Delhi District Court
State vs . Roop Narain on 4 August, 2018
State vs. Roop Narain
IN THE COURT OF SH BHUPINDER SINGH : ACMM01(CENTRAL)/
TIS HAZARI COURT: DELHI
State vs. Roop Narain
FIR NO. : 206/07
U/S : 279/338 IPC and 3/181 M. V Act
PS : Paharganj
JUDGEMENT
a) Sl. No. of the case : 296602/16
b) Date of institution of the case : 2.7.2008
c) Date of commission of offence : 31.3.2007
d) Name of the complainant : Sh. Vijay Kumar
e) Name & address of the : Roop Narain S/o Late Sh. Gopal
accused R/o H. No. RZA44 Vijay Enclave
Durganpuri Delhi.
f) Offence charged with : 279/338 IPC and 3/181 MV ACT.
g) Plea of the accused : Pleaded not guilty.
h) Arguments heard on : 3.8.2018
i) Final order : Acquitted u/s 279/338 IPC
Convicted u/s 3/181 MV Act
j) Date of Judgment : 4.8.2018
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. The brief story of the prosecution is that on 31.3.2007 at about 10:30Pm near Majar, Vasant Road, Paharganj, within the jurisdiction of PS Paharganj , accused Roop Narain was driving a TSR bearing No. DL1RC FIR NO. 206/07 PS Paharganj 1 of 12 State vs. Roop Narain 2606 (without any valid driving license) in a manner so rashly or negligently so as to endanger human life and personal safety of others and while driving the said vehicle in the said manner hit complainant Sh. Vijay Kumar and caused grevious injuries to him and thereby alleged to have committed offence U/sec. 279/338 IPC and 3/181 MV Act .
2. After completion of the investigation, challan was filed in the court and copies were supplied to the accused. Thereafter, notice U/sec. 279/338 IPC and 3/181 MV Act was served to accused to which he pleaded not guilty and claimed trial.
3. In order to substantiate the allegations, 11( eleven) witnesses were examined by prosecution.
4. PW1 Santosh Kumar deposed that on 31/03/2007 at about 10:30 PM he alongwith Papu and Vijay were crossing the road at Basant Road, Pahar Ganj. He alongwith Papu had crossed the road and when Vijay Kumar was crossing the road, in the meantime accused being the driver of TSR bearing registration no. DL1RC2606 was coming from Panchkuiya Road in fast speed and in rash and negligent manner and hit against Vijay Kumar who was crossing the road. Vijay Kumar fell down on the road and above said TSR had climbed over Vijay Kumar. He further deposed that he with the help of public person pushed the above said TSR backside and took out Vijay from under the said TSR, that Vijay Kumar sustained the injuries on his left foot, left arm, face and jaw. He further deposed that injured was taken to the Lady Hardin Hospital from where he was referred to RLM Hospital, that his statement was recorded, that FIR was registered and site FIR NO. 206/07 PS Paharganj 2 of 12 State vs. Roop Narain plan was prepared at his instance Ex. PW1/A, that abovesaid TSR was seized vide seizure memo Ex. PW1/B, that IO interrogated and arrest him vide arrest memo Ex. PW 1/ C and conducted his personal search vide memo Ex. PW1/D. He correctly identified accused . He was not cross examined despite opportunity.
5. PW2 Papu Kumar deposed that on 31/03/2007 at about 10:30 PM they were going to their house for sleeping after taking meal and when they were crossing the Vasant Road alongwith Santosh and Vijay, his brother Santosh had crossed the road but Vijay could not crossed the road and he was in the middle of the said road and in the same time accused who was driving the TSR ran over his auto on Vijay , that they alongwith accused took Vijay to LNJP hospital where he was medically examined. He was cross examined by ld APP for state , wherein he admitted the date and time of incident but did not remember the manner in which TSR was driven or whether the accused was arrested/ TSR was seized in their presence. He denied that the accused was hand over to the police by him at the hospital and that he told the number of the TSR to the police. He was cross examined by ld defence counsel , wherein he deposed that he did not know about the zebra crossing and also did not see the red and green light of the traffic signal while crossing the road. He admitted that he did not see zebra crossing while crossing the road. He admitted that he could not see which vehicle hit Vijay.
6. PW3 SI Sumer Chand Sharma deposed that in the intervening night of 31.03.2007 / 01.04.2007 he recorded DD NO. 4A Ex. PW3A, he received the rukka and registered the FIR Ex. PW3/B and made the endorsement on FIR NO. 206/07 PS Paharganj 3 of 12 State vs. Roop Narain the same as Ex. PW3/C. He was not cross examined despite opportunity.
7. PW4 Mohd Firoz deposed that he is the registered owner of TSR bearing no. DL1RC2606 and on 31/3/2007 his TSR was in possession of accused Roop Narain as he hadhired his TSR, that he came to know that his TSR has been seized by the police in the present case of road accident. He correctly identified accused. He was not cross examined despite opportunity.
8. PW5 ASI Sita Ram deposed that on 01/04/2007 he was MHCM at PS Pahar Ganj. above said TSR was deposited in the Malkhana and he made the entry in the register no. 19 at serial no. 2760 Ex. PW5/A. He was not cross examined despite opportunity.
9. PW6 Sh. Devender Kumar, retired ASI/Technician deposed that on 03/04/2007 he mechanically inspected TSR and prepared his report Ex. PW6/A. He was not cross examined despite opportunity.
10. PW7 Dr. P. Rahul, Professor (Surgery), LHMC deposed that on 01/04/2007 he was posted as Senior Resident at LHMC , Delhi and on that day one patient Vijay was referred to Surgery Departrment for examination and treatment, that he examined Vijay and he was suffering from injuries on the upper part of nose, lip, anterior chest wall, lower limb, left ear and left mandible (cheek). He prepared detailed report Ex. PW7/A. He was not cross examined despite opportunity.
11. PW8 Jay Prakash, recordclerk Ram Manohar Lohia Hospital FIR NO. 206/07 PS Paharganj 4 of 12 State vs. Roop Narain deposed that he was posted in Ram Manohar Lohia Hospital since 1982 and discharge summary in respect of Cr No. 11482 dated 01/04/2007 is related with the patient Vijay Kumar and same was prepared by Dr. Deepak Wadhwa. The same discharge summary Ex. PW 8/ A . He was not cross examined despite opportunity.
12. PW9 Dr. Prashant, CMO Lady harding Medical College . He deposed that he identify signature and handwriting of Dr. Arti Diyali on Ex. PW9/A. He was not cross examined despite opportunity.
13. PW10 HC Ashok Kumar deposed that on 01/04/2007 on receiving DD no. 4A he alongwith SI Sawarmal went to the spot and went to LHMC Hospital, that they found one TSR in accidental condition, that SI Sawarmal recorded the statement of Sh. Vijay Kumar in the hospital and prepared the rukka and handed over to same to him for registration of FIR, that he went to PS and got FIR registered, that he returned to spot alongwith copy of FIR and original rukka and handed over same to IO, that IO took TSR into his possession and seized vide memo Ex. PW1/B, that IO arrested accused vide arrest memo Ex. PW1/C and conducted his personal search vide memo Ex. PW1/D. He correctly identified accused. He was not cross examined despite opportunity.
14. PW11 Inspector Sawar Mal deposed that on 01/04/2007 on obtaining DD entry Ex. PW3/A regarding accident at Basant Road, that he alongwith Ct. Ashok reached at the spot and came to know that injured was taken to hospital by the accused, thereafter they went to LHMC hospital where they met injured Vijay Kumar and he referred to RML hospital, that FIR NO. 206/07 PS Paharganj 5 of 12 State vs. Roop Narain he obtained the MLC of injured Vijay Kumar from RML Hospital, that he recorded statement of Vijay Kumar Ex. PW11/A, prepared rukka Ex. PW1/C. FIR was registered through Ct. Ashok. He further deposed that he met two eye witnesses in the hospital namely Santosh Kumar and Pappu Kumar, that he alongwith them reached at the spot and prepared the site plan Ex. PW1/A at their instance, that he seized the above said TSR vide memo Ex. PW1/B, he arrested accused and conducted his personal search vide memos Ex. PW1/C and Ex. PW1/D. He further deposed that he recorded statement of eye witnesses namely Santosh Kumar, Pappu Kumar and Ct. Ashok. He deposed that on 03/04/2007 the mechanical inspection of the TSR was conducted vide report Ex. PW11/C. He correctly identified accused. He was not cross examined despite opportunity.
15. Record transpires that the complainant/ injured Vijay Kumar was reportedly not traceable by concerned DCP as well as by concerned IO, therefore he could not be examined before the Court. His presence could not be secured despite repeated efforts.
16. PE was closed by order of this court on 23.2.2018. Statement of accused was recorded U/sec. 313 Cr.P.C. wherein he stated that he did not commit any offence and he was falsely implicated. The accused did not lead any defence evidence in his favour.
17. I have carefully perused the record and heard Ld. APP for State and Ld. counsel for accused.
18. In a criminal trial, the onus remains on the prosecution to prove FIR NO. 206/07 PS Paharganj 6 of 12 State vs. Roop Narain the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
19. The accused in the present case has been charged with offence under Section 279/338 IPC. To prove the case against the accused the prosecution was required to prove the following facts:
A. The identity of the accused being the driver of the offending vehicle; B. That the accused caused the accident by his rash or negligent driving at a public place;
C. That the rash or negligent driving of the accused resulted in grievous injuries to the injured.
20. The accused has not disputed the fatum of the accident or that he was driving the impugned TSR which hit the pedestrian Vijay . Even other wise he has identified by PW 1 Santosh Kumar who has not cross examined on point of identity . Further PW Mohd Firoz, registered owner of the TSR deposed that the same was taken on hire by the accused only. He also was not cross examined . As such there exists no doubt regarding the identity of the accused.
21. Now, coming to the rashness / negligence of the accused which is sin qua non for an offence U/sec. 279/338 IPC. For proving the said fact, FIR NO. 206/07 PS Paharganj 7 of 12 State vs. Roop Narain prosecution has relied upon testimony of PW1 Sh. Santosh and PW2 Papu Kumar. PW1 has deposed about the vehicle i.e TSR no. DL1RC2606 having hit the injured Vijay kumar while being driven in a very fast speed and in a rash and negligent manner. He has merely used the words 'rash and negligent' without detailing as to what he meant by such words and in what manner the TSR was being driven so as to say that the driving was rash or negligent. The deposition about 'fast speed' is also subjective and just by uttering of these words, the rashness/ negligence of accused cannot be said to have been proved. The said witness was not cross examined despite opportunity but his testimony is not by itself sufficient, in absence of the facts which as per him constituted rashness/ negligence on the part of the accused.
22. PW2 Pappu Kumar, who is brother of PW1 and was accompanied the injured Vijay Kumar and PW1 deposed that the accident occurred when he and his brother / PW1 had crossed the road but Vijay could not and was in middle of the road when the TSR driven by the accused ran over Vijay Kumar . He deposed that he did not remember either the number of the TSR or how the accused was driving the same. On being cross examined by ld APP for State he deposed that he did not state to the police that the accused was driving the TSR in a fast speed and in rash and negligent manner. On being cross examined by ld defence counsel he deposed that he did not know about zebra crossing and did not observe the traffic signal while crossing the road. He admitted that he did not see zebra crossing while crossing the road.
23. From the record it is evident that PW1 and PW2 are brothers and FIR NO. 206/07 PS Paharganj 8 of 12 State vs. Roop Narain injured Vijay was their relative. As such there is no possibility of either of the PWs trying to side with the accused to save him.
24. PW1 has only deposed about the vehicle that the TSR being driven in a high speed, though even that has not been quantified . Be that as it may, even if it is assumed that vehicle was being driven at high speed then also in my view, to say that accused was rash and negligent on account of his speed only without describing the alleged rashness and negligence would not justify a charge for indictable rashness and negligence. I quote with profit the law laid down in "Abdul Subhan Vs. State 2007 Cri. L.J. 1089, wherein Hon'ble Mr. Justice B.D. Ahmed speaking for Hon'ble High Court of Delhi has held as follows: "12. The present case is on a similar footing. Apart from the allegation of having driven the truck at a highspeed, which itself is an unclear expression, there is nothing on record to establish that the petitioner drove the vehicle rashly and/ or negligently or did any act which would amount to a rash and /or negligent act. Clearly, therefore, the petitioner is not liable to be convicted under the provisions of Section 279 and 304A IPC. The Courts below have committed a grave error in convicting the petitioner .................
25. If a pedestrian suddenly crosses the road without taking note of the approaching vehicle, there is every possibility of his dashing against it, however slow the vehicle may have been driven. One is expected to be cautious but not over cautious. In such scenario the driver of the vehicle cannot be held reliable. Reliance placed upon judgment of Hon'ble Supreme Court titled " Mahadeo Hari Lokre Vs. The State of Maharasthra, AIR 1972 SC FIR NO. 206/07 PS Paharganj 9 of 12 State vs. Roop Narain 221".
26. In the evidence of PW2 , it has come that he did not see the zebra crossing while crossing the road and also did not observe the traffic signal . As per site plan Ex.PW 1/ A, mark A has shown as the spot where the accident had taken place. The said spot is in the middle of the road and the same is not a place provided for the pedestrians to cross the road. The traffic plying on the road cannot be expected to be over cautious to anticipate that anyone may come in front of them from no where. PW1 has deposed that he and PW2 had crossed the road while injured Vijay was still in the middle of the road. As such three persons crossing the road at a single instance , there is all possibility of the driver of the vehicle approaching that point to get confused so as unable to understand the state of affairs and apply brakes well within time. Most importantly, PW Vijay who had received injuries was the best person to depose about the manner in which the accident took place since the same must have had happened in a spur of moment when the trio were crossing the road and two of whom had just reached the other side of the road. In such scenario even though PW1 and PW2 were present on the spot but whether they had actually seen the accident happening is not obvious. The same is reflected from the testimony of PW2. Mere presence is not sufficient but actual witnessing is what that matters.
27. The element of rashness and negligence is sin qua non for offence u/sec. 279 IPC and same cannot be presumed. In the case of B. C. Ramachandra v. State of Karnataka 2007 Cri. L. J. 475, the Court relied upon a number of decisions of the Apex Court and concluded that in FIR NO. 206/07 PS Paharganj 10 of 12 State vs. Roop Narain criminal proceedings, the burden of proving negligence as an essential ingredient of the offence lies on the prosecution. It was also observed that "such ingredient cannot be said to have been proved or made out by resorting to the rule of principle of res ipsa loquitur." Thus the rashness/negligence on the part of the accused while driving the offending vehicle remains unproved.
28. The nature of injuries suffered by the injured Vijay has been proved by PW 7 Dr. P.Rahul , who proved the MLC Ex. PW 7/ A and vide discharge summary PW Ex. 8/ A and MLC Ex. PW 9/ A. The same were not disputed and even the crossexamination of the witnesses were not conducted. Thus, the injuries received by Sh. Vijay stands proved.
29. Now the charge against the accused of not having a valid driving license at the time of the accident is considered. PW1 Santosh Kumar had deposed that the accused was not having a valid DL at the time of accident and he was not cross examined on this point. No DL was ever produced before the court . In fact in his statement u/s 313 CrPC the accused admitted that he was not having any DL at the time of accident.
30. Thus, the identity of the accused and the injuries received by injured Vijay in the said accident stands proved, however the rashness / negligence of the accused does not .
31. In view of the aforesaid discussion, I am of the view that prosecution has proved the factum of the accused not having the valid FIR NO. 206/07 PS Paharganj 11 of 12 State vs. Roop Narain driving license at the time of incident and as such he is convicted for offence u/s 3/181 MV Act . However the prosecution has miserably failed to prove rashness and negligence against accused and he deserves to be acquitted for the charges U/s 279/338 IPC levelled against him. Ordered Accordingly.
Digitally signed by BHUPINDER BHUPINDER SINGH
SINGH Date:
2018.08.04
16:15:24 +0530
Announced and dictated in (BHUPINDER SINGH )
the open Court on 4.8.2018 ACMM(01)/CENTRAL
TIS HAZARI / NEW DELHI
FIR NO. 206/07 PS Paharganj 12 of 12