Delhi District Court
State vs . Nawab Alam on 28 January, 2017
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IN THE COURT OF SHRI PAWAN KUMAR: METROPOLITAN
MAGISTRATE02 (CENTRAL), TIS HAZARI COURTS:DELHI
State Vs. Nawab Alam
FIR No. 518/2007
U/s: 279/337/338 IPC
P.S. Timar Pur
J U D G M E N T
Unique Identification No. : 290949/2016
Date of Institution : 02.09.2008
Date on which case reserved for
judgment : 28.01.2017.
Date of judgment : 28.01.2017.
Name of the complainant : Smt. Kailash Wadhva.
Date of the commission of
offence : 26.09.2007
Name of accused : Nawab Alam s/o Sh. Janne Alam
r/o H. No. 60, Street No. 1A,
Moonga Nagar, Sher Pur,
Dayalpur, Delhi.
FIR No.518/2007 P.S. Timar Pur
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Offence complained of : U/s 279/337/338 IPC
Offence charged of : U/s 279/337/338 IPC
Plea of the accused : Pleaded not guilty.
Final order : Acquitted.
1.The accused Nawab Alam is facing the trial for commission of offences U/s 279/337/338 IPC. The present case FIR was registered on the complaint of Smt. Kailash Wadhva(hereinafter to be referred as the complainant). Briefly stated facts of the case are that on 26.09.2007, the complainant was going on the scooter No. DL 8 SS 8546 (hereinafter to be referred as the scooter)being driven by her husband Gyan Chand. At about 12:15 pm when they reached Nehru Vihar road Delhi, one three wheeler bearing No. DL 1 RG 5651 (hereinafter to be referred as the offending vehicle) came at fast speed being driven in rash and negligent manner and hit the scooter from the front side. The scooter driver and the complainant fell down and FIR No.518/2007 P.S. Timar Pur 3 sustained injuries. The daughter of the complainant came to the spot and took both the injured to the hospital. It is the case of the prosecution that the accused has caused the incident by driving offending vehicle in rash and negligent manner at a very high speed. On the basis of the aforesaid allegations, the present case FIR under Section 279/337/338 IPC was registered and investigation was conducted.
2. On conclusion of the investigation, chargesheet was filed under Section 173 Cr.P.C. for the offences under Section 279/337/338 IPC. The copy of the challan was supplied to the accused in compliance of provision under Section 207 Cr.P.C.
3. On the basis of the contents of the chargesheet and after hearing both the parties, the notice u/s 251 Cr.P.C. was served upon the accused for the commission of offences under Section 279/337/338 IPC.
4. The prosecution examined thirteen witnesses in order to establish the case against the accused.
PW2 Smt. Kailash and PW3 Sh. Gyan Chand are the FIR No.518/2007 P.S. Timar Pur 4 injured eye witnesses. Both the witnesses deposed that on 26.09.2007, they were going on the scooter being driven by PW3. At about 12:00/12:15 pm they reached near nala Nehru Vihar mode and the scooter was hit by a three wheeler . Both the witnesses failed to state the registration number of the TSR. The TSR was being driven at high speed and in rash and negligent manner. Both the witnesses sustained injuries. The daughter of the witnesses took them to the hospital. PW2 and PW3 could not see the driver of the TSR and failed to identify the accused in the court. Both the witnesses were cross examined by Ld. APP as they partly resiled from their previous statement.
PW11 Sh. Jai Bhagwan Sharma is the independent eye witness of the incident and he deposed that on 26.09.2007, he was going to his office in his car. At about 12:30 pm, his car was behind one TSR bearing registration no. 5651. One scooter came from the side of Nehru Vihar and the said TSR collided with the scooter. The scooter driver sustained injuries. The daughter of the injured came to the spot and the witness shifted the injured to the hospital. PW11 is the witness of seizure memo of both the vehicles and photocopy of driving licence of the accused on memos EXPW 4/A, EXPW 4/B and EXPW 4/E respectively. PW11 is also the witness of FIR No.518/2007 P.S. Timar Pur 5 arrest and personal search of the accused on memos EXPW 4/C and EXPW 4/D respectively. The witness failed to identify the accused in the court due to lapse of time. The witness was cross examined by the Ld. APP.
PW1 Smt. Nisha Narang is the daughter of the injured and deposed that she reached at the spot after five minutes of the incident. The witness took the injured persons to the hospital. PW1 is the hearsay witness.
PW 12 Retired SI Virender Singh is the investigating officer. He deposed that on 26.09.2007 on receiving DD no. 38B, he along with Ct. Awdesh Kumar reached at the spot and found the scooter and offending vehicle in accidental condition. The accused driver was also present on the spot. The IO left Ct. Awadesh Kumar at the spot and went to the Parmanand hospital where he collected the MLC of both the injured. The IO recorded the statement of eye witness which is EXPW 2/A . The IO returned back to the spot and prepared the Rukka EXPW 12/A and handed over to Ct. Awadesh for registration of FIR. The IO prepared the site plan EXPW 12/B at the instance of Jai Bhagwan Sharma. The IO seized the both the vehicles vide seizure memos EXPW 4/A and EXPW 4/B. IO arrested the accused and conducted his personal search vide FIR No.518/2007 P.S. Timar Pur 6 memos EX.PW4/C & PW4/D. IO also got conducted the mechanical inspection of the offending vehicle.
PW4 Ct. Awadhesh accompanied the IO during the investigation and deposed on the similar line as stated by PW12/ IO.
PW5 Smt. Shahnaz deposed that she is the registered owner of the offending vehicle. The accused Nawab Alam was driver of the aforementioned TSR on the date of incident. The witness got released the vehicle on superdari.
PW6 Retired ASI Devender Kumar deposed that on 26.09.2007 he mechanically inspected one Bajaj Scooter No. DL 8 SS8546 and one TSR No. DL 1 RG 5651. The witness prepared his detailed reports EXPW 6/A and EXPW 6/B. PW7 HC Kirpal Singh deposed that on 26.09.2007, he recorded the present FIR on receiving the rukka sent by ASI Virender Singh and brought by Ct. Avdesh. The copy of the FIR is EXPW 7/A and endorsement on rukka is EXPW 7/B. PW8 Dr. Sushil Kumar deposed that on 26.09.2007 he examined one patient Kailash Wadhwa and prepared the MLC EX.PW8/A. PW9 Dr. Puneet Kashyap deposed that on 26.09.2007 FIR No.518/2007 P.S. Timar Pur 7 he examined one patient G.C.Wadhva Wad and prepared the MLC EX.PW9/A. PW10 Wct. Saya Vati deposed that on 26.09.2007, she recorded the DD No. 38 B regarding the information of accident at Nehru Vihar, Timar Pur.
PW 13 SI Mahinder Singh deposed that during the investigation of this case he collected the MLC of the complainant and filed the chargesheet.
5. On examination of all the material witnesses, prosecution evidence was closed. The statement of the accused as mandated by Section 313 r/w 281 Cr.P.C was recorded and all the incriminating circumstances came in evidence put to the accused for explanation. The accused opted not to lead any defence evidence.
6. I have heard the arguments put forth by the Ld. APP for the state and by Ld. Defence Counsel. I have also perused the materials available on record.
7. It is the case of the prosecution that the accused has caused the injuries by driving the offending vehicle in rash or FIR No.518/2007 P.S. Timar Pur 8 negligent manner. To prove these allegations, the prosecution must prove
(i) That the accused was driving the vehicle or that he was riding,
(ii) That it was a public way on which he was driving or riding,
(iii) That he was driving or riding in a rash or negligent manner.
8. In a case of Section 279/337/338 IPC the prosecution has to specifically establish firstly that the accused was driving the vehicle at the time of incident and the vehicle was driven by the accused in a rash and negligent manner.
9. The prosecution has examined three eye witnesses of the incident as PW2, PW3 and PW11. PW2 and PW3 are the injured witnesses of the incident. PW2 and PW3 did not support the case of the prosecution as far as the identification of the accused is concerned. Both the witnesses deposed that they could not see the driver of the TSR at the spot and also failed to identify the accused in the court. In the crossexamination by Ld. APP both the FIR No.518/2007 P.S. Timar Pur 9 witnesses denied to have seen the accused while driving the offending vehicle at the time of incident.
10. PW11 is the independent public eye witness who had shifted the injured persons to the hospital. The witness deposed that he saw the driver of the TSR on the spot and he is also the witness of arrest and personal search of the accused. However, PW11 failed to identify the accused in the court and deposed that due to lapse of considerable time he cannot say that the accused was the driver of the offending vehicle.
11. It is settled preposition that identification of the accused in the court is a substantive piece of evidence. It is also settled that identification for the first time in the court is of no relevance unless supported by the prior identification proceedings. All the eye witnesses failed to identify the accused in the court.
12. The rashness or negligence of the accused has to be proved by the prosecution as a matter of fact. The definition of criminal negligence as accepted by the Supreme Court in the case of Balchandra V/s State AIR 1968 HC 1319 is as follows Criminal FIR No.518/2007 P.S. Timar Pur 10 rashness " is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to the consequences. Criminal negligence 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."
13. PW2 and PW3 merely deposed that the TSR was driven at high speed and in rash and negligent manner. Both the witnesses failed to state in what manner the offending vehicle was driven in rash or negligent manner. PW11 did not support the prosecution case on the point of rashness or negligence of the accused. In the crossexamination by the Ld. APP, PW11 denied the suggestion that the TSR driver driving rashly or negligently.
14. The injured eye witnesses merely stated that the offending FIR No.518/2007 P.S. Timar Pur 11 vehicle was driven in rash and negligent manner without explaining the facts as to how the accused was rash and negligent in driving. Merely stating the rashness or negligence is not sufficient to establish that the accused was rash or negligent. On the aspect of high speed, I relied on the judgment of Hon'ble High Court of Delhi in the case Bal Kishan Vs. State wherein it is held that "mere allegation of high speed does not speak either of negligence or rash driving by itself". The similar view was taken by Justice Badar Durrez Ahmed in the judgment of Adul Subhan Vs. State NCT of Delhi, 2006 (133 ) DLT 562.
15. In the accident cases, the investigation has very significant role to play particularly in preparing the site plan and the mechanical inspection report of the vehicles involved. Justice Badar Durrez Ahmed make certain observations on his aspect in the judgment of Adul Subhan Vs. State NCT of Delhi, 2006 (133 ) DLT 562 that it is imperative for the Investigating Officer to prepare accurate site plan so that evidence may be appreciated properly in the court. He further observed that the exact point of impact as well as tyre skid marks on the point at which the vehicle goes to at rest after the collision should be demarcated clearly. The FIR No.518/2007 P.S. Timar Pur 12 length of the tyre skid marks of the vehicle involved can be helpful in indicating the speed at which he vehicle was traveling/plying. In the present case, the site plan was prepared very casually and unscientifically.
16. The cardinal principle of criminal law cannot be forgotten that the prosecution has to prove the case against accused beyond reasonable doubt. The standard of proof is not preponderance of probabilities but proof beyond reasonable doubt. It is well settled legal proposition that the any benefit of doubt goes in favour of the accused.
17. Considering the hostile testimony of all the eye witnesses and serious contradictions in the investigation, the court is of the opinion that prosecution has miserably failed to establish the identity of the accused being the driver of the offending vehicle and further that the incident had happened due to rashness or negligence of the driver of the offending vehicle.
18. So, keeping in view the above discussion and materials available on record, I am of the considered view that charges FIR No.518/2007 P.S. Timar Pur 13 against the accused U/s 279/337/338 IPC are not proved by the prosecution beyond reasonable doubt. Hence, accused Nawab Alam is acquitted for the allegations U/s 279/337/338 IPC.
Pronounced in open court (PAWAN KUMAR) on 28.01.2017. MM02 (Central): Tis Hazari Courts: New Delhi:
28.01.2017.
FIR No.518/2007 P.S. Timar Pur 14 FIR No.518/2007 P.S. Timar Pur