Delhi District Court
State vs . Sandeep Kaur Chauhan on 12 April, 2018
IN THE COURT OF SH. GAGANDEEP JINDAL: MM09: SOUTHEAST
DISTRICT: SAKET COURTS: NEW DELHI
FIR No.43/2011
U/s 279/337/338 IPC
PS Lodhi Colony
State Vs. Sandeep Kaur Chauhan
Date of Institution of Case : 01.07.2011
Date on which the case is received in this court : 04.04.2018
Judgment Reserved for : 07.04.2018
Date of Judgment : 12.04.2018
JUDGMENT:
(a) CIS Number : 91787/2016
(b) The date of commission of offence : 20.03.2011
(c) The name of complainant : Sh. Yash Pal Singh
S/o Satnarayan
(c) The name, parentage of accused : Sandeep Kaur Chauhan
D/o Sh. Avtar Singh
Chauhan, R/o House
No.303, Tower No.12,
Commonwealth Games
Village Apartments, near
Akashdham, New Delhi.
(e) The offence complained of : 279/337/338 IPC
(f) The plea of accused : Not guilty
(g) The final order : Acquitted
(h) The date of such order : 12.04.2018
FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 1 of 9
Brief statement of the reasons for the decision:
1 Brief facts of the case are that on 20.03.2011, at about 8:20 am, at
crossing near Block No.13 & 14, Lodhi Colony, New Delhi, accused Sandeep Kaur Chauhan was driving Car bearing registration no.DL9CW5501 in a rash and negligent manner and while so driving, the accused hit against one motorcycle bearing registration no.DL9SAA4689 due to which Sh. Arvind suffered simple injuries and Sh. Yash Pal Singh suffered grievous injuries. Therefore, the accused was arrested for the offences under Section 279/337/338 IPC.
2 After the accused appeared in the court, copies of chargesheet and other documents were supplied to the accused. Notice under Section 279/337/338 IPC was framed against the accused. The accused pleaded not guilty and claimed trial. Thereafter, the matter was listed for prosecution evidence. 3 In the prosecution evidence PW1 Sh. Yash Pal Singh is the complainant who reiterated the facts as mentioned in the complaint Ex.PW1/A. 4 PW2 is Sh. Arvind Rawat who was the pillion rider on motorcycle being driven by PW1 and also sustained injuries.
5 PW3 is Sh. T.U. Siddiqui, Mechanical Inspector who mechanically inspected the vehicle bearing registration number DL9CW7501 and DL9SAA 4689 and prepared his reports Ex.PW3/A and Ex.PW3/B. 6 PW4 ASI Om Prakash was the Duty Officer who registered the present FIR.
7 PW5 Ct. Manorama arrived at the spot alongwith IO and Ct. Sandeep after receiving the DD entry regarding the accident. She is the witness to the arrest memo, personal search memo Ex.PW5/A to Ex.PW5/C and she is also the witness of seizure memos Ex.PW5/D and Ex.PW5/E for seizing both the vehicles involved in the accident.
FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 2 of 98 PW6 Sh. Vipin Singh Lingwal and PW7 Sh. Manjeet Singh are friends and eyewitness to the accident who were coming on another motorcycle behind PW1 and PW2.
9 PW8 SI Shish Pal Bhatti is the IO of the present case who proved the documents i.e. arrest memo, personal search memo and seizure memo Ex.PW5/A to Ex.PW5/E and deposed about the investigation conducted by him. 10 PW9 Dr. Rahul Upadhaya proved the MLC of patient Arvind Ex.PW9/A. 11 PW10 Ct. Sandeep had accompanied the IO during the investigation. 12 PW11 Sh. Hayat Singh produced the record of MLC of patient Yash Pal Singh Ex.PW11/A. 13 Thereafter, prosecution evidence was closed and matter was listed for recording of statement of the accused U/s 313 Cr.P.C. In her statement recorded U/s 313 Cr.P.C. all the incriminating evidence were put to the accused and explained her to which she stated that she is innocent and has been falsely implicated by the police in this case.
14 Accused examined herself as DW1 and Sh. Nisar Khan as DW2 in her defence. Defence evidence was thereafter closed and matter was listed for final arguments.
15 I have heard final arguments and I have perused the record. 16 Sh. Pravesh Vyas, Ld. APP for the State argued that accused was driving the offending car at high speed @ 70 KMPH beyond permissible limit which caused accident resulting into simple injuries to Arvind and grievous injuries to Yash Pal. Therefore, accused be convidted in this case. Ld. APP for the State relied upon the judgments (1) Ravi Kapoor Vs State of Rajasthan, Crl. Appeal No.1838/2009 (SC); (2) Syad Akbar Vs State of Karnataka AIR 1979 SC 1848; Kuldeep Singh Vs State of Himachal Pradesh SLP Crl. No.1944/2008 (SC). 17 On the other Ld. Counsel for accused argued that testimonies of PW1, FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 3 of 9 PW2, PW6 and PW7, who are eyewitnesses in this case, cannot be relied upon because there are lot of contradiction regarding the place of accident, the direction of offending car, speed of offending car, place of apprehension of accused etc. He further argued that it was festival of Holi on the day of accident. Complainant and his friends were under the influence of drug (Bhang) and were performing stunts with their motorcycle on the road. Due to their rash and negligent driving the accident took place. Accused on the date of accident lodged complaint with the police but no action was taken on her complaint. Accused examined herself as a witness and stated the true facts. Therefore, accused be acquitted.
18 I have bestowed my thoughtful considerations to the rival submissions made before me. Accused is indicted for offences u/s 279/337/338 IPC. Section 279 IPC punishes the offence of driving a vehicle in a manner "so rashly or negligently as to endanger human life, or to be likely to cause hurt or injury to any other person" ; and Section 337 IPC provides punishment for causing simple injuries while doing rash and negligent act; and Section 338 IPC provides punishment for causing grievous injuries while doing rash and negligent act. 19 Proof of rashness and negligence is required for section 279 IPC as also 337/338 IPC. To constitute either of the offences u/s 279 IPC or 337/338 IPC, proof of criminal rashness or criminal negligence is essential. In order to establish criminal liability the facts must be such that the negligence of the accused went beyond a mere matter of compensation and showed such a disregard for life and safety of others as to amount to a crime. 20 In order to bring home the guilt of the accused u/s 279/337/338 IPC, prosecution has to prove three aspects, firstly that the accused was car bearing registration no.DL9CW5501 that the said offending vehicle was being driven by the accused in rash or negligent manner causing the accident in question and FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 4 of 9 thirdly, in the said road accident victim Yash Pal sustained grievous injuries while Arvind sustained simple injuries.
21 In so far as the aforenoted third aspect is concerned, there has not been any serious challenge or dispute on the part of the accused. This aspect also stands sufficiently established by the statement of PW 9 Dr. Rahul Upadhay, who proved MLC of injured Arvind which is Ex.PW9/A wherein it is opined that Arvind sustained simple injuries. PW11 Sh. Hayat Singh proved the MLC of injured Yash Pal Singh Ex.PW11/A which shows the fracture of both tibia and fibula of left leg. Nature of injuries is opined as grievous in the MLC Ex.PW11/A. 22 It is worthwhile noting at this juncture that the above noted second aspect of the case that is rashness or negligence on the part of the accused can be deliberated upon only after the prosecution is successful in crossing the initial hurdle of proving first aspect that is the involvement of the offending vehicle as well as the accused to the driver of the same. To this effect prosecution had cited eye witness i.e. PW1, PW2, PW6 and PW7. During the arguments, the Ld. Counsel for accused fairly conceded that accused was driving the offending vehicle at the time of accident.
23 The only defence raised by the accused is that the accident was not caused due to her rash and negligent driving but due to the mistake of the motorcyclist Yash Pal Singh, who was performing stunts on the road.
24 PW1, PW2, PW6 and PW7 deposed that on the day of Holi 2011, they were going alongwith another friend Deep Chand Ramola on three motorcycles. PW1 and PW2 were on motorcycle bearing no.DL9SAA4689. PW6 and PW7 were on another motorcycle while Deep Chand was alone on third motorcycle. 25 PW1 Yash Pal Singh deposed that when he reached near Chauraha, 13/14 Road, he saw a Swift car bearing no.DL9CW7501 was coming from Seva Nagar FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 5 of 9 side from his left side at a very high side and hit his motorcycle from left side due to which he and Arvind fell down on the road. He also deposed that his friend Arvind fell down on the bonnet and front glass of Swift Car. 26 PW2 Arvind Rawat deposed that motorcycle was being driven by his friend Yash Pal and when they reached near Chauraha between Block No.13/14, Lodhi Colony, one Swift car bearing no.DL9CW7501 came from left side and hit their motorcycle. He could not able to see the vehicle, however, the said vehicle against us at high speed. As a result of collusion they fell down on the road and sustained injuries.
27 PW6 deposed that when they reached at Lodhi Road, one Swift car coming from the opposite side hit the motorcycle of Yash Pal from the left. Due to the implact Yash pal fell down on the road while Arvind fell on the bonnet of the car from some distance and later on the road. He further deposed that speed of offending car was around 7080 KMPH.
28 PW7 Manjeet Singh deposed that when they reached at Lodhi Road, one Swift car bearing no.7501 coming from the opposite side hit the motorcycle of Yash Pal from the left. Due to the impact Yash pal fell down on the road while Arvind fell on the bonnet of the car from some distance and later on the road. He further deposed that speed of offending car was around 6070 KMPH. 29 For proving the rash and negligent driving on the part of the accused the only allegation is that, offending vehicle was being driven at high speed. PW1 and PW2 failed to disclose the approximate speed of offending car while PW6 deposed that speed of offending vehicle was 7080 KMPH and PW7 deposed that speed of offending vehicle was 6070 KMPH.
30 During the cross examination, PW6 deposed that the distance between his motorcycle and Yash Pal motorcycle was 100 meters. As per the site plan Ex.PW5/A, the motorcycles were coming from right side road while offending FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 6 of 9 car was plying on 3rd Avenue Marg and was going towards Jor Bagh Road. Accident took place at point A as disclosed in the site plan Ex.Pw5/A. If the motorcycle of PW6 was behind 100 meters from the motorcycle of Yash Pal then it could not be possible for PW6 to see the offending car as he was present in right side road and the vehicles plying on 3 rd Avenue Road were not visible from the said road where PW6 was present. PW7 was also pillion rider of the motorcycle being driven by PW6, therefore, his testimony qua the speed of offending car can also not be relied upon. Thus, the speed of offending car at the time of accident is unknown on the basis of the testimonies of PW1 and PW2 sans the testimony of PW6 and PW7. The high speed is not the sole criteria for rash and negligent driving. There is no other evidence available on record to prove that accused was driving the offending car in rash and negligent manner at the time of accident.
31 In the case of State of Karnataka Vs. Satish, (1998) 8 SCC 493 & Abdul Subhan Vs. State(NCT of Delhi) ILC(2006)II, Delhi 882), it was observed by Hon'ble Apex Court as well as Hon'ble High Court of Delhi that mere allegation of high speed would not tantamount to rashness and negligence. The judgment in the case of State of Karnataka Vs. Satish (supra) was delivered by Division Bench of Hon'ble Apex Court whereas the judgment of the case 'Kuldeep Singh vs. State of Himachal Pradesh' is of single bench. Therefore, as per law of precedent I am bound by judgment of Division Bench Hon'ble Apex Court. 32 The testimonies of PW1, PW2, PW6 and PW7 are also not reliable for the contradictions and deficiencies as follows:
32.1 PW1 and PW2 deposed that the offending car was coming from left side whereas PW6 andOW7 deposed that the offending car was coming from opposite side.
32.2 PW6 and PW7 deposed that PW2 fell on the bonnet of the offending FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 7 of 9 car after the accident whereas PW1 and PW2 deposed that PW2 fell on the road after the accident.
32.3 PW1 and PW2 deposed that accident took place at Chaurha of Block No.13 and 14 of Lodhi Colony whereas PW6 and PW7 deposed that accident took place at Lodhi Road. Both the spots are far away as depicted in the site plan Ex.PW5/A. 32.4 PW1, PW2, PW6 and PW7 that they were on three motorcycles alongwith their another friend Deep Chand who shifted PW1 and PW2 to the hospital in a Auto. But none of the police officials, who were member of the investigating team deposed that they found three motorcycles on the spot.
32.5 PW6 and PW7 deposed that they alongwith accused went to PS Lodhi Colony and all the proceedings were conducted in the police station however PW8 accused was not found on the spot and she was arrested on 01.04.2011 whereas the accident took place on 20.03.2011. PW8 deposed that all the proceedings i.e. recording of statement of Yash Pal Singh Ex.PW1/A, tehrir, preparation of site plan Ex.PW5/A were conducted on the spot.
33 Per contra to refute the allegations of prosecution accused examined herself as witness and also examined Sh. Nisar Khan as DW2. Accused on oath deposed that suddenly a motorcycle came from right side and hit her car which was being driven at the speed of 80100 KMPH . The bikers were not wearing helmets and doing stunts on their bikes. They were shouting and hooting and driving their bikes in rash and negligent manner.
34 DW2 deposed that the bikers were driving the motorcycles in high speed and suddenly hit the right side tyre of the accused. The pillion rider of the motorcycle was standing on their respective motorcycles just before the accident FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 8 of 9 and they were shouting and hooting.
35 In V.N. Deosthali Vs State through CBI, 2009 SCC Online Delhi 4069, Hon'ble High Court of Delhi, in para number 19 held that : "When a witness deposes a particular fact and no suggestion to the contrary is given to him in crossexamination, the party against whom the deposition is made, is deemed to have admitted that fact." 36 DW2 is the independent eyewitness. There is no reason to disbelieve his testimony. Nor any evidence had been led by the prosecution that he is the interested witness. No suggestion was put to DW1 and DW2 to controvert their testimonies that bikers were not driving the motorcycles at high speed and were not performing the stunts. Thus, oral evidence led by the accused cast a serious doubt upon the case of prosecution.
37 In view of the above discussion and appreciation of evidence, the court is of the considered opinion that the prosecution has not been able to prove its case against the accused Sandeep Kaur Chauhan beyond reasonable doubt. The accused is therefore, hereby acquitted for the offences under Section 279/337/338 IPC.
ANNOUNCED AND SIGNED IN THE OPEN COURT On 12th April 2018 (GAGANDEEP JINDAL) MM09, SOUTHEAST DISTRICT SAKET: NEW DELHI FIR No.43/11, PS Lodhi Colony State Vs Sandeep Kaur Chauhan Page 9 of 9