Delhi District Court
State vs Rakesh Kumar on 22 May, 2024
IN THE COURT OF METROPOLITAN MAGISTRATE-07,
SOUTH-WEST, DWARKA COURTS,
NEW DELHI
Presided over by- Sh. Visvesh, DJS
Cr. Case No. -: 820/2020
Unique Case ID No. -: DLSW020045852020
FIR No. -: 395/2019
Police Station -: Chhawala
Section(s) -: 279/338 IPC
In the matter of -
STATE
VS.
RAKESH KUMAR
S/o Sh. Ramesh Kumar
R/o H. No. 681, near railway station,
Vill. Bijwasan
New Delhi .... Accused
1. Name of Complainant : HC Ombir
2. Name of Accused : Rakesh Kumar
Offence complained of or
3. : 279/338 IPC
proved
4. Plea of Accused : Not guilty
Date of commission of
5. : 23.09.2019
offence
6. Date of Filing of case : 24.01.2020
7. Date of Reserving Order : 15.05.2024
8. Date of Pronouncement : 22.05.2024
Acquitted of all the charges
9. Final Order :
alleged
Argued by -: Sh. Vishvjeet Yadav, Ld. APP for the State.
Ms. Poonam Rana, Ld. counsel for the accused.
BRIEF STATEMENT OF REASONS FOR THE DECISION:
FACTUAL MATRIX-Cr. No. 395/2019 State vs. Rakesh Kumar Page 1 of 12
1. It is the case of prosecution that on 23.09.2019 at about 11pm near St. Thomas School, Goyla Dairy, Delhi, within the jurisdiction of Police Station Chhawala, the Accused Rakesh Kumar was driving a car bearing No. DL1LV0020 rashly and negligently in such a manner so as to endanger human life and personal safety of others and while driving so the aforesaid vehicle hit against bicycle of the injured Keshvanand Ray and caused grievous injuries to him, thereby committing offences punishable under Sections 279/338 of Indian Penal Code (hereinafter, the 'IPC').
2. After conclusion of investigation, instant chargesheet was filed under Section 279/337/304A IPC. Cognizance of the offences disclosed in the chargesheet was taken, and accused was summoned to face trial.
3. When the accused entered appearance before this Court, copy of chargesheet was supplied to him in compliance of Section 207 CrPC.
A formal notice explaining to him the substance of accusation against him was served upon the accused on 14.10.2020. Accused pleaded not guilty to the offences alleged against him, and claimed trial. Proceedings then progressed to the stage of PE and prosecution examined nine witness to prove its case.
PROSECUTION EVIDENCE
4. Prosecution first examined the injured, Keshvanand Ray as PW-1 who deposed that on 23rd of September 2019, he was going to his house from Dwarka on his cycle and suddenly an EECO van came from behind and the vehicle was being driven in a zigzag manner and the vehicle hit his cycle from behind due to which he fell down and suffered injuries. He also stated that he got into an altercation with the driver of the vehicle and the meanwhile public persons also gathered at the spot. He then deposed that someone called at 100 number and thereafter the police came to the spot. Then, it was stated that one of his acquaintances came to the spot and took him to the hospital Cr. No. 395/2019 State vs. Rakesh Kumar Page 2 of 12 wherein he lost consciousness. He deposed in respect of the registration number of the vehicle and identified the accused in the present matter as the one driving the vehicle. He stated that the police officials came to his house on the next day wherein he had informed them about the vehicle number and that he was called to the police station on 29th of September 2019 along with his cycle. It was stated that the police had obtained the signature on some documents. He affirmed the attestation on the site plan but stated that it was not prepared in his presence. He also affirmed his complaint, seizure memo of his bicycle, arrest memo of the accused and his statement and also identifed the photographs of both the offending vehicle and his own bicycle.
5. Under cross-examination, when being confronted with his previous statement, he stated that he had told the police that he became unconscious on reaching the hospital where the same was not so in his statement under section 161 Cr.P.C. He stated that the incident occurred around 10- 11:00 PM and no street light was installed either in the middle or along the road where the accident took place. He stated that he had noted the accused driving in a zigzag manner for about 150 - 100 yards from the place of incident has stated that he had looked back toward the accused after hearing horn of the vehicle. He then stated that he was taken to the hospital by one person namely Hemant. He then stated that he remained at the spot for about half an hour after the incident and thereafter shifted to the hospital. He also stated that he met the police firstly at the spot and when the police arrived, the Hemant was already present at the spot. He admitted that no statement of the said Hemant was recorded by the police in the instant case and stated that Hemant met the police at the spot and also at the hospital and admitted Hemant to be a co-worker in the same office in which he is employed. He then stated that he is a teetotaler Cr. No. 395/2019 State vs. Rakesh Kumar Page 3 of 12 and denied the suggestion that of the day of the incident he was highly drunk and unable to control the bicycle owing to which he lost control and came before the offending vehicle he also denied the suggestion that he was too intoxicated and due to which he was unfit to give statement did not cooperate with the doctors for breath analysis test.
6. Prosecution next examined PW-2 who is a formal witness who has deposed in respect of the formalities of the investigation in the present case.
7. Prosecution next examined PW-3/IO HC Ombir, who stated that he was posted at the PS on the concerned date wherein upon receiving intimation by DD No. 70A, he went along with PW - 2 to the spot of the incident wherein no injured or accidental vehicle was found and no eyewitness was present at the spot. He stated that upon receiving intimation from the hospital regarding the injured being admitted therein, he went there along with PW - 2 wherein the injured PW - 1 was found under treatment and as per the MLC, he was stated to be under the influence of alcohol and was unfit for statement. He again stated that no eyewitness was found at the hospital and they came back to the PS and prepared the tehrir and got the present FIR registered. He then deposed that on 27th of September 2019, he went to the house of the injured who stated that the accident was caused due to the rash and negligent driving of the offending vehicle bearing number DL 1LV0020 by the accused but it was stated that the injured will give his statement at a later stage. He stated that during investigation he verified the ownership of the offending vehicle, which was registered in the name of the registered owner where notice was served upon him on 29th of September 2019 wherein he gave a written reply that the person arrayed as an accused was driving the vehicle on the said date and time.
8. He then stated that during this time, the injured also came to the PS Cr. No. 395/2019 State vs. Rakesh Kumar Page 4 of 12 and identified the accused to be the driver of the offending vehicle at the time of the incident when he recorded the statement of the complainant who had also produced his bicycle before him. He then stated that he went along with the complainant and PW-2 to the spot of the incident wherein he prepared the site plan at the instance of the complainant and they came back to the PS. He then stated that he arrested the accused at the instance of the complainant and was subsequently released on execution of police bail. He then stated that he seized the offending vehicle by way of seizure memo and also the victim bicycle in addition to seizing the DL, fitness and insurance of the offending vehicle. He then stated that on 1st of October 2019, he got both the vehicles mechanically inspected and after verification, the documents were found to be genuine. He then stated that on 7th of October 2019, he received the result of the MLC of the injured and the nature of injuries was declared to be grievous by the doctors concerned and the relevant section of 338 IPC was added to the instant case. He stated that upon conclusion of investigation, instant chargesheet was prepared and same was filed. He identified the accused and the vehicles involved in the incident. The cross examination of the said witness is merely composed of suggestions to the contrary that he had not investigated the matter in a fair manner
9. In terms of Section 294 Cr.P.C., accused admitted the genuineness of FIR No. 395/2019 along with certificate and relevant DD entries, mechanical inspection report of both vehicles involved. Accordingly, remaining witnesses were dropped from the list of witnesses to be examined by the prosecution. PE was closed thereafter.
10. Accused was then given an opportunity to explain all the incriminating circumstances appearing against him at trial, and his statement was recorded under Section 313/281 CrPC. He submitted the he is innocent and he have been falsely implicated in the present Cr. No. 395/2019 State vs. Rakesh Kumar Page 5 of 12 matter. The said accident was not caused by him. Accused opted not to lead DE in the affirmative.
11. Proceedings then progressed to the stage of final arguments. Final arguments heard. Record perused. Considered.
12. Before proceeding further, it shall be apposite to note the provisions of law germane for the adjudication of present proceedings:
279 IPC- Rash driving or riding on a public way-
Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt to injury to any other person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.
337 IPC- Causing hurt by act endangering life or personal saferty of others-
Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.
13.Liability for the aforesaid offences can be affixed upon the Accused only if the prosecution is able to prove he was "rash or negligent"
when driving the offending vehicle, which resulted in the accident.
14. In Mohammed Aynuddin @ Miyam vs State Of Andhra Pradesh (2000) 7 SCC 72, the scope of the terms "rashness or negligence" was explained by the Hon'ble Supreme Court of India thus, "A rash act is primarily an over hasty act. It is opposed to a Cr. No. 395/2019 State vs. Rakesh Kumar Page 6 of 12 deliberate act. Still a rash act can be a deliberate act in the sense that it was done without due care and caution. Culpable rashness lies in running the risk of doing an act with recklessness and with indifference as to the consequences. Criminal negligence is the failure to exercise duty with reasonable and proper care and precaution guarding against injury to the public generally or to any individual in particular. It is the imperative duty of the driver of a vehicle to adopt such reasonable and proper care and precaution."
15. With the above in mind, the facts of the case shall be adverted to. In order to prove the guilt of the Accused, the prosecution had to establish-
i. That the accident took place on a public way.
ii. That the offending vehicle was involved in the accident.
iii. That the offending vehicle was being driven by the Accused Rakesh Kumar at the relevant time.
iv. That the accident took place because of the 'rashness or negligence' of the driver of the offending vehicle.
v. That in the accident that took place, grievous injuries were sustained by the injured Keshvanand Ray
16.Once when liability is affixed under Section 279 IPC, it will be examined if accused can be held guilty for the offence punishable under Section 338 IPC too - that is, whether the accident caused because of rash or negligent driving of the accused resulted in, grievous injury to a third party. The question of injuries has to be examined only once the rashness or negligence is established.
Cr. No. 395/2019 State vs. Rakesh Kumar Page 7 of 1217. It is seen that evidence led in the case is largely ocular in nature. The same shall be scrutinized as per the following principles laid down by the Hon'ble Supreme Court of India in its judgment titled Shahaja @ Shahajan Ismail Mohd. Shaikh vs State Of Maharashtra dated 14.07.2022 in Criminal Appeal no. 739/2017-
"I. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.Cr. No. 395/2019 State vs. Rakesh Kumar Page 8 of 12
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
See Bharwada Bhoginbhai Hirjibhai v. State of Gujarat, 1983 Cri LJ 1096: AIR 1983 SC 753, Leela Ram v. State of Haryana, AIR 1999 SC 3717, and Tahsildar Singh v. State of UP, AIR 1959 SC 1012]"
18.At the outset, PW-2 is a formal witness who was accompanying the IO and has exhibited relevant documents and his testimony is not repeated here for the sake of brevity.
19.The testimony of PW-1, being an injured eyewitness, is quite crucial to the case of the prosecution. However, his testimony is far from reliable. Initially, he has deposed that the offending vehicle came from behind and was being driven in a zig zag manner and hit him. He then Cr. No. 395/2019 State vs. Rakesh Kumar Page 9 of 12 stated that some of his known 1 came to the spot and took him to the hospital where he lost consciousness and stated that the police officials came to his house the next day when he informed the number of the offending vehicle. It is quite strange indeed that in respect of an accident which occurred on 23.09.2019 and the injured being presumably discharged and back at his home he would merely state the number of the offending vehicle to the police officials and get his statement recorded at the PS only on 29.09.2019, after a gap of 6 days after the incident which leaves scope for contemplation and deliberation as will be apparent in the succeeding paragraphs.
20.Another aspect which casts doubt on the testimony of PW-1 is that in his initial statement u/s 161 Cr.P.C. he has deposed that he fell unconscious at the spot itself wherein some person had taken him to hospital whereas in his deposition before court, he has stated that one Hemant took him to hospital, who was his known (being a peon in the same office in which PW-1 worked as a driver) and in the hospital, he fell unconscious. However, the MLC states that he was brought in by one Mr. Sanjay Yadav, stated to be a relative. Failure to recall such vital facts correctly is an aspect which casts doubt on the sense of perception and credibility on the testimony of PW-1. Another aspect of his testimony is that he stated that he remained at the spot for about half an hour after the incident and he met the police firstly at the spot wherein Hemant was present at the spot when police arrived and was also present at the hospital, whereas the testimony of PW-3 is directly contrary to the same. Another damning aspect noted in the MLC is that PW-1 himself was in intoxicated condition and refused to cooperate for breath analysis test. Even though his blood was preserved for alcohol concentration tests but the results were withheld and not brought on record for reasons best known to the investigating 1 Colloquially, an acquaintance Cr. No. 395/2019 State vs. Rakesh Kumar Page 10 of 12 agency and the benefit of the same has to accrue to the accused.
21.PW-1 himself failed to cooperate in breath analysis test and his general condition is noted in the MLC as drowsy and altered sense of time, both of which could also be a possible effect of excessive alcohol consumption and it is not clear whether the injured was recalling Mr. Sanjay Yadav as Hemant or otherwise, thus casting doubt on the power of recollection of the injured. Admittedly, the said Sanjay Yadav was not examined by the IO in the course of investigation. Human memory doesn't improve with time and the version of the Complainant has undergone quite a lot of improvements in the course of his testimony vis-à-vis the initial statement u/s 161 Cr.P.C recorded on 29.09.2019. It is also beyond contest that alcohol impairs judgement and sense of perception and it could have very well been the case that what he saw as zig zag could be his altered sense of perception of a vehicle coming towards him normally but due to his drunken stupor, he was riding his bicycle erratically and perceived the vehicle coming in zig zag manner.
22.The testimony of PW-3/IO is the final nail in the coffin wherein he has deposed that when he reached the spot, he did not find any injured or accidental vehicle (not even victim's mangled bicycle) and he affirmed that the injured was under the influence of alcohol as per the MLC. He then stated that he went to the house of the injured on 27.09.2019 wherein he was told the offending vehicle number but the injured stated that he will give his statement at later stage, which is quite unnatural. The IO then proceeded to 'investigate' the alleged given vehicle number and served notice u/s 133 MV Act on the owner wherein the owner appeared along with the Accused driver on 29.09.2019 at the PS and the injured/PW-1 happened to be there by pure happenstance alongwith his bicycle and identified the driver. Now, the investigation resumed at lightspeed and the statement of the Cr. No. 395/2019 State vs. Rakesh Kumar Page 11 of 12 injured was then recorded and the alleged site plan got made and they both went to the site of the incident - all this being done after an unexplained lapse of 6 days from the incident, which smacks of an armchair investigation done after due deliberation and premeditation either at the instance of the injured or the IO in the intervening days between 23.09.2019 and 29.09.2019, taking away the aspect of fairness and credibility in the investigative process itself.
23.Thus, none of the ingredients (ii) to (v) could be even reasonably established by the prosecution, let alone beyond reasonable doubt.
24.In the absence of any other evidence, the Accused is entitled to benefit of doubt and thus the Accused Rakesh Kumar is acquitted of the offence under section 279/338 IPC.
Digitally signed by VISVESH VISVESH
Date: 2024.05.22 11:38:54
+05'30'
(VISVESH)
Metropolitan Magistrate-07
South-West District, Dwarka Courts,
New Delhi, 22.05.2024
Cr. No. 395/2019 State vs. Rakesh Kumar Page 12 of 12