jai Dayal
R/o RZ F 38/4, Gali No. 23 B,
Sadh Nagar Part II,
Palam Colony, Delhi 110045
Versus
State .....Respondent
Date of Registration : 17.06.2022
Date of conclusion of arguments : 13.09.2022
Date of pronouncement of Decision : 28.09.2022
Memo of appearance:
Sh. Robin Kamra, Ld. Deputy Chief Legal Aid counsel.
Sh. V.K. Swamy, Ld. Addl. PP for the State.
JUDGMENT:
1. Appellant has taken exception to order of conviction dated 26.10.2021 whereby he has been held guilty for offences under Section 279/338/471 IPC and consequent order on sentence dated 18.05.2022 passed by the court of Sh. Paras Dalal, Ld. MM- 01, South-West.
2. Trial court record has been requisitioned.
CA No. 202/2022 Kishan Kumar Vs. State Page 1 of 183. Briefly stated, the case of the prosecution is that on 16.08.2014 at about 6:30 pm, Master Ankit (PW6) was returning to his home situated at RZ-F-766/41, Gali No. 7, Raj Nagar, Delhi. When he was crossing the road, Tempo No. DL 1L M 6426 came from the side of Sector 8, Dwarka. The tempo driver, while driving the same at a very fast speed and in a rash or negligent manner, hit Ankit. The aforesaid accident was witnessed by Sh. Lakhan Singh (PW-2) who was also able to see the tempo driver. Fact, however, remains that the tempo driver fled from the spot while speeding away his same tempo. Ankit was rushed to DDU Hospital. FIR was registered and investigation was carried out. Since eye-witness Lakhan Singh was able to note down the number of the offending tempo and had also claimed that he could identify the tempo driver, a notice under Section 133 Motor Vehicles Act was issued to the concerned registered owner of such tempo. Sh. Rajeev Singh (PW5) responded to such notice and informed that the tempo was being driven by Kishan Kumar (appellant herein) at the relevant point of time. He also produced the driver before the police on 25.08.2014. Accused was accordingly arrested. It will be also important to mention that eye-witness Lakhan Singh also identified him at the PS itself.
4. Appellant was holding one driving licence issued by the Transport Authority of Una, Himachal Pradesh, which he submitted before the police. However, such driving licence was, eventually, found to be a forged one as it was never issued by the aforesaid Transport Authority. Since the nature of injuries suffered by Master Ankit was found to be grievous in nature, the accused CA No. 202/2022 Kishan Kumar Vs. State Page 2 of 18 was eventually charge-sheeted for commission of offences u/s 279/338/468/471 IPC.
5. Accused was served with notice u/s 251 Cr.P.C for commission of offences U/s 279/338 IPC. Simultaneously, he was also charged with offences under Sections 468/471 IPC. He pleaded not guilty and claimed trial.
6. Prosecution was directed to adduce evidence and examined following 11 witnesses :
PW1 HC Sunder Lal Duty officer
PW2 Lakhan Singh Eye-witness
PW3 Puran Chand Mechanical inspector
PW4 Ct. Satpal Police official who joined investigation
with IO
PW5 Rajeev Singh Owner of offending vehicle
PW6 Master Ankit Injured
PW7 Dr. Neeraj Kumar Garg For proving the MLC
PW8 Mohan Lal Dhiman RTO, Una, Himachal Pradesh for
proving forged driving licence
PW9 SI Vikas Yadav Second IO
PW10 Insp Raman Pratap Initial investigating officer
PW11 Ct. Om Prakash For proving entries in Register of
Malkhana
7. Accused, in his statement under Section 281/313
Cr.P.C, pleaded innocence. He claimed that he did not cause any accident and also denied driving any such tempo. He claimed that CA No. 202/2022 Kishan Kumar Vs. State Page 3 of 18 he had been falsely implicated by the owner of the tempo. He supplemented that he merely used to work as loader and such owner took him to PS and falsely implicated him in the present case. He also pleaded his innocence about the authenticity of the licence claiming further that he had got the same prepared through some agent. He, however, did not lead any evidence in defence.
8. Ld. Trial court, after perusal of the entire matter, came to the conclusion that prosecution had been able to prove that accused Kishan Kumar was driving the tempo in question, on a public way, in a manner so rash and negligent as to endanger human life. It also held that by such rash and negligent driving, grievous hurt was caused to Master Ankit. It also held that the accused was using as genuine the aforesaid driving licence and accordingly he was held guilty for commission of offences u/s 279/338/471 IPC. He was, however, acquitted of offence under Section 468 IPC as the prosecution had failed to prove that such driving licence was forged by the accused himself. Arguments on sentence were heard and after perusal of victim impact report, received from DLSA, South- West, Ld. Trial court sentenced the accused/appellant to undergo RI for a period of 6 months for offence U/s 338 IPC. It, however, did not order any separate sentence for offence under Section 279 IPC. As regards offence u/s 471 IPC, the accused was sentenced to undergo rigorous imprisonment for a period of one year. Both the sentences were directed to run concurrently and benefit of section 428 Cr.P.C was also given to him. Simultaneously, convict was also directed to pay a fine of Rs. 9,184/- towards cost of conducting the prosecution and burdened him with further compensation of Rs.
CA No. 202/2022 Kishan Kumar Vs. State Page 4 of 1840,000/-. It was directed that fine and compensation be paid within 30 days, failing which he was directed to undergo SI for a period of one month.
9. Since the convict moved an application under Section 389 Cr.P.C before the Ld. Trial court, the same was considered and allowed and sentence was directed to be suspended for a period of one month to enable him to file appeal.
10. It is in the aforesaid background that the present appeal has been filed.
11. Appeal has been filed through Delhi Legal Services Authority, South-West District and Sh. Kamra, Deputy Chief Legal Aid Counsel has addressed arguments.
12. The prime contentions of the appellant are as under:-
i. Ld. Trial court failed to take note of the fact that the solitary eye-witness has not supported the case of the prosecution and in such a peculiar backdrop, there was no occasion for the Ld. Trial court to have held the appellant responsible for the accident.
ii. The manner in which the accused has been got identified during the investigation is highly suspicious. iii. There is no other eye witness of the alleged accident and at no point of time, Master Ankit, during the investigation, claimed that he had seen the tempo driver, or for that matter, the CA No. 202/2022 Kishan Kumar Vs. State Page 5 of 18 offending vehicle and, therefore, his statement before the court should not have been accepted.
iv. Master Ankit has deposed on the basis of inputs which he had received from his family members and, therefore, his testimony is neither credible or believable.
13. Sh. Swamy, Ld. Addl. PP has, on the other hand, justified the reasoning given by the Ld. Trial court. He did admit that Sh. Lakhan Singh, the sole eye-witness did not support the case of prosecution but, at the same time, according to Sh. Swami, such witness had seen the offending tempo at the spot itself and since according to the owner of the tempo driver, tempo in question was being driven by accused Kishan Kumar at the time of accident, the chain is complete and, therefore, the Ld. Trial court was fully justified in holding the accused guilty and convicting him under Section 279/338/471 IPC.
14. I have carefully gone through the trial court record and grounds taken in the appeal and given my thoughtful consideration to the rival contentions.
15. Let me straightaway come to the most crucial aspect. It needs to be seen as to who caused the accident. If said aspect is proved, then it is to be ascertained whether the accident had been caused on account of rash or negligent driving or not.
16. I have already noted above, the case set up by the prosecution. At the cost of repetition, I would mention that as per CA No. 202/2022 Kishan Kumar Vs. State Page 6 of 18 prosecution story, the accident in question was witnessed by PW-2 Lakhan Singh. Not only had he noted down the number of offending vehicle, he also categorically claimed that he had seen the tempo driver and could identify him, if shown to him. Interestingly, he appeared at PS out of nowhere and identified the accused at PS. There is on other eye witness to the accident in question and a careful perusal of the entire record as well as case diary, which this court had called for requisite aid and assistance, does not demonstrate that injured Ankit or his parents were ever contacted by the police during the investigation.
17. Coming to the testimony of solitary eye-witness, it is unquestionably discernible that he has not supported the case of the prosecution at all. His testimony rather goes on to indicate that he came out of the shop only after the accident had taken place. In his deposition, he claimed that the accident had taken place in the month of August, 2014. He was running a mobile repair shop from his house and he was present inside the shop and was repairing mobile and on hearing some cry, he came outside his shop and saw some public persons gathered there. He also saw Ankit, son of his neighbour Bajrang Thakur, lying on road in a pool of blood. Nobody was attending him. He then took him to a nearby hospital on a scooter with one of his friend, where the child was given first aid. In such hospital, the mother of the child and 2-3 other neighbours had also come and the concerned doctor told them that the condition of the child was serious and, therefore, he was taken to DDU Hospital. PW-2 Lakhan Singh further deposed that when the child was under
treatment at DDU Hospital, police came there and asked as to who CA No. 202/2022 Kishan Kumar Vs. State Page 7 of 18 had brought him to the hospital and he then told them that he had brought the child to the hospital. Police prepared certain documents and asked him to sign. He deposed that when he went through those papers, it contained one statement, which was purported to be his statement. He immediately told the police that he had not seen the accident and objected the manner in which his statement was recorded by the police. However, police told him to sign as it was a formality for the purpose of preparing the file regarding accident. He thus signed some documents but claimed that he did not know about the contents of such documents. He, in no uncertain terms, deposed that he had not seen the accident taking place. He also claimed that he did not know as to who had caused the accident. He also claimed at one point of time, he was called at the PS and accused was shown to him and the police informed him that the accused was the one, who had caused the accident and again took his signatures on some documents. Since he was not supporting the case of the prosecution he was declared hostile and was cross- examined by the prosecution with the permission of the court. In such cross-examination, he did identify his signatures on statement Ex. PW2/A but reiterated that he was not an eye-witness to the accident. Specific questions and suggestions were put to him but he denied that he was outside the shop on 16.08.2014 at about 6:30 pm. He also denied that TATA Ace tempo bearing no. DL 1L M 6426 came at a high speed and in a rash and negligent manner and hit child Ankit. He rather volunteered that he was inside the shop when the accident had taken place. He also denied the manner in which the accident had taken place. All in all, he completely disowned the story found mentioned in statement Ex. PW2/A and reiterated that CA No. 202/2022 Kishan Kumar Vs. State Page 8 of 18 he had neither seen the accused nor the accident. He also claimed that he did not know as to how the accident had taken place.
18. Ld. Trial court also took note of the fact that Lakhan Singh had not supported the case of prosecution but according to Ld. Trial court, he had identified the number of the offending vehicle as well as the fact that such vehicle had fled the spot after causing the accident.
19. However, I am not able to gather any such impression from his testimony. He seems very specific and categoric. He does not know as to how the accident had taken place as he was inside his shop. He also does not know anything about the offending vehicle. A specific suggestion was put to him that the accident had been caused by tempo bearing no. DL 1L M 6426 but as already noticed above, he labelled such suggestion as incorrect. Undoubtedly, though he claimed that he had not seen the driver at the spot, he did add to confusion by claiming that one tempo was there at the spot. Nobody knows as to which tempo is he referring to. Prosecution cannot dig out any advantage from the aforesaid fact as he has, nowhere, claimed in his entire testimony that he had seen tempo no. DL 1L M 6426 either causing the accident or present at the spot. Rather, a specific suggestion to that effect was denied by him. Moreover, even as per prosecution story, the offending vehicle had sped away. Thus, it become evident that his testimony has caused enormous damage to the case of the prosecution.
20. Ld. trial court has further relied upon the testimony of CA No. 202/2022 Kishan Kumar Vs. State Page 9 of 18 PW-5 Rajeev Singh. He is the registered owner of the tempo in question and notice under 133 Motor Vehicles Act was served upon him. Pursuant to that, he had produced the accused at the Police Station. As per suggestions put to him, defence does not dispute that accused was under his employment. However, at the same time, according to defence, he was merely working as helper and not as a driver. According to PW-5 Rajeev Singh, he was having three drivers, including the accused Such owner, however, did not produce any record of such employment. Even if, for the sake of arguments, it is assumed that accused was employed as driver on such tempo of PW-5 Rajeev Singh, it does not strengthen the case of prosecution, in any manner, particularly in view of hostile testimony of solitary eye-witness. Prosecution has to, somehow, link tempo No. DL 1L M 6426 with the accident in question. This could have been, possibly, achieved in either of the two eventualities. Firstly, if somebody had seen the accident taking place and noted the number of such offending vehicle in a hit and run case. Secondly, if after causing accident, the offending vehicle was left abandoned at the spot by the concerned driver. In the case in hand, the tempo was sped away by the concerned driver. It was not left abandoned at the spot and, therefore, such tempo, without any corroboration from eye witness, cannot be connected with the accident in question. As already noted above, as per the unsupportive testimony of Lakhan Singh, such tempo does not stand connected with the accident in question as he never saw the accused driving or causing any accident.
21. It is now time to take up the testimony of injured.
CA No. 202/2022 Kishan Kumar Vs. State Page 10 of 1822. Undoubtedly, the name of injured is found mentioned in the list of witnesses but careful perusal of the entire case diary would indicate that the police never contacted him during the investigation and his statement was never recorded. Thus, the court- statement of Ankit is the first available statement. He never identified accused during investigation, even as per prosecution. I am mindful of the fact that Ankit was hardly six years old when the accident had taken place. In his statement, before the court, he claimed that he got injured once when he had fallen from the bicycle. However, when a specific question was put to him to the effect whether he was ever hit by any tempo, he answered in affirmative claiming that he was standing near one electricity pole and his bicycle was parked besides the pole and a tempo hit him and he fell down on the road. Thus, he is giving two different versions. On one hand, he says that he got injured when he fell while riding a bicycle. In the same breath, he has also claimed that his bicycle was parked, when he was hit by a tempo. I may hasten to add that there is no reference of any cycle during the investigation. Even the alleged eye-witness never made any reference during the investigation that Ankit was riding cycle.
23. Ankit further claimed that the tempo was of white and green colour and number of such tempo was noted by his uncle i.e. Sunny Chachu. This is very important and significant revelation by Master Ankit. Police should have made some investigation on the aforesaid lines and should have contacted such uncle of Master Ankit, who had allegedly noted down the number of the offending CA No. 202/2022 Kishan Kumar Vs. State Page 11 of 18 vehicle.
24. As regards identification of accused by Ankit, the statement is not of sterling quality, at all. PW-6 Ankit was specifically asked whether he had seen the driver of the tempo at the time of accident. He answered saying "slightly". This, in fact, does not serve the requisite purpose as in a criminal trial, the case is required to be proved beyond shadow of doubt. There is no scope of any kind of uncertainty and ambiguity.
25. Moreover, it is not a case where the accused had got down after causing the accident so that anyone got a chance to see him. As already noted above, as per the case of prosecution, the tempo driver fled from the spot immediately while speeding away his tempo and in such a situation, it may not be, even otherwise, possible for such young boy to have noticed the driver.
26. Moreover, the identification of accused by Ankit is found to be based on some different premise. When asked whether he could identify such driver, he answered in affirmative and claimed that accused had come to their house to see him when he had returned from the hospital. It is quite possible that he is identifying the accused merely because accused had visited his house subsequently and not because he had seen the accused at the spot.
27. Thus, the prosecution cannot dig out any real advantage from the statement of Master Ankit for multiple reasons.
CA No. 202/2022 Kishan Kumar Vs. State Page 12 of 18Firstly, it is not explained as to why his statement was not recorded during investigation. Secondly, his identification before the court is found to be indecipherable and hazy. It's neither convincing nor fully dependable. Thirdly, he has not shown any consistency while mentioning about the manner in which the accident had taken place. Fourthly, Master Ankit had merely described the tempo as of white and green colour but if the photographs of the tempo are seen, it is noticed that it was having a prominent full-size banner of Coca-Cola in red background on both the sides. For any such boy of young age, it was the easiest thing to have recalled instead of making mention of green colour, which was visible only in the front side of the tempo. There is no green colour either on the sides or on the rear. It is also indeed surprising as to why the parents of the injured were not contacted during the investigation and why their statements were not recorded. As per Lakhan Singh, mother of Ankit had come to a private hospital and, therefore, she should have been contacted. The uncle of Ankit, who had reportedly noted down the number, was also not contacted. I have seen the testimony of other police officials but fact remains that in light of my foregoing discussion, I am inclined to grant benefit of doubt to accused as it does not stand proved beyond shadow of doubt that he was the one who had caused the accident in question. In such a situation, there is hardly any need to discuss about the manner of driving. Therefore, the accused is liable to be acquitted of offences u/s 279/338 IPC.
28. Coming to the offence of using a forged driving licence, let me see the relevant penal provision. Section 471 IPC reads as under:-
CA No. 202/2022 Kishan Kumar Vs. State Page 13 of 18"Whoever fraudulently or dishonestly uses as genuine any document or electronic record which he knows or has reason to believe to be a forged document or electronic record, shall be punished in the same manner as if he had forged such document or electronic record".
29. On careful perusal of the entire record, I am of the considered opinion that the prosecution has been able to prove its case for offence under Section 471 IPC. Accused himself admitted that he was having a driving licence in question. Same was seized by the police from him during the investigation stage itself. In his statement u/s 313 read with 281 Cr.P.C., he claimed that he was not aware about the authenticity of such licence as he got the same prepared through some agent. I may also mention here that he did not enter into witness box and did not examine anyone in his defence either.
30. I have seen the testimony of PW8 Sh. Mohan Lal Dhiman, RTO, UNA Himachal Pradesh which categorically indicates that the driving licence recovered from the possession of accused had not been issued by the office of RTO, Una.
31. Thus, it becomes very much obvious from the evidence led on record and from the defence version that accused was in possession of forged driving licence which he got prepared through some agent. Though the charge was also for commission of offence u/s 468 IPC, but the Ld. Trial court, very rightly, acquitted the accused for offence under Section 468 IPC as there was nothing CA No. 202/2022 Kishan Kumar Vs. State Page 14 of 18 on record which could indicate that accused had himself committed the forgery. Though the element of forgery on the part of accused was not proved but it is very much noticeable that he was found in possession of forged driving licence. He himself had produced the same before the police. Reference be made to the testimony of PW5 Sh. Rajeev Singh as well as PW10 Insp. Raman Pratap. PW5 Sh. Rajeev Singh had received notice under Section 133 Motor Vehicles Act and pursuant to such notice, he produced accused before the police. He has also deposed that the documents of the tempo i.e. registration certificate, fitness certificate, insurance as well as driving licence of accused Kishan Kumar were seized vide memo Ex. PW5/C. PW-10 Insp Raman Pratap has also deposed that on 25.08.2014, Rajeev Singh had come to the Police Station and produced his driver Kishan Kumar as well as the offending tempo. He has also deposed that Sh. Rajeev Singh had given reply to the notice in his own handwriting and such reply has been proved as Ex. PW5/A. He also deposed that he had seized the documents i.e. RC, fitness certificate, insurance of the tempo and driving licence of accused Kishan Kumar through seizure memo Ex. PW5/C.
32. I have seen such all-important seizure memo Ex. PW5/C and it is very much apparent that all the relevant documents related to tempo as well as driving licence in question were produced by none other than accused Kishan Kumar in the presence of Sh. Rajeev Singh. Thus, it is manifest that accused Kishan Kumar had himself and voluntarily submitted the driving licence to the police. When the police tried to ascertain the genuineness of the same, it came to fore that it was a forged one which had never been CA No. 202/2022 Kishan Kumar Vs. State Page 15 of 18 issued by the concerned Transport Authority of Una. Letter Ex. PW9/A was also sent to concerned licensing authority and it was replied that no such driving licence had been issued by their office as per office record. Moreover, PW8 Sh. Mohan Lal Dhiman, RTO, Una has also categorically deposed in this regard. As already noticed above, the accused also has not come up with any plausible explanation in this regard. He is simply trying to pass on the buck to some unknown agent. By submitting a forged driving licence, he wanted to mislead and thereby deceive the police authorities by projecting as if he was having a valid driving licence. Quite possibly, he might be driving for his owner but in view of disruptive testimony of Lakhan Singh, it shall be a mere hypothesis. Be that as it may, it stands established that he, in a fraudulent and dishonest manner, submitted a forged driving licence before the police authorities. His such act of submission of forged driving licence clearly attracts Section 471 IPC. It amounts to 'user'. It is not a case where on the basis of any random search, accused was found in possession of any forged document. He, on his own, and all by himself had submitted the forged driving licence knowing fully well that it was not a genuine driving licence.
33. I am also fortified in this regard by Emperor v. Mohit Kumar Mukherjee, AIR 1926 Cal 89, wherein it has been categorically observed that if a person fraudulently or dishonestly presents a document to another person, knowing or having reason to believe such document to be a forged document, the document is "used as genuine" within the ambit of Section 471 IPC. It is also held therein that when a person is called upon to produce a CA No. 202/2022 Kishan Kumar Vs. State Page 16 of 18 document and he produces the same, knowing or having reason to believe the same to be a forged document, such person cannot claim absolution. In the present case also, production of forged driving licence was voluntary act and he deliberately used the document by submitting the same before the police with clear intent to mislead the police. Thus, for all practical purposes, it was "user" within the scope and ambit of Section 471 IPC.
34. Reference be also made to King Emperor v. Bansi Sheikh, AIR 1924 Cal 718 in which it has been held that if a person puts forward a document as supporting his claim in any matter, whether such document is acted upon by the court or used in evidence is immaterial for the purpose of constituting use of the document by the party within the meaning of Section 471 IPC. The mere production of document in support of the claim made by the accused was regarded as sufficient for the purpose of determining the guilt under Section 471 IPC.
35. Thus, conviction of appellant under Section 471 IPC is justified.
36. As an upshot of my aforementioned discussion, I hereby allow the appeal in part. Accused is acquitted of charges under Section 279/338 IPC but at the same time, his conviction for offence under Section 471 IPC is maintained.
37. As far as sentence is concerned, the Ld. Trial court had awarded him rigorous imprisonment for one year for offence under CA No. 202/2022 Kishan Kumar Vs. State Page 17 of 18 Section 471 IPC. However, keeping in mind the overall facts of the case, I reduce such sentence to a period of SI for six months and simultaneously, he shall, as already directed, pay a fine of Rs. 9184/- towards recovery of cost of proceedings. In case, he fails to deposit the aforesaid fine amount, he would undergo SI for another 15 days. Needless to mention that since he has been acquitted of the charges under section 279/338 IPC, the order of payment of compensation also automatically goes away.
38. Accused be taken into custody to serve the sentence and be sent to jail under appropriate warrants.
39. Needless to emphasize, accused shall be entitled to benefit of section 428 Cr.P.C.
40. A copy of this judgment be given free of cost to convict.
41. Trial Court Record be sent back along with copy of this judgment.
42. Appeal file be consigned to record room.
Digitally signedMANOJ by MANOJ JAIN Date: Announced in open court On 28.09.2022 (sv) JAIN 2022.09.28 15:49:56 +0530 (Manoj Jain) Principal District & Sessions Judge: South West District Dwarka Courts/Delhi CA No. 202/2022 Kishan Kumar Vs. State Page 18 of 18