Delhi District Court
Police Station: Sarita Vihar State vs . Mohd. Javed Page No. 1 Of 9 on 28 January, 2015
IN THE COURT OF SHRI ARVIND BANSAL
METROPOLITAN MAGISTRATE (SOUTH-EAST) -05
SAKET COURTS : NEW DELHI
JUDGMENT
FIR No.: 214/00 Police Station: Sarita Vihar I D No. 02403R0259832003 U/s 279/338 IPC State Versus Mohd. Javed s/o Sh. Noor Mohammad r/o H. No. 553, Azim Dairy, Okhla Gaon, New Delhi.
.... Accused
(a) Date of Institution: 08.06.2001
(b) Date of Offence: 11.06.2000
(c) Plea of accused: Pleaded not guilty and claimed trial
(d) Argument heard and
reserved for order: 03.01.2015
(e) Final Order: Convicted
(f) Date of Judgment: 28.01.2015
Brief Statement of reasons for decision of the case:
1. In a nutshell, case of the prosecution is that on 11.06.2000 at about 1:00 pm Near Shop No. 4B, Main Market, Madanpur Khadar, New Delhi within the jurisdiction of PS Sarita Vihar, accused was found driving a car bearing no.FIR No. 214/00
Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 1 of 9 DNJ 4905, without any valid license, in a rash and negligent manner and as a result thereof he struck against a pedestrian namely K.K. Bhattacharya and caused him grievous injury and thereby committed the offence u/s 279/338 IPC r/w S. 3/181 M. V. Act. FIR was got registered. Complainant / injured was medically examined. Statements of witnesses were recorded and finally, upon completion of necessary investigation, charge sheet u/s 173(2) Cr.P.C. was presented to the Court against the accused for trial. Court took cognizance of the offence and proceeded against the accused.
2. Pursuant to appearance of the accused, he was supplied the copy of charge sheet / documents in compliance of section 207 Cr.P.C. and matter was listed for arguments on Notice. Upon hearing the arguments advanced at bar by learned counsel for the parties and on perusal of the judicial file, prima facie case against the accused for the offence punishable u/s 279/338 IPC r/w S. 3/181 M. V. Act was found to be made out. Notice u/s 251 Cr.P.C. was separately served and explained to the accused to which he pleaded not guilty and claimed trial. Matter was then listed for Prosecution evidence.
3. In order to substantiate and prove its case against the accused, prosecution examined six witnesses.
PW1 K. K. Bhatacharya testified that on 11.06.2000 at about 1 pm, he was going to Madanpur Khadar from Sarita Vihar and when he reached near Anand Book Shop, a Fiat car bearing no. DNJ 4905 came from his back side and hit against him. Driver of said car was driving his car at a fast speed. Due to impact, he fell down on the spot and vehicle dragged him for about one metre and he received injuries on right hand, right leg and left side of face.
FIR No. 214/00Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 2 of 9 Some public persons came at the spot and helped him. Accused met him in Holy Family Hospital. His statement Ex. PW1/A was recorded by IO. Site plan was prepared at his instance by the IO. Witness correctly identified the accused in the Court. Accused did not dispute the identity of offending vehicle. The witness was cross examined by defence counsel.
PW2 ASI Kartar Singh proved DD No. 10A as Ex. PW2/A and DD No. 11A as Ex. PW2/B (OSR).
PW3 ASI Gyasi Ram proved the present FIR as Ex. PW3/A. PW4 Ct. Prakash testified that on 11.06.2000, on receipt of DD No. 10A regarding an accident at Main Market, Madanpur Khadar, he along with IO / HC Udaiveer Singh reached the spot where they found a fiat car bearing no. DNJ 4905 and came to know that injured had been removed to hospital by driver of said car. In the meantime, Ct. Krishan Kumar came from police station along with DD No. 11A regarding admissions of injured at Holy Family Hospital. Leaving him at the spot, IO reached Holy Family Hospital. IO along with driver of said car came at the spot and prepared rukka and handed over him for registration of FIR. He went to police station, got FIR registered and came back to spot along with copy of FIR and original Rukka and handed over both these documents to IO. IO prepared site plan. Car was seized vide seizure memo Ex. PW4/A. Accused was arrested and personally searched vide memos Ex. PW4/B & Ex. PW4/C respectively. IO recorded his statement.
PW5 Raj Anand Semwal proved the mechanical inspection report of car FIR No. 214/00 Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 3 of 9 bearing no. DNJ 4905 as Ex. PW5/A. PW6 IO / ASI Udaiveer Singh reiterated the assertions made by PW4. He inter alia stated that accused was present in the hospital and complainant / injured identified him. He proved Rukka as Ex. PW6/A and site plan as Ex. PW6/B. Vide separate statement recorded u/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, accused admitted the genuineness of MLC No. 0017082 dated 11.06.2000 of Kamal Kumar Bhattarcharya prepared by Dr. Ali Yawar of Holy Family Hospital and X-ray report of Radiologist Dr. Venu Gangahar of Holy Family Hospital dated 11.06.2000 of K K Bhattacharya.
4. In his statement recorded u/s 313 Cr.P.C., the accused denied the prosecution case in its entirety and pleaded innocence and false implication. He stated that he was not driver of said car and did not know how to drive. He stated that he had gone to Madanpur Khadar for some personal work and when he saw the injured on road, he went to rescue him. The public persons caught hold of him thinking that he had caused the accident and was handed over to police. However, accused chose not to lead defence evidence.
5. I have heard the learned APP for the State and legal aid counsel for the accused at length. I have also carefully perused the entire judicial record.
Appreciation of Evidence
6. It is the case of the prosecution that the accused who was driving the FIR No. 214/00 Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 4 of 9 offending car, failed to take care and guard against any probable danger arising out of the said driving and thereby, caused grievous injury to one K K Bhattacharya owing to his rash or negligent act.
It is argued on behalf of the prosecution by learned APP that the case against the accused stands proved through the testimony of public witness / injured PW1 K K Bhattcharya corroborated by the testimony of IO of the case and other police witnesses. It is stated that all the necessary ingredients of the charged offences stand proved thus, accused be convicted.
It is argued by the legal aid counsel that accused has been falsely implicated by complainant. It is argued that accused was never the driver of offending vehicle and did not know how to drive. It is submitted that it was, therefore, that accused was not found carrying any driving license. It is also stated that accused went to hospital with injured and testimony of PW1 and PW6 to this effect is false. It is also argued that prosecution has failed to prove any kind of negligence on the part of accused to connect the alleged incident and the driving of accused.
7. To prove the offence punishable u/s 279/338 IPC, the prosecution is required to prove the following mandatory ingredients : i) The rash or negligent act / driving which is likely to cause hurt or injury to any other person and ii) that the said rash or negligent act of the accused was the proximate cause of the injury sustained by the victim.
At this stage, it is relevant to quote the following observations of Hon'ble Supreme Court in case titled Rathnashalvan v. State of Karnataka AIR 2007 SC 1064 while dealing with a case u/s 304A IPC:
"7. ...Culpable negligence lies in the failure to exercise reasonable and FIR No. 214/00 Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 5 of 9 proper care and the extent of its reasonableness will always depend upon the circumstances of each case. Rashness means doing an act with the consciousness of a risk that evil consequences will follow but with the hope that it will not. Negligence is a breach of duty imposed by law. In criminal cases, the amount and degree of negligence are determining factors. A question whether the accused's conduct amounted to culpable rashness or negligence depends directly on the question as to what is the amount of care and circumspection which a prudent and reasonable man would consider it to be sufficient considering all the circumstances of the case. Criminal rashness means hazarding a dangerous or wanton act with the knowledge that it is dangerous or wanton and the further knowledge that it may cause injury but done without any intention to cause injury or knowledge that it would probably be caused.(underlining added)
8. As noted above, "Rashness" consists in hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury. The criminality lies in such a case in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence on the other hand, is the gross and culpable neglect or failure to exercise that reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular, which, having regard to all the circumstances out of which the charge has arisen it was the imperative duty of the accused person to have adopted."
8. In the present case, the only material independent public witness cited, produced and examined by the prosecution to prove the necessary ingredients of charged offence against the accused is injured K K Bhattacharya.
Injured categorically deposed that while he was going to Madanpur Khadar on foot and had reached near Anand Book Shop, accused driver while driving his car at a high speed hit against him from the back side. He also deposed that as an impact of collision, he fell down on road and was dragged by the car to a distance of about one metre. He also testified that car crossed over him and as a result thereof, he suffered injuries on his right hand, right leg, left side of face and other parts of his body. During cross-examination, witness stated that he was on conscious after the accident and saw the number of vehicle on the spot. He denied the suggestion that accused was not driving the offending vehicle nor did the said vehicle hit against him. He also denied the FIR No. 214/00 Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 6 of 9 suggestion that accused had been falsely implicated.
Now, the Court is required to see whether in these facts and circumstances, the act/driving of accused was either rash or negligent. From the appreciation of testimony of the complainant / injured as well as from the scrutiny of site plan placed on record by the IO, it is explicit that complainant / injured was on foot and walking on the extreme left side of the road and therefore, the driver of offending vehicle was under duty to see the pedestrian and drive the vehicle accordingly. The accused has not suggested anything to the witness regarding the manner in which the entire alleged incident took place. The witness was not questioned either on the traffic movement on the road at that relevant time, nor regarding the speed of vehicle, nor regarding the side of road where either the vehicle was driven or injured was walking and nor about any contributory negligence on the part of injured.
Although, accused challenged the allegation that he was driving the offending vehicle through a suggestion to the witness, the same, in opinion of the Court did not have any effect on the testimony of injured as accused did not dwell further on that line of defence positively by asking any question to the witness. Injured was not cross-examined on any material aspect of his testimony and thus, the accused could not elicit any contradiction or doubt from the same.
9. Accused is alleged first to have driven the offending car at a high speed and secondly, to have dragged the injured to a distance of about one metre. In the opinion of Court, the driver of offending car was under duty to take care that car is driven at a moderate speed which could be controlled, if the situation so arises and to keep in mind the traffic movement and the movement of FIR No. 214/00 Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 7 of 9 pedestrians at a place near to market which is prone to accidents. Thus, the accused driver failed to check a foreseeable situation and to run his vehicle at a speed which was controllable at the given location. Accused, thus, failed to take necessary care expected from the driver of a car in the aforesaid circumstances. Such a conduct definitely falls within the ambit of culpable rashness/negligence. The accused, thus, breached both the obligations placed on him by the law of the land as well as the ordinary prudence of a driver.
10. To the case of prosecution, it is the defence of accused that he was not driving the offending vehicle and he merely come forward to help the injured and during this process, he was apprehended by public and handed over to police. It is also contended on behalf of accused that he never visited the hospital and the testimony of eye witness and IO to this effect is false.
The injured during his testimony, correctly identified the accused as driver of offending vehicle. He also categorically provided the number of offending fiat car. The witness also deposed that he had identified the accused at the spot as well as in the hospital. Injured also denied the suggestion that he had seen the accused for the first time in the hospital. No contradiction could be brought to record during cross examination of injured and he stood to his guns clearly stating that the accident took place due to the negligent driving of accused.
Thus, the identity of vehicle as well as the accused as driver of offending vehicle stands established. This fact also stands corroborated from testimony of IO / PW6 who deposed that accused driver was present in the hospital and complainant / injured had identified him in his presence. The contention of accused that he never visited the hospital also gets negatived by FIR No. 214/00 Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 8 of 9 the double blow of the testimony of injured and IO. In fact, the accused in his separate statement recorded by Court on 07.10.2013, did not dispute the identity of offending vehicle.
11. The injury suffered by complainant stands established from his own testimony as well the MLC Ex. A1. The genuineness of X-ray (Ex. A2) report of complainant / injured was also not disputed by accused. The doctor has opined the injury to be grievous. The X-ray report also proves fracture as deposed by injured.
Thus, the fact that accused was driving the offending car stands proved from the direct testimony of injured. The nature of driving to be rash or negligent is also discussed in above paras and is so held by this Court. Lastly, complainant suffered injury due to his collision with rashly driven and so, this rash / negligent driving of accused was the only cause of injury sustained by injured.
12. In view of the discussion in preceding paragraphs, Court is of the opinion that prosecution succeeded in bringing home the guilt of accused on the standard of beyond reasonable doubt by proving the necessary ingredients of the charged offence. Accused Mohd. Javed, is accordingly, convicted for the offence u/s 279/338 IPC.
Announced in the Open Court on January 28, 2015 (ARVIND BANSAL) Metropolitan Magistrate (South-East)-05 Saket Courts, New Delhi FIR No. 214/00 Police Station: Sarita Vihar State vs. Mohd. Javed Page no. 9 of 9