Delhi District Court
"Chandan @ Babar vs State (Govt. Of Nct Of Delhi)" Crl. ... on 17 November, 2016
IN THE COURT OF MS. SAUMYA CHAUHAN,
METROPOLITAN MAGISTRATE, WEST, TIS HAZARI COURT
State v. Gaurav Saini
FIR No. 409/2005
PS Paschim Vihar
U/s 279/338 IPC & 185 M V Act
JUDGMENT
Case No. : 72536/16
Date of Institution : 01.09.2005
Date of Commission of Offence : 15.05.2005
Name of the complainant : Prince Mahajan
S/o Harbans Lal
R/o RZ-20, Om Vihar, Uttam Nagar,
near Pawan Gandhi Nursing Home
Uttam Nagar, Delhi.
Name & address of the accused : Gaurav Saini
S/o Om Prakash Saini
R/o Flat No.GH-13/416, Paschim Vihar
Delhi
Offence complained of : 279/337/338 IPC & 185 M V Act
Plea of accused : Pleaded not guilty
Final Order : Convicted u/s. 279/337/338 IPC
Acquitted u/s. 185 M V Act
Date on which reserved for judgment : 02.11.2016
Date of announcing of judgment : 17.11.2016
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
1. Vide this judgment this court shall decide the present case under Section 279/337/338 Indian Penal Code, 1860 and under Section 185 Motor Vehicles State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 1/20 FIR No. 409/05 PS Paschim Vihar Act 1984.
2. The briefly stated story of the prosecution is that on 15.05.2005 the complainant Prince Mahajan was going on his scooter bearing no. DL-9SA-2953 (hereinafter referred to as "The Scooter") along with his wife Rashmi Mahajan and child Kanishk Mahajan aged 8 months. At about 6.30 p.m, when they reached near A-5 market, Balbir Singh Marg, one Santro car bearing registration no. DL4CM- 4954 hit the scooter from behind. The complainant, his wife and his son fell on the road and received injuries. The complainant got up and tried to stop the car and also raised alarm, upon which public persons chased and stopped the car. The accused who was driving the said car was apprehended. The accused was also drunk. On basis of the statement of the complainant, FIR was registered and investigation was carried out. Hence, the accused is alleged to have committed an offence under Section 279 Indian Penal Code read with Section 337/338 Indian Penal Code,1860 and under Section 185 Motor Vehicles Act.
3. Charge sheet was filed against the accused in the court. Copy of chargesheet and other documents were supplied to him and notice under Section 279/337/338 Indian Penal Code and Section 185 M.V. Act was served upon him vide order dated 08.11.2011 to which he pleaded not guilty and claimed trial.
4. In order to prove the case against the accused, the prosecution has examined fourteen witnesses - (1) Sandeep @ Prince Mahajan (2) HC Bijender Singh (3) Chander Prakash Nagpal (4) Rashmi Mahajan (5) Dr., Shri Paul (6) Dr. Yogesh State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 2/20 FIR No. 409/05 PS Paschim Vihar Gupta (7) HC Kamal Singh (8) HC Anil Kumar (9) Dr. Virender Kumar (10) ASI Rajender Singh (11) O. P. Saini (12) K. D. Sharma (13) Retired ASI/Tech Davinder Kumar and (14) SI Vijay Kumar
5. PW-1 Sandeep @ Prince Mahajan deposed that on 15.05.2005 at about 6.30 p.m, he along with his wife Rashmi Mahajan and son Kanishk Mahajan was going to Paschim Vihar on their scooter. When they reached at Balbir Singh Marg, A-5 Market, suddenly one Santro car came from behind and hit his scooter. He along with his wife and son fell down and received injuries. Public persons took them to public nursing home, from where they were taken to Balaji Hospital by their relative. Police recorded his statement which is Ex.PW1/A. He got his scooter released on superdari vide superdarinama Ex.PW1/B.
6. Since the witness failed to identify the accused, Ld. APP put leading question to him regarding identity of the accused. The witness admitted that the accused was the person who was driving the Santro car on the date of incident.
7. During cross-examination by the Ld. defence counsel, witness admitted that at the time when his statement was recorded by the police, he did not know the name and address of the accused. He denied the suggestion that he had not seen the accused as he was looking in the front and stated that he had seen the offending vehicle at the spot and also in the mirror of the scooter. He stated that he was wearing a helmet at that time. He stated that the offending vehicle was being driven at a very high speed. He stated that when he fell down he was State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 3/20 FIR No. 409/05 PS Paschim Vihar bleeding heavily and could not stand on his leg for want of strength. He could not observe any public person or shop near the spot. He could not tell whether there was any divider on the spot. He denied that he had forgotten the facts of the accident due to lapse of time. He admitted that he had observed the accused for the first time in Tis Hazari Court.
8. PW-2 HC Bijender Singh deposed that on 15.05.2005 he had registered the present FIR on the basis of rukka sent by IO ASI Vijay through Ct. Anil. He proved the FIR as Ex.PW3/A and his endorsement on rukka as Ex.PW3/B.
9. PW-3 Chander Prakash Nagpal deposed that he is running a tea stall at shop no. 42, MCD Market, Balbir Singh Marg, Paschim Vihar. He could not tell the exact date of the accident but it was in the year 2005. On that day at about 6.30 p.m he was at his shop when he saw that one santro car came from Balbir Singh Marg and hit one scooter from behind. The scooter rider as well as his wife and a small child fell on the ground. The santro car fled from the spot. However, the witness along with other shop keepers chased the car and stopped it. They brought santro car driver to the spot. However, the witness failed to identify the accused due to lapse of time. The police was called at the spot and the driver was handed over to the police. He could not recall the registration number of either vehicle.
10. Ld. APP put leading question to the witness regarding the identity of the accused and that of the santro car and the scooter. He drew the attention of the State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 4/20 FIR No. 409/05 PS Paschim Vihar witness to the accused. Despite that he failed to identify the accused.
11. During cross examination, he stated that the width of the road is 80 feet and there is no divider on the road. There are 70-80 vegetables vendors sitting on the plot of DDA. A public school is also near the said market. Rehriwala and Golgappa sellers also park their rehris at about 5.00 p.m. He saw the santro car and two-wheeler immediately after hearing the sound of the collision. He could not tell the name of the shopkeepers who had accompanied him to bring the driver of the car. The police reached the spot after about 25 minutes. He could not recall the name of the person who had called the police. He could not tell the name of any person who had came at the spot.
12. PW-4 Smt. Rashmi Mahajan deposed that on 15.05.2005 at about 6.30 p.m, she along with her husband Sandeep Mahajan was going to Paschim Vihar on their scooter. When they reached Balbir Singh Marg, A-5 Market, one Santro car bearing no. 4954, steel grey color, came from behind and hit their scooter, due to which she along with her husband and six months old child fell down. Her leg was fractured as she tried to save her child from coming under the wheel of the said car. Public persons gathered at the spot. One public person gave her his mobile phone and she called her sister. They were taken by the public to Pal Nursing Home for first aid. Later on they were taken to Balaji Action Hospital by their relatives. Her statement was recorded by the police in the hospital. She identified the accused as the driver of the Santro car. She State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 5/20 FIR No. 409/05 PS Paschim Vihar deposed that the accused did not even stop his car after seeing that her son had fallen in front of his car. He was stopped by public persons some distance ahead. She also deposed that the accused was drunk. The identity of the Santro car has not been disputed by the accused. Photographs of the car are Ex.P1 (colly).
13. During cross examination, witness stated that she had signed her statement, however, she could not recall whether it was read over to her or not. She told the IO that her leg had got fractured and that she had called her sister using mobile phone of a public person. She was confronted with her statement under Section 161 Cr.P.C where it has not been so recorded. She stated that she had seen the accused for the first time in the court after the accident. She admitted that she had not told the name and address of the accused in her statement under Section 161 Cr.P.C as she was not aware of the same. She had not told the police that the accused was in drunk state as she was not aware of the same. She voluntarily stated that she came to know about the same from other persons afterwards. She admitted that the road where the accident had taken place is a two way road having no divider. She admitted that fruit and vegetable vendors were selling the fruits and vegetables on their rehris on both the sides of the road. She had never gone to the spot again and the site plan was not prepared at her instance. She could not tell the speed of scooter but it was in a slow speed as they were looking for fruit rehri for gifting fruit to her sister. She State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 6/20 FIR No. 409/05 PS Paschim Vihar had received the compensation of Rs.18-20,000/- from the MACT court. She denied the suggestion that the accused has been falsely implicated in the present case so as to take compensation from him. She denied the suggestion that the accident had taken place as her husband had suddenly applied the brakes of the scooter.
14. PW-5 Dr. Shri Paul deposed that on 15.05.2005 at about 6.30 p.m. one accident had taken place in front of his nursing home and public brought the injured Prince to his nursing home. He gave him first aid and referred him to Shri Balaji Nursing Home. During cross-examination witness admitted that he had not seen the accident.
15. PW-6 Dr. Yogesh Gupta deposed that on 15.05.2005 he examined the patient Rashmi. She has sustained grievous injuries as per X-ray report no.6888. The X-ray report is not available in their record. As per medical record officer of Shri Balaji Action Medical Institute, the patient was treated in the casualty. Since the patient was not admitted in the hospital in accordance as per the rules of our hospital, they did not maintain the record of the X-ray. The detailed report from the Balaji Action Medical Institute is Ex.PW6/A.
16. During cross examination, witness stated that he did not remember whether he personally examined Smt. Rashmi. He denied the suggestion that no bone injury was ever received by Smt. Rashmi and that is why there is no existence of X-ray report.
State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 7/20 FIR No. 409/05 PS Paschim Vihar
17. PW-7 HC Kamal Singh deposed that on 15.05.2005 at about 9.25 p.m, a wireless message was received by him that an accident had taken place near A-5, Paschim Vihar. He recorded DD entry No. 36B which is Ex.PW7/A and directions were given to ASI Vijay Kumar for taking necessary action.
18. PW-8 HC Anil Kumar deposed that on 15.05.2005 he was on emergency duty along with ASI Vijay Kumar from 8.00 a.m to 8.00 p.m. The information regarding accident at Balbir Singh Marg was received vide DD No.14A. He along with ASI Vijay reached the spot. The santro car and the scooter were lying at the spot. He could not remember the registration number of the either of the vehicle. Accused, who was already apprehended by the public was handed him to the IO. He took the accused to Maharaja Agrasen Hospital for medical examination. During medical examination, it was observed by the doctor that smell of alcohol was present in his breath. He obtained the MLC of the accused and returned to the spot along with the accused. IO prepared the rukka and handed it over to the witness on the basis of which he got the FIR registered in the police station. He returned to the spot and handed over the original rukka and copy of FIR to the IO. Santro car and scooter were seized vide memo Ex.PW8/A and Ex.PW8/B respectively. IO prepared the site plan at the instance of the wife of the injured. IO arrested the accused vide memo Ex.PW8/C and conducted his personal search vide memo Ex.PW8/D.
19. During cross examination, he stated that 5-6 persons were present at the spot State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 8/20 FIR No. 409/05 PS Paschim Vihar when he reached there. However nobody agreed to join the investigation. He could not tell whether IO had given any notice to the public persons under Section 160 Cr.P.C.
20. PW-9 Dr. Virender Kumar identified the signature of Dr. Alka Chaudhary on the MLC No. 478 of Ms. Rashmi, MLC NO. 477 of Prince Mahajan and MLC No. 479 of Kanishka having worked with him in official capacity. The said MLCs are Ex.PW9/A, Ex.PW9/B and Ex.PW9/C respectively.
21. PW-10 ASI Rajender Singh deposed that on 15.05.2005 at about 9.25 p.m, a telephonic message was received by him from Action Balaji Hospital that a patient with the alleged history of road accident had been admitted in the hospital. He recorded the DD entry no.36B which is Ex.PW7/A and directions were given to ASI Vijay Kumar and Ct. Kamal to take necessary action.
22. PW-11 O. P. Saini is the superdar of santro car no. DL4-CM-4954. He got the car released on superdari vide superdarinama Ex.PW11/A.
23. PW-12 Dr. K. D. Sharma identified the signature of Dr. Pradeep Nehra on the X-
ray reports of accused Gaurav having worked with him in official capacity. X-ray reports are Ex.PW12/A, Ex.PW12/B and Ex.PW12/C respectively. He also identified the signature of Dr. Sanjay Arora on the MLC of the accused. Same is Ex.PW12/D. During cross examination, he admitted that the MLC No. 2580/05 was not prepared in his presence.
24. PW-13 Retired ASI/Tech Devender deposed that on 16.05.2005 he had State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 9/20 FIR No. 409/05 PS Paschim Vihar conducted the mechanical inspection of the santro car and the scooter and the reports are Ex.PW13/A and Ex.PW13/B respectively.
25. PW-14 SI Vijay Kumar deposed that on 15.05.2005 he received DD no.14A regarding accident at B-2 Block. He along with Ct. Anil went to B-2 Block. When he reached Balbir Singh Marg, he received DD no.36B regarding accident at A- 5 Market, Balbir Singh Marg. He along with Ct. Anil went to the spot where the accused along with the Santro car was present. The scooter of the complainant was also lying there in accidental condition. He came to know that injured had been shifted to Pal Nursing Home. He left Ct. Anil at the spot and went to Pal Nursing Home. At Pal Nursing home, he came to know that after taking first aid, injured had gone to Action Balaji hospital. He went to Action Balaji Hospital and met with the injured namely Prince Mahajan. He collected the MLC of the injured persons. He recorded the statement of complainant Prince Mahajan and prepared the rukka. He returned to the spot and sent the accused for medical examination at Maharaja Agrasen hospital. He handed over the rukka to Ct. Anil for registration of FIR in the PS. After sometime Ct. Anil returned to the spot with the original rukka and copy of FIR and handed over the same to the witness. In the meantime, wife of the complainant namely Rashmi came to the spot and he prepared the site plan at her instance which is Ex.PW14/A. He seized the santro car and the scooter. He also seized the photocopy of the documents of the offending vehicle vide seizure memo Ex.PW14/B and seized State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 10/20 FIR No. 409/05 PS Paschim Vihar the driving license of the accused vide memo Ex.PW14/C. He arrested the accused and conducted his personal search. He collected the result of the MLCs and recorded the statement of witnesses. After completing the investigation, he filed the charge-sheet before the court. During cross examination, he denied the suggestion that the accused has been falsely implicated in the present case.
26. Thereafter, the Prosecution evidence was closed. Statement of accused was recorded u/s 313 Cr.P.C, wherein he denied all the allegations and pleaded innocence. The accused has stated that on the date of accident, he was coming back from his college in the santro car. He was standing at the red light near white house which is 2 Km away from the spot of accident. Suddenly 2-3 persons came on a motorcycle from behind and dragged him out of his car. They took him to the spot where the accident had taken place. Police seized his car and documents and falsely implicated him in the present case. The accused did not lead any evidence in defence.
27. I have heard the submissions made by the Learned APP for state and the Learned Counsel for accused and carefully perused the record.
28. Ld. Counsel for accused has submitted that there are various discrepancies in the prosecution story and the prosecution has failed to prove its case beyond reasonable doubt. He has submitted that PW-1 has identified the accused only after Ld. APP has pointed him out. Further, PW-1 admitted in his cross State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 11/20 FIR No. 409/05 PS Paschim Vihar examination that he was not aware of the name and address of the accused when his statement Ex.PW1/A was recorded by the police. However, the name and complete address of the accused is mentioned in the said statement which raises doubt regarding the reliability of the said statement. Also, the witness has admitted that he saw the accused for the first time in the court itself. He has also pointed out that in his statement Ex.PW1/A complainant had stated that he had gotten up immediately after falling on the road. However, during his cross examination in the court, he stated that he could not get up for want of strength. He has further submitted that even though smell of alcohol was found positive in the breath of the accused, as per MLC Ex.PW12/A. However, there is no BAC on record. Hence, it has not been proved that the level of alcohol was beyond 30/100 mg as prescribed under Section 185 M.V. Act.
29. On the other hand, Ld. APP for State has submitted that the injured/PW-4 has duly identified the accused as the driver of the offending car. As such, prosecution has proved its case beyond reasonable doubt and the accused is liable to be convicted for the alleged offences.
30. To bring home the guilt of rash and negligent driving to the accused, three things need to be proved by the prosecution that too beyond any reasonable doubt. The three essential ingredients are as follows:-
1. That the accident actually took place.
2. That the accident took place due to rash and negligent driving.
3. That the accused was the person who was driving the vehicle at State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 12/20 FIR No. 409/05 PS Paschim Vihar the relevant time.
31. Before proceeding further, let us discuss the meaning of the expressions "rash"
and "negligent". These words i.e "rash" and "negligent", have not been defined in the Indian Penal Code. However as per Black's Law Dictionary, Eighth Edition the word 'Negligent' is characterized by a person's failure to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstances. A rash act is primarily an overhasty act and is thus opposed to a deliberate act. It also includes an act which, though it may be said to be deliberate is yet done without due care and caution. An illegal omission is an "Act" under this section and may constitute an offence if it is negligent.
32. The terminology of criminal negligence has been discussed by Hon'ble Supreme Court in the landmark case of "S.N. Hussain v. State of Andhra Pradesh", AIR 1972 SC 685 as under :
"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 circumstance out of which the charge has arisen it was the imperative duty of the accused person to have adopted............Culpable negligence lies in the failure to exercise reasonable and proper care and the extent of its reasonableness will always depend upon the circumstances of State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 13/20 FIR No. 409/05 PS Paschim Vihar each case".
33. In the case at hand, three prime witnesses of the prosecution were PW-1, PW-3 and PW-4, all three being eye witnesses. However, neither PW-1 nor PW-3 identified the accused in the court. While PW-1 identified the accused on being pointed out by the Ld. APP, PW-3 even then could not identify him.
34. At this juncture, the court is enlightened by the Judgment in case titled as "Chandan @ Babar vs State (Govt. of NCT of Delhi)" Crl. Appeal No.75/14 & Crl. M (B) No.152/14, wherein the Hon'ble High Court of Delhi had observed as below, "18.....The question put by the Ld. APP in trial court to PW-2 about the identity of accused Mukesh was indeed a leading question. It appears that no permission was sought of the trial court for asking such a leading question. Further, even if such permission was sought, the trial court could not have granted it since it was not about a matter which was either introductory or undisputed or which have in its opinion been already sufficiently proved. At that stage of the proceedings, the identity of Mukesh was far from being proved. Also no opinion was expressed by the trial court on this aspect. Therefore, in the considered view of the court, the entire proceedings concerning identification of Mukesh by PW-2 in the court was in violation of the mandates of State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 14/20 FIR No. 409/05 PS Paschim Vihar Section 142 of the Evidence Act 1872 and thereby stood vitiated."
35. in light of the abovesaid judgment, the identification of the accused by PW-1 cannot be read in evidence and cannot be relied upon.
36. However, PW-4, who is one of the injured and an eye witness to the accident has identified the accused as the driver of the offending vehicle. She has fully corroborated the prosecution story. Her testimony has remained intact on all the material points and no material discrepancy could be found in her testimony. She has given a lucid and detailed account of the accident. The defence has not been able to impeach the credibility of this witness during cross examination. It is free from any blemish and is trustworthy and reliable. There is no reason for the witness to falsely implicate the accused by deposing falsely against him. In the case of "Mano Dutt & Anr. Vs State of UP, (2012) 4 SCC 79, it was held by the Hon'ble Supreme Court of India, "Normally, an injured witness would enjoy greater credibility because he is the sufferer himself, and thus there will be no occasion for such a person to state an incorrect version of the occurrence or to involve anybody falsely and in the bargain, protect the real culprit."
37. It was further observed by the Hon'ble Supreme Court that the testimony of injured person is very reliable as such a witness comes with a built-in guarantee State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 15/20 FIR No. 409/05 PS Paschim Vihar of his presence at the scene of crime and convincing evidence is required to discredit an injured person.
38. The testimony of PW-4 has been sufficiently corroborated by the testimony of PW-1 and PW-3. Though these witnesses have failed to identify the accused, they have deposed in detail about the accident. It is well settled principle of law that only for the reason that the witness has failed to identify the accused, his testimony cannot be discarded.
39. Also, in the case titled as "Namdeo vs State of Maharashtra", Crl Appeal No.914/2006 decided on 13.03.2007, it was held by the Hon'ble Supreme Court of India that a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
40. Similarly, in "Kartik Malhar v. State of Bihar"(1996) 1 SCC 614, the Hon'ble Supreme Court observed, "On a conspectus of these decisions, it clearly comes out that there has been no departure from the principles laid down in Vadivelu Thevar case and, therefore, conviction can be recorded on the basis of the statement of a single eye witness provided his credibility is not shaken by any adverse circumstance appearing on the record against him and the court, at the same time, is convinced that he is a State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 16/20 FIR No. 409/05 PS Paschim Vihar truthful witness. The court will not then insist on corroboration by any other eye witness particularly as the incident might have occurred at a time or place when there was no possibility of any other eye witness being present. Indeed, the courts insist on the quality, and, not on the quantity of evidence.
41. In view of the above discussion and in light of the afore mentioned judgments, the court is of the opinion that testimony of PW-4 is well corroborated and is sufficient to prove the prosecution story.
42. The testimony of prosecution witnesses has further been corroborated by the mechanical inspection report of the scooter and the santro car. As per the mechanical inspection report Ex.PW13/B, the following damages were caused to scooter:-
1. Rear body was scratched.
2. Rear seat and back rest bracket and bumper damaged
3. Rear body mud guard was found damaged.
4. Left side body was slightly scratched.
5. Vehicle was fit for road test.
43. As per the mechanical inspection report Ex.PW13/A, the following damages were caused to the santro car:-
1. Front bumper scratched and dislocated from right side.
State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 17/20 FIR No. 409/05 PS Paschim Vihar
2. Bonnet was damaged from front right side.
3. Vehicle was also fit for road test.
44. The defence of the accused is that he had not caused the accident. However, the mechanical inspection report shows damages on the front right side of the car. The defence has not been able to explain how these damages were caused to the car. In absence of any such explanation the court in inclined to believe that these damages were caused to the car due to the accident in question.
45. Further, as per the MLC of the injured Prince Mahajan Ex. PW9/B, he had a clear lacerated wound on his head 7 x 8 cm, with bleeding and small abration on left knee. The injuries are opined to be simple in nature. As per the MLC of the injured Rashmi Mahajan Ex.PW9/A she had received following injuries:-
1. Pain and Swelling of right ankle.
2. Abrasions on left ankle.
46. X-ray of the injured Rashmi was conducted. On basis of the X-ray report, the nature of injury was opined to be grievous in her MLC. The child Kanishk aged eight months had received superficial scratch mark over forehead and right elbow. Injuries were opined to be simple.
47. In view of the above discussion, the court is of the considered opinion that the prosecution has successfully proved its case beyond all reasonable doubts. It has been successfully proved that the alleged accident was caused due to the State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 18/20 FIR No. 409/05 PS Paschim Vihar rash and negligent driving of the accused and that the grievous injuries were caused to Rashmi Mahajan and simple injuries were caused to complainant Prince Mahajan and his son Kanishk Mahajan was a result of such driving. Hence, the accused is held guilty of the offence punishable under Section 279, Section 337 and Section 338 Indian Penal Code.
48. Accordingly, the accused Gaurav Saini s/o Om Prakash Saini stands convicted for offence under Section 279/337/338 Indian Penal Code.
49. Now the court shall consider the question whether the offence under Section 185 MV Act has been proved against the accused or not. Section 185 M V Act is reproduced verbatim as under:-
"Section 185 Motor Vehicles Act, Driving by a drunken person or by a person under the influence of drugs- Whoever, while driving, or attempting to drive, a motor vehicle,-
(a) has, in his blood, alcohol exceeding 30 mg. Per 100 ml. of blood detected in a test by a breath analyzer, or]
(b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, Shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 19/20 FIR No. 409/05 PS Paschim Vihar may extend to three thousand rupees, or with both."
50. To prove this offence, the prosecution has placed on record the MLC of the accused which is Ex.PW12/D. As per the MLC, the smell of alcohol was found to be positive. However, there is no BAC (breath analyzer chart) on record. In the absence of the BAC, court is of the view that the offence under Section 185 M.V. Act has not been proved. Also PW-4 has deposed that the accused was drunk but she herself has admitted in her cross examination that she heard it from other people later on. Hence, her testimony with respect to the drunk condition of the accused cannot be read in evidence, it being hearsay evidence. As such, the accused Gaurav Saini stands acquitted under Section 185 Motor Vehicles Act.
51. Be listed arguments on point of sentence.
52. Copy of this judgment be given to the accused free of cost.
ANNOUNCED IN THE OPEN COURT ON
17th November 2016 (SAUMYA CHAUHAN)
MM-07 (West), THC, Delhi
State v. Gaurav Saini U/s 279//337338 IPC & 185 M V Act 20/20
FIR No. 409/05 PS Paschim Vihar